8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

________________

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): December 22, 2021

Central Index Key Number of the issuing entity: 0001895567

BANK 2021-BNK38

(Exact name of Issuing Entity)

Central Index Key Number of the depositor: 0001547361

Morgan Stanley Capital I Inc.

(Exact Name of Registrant as Specified in its Charter)

Central Index Key Number of the sponsor: 0001541557

Morgan Stanley Mortgage Capital Holdings LLC

Central Index Key Number of the sponsor: 0001102113

Bank of America, National Association

Central Index Key Number of the sponsor: 0000740906

Wells Fargo Bank, National Association

Central Index Key Number of the sponsor: 0001577313

National Cooperative Bank, N.A.

(Exact Names of the Sponsors as Specified in their Charters)

Delaware	333-259741-1	13-3291626
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

1585 Broadway, New York, New York	10036
(Address of Principal Executive Offices)	(ZIP Code)

Registrant’s telephone number, including area code (212) 761-4000

Not applicable

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any following provisions:

[ ]       Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[ ]       Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[ ]       Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[ ]       Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

  1  

 

Item 8.01. Other Events.

On December 22, 2021 (the “Closing Date”), Morgan Stanley Capital I Inc. (the “Registrant”) caused the issuance of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”), pursuant to a Pooling and Servicing Agreement, attached hereto as Exhibit 4.1 and dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Registrant, as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Pooling and Servicing Agreement.

The Certificates consist of the following classes (each, a “Class”), designated as (i) the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-4-1, Class A-4-2, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-1, Class A-5-2, Class A-5-X1, Class A-5-X2, Class X-A, Class X-B, Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1, Class A-S-X2, Class B, Class B-1, Class B-2, Class B-X1, Class B-X2, Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates (collectively, the “Publicly Offered Certificates”), (ii) the Class X-D, Class X-F, Class X-G, Class X-H, Class X-J, Class D, Class E, Class F, Class G, Class H, Class J, Class V and Class R Certificates (collectively, the “Privately Offered Certificates”), and (iii) the RR Interest.

The Certificates represent, in the aggregate, the entire beneficial ownership in the Issuing Entity, a common law trust to be formed on the Closing Date under the laws of the State of New York pursuant to the Pooling and Servicing Agreement. The Issuing Entity’s primary assets will be a pool of 65 commercial, multifamily and/or manufactured housing community mortgage loans (the “Mortgage Loans”). Certain of the Mortgage Loans were acquired by the Registrant from Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.1 and dated as of December 13, 2021, between the Registrant and MSMCH; certain of the Mortgage Loans were acquired by the Registrant from Bank of America, National Association (“BANA”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.2 and dated as of December 13, 2021, between the Registrant and BANA; certain of the Mortgage Loans were acquired by the Registrant from Wells Fargo Bank, National Association (“Wells Fargo”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.3 and dated as of December 13, 2021, between the Registrant and Wells Fargo; and certain of the Mortgage Loans were acquired by the Registrant from National Cooperative Bank, N.A. (“NCB”) pursuant to a Mortgage Loan Purchase Agreement, attached hereto as Exhibit 99.4 and dated as of December 13, 2021, between the Registrant and NCB.

The assets of the Issuing Entity include several Mortgage Loans, each of which is a part of a Whole Loan. Each Whole Loan is governed by a co-lender, intercreditor or similar agreement (each, an “Intercreditor Agreement”) between the holders of the promissory notes comprising such Whole Loan, the terms of which are described under “Description of the Mortgage Pool—The Whole Loans” in the Prospectus described below. Each Intercreditor Agreement is attached as an exhibit hereto as described in the following table. Moreover, certain of such Whole Loans will not be serviced pursuant to the Pooling and Servicing Agreement but will instead be serviced pursuant to a different servicing agreement (each, a “Non-Serviced PSA”). Each such Non-Serviced PSA is attached as an exhibit hereto as described in the following table. For a description of the servicing of the applicable Whole Loans under such Non-Serviced PSAs, see “Pooling and Servicing Agreement—Servicing of the Non-Serviced Mortgage Loans” in the Prospectus described below.

Name of Mortgage Loan/Whole Loan	Non-Serviced PSA (if any)	Intercreditor Agreement
One North Wacker	Exhibit 4.2	Exhibit 99.5
Park Avenue Plaza	Exhibit 4.3	Exhibit 99.6
CX – 350 & 450 Water Street	Exhibit 4.4	Exhibit 99.7
1201 Lake Robbins	Exhibit 4.5	Exhibit 99.8

The funds used by the Registrant to pay the purchase price for the Mortgage Loans were derived from the proceeds of (i) the sale of the Publicly Offered Certificates by the Registrant to Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC (collectively, in such capacities, the “Underwriters”), pursuant to an Underwriting Agreement, attached hereto as Exhibit 1.1 and dated

  2  

 

as of December 13, 2021, between the Registrant, the Underwriters, as underwriters, and MSMCH, (ii) the sale of the Privately Offered Certificates by the Registrant to Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC (collectively, in such capacities, the “Initial Purchasers”), pursuant to a Certificate Purchase Agreement, dated as of December 13, 2021, between the Registrant, the Initial Purchasers, as initial purchasers, and MSMCH, and (iii) the transfer of the RR Interest by the Registrant to BANA, Morgan Stanley Bank, N.A., and Wells Fargo (in such capacity, the “Retaining Parties”), pursuant to an RR Interest Transfer Agreement, dated as of December 14, 2021, between the Registrant and the Retaining Parties. Only the Publicly Offered Certificates were offered to the public. The Privately Offered Certificates and the RR Interest were sold and transferred, as applicable, in transactions exempt from registration under the Securities Act of 1933, as amended.

The Publicly Offered Certificates and the Mortgage Loans are more particularly described in the Prospectus, dated December 14, 2021 and filed with the Securities and Exchange Commission on December 22, 2021. In connection with such Prospectus, the Chief Executive Officer of the Registrant has provided the certification attached hereto as Exhibit 36.1 and dated as of the date of the Prospectus.

The Registrant sold all of the Publicly Offered Certificates, having an aggregate certificate balance of $613,784,000, on December 22, 2021.  The net proceeds of the offering to the Registrant of the issuance of the Publicly Offered Certificates, after deducting expenses payable by the Registrant of $4,681,836, were approximately $655,531,140 plus accrued interest from the cut-off date.  Of the expenses paid by the Registrant, $100,000 were paid directly to affiliates of the Registrant, $50,000 were in the form of fees paid to the Underwriters unaffiliated with the Registrant, approximately $135,000 were expenses paid to or for the Underwriters and $4,396,836 were other expenses.  All of the foregoing expense amounts are the Registrant’s reasonable estimates of such expenses.  No underwriting discounts and commissions or finder’s fees were paid by the Registrant; the Publicly Offered Certificates were offered by the Underwriters for sale to the public in negotiated transactions or otherwise at varying prices determined at the time of sale.  The Registrant also sold to the Initial Purchasers on such date the Privately Offered Certificates, having an aggregate certificate balance of $78,779,455 and transferred to the Retaining Parties the RR Interest, having a certificate balance of $36,450,708.18, in each case in private placement transactions exempt from registration under the Securities Act of 1933, as amended, pursuant to Section 4(2) of the Act.  Further information regarding such sales (including, as to the price per class of Publicly Offered Certificates) is available in the Underwriting Agreement attached as Exhibit 1.1 hereto and in the Prospectus referred to above.  The related registration statement (file no. 333-259741) was originally declared effective on November 3, 2021.

In connection with the issuance and sale to the Underwriters of the Publicly Offered Certificates, a legal opinion was rendered related to the validity of, and certain federal income tax considerations relating to, the Publicly Offered Certificates, which legal opinion is attached hereto as Exhibits 5.1, 8.1 and 23.1.

  3  

 

Item 9.01. Financial Statements and Exhibits.

(d)        Exhibits:

1.1 Underwriting Agreement, dated as of December 13, 2021, between Morgan Stanley Capital I Inc., Morgan Stanley Mortgage Capital Holdings LLC, Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC.

4.1 Pooling and Servicing Agreement, dated as of December 1, 2021, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer.

4.2 Pooling and Servicing Agreement, dated and effective as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Rialto Capital Advisors, LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer.

4.3 Trust and Servicing Agreement, dated as of November 1, 2021, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as servicer and special servicer, Wells Fargo Bank, National Association, as certificate administrator and custodian, and Wilmington Trust, National Association, as trustee.

4.4 Trust and Servicing Agreement, dated as of November 9, 2021, between Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer, Situs Holdings, LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, paying agent and custodian, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer.

4.5 Pooling and Servicing Agreement, dated as of November 1, 2021, between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, CWCapital Asset Management LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer.

5.1 Legality Opinion of Sidley Austin LLP, dated December 22, 2021.

8.1 Tax Opinion of Sidley Austin LLP, dated December 22, 2021 (included as part of Exhibit 5.1).

23.1 Consent of Sidley Austin LLP (included as part of Exhibit 5.1).

36.1 Depositor’s Certification for Shelf Offerings of Asset-Backed Securities in respect of that certain Prospectus dated December 14, 2021.

99.1 Mortgage Loan Purchase Agreement, dated as of December 13, 2021, between Morgan Stanley Capital I Inc. and Morgan Stanley Mortgage Capital Holdings LLC.

  4  

 

99.2 Mortgage Loan Purchase Agreement, dated as of December 13, 2021, Morgan Stanley Capital I Inc. and Bank of America, National Association.

99.3 Mortgage Loan Purchase Agreement, dated as of December 13, 2021, between Morgan Stanley Capital I Inc. and Wells Fargo Bank, National Association.

99.4 Mortgage Loan Purchase Agreement, dated as of December 13, 2021, between Morgan Stanley Capital I Inc. and National Cooperative Bank, N.A.

99.5 Agreement Between Note Holders, dated as of October 7, 2021, by and between Bank of America, National Association, as initial note A-1 holder, Bank of America, National Association, as initial note A-2 holder, Bank of America, National Association, as initial note A-3 holder, Bank of America, National Association, as initial note A-4 holder, Bank of America, National Association, as initial note A-5 holder, Bank of America, National Association, as initial note A-6 holder, and Bank of America, National Association, as initial note A-7 holder, relating to the One North Wacker Whole Loan.

99.6 Agreement Between Note Holders, dated as of November 17, 2021, by and between Morgan Stanley Bank, N.A., as initial note A-1 holder, initial note A-2 holder, initial note A-3 holder, initial note A-4 holder, initial note A-5 holder, initial note A-6 holder, initial note A-7 holder and initial note A-8 holder, and Morgan Stanley Bank, N.A., as initial note B-1 holder, relating to the Park Avenue Plaza Whole Loan.

99.7 Co-Lender Agreement, dated as of October 14, 2021, by and between DBR Investment Co. Limited, as an initial note A holder, Bank of America, N.A., as an initial note A holder, JPMorgan Chase Bank, National Association, as an initial note A holder, 3650 Cal Bridge Lending, LLC, as an initial note A holder, DBR Investment Co. Limited, as initial note B-1 holder, Bank of America, N.A., as initial note B-2 holder, JPMorgan Chase Bank, National Association, as initial note B-3 holder, and 3650 Cal Bridge Lending, LLC, as initial note B-4 holder, relating to the CX – 350 & 450 Water Street Whole Loan.

99.8 Agreement Between Note Holders, dated as of November 22, 2021, by and between Wells Fargo Bank, National Association, as initial note A-1 holder, Wells Fargo Bank, National Association, as initial note A-2 holder, Wells Fargo Bank, National Association, as initial note A-3 holder, and Wells Fargo Bank, National Association, as initial note A-4 holder, relating to the 1201 Lake Robbins Whole Loan.

  5  

 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

MORGAN STANLEY CAPITAL I INC.
By:	/s/ Jane Lam
Name:  Jane Lam
Title:   President

Dated: December 22, 2021

  6  

EX-1.1

Exhibit 1.1

EXECUTION VERSION

 

BANK 2021-BNK38

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-BNK38

UNDERWRITING AGREEMENT

As of December 13, 2021

MORGAN STANLEY & CO. LLC

1585 Broadway

New York, New York 10036

BOFA SECURITIES, INC.
One Bryant Park

New York, New York 10036

 

WELLS FARGO SECURITIES, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001

Academy Securities, Inc.
140 East 45th Street, 5th Floor
New York, New York 10017

DREXEL HAMILTON, LLC
77 Water Street
New York, New York 10005

Ladies and Gentlemen:

Morgan Stanley Capital I Inc., a Delaware corporation (the “Depositor”), intends to issue its BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”), in forty-five (45) classes and interests (each, a “Class”) as designated in the Prospectus (as defined below). Pursuant to this underwriting agreement (the “Agreement”), the Depositor further proposes to sell to Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“Wells Fargo Securities”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel” and, collectively with MS&Co., BofA Securities, Wells Fargo Securities and Academy, the “Underwriters” and each, individually, an “Underwriter”) the Certificates set forth in Schedule I hereto (the “Registered Certificates”) in the respective original principal amounts and notional amounts set forth in Schedule I. The Certificates represent in the aggregate the entire beneficial ownership interest in a trust fund (the “Trust Fund”) primarily consisting of a segregated pool (the “Mortgage Pool”) of sixty-five (65) fixed-rate mortgage loans (the “Mortgage Loans”) having an approximate aggregate principal balance of $729,014,163 as of the Cut-off Date, secured by first liens on certain fee simple and/or leasehold interests in commercial, multifamily, manufactured housing community and/or residential cooperative properties (the “Mortgaged

   

Properties”). The Certificates will be issued on or about December 22, 2021 (the “Closing Date”), pursuant to a pooling and servicing agreement (the “Pooling and Servicing Agreement”), dated as of December 1, 2021, among the Depositor, as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A. (“NCB”), as NCB master servicer (in such capacity, the “NCB Master Servicer”) and as NCB special servicer (in such capacity, the “NCB Special Servicer”), Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “Trustee”), and Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”).

The Mortgage Loans will be purchased by the Depositor (i) from Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “MSMCH Mortgage Loan Purchase Agreement”), dated and effective as of the date hereof, between MSMCH and the Depositor, (ii) from Bank of America, National Association (“BANA”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “BANA Mortgage Loan Purchase Agreement”), dated and effective as of the date hereof, between BANA and the Depositor, (iii) from Wells Fargo Bank, National Association (“Wells Fargo Bank”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “Wells Fargo Mortgage Loan Purchase Agreement”), dated and effective as of the date hereof, between Wells Fargo Bank and the Depositor, and (iv) from NCB (collectively with MSMCH, BANA and Wells Fargo Bank, the “Mortgage Loan Sellers”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “NCB Mortgage Loan Purchase Agreement” and, collectively with the MSMCH Mortgage Loan Purchase Agreement, the BANA Mortgage Loan Purchase Agreement and the Wells Fargo Bank Mortgage Loan Purchase Agreement, the “Mortgage Loan Purchase Agreements”), dated and effective as of the date hereof, between NCB and the Depositor.

Two real estate mortgage investment conduit (“REMIC”) elections will be made with respect to certain portions of the Trust Fund for federal income tax purposes. The Registered Certificates and the Mortgage Pool are described more fully in a registration statement and a Prospectus furnished to you by the Depositor.

The Certificates (other than the RR Interest) not being sold pursuant to this Agreement (the “Offered Non-Registered Certificates”) will be sold by the Depositor to MS&Co., BofA Securities, Wells Fargo Securities, Academy and Drexel (collectively in such capacity, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated as of the date hereof (the “Certificate Purchase Agreement”), by and among the Depositor, MSMCH and the Initial Purchasers. The Initial Purchasers will offer the Offered Non-Registered Certificates for sale in transactions exempt from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”). The RR Interest will not be registered under the 1933 Act and will be acquired by Morgan Stanley Bank, N.A. (“Morgan Stanley Bank”), BANA and Wells Fargo Bank from the Depositor pursuant to an RR Interest Transfer Agreement, dated as of December 13, 2021, between Morgan Stanley Bank, BANA, Wells Fargo Bank and the Depositor.

  -2-  

The Underwriters and the Initial Purchasers are collectively referred to herein as the “Dealers”.

In connection with the transactions contemplated by this Agreement, each of the Mortgage Loan Sellers will enter into an indemnification agreement, dated as of the date hereof (each, a “Mortgage Loan Seller Indemnification Agreement”), among such Mortgage Loan Seller, the Depositor and the Dealers, providing for indemnification by such Mortgage Loan Seller of the Dealers in accordance with the terms thereof with respect to the Mortgage Loans sold to the Depositor by such Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement. In addition, in connection with the transactions contemplated by this Agreement, each of the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, Wells Fargo Bank, National Association (the “Outside Custodian”), the Certificate Administrator, the Trustee, the Operating Advisor and the Asset Representations Reviewer (each, a “Service Provider”) will enter into an indemnification agreement, dated as of the date hereof (each, a “Service Provider Indemnification Agreement” and, collectively with the Mortgage Loan Seller Indemnification Agreements, the “Indemnification Agreements”), among such Service Provider, the Depositor and the Dealers.

Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

1. Representations and Warranties.

(a)               The Depositor represents and warrants to, and agrees with, each Underwriter that:

(i)                 The Depositor has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-259741) on Form SF-3 for the registration of Commercial Mortgage Pass-Through Certificates, issuable in series, including the Registered Certificates, under the 1933 Act, which registration statement has become effective and a copy of which, as amended to the date hereof, has heretofore been delivered to you. The Depositor meets the requirements for use of Form SF-3 under the 1933 Act, and such registration statement, as amended at the date hereof, meets the requirements set forth in Rule 415(a)(1) under the 1933 Act and complies in all other material respects with the 1933 Act and the rules and regulations thereunder. The Depositor also has prepared and filed with the Commission a preliminary prospectus dated December 7, 2021 (the “Preliminary Prospectus”), specifically relating to the Registered Certificates, in accordance with Rule 424(h) and Rule 430D under the 1933 Act. The Depositor also has filed with, or proposes to file with, the Commission pursuant to Rule 424(b) under the 1933 Act a prospectus specifically relating to the Registered Certificates (the “Prospectus”). Such registration statement, as amended at the time when it became effective, or, if a post-effective amendment is filed with respect thereto, as amended by such post-effective amendment at the time of its effectiveness, including all exhibits thereto (and any information that is contained in the Preliminary Prospectus or the Prospectus and is deemed to be a part of and included in such registration statement), is referred to herein as the “Registration Statement.” Any reference in this Agreement to the Registration Statement used in connection with the offering of the Registered

  -3-  

Certificates, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any exhibits thereto and the documents incorporated by reference therein pursuant to Item 10(d) of Form SF-3 under the 1933 Act, as of the effective date of the Registration Statement or the date of the Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Preliminary Prospectus and the Prospectus shall be deemed to refer to and include any documents filed after the date the Registration Statement became effective, or the date of the Preliminary Prospectus or the Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “1934 Act”) that are deemed to be incorporated by reference therein. “Master Tapes” shall mean the respective compilations of information and data regarding the Mortgage Loans covered by the two Independent Accountants’ Reports on Applying Agreed-Upon Procedures, each to be dated on or about the business day immediately preceding the Closing Date, rendered by a third party accounting firm described in Section 6(i) of this Agreement.

(ii)              As of the date hereof, as of the date the Registration Statement became effective or was deemed effective pursuant to Rule 430D under the 1933 Act, as of the Time of Sale (including any subsequent Time of Sale), as of the date of the Preliminary Prospectus, as of the date the Prospectus is first filed pursuant to Rule 424 under the 1933 Act, as of the date on which, prior to the Closing Date, any amendment to the Registration Statement becomes effective, as of the date on which any supplement to the Prospectus is filed with the Commission, and as of the Closing Date (each such date or time, an “Effective Time”), (A) the Registration Statement, as amended as of any such time, the Preliminary Prospectus, as amended or supplemented as of any such time, and the Prospectus, as amended or supplemented as of any such time, complied, complies and will comply in all material respects with the applicable requirements of the 1933 Act and the rules and regulations thereunder, (B) the conditions to the use by the Depositor of a registration statement on Form SF-3 under the 1933 Act, as set forth in the General Instructions to Form SF-3, have been satisfied or will be satisfied with respect to the Registration Statement and the Prospectus, (C) the Registration Statement, as amended as of any such time, does not include and will not include any untrue statement of a material fact and does not omit and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (D) the Preliminary Prospectus, as amended or supplemented as of any such time, does not include and will not include any untrue statement of a material fact and does not omit and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (E) the Prospectus, as amended or supplemented as of any such time, does not include and will not include any untrue statement of a material fact and does not omit and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Depositor makes no representations or warranties as to (x) statements contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus or the information contained in any revision or amendment of or supplement to the Preliminary Prospectus or the Prospectus thereto made in reliance upon and in conformity with information

  -4-  

furnished in writing to the Depositor by or on behalf of any Underwriter specifically for use in the Registration Statement, the Preliminary Prospectus or the Prospectus (such information being identified in Section 8(b) hereof), (y) the Mortgage Loan Seller Covered Information (as defined in Section 8(a)(i) hereof), or (z) any information with respect to which any of the General Master Servicer (the “General Master Servicer Covered Information”), the General Special Servicer (the “General Special Servicer Covered Information”), the NCB Master Servicer (the “NCB Master Servicer Covered Information”), the NCB Special Servicer (the “NCB Special Servicer Covered Information”), the Outside Custodian (the “Outside Custodian Covered Information”), the Certificate Administrator (the “Certificate Administrator Covered Information”), the Trustee (the “Trustee Covered Information”), the Operating Advisor (the “Operating Advisor Covered Information”) or the Asset Representations Reviewer (the “Asset Representations Reviewer Covered Information”) agrees in the related Service Provider Indemnification Agreement to provide indemnification.

(iii)            The Depositor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease or operate its properties and to conduct its business as described in the Prospectus as now conducted by it and to enter into and perform its obligations under this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement; and the Depositor is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business.

(iv)             As of each Effective Time, there has not and will not have been (x) any request by the Commission for any further amendment to the Registration Statement or the Prospectus or for any additional information, (y) any issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose or (z) any notification with respect to the suspension of the qualification of the Registered Certificates for sale in any jurisdiction or any initiation or threat of any proceeding for such purpose.

(v)               Each of this Agreement and the Mortgage Loan Purchase Agreements has been, and as of the Closing Date the Pooling and Servicing Agreement will be, duly authorized, executed and delivered by the Depositor and each of this Agreement and the Mortgage Loan Purchase Agreements constitutes, and, as of the Closing Date, the Pooling and Servicing Agreement will constitute, a legal, valid and binding agreement of the Depositor, enforceable against the Depositor in accordance with its respective terms, except as enforceability may be limited by (x) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, (y) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (z) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement that purport to provide indemnification from securities law liabilities.

  -5-  

(vi)             As of the Closing Date, the Registered Certificates, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements will conform in all material respects to the respective descriptions thereof contained in each of (A) the Prospectus, (B) the Preliminary Prospectus and (C) any Issuer Information (as may have been revised and corrected if such revised or corrected information was delivered a reasonable time prior to the Time of Sale) delivered to any Underwriter for inclusion in an Underwriter Free Writing Prospectus. As of the Closing Date, the Registered Certificates will be duly and validly authorized and, when delivered in accordance with the Pooling and Servicing Agreement to you against payment therefor as provided herein, will be duly and validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.

(vii)          The Depositor is not in violation of its certificate of incorporation or by-laws or in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Depositor or which violation or default would have a material adverse effect on the performance of its obligations under this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement. Neither the issuance and sale of the Registered Certificates, nor the execution and delivery by the Depositor of this Agreement, any Mortgage Loan Purchase Agreement or the Pooling and Servicing Agreement nor the consummation by the Depositor of any of the transactions herein or therein contemplated, nor compliance by the Depositor with the provisions hereof or thereof, did, does or will conflict with or result in a breach of any term or provision of the certificate of incorporation or by-laws of the Depositor or conflict with, result in a breach, violation or acceleration of, or constitute a default (or an event which, with the passing of time or notification, or both, would constitute a default) under, the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it or any material asset is bound, or any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor.

(viii)        Neither the issuance and sale of the Registered Certificates, nor the execution and delivery by the Depositor of this Agreement or any Mortgage Loan Purchase Agreement nor the consummation by the Depositor of any of the transactions herein or therein contemplated, nor compliance by the Depositor with the provisions hereof or thereof, did, does or will, except as contemplated by the Pooling and Servicing Agreement, result in the creation or imposition of any lien, charge or encumbrance upon any of the Depositor’s property or assets pursuant to the terms of any indenture, mortgage, deed of trust or other agreement or instrument to which the Depositor is a party, by which it or any property or asset is bound or to which any of the property or assets of the Depositor is subject.

(ix)             There is no action, suit or proceeding against the Depositor pending, or, to the knowledge of the Depositor, threatened, before any court, arbitrator, administrative agency or other tribunal, (v) that, if determined adversely to the Depositor, would have a material adverse effect on the business or financial condition of the Depositor, (w) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan Purchase Agreement or the Registered Certificates, (x)

  -6-  

seeking to prevent the issuance of the Registered Certificates or the consummation of any of the transactions contemplated by the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements or this Agreement, (y) that might materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan Purchase Agreement or the Registered Certificates or (z) seeking to affect adversely the federal income tax attributes of the Registered Certificates as described in the Preliminary Prospectus or the Prospectus.

(x)               The Depositor will, at the Closing Date (and to the extent that title and ownership of any such Mortgage Loan was transferred to the Depositor by the applicable Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement), own the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge, security interest, adverse claim or other encumbrance.

(xi)             At the Closing Date, the Depositor will have full power and authority to sell and deliver the Mortgage Loans to the Trustee under the Pooling and Servicing Agreement and, at the Closing Date, will have duly authorized such assignment and delivery to the Trustee by all necessary action.

(xii)          There are no contracts, indentures or other documents of a character required by the 1933 Act or by the rules and regulations thereunder to be described or referred to in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described or referred to therein or so filed or incorporated by reference as exhibits thereto.

(xiii)        No authorization, approval or consent of any court or governmental authority or agency is necessary in connection with (i) the offering or sale of the Registered Certificates pursuant to this Agreement, except such as have been, or as of the Closing Date will have been, obtained or such as may otherwise be required under applicable state securities laws in connection with the purchase and offer and sale of the Registered Certificates by the Underwriters and any recordation of the respective assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing Agreement that have not been completed or (ii) the consummation by the Depositor of the other transactions contemplated by this Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreements.

(xiv)         The Depositor possesses all material licenses, certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, and the Depositor has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authority or permit which, singly or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Depositor.

  -7-  

(xv)           Any taxes, fees and other governmental charges in connection with the execution and delivery of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements and the delivery and sale of the Registered Certificates (other than such federal, state and local taxes as may be payable on the income or gain recognized therefrom) have been or will be paid at or prior to the Closing Date.

(xvi)         Neither the Depositor nor the Trust Fund is, and neither the sale of the Registered Certificates in the manner contemplated by the Prospectus nor the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement will cause the Depositor or the Trust Fund to be, subject to registration or regulation as an “investment company” or under the control of an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”). The Trust Fund will be relying on an exclusion or exemption from the definition of “investment company” under the Investment Company Act contained in Section 3(c)(5) of the Investment Company Act or Rule 3a-7 under the Investment Company Act as a basis for it not registering under the Investment Company Act, although there may be additional exclusions or exemptions available to the Trust Fund. The Trust Fund was structured so as not to constitute a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

(xvii)      Under generally accepted accounting principles and for federal income tax purposes, the Depositor will report the transfer of the Mortgage Loans to the Trustee in exchange for the Certificates and will report the sale of the Registered Certificates to the Underwriters pursuant to this Agreement as a sale of the interests in the Mortgage Loans evidenced by the Registered Certificates. The consideration received by the Depositor upon the sale of the Registered Certificates to the Underwriters will constitute reasonably equivalent value and fair consideration for the Registered Certificates. The Depositor will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Registered Certificates to the Underwriters. In addition, the Depositor was solvent at all relevant times prior to, and will not be rendered insolvent by, the transfer of the Mortgage Loans to the Trustee on behalf of the Trust Fund. The Depositor is not selling the Registered Certificates to the Underwriters and is not transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent to hinder, delay or defraud any of the creditors of the Depositor.

(xviii)    The Depositor acknowledges and agrees that: (i) the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Depositor with respect to the offering of the Registered Certificates contemplated hereby (including in connection with determining the terms of the offering) and not as a financial or other advisor or a fiduciary to, or an agent of, the Depositor or any other person irrespective of whether any Underwriter has advised or is advising the Depositor on other matters; (ii) no Underwriter is advising the Depositor as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction; (iii) the Depositor has consulted, to the extent it deems necessary, its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the

  -8-  

transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Depositor with respect thereto; (iv) any review by the Underwriters of the Depositor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor; and (v) the Underwriters’ obligations to the Depositor in respect of the offering, purchase and sale of the Registered Certificates are set forth in this Agreement in their entirety.

(xix)         At the Closing Date, the respective Classes of Registered Certificates listed on Schedule I hereto shall have been assigned ratings no lower than those set forth in the Time of Sale Information by the nationally recognized statistical rating organizations retained to provide such ratings (the “Rating Agencies”), and such ratings shall not have been placed on negative credit watch or negative review by such Rating Agency.

(xx)           The Depositor is not, and on the date on which the initial bona fide offer of the Registered Certificates is made will not be, an “ineligible issuer,” as defined in Rule 405 under the 1933 Act.

(xxi)         At or prior to the time when sales to investors of the Registered Certificates were first made as determined in accordance with Rule 159 of the 1933 Act (the “Time of Sale”), which was approximately (A) 4:32 p.m. (New York time) on December 13, 2021 with respect to the Registered Certificates (other than the Class X-A and Class X-B Certificates) and (B) 3:46 p.m. (New York time) on December 14, 2021 with respect to the Class X-A and Class X-B Certificates, the Depositor had prepared the following information (collectively, the “Time of Sale Information”): (x) the Free Writing Prospectus dated December 7, 2021, designated as a Structural and Collateral Term Sheet and relating to the Registered Certificates (the “Term Sheet”) and (y) the Preliminary Prospectus. For the purposes of this Agreement, “Free Writing Prospectus” shall mean a “free writing prospectus” as defined pursuant to Rule 405 under the 1933 Act. If, subsequent to the date of this Agreement, the Depositor and the Underwriters have determined that the Time of Sale Information included an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and the applicable Underwriters have terminated their old purchase contracts and entered into new purchase contracts with investors in the Registered Certificates, then “Time of Sale Information” will refer to the information available to investors at the time of entry into such new purchase contracts, including any information that corrects such material misstatements or omissions (“Corrective Information”).

(xxii)      At the Closing Date, each of the representations and warranties of the Depositor set forth in the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements will be true and correct in all material respects.

(xxiii)    The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the

  -9-  

circumstances under which they were made, not misleading; provided that the Depositor makes no representation and warranty with respect to (x) any Underwriter Information (as defined below) in such Time of Sale Information, (y) any Mortgage Loan Seller Covered Information in such Time of Sale Information or (z) any General Master Servicer Covered Information, General Special Servicer Covered Information, NCB Master Servicer Covered Information, NCB Special Servicer Covered Information, Outside Custodian Covered Information, Certificate Administrator Covered Information, Trustee Covered Information, Operating Advisor Covered Information or Asset Representations Reviewer Covered Information.

(xxiv)     To the extent that the Pooling and Servicing Agreement provides that the Underwriters are to receive any notices or reports, or have any other rights thereunder, the Depositor will enforce the rights of the Underwriters under the Pooling and Servicing Agreement.

(xxv)       The Depositor (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the 1933 Act) that constitutes an offer to sell or solicitation of an offer to buy the Registered Certificates other than (A)  any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (B) the Preliminary Prospectus or any supplement to the Preliminary Prospectus that may be required to be filed with the Commission under Rule 424(h)(2) under the 1933 Act, (C) the Prospectus, (D) the Term Sheet and (E) each other written communication approved in writing in advance by MS&Co. (each such communication referred to in clause (D) and this clause (E) constituting an “issuer free writing prospectus” (as defined in Rule 433(h) under the 1933 Act) being referred to as an “Issuer Free Writing Prospectus”). Each such Issuer Free Writing Prospectus complied or, if used after the date hereof, will comply, in all material respects with the 1933 Act and the rules and regulations promulgated thereunder, has been filed or will be filed in accordance with Section 4(b)(v) (to the extent required thereby) and, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statements of a material fact or, (when read in conjunction with the other Time of Sale Information) omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Depositor makes no representation and warranty with respect to (x) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Depositor in writing by any Underwriter expressly for use in any Issuer Free Writing Prospectus, (y) any Mortgage Loan Seller Covered Information in any Issuer Free Writing Prospectus or (z) any General Master Servicer Covered Information, General Special Servicer Covered Information, NCB Master Servicer Covered Information, NCB Special Servicer Covered Information, Outside Custodian Covered Information, Certificate Administrator Covered Information, Trustee Covered Information, Operating Advisor Covered Information or Asset Representations Reviewer Covered Information in any Issuer Free Writing Prospectus.

  -10-  

(xxvi)     The Depositor has executed and delivered a written representation (the “17g-5 Representation”) to each Rating Agency that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (E) of Rule 17g-5 of the 1934 Act, and the Depositor has complied, and hereafter will comply, with each such representation, other than any breach of the 17g-5 Representation (y) that would not have a material adverse effect on the Certificates or (z) arising from a breach by any of the Underwriters of the representation, warranty and agreement set forth in Section 4(b)(xvi).

(xxvii)  The Depositor has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Underwriters) any third party due diligence report contemplated by Rule 15Ga-2 under the 1934 Act (“Due Diligence Report”) in connection with the transactions contemplated by this Agreement and the Prospectus other than the agreed-upon procedures reports, each dated December 3, 2021 (the “Accountants’ Due Diligence Reports”) obtained from the accounting firms engaged to perform procedures involving a comparison of information in the loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountants”), copies of which have been furnished to each of the Underwriters, at the request of the Depositor; and, except for the Accountants with respect to the Accountants’ Due Diligence Reports, the Depositor has not employed (and, through and including the Closing Date, will not employ without the consent of the Underwriters) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the 1934 Act (“Due Diligence Services”) in connection with the transactions contemplated by this Agreement and the Prospectus. The Accountants have consented to the inclusion of the Accountants’ Due Diligence Reports in a Form 15G (as defined below) furnished on the Commission’s Electronic Data Gathering and Retrieval System (“EDGAR”) as required by Rule 15Ga-2 under the 1934 Act (“Rule 15Ga-2”).

(xxviii)                        Any certification on Form ABS Due Diligence-15E (each, a “Form 15E”) received by the Depositor from the Accountants in connection with the Due Diligence Services provided by the Accountants was promptly posted, after receipt, as required by Rule 17g-5 under the 1934 Act on the Rule 17g-5 website established by or on behalf of the Depositor, and the Depositor has not received any other Form 15E from any party.

(xxix)     The Depositor (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) each containing the findings and conclusions of the Accountants’ Due Diligence Reports and meeting all other requirements of such Form 15G, Rule 15Ga-2, any other rules and regulations of the Commission and the 1934 Act; (B) provided a copy of the final draft of each such Form 15G to each of the Underwriters at least six (6) business days before the date of first sale of any Registered Certificates; and (C) furnished each such Form 15G to the Commission on EDGAR at least five (5) business days before the date of first sale of any Registered Certificates as required by Rule 15Ga-2.

(xxx)       No portion of any Form 15G contains any names, addresses, other personal identifiers or zip codes with respect to any individuals, or any other personally

  -11-  

identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the meaning of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999.

(b)               MSMCH represents and warrants to, and agrees with, each Underwriter (and with respect to clause (ix) in this Section 1(b), MSMCH represents and warrants to, and agrees with, each Underwriter and the Depositor) that:

(i)                 It has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of New York, with the power and authority to enter into and perform its obligations under this Agreement.

(ii)              This Agreement has been duly and validly authorized, executed and delivered by MSMCH and, assuming due authorization, execution and delivery hereof by the Depositor and the Underwriters, constitutes a legal, valid and binding obligation of MSMCH, enforceable against MSMCH in accordance with its terms, except as such enforcement may be limited by (x) bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights in general, as they may be applied in the context of the insolvency of a national banking association, (y) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (z) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws.

(iii)            The execution and delivery of this Agreement by MSMCH and MSMCH’s performance and compliance with the terms of this Agreement will not (x) violate MSMCH’s articles of organization or operating agreement, (y) violate any law or regulation or any administrative decree or order to which it is subject or (z) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any contract, agreement or other instrument to which MSMCH is a party or by which MSMCH is bound.

(iv)             MSMCH is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency or body, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of MSMCH or its properties or have consequences that would materially and adversely affect its performance hereunder.

(v)               MSMCH is not a party to or bound by any agreement or instrument or subject to any articles of organization, operating agreement or any other limited liability company restriction or any judgment, order, writ, injunction, decree, law or regulation that would materially and adversely affect the ability of MSMCH to perform its obligations under this Agreement or that requires the consent of any third person to the execution of this Agreement or the performance by MSMCH of its obligations under this Agreement (except to the extent such consent has been obtained).

  -12-  

(vi)             No consent, approval, authorization or order of any court or administrative, regulatory or other governmental agency or body is required for the execution, delivery and performance by MSMCH of or compliance by MSMCH with this Agreement or the consummation of the transactions contemplated by this Agreement except as have previously been obtained.

(vii)          No litigation is pending or, to the best of MSMCH’s knowledge, threatened against MSMCH that would assert the invalidity of this Agreement, prohibit its entering into this Agreement or materially and adversely affect the performance by MSMCH of its obligations under this Agreement.

(viii)        Each representation and warranty of the Depositor set forth in Section 1(a) hereof is true and correct as of the date hereof or as of the date specified in such representation and warranty.

(ix)             (A) MSMCH has entered into an agreement with BANA, Wells Fargo Bank and NCB, pursuant to which agreement (I) MSMCH agreed to act as the “retaining sponsor” (as defined in the Risk Retention Rules) and (II) MSMCH agreed to satisfy its risk retention requirements under the Risk Retention Rules by (1) transferring to BANA, in its capacity as an “originator” (as defined in the Risk Retention Rules), BANA’s pro rata portion of an “eligible vertical interest” (as defined in the Risk Retention Rules) in the form of a single vertical security (the “RR Interest”), (2) transferring to Wells Fargo Bank, in its capacity as an “originator” (as defined in the Risk Retention Rules), Wells Fargo Bank’s pro rata portion of the RR Interest, and (3) retaining (or causing a “majority-owned affiliate” (as defined in the Risk Retention Rules) of MSMCH to retain) the remaining portion of the RR Interest, and (B) each of the Preliminary Prospectus and the Prospectus contains the required disclosures under §246.4(c)(2) and §246.11(a)(2) of the Risk Retention Rules.

(c)               Each Underwriter (severally, but not jointly) represents and warrants to and covenants with the Depositor that:

(i)                 as of the date hereof and as of the Closing Date, such Underwriter has complied with all of its obligations under Section 4 hereof.

(ii)              it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Registered Certificates to any EU Retail Investor in the European Economic Area.

For the purposes of this subsection (c)(ii):

(1)       the expression “EU Retail Investor” means a person who is one (or more) of the following:

(A)       a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or

  -13-  

(B) a customer within the meaning of Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or

(C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129, as amended;

(2)       the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Registered Certificates so as to enable an investor to decide to purchase or subscribe for the Registered Certificates; and

(3)       the expression “European Economic Area” means Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

(iii)            (A) It has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Registered Certificates to any UK Retail Investor in the United Kingdom.

For the purposes of this subsection (c)(iii):

(1)       the expression “UK Retail Investor” means a person who is one (or more) of the following:

(A)       a retail client, as defined in point (8) of Article 2 of Commission Delegated Regulation (EU) 2017/565, as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018 (as amended, the “EUWA”) and as amended; or

(B) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (as amended, the “FSMA”) and any rules or regulations made under the FSMA (such rules and regulations as amended) to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014, as it forms part of United Kingdom domestic law by virtue of the EUWA and as amended; or

(C) not a qualified investor, as defined in Article 2 of Regulation (EU) 2017/1129, as it forms part of United Kingdom domestic law by virtue of the EUWA and as amended; and

(2)       the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Registered Certificates so as to enable an investor to decide to purchase or subscribe for the Registered Certificates;

  -14-  

(B)              It has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Registered Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Issuing Entity or the Depositor.

(C)              It has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Registered Certificates in, from or otherwise involving the United Kingdom.

For the purposes of this subsection (c)(iii), the term “Issuing Entity” means the BANK 2021-BNK38 securitization trust.

(iv)             It has not, directly or indirectly, offered or sold and will not, directly or indirectly, offer or sell any Registered Certificates in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or to others for re-offering or re-sale, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law of Japan, as amended, and other relevant laws, regulations and ministerial guidelines of Japan.

(v)               It (A) has not offered or sold and will not offer or sell in Hong Kong, by means of any document, any Registered Certificates (except for Registered Certificates which are a “structured product” as defined in the Securities and Futures Ordinance (Cap. 571) (the “SFO”) of Hong Kong) other than (a) to “professional investors” as defined in the SFO and any rules or regulations made under the SFO; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (the “C(WUMP)O”) of Hong Kong or which do not constitute an offer to the public within the meaning of the C(WUMP)O; and (B) has not issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Registered Certificates, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Registered Certificates which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under the SFO.

(vi)             It has not offered, sold or delivered and will not offer, sell or deliver the Registered Certificates, directly or indirectly, or to any person for re-offering or re-sale, directly or indirectly, in the Republic of Korea or to any resident of the Republic of Korea, except as otherwise permitted under applicable laws and regulations of the Republic of Korea, including the Financial Investment Services and Capital

  -15-  

Markets Act and the Foreign Exchange Transactions Law and the decrees and regulations thereunder.

(vii)          It has not offered or sold any Registered Certificates or caused such certificates to be made the subject of an invitation for subscription or purchase and will not offer or sell such Registered Certificates or cause such Registered Certificate to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, the Preliminary Prospectus, the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Registered Certificates, whether directly or indirectly, to persons in Singapore other than to an “institutional investor” (as defined in Section 4A(1)(c) of the Securities and Futures Act (Cap. 2018) of Singapore (the “SFA”)) pursuant to Section 304 of the SFA.

(viii)        Except for the Accountants’ Due Diligence Reports, such Underwriter has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Depositor) any Due Diligence Report in connection with the offering contemplated hereby and the Prospectus. Except for the Accountants with respect to the Accountants’ Due Diligence Reports, such Underwriter has not employed (and, through and including the Closing Date, will not employ without the consent of the Depositor) any third party to engage in any activity that constitutes Due Diligence Services, and has not received a Form 15E from any party, in connection with the transactions contemplated by this Agreement and the Prospectus.

2. Purchase and Sale.

(a)               Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Depositor agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Depositor, at the applicable purchase prices set forth in Schedule I hereto, the respective certificate balances and notional amounts of the Registered Certificates set forth beneath the name of each Underwriter set forth in Schedule I, and any additional portions of the Registered Certificates that any such Underwriter may be obligated to purchase pursuant to Section 10 hereof, in all cases plus accrued interest as set forth in Schedule I.

(b)               Each Underwriter (severally, but not jointly) represents and covenants that it has not, and will not, enter into any contract for the sale of any Registered Certificates (i) less than three (3) business days after the filing of the Preliminary Prospectus, (ii) less than 48 hours after the date of the filing of any supplement to the Preliminary Prospectus with the Commission in accordance with Rule 424(h)(2) under the 1933 Act, and (iii) less than five (5) business days after the furnishing by the Depositor to the Commission, pursuant to Section 1(a)(xxix) of this Agreement, of any Form 15G (as defined herein).

3. Delivery and Payment.

Delivery of and payment for the Registered Certificates shall be made in the manner, at the location(s), on the Closing Date at the time specified in Schedule I hereto (or such

  -16-  

later date not later than ten (10) business days after such specified date as you shall designate), which date and time may be changed by agreement between you and the Depositor or as provided in Section 10 hereof. Delivery of the Registered Certificates shall be made either directly to you or through the facilities of The Depository Trust Company (“DTC”), as specified in Schedule I hereto, for the respective accounts of the Underwriters against payment by the respective Underwriters of the purchase price therefor in immediately available funds wired to such bank as may be designated by the Depositor, or such other manner of payment as may be agreed upon by the Depositor and you. Any Class of Registered Certificates to be delivered through the facilities of DTC shall be represented by one or more global Certificates registered in the name of Cede & Co., as nominee of DTC, which global Certificate(s) shall be placed in the custody of DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant to a custodial arrangement to be entered into between the Trustee or its agent and DTC. Unless delivered through the facilities of DTC, the Registered Certificates shall be in fully registered certificated form, in such denominations and registered in such names as you may have requested in writing not less than one full business day in advance of the Closing Date.

The Depositor agrees to have the Registered Certificates, including the global Certificates representing the Registered Certificates to be delivered through the facilities of DTC, available for inspection, checking and, if applicable, packaging by you not later than 10:00 a.m. New York City time on the last business day prior to the Closing Date.

References herein to actions taken or to be taken following the Closing Date with respect to any Registered Certificates that are to be delivered through the facilities of DTC shall include, if the context so permits, actions taken or to be taken with respect to the interests in such Registered Certificates as reflected on the books and records of DTC.

4. Offering by Underwriters; Free Writing Prospectuses; Preliminary Prospectus and Corrected Supplement.

(a)               It is understood that the Underwriters propose to offer the Registered Certificates for sale to the public, including, without limitation, in and from the State of New York, as set forth in this Agreement, the Time of Sale Information and the Prospectus. It is further understood that the Depositor, in reliance upon an exemption from the Attorney General of the State of New York to be granted pursuant to Policy Statement 104 and 105, has not and will not file the offering pursuant to Section 352-e of the General Business Law of the State of New York with respect to the Registered Certificates.

(b)               In connection with the offering of the Registered Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses (as defined below), or portions thereof, which the Depositor is required to file with the Commission in electronic format and will use reasonable efforts to provide to the Depositor such Free Writing Prospectuses, or portions thereof, in either Microsoft Word^® or Microsoft Excel^® format and not in a PDF, except to the extent that the Depositor, in its sole discretion, waives such requirements, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter is responsible for any breach of the following conditions by any other Underwriter)):

  -17-  

(i)                 Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the 1933 Act, such Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Registered Certificates, unless such written communication (A) is made in reliance on Rule 134 under the 1933 Act, (B) is the Time of Sale Information or the Prospectus, (C) is made in reliance on Rule 172 under the 1933 Act, (D) constitutes a Free Writing Prospectus that does not constitute Time of Sale Information, or (E) constitutes such other written communication approved by the Depositor in advance. Without the prior written consent of the Depositor, such Underwriter shall not convey or deliver in connection with the initial offering of the Registered Certificates any ABS Informational and Computational Material in reliance upon Rules 167 and 426 under the 1933 Act. “ABS Informational and Computational Material” shall mean “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the 1933 Act and “Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as in effect on the date hereof and for which compliance is required as of the date hereof.

(ii)              Such Underwriter shall deliver to the Depositor, no later than two (2) business days prior to the date of first use thereof, (A) any Underwriter Free Writing Prospectus that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Covered Information), and (B) any Free Writing Prospectus or portion thereof that contains only a description of the final terms of the Registered Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that contains only ABS Informational and Computational Material may be delivered by such Underwriter to the Depositor not later than the later of (x) two (2) business days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act or (y) the date of first use of such Free Writing Prospectus.

(iii)            Such Underwriter represents and warrants to the Depositor that the Free Writing Prospectuses to be furnished to the Depositor by such Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Registered Certificates.

(iv)             Such Underwriter represents and warrants to the Depositor that each Free Writing Prospectus required to be provided by it to the Depositor pursuant to Section 4(b)(ii), when viewed together with the Time of Sale Information, did not, as of the Time of Sale, and will not as of the Closing Date, include any untrue statement of a material fact, when viewed in connection with all other prospectuses delivered to such investor on or prior to the Time of Sale, or omit any material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided that such Underwriter makes no representation to the extent such misstatements or omissions were the result of any inaccurate Issuer

  -18-  

Information that is Mortgage Loan Seller Covered Information, General Master Servicer Covered Information, General Special Servicer Covered Information, NCB Master Servicer Covered Information, NCB Special Servicer Covered Information, Outside Custodian Covered Information, Operating Advisor Covered Information, Trustee Covered Information, Certificate Administrator Covered Information or Asset Representations Reviewer Covered Information, which information was not corrected by Corrective Information subsequently supplied by the Depositor, any other party to the Pooling and Servicing Agreement or any Mortgage Loan Seller to such Underwriter at any time prior to the Time of Sale.

(v)               The Depositor agrees to file with the Commission the following:

(A)             Any Issuer Free Writing Prospectus to the extent required to be filed with the Commission by Rule 433 under the 1933 Act;

(B)              Any Free Writing Prospectus or portion thereof delivered by any Underwriter to the Depositor pursuant to Section 4(b)(ii);

(C)              Any Free Writing Prospectus for which the Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications; and

(D)             Any ABS Informational and Computational Material that is not being treated as a Free Writing Prospectus.

(vi)             Any Free Writing Prospectus required to be filed pursuant to Section 4(b)(v) by the Depositor shall be filed with the Commission not later than the date of first use of such Free Writing Prospectus, except that:

(A)             Any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Registered Certificates shall be filed by the Depositor with the Commission within two days of the later of the date such final terms have been established for all Classes of Registered Certificates and the date of first use;

(B)              Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material shall be filed by the Depositor with the Commission not later than the later of the due date for filing the final Prospectus relating to the Registered Certificates pursuant to Rule 424(b) under the 1933 Act and two (2) business days after the date of first use of such Free Writing Prospectus;

(C)              Any Free Writing Prospectus required to be filed pursuant to Section 4(b)(v)(C) shall, if no payment has been made or consideration has been given by or on behalf of the Depositor for the Free Writing Prospectus or its dissemination, be filed by the Depositor with the Commission not later than four

  -19-  

(4) business days after the Depositor becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus; and

(D)             The Depositor shall not be required to file (1) Issuer Information contained in any Free Writing Prospectus prepared by or on behalf of an Underwriter (an “Underwriter Free Writing Prospectus”) or by or on behalf of any other offering participant other than the Depositor, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Registered Certificates, or (2) any Free Writing Prospectus or portion thereof that contains a description of the Registered Certificates or the offering of the Registered Certificates which does not reflect the final terms thereof.

(vii)          Such Underwriter shall file with the Commission any Free Writing Prospectus that is used or referred to by it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.

(viii)        Notwithstanding the provisions of Section 4(b)(vii), such Underwriter shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Depositor or any other offering participant, not later than four (4) business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.

(ix)             Notwithstanding the provisions of Sections 4(b)(v) and 4(b)(vii), neither the Depositor nor such Underwriter shall be required to file any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.

(x)               The Depositor and such Underwriter each agree that any Free Writing Prospectuses prepared by it shall contain the following legend:

The depositor has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (“SEC”) (SEC File No. 333-259741) for the offering to which this communication relates. Before you invest, you should read the prospectus in the registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing entity and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the depositor, any underwriter, or any dealer participating in the offering will arrange to send

  -20-  

you the prospectus after filing if you request it by calling toll free 1-866-718-1649 (8 a.m.–5 p.m. EST) or by emailing prospectus@ms.com.

(xi)             The Depositor and such Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Registered Certificates.

(xii)          In the event that the Depositor becomes aware that, as of the Time of Sale, the Preliminary Prospectus contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, the Depositor shall (A) notify the Underwriters thereof within one (1) business day after discovery, (B) prepare and deliver to the Underwriters a supplement to the Preliminary Prospectus that corrects the material misstatement or omission in the Preliminary Prospectus and that meets the requirements of Rule 424(h)(2) under the 1933 Act (such supplement, a “Corrected Supplement”) and (C) file such Corrected Supplement with the Commission in accordance with Rule 424(h) under the 1933 Act. Upon receipt of such notice from the Depositor, the Underwriters shall:

(A)             Notify each investor in the Registered Certificates in a prompt fashion that any prior contract of sale with such investor has been terminated, and of such investor’s rights as a result of termination of such agreement;

(B)              Upon receipt of a copy of such Corrected Supplement from the Depositor, deliver, at least 48 hours prior to sending a new confirmation of sale to an investor in the Registered Certificates in accordance with Rule 15c2-8(b) under the 1934 Act, such Corrected Supplement to such investor;

(C)              Provide such investor with an opportunity to enter into a new contract of sale on the terms described in the Time of Sale Information (as updated by such Corrected Supplement); and

(D)             Comply with any other requirements for reformation of the original contract of sale, as described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.

(xiii)        If the Depositor becomes aware that, as of the Time of Sale, any Issuer Free Writing Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Depositor shall immediately notify the Underwriters thereof and the Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer Free Writing Prospectus”).

  -21-  

(A)             If an Underwriter becomes aware that, with respect to any investor in a Registered Certificate, as of the Time of Sale, any Issuer Information contained in any Underwriter Free Writing Prospectus and delivered to such investor was not correctly reflected in such Underwriter Free Writing Prospectus such that it caused the Underwriter Free Writing Prospectus to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (such Free Writing Prospectus, together with a Defective Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Depositor and each other Underwriter thereof within one (1) business day after discovery.

(B)              Each Underwriter shall, if requested by the Depositor:

(1)               if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (such corrected Free Writing Prospectus, together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”);

(2)               deliver the Corrected Free Writing Prospectus to each investor in a Registered Certificate which received the Defective Free Writing Prospectus prior to entering into an agreement to purchase any Registered Certificates;

(3)               if after the Time of Sale, notify such investor in a prominent fashion that the prior agreement to purchase Certificates has been terminated, and of the investor’s rights as a result of termination of such agreement;

(4)               if after the Time of Sale, provide such investor with an opportunity to affirmatively agree to purchase the Registered Certificates on the terms described in the Corrected Free Writing Prospectus; and

(5)               comply with any other requirements for reformation of the original contract of sale described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.

(C)              With respect to this clause (xiii), each Underwriter agrees that if the Depositor requests that an Underwriter prepare a Corrected Free Writing Prospectus with respect to a Defective Free Writing Prospectus that another Underwriter prepared, such other Underwriter will prepare the Corrected Free Writing Prospectus and will deliver the Corrected Free Writing Prospectus to the Depositor and each Underwriter so that each Underwriter may contact its respective investors.

  -22-  

(D)             To the extent any Defective Free Writing Prospectus was defective as a result of incorrect Issuer Information being delivered to an Underwriter, the Depositor shall provide such corrected Issuer Information upon request from such Underwriter. The Depositor shall also notify the other Underwriters of such incorrect Issuer Information, to the extent it is provided notice hereunder.

(xiv)         Such Underwriter covenants with the Depositor that after the final Prospectus is available, such Underwriter shall not distribute any written information concerning the Registered Certificates that contains any Issuer Information to a prospective investor in a Registered Certificate unless such information is preceded or accompanied by the final Prospectus.

(xv)           Such Underwriter further represents and warrants that it has offered and sold Registered Certificates in the United Kingdom only to, or directed at, persons who:

(A)             have professional experience in matters relating to investments and qualify as investment professionals in accordance with article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Financial Promotion Order”);

(B)              are persons falling within Articles 49(2)(a) through (d) (“High Net Worth Companies, Unincorporated Associations, Etc.”) of the Financial Promotion Order; or

(C)              are persons to which the Prospectus may otherwise lawfully be communicated or directed.

(xvi)         Such Underwriter further (x) represents and warrants that it has not provided, as of the date of this Agreement, and covenants with the Depositor that it will not provide, on or prior to the Closing Date, to any Rating Agency or other “nationally recognized statistical rating organization” (within the meaning of the 1934 Act), any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the Pooling and Servicing Agreement or any other information, that could be reasonably determined to be relevant to determining an initial credit rating for the Certificates (as contemplated by Rule 17g-5(a)(3)(iii)(C) under the 1934 Act), without the prior consent of the Depositor, and (y) covenants with the Depositor that it will not provide to any Rating Agency or other “nationally recognized statistical rating organization” (within the meaning of the 1934 Act), any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the Pooling and Servicing Agreement or any other information, that could be reasonably determined to be relevant to undertaking credit rating surveillance for the Certificates (as contemplated by Rule 17g-5(a)(3)(iii)(D) under the 1934 Act), without the prior consent of the Depositor.

  -23-  

5. Covenants of the Depositor.

The Depositor covenants and agrees with the Underwriters that:

(a)               The Depositor will not file any amendment to the Registration Statement (other than by reason of Rule 429 under the 1933 Act) or any amendment or supplement to the Preliminary Prospectus or Prospectus relating to or affecting the Registered Certificates, unless the Depositor has furnished a copy to you for your review a reasonable time period prior to filing, and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Depositor shall cause the Prospectus to be transmitted to the Commission for filing pursuant to Rule 424 under the 1933 Act or shall cause the Prospectus to be filed with the Commission pursuant to said Rule 424. The Depositor promptly will advise you or counsel for the Underwriters (i) when the Prospectus shall have been filed or transmitted to the Commission for filing pursuant to Rule 424, (ii) when any amendment to the Registration Statement shall have become effective, (iii) of any request by the Commission to amend the Registration Statement or amend or supplement the Preliminary Prospectus or the Prospectus or for any additional information in respect of the offering contemplated hereby, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto which shall have become effective on or prior to the Closing Date or preventing or suspending the use of the Preliminary Prospectus or the Prospectus or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Depositor of any notification with respect to the suspension of the qualification of the Registered Certificates for sale in any jurisdiction or the institution or threatening of any proceeding for that purpose. The Depositor will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the withdrawal thereof.

(b)               If, at any time when a prospectus relating to the Registered Certificates is required to be delivered under the 1933 Act, any event occurs as a result of which the Preliminary Prospectus (as then amended or supplemented) or the Prospectus (as then amended or supplemented) would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act or the rules and regulations thereunder, the Depositor shall promptly prepare and file with the Commission, at the expense of the Depositor, subject to paragraph (a) of this Section 5, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, the Depositor shall use its best efforts to cause such amendment to the Registration Statement to be made effective as soon as possible.

(c)               The Depositor shall furnish to you and to counsel for the Underwriters, upon request and without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date, and, upon request, to each other Underwriter, each Issuer Free Writing Prospectus, a copy of the Registration Statement (without exhibits thereto) and each such amendment and supplement thereto and, so long as delivery of a prospectus by an Underwriter or dealer may be

  -24-  

required by the 1933 Act, as many copies of the Preliminary Prospectus and the Prospectus and any amendments and supplements thereto as you may reasonably request.

(d)               The Depositor shall furnish such information, execute such instruments and take such action, if any, as may be required to qualify the Registered Certificates for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Registered Certificates; provided that the Depositor shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action that would subject it to general or unlimited service of process in any jurisdiction where it is not now subject to such service of process.

(e)               The Depositor shall pay, or cause to be paid, all costs and expenses in connection with the transactions herein contemplated, including, but not limited to, the fees and disbursements of its counsel; the costs and expenses of printing (or otherwise reproducing) and delivering the Pooling and Servicing Agreement and the Registered Certificates; the fees and disbursements of accountants for the Depositor; the reasonable out of pocket costs and expenses in connection with the qualification or exemption of the Registered Certificates under state securities or “Blue Sky” laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith, in connection with the preparation of any “Blue Sky” survey and in connection with any determination of the eligibility of the Registered Certificates for investment by institutional investors and the preparation of any legal investment survey; the expenses of printing any such “Blue Sky” survey and legal investment survey; the cost and expenses in connection with the preparation, printing and filing of the Registration Statement (including exhibits thereto), the Preliminary Prospectus, the Term Sheet, ABS Informational and Computational Material and the Prospectus, the preparation and printing of this Agreement and the delivery to the Underwriters of such copies of the Preliminary Prospectus, the Term Sheet and the Prospectus as you may reasonably request; the fees of the Rating Agencies that we hire to rate the Registered Certificates; upfront costs and fees of other parties to the Pooling and Servicing Agreement; and the reasonable fees and disbursements of counsel to the Underwriters. The Underwriters shall be responsible for paying all other costs and expenses incurred by them and not set forth in the preceding sentence in connection with the purchase and sale of the Registered Certificates.

(f)                To the extent that the Pooling and Servicing Agreement provides that the Underwriters are to receive any notices or reports, or have any other rights thereunder, the Depositor shall enforce the rights of the Underwriters under the Pooling and Servicing Agreement and shall not consent to any amendment of the Pooling and Servicing Agreement that would adversely affect such rights of the Underwriters.

(g)               The Depositor shall, as to itself, and as to the Trust Fund, shall cause the Trustee (or the Certificate Administrator on behalf of the Trustee) to be required pursuant to the terms of the Pooling and Servicing Agreement to, satisfy and comply with all reporting requirements of the 1934 Act and the rules and regulations thereunder.

(h)               The Depositor shall take all reasonable action necessary to enable the Rating Agencies to provide their respective credit ratings of the Registered Certificates as described in Section 1(a)(xix).

  -25-  

(i)                 The Depositor will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the 1933 Act.

6. Conditions to the Obligations of the Underwriters.

The obligation of each Underwriter hereunder to purchase its allocated share of the Registered Certificates shall be subject to: (i) the accuracy of the representations and warranties on the part of the Depositor and MSMCH contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of the Depositor made in any certificates delivered pursuant to the provisions hereof; (iii) the performance by the Depositor of its obligations hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional conditions:

(a)               The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of Sale Information shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the 1933 Act, as applicable.

(b)               You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request.

(c)               The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) the Depositor has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date; and MSMCH shall have delivered to you a certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) MSMCH has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.

(d)               You shall have received (i) with respect to MSMCH, a good standing certificate from the Secretary of State of the State of New York and (ii) with respect to the

  -26-  

Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date.

(e)               (i) You shall have received from the Secretary or an Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (y) no event (including, without limitation, any act or omission on the part of the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, signed this Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (y) no event (including, without limitation, any act or omission on the part of MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH under the laws of the United States of America. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of MSMCH) of the articles of organization and operating agreement of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required member consent relating to the transactions contemplated in this Agreement.

(f)                You shall have received from in-house counsel of the Depositor or special counsel to the Depositor, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters.

(g)               You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you.

(h)               You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters.

  -27-  

(i)                 You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and counsel for the Underwriters, to the following effect:

(i)                 they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or statistical nature set forth (A) in the Prospectus under the captions “Summary of Terms,” “Description of the Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes A-1, A-2 and A-3 to each of the Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, unless non-material deviations are otherwise noted in such letter; and

(ii)              they have compared an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in the Mortgage Loan files and in such other sources as shall be specified by them, and found such data and information to be in agreement in all material respects, unless non-material deviations are otherwise noted in such letter.

(j)                 You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings.

(k)               You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and correct in all material respects.

(l)                 You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Certificate Administrator” in the Prospectus is true and correct in all material respects.

(m)             You shall have received from the Secretary or an Assistant Secretary of the General Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—Wells Fargo Bank, National Association” in the Prospectus is true and correct in all material respects.

(n)               You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Midland Loan Services, a Division of PNC Bank, National Association” in the Prospectus is true and correct in all material respects.

(o)               You shall have received from the Secretary or an Assistant Secretary of the NCB Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date,

  -28-  

to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects.

(p)               You shall have received from the Secretary or an Assistant Secretary of the NCB Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects.

(q)               You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects.

(r)                You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects.

(s)                You shall have received from an officer of the Outside Custodian, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Outside Custodian under the heading “Transaction Parties—The Outside Custodian” in the Prospectus is true and correct in all material respects.

(t)                 You shall have received from counsel for each Mortgage Loan Seller, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Outside Custodian, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters.

(u)               You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters.

(v)               All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested.

(w)             The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the 1934 Act to the satisfaction of the Underwriters.

  -29-  

If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Notice of such cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

 

7. Reimbursement of Underwriters’ Expenses.

If the sale of the Registered Certificates provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied because of any refusal, inability or failure on the part of the Depositor to perform any agreement herein or comply with any provision hereof, other than by reason of a default by any of the Underwriters, the Depositor and MSMCH, jointly and severally, shall reimburse the Underwriters severally, upon demand, for all out of pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Registered Certificates.

8. Indemnification.

(a)               The Depositor and MSMCH, jointly and severally, agree to indemnify and hold harmless each Underwriter, its officers and directors and each person, if any, who controls such Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:

(i)                 against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (including the information included therein or deemed to be a part thereof), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) any untrue statement or alleged untrue statement of a material fact contained in (w) the Preliminary Prospectus (or any amendment or supplement thereto), (x) any other Time of Sale Information, (y) any Issuer Free Writing Prospectus or (z) Issuer Information contained in any Underwriter Free Writing Prospectus or any information contained in any Free Writing Prospectus that is required to be filed pursuant to Section 4(b)(vii), or the omission or alleged omission to state a material fact necessary to make the statements therein (in the case of clause (x) through (z) above, when read in conjunction with the other Time of Sale Information), in the light of the circumstances under which they were made, not misleading, which was not corrected by Corrective Information subsequently supplied by the Depositor, any Mortgage Loan Seller, the General Master Servicer, the

  -30-  

General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Outside Custodian, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer to such Underwriter at any time prior to the Time of Sale (or in the case of any Corrective Information correcting information in the Preliminary Prospectus, at least 48 hours prior to the Time of Sale), or (D) any breach of the representation and warranty in Section 1(a)(xx); provided that, in the case of clauses (A), (B) and (C) above, the indemnity provided by this Section 8(a) shall not apply to any loss, liability, claim, damage or expense to the extent any such untrue statement or alleged untrue statement or omission or alleged omission arises out of or is based upon an untrue statement or omission with respect to information with respect to which a Mortgage Loan Seller agrees in the related Mortgage Loan Seller Indemnification Agreement to provide indemnification (the “Mortgage Loan Seller Covered Information”); provided further, that the indemnification provided by this Section 8 shall not apply to the extent that such untrue statement or omission of a material fact was made as a result of an error in the manipulation of, or in any calculations based upon, or in any aggregation of the information regarding the Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties set forth in the Master Tapes or Annex A-1 to the Prospectus or the Preliminary Prospectus, to the extent (x) such information was materially incorrect in the applicable Master Tape or such Annex A-1, as applicable, including without limitation the aggregation of such information relating to the Mortgage Loans in the Trust Fund or the information provided by the Mortgage Loan Sellers, and (y) such loss, liability, claim, damage or expense would be subject to the provisions of the related Mortgage Loan Seller Indemnification Agreement; and provided further, that the indemnification provided by this Section 8 shall not apply to the Mortgage Loan Seller Covered Information, the General Master Servicer Covered Information, the General Special Servicer Covered Information, the NCB Master Servicer Covered Information, the NCB Special Servicer Covered Information, the Outside Custodian Covered Information, the Certificate Administrator Covered Information, the Trustee Covered Information, the Operating Advisor Covered Information or the Asset Representations Reviewer Covered Information;

(ii)              against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Depositor or as otherwise contemplated by Section 8(c) hereof; and

(iii)            against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by such Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the indemnity provided by this Section 8(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any

  -31-  

untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with Underwriter Information furnished to the Depositor by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or in any Issuer Free Writing Prospectus, any Time of Sale Information or the Prospectus (or any amendment or supplement thereto).

(b)               Each Underwriter, severally but not jointly, agrees to indemnify and hold harmless the Depositor, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 8(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions (when read in conjunction with the Time of Sale Information) made in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Time of Sale Information or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Depositor by such Underwriter expressly for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Time of Sale Information or the Prospectus (or any amendment or supplement thereto) (collectively, “Underwriter Information”); provided that no such material misstatement or omission arises from an error or omission in information relating to the underlying data regarding the Mortgage Loans or the related Mortgagors or Mortgaged Properties provided by the Depositor or any Mortgage Loan Seller to such Underwriter. In addition, each Underwriter, severally but not jointly, shall indemnify and hold harmless the Depositor, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Depositor within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all losses, liabilities, claims, damages and expenses, as incurred, arising out of any (i) untrue statements or alleged untrue statements of a material fact, or omissions or alleged omissions to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the Underwriter Information, and (ii) untrue statements or alleged untrue statements of a material fact, or omissions or alleged omissions to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any Underwriter Free Writing Prospectus or that arise out of or are based upon the omission or alleged omission to state in such Underwriter Free Writing Prospectus a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no Underwriter shall be obligated to so indemnify and hold harmless (A) to the extent the Depositor is entitled to indemnification or contribution therefor (I) under the indemnity of any Mortgage Loan Seller set forth in the related Mortgage Loan Purchase Agreement or (II) set forth in any Indemnification Agreement, (B) with respect to information that is also contained in the Time of Sale Information, or (C) to the extent such losses, liabilities, claims, damages or expenses are caused by a misstatement or omission resulting from an error or omission in the Issuer Information supplied by the Depositor or any Mortgage Loan Seller to an Underwriter which was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to such Underwriter at any time prior to the Time of Sale. Notwithstanding the foregoing, the indemnity in clause (ii) of the immediately preceding sentence will apply only if such misstatement or omission was not also a misstatement or omission in the Prospectus. Furthermore, no Underwriter shall be obligated to indemnify or hold harmless the Depositor or

  -32-  

any other person or entity otherwise entitled to such indemnification or to be held harmless under this subsection (b) for any liability that is based upon or arises from the information set forth in the first sentence of the ninth paragraph and the first sentence of the tenth paragraph under the caption “Plan of Distribution (Conflicts of Interest)” in the Prospectus (or any amendment or supplement thereto) to the extent that both (1) such information is based upon and is in conformity with the information set forth in the Prospectus (or such amendment or supplement thereto) that is not Underwriter Information and (2) such non-Underwriter Information either contains an untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or fails to comply with Regulation AB.

It is hereby acknowledged that the statements set forth in (i)  the penultimate paragraph on the cover of the Prospectus, (ii) the third sentence of the seventh paragraph under the caption “Important Notice Regarding the Offered Certificates” in the Prospectus and (iii) the statements in the first and third sentences of the fourth paragraph, the first sentence of the ninth paragraph, the first sentence of the tenth paragraph and the eleventh paragraph under the caption “Plan of Distribution (Conflicts of Interest)” in the Prospectus, constitute the only written information furnished to the Depositor by the Underwriters expressly for use in the Registration Statement (or any amendment thereto) or in any Issuer Free Writing Prospectus, any Time of Sale Information, or the Prospectus (or any amendment or supplement thereto).

(c)               Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability under Section 8(a) or Section 8(b) hereof (unless the indemnifying party is materially prejudiced by such failure) or any liability that it may have otherwise than on account of the indemnity provided by this Section 8. Upon request of the indemnified party, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding as incurred. An indemnifying party may participate at its own expense in the defense of any such action and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have agreed in writing to the retention of such counsel, or (ii) the indemnifying party shall not have assumed the defense of such action, with counsel satisfactory to the indemnified party, within a reasonable period following the indemnifying party’s receiving notice of such action, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. In no event shall the indemnifying party or parties be liable for fees and expenses of more than one counsel (or, in the event the Depositor or MSMCH is the indemnifying party, one counsel for each Underwriter) (in addition to any local counsel) separate from its or their own counsel for all indemnified parties in

  -33-  

connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Unless it shall assume the defense of any proceeding, an indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld) but, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel or any other expenses for which the indemnifying party is obligated under this subsection, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. If an indemnifying party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the indemnified party or, if such settlement provides for an unconditional release of the indemnified party in connection with all matters relating to the proceeding that have been asserted against the indemnified party in such proceeding by the other parties to such settlement, which release does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, without the consent of the indemnified party.

(d)               The indemnity provided by this Section 8 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Depositor, MSMCH, the Underwriters, any of their respective directors or officers, or any person controlling the Depositor, MSMCH or the Underwriters, and (iii) acceptance of and payment for any of the Registered Certificates.

The indemnity provided by this Section 8 will be in addition to any liability that any Underwriter, the Depositor or MSMCH may otherwise have.

9. Contribution.

(a)               In order to provide for just and equitable contribution in circumstances in which the indemnity provided by Section 8 hereof is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, or if such indemnification provided for in Section 8 hereof is unavailable or insufficient in respect of any losses, liabilities, claims, damages or expenses referred to therein, the Depositor and MSMCH, jointly and severally, and the Underwriters, severally, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by the indemnity provided by Section 8 hereof incurred by the Depositor and the Underwriters, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Depositor and MSMCH on the one hand and each Underwriter on the other hand from the offering of the Registered Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Depositor and MSMCH on the one hand and of each Underwriter on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other

  -34-  

relevant equitable considerations (taking into account the parties’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission or failure to comply, and any other equitable considerations appropriate under the circumstances). The relative benefits received by the Depositor and MSMCH on the one hand and the Underwriters on the other hand shall be deemed to be in the same respective portions as the net proceeds (before deducting expenses) received by the Depositor from the sale of the Registered Certificates and the total underwriting discounts and commissions and other fees received by the Underwriters in connection therewith bear to the aggregate offering price of the Registered Certificates. The relative fault of the Depositor and MSMCH on the one hand and of each Underwriter on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Depositor and MSMCH or by the Underwriters, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation; and no Underwriter shall be obligated to contribute more than its share of underwriting discounts and commissions and other fees pertaining to the Registered Certificates less any damages otherwise paid by such Underwriter with respect to any such loss, liability, claim, damage or expense. It is hereby acknowledged that the respective Underwriters’ obligations under this Section 9 shall be several and not joint. For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter’s officers and directors, shall have the same rights to contribution as such Underwriter, and each director of the Depositor, each officer of the Depositor who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Depositor.

(b)               The parties hereto agree that it would not be just and equitable if contribution were determined by pro rata or per capita allocation or by any other method of allocation that does not take account of the considerations referred to in subsection (a) above. The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages or expenses referred to in Section 8 hereof or this Section 9 shall be deemed to include any legal fees and disbursements or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such claim except where the indemnified party is required to bear such expenses, which expenses the indemnifying party shall pay as and when incurred, at the request of the indemnified party, to the extent that it is reasonable to believe that the indemnifying party will be ultimately obligated to pay such expenses. In the event that any expenses so paid by the indemnifying party are subsequently determined to not be required to be borne by the indemnifying party hereunder, the party which received such payment shall promptly refund the amount so paid to the party which made such payment. The remedies provided for in Section 8 hereof and this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.

  -35-  

(c)               The contribution agreements contained in this Section 9 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Depositor, MSMCH, the Underwriters, any of their respective directors or officers, or any person controlling the Depositor, MSMCH or the Underwriters, and (iii) acceptance of and payment for any of the Registered Certificates.

10. Default by an Underwriter.

If any one or more Underwriters shall fail to purchase and pay for any of the Registered Certificates agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally and not jointly (in the respective proportions which the portion of the Registered Certificates set forth below their names in Schedule I hereto bears to the aggregate amount of Registered Certificates set forth below the names of all the remaining Underwriters) to purchase the Registered Certificates that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided that no Underwriter shall be obligated under this Section 10 to purchase Certificates of a Class that it is not otherwise obligated to purchase under this Agreement, and provided, however, that in the event that the amount of Registered Certificates that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Registered Certificates set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Registered Certificates, and if such non-defaulting Underwriters do not purchase all of the Registered Certificates, this Agreement will terminate without liability to any non-defaulting Underwriter or the Depositor, except as provided in Section 11 or Section 14 hereof. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date for the Registered Certificates shall be postponed for such period, not exceeding ten (10) business days, as you shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Depositor and any non-defaulting Underwriter for damages occasioned by its default hereunder.

11. Representations, Warranties and Agreements to Survive Delivery.

All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Depositor and MSMCH submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, or by or on behalf of the Depositor and MSMCH, or by or on behalf of any of the controlling persons and officers and directors referred to in Sections 8 and 9 hereof, and shall survive delivery of the Registered Certificates to the Underwriters.

12. Recognition of U.S. Special Resolution Regimes.

(a)               In the event a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) from such Covered Party will be effective to

  -36-  

the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) were governed by the laws of the United States or a State of the United States.

(b)               In the event that a Covered Party or any BHC Affiliate of such Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Right under this Agreement that may be exercised against such Covered Party is permitted to be exercised to no greater extent than such Default Right could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a State of the United States.

“BHC Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §1841(k).

“Covered Party” means any party to this Agreement that is one of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b), or any subsidiary of such a covered bank to which 12 C.F.R. Part 47 applies in accordance with 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

13. Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings.

(a)               Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 12, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable.

(b)               After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

  -37-  

14. Termination of Agreement; Survival.

(a)               The Underwriters may terminate their obligations under this Agreement, by notice to the Depositor, at any time at or prior to the Closing Date (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Depositor, MSMCH or any other Mortgage Loan Seller whether or not arising in the ordinary course of business, (ii) if there has occurred any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which is such as to make it, in the reasonable judgment of any Underwriter, impracticable or inadvisable to market the Registered Certificates or to enforce contracts for the sale of the Registered Certificates, (iii) if trading in any securities of the Depositor or of MSMCH has been suspended or limited by the Commission or the New York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock Exchange or on the NASDAQ National Market or the over the counter market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, (iv) if a banking moratorium has been declared by either federal or New York authorities, or (v) if a material disruption in securities settlement, payments or clearance services in the United States or other relevant jurisdiction shall have occurred and be continuing on the Closing Date, or the effect of which is such as to make it, in the reasonable judgment of such Underwriter, impractical to market the Registered Certificates or to enforce contracts for the sale of the Registered Certificates.

(b)               If this Agreement is terminated pursuant to this Section 14, such termination shall be without liability of any party to any other party, except as provided in Section 11 or Section 14(c) hereof.

(c)               The provisions of Section 5(e) hereof regarding the payment of costs and expenses and the provisions of Sections 8 and 9 hereof shall survive the termination of this Agreement, whether such termination is pursuant to this Section 14 or otherwise.

15. Notices.

All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notice to the Depositor, MSMCH or MS&Co. shall be directed to Morgan Stanley Capital I Inc., Morgan Stanley Mortgage Capital Holdings LLC or Morgan Stanley & Co. LLC, as applicable, 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to the attention of Legal Compliance Division at 1633 Broadway, 29^th Floor, New York, New York 10019 and a copy by email to cmbs_notices@morganstanley.com); notice to BofA Securities shall be directed to it at One Bryant Park, NY1-100-11-07, New York, New York 10036, Attention: Director of CMBS Securitizations (with copies to Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Merrill Lynch Legal Department, 150 North College Street, NC1-028-24-02, Charlotte, North Carolina 28255, email: todd.stillerman@bofa.com; Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227

  -38-  

West Trade Street, 24th Floor, Charlotte, North Carolina 28202, facsimile number: (704) 348-5200; and cmbsnotices@bofa.com); notice to Wells Fargo Securities shall be directed to it at 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, email: cmbsnotices@wellsfargo.com (with a copy to the attention of Troy Stoddard, Esq., Wells Fargo Legal Department, D1086-341, 550 S. Tryon Street, 34th Floor, Charlotte, North Carolina 28202); notice to Academy shall be directed to it at 140 East 45th Street, 5th Floor, New York, New York 10017, Attention: Michael Boyd, Attention: Michael Boyd; and notice to Drexel shall be directed to it at 77 Water Street, New York, New York 10005, Attention John D. Kerin, Director of Debt Syndicate, facsimile number (646) 412-1500; or, in any case, such other address as may hereafter be furnished by the Underwriters, the Depositor or MSMCH to the other such parties in writing.

16. Parties.

This Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers and directors referred to in Sections 8 and 9 hereof and their respective successors, heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of each of the parties hereto and their respective successors, and said controlling persons and officers and directors and their respective successors, heirs and legal representatives, and for the benefit of no other person, firm or corporation. No investor in Registered Certificates from any Underwriter shall be deemed to be a successor or assign merely by reason of such purchase.

17. Governing Law.

This Agreement and any claim, controversy or dispute arising under or related to or in connection with this Agreement, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the State of New York without regard to any conflicts of law principles other than Section 5-1401 of the New York General Obligations Law.

18. Waiver of Jury Trial.

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

19. Submission to Jurisdiction.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS

  -39-  

AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING IN RESPECT OF SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF ANY INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

20. Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument. This Agreement shall be valid, binding and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned or photocopied manual signature; or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transaction Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”), in each case, to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.

21. Miscellaneous.

This Agreement supersedes all prior or contemporaneous agreements and understandings relating to the subject matter hereof. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated except by a writing signed by the party against whom enforcement of such change, waiver, discharge or termination is sought.

22. Obligations Solely Contractual in Nature; No Fiduciary Relationship.

The Depositor acknowledges and agrees that the responsibility to the Depositor of the Underwriters pursuant to this Agreement is solely contractual in nature and that none of the Underwriters or their affiliates will be acting in a fiduciary or advisory capacity, or will otherwise owe any fiduciary or advisory duty, to the Depositor pursuant to this Agreement in connection with the offering of the Registered Certificates and the other transactions contemplated by this Agreement.

[Signature pages follow]

 

  -40-  

 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Depositor, MSMCH and the several Underwriters.

 

	Very truly yours,
	MORGAN STANLEY CAPITAL I INC.
	By:	/s/ Jane Lam
		Name: Jane Lam
		Title:   President
	MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
	By:	/s/ Brandon Atkins
		Name: Brandon Atkins
		Title:   Vice President

 

BANK 2021-BNK38 — Underwriting Agreement

   

 

The foregoing Agreement is hereby confirmed and accepted as of the date first above written. 

	MORGAN STANLEY & CO. LLC
	By:	/s/ Kwasi Benneh
		Name: Kwasi Benneh
		Title:    Managing Director
	BOFA SECURITIES, INC.
	By:	/s/ Leland F. Bunch, III
		Name: Leland F. Bunch, III
		Title:   Managing Director
	WELLS FARGO SECURITIES, LLC
	By:	/s/ Anthony J. Sfarra
		Name:  Anthony J. Sfarra
		Title:   Managing Director
	ACADEMY SECURITIES, INC.
	By:	/s/ Michael Boyd
		Name:  Michael Boyd
		Title:    Chief Compliance Officer
	DREXEL HAMILTON, LLC
	By:	/s/ Sunny Wong
		Name: Sunny Wong
		Title:   VP of Securitized Products

BANK 2021-BNK38 — Underwriting Agreement 

 

   

SCHEDULE I

Underwriting Agreement, dated as of December 13, 2021.

Certificates: BANK 2021-BNK38,
Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Class	Initial Aggregate Certificate Balance or Notional Amount of Class	Aggregate Certificate Balance or Notional Amount of Class to be Purchased by Morgan Stanley & Co. LLC	Aggregate Certificate Balance or Notional Amount of Class to be Purchased by BofA Securities, Inc.	Aggregate Certificate Balance or Notional Amount of Class to be Purchased by Wells Fargo Securities, LLC	Aggregate Certificate Balance or Notional Amount of Class to be Purchased by Academy Securities, Inc.	Aggregate Certificate Balance or Notional Amount of Class to be Purchased by Drexel Hamilton, LLC	Initial Pass-Through Rate	Purchase Price(1)
Class A-1	$5,800,000	$2,598,400	$1,902,400	$1,299,200	$0	$0	1.2740%	99.9985%
Class A-2	$11,800,000	$5,286,400	$3,870,400	$2,643,200	$0	$0	2.4950%	102.9959%
Class A-3	$17,100,000	$7,660,800	$5,608,800	$3,830,400	$0	$0	2.0620%	99.9938%
Class A-SB	$8,200,000	$3,673,600	$2,689,600	$1,836,800	$0	$0	2.5060%	102.9963%
Class A-4	$174,000,000	$77,952,000	$57,072,000	$38,976,000	$0	$0	2.2750%	100.9983%
Class A-4-1	$0	$0	$0	$0	$0	$0	1.7750%	N/A
Class A-4-2	$0	$0	$0	$0	$0	$0	1.2750%	N/A
Class A-4-X1	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	0.5000%	N/A
Class A-4-X2	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	1.0000%	N/A
Class A-5	$267,894,000	$120,016,512	$87,869,232	$60,008,256	$0	$0	2.5210%	102.9946%
Class A-5-1	$0	$0	$0	$0	$0	$0	2.0210%	N/A
Class A-5-2	$0	$0	$0	$0	$0	$0	1.5210%	N/A
Class A-5-X1	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	0.5000%	N/A
Class A-5-X2	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	1.0000%	N/A
Class X-A	$484,794,000(2)	$217,187,712(2)	$159,012,432(2)	$108,593,856(2)	$0(2)	$0(2)	0.8160%	6.8417%
Class X-B	$97,825,000(2)	$43,825,600(2)	$32,086,600(2)	$21,912,800(2)	$0(2)	$0(2)	0.4252%	4.0245%
Class A-S	$69,256,000	$31,026,688	$22,715,968	$15,513,344	$0	$0	2.7530%	102.9920%
Class A-S-1	$0	$0	$0	$0	$0	$0	2.2530%	N/A
Class A-S-2	$0	$0	$0	$0	$0	$0	1.7530%	N/A
Class A-S-X1	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	0.5000%	N/A
Class A-S-X2	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	1.0000%	N/A
Class B	$28,569,000	$12,798,912	$9,370,632	$6,399,456	$0	$0	2.8850%	102.9970%
Class B-1	$0	$0	$0	$0	$0	$0	2.3850%	N/A
Class B-2	$0	$0	$0	$0	$0	$0	1.8850%	N/A
Class B-X1	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	0.5000%	N/A
Class B-X2	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	1.0000%	N/A
Class C	$31,165,000	$13,961,920	$10,222,120	$6,980,960	$0	$0	3.2167%	102.3099%
Class C-1	$0	$0	$0	$0	$0	$0	2.7167%	N/A
Class C-2	$0	$0	$0	$0	$0	$0	2.2167%	N/A
Class C-X1	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	0.5000%	N/A
Class C-X2	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	$0(2)	1.0000%	N/A

 

(1) Expressed as a percentage of the aggregate Certificate Balance or Notional Amount, as applicable, of the relevant Class of Certificates to be purchased. There shall be added to the purchase price for each Class of the Certificates accrued interest at the initial Pass-Through Rate therefor on the aggregate stated amount thereof to be purchased from December 1, 2021 to but not including the Closing Date.

(2) Notional amount.

Closing Date and Location: 10:00 a.m. on December 22, 2021 at the offices of special counsel to the Depositor in New York, New York

   

EX-4.1

Exhibit 4.1

EXECUTION VERSION

 

MORGAN STANLEY CAPITAL I INC.,
as Depositor

 

Wells Fargo Bank, National Association,
as General Master Servicer

 

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION,
as General Special Servicer

 

National Cooperative Bank, n.a.,
as NCB Master Servicer and as NCB Special Servicer

 

COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION,
as Certificate Administrator

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee

 

and

 

PENTALPHA SURVEILLANCE LLC,
as Operating Advisor and as Asset Representations Reviewer

 

 

 

POOLING AND SERVICING AGREEMENT

 

Dated as of December 1, 2021

 

 

 

Commercial Mortgage Pass-Through Certificates
Series 2021-BNK38

 

 

 

TABLE OF CONTENTS

 

Page

 

Article I
DEFINITIONS	6
Section 1.01   Defined Terms	6
Section 1.02   Certain Calculations	138
Article II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES	140
Section 2.01   Conveyance of Mortgage Loans	140
Section 2.02   Acceptance by Trustee	147
Section 2.03   Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties	152
Section 2.04   Execution of Certificates; Issuance of Lower-Tier Regular Interests	169
Section 2.05   Creation of the Grantor Trust	170
Article III
ADMINISTRATION AND SERVICING OF THE TRUST FUND	170
Section 3.01   Master Servicers to Act as Master Servicers; Special Servicers to Act as Special Servicers; Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties	170
Section 3.02   Collection of Mortgage Loan Payments	179
Section 3.03   Collection of Taxes, Assessments and Similar Items; Servicing Accounts	185
Section 3.04   The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account	190
Section 3.05   Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account	196
Section 3.06   Investment of Funds in Collection Accounts, REO Accounts and Loss of Value Reserve Fund	207
Section 3.07   Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage	209
Section 3.08   Enforcement of Due-on-Sale Clauses; Assumption Agreements	215

 

-i- 

 

Section 3.09   Realization Upon Defaulted Loans and Companion Loans	221
Section 3.10   Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files	225
Section 3.11   Servicing Compensation	226
Section 3.12   Inspections; Collection of Financial Statements	235
Section 3.13   Access to Certain Information	241
Section 3.14   Title to REO Property; REO Account	255
Section 3.15   Management of REO Property	256
Section 3.16   Sale of Defaulted Loans and REO Properties	259
Section 3.17   Additional Obligations of Master Servicers and Special Servicers	266
Section 3.18   Modifications, Waivers, Amendments and Consents	269
Section 3.19   Transfer of Servicing Between Master Servicers and Special Servicers; Recordkeeping; Asset Status Report	283
Section 3.20   Sub-Servicing Agreements	290
Section 3.21   Interest Reserve Account	293
Section 3.22   Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers	294
Section 3.23   Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party	294
Section 3.24   Intercreditor Agreements	299
Section 3.25   Rating Agency Confirmation	302
Section 3.26   The Operating Advisor	304
Section 3.27   Companion Paying Agent	312
Section 3.28   Serviced Companion Noteholder Register	313
Section 3.29   Certain Matters Relating to the Non-Serviced Mortgage Loans and the Serviced Pari Passu Companion Loans	313
Section 3.30   Certain Matters with Respect to Joint Mortgage Loans	316
Section 3.31   [RESERVED]	320
Section 3.32   [RESERVED]	320
Section 3.33   Delivery of Excluded Information to the Certificate Administrator	321
Article IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS	321
Section 4.01   Distributions	321
Section 4.02   Distribution Date Statements; CREFC® Investor Reporting Packages; Grant of Power of Attorney	336
Section 4.03   P&I Advances	343
Section 4.04   Allocation of Realized Losses	346
Section 4.05   Appraisal Reduction Amounts; Collateral Deficiency Amounts	348
Section 4.06   Grantor Trust Reporting	353
Section 4.07   Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool	354
Section 4.08   Secure Data Room	357

 

-ii- 

 

Article V
THE CERTIFICATES	359
Section 5.01   The Certificates	359
Section 5.02   Form and Registration	359
Section 5.03   Registration of Transfer and Exchange of Certificates	362
Section 5.04   Mutilated, Destroyed, Lost or Stolen Certificates	371
Section 5.05   Persons Deemed Owners	371
Section 5.06   Access to List of Certificateholders’ Names and Addresses; Special Notices	371
Section 5.07   Maintenance of Office or Agency	373
Section 5.08   Appointment of Certificate Administrator	373
Section 5.09   [RESERVED]	373
Section 5.10   Voting Procedures	373
Section 5.11   Exchangeable Certificates	375
Article VI
THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, the Operating Advisor, the asset representations reviewer, THE DIRECTING CERTIFICATEHOLDER AND THE Risk Retention Consultation Party	377
Section 6.01   Representations, Warranties and Covenants of each Applicable Master Servicer, each Applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer	377
Section 6.02   Liability of the Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer	383
Section 6.03   Merger, Consolidation or Conversion of the Depositor, a Master Servicer, the Operating Advisor, a Special Servicer or the Asset Representations Reviewer	383
Section 6.04   Limitation on Liability of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others	385
Section 6.05   Depositor, Master Servicers and Special Servicers Not to Resign	391
Section 6.06   Rights of the Depositor in Respect of each applicable Master Servicer and Special Servicer	392
Section 6.07   Master Servicers and Special Servicers as Certificate Owners	392
Section 6.08   The Directing Certificateholder and the Risk Retention Consultation Party	392
Section 6.09   Knowledge of Wells Fargo Bank, National Association	402
Section 6.10   Knowledge of Computershare Trust Company, National Association	402

 

-iii- 

 

Article VII
SERVICER TERMINATION EVENTS	402
Section 7.01   Servicer Termination Events; Master Servicers and Special Servicers Termination	402
Section 7.02   Trustee to Act; Appointment of Successor	411
Section 7.03   Notification to Certificateholders	412
Section 7.04   Waiver of Servicer Termination Events	413
Section 7.05   Trustee as Maker of Advances	413
Article VIII
CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR	414
Section 8.01   Duties of the Trustee and the Certificate Administrator	414
Section 8.02   Certain Matters Affecting the Trustee and the Certificate Administrator	415
Section 8.03   Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans	417
Section 8.04   Trustee or Certificate Administrator May Own Certificates	418
Section 8.05   Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator	418
Section 8.06   Eligibility Requirements for Trustee and Certificate Administrator	419
Section 8.07   Resignation and Removal of the Trustee and Certificate Administrator	420
Section 8.08   Successor Trustee or Certificate Administrator	423
Section 8.09   Merger or Consolidation of Trustee or Certificate Administrator	423
Section 8.10   Appointment of Co-Trustee or Separate Trustee	423
Section 8.11   Appointment of Custodians	424
Section 8.12   Representations and Warranties of the Trustee	425
Section 8.13   Provision of Information to Certificate Administrator, Master Servicers and Special Servicers	426
Section 8.14   Representations and Warranties of the Certificate Administrator	426
Section 8.15   Compliance with the PATRIOT Act	427
Article IX
TERMINATION	428
Section 9.01   Termination upon Repurchase or Liquidation of All Mortgage Loans	428
Section 9.02   Additional Termination Requirements	432
Article X
ADDITIONAL REMIC PROVISIONS	433
Section 10.01   REMIC Administration	433

 

-iv- 

 

Section 10.02   Use of Agents	437
Section 10.03   Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator	437
Section 10.04   Appointment of REMIC Administrators	438
Article XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE	439
Section 11.01   Intent of the Parties; Reasonableness	439
Section 11.02   Succession; Subcontractors	440
Section 11.03   Filing Obligations	442
Section 11.04   Form 10-D and Form ABS-EE Filings	443
Section 11.05   Form 10-K Filings	446
Section 11.06   Sarbanes-Oxley Certification	449
Section 11.07   Form 8-K Filings	451
Section 11.08   Form 15 Filing	453
Section 11.09   Annual Compliance Statements	453
Section 11.10   Annual Reports on Assessment of Compliance with Servicing Criteria	455
Section 11.11   Annual Independent Public Accountants’ Attestation Report	457
Section 11.12   Indemnification	458
Section 11.13   Amendments	461
Section 11.14   Regulation AB Notices	461
Section 11.15   Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans	461
Section 11.16   Certain Matters Regarding Significant Obligors	467
Section 11.17   Impact of Cure Period	467
Article XII
THE ASSET REPRESENTATIONS REVIEWER	467
Section 12.01   Asset Review	467
Section 12.02   Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability	473
Section 12.03   Resignation of the Asset Representations Reviewer	474
Section 12.04   Restrictions of the Asset Representations Reviewer	475
Section 12.05   Termination of the Asset Representations Reviewer	475
Article XIII
MISCELLANEOUS PROVISIONS	478
Section 13.01   Amendment	478
Section 13.02   Recordation of Agreement; Counterparts	483
Section 13.03   Limitation on Rights of Certificateholders	484

 

-v- 

 

Section 13.04   Governing Law; Submission to Jurisdiction; Waiver of Jury Trial	485
Section 13.05   Notices	485
Section 13.06   Severability of Provisions	493
Section 13.07   Grant of a Security Interest	493
Section 13.08   Successors and Assigns; Third Party Beneficiaries	493
Section 13.09   Article and Section Headings	494
Section 13.10   Notices to the Rating Agencies	494
Section 13.11   Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements	496
Section 13.12   PNC Bank, National Association	496

 

-vi- 

 

  

EXHIBITS

 

EXHIBIT A-1 Form of Certificate (Other than Class R and Class V Certificates)

EXHIBIT A-2 Form of Class R Certificate

EXHIBIT A-3 Form of Class V Certificate

EXHIBIT A-4 Form of RR Interest

EXHIBIT B Mortgage Loan Schedule

EXHIBIT C Form of Investment Representation Letter

EXHIBIT D-1 Form of Transferee Affidavit for Transfers of Class R Certificates

EXHIBIT D-2 Form of Transferor Letter for Transfers of Class R Certificates

EXHIBIT D-3 Form of Transferee Certificate for Transfers of RR Interest

EXHIBIT D-4 Form of Transferor Certificate for Transfers of RR Interest

EXHIBIT E Form of Request for Release

EXHIBIT F-1 Form of ERISA Representation Letter Regarding ERISA Restricted Certificates

EXHIBIT F-2 Form of ERISA Representation Letter Regarding Class R Certificates and Class V Certificates

EXHIBIT G Form of Distribution Date Statement

EXHIBIT H Form of Omnibus Assignment

EXHIBIT I Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate During Restricted Period

EXHIBIT J Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period

EXHIBIT K Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate During Restricted Period

EXHIBIT L Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period

EXHIBIT M Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Book-Entry Certificate

EXHIBIT N Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Book-Entry Certificate

EXHIBIT O Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Book-Entry Certificate

EXHIBIT P-1A Form of Investor Certification for Non-Borrower Party and/or the Risk Retention Consultation Party (for Persons Other than the Directing Certificateholder and/or a Controlling Class Certificateholder)

EXHIBIT P-1B Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)

EXHIBIT P-1C Form of Investor Certification for Borrower Party (for Persons Other than the Directing Certificateholder, the Risk Retention Consultation Party and/or a Controlling Class Certificateholder)

EXHIBIT P-1D Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)

EXHIBIT P-1E Form of Notice of Excluded Controlling Class Holder

EXHIBIT P-1F Form of Notice of [Excluded Loan] [Excluded Controlling Class Holder] to Certificate Administrator

EXHIBIT P-1G Form of Certification of the Directing Certificateholder

 

-vii- 

 

EXHIBIT P-1H Form of Certification of the Risk Retention Consultation Party

EXHIBIT P-2 Form of Certification for NRSROs

EXHIBIT P-3 Online Market Data Provider Certification

EXHIBIT Q Custodian Certification/Exception Report

EXHIBIT R-1 Form of Power of Attorney – Master Servicers

EXHIBIT R-2 Form of Power of Attorney – Special Servicers

EXHIBIT S Initial Serviced Companion Noteholders

EXHIBIT T Form of Notice Relating to the Non-Serviced Mortgage Loan

EXHIBIT U Form of Notice and Certification Regarding Defeasance of Mortgage Loan

EXHIBIT V Form of Operating Advisor Annual Report

EXHIBIT W Form of Notice from Operating Advisor Recommending Replacement of a Special Servicer

EXHIBIT X Form of Confidentiality Agreement

EXHIBIT Y Form Certification to be Provided with Form 10-K

Exhibit Y-1 Form of Certification to be Provided to Depositor by Certificate Administrator

Exhibit Y-2 Form of Certification to be Provided to Depositor by Master Servicer

Exhibit Y-3 Form of Certification to be Provided to Depositor by Special Servicer

Exhibit Y-4 Form of Certification to be Provided to Depositor by Trustee

Exhibit Y-5 Form of Certification to be Provided to Depositor by Operating Advisor

Exhibit Y-6 Form of Certification to be Provided to Depositor by Custodian

EXHIBIT Y-7 Form of Certification to be Provided to Depositor by Asset Representations Reviewer

EXHIBIT Z Servicing Criteria to be Addressed in Assessment of Compliance

EXHIBIT AA Additional Form 10-D Disclosure

EXHIBIT BB Additional Form 10-K Disclosure

EXHIBIT CC Form 8-K Disclosure Information

EXHIBIT DD Additional Disclosure Notification

EXHIBIT EE Initial Sub-Servicers

EXHIBIT FF Servicing Function Participants

EXHIBIT GG Form of Annual Compliance Statement

EXHIBIT HH Form of Report on Assessment of Compliance with Servicing Criteria

EXHIBIT II CREFC^® Payment Information

EXHIBIT JJ Form of Notice of Additional Indebtedness Notification

EXHIBIT KK [Reserved]

EXHIBIT LL Additional Disclosure Notification (Accounts)

EXHIBIT MM Form of Notice of Purchase of Controlling Class Certificate

EXHIBIT NN Form of Asset Review Report by the Asset Representations Reviewer

EXHIBIT OO Form of Asset Review Report Summary

EXHIBIT PP Asset Review Procedures

EXHIBIT QQ Form of Certification to Certificate Administrator Requesting Access to Secure Data Room

EXHIBIT RR Form of Notice of [Additional Delinquent Loan][Cessation of Delinquent Loan][Cessation of Asset Review Trigger]

EXHIBIT SS Form of Intercreditor Agreement and Subordination Agreement for NCB Co-op Mortgage Loans

 

-viii- 

 

EXHIBIT TT Form of Exchange Letter

EXHIBIT UU Form of Certificate Administrator Receipt of the RR Interest

 

SCHEDULES

 

SCHEDULE 1 Mortgage Loans With Additional Debt

SCHEDULE 2 Class A-SB Planned Principal Balance Schedule

SCHEDULE 3 Designated Escrows and Reserves (other than with respect to NCB Co-op Mortgage Loans)

 

-ix- 

 

This Pooling and Servicing Agreement is dated and effective as of December 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer.

 

PRELIMINARY STATEMENT

 

The Depositor intends to sell commercial mortgage pass-through certificates (collectively, the “Certificates”), to be issued hereunder in multiple classes, which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust (exclusive of the Excess Interest and the proceeds thereof in the Excess Interest Distribution Account) for federal income tax purposes as two (2) separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC”, and each a “Trust REMIC” as described herein).

 

In addition, the parties intend that the portion of the Trust Fund consisting of the Grantor Trust Designated Portions shall be classified as an “investment trust” under section 301.7701-4(c) of the Treasury Regulations and that the holders of the Exchangeable Certificates, the Class V Certificates and the RR Interest shall be treated as holding undivided beneficial ownership interests in the corresponding Grantor Trust Designated Portion, under subpart E, part I of subchapter J of the Code (such arrangement, the “Grantor Trust”). The Certificate Administrator shall take all actions expressly required hereunder to ensure that, for U.S. federal income tax purposes, the Grantor Trust remains classified as a grantor trust and that the holders of the Exchangeable Certificates, the Class V Certificates and the RR Interest continue to be the owners of their Grantor Trust Designated Portions. The Grantor Trust shall not be treated as part of either Trust REMIC.

 

The Depositor intends to sell the Certificates to the Underwriters and the Initial Purchasers.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of Excess Interest) and will issue the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and Class LJ and LRR Uncertificated Interests (the “Lower-Tier Regular Interests”), which will be the “regular interests” in the Lower-Tier REMIC. The Lower-Tier REMIC will also issue the uncertificated Class LR Interest, which is the sole Class of “residual interests” in the Lower-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

 

 

The following table sets forth the Class designation, the Original Lower-Tier Principal Amounts and per annum rates of interest for the Lower-Tier Regular Interests and the Class LR Interest:

 

Class Designation	Interest Rate	Original Lower-Tier Principal Amount
Class LA1	(1)	$	5,800,000
Class LA2	(1)	$	11,800,000
Class LA3	(1)	$	17,100,000
Class LASB	(1)	$	8,200,000
Class LA4	(1)	$	174,000,000
Class LA5	(1)	$	267,894,000
Class LAS	(1)	$	69,256,000
Class LB	(1)	$	28,569,000
Class LC	(1)	$	31,165,000
Class LD	(1)	$	17,314,000
Class LE	(1)	$	13,851,000
Class LF	(1)	$	8,657,000
Class LG	(1)	$	7,792,000
Class LH	(1)	$	6,925,000
Class LJ	(1)	$	24,240,455
Class LR	None(2)	None
LRR	(1)	$	36,450,708.18

 

 

⁽¹⁾ The interest rate for each Class of Lower-Tier Regular Interests on any Distribution Date will be the Weighted Average Net Mortgage Rate for such Distribution Date.

 

⁽²⁾ The Class LR Interest (evidenced by the Class R Certificates) will not have a Certificate Balance or Notional Amount, will not bear interest and will not be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Lower-Tier REMIC Distribution Account after distributing the Lower-Tier Distribution Amount will be deemed distributed to the Class LR Interest and shall be payable to the Holders of the Class R Certificates.

 

UPPER-TIER REMIC

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and will issue the Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H, Class X-J, Class D, Class E, Class F, Class G, Class H and Class J Certificates, the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1, Class A-5-X2, Class A-S, Class A-S-X1, Class A-S-X2, Class B, Class B-X1, Class B-X2, Class C, Class C-X1 and Class C-X2 Upper-Tier Regular Interests, and the regular interest component of the RR Interest (the Excess Interest component of the RR Interest will be held through the Grantor Trust), each of which will represent a “regular interest” in the Upper-Tier REMIC (the “Upper-Tier Regular Interests”). Each of the Upper-Tier Regular Interests designated Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H, Class X-J, Class D, Class E, Class F, Class G, Class H and Class J will be represented by a Class of Regular Certificates with the same alphanumeric designation and Pass-Through Rate, Certificate Balance or Notional Amount and entitlements as such Class of Regular Certificates.

 

 -2-

 

The Upper-Tier REMIC will also issue the uncertificated Class UR Interest, which will be the sole Class of “residual interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates. The Class R Certificates will not have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Upper Tier REMIC Distribution Account, after all required distributions under this Agreement have been made to each Class of Regular Certificates and Exchangeable Upper-Tier Regular Interests will be deemed distributed to the Class UR Interest and shall be payable to the Holders of the Class R Certificates.

 

THE UPPER-TIER REGULAR INTERESTS

 

The following table (and related paragraphs) sets forth the designation, the initial Pass-Through Rate and the aggregate initial principal amount (the “Original Certificate Balance”) or Notional Amount (the “Original Notional Amount”), as applicable, for each Class of Upper-Tier Regular Interests:

 

Designation of Upper-Tier Regular Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class A-1	1.2740%	$	5,800,000
Class A-2	2.4950%	$	11,800,000
Class A-3	2.0620%	$	17,100,000
Class A-SB	2.5060%	$	8,200,000
Class A-4	1.2750%	$	174,000,000
Class A-4-X1	0.5000%	$	174,000,000(2)
Class A-4-X2	0.5000%	$	174,000,000(2)
Class A-5	1.5210%	$	267,894,000
Class A-5-X1	0.5000%	$	267,894,000(2)
Class A-5-X2	0.5000%	$	267,894,000(2)
Class X-A	0.8160%(1)	$	484,794,000(2)
Class X-B	0.4252%(1)	$	97,825,000(2)
Class X-D	0.7167%(1)	$	31,165,000(2)
Class X-F	0.9667%(1)	$	8,657,000(2)
Class X-G	0.9667%(1)	$	7,792,000(2)
Class X-H	0.9667%(1)	$	6,925,000(2)
Class X-J	0.9667%(1)	$	24,240,455(2)
Class A-S	1.7530%	$	69,256,000
Class A-S-X1	0.5000%	$	69,256,000(2)
Class A-S-X2	0.5000%	$	69,256,000(2)
Class B	1.8850%	$	28,569,000
Class B-X1	0.5000%	$	28,569,000(2)
Class B-X2	0.5000%	$	28,569,000(2)
Class C	2.2167%	$	31,165,000
Class C-X1	0.5000%	$	31,165,000(2)
Class C-X2	0.5000%	$	31,165,000(2)
Class D	2.5000%	$	17,314,000
Class E	2.5000%	$	13,851,000
Class F	2.2500%	$	8,657,000

 

 -3-

 

Designation of Upper-Tier Regular Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class G	2.2500%	$	7,792,000
Class H	2.2500%	$	6,925,000
Class J	2.2500%	$	24,240,455
RR Interest	None(3)	$	36,450,708.18

 

 

⁽¹⁾ The Pass-Through Rates for the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H and Class X-J Certificates will be calculated in accordance with the definition of “Class X-A Pass-Through Rate”, “Class X-B Pass-Through Rate”, “Class X-D Pass-Through Rate”, “Class X-F Pass-Through Rate”, “Class X-G Pass-Through Rate”, “Class X-H Pass-Through Rate” and “Class X-J Pass-Through Rate”, respectively.

 

⁽²⁾ None of the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H or Class X-J Certificates or the Class A-4-X1, Class A-4-X2, Class A-5-X1, Class A-5-X2, Class A-S-X1, Class A-S-X2, Class B-X1, Class B-X2, Class C-X1 or Class C-X2 Upper-Tier Regular Interests will have a Certificate Balance or be entitled to distributions of principal; rather, such Classes will accrue interest as provided herein on the Notional Amount thereof.

 

⁽³⁾ The RR Interest will be entitled to interest on any Distribution Date equal to the Retained Certificate Interest Distribution Amount.

 

The foregoing structure is intended to cause all of the cash from the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on the Upper-Tier Regular Interests, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interests. To the extent that the structure is believed to diverge from such intention, the parties identifying such ambiguity shall notify the other parties hereto and the parties involved will resolve such ambiguities to accomplish the intended result and will to the extent necessary rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of counsel) to accomplish such intention, including, to the extent necessary, making any amendments in accordance with Section 13.01 of this Agreement.

 

THE GRANTOR TRUST

 

The following table sets forth each Class of Certificates that represents an undivided beneficial interest in the corresponding portion of the Grantor Trust (each such portion, a “Grantor Trust Designated Portion”).

 

Class of Certificates	Corresponding Grantor Trust Designated Portion
Each Class of Exchangeable Certificates	The related Exchangeable Class Specific Grantor Trust Assets
Class V Certificates	Class V Specific Grantor Trust Assets
RR Interest	RR Interest Specific Grantor Trust Assets

 

As provided herein, the Certificate Administrator shall not take any actions that would (i) cause the Grantor Trust not to be classified as a grantor trust for U.S. federal income tax purposes, (ii) cause the holders of such Classes of Certificates not to be the owners of their Grantor Trust Designated Portions or (iii) cause the Grantor Trust to be treated as part of any Trust REMIC.

 

 -4-

 

The Class V Certificates will not have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges.

 

As of the close of business on the Cut-off Date, the Mortgage Loans had an aggregate principal balance, after application of all payments of principal due on or before such date, whether or not received, equal to $729,014,163.

 

WHOLE LOANS

Whole Loan	Type	Non-Serviced PSA	Mortgage Loan	Companion Loan(s)
One North Wacker	Non-Serviced Whole Loan	BANK 2021-BNK36 PSA	One North Wacker Mortgage Loan	One North Wacker Pari Passu Companion Loans
CX – 350 & 450 Water Street	Non-Serviced Whole Loan	CAMB 2021-CX2 TSA	CX – 350 & 450 Water Street Mortgage Loan	CX – 350 & 450 Water Street Pari Passu Companion Loans and CX – 350 & 450 Water Street Subordinate Companion Loans
Park Avenue Plaza	Non-Serviced Whole Loan	MSC 2021-PLZA TSA	Park Avenue Plaza Mortgage Loan	Park Avenue Plaza Pari Passu Companion Loans and Park Avenue Plaza Subordinate Companion Loan
1201 Lake Robbins	Non-Serviced Whole Loan	BANK 2021-BNK37 PSA	1201 Lake Robbins Mortgage Loan	1201 Lake Robbins Pari Passu Companion Loans

 

Each of the Whole Loans listed above consists of the corresponding Mortgage Loan and Companion Loan(s) listed next to such Whole Loan. With respect to any Whole Loan, each of the Mortgage Loan and any related Pari Passu Companion Loan(s) are pari passu with each other to the extent provided in the related Intercreditor Agreement, and any related AB Subordinate Companion Loan(s) are generally subordinate to the related Mortgage Loan and any Pari Passu Companion Loan(s) to the extent provided in the related Intercreditor Agreement. Each Serviced Whole Loan will be serviced and administered in accordance with this Agreement and the related Intercreditor Agreement. Each Non-Serviced Whole Loan will be serviced and administered in accordance with the related Non-Serviced PSA and the related Intercreditor Agreement.

 

The Companion Loans are not part of the Trust Fund, but are each secured by the applicable Mortgage that secures the related Mortgage Loan that is part of the Trust Fund. Amounts attributable to any Companion Loan will not be part of the Trust Fund, and (except to the extent that such amounts are payable or reimbursable to any party to this Agreement) will be owned by the related Companion Holders.

 

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

 -5-

 

 

Article I

DEFINITIONS

 

Section 1.01         Defined Terms. Whenever used in this Agreement, including in the Preliminary Statement, the following capitalized terms, unless the context otherwise requires, shall have the meanings specified in this Article.

 

“10-K Filing Deadline”:  As defined in Section 11.05(a).

 

“1201 Lake Robbins Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of November 22, 2021, by and between the holders of the respective promissory notes evidencing the 1201 Lake Robbins Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“1201 Lake Robbins Mortgage Loan”: With respect to the 1201 Lake Robbins Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 4 on the Mortgage Loan Schedule), which is evidenced by promissory note A-3.

 

“1201 Lake Robbins Mortgaged Property”: The Mortgaged Property that secures the 1201 Lake Robbins Whole Loan.

 

“1201 Lake Robbins Pari Passu Companion Loans”: With respect to the 1201 Lake Robbins Whole Loan, the Companion Loans evidenced by the related promissory notes A-1, A-2 and A-4 and made by the related Mortgagor and secured by the Mortgage on the 1201 Lake Robbins Mortgaged Property.

 

“1201 Lake Robbins Whole Loan”: The 1201 Lake Robbins Mortgage Loan, together with the 1201 Lake Robbins Pari Passu Companion Loans, each of which is secured by the same Mortgage on the 1201 Lake Robbins Mortgaged Property. References herein to the 1201 Lake Robbins Whole Loan shall be construed to refer to the aggregate indebtedness under the 1201 Lake Robbins Mortgage Loan and the 1201 Lake Robbins Pari Passu Companion Loans.

 

“15Ga-1 Notice”:  As defined in Section 2.02(g).

 

“15Ga-1 Repurchase Request”:  As defined in Section 2.02(g).

 

“17g-5 Information Provider”: The Certificate Administrator.

 

“17g-5 Information Provider’s Website”: The 17g-5 Information Provider’s Internet website, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “NRSRO” tab on the page relating to this transaction.

 

“AB Control Appraisal Period”: With respect to a Serviced AB Whole Loan, a “Control Appraisal Period” or equivalent term under the related AB Intercreditor Agreement. There are no Serviced AB Whole Loans as of the Closing Date.

 

 -6-

 

 

“AB Intercreditor Agreement”: Any Intercreditor Agreement by and among the holder(s) of one or more Subordinate Companion Loan(s) and the holder of the related Mortgage Loan and the holders of any related Pari Passu Companion Loans, relating to the relative rights of such holders of the related AB Whole Loan, as the same may be further amended in accordance with the terms thereof. As of the Closing Date, each of the Park Avenue Plaza Intercreditor Agreement and the CX – 350 & 450 Water Street Intercreditor Agreement is an AB Intercreditor Agreement.

 

“AB Major Decision” With respect to a Serviced AB Whole Loan, a “major decision” or equivalent term under the related AB Intercreditor Agreement.

 

“AB Modified Loan”: Any Corrected Loan (1) that became a Corrected Loan (which includes for purposes of this definition any Non-Serviced Mortgage Loan that became a “corrected loan” (or any term substantially similar thereto) pursuant to the related Non-Serviced PSA) due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Mortgage Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

 

“AB Mortgage Loan”:  One or more senior “A notes” that is part of an AB Whole Loan and which is a Mortgage Loan that is part of the Trust Fund. As of the Closing Date, each of the Park Avenue Plaza Mortgage Loan and the CX – 350 & 450 Water Street Mortgage Loan is an AB Mortgage Loans.

 

“AB Mortgaged Property”:  The Mortgaged Property that secures the related AB Whole Loan. As of the Closing Date, each of the Park Avenue Plaza Mortgaged Property and the CX – 350 & 450 Water Street Mortgaged Property is an AB Mortgaged Property.

 

“AB Subordinate Companion Loan”: With respect to any AB Whole Loan, any related companion loan evidenced by the related promissory note made by the related Mortgagor and secured by the Mortgage on the related AB Mortgaged Property, which is not included in the Trust and which is subordinate in right of payment to the related AB Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the related AB Intercreditor Agreement. As of the Closing Date, each of the Park Avenue Plaza Subordinate Companion Loan and the CX – 350 & 450 Water Street Subordinate Companion Loans is an AB Subordinate Companion Loan.

 

“AB Whole Loan”:  A Whole Loan that consists of a Mortgage Loan, any related companion loan that is pari passu in right of payment with such Mortgage Loan and one or more related AB Subordinate Companion Loans. As of the Closing Date, each of the Park Avenue Plaza Whole Loan and the CX – 350 & 450 Water Street Whole Loan is an AB Whole Loan.

 

“AB Whole Loan Controlling Holder”: With respect to a Serviced AB Whole Loan, the “Controlling Holder”, “Controlling Noteholder” or similarly defined party identified in the related AB Intercreditor Agreement that is not the holder of the related Serviced Mortgage Loan. As of the Closing Date there is no AB Whole Loan Controlling Holder.

 

 -7-

 

 

“Accelerated Mezzanine Loan Lender”: A mezzanine lender under a mezzanine loan that has been accelerated or as to which foreclosure or enforcement proceedings have been commenced against the equity collateral pledged to secure such mezzanine loan.

 

“Acceptable Insurance Default”: With respect to any Serviced Mortgage Loan or Serviced Whole Loan, a default under the related Mortgage Loan documents arising by reason of (i) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property specific insurance coverage with respect to, or an all-risk casualty insurance policy that does not specifically exclude, terrorist or similar acts, and/or (ii) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property insurance coverage with respect to damages or casualties caused by terrorist or similar acts upon terms not materially less favorable than those in place as of the Closing Date, in each case as to which default the applicable Master Servicer and the applicable Special Servicer may forbear taking any enforcement action, provided that the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan), as applicable, has determined, in its reasonable judgment, based on inquiry consistent with the Servicing Standard (and (i) unless a Control Termination Event has occurred and is continuing, with the consent of the Directing Certificateholder and (ii) with respect to a Specially Serviced Loan, after non-binding consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in either case, other than with respect to any Mortgage Loan that is an Excluded Loan as to such party)) (and after a Control Termination Event has occurred and is continuing, but prior to the occurrence and continuance of a Consultation Termination Event, after non-binding consultation with the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, with the consent of the related AB Whole Loan Controlling Holder to the extent required under the related Intercreditor Agreement) as provided in Section 6.08) (other than with respect to any Mortgage Loan that is an Excluded Loan as to such party), that either (a) such insurance is not available at commercially reasonable rates and that such hazards are not at the time commonly insured against for properties similar to the related Mortgaged Property and located in or around the region in which such related Mortgaged Property is located, or (b) such insurance is not available at any rate; provided, however, that the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, the AB Whole Loan Controlling Holder if an AB Control Appraisal Period is not in effect to the extent required under the related Intercreditor Agreement) and the Risk Retention Consultation Party (if it has the right to consult pursuant to Section 6.08) will not have more than thirty (30) days to respond to the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, request for such consent or consultation, as applicable; provided, further, that upon the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, determination, consistent with the Servicing Standard, that exigent circumstances do not allow the applicable Master Servicer or the applicable Special Servicer, as applicable, to consult with the Directing Certificateholder, the Risk Retention Consultation Party or any applicable AB Whole Loan Controlling Holder, as applicable, such Master Servicer or such Special Servicer, as applicable, is not required to do so. The applicable Master Servicer (at its own expense) and the applicable Special Servicer (at the expense of the Trust Fund) shall be entitled to rely on insurance consultants in making the determinations described above.

 

“Act”:  The Securities Act of 1933, as it may be amended from time to time.

 

 -8-

 

 

“Actual/360 Basis”: Interest accrual on the basis of the actual number of days in a month assuming a 360-day year.

 

“Actual/360 Mortgage Loans”:  The Mortgage Loans that accrue interest on an Actual/360 Basis; provided, that a Mortgage Loan that accrues interest for a portion of the Mortgage Loan term on an Actual/360 Basis shall be an Actual/360 Mortgage Loan solely for such portion of the Mortgage Loan term.

 

“Additional Debt”:  With respect to any Mortgage Loan, any debt owed by the related Mortgagor to a party other than the lender under such Mortgage Loan that is secured by the related Mortgaged Property as of the Closing Date as set forth on Schedule 1 hereto, as increased or decreased from time to time pursuant to the terms of the related subordinate or pari passu loan documents (including any Intercreditor Agreement or subordination agreement).

 

“Additional Disclosure Notification”:  The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto as Exhibit DD.

 

“Additional Exclusions”:  Exclusions in addition to those customarily found in the insurance policies for mortgaged properties similar to the Mortgaged Properties on or prior to September 11, 2001.

 

“Additional Form 10-D Disclosure”: As defined in Section 11.04(a).

 

“Additional Form 10-K Disclosure”: As defined in Section 11.05(a).

 

“Additional Servicer”:  Each Affiliate of any Master Servicer, any Special Servicer or any Mortgage Loan Seller that services any of the Mortgage Loans and each Person who is not an Affiliate of any Master Servicer, other than any Special Servicer, who services 10% or more of the Mortgage Loans by unpaid principal balance as of any date of determination pursuant to Article XI.

 

“Administrative Fee Rate”:  As of any date of determination and with respect to each Mortgage Loan, a per annum rate equal to the sum of the Servicing Fee Rate, the Certificate Administrator Fee Rate (which fee rate accounts for the Trustee Fee), the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and, in the case of each Non-Serviced Mortgage Loan, the related Non-Serviced Primary Servicing Fee Rate.

 

“Advance”:  Any P&I Advance or Servicing Advance.

 

“Adverse REMIC Event”:  As defined in Section 10.01(f).

 

“Affected Party”:  As defined in Section 7.01(b).

 

“Affected Reporting Party”: As defined in Section 11.12.

 

 -9-

 

 

“Affiliate”:  With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Affirmative Asset Review Vote”: As defined in Section 12.01(a).

 

“Aggregate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (without duplication):

 

(a)          the aggregate amount of all cash received on the Mortgage Loans (in the case of a Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced PSA and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into each applicable Collection Account pursuant to Section 3.05(g) of this Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by each applicable Master Servicer pursuant to Section 3.17(a)) on deposit in each applicable Collection Account (in each case, exclusive of any amount on deposit in or credited to any portion of a Collection Account that is held for the benefit of the Serviced Companion Noteholders) as of the close of business on the related P&I Advance Date, exclusive of (without duplication):

 

(i)      all Periodic Payments paid by the Mortgagors of a Mortgage Loan that are due on a Due Date following the end of the related Collection Period, excluding interest relating to payments prior to, but due after, the Cut-off Date;

 

(ii)     all unscheduled Principal Prepayments (together with any related payments of interest allocable to the period following the related Due Date for the related Mortgage Loan), Liquidation Proceeds, Insurance and Condemnation Proceeds and other unscheduled recoveries, in each case, received subsequent to the related Determination Date (or, with respect to voluntary Principal Prepayments for each Mortgage Loan with a Due Date occurring after the related Determination Date, subsequent to the related Due Date) allocable to the Mortgage Loans;

 

(iii)    (A) all amounts payable or reimbursable to any Person from each applicable Collection Account pursuant to clauses (ii) through (xviii), inclusive, and (xxii) of Section 3.05(a); (B) all amounts payable or reimbursable to any Person from the Lower-Tier REMIC Distribution Account pursuant to clauses (ii) through (vii), inclusive, of Section 3.05(b); and (C) any Net Investment Earnings contained therein;

 

(iv)   with respect to the Actual/360 Mortgage Loans and any Distribution Date occurring in (1) each February or (2) any January in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), an amount equal to one (1) day of interest on the Stated Principal Balance of

 

 -10-

 

 

such Mortgage Loan as of the Distribution Date in the month preceding the month in which the P&I Advance Date occurs at the related Mortgage Rate to the extent such amounts are Withheld Amounts;

 

(v)      all Excess Interest allocable to the Mortgage Loans (which is separately distributed to the Excess Interest Certificates and the RR Interest, as described in Section 4.01(j));

 

(vi)     all Prepayment Premiums and Yield Maintenance Charges allocable to the Mortgage Loans;

 

(vii)    all amounts deposited in a Collection Account in error; and

 

(viii)   any Penalty Charges allocable to the Mortgage Loans;

 

(b)          if and to the extent not already included in clause (a) hereof, the aggregate amount transferred from the REO Accounts allocable to the Mortgage Loans to the applicable Collection Account for such Distribution Date pursuant to Section 3.14(c);

 

(c)          the aggregate amount of any Compensating Interest Payments made by each applicable Master Servicer in respect of the Mortgage Loans with respect to such Distribution Date and P&I Advances made by each applicable Master Servicer or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator Fee, Operating Advisor Fee, Asset Representations Reviewer Fee and CREFC^® Intellectual Property Royalty License Fee with respect to the Mortgage Loans for which such P&I Advances are made) pursuant to Section 4.03 or Section 7.05; and

 

(d)          with respect to each Actual/360 Mortgage Loan and any Distribution Date occurring in each March (or February, if the related Distribution Date is the final Distribution Date), the Withheld Amounts remitted to the Lower-Tier REMIC Distribution Account pursuant to Section 3.21(b).

 

Notwithstanding the investment of funds held in each applicable Collection Account pursuant to Section 3.06, for purposes of calculating the Aggregate Available Funds, the amounts so invested shall be deemed to remain on deposit in such accounts.

 

“Aggregate Excess Prepayment Interest Shortfall”: The aggregate of any Prepayment Interest Shortfalls resulting from any Principal Prepayments made on the Mortgage Loans to be included in the Aggregate Available Funds for any Distribution Date that are not covered by each applicable Master Servicer’s Compensating Interest Payment for the related Distribution Date and the portion of the compensating interest payments allocable to any Non-Serviced Mortgage Loan to the extent received from the related Non-Serviced Master Servicer.

 

“Aggregate Gain-on-Sale Entitlement Amount”: For each Distribution Date, the aggregate amount of (i) the sum of (a)(x) the aggregate portion of the Interest Distribution Amount for each Class of Non-Retained Certificates that would remain unpaid as of the close of business

 

 -11-

 

 

on the Distribution Date, divided by (y) the Non-Retained Percentage, and (b)(x) the amount by which the Principal Distribution Amount exceeds the aggregate amount that would actually be distributed on the Distribution Date in respect of such Principal Distribution Amount, divided by (y) the Non-Retained Percentage, and (ii) any outstanding Realized Losses and Retained Certificate Realized Losses outstanding immediately after such Distribution Date, in each case, to the extent such amounts would occur on such Distribution Date or would be outstanding immediately after such Distribution Date, as applicable, without the inclusion of the Gain-on-Sale Remittance Amount as part of the definition of Available Funds and the Retained Certificate Gain-on-Sale Remittance Amount as part of the definition of Retained Certificate Available Funds.

 

“Aggregate Principal Distribution Amount”: With respect to any Distribution Date, an amount equal to the sum of the following amounts: (a) the Scheduled Principal Distribution Amount for such Distribution Date and (b) the Unscheduled Principal Distribution Amount for such Distribution Date; provided that the Aggregate Principal Distribution Amount for any Distribution Date shall be reduced, to not less than zero, by the amount of any reimbursements of (A) Nonrecoverable Advances (including any servicing advance with respect to the Non-Serviced Mortgage Loan under the related Non-Serviced PSA reimbursed out of general collections on the Mortgage Loans), with interest on such Nonrecoverable Advances at the Reimbursement Rate that are paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date and (B) Workout-Delayed Reimbursement Amounts paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date (provided that, in the case of clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including REO Loans (but excluding any related Companion Loan)) are subsequently recovered on the related Mortgage Loan (or REO Loan (but excluding any related Companion Loan)), such recovery will increase the Aggregate Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs).

 

“Agreement”:  This Pooling and Servicing Agreement and all amendments hereof and supplements hereto.

 

“Allocated Appraisal Reduction Amount”: With respect to any Appraisal Reduction Amount, an amount equal to the Non-Retained Percentage of such Appraisal Reduction Amount.

 

“Allocated Collateral Deficiency Amount”: With respect to any Collateral Deficiency Amount, the Non-Retained Percentage of such Collateral Deficiency Amount.

 

“Allocated Cumulative Appraisal Reduction Amount”: With respect to any Cumulative Appraisal Reduction Amount, the Non-Retained Percentage of such Cumulative Appraisal Reduction Amount.

 

“Anticipated Repayment Date”: With respect to any ARD Loan, the date upon which such ARD Loan commences accruing interest at the Revised Rate.

 

 -12-

 

 

“Applicable Fitch Permitted Investment Rating”:   (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “F1” by Fitch or the long-term debt obligations of which are rated at least “A” by Fitch, and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch or the long-term obligations of which are rated at least “AA-” by Fitch.

 

“Applicable KBRA Permitted Investment Rating”:  (A) in the case of such investments with maturities of ninety (90) days or less, the short-term debt obligations of which are rated at least “K3” or the long-term obligations of which are rated at least “BBB-” and (B) in the case of such investments with maturities greater than ninety (90) days but not more than one year, the short-term debt obligations of which are rated at least “K1” or the long-term obligations of which are rated at least “A-” (in each case, if then rated by KBRA).

 

“Applicable Laws”: As defined in Section 8.15.

 

“Applicable S&P Permitted Investment Rating”:  (A) in the case of such investments with maturities of sixty (60) days or less, the short term obligations of which are rated at least “A-1” by S&P, and (B) in the case of such investments with maturities of more than sixty (60) days, the short term obligations of which are rated “A-1+” by S&P (or at least “A-1” by S&P, if the long term obligations of which are rated at least “AA-” by S&P).

 

“Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York; and (b) such other state or local tax laws whose applicability shall have been brought to the attention of the Trustee and the Certificate Administrator by either (i) an Opinion of Counsel delivered to it, or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

“Appraisal”:  An appraisal prepared by an appraiser who is licensed or certified to prepare appraisals in the state where the Mortgaged Property is located and which satisfies the Interagency Appraisal and Evaluation Guidelines jointly issued by The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) relating to real estate appraisals and evaluations used to support real estate-related financial transactions, as amended from time to time. Any Appraisal ordered by the applicable Master Servicer or applicable Special Servicer shall be performed by an Independent MAI-designated appraiser.

 

“Appraisal Reduction Amount”: For any Distribution Date and for any Serviced Mortgage Loan or Serviced Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the applicable Special Servicer (prior to the occurrence and continuance of a Consultation Termination Event, in consultation with the Directing Certificateholder (except in the case of an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), and, after the occurrence and during the continuance of a Control Termination Event, in consultation with the Directing Certificateholder (except with respect to any such Excluded Loan) and the Operating Advisor and, after the occurrence and during the continuance of a Consultation Termination Event, in

 

 -13-

 

 

consultation with the Operating Advisor), as of the first Determination Date that is at least ten (10) Business Days following the later of (i) the date on which the applicable Special Servicer receives the related Appraisal (together with information requested by the applicable Special Servicer from the applicable Master Servicer in accordance with Section 4.05 of this Agreement that is in the possession of the applicable Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount), or conducts a valuation as described below and (ii) the occurrence of such Appraisal Reduction Event, equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan or the Stated Principal Balance of the applicable Serviced Whole Loan over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property as determined (1) by one or more Appraisals obtained by the applicable Special Servicer with respect to that Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be paid by the applicable Master Servicer as an Advance) or (2) by an internal valuation performed by the applicable Special Servicer (or at the applicable Special Servicer’s election, by one or more MAI appraisals obtained by such Special Servicer) with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the applicable Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisals and any other information it deems relevant; provided that, in the case of an NCB Co-op Mortgage Loan, such Appraised Value shall be determined (i) except as provided in clause (ii) below, in the case of each Mortgaged Property, assuming such Mortgaged Property is operated as a residential cooperative with such value, in general, to equal the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent-regulated, rent-stabilized or rent-controlled units and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property and (ii) if the applicable Special Servicer determines, in accordance with the Servicing Standard, that there is no reasonable expectation that the related Mortgaged Property will be operated as a residential cooperative following any work-out or liquidation of the related Mortgage Loan, assuming such Mortgaged Property is operated as a multifamily rental property; and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the applicable Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or Serviced Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to any Serviced AB Whole Loan, any accrued and unpaid interest on the related AB Subordinate Companion Loan, as applicable), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan or Serviced Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan or Serviced Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, and (C) all currently due and unpaid real estate taxes, assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid (including any capitalized interest whether or not then due and payable) with respect to such Mortgage Loan or Serviced Whole Loan, as the case may be (which

 

 -14-

 

 

taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable); provided, however, that without limiting the applicable Special Servicer’s obligation to order and obtain such Appraisal or perform such valuation, if the applicable Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred twenty (120) days (in the case of clause (i)) or ninety (90) days or one hundred twenty (120) days, as applicable (in case of clause (vi)) after the initial delinquency for the related Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, until such time as such appraisal or valuation referred to above is received (together with information reasonably requested by the applicable Special Servicer from the applicable Master Servicer in accordance with Section 4.05 of this Agreement necessary to calculate the Appraisal Reduction Amount) or performed by the applicable Special Servicer and the Appraisal Reduction Amount is calculated by the applicable Special Servicer as of the first Determination Date that is at least ten (10) Business Days after the later of (a) the applicable Special Servicer’s receipt of such Appraisal or the completion of the valuation and receipt of information from the applicable Master Servicer in accordance with Section 4.05 of this Agreement necessary to calculate the Appraisal Reduction Amount and (b) the occurrence of such Appraisal Reduction Event. Within sixty (60) days after the Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive an Appraisal (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the one hundred twenty (120) day period set forth in such clause (i), and with respect to an Appraisal Reduction Event as set forth in clause (vi) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the ninety (90) day period or one hundred twenty (120) day period, as applicable, set forth in such clause (vi); provided, further, however, that in no event shall the applicable Special Servicer be required to obtain any such Appraisal prior to the conclusion of such sixty (60), ninety (90) or one hundred twenty (120) day period, as applicable, and in each case, the related Appraisal shall be promptly delivered in electronic format by the applicable Special Servicer to the applicable Master Servicer and the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder), the Certificate Administrator and the Trustee. In connection with any Appraisal Reduction Amount, the applicable Master Servicer shall provide the applicable Special Servicer with the information as set forth in Section 4.05(c) within four (4) Business Days of its receipt of any such request. The Master Servicers shall not calculate Appraisal Reduction Amounts.

 

With respect to any Appraisal Reduction Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with clause (b)(i)(A)(1) or clause (b)(i)(A)(2) of the first paragraph of this definition shall be determined on an “as-is” basis.

 

 -15-

 

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to a Mortgage Loan or the related REO Property will be reduced to zero as of the date on which Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust or as otherwise set forth in Section 4.05(d).

 

Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan and allocable to the related Non-Serviced Mortgage Loan shall be calculated by the applicable party under, and in accordance with and pursuant to the terms of, the applicable Non-Serviced PSA and shall constitute an “Appraisal Reduction Amount” under the terms of this Agreement with respect to such Non-Serviced Mortgage Loan and the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator are entitled to conclusively rely on such calculation.

 

“Appraisal Reduction Event”:  With respect to any Serviced Mortgage Loan, Serviced Companion Loan and Serviced Whole Loan, the earliest of (i) one hundred twenty (120) days after an uncured delinquency (without regard to the application of any Grace Period), other than any uncured delinquency in respect of a Balloon Payment, occurs in respect of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, (ii) the date on which a reduction in the amount of Periodic Payments on such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, or a change in any other material economic term of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, by the applicable Special Servicer, (iii) thirty (30) days after the date on which a receiver has been appointed for the Mortgaged Property, (iv) thirty (30) days after the date on which a Mortgagor or the tenant at a single tenant property declares bankruptcy (and the bankruptcy petition is not otherwise dismissed within such time), (v) sixty (60) days after the date on which an involuntary petition of bankruptcy is filed with respect to a Mortgagor if not dismissed within such time, (vi) ninety (90) days after an uncured delinquency occurs in respect of a Balloon Payment with respect to such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, except where a refinancing or sale is anticipated within one hundred twenty (120) days after the Maturity Date of the Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, in which case one hundred twenty (120) days after such uncured delinquency, and (vii) immediately after such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, becomes an REO Loan; provided that the thirty (30) day period referenced in clause (iii) and clause (iv) shall not apply if the related Mortgage Loan is a Specially Serviced Loan; provided, further, however, that an Appraisal Reduction Event shall not occur at any time when the aggregate Certificate Balances of all Classes of Subordinate Certificates have been reduced to zero. The applicable Special Servicer shall notify the applicable Master Servicer, the Directing Certificateholder and the Operating Advisor and the Other Servicer and the Other Trustee, if applicable, or the applicable Master Servicer shall notify the applicable Special Servicer and the Operating Advisor and the Other Servicer and the Other Trustee, as applicable, promptly upon such Person having notice or knowledge of the occurrence of any of the foregoing events. The obligation to obtain an Appraisal following the occurrence of an Appraisal Reduction Event shall be subject to the provisions of Section 4.05.

 

For the avoidance of doubt, with respect to clauses (i) and (ii) above, neither (i) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (ii) any

 

 -16-

 

 

default or delinquency that would have existed but for such Payment Accommodation shall constitute an Appraisal Reduction Event, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

 

“Appraisal Review Period”:  As defined in Section 4.05(b)(ii).

 

“Appraised Value”:  (i) With respect to any Mortgaged Property (other than a Non-Serviced Mortgaged Property and a Mortgaged Property securing an NCB Co-op Mortgage Loan), the appraised value thereof as determined by the most recent Appraisal of the Mortgaged Property securing the related Mortgage Loan, Serviced Whole Loan, or Serviced AB Whole Loan, as applicable, (ii) with respect to each Mortgaged Property securing an NCB Co-op Mortgage Loan, the Appraised Value thereof based upon the most recent Appraisal obtained or conducted, as appropriate, pursuant to this Agreement and determined as if such property were operated as a residential cooperative (such “Appraised Value” generally equals the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent-regulated, rent-stabilized or rent-controlled units and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property) and (iii) with respect to a Non-Serviced Mortgaged Property, the appraised value allocable thereto, as determined pursuant to the applicable Non-Serviced PSA.

 

“Appraised-Out Class”:  As defined in Section 4.05(b)(i).

 

“Arbitration Rules”:  As defined in Section 2.03(n)(i).

 

“Arbitration Services Provider”: As defined in Section 2.03(n)(i).

 

“ARD Loan”:  Any Mortgage Loan that is identified on the Mortgage Loan Schedule as having an Anticipated Repayment Date and Revised Rate. As of the Closing Date, each of the Mortgage Loans secured by the Mortgaged Properties identified on the Mortgage Loan Schedule as “CX – 350 & 450 Water Street”, “JCI Sanford” and “JCI El Paso” is an ARD Loan.

 

“Asset Representations Reviewer”: Pentalpha Surveillance LLC, a Delaware limited liability company, and its successors-in-interest.

 

“Asset Representations Reviewer Asset Review Fee”: As defined in Section 12.02(b).

 

“Asset Representations Reviewer Fee”: As defined in Section 12.02(a).

 

“Asset Representations Reviewer Fee Rate”: As defined in Section 12.02(a).

 

“Asset Representations Reviewer Termination Event”: As defined in Section 12.05(a).

 

 -17-

 

 

“Asset Review”: A review of the compliance of each Delinquent Loan with certain representations and warranties of the applicable Mortgage Loan Seller, in accordance with the Asset Review Standard and the procedures set forth on Exhibit PP hereto.

 

“Asset Review Notice”: As defined in Section 12.01(a).

 

“Asset Review Quorum”: In connection with any solicitation of votes to authorize an Asset Review as described in Section 12.01(a), the Certificateholders (other than the Holders of the RR Interest) evidencing at least 5% of the aggregate Voting Rights represented by all of the Certificates that have Voting Rights.

 

“Asset Review Report”: As defined in Section 12.01(b)(viii), a report setting forth the findings and conclusions of an Asset Review substantially in the form attached hereto as Exhibit NN.

 

“Asset Review Report Summary”: As defined in Section 12.01(b)(viii), a summary report setting forth the conclusions of an Asset Review Report substantially in the form attached hereto as Exhibit OO.

 

“Asset Review Standard”: The performance by the Asset Representations Reviewer of its duties under this Agreement in good faith subject to the express terms of this Agreement. All determinations or assumptions made by the Asset Representations Reviewer in connection with an Asset Review shall be made in the Asset Representations Reviewer’s good faith discretion and judgment based on the facts and circumstances known to it at the time of such determination or assumption.

 

“Asset Review Trigger”: Any time when either (1) Mortgage Loans with an aggregate outstanding principal balance of 25.0% or more of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the end of the applicable Collection Period are Delinquent Loans or (2)(A) prior to and including the second anniversary of the Closing Date, at least 10 Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 15.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the end of the applicable Collection Period, or (B) after the second anniversary of the Closing Date, at least fifteen (15) Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 20.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the end of the applicable Collection Period.

 

“Asset Review Vote Election”: As defined in Section 12.01(a).

 

“Asset Status Report”:  As defined in Section 3.19(d).

 

“Assignment” and “Assignments”:  Each as defined in Section 2.01(c).

 

 -18-

 

 

“Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar instrument executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of such Mortgaged Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.

 

“Assignment of Mortgage”: With respect to any Mortgaged Property, an assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect of record the assignment of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

 

“Assumed Scheduled Payment”: For any Collection Period and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) that is delinquent in respect of its Balloon Payment or any REO Loan (excluding, for purposes of determining or making P&I Advances, the portion allocable to any related Companion Loan), an amount equal to the sum of (a) the principal portion of the Periodic Payment that would have been due on such Mortgage Loan or REO Loan on the related Due Date based on the constant payment required by the related Mortgage Note or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate), if applicable, assuming such Balloon Payment has not become due, after giving effect to any reduction in the principal balance thereof occurring in connection with a modification of such Mortgage Loan in connection with a default or bankruptcy (or similar proceeding), and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (excluding, for purposes of determining P&I Advances, the portion allocable to any related Companion Loan) at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate and the related Non-Serviced Primary Servicing Fee Rate, if applicable).

 

“Authenticating Agent”:  The Certificate Administrator or any agent of the Certificate Administrator appointed to act as Authenticating Agent pursuant to Section 5.02(a), in each case in its capacity as authenticating agent, or if any successor authenticating agent is appointed pursuant to Section 5.02(a), such successor authenticating agent.

 

“Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Non-Retained Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Gain-on-Sale Remittance Amount.

 

“Balloon Mortgage Loan”: Any Mortgage Loan or Companion Loan that by its original terms or by virtue of any modification entered into as of the Closing Date provides for an amortization schedule for such Mortgage Loan or Companion Loan extending beyond its Maturity Date.

 

“Balloon Payment”:  With respect to any Balloon Mortgage Loan, as of any date of determination, the Periodic Payment payable on the Maturity Date of such Balloon Mortgage Loan.

 

 -19-

 

 

“BANK 2021-BNK36 PSA”: The pooling and servicing agreement, dated and effective as of October 1, 2021 (as from time to time amended, supplemented or modified), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Rialto Capital Advisors, LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer.

 

“BANK 2021-BNK37 PSA”: The pooling and servicing agreement, dated and effective as of November 1, 2021 (as from time to time amended, supplemented or modified), between Wells Fargo Commercial Mortgage Securities Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, CWCapital Asset Management LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer.

 

“Bankruptcy Code”:  The federal Bankruptcy Code, as amended from time to time (Title 11 of the United States Code).

 

“Base Interest Fraction”:  As defined in Section 4.01(e).

 

“Book-Entry Certificate”:  Any Certificate registered in the name of the Depository or its nominee.

 

“Borrower Party”: A borrower, a Mortgagor, a manager of a Mortgaged Property, an Accelerated Mezzanine Loan Lender, or any Borrower Party Affiliate. For the avoidance of doubt, with respect to a Mortgage Loan secured by a residential cooperative property, a person shall not be considered a “Borrower Party” solely by reason of such person holding one or more cooperative unit loans that are secured by direct equity interests in the related borrower or owning one or more residential cooperative units comprising the related Mortgaged Property as a result of any foreclosure, transfer in lieu of foreclosure or other exercise of remedies with respect to any such unit loan(s).

 

“Borrower Party Affiliate”: With respect to a borrower, a Mortgagor, a manager of a Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

 -20-

 

 

“Breach”:  With respect to any Mortgage Loan, a breach of any representation or warranty with respect to such Mortgage Loan set forth in Section 4(b) of the related Mortgage Loan Purchase Agreement.

 

“Business Day”:  Any day other than a Saturday, a Sunday or a day on which banking institutions in California, Kansas, Ohio, New York, North Carolina, Pennsylvania or the city and state in which the Corporate Trust Office of the Trustee or the Certificate Administrator, or the principal place of business or principal commercial mortgage loan servicing office of any Master Servicer or Special Servicer is located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

 

“CAMB 2021-CX2 TSA”: The trust and servicing agreement, dated as of November 9, 2021, between Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer, Situs Holdings, LLC, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, paying agent and custodian, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor.

 

“CERCLA”:  The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

 

“Certificate”:  Any one of the Depositor’s Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent. For the avoidance of doubt, the RR Interest shall be a Certificate.

 

“Certificate Administrator”: Computershare Trust Company, National Association, in its capacity as certificate administrator, or if any successor certificate administrator is appointed thereto pursuant to Section 5.08 or any successor certificate administrator appointed hereunder. Computershare Trust Company, National Association shall perform the certificate administrator role through its Corporate Trust Services division, including, as applicable, any agents or affiliates utilized thereby.

 

“Certificate Administrator Fee”: The fee to be paid to the Certificate Administrator as compensation for the Certificate Administrator’s activities under this Agreement; provided that the Certificate Administrator Fee includes the Trustee Fee, and the Certificate Administrator shall pay the Trustee Fee to the Trustee.

 

“Certificate Administrator Fee Rate”: The Certificate Administrator Fee shall be equal to the product of the rate equal to 0.01056% per annum and the Stated Principal Balance of the related Mortgage Loan (calculated in the same manner as interest is calculated on the related Mortgage Loan) or REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of the preceding Distribution Date. The Certificate Administrator Fee includes the Trustee Fee.

 

“Certificate Administrator’s Website”: The Certificate Administrator’s Internet website, which shall initially be located at “www.ctslink.com”.

 

 -21-

 

 

“Certificate Balance”: With respect to any Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest, (i) on or prior to the first Distribution Date, an amount equal to the Original Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest and (ii) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)).  Each Class of Class A-4 Exchangeable Certificates, Class A-5 Exchangeable Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates shall have a Certificate Balance or Notional Amount equal to its Class Percentage Interest multiplied by the Certificate Balance of the Class A-4 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-S Upper-Tier Regular Interest, Class B Upper-Tier Regular Interest or Class C Upper-Tier Regular Interest, respectively.

 

“Certificate Factor”:  With respect to any Class of Certificates (other than the Class R and Class V Certificates), as of any date of determination, a fraction, expressed as a decimal carried to at least eight (8) places, the numerator of which is the then-related Certificate Balance or Notional Amount, and the denominator of which is the related Original Certificate Balance.

 

“Certificate Owner”:  With respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.

 

“Certificate Register” and “Certificate Registrar”:  The register maintained and registrar appointed pursuant to Section 5.03(a).

 

“Certificateholder” or “Holder”:  The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that solely for the purposes of giving any consent, approval, waiver or taking any action pursuant to this Agreement, any Certificate registered in the name of or beneficially owned by any Master Servicer, any Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller, a Mortgagor, a Borrower Party or any Affiliate of any of such Persons shall be deemed not to be outstanding (provided that notwithstanding the foregoing, any Controlling Class Certificates owned by an Excluded Controlling Class Holder shall be deemed not to be outstanding as to such Excluded Controlling Class Holder solely with respect to any related Excluded Controlling Class Loan; and provided, further, that any Controlling Class Certificates owned by a Special Servicer or an Affiliate thereof shall be deemed not to be outstanding as to such Special Servicer or such Affiliate solely with respect to any related Excluded Special Servicer Loan), and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, approval, waiver or take any such action has been obtained; provided, however, that the foregoing restrictions shall not apply in the case of any Master Servicer, any Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate of any of such Persons unless such consent, approval or

 

 -22-

 

 

waiver sought from such party would in any way increase its compensation or limit its obligations in the named capacities hereunder or waive a Servicer Termination Event or trigger an Asset Review (with respect to an Asset Review and any Mortgage Loan Seller, solely with respect to any related Mortgage Loan subject to the Asset Review); provided, further, that so long as there is no Servicer Termination Event with respect to a Master Servicer or a Special Servicer, as applicable, such Master Servicer and such Special Servicer or any such Affiliate thereof shall be entitled to exercise such Voting Rights with respect to any issue which could reasonably be believed to adversely affect such party’s compensation or increase its obligations or liabilities hereunder; and provided, further, that such restrictions shall not apply to (i) the exercise of any Special Servicer’s, any Master Servicer’s or any Mortgage Loan Seller’s rights, if any, or any of their Affiliates as a member of the Controlling Class or (ii) any Affiliate of the Depositor, any Master Servicer, any Special Servicer, the Trustee or the Certificate Administrator that has provided an Investor Certification in which it has certified as to the existence of certain policies and procedures restricting the flow of information between it and the Depositor, such Master Servicer, such Special Servicer, the Trustee or the Certificate Administrator, as applicable. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of any Master Servicer, any Special Servicer or the Depositor in determining whether a Certificate is registered in the name of an Affiliate of such Person. All references herein to “Holders” or “Certificateholders” shall reflect the rights of Certificate Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a “Holder” or “Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register. The Trustee shall be the Holder of the Lower-Tier Regular Interests for the benefit of the Certificateholders.

 

“Certificateholder Quorum”:  The Holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of Realized Losses and, other than with respect to the termination of the Asset Representations Reviewer, the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates (other than the RR Interest) on an aggregate basis.

 

“Certificateholder Repurchase Request”: As defined in Section 2.03(k)(i).

 

“Certification Parties”:  As defined in Section 11.06.

 

“Certification Party”:  Any one of the Certification Parties.

 

“Certifying Person”:  As defined in Section 11.06.

 

“Certifying Servicer”:  As defined in Section 11.09.

 

“Class”:  With respect to any Certificates, all of the Certificates bearing the same alphanumeric Class designation. Each designated Lower-Tier Regular Interest shall be a Class. Each Exchangeable Upper-Tier Regular Interest shall be a Class. For the avoidance of doubt, the RR Interest shall be a Class of Certificates.

 

“Class A Certificate”:  Any Class A-1, Class A-2, Class A-3 or Class A-SB Certificate, Class A-4 Exchangeable Certificate or Class A-5 Exchangeable Certificate.

 

 -23-

 

 

“Class A-1 Certificate”: A Certificate designated as “Class A-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class A-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.2740%.

 

“Class A-2 Certificate”: A Certificate designated as “Class A-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class A-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.4950%.

 

 “Class A-3 Certificate”: A Certificate designated as “Class A-3” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class A-3 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.0620%.

 

“Class A-4 Certificate”: A Certificate designated as “Class A-4” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4 Exchangeable Certificate”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-4-X1 and Class A-4-X2 Certificates.

 

“Class A-4 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.2750%.

 

“Class A-4 Upper-Tier Regular Interest”, “Class A-4-X1 Upper-Tier Regular Interest” and “Class A-4-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-4 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.2750%.

 

“Class A-4-1 Certificate”: A Certificate designated as “Class A-4-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.7750%.

 

 -24-

 

 

“Class A-4-2 Certificate”: A Certificate designated as “Class A-4-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.2750%.

 

“Class A-4-X1 Certificate”: A Certificate designated as “Class A-4-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-1 Certificates.

 

“Class A-4-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-4-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

 

“Class A-4-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-4-X2 Certificate”:  A Certificate designated as “Class A-4-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-2 Certificates.

 

“Class A-4-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-4-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

 

“Class A-4-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5 Certificate”: A Certificate designated as “Class A-5” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5 Exchangeable Certificate”: Any of the Class A-5, Class A-5-1, Class A-5-2, Class A-5-X1 and Class A-5-X2 Certificates.

 

 -25-

 

 

“Class A-5 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5210%.

 

“Class A-5 Upper-Tier Regular Interest”, “Class A-5-X1 Upper-Tier Regular Interest” and “Class A-5-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-5 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.5210%.

 

“Class A-5-1 Certificate”: A Certificate designated as “Class A-5-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.0210%.

 

“Class A-5-2 Certificate”: A Certificate designated as “Class A-5-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.5210%.

 

“Class A-5-X1 Certificate”: A Certificate designated as “Class A-5-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-1 Certificates.

 

“Class A-5-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

 

“Class A-5-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5-X2 Certificate”:  A Certificate designated as “Class A-5-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

 -26-

 

 

“Class A-5-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-2 Certificates.

 

“Class A-5-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-5-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

 

“Class A-5-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-S Certificate”:  A Certificate designated as “Class A-S” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S Exchangeable Certificate”: Any of the Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1 and Class A-S-X2 Certificates.

 

“Class A-S Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.7530%.

 

“Class A-S Upper-Tier Regular Interest”, “Class A-S-X1 Upper-Tier Regular Interest” and “Class A-S-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-S UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class A-S Pass-Through Rate minus 1.0000%.

 

“Class A-S-1 Certificate”: A Certificate designated as “Class A-S-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class A-S UT Pass-Through Rate and the Class A-S-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class A-S-2 Certificate”: A Certificate designated as “Class A-S-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-2 Pass-Through Rate”: With respect to any Distribution Date, the Class A-S UT Pass-Through Rate for such Distribution Date.

 

 -27-

 

 

“Class A-S-X1 Certificate”: A Certificate designated as “Class A-S-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-1 Certificates.

 

“Class A-S-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-S-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

 

“Class A-S-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-S-X2 Certificate”: A Certificate designated as “Class A-S-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-2 Certificates.

 

“Class A-S-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-S-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

 

“Class A-S-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-SB Certificate”: A Certificate designated as “Class A-SB” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class A-SB Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5060%.

 

“Class A-SB Planned Principal Balance”: With respect to any Distribution Date, the planned principal amount for such Distribution Date specified in Schedule 2 hereto relating to the Class A-SB Certificates.

 

“Class B Certificate”: A Certificate designated as “Class B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

 -28-

 

 

“Class B Exchangeable Certificate”: Any of the Class B, Class B-1, Class B-2, Class B-X1 and Class B-X2 Certificates.

 

“Class B Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.8850%.

 

“Class B Upper-Tier Regular Interest”, “Class B-X1 Upper-Tier Regular Interest” and “Class B-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class B UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class B Pass-Through Rate minus 1.0000%.

 

“Class B-1 Certificate”: A Certificate designated as “Class B-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class B UT Pass-Through Rate and the Class B-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class B-2 Certificate”: A Certificate designated as “Class B-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-2 Pass-Through Rate”: With respect to any Distribution Date, the Class B UT Pass-Through Rate for such Distribution Date.

 

“Class B-X1 Certificate”: A Certificate designated as “Class B-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-1 Certificates.

 

“Class B-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class B-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

 

“Class B-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

 -29-

 

 

“Class B-X2 Certificate”: A Certificate designated as “Class B-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-2 Certificates.

 

“Class B-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class B-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

 

“Class B-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C Certificate”:  A Certificate designated as “Class C” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C Exchangeable Certificate”: Any of the Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates.

 

“Class C Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

“Class C Upper-Tier Regular Interest”, “Class C-X1 Upper-Tier Regular Interest” and “Class C-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class C UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class C Pass-Through Rate minus 1.0000%.

 

“Class C-1 Certificate”: A Certificate designated as “Class C-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class C UT Pass-Through Rate and the Class C-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class C-2 Certificate”: A Certificate designated as “Class C-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

 -30-

 

 

“Class C-2 Pass-Through Rate”: With respect to any Distribution Date, the Class C UT Pass-Through Rate for such Distribution Date.

 

“Class C-X1 Certificate”: A Certificate designated as “Class C-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-1 Certificates.

 

“Class C-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

 

“Class C-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C-X2 Certificate”: A Certificate designated as “Class C-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-2 Certificates.

 

“Class C-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class C-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

 

“Class C-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class D Certificate”:  A Certificate designated as “Class D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5000%.

 

“Class E Certificate”: A Certificate designated as “Class E” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class E Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5000%.

 

 -31-

 

 

“Class F Certificate”: A Certificate designated as “Class F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class F Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.2500%.

 

“Class G Certificate”: A Certificate designated as “Class G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class G Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.2500%.

 

“Class H Certificate”: A Certificate designated as “Class H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class H Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.2500%.

 

“Class J Certificate”: A Certificate designated as “Class J” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class J Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.2500%.

 

“Class LA1 Uncertificated Interest”, “Class LA2 Uncertificated Interest”, “Class LA3 Uncertificated Interest”, “Class LASB Uncertificated Interest”, “Class LA4 Uncertificated Interest”, “Class LA5 Uncertificated Interest”, “Class LAS Uncertificated Interest”, “Class LB Uncertificated Interest”, “Class LC Uncertificated Interest”, “Class LD Uncertificated Interest”, “Class LE Uncertificated Interest”, “Class LF Uncertificated Interest”, “Class LG Uncertificated Interest”, “Class LH Uncertificated Interest” and “Class LJ Uncertificated Interest”:  Each, an uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LR Interest”:  The uncertificated residual interest in the Lower-Tier REMIC, represented by the Class R Certificates.

 

“Class Percentage Interest”: With respect to each Class of Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class A-4 Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has an “A-4” designation), the Certificate Balance of the Class A-5 Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has an “A-5” designation), the Certificate Balance of the Class A-S Upper-Tier Regular Interest (if such Class of

 

 -32-

 

 

Exchangeable Certificates has an “A-S” designation), the Certificate Balance of the Class B Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has a “B” designation) or the Certificate Balance of the Class C Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has a “C” designation).

 

The initial Class Percentage Interest of each Class of Exchangeable Certificates in each of the Corresponding Exchangeable Upper-Tier Regular Interests is set forth below:

 

Class of Exchangeable Certificates	Class Percentage Interest in the Class A-4 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-4-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-4-X2 Upper-Tier Regular Interest
Class A-4 Certificates	100%	100%	100%
Class A-4-1 Certificates	0%	N/A	0%
Class A-4-2 Certificates	0%	N/A	N/A
Class A-4-X1 Certificates	N/A	0%	N/A
Class A-4-X2 Certificates	N/A	0%	0%

Class of Exchangeable Certificates	Class Percentage Interest in the Class A-5 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-5-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-5-X2 Upper-Tier Regular Interest
Class A-5 Certificates	100%	100%	100%
Class A-5-1 Certificates	0%	N/A	0%
Class A-5-2 Certificates	0%	N/A	N/A
Class A-5-X1 Certificates	N/A	0%	N/A
Class A-5-X2 Certificates	N/A	0%	0%

Class of Exchangeable Certificates	Class Percentage Interest in the Class A-S Upper-Tier Regular Interest	Class Percentage Interest in the Class A-S-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-S-X2 Upper-Tier Regular Interest
Class A-S Certificates	100%	100%	100%
Class A-S-1 Certificates	0%	N/A	0%
Class A-S-2 Certificates	0%	N/A	N/A
Class A-S-X1 Certificates	N/A	0%	N/A
Class A-S-X2 Certificates	N/A	0%	0%

Class of Exchangeable Certificates	Class Percentage Interest in the Class B Upper-Tier Regular Interest	Class Percentage Interest in the Class B-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class B-X2 Upper-Tier Regular Interest
Class B Certificates	100%	100%	100%
Class B-1 Certificates	0%	N/A	0%
Class B-2 Certificates	0%	N/A	N/A
Class B-X1 Certificates	N/A	0%	N/A

 

 -33-

 

 

Class B-X2 Certificates N/A 0% 0%

Class of Exchangeable Certificates	Class Percentage Interest in the Class C Upper-Tier Regular Interest	Class Percentage Interest in the Class C-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class C-X2 Upper-Tier Regular Interest
Class C Certificates	100%	100%	100%
Class C-1 Certificates	0%	N/A	0%
Class C-2 Certificates	0%	N/A	N/A
Class C-X1 Certificates	N/A	0%	N/A
Class C-X2 Certificates	N/A	0%	0%

 

“Class R Certificate”:  A Certificate designated as “Class R” on the face thereof in the form of Exhibit A-2 hereto, and evidencing the sole class of “residual interests” in each Trust REMIC for purposes of the REMIC Provisions.

 

“Class UR Interest”:  The uncertificated residual interest in the Upper-Tier REMIC, represented by the Class R Certificates.

 

“Class V Certificate”:  A Certificate designated as “Class V” on the face thereof in substantially the form set forth in Exhibit A-3 and designated as a Class V Certificate, and evidencing undivided beneficial ownership of the Class V Specific Grantor Trust Assets.

 

“Class V Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of a portion of any Excess Interest equal to the product of (A) the Non-Retained Percentage and (B) the aggregate amount of Excess Interest received on or prior to the related Determination Date, related amounts in the Excess Interest Distribution Account and the proceeds thereof, beneficial ownership of which is represented by the Class V Certificates.

 

“Class X Certificates”: The Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H or Class X-J Certificates, as the context may require.

 

“Class X-A Certificate”: A Certificate designated as “Class X-A” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests.

 

“Class X-A Pass-Through Rate”: The Pass-Through Rate for the Class X-A Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1 and Class A-5-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional

 

 -34-

 

 

Amounts of any Exchangeable Upper-Tier IO Regular Interests from the denominator of such weighted average calculation). The Pass-Through Rate applicable to the Class X-A Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-B Certificate”: A Certificate designated as “Class X-B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-B Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-S Upper-Tier Regular Interest and the Class B Upper-Tier Regular Interest.

 

“Class X-B Pass-Through Rate”: The Pass-Through Rate for the Class X-B Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class A-S, Class A-S-X1, Class A-S-X2, Class B, Class B-X1 and Class B-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional Amounts of any Exchangeable Upper-Tier IO Regular Interests in the denominator of such weighted average calculation).  The Pass-Through Rate applicable to the Class X-B Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-D Certificate”: A Certificate designated as “Class X-D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-D Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class D and Class E Certificates.

 

“Class X-D Pass-Through Rate”: The Pass-Through Rate for the Class X-D Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class D and Class E Certificates for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances immediately prior to the Distribution Date. The Pass-Through Rate applicable to the Class X-D Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-F Certificate”: A Certificate designated as “Class X-F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-F Notional Amount”: As of any date of determination, the Certificate Balance of the Class F Certificates. 

“Class X-F Pass-Through Rate”: The Pass-Through Rate for the Class X-F Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class F Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-F Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

 -35-

 

 

“Class X-G Certificate”: A Certificate designated as “Class X-G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-G Notional Amount”: As of any date of determination, the Certificate Balance of the Class G Certificates. 

“Class X-G Pass-Through Rate”: The Pass-Through Rate for the Class X-G Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class G Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-G Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-H Certificate”: A Certificate designated as “Class X-H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-H Notional Amount”: As of any date of determination, the Certificate Balance of the Class H Certificates. 

“Class X-H Pass-Through Rate”: The Pass-Through Rate for the Class X-H Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class H Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-H Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-J Certificate”: A Certificate designated as “Class X-J” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-J Notional Amount”: As of any date of determination, the Certificate Balance of the Class J Certificates. 

“Class X-J Pass-Through Rate”: The Pass-Through Rate for the Class X-J Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class J Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-J Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Clearing Agency”:  An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be DTC.

 

“Clearstream”:  Clearstream Banking, Luxembourg or any successor thereto.

 

“Closing Date”:  December 22, 2021.

 

“CMBS”:  Commercial mortgage-backed securities.

 

“Code”:  The Internal Revenue Code of 1986, as amended from time to time, and applicable final or temporary regulations of the U.S. Department of the Treasury issued pursuant thereto.

 

“Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, shall be an amount, calculated by the applicable Special Servicer (other than with respect to any Non-Serviced Mortgage Loan) or the applicable Master Servicer (with respect to any Non-Serviced Mortgage Loan), equal to the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes

 

 -36-

 

 

included therein), over (ii) the sum of (in the case of a Whole Loan, solely to the extent allocable to the subject Mortgage Loan) (x) the most recent Appraised Value for the related Mortgaged Property or Mortgaged Properties, plus (y) solely to the extent not reflected or taken into account in such Appraised Value (or in the calculation of any related Appraisal Reduction Amount) and to the extent on deposit with, or otherwise under the control of, the lender as of the date of such determination, any capital or additional collateral contributed by the related Mortgagor at the time the Mortgage Loan became (and as part of the modification related thereto) such AB Modified Loan for the benefit of the related Mortgaged Property or Mortgaged Properties (provided that in the case of a Non-Serviced Mortgage Loan, the amounts set forth in this clause (y) will be taken into account solely to the extent relevant information is received by the applicable Master Servicer), plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y) and solely to the extent not reflected or taken into account in the calculation of any related Appraisal Reduction Amount) held by the lender in respect of such AB Modified Loan as of the date of such determination, which such excess, for the avoidance of doubt, will be determined separately from and exclude any related Appraisal Reduction Amounts. The applicable Master Servicer, the Operating Advisor (unless a Control Termination Event has occurred and is continuing and the applicable Special Servicer has calculated any such Collateral Deficiency Amount) and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Collateral Deficiency Amount (other than with respect to a Non-Serviced Mortgage Loan). The applicable Special Servicer and the Operating Advisor shall be entitled to conclusively rely on the applicable Master Servicer’s calculation of any Collateral Deficiency Amount with respect to a Non-Serviced Mortgage Loan.

 

With respect to any Collateral Deficiency Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with this definition shall be determined on an “as-is” basis.

 

“Collection Account”:  A segregated custodial account or accounts created and maintained by each Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the benefit of the Certificateholders, which, with respect to the Master Servicer, shall be entitled “Wells Fargo Bank, National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Collection Account” and, with respect to the NCB Master Servicer, shall be entitled “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Collection Account”. Any such account or accounts shall be an Eligible Account. Subject to the related Intercreditor Agreement and taking into account that each Companion Loan is subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan to the extent set forth in the related Intercreditor Agreement, the subaccount described in the second paragraph of Section 3.04(b) that is part of the applicable Collection Account shall be for the benefit of the related Serviced Companion Noteholders, to the extent funds on deposit in such subaccount are attributed to such Companion Loans and shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust.

 

 -37-

 

 

“Collection Period”: With respect to any Distribution Date and any Mortgage Loan (including any Companion Loan), the period beginning with the day after the Determination Date in the month preceding the month in which such Distribution Date occurs (or, in the case of the first Distribution Date, commencing immediately following the Cut-off Date) and ending with the Determination Date occurring in the month in which such Distribution Date occurs.

 

“Commission”:  The Securities and Exchange Commission.

 

“Companion Distribution Account”: With respect to any Serviced Companion Loan, the separate account created and maintained by the Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the Serviced Companion Noteholders, which shall be entitled “Wells Fargo Bank, National Association, as Companion Paying Agent, for the benefit of the Serviced Companion Noteholders of the Serviced Companion Loans, relating to the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Companion Distribution Account”. The Companion Distribution Account shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Serviced Companion Noteholders. Any such account shall be an Eligible Account. Notwithstanding the foregoing, if the General Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

 

“Companion Holders”:  Each of the holders of record of any Companion Loan.

 

“Companion Loan(s)”: The One North Wacker Pari Passu Companion Loans, the Park Avenue Plaza Pari Passu Companion Loans, the CX – 350 & 450 Water Street Pari Passu Companion Loans, the 1201 Lake Robbins Pari Passu Companion Loans and any AB Subordinate Companion Loan.

 

“Companion Loan Rating Agency”: Any NRSRO rating any class of Serviced Pari Passu Companion Loan Securities.

 

“Companion Paying Agent”:  With respect to the Serviced Companion Loans, if any, the General Master Servicer in its role as Companion Paying Agent appointed pursuant to Section 3.27.

 

“Compensating Interest Payments”: With respect to each Master Servicer, an aggregate amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments received in respect of the Mortgage Loans (other than Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer and any related Serviced Pari Passu Companion Loans (in each case other than any Specially Serviced Loan or any Mortgage Loan or related Serviced Pari Passu Companion Loan on which the applicable Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of such Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Serviced Mortgage Loan, Serviced Pari Passu Companion Loan and REO Loan (excluding any portion thereof related to a Subordinate Companion Loan) for which such Master Servicer is acting as Master Servicer for which Servicing Fees are being paid

 

 -38-

 

 

to such Master Servicer in such Collection Period, calculated at a rate of 0.0025% per annum, (B) all Prepayment Interest Excesses received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) (and, so long as a Serviced Whole Loan is serviced hereunder, any related Serviced Pari Passu Companion Loan) for which such Master Servicer is acting as Master Servicer subject to such prepayment and (C) to the extent earned on voluntary principal prepayments, net investment earnings payable to such Master Servicer for such Collection Period received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment.  In no event will the rights of the Certificateholders to the offset of the aggregate Prepayment Interest Shortfalls be cumulative. However, if a Prepayment Interest Shortfall occurs with respect to a Mortgage Loan as a result of the applicable Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) a Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan is a Specially Serviced Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the applicable Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y)(i) at the request or with the consent of the applicable Special Servicer or, (ii) for so long as no Control Termination Event has occurred and is continuing and, other than with respect to an Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, at the request or with the consent of the Directing Certificateholder, or (Z) in connection with the payment of any Insurance and Condemnation Proceeds), then for purposes of calculating the Compensating Interest Payment for the related Distribution Date, such Master Servicer shall pay, without regard to clause (ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments. No Master Servicer shall be required to make any Compensating Interest Payment as a result of any prepayments on Mortgage Loans or Companion Loans for which it does not act as Master Servicer or on any AB Subordinate Companion Loan.

 

For the avoidance of doubt, Compensating Interest Payments attributable to a Serviced Whole Loan shall be allocated among the related Mortgage Loan and the related Serviced Pari Passu Companion Loan(s), pro rata, in accordance with their respective principal balances.

 

“Consultation Termination Event”: At any date at which (i) no Class of Control Eligible Certificates exists where such Class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that Class, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts; or (ii) a Holder of the Class H Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant Section 3.23(l); provided that no Consultation Termination Event resulting solely from the operation of clause (ii) shall be deemed to have existed or be in continuance with respect to a successor Holder of the Class H Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder; provided, further, that no Consultation Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and

 

 -39-

 

 

the term “Consultation Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Consultation Termination Event shall be deemed not continuing in the event that the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans.

 

“Consumer Price Index for All Urban Consumers”: The “Consumer Price Index for All Urban Consumers” as published by the U.S. Department of Labor.

 

“Control Eligible Certificates”: Any of the Class H or Class J Certificates.

 

“Control Termination Event”:  The occurrence of (i) the Certificate Balance of the Class H Certificates (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class in accordance with Section 4.05(a)) being reduced to less than 25% of the Original Certificate Balance of such Class or (ii) a Holder of the Class H Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant to Section 3.23(l); provided, that no Control Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Control Termination Event shall be deemed not continuing in the event that the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans.

 

“Controlling Class”:  As of any date of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has an aggregate Certificate Balance as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a), at least equal to 25% of the Original Certificate Balance of that Class; provided, that if at any time the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans, then the Controlling Class shall be the most subordinate Class among the Control Eligible Certificates that has a Certificate Balance greater than zero without regard to any Cumulative Appraisal Reduction Amounts. The Controlling Class as of the Closing Date will be the Class J Certificates. The Control Eligible Certificates shall not include the RR Interest and the RR Interest shall not be permitted to be a Controlling Class.

 

“Controlling Class Certificateholders”: Each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto.  The Depositor, the Trustee, any Master Servicer, any Special Servicer or the Operating Advisor may from time to time request (the cost of which being an expense of the Trust) that the Certificate Administrator provide a list of the Holders (or Certificate Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Depositor, Trustee, Master

 

 -40-

 

 

Servicer, Operating Advisor or Special Servicer, as applicable. The Trustee, each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor shall be entitled to rely on any such list so provided.

 

“Conveyed Property”: As defined in Section 2.01(a).

 

“Corporate Trust Office”:  The principal corporate trust office of the Trustee and the Certificate Administrator at which at any particular time its corporate trust business with respect to this Agreement shall be administered, which office at the date of the execution of this Agreement is located (i) with respect to Certificate transfers and surrenders, at 600 South 4th Street, 7th Floor, Minneapolis, Minnesota 55415; (ii) with respect to the Trustee at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee BANK 2021-BNK38; and (iii) for all other purposes, to the Certificate Administrator at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS), BANK 2021-BNK38.

 

“Corrected Loan”:  Any Specially Serviced Loan that has become current and remained current for three (3) consecutive Periodic Payments (for such purposes taking into account any modification or amendment of the related Mortgage Loan or Companion Loan, as applicable, whether by a consensual modification or in connection with a bankruptcy, insolvency or similar proceeding involving the Mortgagor), and (provided that no other Servicing Transfer Event has occurred with respect to such Mortgage Loan or Companion Loan during such preceding three (3) months, no additional event of default is foreseeable in the reasonable judgment of the applicable Special Servicer and no other event or circumstance exists that causes such Mortgage Loan or Companion Loan, as applicable, to otherwise constitute a Specially Serviced Loan) the servicing of which the applicable Special Servicer has returned to the applicable Master Servicer pursuant to Section 3.19(a).

 

“Corresponding Exchangeable Upper-Tier Regular Interests”: With respect to each Class of Exchangeable Certificates, the Exchangeable Upper-Tier Regular Interests set forth next to it in the table below.

 

 -41-

 

 

Class of Exchangeable Certificates	Corresponding Exchangeable Upper-Tier Regular Interests
Class A-4	Class A-4, Class A-4-X1, Class A-4-X2
Class A-4-1	Class A-4, Class A-4-X2
Class A-4-2	Class A-4
Class A-4-X1	Class A-4-X1
Class A-4-X2	Class A-4-X1, Class A-4-X2
Class A-5	Class A-5, Class A-5-X1, Class A-5-X2
Class A-5-1	Class A-5, Class A-5-X2
Class A-5-2	Class A-5
Class A-5-X1	Class A-5-X1
Class A-5-X2	Class A-5-X1, Class A-5-X2
Class A-S	Class A-S, Class A-S-X1, Class A-S-X2
Class A-S-1	Class A-S, Class A-S-X2
Class A-S-2	Class A-S
Class A-S-X1	Class A-S-X1
Class A-S-X2	Class A-S-X1, Class A-S-X2
Class B	Class B, Class B-X1, Class B-X2
Class B-1	Class B, Class B-X2
Class B-2	Class B
Class B-X1	Class B-X1
Class B-X2	Class B-X1, Class B-X2
Class C	Class C, Class C-X1, Class C-X2
Class C-1	Class C, Class C-X2
Class C-2	Class C
Class C-X1	Class C-X1
Class C-X2	Class C-X1, Class C-X2

 

“COVID Forbearance Fees”: As defined in Section 3.18(a).

 

“CREFC^®”:  The Commercial Real Estate Finance Council^®, or any successor organization reasonably acceptable to the Certificate Administrator, each Master Servicer, each Special Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

 

“CREFC^® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

 -42-

 

 

“CREFC^® Bond Level File”: The data file in the “CREFC^® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Collateral Summary File”: The data file in the “CREFC^® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Delinquent Loan Status Report”: The monthly report in the “Delinquent Loan Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Financial File”: The data file in the “CREFC^® Financial File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”:  The monthly report in the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan) and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the CREFC^® Intellectual Property Royalty License Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO Loan as of the close of business on the Distribution Date in such

 

 -43-

 

 

Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan or REO Loan is computed and shall be prorated for partial periods.  For the avoidance of doubt, the CREFC^® Intellectual Property Royalty License Fee shall be deemed payable by each applicable Master Servicer from the Lower-Tier REMIC.

 

“CREFC^® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and REO Loan (but excluding any related Companion Loan), a rate equal to 0.00050% per annum. 

 

“CREFC^® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Investor Reporting Package”: The collection of reports specified by the CREFC^® from time to time as the “CREFC^® Investor Reporting Package.” As of the Closing Date, the CREFC^® Investor Reporting Package contains eight (8) electronic files ((1) CREFC^® Loan Setup File, (2) CREFC^® Loan Periodic Update File, (3) CREFC^® Property File, (4) CREFC^® Bond Level File, (5) CREFC^® Collateral Summary File, (6) CREFC^® Financial File, (7) CREFC^® Special Servicer Loan File and (8) CREFC^® Schedule AL File (with respect to the General Master Servicer)) and eleven (11) surveillance reports ((1) CREFC^® Servicer Watch List, (2) CREFC^® Delinquent Loan Status Report, (3) CREFC^® REO Status Report, (4) CREFC^® Comparative Financial Status Report, (5) CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (6) CREFC^® Operating Statement Analysis Report, (7) CREFC^® Servicer Remittance to Certificate Administrator, (8) CREFC^® Significant Insurance Event Report, (9) CREFC^® NOI Adjustment Worksheet, (10) CREFC^® Loan Level Reserve/LOC Report and (11) with respect to Mortgage Loans that have a Companion Loan, as applicable, the CREFC^® Total Loan Report). In addition, the CREFC^® Investor Reporting Package shall include the CREFC^® Advance Recovery Report. In addition, the CREFC^® Investor Reporting Package shall include the following nine (9) templates: (1) CREFC^® Appraisal Reduction Template, (2) CREFC^® Servicer Realized Loss Template, (3) CREFC^® Reconciliation of Funds Template, (4) CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template, (5) CREFC^® Historical Liquidation Loss Template, (6) CREFC^® Interest Shortfall Reconciliation Template, (7) CREFC^® Loan Modification Report, (8) CREFC^® Loan Liquidation Report and (9) CREFC^® REO Liquidation Report. The CREFC^® Investor Reporting Package shall be substantially in the form of, and containing the information called for in, the downloadable forms of the “CREFC^® IRP” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information or reports as may from time to time be approved by the CREFC^® for CMBS transactions generally. For the purposes of the production of the CREFC^® Comparative Financial Status Report by the applicable Master Servicer or the applicable Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by any Master Servicer, by the applicable Special Servicer (if other than such Master Servicer or an Affiliate thereof) and (y) in the case of

 

 -44-

 

 

such a report produced by any Special Servicer, by the applicable Master Servicer (if other than such Special Servicer or an Affiliate thereof).

 

“CREFC^® License Agreement”: The License Agreement, in the form set forth on the website of CREFC^® on the Closing Date, relating to the use of the CREFC^® trademarks and trade names.

 

“CREFC^® Loan Level Reserve/LOC Report”: The monthly report in the “CREFC^® Loan Level Reserve/LOC Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Modification Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Periodic Update File”: The data file in the “CREFC^® Loan Periodic Update File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Setup File”: The data file in the “CREFC^® Loan Setup File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® NOI Adjustment Worksheet”: The worksheet in the “NOI Adjustment Worksheet” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Operating Statement Analysis Report”: The report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

 -45-

 

 

“CREFC^® Property File”: The data file in the “CREFC^® Property File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® REO Status Report”: The monthly report in the “REO Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Schedule AL File”: The data file in the “Schedule AL File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally; provided that the Depositor has confirmed in writing to each Master Servicer and the Certificate Administrator that any change to such “Schedule AL File” format complies with the requirements of Item 1125 of Regulation AB.

 

“CREFC^® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Remittance to Certificate Administrator”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Remittance to Certificate Administrator” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Watch List”: A monthly report, as of each Determination Date, including and identifying each Non-Specially Serviced Loan satisfying the “CREFC^® Portfolio Review Guidelines” approved from time to time by the CREFC^® in the “CREFC^® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally. 

 

 -46-

 

 

“CREFC^® Significant Insurance Event Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Significant Insurance Event Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Special Servicer Loan File”: The data file in the “CREFC^® Special Servicer Loan File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Total Loan Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC^® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be adopted by the CREFC^® for CMBS transactions and is reasonably acceptable to each applicable Master Servicer.

 

“CREFC^® Website”:  The CREFC^® Website located at “www.crefc.org” or such other primary website as the CREFC^® may establish for dissemination of its report forms.

 

“Cross-Over Date”:  The Distribution Date on which the Certificate Balances of the Subordinate Certificates (other than the Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates) and the Class A-S Upper-Tier Regular Interest, Class B Upper-Tier Regular Interest and Class C Upper-Tier Regular Interest have all previously been reduced to zero as a result of the allocation of Realized Losses to such Certificates.

 

“Crossed Mortgage Loan Group”: With respect to (i) any mortgage loan that consists of more than one commercial mortgage loan, the underlying group of loans that are cross-collateralized and cross-defaulted with each other and (ii) any two (2) or more individual mortgage loans that are cross-collateralized and cross-defaulted with each other, such cross-collateralized and cross-defaulted mortgage loans. There is no Crossed Mortgage Loan Group related to the Trust.

 

“Crossed Underlying Loan”:  With respect to any Crossed Mortgage Loan Group, a mortgage loan that is cross-collateralized and cross-defaulted with one or more other mortgage loans within such Crossed Mortgage Loan Group. There is no Crossed Underlying Loan related to the Trust.

 

“Crossed Underlying Loan Repurchase Criteria”: With respect to any Crossed Mortgage Loan Group as to which one or more (but not all) of the Crossed Underlying Loans therein are affected by a Material Defect (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Material Defect, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the debt service coverage ratio for all the remaining Crossed Underlying Loans for the four (4) most recently reported calendar quarters preceding the repurchase or substitution shall not be less

 

 -47-

 

 

than the least of (a) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or replacement and (c) 1.25x, (ii) the loan-to-value ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the applicable Special Servicer at the expense of the related Mortgage Loan Seller shall not be greater than the greatest of (a) the loan-to-value ratio, expressed as a whole number percentage (taken to one (1) decimal place), for the entire Crossed Mortgage Loan Group, (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the loan-to-value ratio, expressed as a whole number percentage (taken to one (1) decimal place), for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s) at the time of repurchase or substitution, and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, shall have furnished the Trustee and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Underlying Loan to become not cross-collateralized and cross-defaulted with the remaining related Crossed Underlying Loans prior to such repurchase or substitution or otherwise forbears from exercising enforcement rights against the Primary Collateral for any Crossed Underlying Loan(s) remaining in the Trust (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust) and (v) (other than with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder shall have consented to the repurchase or substitution of the affected Crossed Underlying Loan, which consent shall not be unreasonably withheld, conditioned or delayed.

 

“Cumulative Appraisal Reduction Amount”: As of any date of determination, the sum of (i) all Appraisal Reduction Amounts then in effect, and (ii) with respect to any AB Modified Loan, any Collateral Deficiency Amount then in effect. The applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount with respect to a Serviced Mortgage Loan. With respect to a Non-Serviced Mortgage Loan the applicable Special Servicer, the applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the calculation or determination of any Appraisal Reduction Amount or Collateral Deficiency Amount with respect to such Mortgage Loan performed by the applicable servicer responsible therefor pursuant to the related Non-Serviced PSA.

 

“Cure/Contest Period”: As defined in Section 12.01(b)(vii).

 

“Custodial Exception Report”: As defined in Section 2.02(b).

 

“Custodian”:  A Person who is at any time appointed by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files, which Person shall not be the Depositor, any of the Mortgage Loan Sellers or (except to the extent Computershare Trust Company, National Association is the Custodian) an Affiliate of any of them. The Certificate Administrator shall be the initial Custodian. Computershare Trust Company, National Association

 

 -48-

 

 

will perform its duties as Custodian hereunder through its Document Custody division, including, as applicable, any agents or affiliates utilized thereby.

 

“Cut-off Date”:  With respect to each Mortgage Loan, the related Due Date of such Mortgage Loan in December 2021, or with respect to any Mortgage Loan that has its first Due Date after December 2021, the date that would have otherwise been the related Due Date in December 2021.

 

“Cut-off Date Balance”:  With respect to any Mortgage Loan, the outstanding principal balance of such Mortgage Loan, as of the Cut-off Date, after application of all payments of principal due on or before such date, whether or not received.

 

“CX – 350 & 450 Water Street Intercreditor Agreement”: That certain Co-Lender Agreement, dated as of October 14, 2021, between the holders of the respective promissory notes evidencing the CX – 350 & 450 Water Street Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“CX – 350 & 450 Water Street Mortgage Loan”: With respect to the CX – 350 & 450 Water Street Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 3 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-2-3 and A-2-4.

 

“CX – 350 & 450 Water Street Mortgage Property”: The Mortgaged Property that secures the CX – 350 & 450 Water Street Whole Loan.

 

“CX – 350 & 450 Water Street Pari Passu Companion Loans”: With respect to the CX – 350 & 450 Water Street Whole Loan, the Companion Loans evidenced by the related promissory notes A-1-1, A-1-2, A-1-3, A-1-4, A-1-5, A-1-6, A-1-7, A-1-8, A-1-9, A-2-1, A-2-2, A-2-5, A-3-1, A-3-2, A-3-3, A-4-1, A-4-2 and A-4-3 and made by the related Mortgagor and secured by the Mortgage on the CX – 350 & 450 Water Street Mortgaged Property.

 

“CX – 350 & 450 Water Street Subordinate Companion Loans”: With respect to the CX – 350 & 450 Water Street Whole Loan, the Companion Loans evidenced by the related promissory notes B-1, B-2, B-3 and B-4 and made by the related Mortgagor and secured by the Mortgage on the CX – 350 & 450 Water Street Mortgaged Property.

 

“CX – 350 & 450 Water Street Whole Loan”: The CX – 350 & 450 Water Street Mortgage Loan, together with the CX – 350 & 450 Water Street Pari Passu Companion Loans and the CX – 350 & 450 Water Street Subordinate Companion Loans, each of which is secured by the same Mortgage on the CX – 350 & 450 Water Street Mortgaged Property. References herein to the CX – 350 & 450 Water Street Whole Loan shall be construed to refer to the aggregate indebtedness under the CX – 350 & 450 Water Street Mortgage Loan, the CX – 350 & 450 Water Street Pari Passu Companion Loans and the CX – 350 & 450 Water Street Subordinate Companion Loans.

 

“DBRS Morningstar”: DBRS, Inc., and its successors in interest. If neither DBRS Morningstar nor any successor remains in existence, “DBRS Morningstar” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor,

 

 -49-

 

 

notice of which designation shall be given to the Trustee, the Certificate Administrator, each applicable Master Servicer, the Directing Certificateholder and each applicable Special Servicer and specific ratings of DBRS Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Default Interest”:  With respect to any Mortgage Loan or Companion Loan and any Collection Period, all interest accrued in respect of such Mortgage Loan or Companion Loan during such Collection Period provided for in the related Mortgage Note or Mortgage as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate accrued on the unpaid principal balance of such Mortgage Loan or Companion Loan outstanding from time to time.

 

“Defaulted Loan”:  A Serviced Mortgage Loan or a Serviced Whole Loan (other than a Serviced Mortgage Loan or Serviced Whole Loan that is subject to a Payment Accommodation, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation) and (i) that is delinquent at least sixty (60) days in respect of its Periodic Payments (other than a Balloon Payment) or in respect of its Balloon Payment, if any; provided that in respect of a Balloon Payment, such period will be one hundred-twenty (120) days if the related Mortgagor has provided the applicable Master Servicer or applicable Special Servicer, as applicable, with a written and fully executed (subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, as applicable (and such Master Servicer or Special Servicer, as applicable, shall promptly forward such documentation to the Directing Certificateholder); and such delinquency is to be determined without giving effect to any Grace Period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which the applicable Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Loan”.

 

“Defeasance Accounts”:  As defined in Section 3.18(j).

 

“Defect”:  As defined in Section 2.02(f).

 

“Deficient Exchange Act Deliverable”: With respect to a Master Servicer, a Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than an Initial Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

 

 -50-

 

 

“Deficient Valuation”:  With respect to any Mortgage Loan or Serviced Whole Loan, as applicable, a valuation by a court of competent jurisdiction of the related Mortgaged Property in an amount less than the then-outstanding principal balance of such Mortgage Loan or Serviced Whole Loan which valuation results from a proceeding initiated under the Bankruptcy Code.

 

“Definitive Certificate”:  Any Certificate in definitive, fully registered form without interest coupons.  Initially, the Class R Certificates, the Class V Certificates, the RR Interest and any Certificate issued pursuant to Section 5.02(c) and Section 5.02(d) shall be Definitive Certificates. For the avoidance of doubt, any RR Interest shall at all times during the RR Interest Transfer Restriction Period be a Definitive Certificate.

 

“Delinquent Loan”: A Mortgage Loan that is delinquent at least sixty (60) days in respect of its Periodic Payments or Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any Grace Period. For the avoidance of doubt, a delinquency that would have existed but for a Payment Accommodation shall not constitute a delinquency for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

 

“Denomination”:  With respect to any Certificate or any beneficial interest in a Certificate the amount (i) (a) set forth on the face thereof or set forth on a schedule attached thereto (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) or (b) in the case of any beneficial interest in a Book-Entry Certificate, the interest of the related Certificate Owner in the applicable Class of Certificates as reflected on the books and records of the Depository or related Depository Participant, as applicable, (ii) expressed in terms of initial Certificate Balance or initial Notional Amount, as applicable, and (iii) in an authorized denomination, as set forth in Section 5.01(a).

 

“Depositor”:  Morgan Stanley Capital I Inc., a Delaware corporation, or its successor in interest.

 

“Depository”:  DTC, or any successor Depository hereafter named. The nominee of the initial Depository for purposes of registering those Certificates that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the UCC of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.

 

“Depository Participant”:  A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

“Designated Site”: The website to which Diligence Files are uploaded as designated by the Depositor to the Mortgage Loan Sellers.

 

“Determination Date”:  With respect to any Distribution Date, the eleventh (11^th) day of each calendar month (or, if the eleventh (11^th) calendar day of that month is not a Business Day, then the next Business Day), commencing in January 2022.

 

 -51-

 

 

“Diligence File”:  With respect to each Mortgage Loan or Companion Loan, if applicable, collectively the following documents in electronic format:

 

(a)          A copy of each of the following documents:

 

(i)        the Mortgage Note, endorsed on its face or by allonge attached to the Mortgage Note, without recourse, to the order of the Trustee or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)       the Mortgage, together with a copy of any intervening Assignments of Mortgage, in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iii)      any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iv)      all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

(v)       the policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

 

(vi)      any UCC financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(vii)     any Intercreditor Agreement relating to permitted debt of the Mortgagor, including any Intercreditor Agreement relating to a Serviced Whole Loan;

 

(viii)    any loan agreement, escrow agreement, security agreement or letter of credit relating to a Mortgage Loan or a Serviced Whole Loan;

 

(ix)       any ground lease, related ground lessor estoppel, indemnity or guaranty relating to a Mortgage Loan or a Serviced Whole Loan;

 

 -52-

 

 

(x)       other than with respect to the Mortgage Loans secured by residential cooperative properties, any property management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xi)      any franchise agreements and comfort letters or similar agreements relating to a Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of a Mortgage Loan or Serviced Whole Loan;

 

(xii)      any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xiii)     any related mezzanine intercreditor agreement;

 

(xiv)    all related environmental reports; and

 

(xv)     all related environmental insurance policies;

 

(b)          a copy of any engineering reports or property condition reports;

 

(c)          other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property) or a residential cooperative property, copies of a rent roll;

 

(d)          for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller;

 

(e)          a copy of all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller or an Affiliate thereof, and its counsel that are privileged communications or constitute legal or other due diligence analyses), if any, delivered in connection with the closing of the related Mortgage Loan;

 

(f)           a copy of all Mortgagor’s certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies (to the extent not previously included as part of this definition), if any, delivered in connection with the closing of the related Mortgage Loan;

 

(g)          a copy of the appraisal for the related Mortgaged Property or Mortgaged Properties;

 

(h)          for any Mortgage Loan that the related Mortgaged Property or Mortgaged Properties is leased to a single tenant, a copy of the lease;

 

(i)           a copy of the applicable Mortgage Loan Seller’s asset summary;

 

 -53-

 

 

(j)           a copy of all surveys for the related Mortgaged Property or Mortgaged Properties;

 

(k)          a copy of all zoning reports;

 

(l)           a copy of financial statements of the related Mortgagor;

 

(m)         a copy of operating statements for the related Mortgaged Property or Mortgaged Properties;

 

(n)          a copy of all UCC searches;

 

(o)          a copy of all litigation searches;

 

(p)          a copy of all bankruptcy searches;

 

(q)          a copy of any origination settlement statement;

 

(r)           a copy of the Insurance Summary Report;

 

(s)           a copy of the organizational documents of the related Mortgagor and any guarantor;

 

(t)           a copy of all escrow statements related to the escrow account balances as of the Mortgage Loan origination date;

 

(u)          a copy of all related environmental reports that were received by the applicable Mortgage Loan Seller;

 

(v)          a copy of any closure letter (environmental); and

 

(w)         a copy of any environmental remediation agreement for the related Mortgaged Property or Mortgaged Properties;

 

in each case, to the extent that the related originator received such documents in connection with the origination of such Mortgage Loan. In the event any of the items identified above were not included in connection with the origination of such Mortgage Loan (other than documents that would not be included in connection with the origination of the Mortgage Loan because such document is inapplicable to the origination of a Mortgage Loan of that structure or type), the Diligence File shall include a statement to that effect. No information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications shall constitute part of the Diligence File. It is generally not required to include any of the same items identified above again if such items have already been included under another clause of the definition of Diligence File, and the Diligence File shall include a statement to that effect. The Mortgage Loan Seller may, without any obligation to do so, include such other documents as part of the Diligence File that such Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform the Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified.

 

 -54-

 

 

“Directing Certificateholder”: (A) With respect to a Servicing Shift Mortgage Loan, the Directing Certificateholder shall be any related Loan-Specific Directing Certificateholder, and (B) with respect to each Mortgage Loan (other than a Servicing Shift Mortgage Loan that has a related Loan-Specific Directing Certificateholder), the initial Directing Certificateholder shall be KKR Real Estate Credit Opportunity Partners II L.P.  Thereafter, with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition, the Directing Certificateholder shall be the Controlling Class Certificateholder (or a representative thereof) selected by more than 50% of the Controlling Class Certificateholders (by Certificate Balance, as determined by the Certificate Registrar) from time to time; provided, that (i) absent that selection, or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt of a notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Directing Certificateholder is no longer designated, the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) will be the Directing Certificateholder; provided, that, in the case of this clause (iii), in the event that no one Holder owns the largest aggregate Certificate Balance of the Controlling Class, then there will be no Directing Certificateholder until appointed in accordance with the terms of this Agreement. After the occurrence and during the continuance of a Control Termination Event, the Directing Certificateholder with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition shall only retain its consultation rights to the extent specifically provided for herein. After the occurrence of a Consultation Termination Event, there will be no Directing Certificateholder with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition. The Depositor shall promptly provide the name and contact information for the initial Directing Certificateholder upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Directing Certificateholder has not changed until such parties receive written notice of a replacement of the Directing Certificateholder from a party holding the requisite interest in the Controlling Class (as confirmed by the Certificate Registrar), or the resignation of the then-current Directing Certificateholder. As used herein, the term “Directing Certificateholder,” unless used in relation to a Servicing Shift Mortgage Loan, means the entity determined pursuant to clause (B) of the first sentence of this definition.

 

“Directly Operate”:  With respect to any REO Property (except with respect to a Non-Serviced Mortgaged Property), the furnishing or rendering of services to the tenants thereof, that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for sale to customers, the use of such REO Property in a trade or business conducted by the Trust or on behalf of a Companion Holder or the performance of any construction work on the REO Property other than through an Independent Contractor; provided, however, that an REO Property shall not be considered to be Directly Operated solely because the Trustee (or the applicable Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

 -55-

 

 

“Disclosable Special Servicer Fees”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan (including any related REO Property), any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the applicable Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Mortgagor, any manager, any guarantor or indemnitor in respect of a Mortgage Loan or Serviced Companion Loan and any purchaser of any such Mortgage Loan or Serviced Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of such Mortgage Loan or Serviced Companion Loan, the management or disposition of any REO Property, and the performance by the applicable Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the applicable Special Servicer is entitled pursuant to this Agreement or any Non-Serviced PSA.

 

“Disclosure Parties”:  As defined in Section 3.13(f).

 

“Discount Rate”: As defined in Section 4.01(e).

 

“Dispute Resolution Consultation”: As defined in Section 2.03(l)(iii).

 

“Dispute Resolution Cut-off Date”: As defined in Section 2.03(l)(i).

 

“Disqualified Non-U.S. Tax Person”: With respect to the Class R Certificates, any Non-U.S. Tax Person or its agent other than (a) a Non-U.S. Tax Person that holds the Class R Certificates in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or (b) a Non-U.S. Tax Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificates to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificates will not be disregarded for federal income tax purposes.

 

“Disqualified Organization”:  Any of (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Freddie Mac, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person

 

 -56-

 

 

having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

“Distribution Accounts”:  Collectively, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account and the Excess Interest Distribution Account (and in each case any subaccount thereof), all of which may be subaccounts of a single Eligible Account.

 

“Distribution Date”:  The fourth (4th) Business Day following each Determination Date, beginning in January 2022. The initial Distribution Date shall be January 18, 2022.

 

“Distribution Date Statement”: As defined in Section 4.02(a).

 

“Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Article XI of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction. For the avoidance of doubt, as of the Closing Date, no parties appear on the Do Not Hire List.

 

“Dodd-Frank Act”: The Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended from time to time.

 

“DTC”:  The Depository Trust Company, a New York corporation.

 

“Due Date”:  With respect to (i) any Mortgage Loan or Companion Loan, as applicable, on or prior to its Maturity Date, the day of the month set forth in the related Mortgage Note on which each Periodic Payment thereon is scheduled to be first due, (ii) any Mortgage Loan or Companion Loan, as applicable, after the Maturity Date therefor, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on such Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due, and (iii) any REO Loan, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on the related Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due.

 

“EDGAR”:  As defined in Section 11.03.

 

“EDGAR-Compatible Format”: With respect to (a) the CREFC^® Schedule AL File and the Schedule AL Additional File, XML format or such other format as mutually agreed to between the Depositor, Certificate Administrator and each applicable Master Servicer and (b) any report, file or document other than those listed in clause (a) above, any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.

 

 -57-

 

 

“Eligible Account”:  Any of the following: (i) a segregated account or accounts maintained with a federal or state chartered depository institution or trust company (including the Trustee or the Certificate Administrator), (A) the long-term deposit rating or long-term unsecured debt obligations or deposits of which are rated at least “A-” by S&P, if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “A-1” from S&P, if the deposits are to be held in such account for less than thirty (30) days and (B) the long-term unsecured debt obligations or deposits of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days; (ii) an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long-term unsecured debt rating shall be at least “BBB” from S&P and “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt rating shall be at least “A-1” from S&P (or “A-2” by S&P so long as the long-term unsecured debt obligations of such depository institution or trust company are rated no less than “BBB” by S&P) and “F1” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less); (iii) an account or accounts maintained with Midland Loan Services, a Division of PNC Bank, National Association so long as such entity’s long-term unsecured debt rating shall be at least “BBB” from S&P and “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) or Midland Loan Services, a Division of PNC Bank, National Association’s short-term deposit or short-term unsecured debt rating shall be at least “A-1” from S&P (or “A-2” by S&P so long as the long-term unsecured debt obligations of such depository institution or trust company are rated no less than “BBB” by S&P) and “F1” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less) (if the deposits are to be held in the account for thirty (30) days or less); (iv) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) - (iii) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, any Master Servicer or any Special Servicer; (v) any other account or accounts not listed in clauses (i)-(iii) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), which account may be an account maintained by or with the Certificate Administrator, the Trustee, any Master Servicer or any Special Servicer; (vi) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company that has a long-term unsecured debt rating of at least “A-” from S&P (if the deposits are to be held in the account for more than thirty (30) days) or a short-term unsecured debt rating of at least “A-1” from S&P (if the deposits are to be held in the account for thirty (30) days or less) and that, in either case, has corporate trust powers, acting in its fiduciary capacity, provided that

 

 -58-

 

 

any state chartered depository institution or trust company is subject to regulation regarding fiduciary funds substantially similar to 12 C.F.R. § 9.10(b); or (vii) in the case of Servicing Accounts or reserve accounts with respect to NCB Mortgage Loans with respect to amounts posted with the lender for Escrow Payments, repairs, replacements, capital improvements and/or environmental testing and remediation with respect to the related Mortgaged Property, for ongoing or threatened litigation or for any unit maintenance or rent receivables or negative carry, any account maintained with NCB (provided that, if such account is not otherwise an Eligible Account, NCB has a combined capital and surplus of at least $40,000,000). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

 

“Eligible Asset Representations Reviewer”: An entity that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of DBRS Morningstar, Fitch, KBRA, Moody’s or S&P and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which any of DBRS Morningstar, Fitch, KBRA, Moody’s or S&P has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with such Special Servicer, operating advisor or asset representations reviewer, as applicable, as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 6.01(d), (c) is not (and is not affiliated with) a Sponsor, a Mortgage Loan Seller, an originator, any Master Servicer, any Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder, the Risk Retention Consultation Party or any of their respective Affiliates, (d) has not performed (and is not affiliated with any party hired to perform) any due diligence, loan underwriting, brokerage, borrower advisory or similar services with respect to any Mortgage Loan or any related Companion Loan prior to the Closing Date for or on behalf of any Sponsor, any Mortgage Loan Seller, any Underwriter, any party to this Agreement, the Directing Certificateholder, the Risk Retention Consultation Party or any of their respective Affiliates, or have been paid any fees, compensation or other remuneration by any of them in connection with any such services, and (e) does not directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, any Mortgage Loans, any Companion Loan or any securities backed by a Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable).

 

“Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a CMBS transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been a special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 6.01(c) of this Agreement; (c) that is not (and is not affiliated with) the Depositor, the Trustee, the Certificate Administrator, a Master Servicer, a Special Servicer, a Mortgage Loan Seller, the Directing Certificateholder, the Risk Retention Consultation Party or a depositor, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of a Companion Loan, or any of their respective Affiliates; (d) that has not been paid by any Special Servicer or successor special servicer any fees,

 

 -59-

 

 

compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment or recommendation for replacement of a successor special servicer to become a special servicer under this Agreement; and (e) that (i) has been regularly engaged in the business of analyzing and advising clients in CMBS matters and has at least five (5) years of experience in collateral analysis and loss projections and (ii) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets.

 

“Enforcing Party”: The person obligated to or that elects pursuant to Section 2.03 to enforce the rights of the Trust against the related Mortgage Loan Seller with respect to the Repurchase Request.

 

“Enforcing Servicer”: (a) With respect to a Specially Serviced Loan, the applicable Special Servicer, and (b) with respect to a Non-Specially Serviced Loan, (i) in the case of a Repurchase Request made by the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder, the applicable Master Servicer, and (ii) in the case of a Repurchase Request made by any Person other than the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder, (A) prior to a Resolution Failure relating to such Non-Specially Serviced Loan, the applicable Master Servicer, and (B) from and after a Resolution Failure relating to such Non-Specially Serviced Loan, the applicable Special Servicer, in each case pursuant to Section 2.03(k)(iv).

 

“Environmental Assessment”:  An “environmental site assessment” as such term is defined in, and meeting the criteria of, the American Society of Testing Materials Standard Section E 1527-00, or any successor thereto.

 

“Environmental Indemnity Agreement”: With respect to any Mortgage Loan, any agreement between the Mortgagor (or a guarantor thereof) and the originator of such Mortgage Loan relating to the Mortgagor’s obligation to remediate or monitor or indemnify for any environmental problems relating to the related Mortgaged Property.

 

“ERISA”:  The Employee Retirement Income Security Act of 1974, as amended.

 

“ERISA Plan”:  As defined in Section 5.03(r).

 

“ERISA Restricted Certificate”: Any Certificate (other than a Class R or Class V Certificate) that does not meet the requirements of Prohibited Transaction Exemption 96-22 (as such exemption may be amended from time to time) as of the date of the acquisition of such Certificate by a Plan.  As of the Closing Date, each of the Class X-F, Class X-G, Class X-H, Class X-J, Class F, Class G, Class H and Class J Certificates and the RR Interest is an ERISA Restricted Certificate.

 

“Escrow Payment”:  Any payment received by the applicable Master Servicer or the applicable Special Servicer for the account of any Mortgagor for application toward the payment of real estate taxes, assessments, insurance premiums, ground lease rents and similar items in respect of the related Mortgaged Property, including amounts for deposit to any reserve account.

 

 -60-

 

 

“Euroclear”:  The Euroclear System or any successor thereto.

 

“Excess Interest”:  With respect to each ARD Loan, interest accrued on such ARD Loan after the Anticipated Repayment Date allocable to the Excess Rate, including all interest accrued thereon to the extent permitted by applicable law and the related Mortgage Loan documents. The Excess Interest shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

“Excess Interest Certificates”: Any Class of commercial mortgage pass-through certificates issued under this Agreement that are designated as evidencing an interest in the Excess Interest Grantor Trust Assets. The Class V Certificates shall be Excess Interest Certificates.

 

“Excess Interest Distribution Account”: The trust account or accounts created and maintained as a separate account or accounts (or as a subaccount of the Distribution Account) by the Certificate Administrator pursuant to Section 3.04(c), which shall be entitled “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class V Certificates and the RR Interest, Excess Interest Distribution Account”, and which must be an Eligible Account (or a subaccount of an Eligible Account).  The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the RR Interest and the Excess Interest Certificates. The Excess Interest Distribution Account shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

“Excess Interest Grantor Trust Assets”: The portion of the Trust Fund consisting of the Excess Interest, the Excess Interest Distribution Account and the proceeds thereof.

 

“Excess Modification Fee Amount”: With respect to either the applicable Master Servicer or the applicable Special Servicer, any Corrected Loan and any particular modification, waiver, extension or amendment with respect to such Corrected Loan that gives rise to the payment of a Workout Fee, an amount equal to the aggregate of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan (including the related Serviced Companion Loan, if applicable, unless prohibited under the related Intercreditor Agreement) and received and retained by such Master Servicer or such Special Servicer, as applicable, as compensation within the prior twelve (12) months of such modification, waiver, extension or amendment, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee.

 

“Excess Modification Fees”:  With respect to any Serviced Mortgage Loan or Serviced Whole Loan, the sum of (A) the excess, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of such Mortgage Loan or Serviced Whole Loan, as applicable, over (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and interest on Advances to the extent not otherwise paid or reimbursed by the Mortgagor but excluding Special Servicing Fees, Workout Fees and Liquidation Fees) outstanding or previously incurred on behalf of the Trust with respect to the related Mortgage Loan or Serviced Whole Loan, as applicable, and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from

 

 -61-

 

 

Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. With respect to each Master Servicer and Special Servicer, the Excess Modification Fees collected and earned by such Person from the related Mortgagor (taken in the aggregate with any other Excess Modification Fees collected and earned by such Person from the related Mortgagor within the prior twelve (12) months of the collection of the current Excess Modification Fees) will be subject to a cap of 1.0% of the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, on the closing date of the related modification, extension, waiver or amendment (after giving effect to such modification, extension, waiver or amendment) with respect to any Mortgage Loan or Serviced Whole Loan, as applicable.

 

“Excess Prepayment Interest Shortfall”: For any Distribution Date, the Non-Retained Percentage of the Aggregate Excess Prepayment Interest Shortfall for such Distribution Date.

 

“Excess Rate”:  With respect to each ARD Loan, the excess of (i) the applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan Schedule.

 

“Exchange Act”:  The Securities Exchange Act of 1934, as amended from time to time and the rules and regulations of the Commission thereunder.

 

“Exchange Date”: As defined in Section 5.11(e).

 

“Exchangeable Certificate”: Any of the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

 

“Exchangeable Class Specific Grantor Trust Assets”: With respect to any Class of Exchangeable Certificates, its Class Percentage Interest in each Corresponding Exchangeable Upper-Tier Regular Interest.

 

“Exchangeable P&I Certificates”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1 and Class C-2 Certificates.

 

“Exchangeable Upper-Tier IO Regular Interest”: Each of the Class A-4-X1 Upper-Tier Regular Interest, the Class A-4-X2 Upper-Tier Regular Interest, the Class A-5-X1 Upper-Tier Regular Interest, the Class A-5-X2 Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest, the Class A-S-X2 Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest, the Class B-X2 Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest.  

 

“Exchangeable Upper-Tier P&I Regular Interest”: Each of the Class A-4 Upper-Tier Regular Interest, the Class A-5 Upper-Tier Regular Interest, the Class A-S Upper-Tier Regular Interest, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest.

 

 -62-

 

 

“Exchangeable Upper-Tier Regular Interest”: Each of the Exchangeable Upper-Tier P&I Regular Interests and the Exchangeable Upper-Tier IO Regular Interests.

 

“Excluded Controlling Class Holder”: With respect to any Excluded Controlling Class Loan, the Directing Certificateholder or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Loan. Promptly upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, the Directing Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E hereto to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which notice shall be physically delivered in accordance with Section 13.05 of this Agreement and shall specifically identify the Excluded Controlling Class Holder and the subject Excluded Controlling Class Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit P-1F hereto, which notice shall provide each of the CTSLink User ID associated with such Excluded Controlling Class Holder, and which notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. As of the Closing Date, there are no Excluded Controlling Class Holders related to the Trust.

 

“Excluded Controlling Class Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Directing Certificateholder or any Controlling Class Certificateholder is a Borrower Party. For the avoidance of doubt, if a Mortgage Loan or Whole Loan is not an Excluded Controlling Class Loan, such Mortgage Loan or Whole Loan is also not an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. As of the Closing Date, there are no Excluded Controlling Class Loans related to the Trust.

 

“Excluded Information”: With respect to any Excluded Controlling Class Loan, any information solely related to such Excluded Controlling Class Loan, which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans prepared by the applicable Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding a Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, the applicable Master Servicer or the applicable Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Information by the applicable Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, but in each case other than information with respect to such Excluded Controlling Class Loan that is aggregated with information of other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Controlling Class Loan) and any Schedule AL Additional File shall not be considered “Excluded Information”. Each applicable Master Servicer, Special Servicer and the Operating Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance

 

 -63-

 

 

with Section 3.33.  For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under the “Excluded Information” tab on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 3.33.

 

“Excluded Loan”: With respect to (a) the Directing Certificateholder or the Holder of the majority of the Controlling Class, any Mortgage Loan or Whole Loan if, as of any date of determination, the Directing Certificateholder or the Holder of the majority of the Controlling Class is a Borrower Party, or (b) the Risk Retention Consultation Party or the Holder of the majority of the RR Interest, any Mortgage Loan or Whole Loan if, as of any date of determination, the Risk Retention Consultation Party or the Holder of the majority of the RR Interest is a Borrower Party. For the avoidance of doubt, any Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class is also an Excluded Controlling Class Loan. As of the Closing Date, there are no Excluded Loans related to the Trust.

 

“Excluded Special Servicer”: With respect to any Excluded Special Servicer Loan, a replacement special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to a Special Servicer set forth in Section 7.01(g). As of the Closing Date, there are no Excluded Special Servicers related to the Trust.

 

“Excluded Special Servicer Information”: With respect to any Excluded Special Servicer Loan, any information solely related to such Excluded Special Servicer Loan and/or the related Mortgaged Properties, which shall include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any Operating Advisor reports delivered to the Certificate Administrator regarding an Excluded Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the applicable Master Servicer or the applicable Excluded Special Servicer supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Special Servicer Information by the applicable Excluded Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, in each case, other than information with respect to such Excluded Special Servicer Loan(s) that is aggregated with information with respect to the other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Special Servicer Loan) and any Schedule AL Additional File shall not be considered “Excluded Special Servicer Information”.

 

“Excluded Special Servicer Loan”: Any Mortgage Loan or Serviced Whole Loan with respect to which, as of any date of determination, the applicable Special Servicer obtains knowledge that it has become a Borrower Party. There are no Excluded Special Servicer Loans related to the Trust as of the Closing Date.

 

“Extended Cure Period”:  As defined in Section 2.03(b).

 

“Fannie Mae”:  Federal National Mortgage Association or any successor thereto.

 

“FDIC”:  Federal Deposit Insurance Corporation or any successor thereto.

 

 -64-

 

 

“Final Asset Status Report”:  With respect to any Specially Serviced Loan, each related Asset Status Report, together with such other data or supporting information provided by the applicable Special Servicer to the Directing Certificateholder or the Risk Retention Consultation Party which does not include any communication (other than the related Asset Status Report) between the applicable Special Servicer and Directing Certificateholder or the Risk Retention Consultation Party with respect to such Specially Serviced Loan; provided that, with respect to any Mortgage Loan other than an Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, so long as no Control Termination Event has occurred and is continuing, no Asset Status Report shall be considered to be a Final Asset Status Report unless the Directing Certificateholder has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to Section 3.19, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the applicable Special Servicer in accordance with this Agreement. In addition, after the occurrence and during the continuance of a Control Termination Event, no Asset Status Report shall be a Final Asset Status Report unless and until the Operating Advisor is consulted with on a non-binding basis or deemed to have been consulted with pursuant to this Agreement. No such consultation shall be required prior to a Control Termination Event and, during such period, the Operating Advisor is only required to review Final Asset Status Reports delivered to it by a Special Servicer.

 

“Final Dispute Resolution Election Notice”: As defined in Section 2.03(l)(iii).

 

“Final Recovery Determination”:  A reasonable determination by the applicable Special Servicer, in consultation with the Directing Certificateholder (if related to a Mortgage Loan other than an Excluded Loan as to such party and made prior to the occurrence and continuance of a Consultation Termination Event), with respect to any Defaulted Loan (and, if applicable, any defaulted Companion Loan) or Corrected Loan or REO Property (other than a Mortgage Loan or REO Property, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, (ii) the applicable Special Servicer or other person pursuant to Section 3.16(b), any Companion Holder, any mezzanine lender, in each case pursuant to Section 3.16 or (iii) the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the applicable Special Servicer’s judgment, which judgment was exercised without regard to any obligation of such Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable. With respect to all Mortgage Loans that are not Excluded Loans with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder shall have ten (10) Business Days to review and approve each such recovery determination by the applicable Special Servicer; provided, however, that if the Directing Certificateholder fails to approve or disapprove any recovery determination within ten (10) Business Days of receipt of the initial recovery determination, such consent shall be deemed given.

 

“Fitch”: Fitch Ratings, Inc., and its successors in interest.  If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other NRSRO or other

 

 -65-

 

 

comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Form 8-K Disclosure Information”: As defined in Section 11.07.

 

“Form 15 Suspension Notification”:  As defined in Section 11.08.

 

“Freddie Mac”:  Federal Home Loan Mortgage Corporation or any successor thereto.

 

“Gain-on-Sale Proceeds”: With respect to any Serviced Mortgage Loan, the excess of (i) Liquidation Proceeds net of any related Liquidation Expenses (or the portion of such net Liquidation Proceeds payable to the related Mortgage Loan pursuant to the related Intercreditor Agreement) over (ii) the Purchase Price for such Mortgage Loan on the date on which Liquidation Proceeds were received; provided, that for purposes of calculating Gain-on-Sale Proceeds, Liquidation Proceeds shall exclude any amounts allocated as a Yield Maintenance Charge, Prepayment Premium, recovery of any late payment charges and default interest or recovery of any assumption fees and Modification Fees pursuant to Sections 3.02(a) – (c).

 

“Gain-on-Sale Remittance Amount”: For each Distribution Date, the lesser of (i) the amount on deposit in the Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Non-Retained Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

 

“Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Certificateholders (other than the Holders of the RR Interest), which shall initially be entitled “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

“General Master Servicer”: Wells Fargo Bank, National Association, and its successors in interest and assigns, or any successor thereto (as General Master Servicer) appointed as provided herein.

 

“General Special Servicer”: (i) Midland Loan Services, a Division of PNC Bank, National Association, a national banking association, and its successors in interest and assigns, or any successor special servicer appointed as provided herein, and (ii) with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

 

“Grace Period”: The number of days before a payment default is an event of default under the related Mortgage Loan.

 

 -66-

 

 

“Grantor Trust”:  A segregated asset pool within the Trust Fund treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement hereto.

 

“Grantor Trust Designated Portion”: As defined in the Preliminary Statement hereto.

 

“Ground Lease”:  The ground lease pursuant to which any Mortgagor holds a leasehold interest in the related Mortgaged Property and any estoppels or other agreements executed and delivered by the ground lessor in favor of the lender under the Mortgage Loan.

 

“Hazardous Materials”:  Any dangerous, toxic or hazardous pollutants, chemicals, wastes or substances, including, without limitation, those so identified pursuant to CERCLA or any other federal, state or local environmental related laws and regulations, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

 

“Independent”:  When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, any applicable Master Servicer, any applicable Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any Class of securities issued by the Trustee, the Certificate Administrator, the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof, as the case may be, so long as such ownership constitutes less than 1% of the total assets of such Person.  For the avoidance

 

 -67-

 

 

of doubt, the exception in the proviso above for ownership of 1% or less of any Class of Certificates shall not apply with respect to the Operating Advisor or the Asset Representations Reviewer.

 

“Independent Contractor”:  Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates), so long as the Trust does not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that no Master Servicer or Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including a Master Servicer or a Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Operating Advisor and each applicable Master Servicer of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, such Master Servicer, the Operating Advisor or the Trust, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

 

“Initial Cure Period”:  As defined in Section 2.03(b).

 

“Initial Purchasers”:  Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC.

 

“Initial Requesting Certificateholder”: The first Certificateholder or Certificate Owner (in either case, other than a Holder of the RR Interest) to deliver a Certificateholder Repurchase Request as described in Section 2.03(k) with respect to a Mortgage Loan. For the avoidance of doubt, there may not be more than one Initial Requesting Certificateholder with respect to any Mortgage Loan. A Holder of an RR Interest may not be an Initial Requesting Certificateholder.

 

“Initial Schedule AL Additional File”: The data file prepared by or on behalf of the Depositor containing additional information or schedules regarding data points in the Initial Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act and filed as Exhibit 103 to the Form ABS-EE incorporated by reference into the Prospectus.

 

“Initial Schedule AL File”: The data file prepared by or on behalf of the Depositor containing the information required by Item 1111(h)(3) or Item 1125 of Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act and filed as Exhibit 102 to the Form ABS-EE incorporated by reference into the Prospectus.

 

 -68-

 

 

“Initial Sub-Servicer”:  With respect to each Mortgage Loan that is subject to a Sub-Servicing Agreement with any Master Servicer as of the Closing Date, the Sub-Servicer under any such Sub-Servicing Agreement. As of the Closing Date, each entity listed on Exhibit EE is an Initial Sub-Servicer.

 

“Initial Sub-Servicing Agreement”: Any Sub-Servicing Agreement in effect as of the Closing Date.

 

“Inquiry” and “Inquiries”:  As each is defined in Section 4.07(a).

 

“Institutional Accredited Investor”: An institutional investor which is an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Act or any entity in which all of the equity owners come within such paragraphs.

 

“Insurance and Condemnation Proceeds”: All proceeds paid under any Insurance Policy or in connection with the full or partial condemnation of a Mortgaged Property, in either case, to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor or any tenants or ground lessors, in either case, in accordance with the Servicing Standard (and in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the applicable Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement) and the REMIC Provisions.

 

“Insurance Policy”:  With respect to any Mortgage Loan, any hazard insurance policy, flood insurance policy, title policy or other insurance policy that is maintained from time to time in respect of such Mortgage Loan or the related Mortgaged Property.

 

“Insurance Summary Report”: With respect to each Mortgage Loan, a report or other summary prepared either by the related Mortgage Loan Seller or a third party insurance consultant on behalf of the related Mortgage Loan Seller that provides a summary of all insurance policies covering the related Mortgaged Property(ies), identifying the insurance provider, applicable ratings of each such provider and the amount of coverage and any applicable deductible.

 

“Intercreditor Agreement”: (a) Each of the One North Wacker Intercreditor Agreement, the Park Avenue Plaza Intercreditor Agreement, the CX – 350 & 450 Water Street Intercreditor Agreement and the 1201 Lake Robbins Intercreditor Agreement, (b) any intercreditor agreement entered into in connection with the issuance to the direct or indirect equity holders in the Mortgagor of any existing mezzanine indebtedness or any future mezzanine indebtedness permitted under the related Mortgage Loan documents and (c) solely with respect to a Joint Mortgage Loan treated as a Serviced Whole Loan in accordance with Section 3.30 hereof (to the extent there is no related Intercreditor Agreement governing the relationship of the promissory notes comprising such Joint Mortgage Loan), the applicable Mortgage Loan documents together with the provisions of Section 3.30 hereof.

 

“Interest Accrual Amount”:  With respect to any Distribution Date and any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest, the amount of interest for the related Interest Accrual Period accrued at the Pass-Through Rate for

 

 -69-

 

 

such Class of Certificates or Exchangeable Upper-Tier Regular Interest on the Certificate Balance or Notional Amount, as applicable, for such Class of Certificates or Exchangeable Upper-Tier Regular Interest immediately prior to that Distribution Date. Calculations of interest for each Interest Accrual Period will be made on 30/360 basis.

 

“Interest Accrual Period”:  For each Distribution Date, the calendar month prior to the month in which that Distribution Date occurs.

 

“Interest Distribution Amount”: With respect to any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest for any Distribution Date, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class of Certificates on such Distribution Date.

 

For purposes of clause (B) above, the Excess Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Non-Retained Certificates (other than the Exchangeable Certificates) and the Exchangeable Upper-Tier Regular Interests in an amount equal to the product of (i) the amount of such Excess Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Interest Accrual Amount for such Class for such Distribution Date and the denominator of which is the aggregate Interest Accrual Amounts for all Classes of Regular Certificates and the Exchangeable Upper-Tier Regular Interests for such Distribution Date. For any Distribution Date, any portion of the Excess Prepayment Interest Shortfall allocated to an Exchangeable Upper-Tier Regular Interest, shall be allocated among the Classes of Exchangeable Certificates representing an interest therein, pro rata, in accordance with their respective Class Percentage Interests therein.

 

“Interest Reserve Account”:  The trust account or subaccount of the Distribution Account created and maintained by the Certificate Administrator pursuant to Section 3.04(b) initially in the name of “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Interest Reserve Account”, into which the amounts set forth in Section 3.21 shall be deposited directly and which must be an Eligible Account or subaccount of an Eligible Account.

 

“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest, the sum of (a) the portion of the Interest Distribution Amount for such Class or Exchangeable Upper-Tier Regular Interest remaining unpaid as of the close of business on the preceding Distribution Date, and (b) to the extent permitted by applicable law, (i) other than in the case of Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one month’s interest on that amount remaining unpaid at the Pass-Through Rate applicable to such Class or Exchangeable Upper-Tier Regular Interest for the current Distribution Date and (ii) in the case of the Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one month’s interest on that amount remaining unpaid at the Weighted Average Net Mortgage Rate for such Distribution Date.

 

 -70-

 

 

“Interested Person”:  As of the date of any determination, the Depositor, any Master Servicer, any Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator, the Trustee, the Directing Certificateholder, the Risk Retention Consultation Party, any Sponsor, any Borrower Party, any Independent Contractor engaged by a Special Servicer, the trustee for the securitization of a Companion Loan (with respect to a Whole Loan if it is a Defaulted Loan), any related Companion Holder or its representative, any holder of a related mezzanine loan or any known Affiliate of any such party described above.

 

“Investment Account”:  As defined in Section 3.06(a).

 

“Investment Representation Letter”: As defined in Section 5.03(e), a form of which is attached hereto as Exhibit C.

 

“Investor-Based Exemption”: Any of PTCE 84-14 (for transactions by independent “qualified professional asset managers”), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 90-1 (for transactions by insurance company pooled separate accounts), PTCE 95-60 (for transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”) or a similar exemption under Similar Law.

 

“Investor Certification”: A certificate (which may be in electronic form) substantially in the form of Exhibit P-1A, Exhibit P-1B, Exhibit P-1C or Exhibit P-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation), representing (i) that such Person executing the certificate is a Certificateholder, the Directing Certificateholder or the Risk Retention Consultation Party, a beneficial owner of a Certificate, a prospective purchaser of a Certificate or a Companion Holder (or any investment advisor, manager or other representative of the foregoing), (ii) that either (a) such Person is the Risk Retention Consultation Party or is a Person who is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (b) such Person is a Borrower Party in which case (1) if such Person is the Directing Certificateholder or a Controlling Class Certificateholder, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder other than any Excluded Information as set forth herein or (2) if such Person is the Risk Retention Consultation Party, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website under this Agreement or (3) if such Person is not the Directing Certificateholder or a Controlling Class Certificateholder or the Risk Retention Consultation Party, such Person shall only receive access to the Statements to Certificateholders prepared by the Certificate Administrator, (iii) (other than with respect to a Companion Holder) that such Person has received a copy of the final Prospectus and (iv) such Person agrees to keep any Privileged Information confidential and will not violate any securities laws; provided, however, that any Excluded Controlling Class Holder (i) shall be permitted to reasonably request and obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information) and (ii) shall be considered a Privileged Person for all other purposes, except with respect to its ability to obtain

 

 -71-

 

 

information with respect to any related Excluded Controlling Class Loan. The Certificate Administrator may require that Investor Certifications be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to any mezzanine lender upon notice from any party to this Agreement that such mezzanine lender has become an Accelerated Mezzanine Loan Lender.

 

“Investor Q&A Forum”:  As defined in Section 4.07(a).

 

“Investor Registry”:  As defined in Section 4.07(b).

 

“Joint Mortgage Loan”: Any Mortgage Loan for which one or more promissory notes will be contributed to this securitization by more than one Mortgage Loan Seller. As of the Closing Date, there are no Joint Mortgage Loans related to the Trust.

 

“KBRA”: Kroll Bond Rating Agency, LLC, and its successors in interest. If neither KBRA nor any successor remains in existence, “KBRA” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Late Collections”:  With respect to any Mortgage Loan, Whole Loan or Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due thereunder by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. With respect to any REO Loan, all amounts received in connection with the related REO Property prior to the related Determination Date, whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late collections of principal or interest due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due under the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable, by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges. With respect to any Whole Loan, as used in this Agreement, Late Collections shall refer to such portion of Late Collections to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

“Liquidation Event”:  With respect to any Mortgage Loan or with respect to any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is purchased by any Special Servicer, or by any Companion Holder, any mezzanine lender (as applicable), in each case pursuant to Section 3.16 (and the related Intercreditor Agreement);

 

 -72-

 

 

(v) such Mortgage Loan is purchased by any Special Servicer, any Master Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates pursuant to Section 9.01 or acquired by the Sole Certificateholder in exchange for its Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan is sold by any Special Servicer pursuant to the terms of this Agreement.

 

“Liquidation Expenses”:  All customary, reasonable and necessary “out of pocket” costs and expenses incurred by any Special Servicer in connection with a liquidation of any Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.16 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

 

“Liquidation Fee”:  A fee payable to the applicable Special Servicer with respect to (a) each Non-Specially Serviced Loan with respect to which it acts as the Enforcing Servicer, (b) each Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which such Special Servicer receives (i) a full, partial or discounted payoff from the related Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation Proceeds (including with respect to the related Companion Loan, if applicable), or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), or (c) any Loss of Value Payment or Purchase Price paid by a Mortgage Loan Seller with respect to any Mortgage Loan (except if such Mortgage Loan Seller makes such Loss of Value Payment in connection with a breach or document defect within the 90-day initial cure period or, if applicable, within the subsequent 90-day extended cure period), equal to the product of the Liquidation Fee Rate and the proceeds of such full, partial or discounted payoff or other partial payment or the Liquidation Proceeds, Insurance and Condemnation Proceeds or Loss of Value Payments or Purchase Price (net of the related costs and expenses associated with the related liquidation) related to such liquidated Specially Serviced Loan or REO Property, as the case may be; provided, however, that no Liquidation Fee shall be payable with respect to (a) the purchase of any Specially Serviced Loan by any Special Servicer or any Affiliate thereof (except if such Affiliate purchaser is the Directing Certificateholder or any Affiliate thereof; provided, however, that prior to a Control Termination Event, if the Directing Certificateholder or an Affiliate thereof purchases any Specially Serviced Loan within ninety (90) days after the applicable Special Servicer delivers to the Directing Certificateholder for its approval the initial Asset Status Report with respect to such Specially Serviced Loan, such Special Servicer will not be entitled to a Liquidation Fee in connection with such purchase by the Directing Certificateholder or its Affiliates), (b) any event described in clause (iv) of the definition of “Liquidation Proceeds” (or any substitution in lieu of a repurchase) so long as such repurchase or substitution occurs prior to the termination of the Extended Cure Period, (c) any event described in clauses (v) and (vi) of the definition of “Liquidation Proceeds”, as long as, with respect to a purchase pursuant to clause (vi) of the definition of “Liquidation Proceeds”, a purchase occurs within ninety (90) days of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Loan pursuant to the related Intercreditor Agreement, (d) a Serviced Companion Loan, (x) a repurchase of such Serviced Companion Loan by the applicable Mortgage Loan Seller for a breach of a representation or warranty or for a defective or deficient mortgage loan documentation under an Other Pooling and Servicing Agreement within the time period (or extension thereof, if applicable) provided for such repurchase or such repurchase occurs prior to the termination of such time period (or extension of such time period, if applicable) or (y) a

 

 -73-

 

 

purchase of such Serviced Companion Loan by any applicable party to the Other Pooling and Servicing Agreement pursuant to a clean-up call or similar liquidation of the Other Securitization; or (e) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within one hundred twenty (120) days following the related Maturity Date as a result of such Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (but, in the event that a Liquidation Fee is not payable due to the application of any of clauses (a) through (e) above, each Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided that the Liquidation Fee with respect to any Mortgage Loan will be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan and any related Companion Loan, as applicable, or REO Property and received by the applicable Special Servicer or the applicable Master Servicer, as applicable, as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee shall be payable in connection with a Loss of Value Payment by a Mortgage Loan Seller, if the applicable Mortgage Loan Seller makes such Loss of Value Payment within ninety (90) days of receipt of notice of a breach (and giving effect to an extension period of ninety (90) days).

 

“Liquidation Fee Rate”:  A rate equal to 1.00% with respect to any Mortgage Loan, any Specially Serviced Loan (and each related Serviced Companion Loan) or REO Property, in each case as described in Section 3.11(c); provided that if such rate would result in an aggregate Liquidation Fee less than $25,000, then the Liquidation Fee Rate will be equal to the lesser of (i) 3.0% and (ii) such lower rate as would result in an aggregate Liquidation Fee equal to $25,000.

 

“Liquidation Proceeds”:  Cash amounts received by or paid to any Master Servicer or any Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Loan or defaulted Companion Loan, if applicable, through a trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Mortgagor in accordance with applicable law and the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Mortgagor; (iii) any sale of (A) a Specially Serviced Loan pursuant to Section 3.16(a) or (B) any REO Property pursuant to Section 3.16(b); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Specially Serviced Loan or REO Property by the Holder of the majority of the Controlling Class, any Special Servicer, any Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; (vi) the purchase of a Mortgage Loan or an REO Property by (a) the applicable Subordinate Companion Holder, or (b) the related mezzanine lender, in each case pursuant to Section 3.16 and the related Intercreditor Agreement; or (vii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the applicable Collection Account in accordance with Section 3.05(g) of this Agreement (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the applicable Special Servicer in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan

 

 -74-

 

 

Seller). With respect to any Whole Loan, as used in this Agreement, Liquidation Proceeds shall refer to such portion of Liquidation Proceeds to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

“Loan-Specific Directing Certificateholder”: With respect to a Servicing Shift Mortgage Loan, prior to the related Servicing Shift Securitization Date, the Loan-Specific Directing Certificateholder with respect to a Servicing Shift Mortgage Loan will be the holder of the related “Controlling Note” or other analogous term under the related Intercreditor Agreement. With respect to a Servicing Shift Mortgage Loan, on and after the related Servicing Shift Securitization Date, there will be no Loan-Specific Directing Certificateholder with respect to such Servicing Shift Whole Loan. As of the Closing Date, there is no Loan-Specific Directing Certificateholder under this Agreement.

 

“Loss of Value Payment”: As defined in Section 2.03(b) of this Agreement.

 

“Loss of Value Reserve Fund”: The “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant to Section 3.04(i) of this Agreement. The Loss of Value Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust or any Trust REMIC.

 

“Lower-Tier Distribution Amount”: As defined in Section 4.01(c).

 

“Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Preliminary Statement hereto, and (ii) as of any date of determination after the first Distribution Date, an amount equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)), and as set forth in Section 4.01(c).

 

“Lower-Tier Regular Interests”: Any of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ and LRR Uncertificated Interests.

 

“Lower-Tier REMIC”:  One of two (2) separate REMICs comprising a portion of the Trust Fund, which consist of the Mortgage Loans (exclusive of Excess Interest) and the proceeds thereof, any REO Property with respect thereto (or an allocable portion thereof, in the case of any Serviced Mortgage Loan), or the Trust’s beneficial interest in the REO Property with respect to a Non-Serviced Whole Loan, such amounts as shall from time to time be held in the applicable Collection Account (other than with respect to any Companion Loan), the related portion of the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Lower-Tier REMIC Distribution Account, and all other properties included in the Trust Fund that are not in the other Trust REMIC or the Grantor Trust, except for the Loss of Value Reserve Fund.

 

“Lower-Tier REMIC Distribution Account”: The segregated account, accounts or sub-accounts created and maintained by the Certificate Administrator (on behalf of the Trustee)

 

 -75-

 

 

pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Lower-Tier REMIC Distribution Account”. Any such account, accounts or sub-accounts shall be an Eligible Account.

 

“LRR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“LTV Ratio”:  With respect to any Mortgage Loan, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the scheduled principal balance of such Mortgage Loan, as of such date (assuming no defaults or prepayments on such Mortgage Loan prior to that date), and the denominator of which is the Appraised Value of the related Mortgaged Property.

 

“MAI”:  Member of the Appraisal Institute.

 

“Major Decision”:  As defined in Section 6.08(a).

 

“Master Servicer”: With respect to (a) any Mortgage Loan (other than an NCB Mortgage Loan) and any related Serviced Companion Loan, any REO Property acquired by the Trust with respect to a Mortgage Loan (other than an NCB Mortgage Loan) and any matters relating to the foregoing, the General Master Servicer and (b) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to an NCB Mortgage Loan and any matters relating to the foregoing, the NCB Master Servicer.

 

“Master Servicer Decision”: As defined in Section 3.18(m).

 

“Material Defect”: With respect to any Mortgage Loan, a Defect in any Mortgage File or a Breach, which Defect or Breach, as the case may be, materially and adversely affects the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or any Certificateholder therein or causes such Mortgage Loan to be other than a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a “qualified mortgage”.

 

“Maturity Date”:  With respect to any Mortgage Loan, Whole Loan or Companion Loan, as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Note, after taking into account all Principal Prepayments received prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Whole Loan or Companion Loan by reason of default thereunder or (ii) any Grace Period permitted by the related Mortgage Note.

 

“Mediation Rules”:  As defined in Section 2.03(m)(i).

 

“Mediation Services Provider”: As defined in Section 2.03(m)(i).

 

 -76-

 

 

“Merger Notice”:  As defined in Section 6.03(b).

 

“Modification Fees”:  With respect to any Serviced Mortgage Loan or Serviced Whole Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan documents and/or related Serviced Whole Loan documents (as evidenced by a signed writing) agreed to by the applicable Master Servicer or the applicable Special Servicer, as applicable (other than all assumption fees, assumption application fees, consent fees, defeasance fees, Special Servicing Fees, Liquidation Fees or Workout Fees).

 

“Moody’s”:  Moody’s Investors Service, Inc., and its successors in interest. If neither Moody’s nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Mortgage”:  With respect to any Mortgage Loan or Companion Loan, the mortgage(s), deed(s) of trust or other instrument(s) securing the related Mortgage Note and creating a first mortgage lien on the fee and/or leasehold interest in the related Mortgaged Property.

 

“Mortgage File”: With respect to each Mortgage Loan or Companion Loan, if applicable, but subject to Section 2.01, collectively the following documents:

 

(i)        the original Mortgage Note, endorsed on its face or by allonge to the Mortgage Note, without recourse, to “Pay to the order of Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, without recourse, representation or warranty” or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)        the original or a copy of the Mortgage, together with an original or copy of any intervening Assignments of Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording (or a copy provided by the applicable recording office if a certified copy cannot be provided by such office, provided that the Custodian is not required to investigate whether the recording office cannot provide a certified copy);

 

(iii)      an original Assignment of Mortgage in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related

 

 -77-

 

 

Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment of Mortgage, a copy thereof certified to be the copy of such Assignment of Mortgage submitted or to be submitted for recording);

 

(iv)      the original or a copy of any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), with evidence of recording indicated thereon or certified to have been submitted for recording (or a copy provided by the applicable recording office if a certified copy cannot be provided by such office, provided that the Custodian is not required to investigate whether the recording office cannot provide a certified copy);

 

(v)       an original Assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage) in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

(vi)      the original assignment of all unrecorded documents relating to the Mortgage Loan or a Serviced Whole Loan, if not already assigned pursuant to clause (iii) or clause (v) above;

 

(vii)     originals or copies of all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

(viii)    the original or a copy of the policy or certificate of lender’s title insurance (which may be in electronic form) issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

 

 -78-

 

 

(ix)       any filed copies (bearing evidence of filing) or evidence of filing of any Uniform Commercial Code financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(x)        an original Assignment in favor of the Trustee of any financing statement executed and filed in favor of the applicable Mortgage Loan Seller or an affiliate thereof in the relevant jurisdiction (or, if the related Mortgage Loan Seller is responsible for the filing of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

(xi)       the original or a copy of any intercreditor agreement relating to existing debt of the borrower, including any Intercreditor Agreement relating to a Serviced Whole Loan, if applicable;

 

(xii)      the original or copies of any loan agreement, escrow agreement, security agreement relating to such Mortgage Loan or Serviced Whole Loan, as well as the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which letter of credit shall either (A)(x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, name as beneficiary “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” or (y) in the case of the NCB Mortgage Loans, name as beneficiary “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” or (B) be accompanied by all documentation necessary in order to transfer all rights of the named beneficiary in such letter of credit to the applicable Master Servicer on behalf of the Trustee and to receive, after presentment by the applicable Master Servicer (in accordance with Section 3.01(f)) to the bank issuing such letter of credit, a reissued letter of credit in the name of the applicable Master Servicer on behalf of the Trustee;

 

(xiii)     the original or a copy of any ground lease, ground lessor estoppel, environmental insurance policy, environmental indemnity or guaranty relating to such Mortgage Loan or Serviced Whole Loan;

 

(xiv)    other than with respect to the Mortgage Loans secured by residential cooperative properties, the original or a copy of any property management agreement relating to such Mortgage Loan or Serviced Whole Loan;

 

(xv)     the original or a copy of any franchise agreements and comfort letters or similar agreements relating to such Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of such Mortgage Loan or Serviced Whole Loan and/or request for the issuance of a new comfort letter in favor of the Trustee, in each case, as applicable;

 

 -79-

 

 

(xvi)    the original or a copy of any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xvii)   the original or a copy of any related mezzanine intercreditor agreement; and

 

(xviii)  the original or a copy of all related environmental insurance policies;

 

provided, however, that (a) whenever the term “Mortgage File” is used to refer to documents held by the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually received by the Custodian, (b) if there exists with respect to any Crossed Mortgage Loan Group only one original or certified copy of any document referred to in the definition of “Mortgage File” covering all of the Mortgage Loans in such Crossed Mortgage Loan Group, then the inclusion of such original or certified copy in the Mortgage File for any of the Mortgage Loans constituting such Crossed Mortgage Loan Group shall be deemed the inclusion of such original or certified copy in the Mortgage File for each such Mortgage Loan, (c) to the extent that this Agreement refers to a “Mortgage File” for a Companion Loan, such “Mortgage File” shall be construed to mean the Mortgage File for the related Mortgage Loan (except that references to the Mortgage Note for a Companion Loan otherwise described above shall be construed to instead refer to a photocopy of such Mortgage Note), (d) with respect to any Mortgage Loan that has a Serviced Companion Loan, the execution and/or recordation of any Assignment in the name of the Trustee shall not be construed to limit the beneficial interest of the related Companion Holder(s) in such instrument and the benefits intended to be provided to them by such instrument, it being acknowledged that (I) the Trustee shall hold such record title for the benefit of the Trust as the holder of the related Mortgage Loan and the related Companion Holder(s) collectively and (II) any efforts undertaken by the Trustee, the applicable Master Servicer, or the applicable Special Servicer on its behalf to enforce or obtain the benefits of such instrument shall be construed to be so undertaken by the Trustee, the applicable Master Servicer or the applicable Special Servicer for the benefit of the Trust as the holder of the applicable Mortgage Loan and the related Companion Holder(s) collectively, (e) in connection with any Non-Serviced Mortgage Loan, the preceding document delivery requirements will be met by the delivery by the applicable Mortgage Loan Seller of copies of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan, with respect to which the original shall be required or the requirements of clause (i) of the definition of “Mortgage File” shall otherwise be satisfied) including a copy of the Mortgage securing the applicable Mortgage Loan and any assignments or other transfer documents referred to in clauses (iii), (v), (vi), (vii), (ix) and (x) above as being in favor of the Trustee shall instead be in favor of the applicable Non-Serviced Trustee and need only be in such form as was delivered to the applicable Non-Serviced Trustee or a custodian on its behalf, and (f) so long as the Custodian is also the Non-Serviced Custodian, in connection with any Non-Serviced Mortgage Loan, any and all document delivery requirements with respect to the related Mortgage File (or any portion thereof) set forth herein or in the related Mortgage Loan Purchase Agreement will be satisfied by the delivery, in compliance with the terms of the related Non-Serviced PSA, by the applicable Mortgage Loan Seller of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan or shall otherwise satisfy the requirements of clause (i) of the definition of “Mortgage File”) to the custodian under the related Non-Serviced PSA (in such form as was delivered to the custodian under the related Non-Serviced

 

 -80-

 

 

PSA); provided that (a) the Custodian shall perform its duties under this Agreement (including, without limitation, Article II), and be liable to the other parties hereto, with respect to such Non-Serviced Mortgage Loan as if such documents were required to be delivered and included in the Mortgage File and as if the Non-Serviced Custodian’s receipt of the documents contained in the related “mortgage file” delivered under the related Non-Serviced PSA constituted delivery of those same documents to the Custodian under this Agreement, (b) the Custodian shall not resign as the related Non-Serviced Custodian without giving at least thirty (30) days’ advance written notice of resignation to each other party hereto, and (c) if for any reason the Custodian shall resign as Custodian hereunder or resign as the related Non-Serviced Custodian or shall otherwise no longer act as Custodian hereunder or as the related Non-Serviced Custodian or shall otherwise be required to surrender possession of the related “mortgage file” delivered under the related Non-Serviced PSA (including by reason of the Non-Serviced Companion Loan being removed from the related securitization trust), the Custodian shall include the documents contemplated by clauses (ii) through (xviii) above in the Mortgage File for such Non-Serviced Whole Loan (to the extent such documents were delivered in connection with the related Other Securitization) that shall be maintained by it or any successor custodian hereunder.

 

Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File (other than with respect to the original Mortgage Note and the other documents referenced in clause (i) of the definition of “Mortgage File” held by or from the related Mortgage Loan Seller) by either of the applicable Mortgage Loan Sellers shall satisfy the delivery requirements for both of the applicable Mortgage Loan Sellers.

 

“Mortgage Loan”:  Each of the mortgage loans (which, for the avoidance of doubt, includes each Crossed Mortgage Loan Group, each of which, for the purposes of this Agreement, shall be treated as one Mortgage Loan, provided that each individual Crossed Underlying Loan within any such Crossed Mortgage Loan Group shall not be included in this definition of Mortgage Loan) transferred and assigned to the Trustee pursuant to Section 2.01 and to be held by the Trust. As used herein, the term “Mortgage Loan” includes the related Mortgage Note, Mortgage and other documents contained in the related Mortgage File and any related agreements. The term “Mortgage Loan” shall, as of any date of determination, include any Qualified Substitute Mortgage Loan that has replaced a Mortgage Loan pursuant to Section 2.03 and exclude any such replaced Mortgage Loan.

 

“Mortgage Loan Purchase Agreement”: Each agreement between the Depositor and each Mortgage Loan Seller, relating to the transfer of all of such Mortgage Loan Seller’s right, title and interest in and to the related Mortgage Loans.

 

“Mortgage Loan Schedule”:  The list of Mortgage Loans transferred on the Closing Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B, as any such schedule may be amended from time to time in connection with a substitution under Section 2.03 and in accordance with the relevant Mortgage Loan Purchase Agreement, and which list sets forth the following information with respect to each Mortgage Loan so transferred:

 

(i)      the loan identification number;

 

(ii)     the name of the related Mortgage Loan Seller;

 

 -81-

 

 

(iii)      the name of the related Mortgaged Property;

 

(iv)      the Cut-off Date Balance;

 

(v)       the street address, city and state of the related Mortgaged Property;

 

(vi)      the date of the related Mortgage Note;

 

(vii)     the Maturity Date or Anticipated Repayment Date;

 

(viii)    the Mortgage Rate;

 

(ix)       the original term to stated maturity or anticipated repayment date;

 

(x)        the remaining term to stated maturity or anticipated repayment date;

 

(xi)      the original amortization term;

 

(xii)      whether the Mortgage Loan is an ARD Loan;

 

(xiii)     the applicable Servicing Fee Rate; and

 

(xiv)    the applicable Non-Serviced Primary Servicing Fee Rate (if any).

 

“Mortgage Loan Seller”: Each of (i) Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company, or its successor in interest, (ii) Bank of America, National Association, a national banking association, or its successor in interest, (iii) Wells Fargo Bank, National Association, a national banking association, or its successor in interest, and (iv) National Cooperative Bank, N.A., a national banking association, or its successor in interest.

 

“Mortgage Loan Seller Percentage Interest”:  With respect to a Joint Mortgage Loan and each applicable Mortgage Loan Seller with respect thereto, a fraction, expressed as a percentage, the numerator of which is equal to the aggregate Cut-off Date principal balance of the promissory notes contributed by such Mortgage Loan Seller to this securitization, and the denominator of which is equal to the Cut-off Date principal balance of such Joint Mortgage Loan.

 

“Mortgage Note”:  The original executed promissory note(s) evidencing the indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, as the case may be, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement thereof.

 

“Mortgage Rate”:  With respect to: (i) any Mortgage Loan (including the Non-Serviced Mortgage Loans) or related Companion Loan on or prior to its Maturity Date, the annual rate at which interest is scheduled (in the absence of a default) to accrue on such Mortgage Loan or related Companion Loan from time to time in accordance with the related Mortgage Note and applicable law, without giving effect to any default rate or Revised Rate; or (ii) any Mortgage Loan or related Companion Loan after its Maturity Date, the annual rate described in clause (i)

 

 -82-

 

 

above determined without regard to the passage of such Maturity Date. For the avoidance of doubt, the Mortgage Rate of any ARD Loan shall not be construed to include the related Excess Rate.

 

“Mortgaged Property”:  The real property subject to the lien of a Mortgage.

 

“Mortgagor”:  The obligor or obligors on a Mortgage Note, including without limitation, any Person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

 

“MSC 2021-PLZA TSA”: The trust and servicing agreement, dated as of November 1, 2021, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as servicer and special servicer, Wells Fargo Bank, National Association, as certificate administrator and custodian, and Wilmington Trust, National Association, as trustee.

 

“NCB”: National Cooperative Bank, N.A., a national banking association, or its successor in interest.

 

“NCB Co-op Mortgage Loan”: Any NCB Mortgage Loan.

 

“NCB CREFC^® Schedule AL File”: Any CREFC^® Schedule AL File prepared by NCB with respect to the NCB Mortgage Loans.

 

“NCB Master Servicer”: NCB, and its successors in interest and assigns, or any successor thereto (as NCB Master Servicer) appointed as provided herein.

 

“NCB Mortgage Loans”: Those Mortgage Loans sold to the Depositor pursuant to the related Mortgage Loan Purchase Agreement by NCB and indicated as an NCB Mortgage Loan on the Mortgage Loan Schedule.

 

“NCB Schedule AL Additional File”: Any Schedule AL Additional File prepared by NCB with respect to the NCB Mortgage Loans.

 

“NCB Special Servicer”: NCB, and its successors in interest and assigns, or any successor special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require) (as NCB Special Servicer).

 

“NCB Subordinate Debt Conditions”: With respect to an NCB Co-op Mortgage Loan and any encumbrance of the related Mortgaged Property with a subordinate mortgage, the following conditions: (i) each of the subordinate mortgage loans, or the sole subordinate mortgage loan, to be secured by such subordinate mortgage is made by NCB or any Affiliate thereof (ii) such subordinate mortgage is expressly made in compliance with the underwriting standards which NCB customarily employs in connection with making subordinate mortgages for its own mortgage loan portfolio, (iii) the aggregate outstanding principal balance of the NCB Co-op Mortgage Loan,

 

 -83-

 

 

any other existing loans secured by a mortgage then encumbering the related Mortgaged Property and the proposed new subordinate mortgage loan shall not exceed 40% of the Appraised Value of the related Mortgaged Property, (iv) NCB or any Affiliate thereof that originates the subordinate mortgage loan, executes and delivers to the Trustee for inclusion in the Mortgage File an intercreditor agreement and subordination agreement with respect to such subordinate mortgage in substantially the form of Exhibit SS hereto or in such other form as shall be acceptable to the NCB Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (other than with respect to an Excluded Loan as to such party) (provided that the Trustee shall have no responsibility for determining the sufficiency or validity thereof), (v) if the subordinate mortgage loan will not be a fully amortizing loan, the stated maturity date of the subordinate mortgage loan shall be no earlier than the maturity date of the related NCB Co-op Mortgage Loan, (vi) the subordinate mortgage loan is made principally for the purpose of funding capital expenditures, major repairs or reserves at or with respect to the Mortgaged Property in question, (vii) NCB or any Affiliate thereof that originates the subordinate mortgage loan receives borrower legal opinions as to authority and enforceability customarily required of borrowers in connection with the origination of similar mortgage loans; and (viii) the aggregate amount of subordinate debt encumbering the Mortgaged Property in question (including the proposed new subordinate mortgage debt and any other existing loans secured by a mortgage then encumbering the related Mortgaged Property, but excluding the Mortgage Loan in question) does not exceed $7,500,000.

 

“Net Investment Earnings”: With respect to each applicable Collection Account, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount, if any, by which the aggregate of all interest and other income realized during such period on funds relating to the Trust held in such account, exceeds the aggregate of all losses, if any, incurred during such period in connection with the investment of such funds in accordance with Section 3.06.

 

“Net Investment Loss”:  With respect to each applicable Collection Account, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount by which the aggregate of all losses, if any, incurred during such period in connection with the investment of funds relating to the Trust held in such account in accordance with Section 3.06, exceeds the aggregate of all interest and other income realized during such period on such funds.

 

“Net Mortgage Rate”:  With respect to each Mortgage Loan (including a Non-Serviced Mortgage Loan) and any REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of any date of determination, a rate per annum equal to the related Mortgage Rate then in effect (without regard to any increase in the interest rate of any ARD Loan after its respective Anticipated Repayment Date), minus the related Administrative Fee Rate; provided, however, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any Mortgage Loan will be determined without regard to any modification, waiver or amendment of the terms of the related Mortgage Loan, whether agreed to by the applicable Master Servicer, the applicable Special Servicer, a related Non-Serviced Master Servicer or a related Non-Serviced Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the related Mortgagor; provided, further, that for any Mortgage Loan that does not

 

 -84-

 

 

accrue interest on the basis of a 360-day year consisting of twelve (12) 30-day months, then, solely for purposes of calculating Pass-Through Rates and the Weighted Average Net Mortgage Rate, the Net Mortgage Rate of such Mortgage Loan or for any one month period preceding a related Due Date will be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan on the basis of a 360-day year consisting of twelve (12) 30-day months in order to produce the aggregate amount of interest actually accrued in respect of such Mortgage Loan during such one month period at the related Net Mortgage Rate; provided, further, that, with respect to each Actual/360 Mortgage Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates that occur in January and February in any year which is not a leap year or preceding the Due Date that occurs in February in any year which is a leap year (in either case, unless the related Distribution Date is the final Distribution Date), will be determined exclusive of any Withheld Amounts, and (B) preceding the Due Date in March (or February, if the related Distribution Date is the final Distribution Date), will be determined inclusive of the amounts withheld in the immediately preceding January and February, if applicable. With respect to any REO Loan (but excluding any related Companion Loan), the Net Mortgage Rate shall be calculated as described above, determined as if the predecessor Mortgage Loan had remained outstanding.

 

“Net Operating Income”:  With respect to any Mortgaged Property, for any Mortgagor’s fiscal year end, Net Operating Income will be calculated in accordance with the standard definition of “Net Operating Income” approved from time to time endorsed and put forth by the CREFC^®.

 

“New Lease”:  Any lease of REO Property entered into at the direction of the applicable Special Servicer on behalf of the Trust, including any lease renewed, modified or extended on behalf of the Trust, if the Trust has the right to renegotiate the terms of such lease.

 

“Non-Book Entry Certificates”: As defined in Section 5.02(c).

 

“Nonrecoverable Advance”:  Any Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. For the avoidance of doubt, Workout-Delayed Reimbursement Amounts shall constitute Nonrecoverable Advances only when the Person making such determination in accordance with the procedures specified herein, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from Late Collections, Default Interest, Insurance and Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors), or (b) has determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties.

 

“Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan) which the Trustee determines in its good faith business judgment or the applicable Master Servicer or the applicable Special Servicer determines in accordance with the Servicing Standard, will not be ultimately

 

 -85-

 

 

recoverable, together with any accrued and unpaid interest thereon at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan or REO Loan (but excluding any related Companion Loan); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer, and with respect to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer and Non-Serviced Special Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be conclusive and binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a P&I Advance would be a Nonrecoverable Advance), provided, however, that such Special Servicer shall have no such obligation to make an affirmative determination that any P&I Advance is or would be recoverable and in the absence of a determination by such Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the applicable Master Servicer or Trustee, as applicable. If a Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the applicable Master Servicer and the Trustee shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance. With respect to any Non-Serviced Whole Loan, if any Non-Serviced Master Servicer, Non-Serviced Trustee or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a principal and interest advance with respect to the related Non-Serviced Companion Loan, if made, would be nonrecoverable, such determination shall not be binding on the applicable Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer and related Non-Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan (unless the related Non-Serviced PSA provides otherwise). In making such recoverability determination, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the

 

 -86-

 

 

applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator and the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and, in the case of a Serviced Mortgage Loan, any Other Servicer). The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan or the related Mortgaged Property). The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a P&I

 

 -87-

 

 

Advance is or would be nonrecoverable, and each Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan.

 

“Nonrecoverable Servicing Advance”: Any Servicing Advance previously made or proposed to be made in respect of a Serviced Mortgage Loan, Serviced Whole Loan or REO Property which the Trustee determines in its reasonable business judgment, or the applicable Master Servicer or applicable Special Servicer determines in accordance with the Servicing Standard, as the case may be, will not be ultimately recoverable, together with any accrued and unpaid interest thereon, at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan, Serviced Whole Loan or REO Property. In making such recoverability determination, such Person will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Servicing Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any Servicing Advance shall be conclusive and binding on the Certificateholders. The

 

 -88-

 

 

determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable Servicing Advance has been made or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a Servicing Advance would be a Nonrecoverable Advance), provided, however, that the applicable Special Servicer shall have no such obligation to make an affirmative determination that any Servicing Advance is or would be recoverable and in the absence of a determination by the applicable Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the applicable Master Servicer or the Trustee, as applicable. If the applicable Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the applicable Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal with respect to the related Mortgage Loan, Serviced Companion Loan or related Mortgaged Property).  The applicable Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making recoverability determinations. The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a Servicing Advance is

 

 -89-

 

 

or would be nonrecoverable, and the applicable Master Servicer shall be entitled to conclusively rely on the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable. Notwithstanding anything herein to the contrary, if the applicable Special Servicer requests that the applicable Master Servicer make a Servicing Advance, such Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing Advance; provided, however, that such Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan. The determination as to the recoverability of any servicing advance or property protection advance previously made or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced Trustee, as the case may be, pursuant to the related Non-Serviced PSA.

 

“Non-Registered Certificate”: Unless and until registered under the Securities Act, any Class X-D, Class X-F, Class X-G, Class X-H, Class X-J, Class D, Class E, Class F, Class G, Class H, Class J, Class V or Class R Certificate or the RR Interest.

 

“Non-Retained Certificate”:  Any Senior Certificate or Subordinate Certificate.

 

“Non-Retained Percentage”: An amount expressed as a percentage equal to 100% less the Required Credit Risk Retention Percentage. For the avoidance of doubt, at all times, the sum of the Required Credit Risk Retention Percentage and the Non-Retained Percentage shall equal 100%.

 

“Non-Serviced Certificate Administrator”: The “Certificate Administrator” under a Non-Serviced PSA.

 

“Non-Serviced Companion Loan”: Each of the Non-Serviced Pari Passu Companion Loans and the Non-Serviced Subordinate Companion Loans.

 

“Non-Serviced Custodian”: With respect to each Non-Serviced Whole Loan, the “Custodian” under the related Non-Serviced PSA.

 

“Non-Serviced Depositor”: The “Depositor” under a Non-Serviced PSA.

 

“Non-Serviced Gain-on-Sale Proceeds”: Any “gain-on-sale proceeds” received in respect of a Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA.

 

“Non-Serviced Indemnified Parties”: As defined in Section 6.04(i).

 

“Non-Serviced Intercreditor Agreement”: Each Intercreditor Agreement related to a Non-Serviced Whole Loan.

 

“Non-Serviced Master Servicer”: The “Master Servicer” or “Servicer” under a Non-Serviced PSA.

 

 -90-

 

 

“Non-Serviced Mortgage Loan”: Each of the One North Wacker Mortgage Loan, the Park Avenue Plaza Mortgage Loan, the CX – 350 & 450 Water Street Mortgage Loan and the 1201 Lake Robbins Mortgage Loan.

 

“Non-Serviced Mortgaged Property”: Each of the One North Wacker Mortgaged Property, the Park Avenue Plaza Mortgaged Property, the CX – 350 & 450 Water Street Mortgaged Property and the 1201 Lake Robbins Mortgaged Property.

 

“Non-Serviced Operating Advisor”: The “Operating Advisor” (or analogous term) (if any) under a Non-Serviced PSA.

 

“Non-Serviced Pari Passu Companion Loan”: Each of the One North Wacker Pari Passu Companion Loans, the Park Avenue Plaza Pari Passu Companion Loans, the CX – 350 & 450 Water Street Pari Passu Companion Loans and the 1201 Lake Robbins Pari Passu Companion Loans.

 

“Non-Serviced Paying Agent”: The “Paying Agent” (or analogous term) under a Non-Serviced PSA.

 

“Non-Serviced Primary Servicing Fee”: With respect to each Non-Serviced Mortgage Loan, the fee payable to the Non-Serviced Master Servicer pursuant to the related Non-Serviced PSA.

 

“Non-Serviced Primary Servicing Fee Rate”: With respect to (i) the One North Wacker Mortgage Loan, 0.00250% per annum, (ii) the Park Avenue Plaza Mortgage Loan, 0.00750% per annum, (iii) the CX – 350 & 450 Water Street Mortgage Loan, 0.00600% per annum, and (iv) the 1201 Lake Robbins Mortgage Loan, 0.00250% per annum.

 

“Non-Serviced PSA”: With respect to (i) the One North Wacker Whole Loan, the BANK 2021-BNK36 PSA, (ii) the Park Avenue Plaza Whole Loan, the MSC 2021-PLZA TSA (iii) the CX – 350 & 450 Water Street Whole Loan, the CAMB 2021-CX2 TSA, and (iv) the 1201 Lake Robbins Whole Loan, the BANK 2021-BNK37 PSA.

 

“Non-Serviced Special Servicer”: The applicable “Special Servicer” of a Non-Serviced Whole Loan under a Non-Serviced PSA.

 

“Non-Serviced Subordinate Companion Loan”: Each of the Park Avenue Plaza Subordinate Companion Loan and the CX – 350 & 450 Water Street Subordinate Companion Loans.

 

“Non-Serviced Trust”: The “Trust” formed under a Non-Serviced PSA.

 

“Non-Serviced Trustee”: The “Trustee” under a Non-Serviced PSA.

 

“Non-Serviced Whole Loan”: Each of the One North Wacker Whole Loan, the Park Avenue Plaza Whole Loan, the CX – 350 & 450 Water Street Whole Loan and the 1201 Lake Robbins Whole Loan.

 

 -91-

 

 

“Non-Serviced Whole Loan Controlling Holder”:  The “directing holder” or similarly defined party under a Non-Serviced PSA.

 

“Non-Specially Serviced Loan”: Any Serviced Mortgage Loan or Serviced Companion Loan that is not a Specially Serviced Loan.

 

“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.03(f).

 

“Non-U.S. Tax Person”:  Any person other than a U.S. Tax Person.

 

“Non-Waiving Successor”: As defined in Section 3.23(l).

 

“Notional Amount”: With respect to each of the following Classes of Certificates or Upper-Tier Regular Interests, the amount set forth next to it in the table below:

 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Notional Amount
Class A-4-X1 Certificates	Class A-4-X1 Notional Amount
Class A-4-X2 Certificates	Class A-4-X2 Notional Amount
Class A-4-X1 Upper-Tier Regular Interest	Class A-4-X1 UT Notional Amount
Class A-4-X2 Upper-Tier Regular Interest	Class A-4-X2 UT Notional Amount
Class A-5-X1 Certificates	Class A-5-X1 Notional Amount
Class A-5-X2 Certificates	Class A-5-X2 Notional Amount
Class A-5-X1 Upper-Tier Regular Interest	Class A-5-X1 UT Notional Amount
Class A-5-X2 Upper-Tier Regular Interest	Class A-5-X2 UT Notional Amount
Class X-A Certificates	Class X-A Notional Amount
Class X-B Certificates	Class X-B Notional Amount
Class X-D Certificates	Class X-D Notional Amount
Class X-F Certificates	Class X-F Notional Amount
Class X-G Certificates	Class X-G Notional Amount
Class X-H Certificates	Class X-H Notional Amount
Class X-J Certificates	Class X-J Notional Amount
Class A-S-X1 Certificates	Class A-S-X1 Notional Amount
Class A-S-X2 Certificates	Class A-S-X2 Notional Amount
Class A-S-X1 Upper-Tier Regular Interest	Class A-S-X1 UT Notional Amount
Class A-S-X2 Upper-Tier Regular Interest	Class A-S-X2 UT Notional Amount
Class B-X1 Certificates	Class B-X1 Notional Amount
Class B-X2 Certificates	Class B-X2 Notional Amount
Class B-X1 Upper-Tier Regular Interest	Class B-X1 UT Notional Amount
Class B-X2 Upper-Tier Regular Interest	Class B-X2 UT Notional Amount
Class C-X1 Certificates	Class C-X1 Notional Amount
Class C-X2 Certificates	Class C-X2 Notional Amount
Class C-X1 Upper-Tier Regular Interest	Class C-X1 UT Notional Amount
Class C-X2 Upper-Tier Regular Interest	Class C-X2 UT Notional Amount

 

“NRSRO”:  Any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act, including the Rating Agencies.

 

 -92-

 

 

“NRSRO Certification”:  A certification (a) substantially in the form of Exhibit P-2 executed by a NRSRO or (b) provided electronically and executed by such NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website, in either case in favor of the 17g-5 Information Provider that states that such NRSRO is a Rating Agency under this Agreement or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, that such NRSRO has access to the Depositor’s 17g-5 website and that such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public. Each NRSRO shall be deemed to recertify to the foregoing each time it accesses the Certificate Administrator’s Website.

 

“OCC”: Office of the Comptroller of the Currency.

 

“Officer’s Certificate”:  A certificate signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer or any Additional Servicer, as the case may be, or a Responsible Officer of the Trustee or Certificate Administrator, as the case may be.

 

“Offshore Transaction”: Any “offshore transaction” as defined in Rule 902(h) of Regulation S.

 

“One North Wacker Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the One North Wacker Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“One North Wacker Mortgage Loan”: With respect to the One North Wacker Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2-1.

 

“One North Wacker Mortgaged Property”: The Mortgaged Property that secures the One North Wacker Whole Loan.

 

“One North Wacker Pari Passu Companion Loans”: With respect to the One North Wacker Whole Loan, the Companion Loans evidenced by the related promissory notes A-1, A-2-2, A-3, A-4, A-5, A-6 and A-7 and made by the related Mortgagor and secured by the Mortgage on the One North Wacker Mortgaged Property.

 

“One North Wacker Whole Loan”: The One North Wacker Mortgage Loan, together with the One North Wacker Pari Passu Companion Loans, each of which is secured by the same Mortgage on the One North Wacker Mortgaged Property. References herein to the One North Wacker Whole Loan shall be construed to refer to the aggregate indebtedness under the One North Wacker Mortgage Loan and the One North Wacker Pari Passu Companion Loans.

 

“Operating Advisor”:  Pentalpha Surveillance LLC, a Delaware limited liability company, and its successors-in-interest and assigns, or any successor operating advisor appointed as herein provided.

 

“Operating Advisor Annual Report”: As defined in Section 3.26(c)(i).

 

 -93-

 

 

 “Operating Advisor Consulting Fee”: A fee for each Major Decision on which the Operating Advisor has consulting obligations and performed its duties with respect to such Major Decision equal to $10,000 (or such lesser amount as the related Mortgagor actually pays) with respect to any Serviced Mortgage Loan (other than any Servicing Shift Mortgage Loan), payable pursuant to Section 3.05 of this Agreement; provided, however, that no such fee shall be payable unless specifically paid by the related Mortgagor as a separately identifiable fee; provided, further, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision; provided, further, however, that to the extent such fee is incurred after the outstanding Certificate Balances of the Control Eligible Certificates and the corresponding portion of the RR Interest have been reduced to zero as a result of the allocation of Realized Losses to such Certificates, such fee shall be payable in full to the Operating Advisor as an expense of the Trust; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the applicable Master Servicer or the applicable Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction).

 

“Operating Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or additional trust fund expenses payable to the Operating Advisor pursuant to this Agreement (other than the Operating Advisor Fee and the Operating Advisor Consulting Fee).

 

“Operating Advisor Fee”: With respect to each Mortgage Loan and REO Loan (but excluding any related Companion Loan), the fee payable to the Operating Advisor pursuant to Section 3.26(i).

 

“Operating Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of 0.00172%. 

 

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders and, with respect to any Serviced Whole Loan for the benefit of the holders of the related Companion Loan (as a collective whole as if such Certificateholders and Companion Holders constituted a single lender), and not to any particular Class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with any of the underlying Mortgagors, any Sponsor, any Mortgage Loan Seller, the Depositor, each Master Servicer, each Special Servicer, the Asset Representations Reviewer, the Directing Certificateholder, any Certificateholders, the Risk Retention Consultation Party or any of their Affiliates.

 

“Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

 -94-

 

 

(a)       any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the Holders of Certificates (other than the RR Interest) having greater than 25% of the aggregate Voting Rights, provided that any such failure which is not curable within such thirty (30) day period, the Operating Advisor will have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(b)       any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

 

(c)       any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

 

(d)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the operating advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(e)       the Operating Advisor consents to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the operating advisor or of or relating to all or substantially all of its property; or

 

(f)        the Operating Advisor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations.

 

“Opinion of Counsel”:  A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, acceptable in form and delivered to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) the qualification of any

 

 -95-

 

 

Trust REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c) the qualification of the Grantor Trust as a grantor trust, or (d) the resignation of any Master Servicer, any Special Servicer or the Depositor pursuant to Section 6.05, must be an opinion of counsel who is in fact Independent of the Depositor, such Master Servicer, such Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

 

“Original Certificate Balance”: As defined in the Preliminary Statement.

 

“Original Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interest, the initial principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement.

 

“Original Notional Amount”: As defined in the Preliminary Statement.

 

“Other Asset Representations Reviewer”: Any asset representations reviewer under an Other Pooling and Servicing Agreement.

 

“Other Certificate Administrator”: Any certificate administrator under an Other Pooling and Servicing Agreement.

 

“Other Depositor”: Any depositor under an Other Pooling and Servicing Agreement.

 

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the Other Servicer, Other Trustee, Other Certificate Administrator or Other Depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D, Form ABS-EE and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

“Other Pooling and Servicing Agreement”: Any trust and servicing agreement or pooling and servicing agreement that creates a trust whose assets include any Serviced Companion Loan.

 

“Other Securitization”:  As defined in Section 11.06.

 

“Other Servicer”: Any master servicer or special servicer, as applicable, under an Other Pooling and Servicing Agreement.

 

“Other Trustee”: Any trustee under an Other Pooling and Servicing Agreement.

 

“Ownership Interest”:  As to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

 

 -96-

 

 

“Park Avenue Plaza Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of November 17, 2021, between the holders of the respective promissory notes evidencing the Park Avenue Plaza Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“Park Avenue Plaza Mortgage Loan”: With respect to the Park Avenue Plaza Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-4, A-7 and A-8.

 

“Park Avenue Plaza Mortgaged Property”: The Mortgaged Property that secures the Park Avenue Plaza Whole Loan.

 

“Park Avenue Plaza Pari Passu Companion Loans”: With respect to the Park Avenue Plaza Whole Loan, the Companion Loans evidenced by the related promissory notes A-1, A-2, A-3, A-5 and A-6 and made by the related Mortgagor and secured by the Mortgage on the Park Avenue Plaza Mortgaged Property.

 

“Park Avenue Plaza Subordinate Companion Loan”: With respect to the Park Avenue Plaza Whole Loan, the Companion Loan evidenced by the related promissory note B-1 and made by the related Mortgagor and secured by the Mortgage on the Park Avenue Plaza Mortgaged Property.

 

“Park Avenue Plaza Whole Loan”: The Park Avenue Plaza Mortgage Loan, together with the Park Avenue Plaza Pari Passu Companion Loans and the Park Avenue Plaza Subordinate Companion Loan, each of which is secured by the same Mortgage on the Park Avenue Plaza Mortgaged Property. References herein to the Park Avenue Plaza Whole Loan shall be construed to refer to the aggregate indebtedness under the Park Avenue Plaza Mortgage Loan, the Park Avenue Plaza Pari Passu Companion Loans and the Park Avenue Plaza Subordinate Companion Loan.

 

“P&I Advance”:  As to any Mortgage Loan or REO Loan (but not any related Companion Loan), any advance made by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

 

“P&I Advance Date”:  The Business Day immediately prior to each Distribution Date.

 

“P&I Advance Determination Date”: With respect to any Distribution Date, the close of business on the related Determination Date.

 

“Pari Passu Companion Loans”: Collectively, the Serviced Pari Passu Companion Loans and the Non-Serviced Pari Passu Companion Loans.

 

“Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan.

 

“Pass-Through Rate”: With respect to each Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest, the rate set forth next to it in the table below:

 

 -97-

 

 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Pass-Through Rate
Class A-1 Certificates	Class A-1 Pass-Through Rate
Class A-2 Certificates	Class A-2 Pass-Through Rate
Class A-3 Certificates	Class A-3 Pass-Through Rate
Class A-SB Certificates	Class A-SB Pass-Through Rate
Class A-4 Certificates	Class A-4 Pass-Through Rate
Class A-4-1 Certificates	Class A-4-1 Pass-Through Rate
Class A-4-2 Certificates	Class A-4-2 Pass-Through Rate
Class A-4-X1 Certificates	Class A-4-X1 Pass-Through Rate
Class A-4-X2 Certificates	Class A-4-X2 Pass-Through Rate
Class A-4 Upper-Tier Regular Interest	Class A-4 UT Pass-Through Rate
Class A-4-X1 Upper-Tier Regular Interest	Class A-4-X1 UT Pass-Through Rate
Class A-4-X2 Upper-Tier Regular Interest	Class A-4-X2 UT Pass-Through Rate
Class A-5 Certificates	Class A-5 Pass-Through Rate
Class A-5-1 Certificates	Class A-5-1 Pass-Through Rate
Class A-5-2 Certificates	Class A-5-2 Pass-Through Rate
Class A-5-X1 Certificates	Class A-5-X1 Pass-Through Rate
Class A-5-X2 Certificates	Class A-5-X2 Pass-Through Rate
Class A-5 Upper-Tier Regular Interest	Class A-5 UT Pass-Through Rate
Class A-5-X1 Upper-Tier Regular Interest	Class A-5-X1 UT Pass-Through Rate
Class A-5-X2 Upper-Tier Regular Interest	Class A-5-X2 UT Pass-Through Rate
Class X-A Certificates	Class X-A Pass-Through Rate
Class X-B Certificates	Class X-B Pass-Through Rate
Class X-D Certificates	Class X-D Pass-Through Rate
Class X-F Certificates	Class X-F Pass-Through Rate
Class X-G Certificates	Class X-G Pass-Through Rate
Class X-H Certificates	Class X-H Pass-Through Rate
Class X-J Certificates	Class X-J Pass-Through Rate
Class A-S Certificates	Class A-S Pass-Through Rate
Class A-S-1 Certificates	Class A-S-1 Pass-Through Rate
Class A-S-2 Certificates	Class A-S-2 Pass-Through Rate
Class A-S-X1 Certificates	Class A-S-X1 Pass-Through Rate
Class A-S-X2 Certificates	Class A-S-X2 Pass-Through Rate
Class A-S Upper-Tier Regular Interest	Class A-S UT Pass-Through Rate
Class A-S-X1 Upper-Tier Regular Interest	Class A-S-X1 UT Pass-Through Rate
Class A-S-X2 Upper-Tier Regular Interest	Class A-S-X2 UT Pass-Through Rate
Class B Certificates	Class B Pass-Through Rate
Class B-1 Certificates	Class B-1 Pass-Through Rate
Class B-2 Certificates	Class B-2 Pass-Through Rate
Class B-X1 Certificates	Class B-X1 Pass-Through Rate
Class B-X2 Certificates	Class B-X2 Pass-Through Rate
Class B Upper-Tier Regular Interest	Class B UT Pass-Through Rate
Class B-X1 Upper-Tier Regular Interest	Class B-X1 UT Pass-Through Rate
Class B-X2 Upper-Tier Regular Interest	Class B-X2 UT Pass-Through Rate
Class C Certificates	Class C Pass-Through Rate
Class C-1 Certificates	Class C-1 Pass-Through Rate
Class C-2 Certificates	Class C-2 Pass-Through Rate
Class C-X1 Certificates	Class C-X1 Pass-Through Rate

 

 -98-

 

 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Pass-Through Rate
Class C-X2 Certificates	Class C-X2 Pass-Through Rate
Class C Upper-Tier Regular Interest	Class C UT Pass-Through Rate
Class C-X1 Upper-Tier Regular Interest	Class C-X1 UT Pass-Through Rate
Class C-X2 Upper-Tier Regular Interest	Class C-X2 UT Pass-Through Rate
Class D Certificates	Class D Pass-Through Rate
Class E Certificates	Class E Pass-Through Rate
Class F Certificates	Class F Pass-Through Rate
Class G Certificates	Class G Pass-Through Rate
Class H Certificates	Class H Pass-Through Rate
Class J Certificates	Class J Pass-Through Rate

 

“Payment Accommodation”: For any Mortgage Loan or Serviced Whole Loan, the entering into of any temporary forbearance agreement as a result of the COVID-19 emergency relating to payment obligations or operating covenants under the related Mortgage Loan documents or the use of funds on deposit in any reserve account or escrow account for any purpose other than the explicit purpose described in the related Mortgage Loan documents, that in each case requires full repayment of deferred payments, reserves and escrows by the date that is twenty-four (24) months following the date of the first Payment Accommodation for such Mortgage Loan or Serviced Whole Loan. For the avoidance of doubt, a Payment Accommodation shall only be entered into by the applicable Special Servicer on behalf of the Trust.

 

“PCAOB”:  The Public Company Accounting Oversight Board.

 

“Penalty Charges”:  With respect to any Serviced Mortgage Loan or Serviced Companion Loan (or any successor REO Loan), any amounts actually collected thereon (or, in the case of a Serviced Companion Loan (or any successor REO Loan thereto) that is part of a Serviced Whole Loan, actually collected on such Serviced Whole Loan, and allocated and paid on such Serviced Companion Loan (or any successor REO Loan), as applicable, in accordance with the related Intercreditor Agreement) that represent late payment charges or Default Interest, other than a Prepayment Premium, a Yield Maintenance Charge or any Excess Interest.

 

“Percentage Interest”:  As to any Certificate (other than the Class R and Class V Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class.  With respect to any Certificate (other than the Class R and Class V Certificates), the percentage interest is equal to the Denomination as of the Closing Date of such Certificate (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) divided by the Original Certificate Balance or Original Notional Amount, as applicable, of such Class of Certificates as of the Closing Date (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate). With respect to a Class R or a Class V Certificate, the Percentage Interest is set forth on the face thereof.

 

“Performance Certification”:  As defined in Section 11.06.

 

“Performing Party”:  As defined in Section 11.12.

 

 -99-

 

 

“Periodic Payment”:  With respect to any Mortgage Loan or any related Companion Loan, the scheduled monthly payment of principal and/or interest (other than Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable (as the terms of the applicable Mortgage Loan or Companion Loan may be changed or modified in connection with a bankruptcy or similar proceedings involving the related Mortgagor or by reason of a modification, extension, waiver or amendment granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to time under the related Mortgage Note and applicable law, without regard to any acceleration of principal of such Mortgage Loan or Companion Loan by reason of default thereunder and without regard to any Excess Interest.

 

“Permitted Investments”: Any one or more of the following obligations or securities (including obligations or securities of the Certificate Administrator, or managed by the Certificate Administrator or any Affiliate of the Certificate Administrator, if otherwise qualifying hereunder), regardless of whether issued by the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, or any of their respective Affiliates and having the required ratings, if any, provided for in this definition and which shall not be subject to liquidation prior to maturity:

 

(i)   direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, the United States of America, Fannie Mae or Freddie Mac or any such agency or instrumentality of the United States of America, other than an unsecured senior debt obligation thereof, shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Certificate (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that are then rated by such Rating Agency, such class of securities) as evidenced in writing, other than (a) unsecured senior debt obligations of the U.S. Treasury (direct or fully funded obligations), U.S. Department of Housing and Urban Development public housing agency bonds, Federal Housing Administration debentures, Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, RefCorp debt obligations and SBA-guaranteed participation certificates and guaranteed pool certificates and (b) Farm Credit System consolidated systemwide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations rated at least “A-1” by S&P, if such obligations mature in sixty (60) days or less, or rated at least “AA-”, “A-1+” or “AAAm” by S&P, if such obligations mature in 365 days or less;

 

(ii)  time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in one (1) year or less after the date of issuance and are issued or held by any depository institution or trust company (including the Trustee) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking

 

 -100-

 

 

authorities that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable S&P Permitted Investment Rating; or, in each case, such other rating as would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency whose rating requirements are not so satisfied to any Class of Certificates (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that is then rated by such rating agency, such class of securities) as evidenced in writing;

 

(iii) repurchase agreements or obligations with respect to any security described in clause (i) above where such security has a remaining maturity of one year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) described in clause (ii) above;

 

(iv) debt obligations bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which mature in one (1) year or less from the date of acquisition that, in each case, satisfy (x) the Applicable Fitch Permitted Investment Rating, (y) the Applicable KBRA Permitted Investment Rating and (z) the Applicable S&P Permitted Investment Rating (or, in the case of each of clause (x), (y) and (z), such lower rating requirement as is the subject of a Rating Agency Confirmation by each Rating Agency whose rating requirements are not so satisfied relating to the Certificates and any Serviced Companion Loan Securities); provided, however, that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then outstanding principal amount of securities issued by such corporation and held in the accounts established hereunder to exceed 10% of the sum of the aggregate principal balance and the aggregate principal amount of all Permitted Investments in such accounts;

 

(v)  commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) that, in each case, satisfy (x) the Applicable Fitch Permitted Investment Rating, (y) the Applicable KBRA Permitted Investment Rating and (z) the Applicable S&P Permitted Investment Rating (or, in the case of each of clause (x), (y) and (z), such lower rating requirement as is the subject of a Rating Agency Confirmation by each Rating Agency whose rating requirements are not so satisfied relating to the Certificates and any Serviced Companion Loan Securities);

 

(vi) money market funds, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep, the Wells Fargo Money Market Funds or the Wells Fargo Advantage Government Money Market Fund) so long as any such

 

 -101-

 

 

fund is rated “AAAm” by S&P and in the highest short term unsecured debt ratings category by each of Fitch and KBRA;

 

(vii) any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, obligation, security or investment and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); and

 

(viii) any other demand, money market or time deposit, obligation, security or investment not listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency;

 

provided, however, that with respect to any Permitted Investment for which a rating by S&P is required as set forth above, such rating must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators, such as the “(sf)” subscript, and unsolicited ratings; provided, further, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change and (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations, (b) if such instrument may be redeemed at a price below the purchase price or (c) if such investment is purchased at a premium over par; and provided, further, however, that no amount beneficially owned by any Trust REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the applicable Master Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of any Trust REMIC. Permitted Investments may not be interest-only securities. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the Business Day preceding the day before the date such amounts are required to be applied hereunder.

 

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title agency fees and/or other fees, insurance commissions or fees received or retained by the applicable Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Mortgage Loan and

 

 -102-

 

 

Serviced Companion Loan (including any related REO Property) in accordance with this Agreement.

 

“Permitted Transferee”:  Any Person or any agent thereof other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an Ownership Interest in any Class R Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S. Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.

 

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

 

“Plan”:  As defined in Section 5.03(n).

 

“Plan Fiduciary”:  As defined in Section 5.03(r).

 

“Pre-Close Information”: As defined in Section 3.13(c).

 

“Preliminary Dispute Resolution Election Notice”: As defined in Section 2.03(l)(i).

 

“Prepayment Assumption”:  A “constant prepayment rate” of 0% used for determining the accrual of original issue discount and market discount, if any, and the amortization premium, if any, on the Certificates for federal income tax purposes; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.

 

“Prepayment Interest Excess”: For any Distribution Date and with respect to any Serviced Mortgage Loan or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Due Date and prior to the following Determination Date, the amount of interest (net of the related Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest), to the extent collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any such Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment from such Due Date to, but not including, the date of such prepayment (or any later date through which interest accrues). Prepayment Interest Excesses (to

 

 -103-

 

 

the extent not offset by Prepayment Interest Shortfalls or required to be paid as Compensating Interest Payments) collected on the Serviced Mortgage Loans and any Serviced Companion Loan, will be retained by the applicable Master Servicer as additional servicing compensation.

 

“Prepayment Interest Shortfall”: For any Distribution Date and with respect to any Serviced Mortgage Loan or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Determination Date (or, with respect to each such Mortgage Loan or Serviced Whole Loan, as applicable, with a Due Date occurring after the related Determination Date, the related Due Date) and prior to the following Due Date, the amount of interest (net of the related Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest), to the extent not collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment during the period commencing on the date as of which such Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, and ending on such following Due Date.  With respect to any Serviced AB Whole Loan, any Prepayment Interest Shortfall for any Distribution Date shall be allocated first to the related AB Subordinate Companion Loan, and then to the related Mortgage Loan and any related Serviced Pari Passu Companion Loan, on a pro rata basis.

 

“Prepayment Premium”: With respect to any Mortgage Loan, any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, that Mortgage Loan or any successor REO Loan (but excluding any related Companion Loan) with respect thereto (including any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject Mortgagor if and as set forth in the related Intercreditor Agreement).

 

“Primary Collateral”:  With respect to any Crossed Underlying Loan, that portion of the Mortgaged Property designated as directly securing such Crossed Underlying Loan and excluding any Mortgaged Property as to which the related lien may only be foreclosed upon by exercise of the cross-collateralization provisions of such Crossed Underlying Loan.

 

“Primary Servicing Fee”:  The monthly fee payable by the applicable Master Servicer solely from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues at the rate per annum specified as such in the Sub-Servicing Agreement with such Initial Sub-Servicer.

 

“Prime Rate”:  The “Prime Rate” as published in the “Money Rates” section of the New York City edition of The Wall Street Journal (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer

 

 -104-

 

 

exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time.

 

“Principal Balance Certificates”: Each of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G, Class H and Class J Certificates, the Exchangeable P&I Certificates and the RR Interest.

 

“Principal Distribution Amount”: With respect to any Distribution Date and the Principal Balance Certificates (other than the RR Interest), an amount equal to the sum of (a) the Principal Shortfall for such Distribution Date and (b) the Non-Retained Percentage of the Aggregate Principal Distribution Amount for such Distribution Date.

 

“Principal Prepayment”:  Any payment of principal made by the Mortgagor on a Mortgage Loan or Serviced Whole Loan that is received in advance of its scheduled Due Date as a result of such prepayment.

 

“Principal Shortfall”:  For any Distribution Date after the initial Distribution Date with respect to the Mortgage Loans, the amount, if any, by which (a) the related Principal Distribution Amount for the preceding Distribution Date, exceeds (b) the aggregate amount actually distributed on the preceding Distribution Date in respect of such Principal Distribution Amount. The Principal Shortfall for the initial Distribution Date will be zero.

 

“Privileged Communications”:  Any correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer referred to in clause (i) of the definition of “Privileged Information”.

 

“Privileged Information”:  Any (i) correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer related to any Specially Serviced Loan (in each case, other than with respect to any Excluded Loan as to such party) or the exercise of the Directing Certificateholder’s consent or consultation rights or the Risk Retention Consultation Party’s consultation rights under this Agreement, (ii) strategically sensitive information (including, without limitation, information contained within any Asset Status Report or Final Asset Status Report) that the applicable Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party and (iii) information subject to attorney-client privilege. Each Master Servicer, each Special Servicer, the Operating Advisor and the Asset Representations Reviewer shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or

 

 -105-

 

 

(d) the Restricted Party is required by law, rule, regulation, order, judgment or decree to disclose such information.

 

“Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Underwriters, the Mortgage Loan Sellers, each Master Servicer, each Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by a Master Servicer or a Special Servicer, the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Companion Holder who provides an Investor Certification, any Non-Serviced Master Servicer, any master servicer under an Other Pooling and Servicing Agreement, any Person (including the Directing Certificateholder or Risk Retention Consultation Party) who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with an NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided, however, that in no event may a Borrower Party (other than a Borrower Party that is the Risk Retention Consultation Party or a Special Servicer) be entitled to receive (i) if such party is the Directing Certificateholder or any Controlling Class Certificateholder, any Excluded Information via the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)), and (ii) if such party is not the Directing Certificateholder or any Controlling Class Certificateholder, any information other than the Distribution Date Statement. In determining whether any Person is an Additional Servicer or an Affiliate of the Operating Advisor, the Certificate Administrator may rely on direction by any Master Servicer, any Special Servicer, any Mortgage Loan Seller or the Operating Advisor, as the case may be.

 

Notwithstanding anything to the contrary in this Agreement, if a Special Servicer obtains knowledge that it has become a Borrower Party, such Special Servicer shall nevertheless be a Privileged Person; provided that such Special Servicer (i) shall not directly or indirectly provide any information related to the related Excluded Special Servicer Loan to (A) the related Borrower Party, (B) any of such Special Servicer’s employees or personnel or any of its Affiliate involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party and (ii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above; provided, further, that nothing in this Agreement shall be construed as an obligation of any Master Servicer or the Certificate Administrator to restrict access by a Special Servicer or any Excluded Special Servicer to any information related to any Excluded Special Servicer Loan and in no case shall any Master Servicer or the Certificate Administrator be held liable if a Special Servicer accesses any Excluded Special Servicer Information relating to the Excluded Special Servicer Loan; provided, further, that (a) the applicable Master Servicer shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan and (b) the Certificate Administrator shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan; and provided, further, however, that any Excluded Controlling Class Holder shall be permitted to reasonably request and to obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any

 

 -106-

 

 

Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information).

 

“Prohibited Party”: Any proposed Servicing Function Participant that is listed on the Depositor’s Do Not Hire List.

 

“Prohibited Prepayment”: As defined in the definition of Compensating Interest Payments.

 

“Proposed Course of Action”:  As defined in Section 2.03(l)(i).

 

“Proposed Course of Action Notice”: As defined in Section 2.03(l)(i).

 

“Prospectus”:  The Prospectus, dated December 14, 2021, relating to the Registered Certificates.

 

“PSA Party Repurchase Request”: As defined in Section 2.03(k)(ii).

 

“PTCE”: Prohibited Transaction Class Exemption.

 

“Purchase Price”: With respect to any Mortgage Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 5 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.16, or (C) Section 9.01, a price, without duplication, equal to:

 

(i)   the outstanding principal balance of such Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) as of the date of purchase; plus

 

(ii)  all accrued and unpaid interest on the Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), at the related Mortgage Rate in effect from time to time (excluding any portion of such interest that represents Default Interest or Excess Interest on any ARD Loan), to, but not including, the Due Date therefor immediately preceding or coinciding with the Determination Date for the Collection Period of purchase; plus

 

(iii) all related unreimbursed Servicing Advances plus accrued and unpaid interest on all related Advances at the Reimbursement Rate, Special Servicing Fees (whether paid or unpaid) and any other additional trust fund expenses (except for Liquidation Fees) in respect of such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), if any; plus

 

 -107-

 

 

(iv) if such Mortgage Loan (or related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Certificate Administrator or the Trustee in respect of the omission, breach or defect giving rise to the repurchase or substitution obligation, including any expenses arising out of the enforcement of the repurchase or substitution obligation, including, without limitation, legal fees and expenses and any additional trust fund expenses relating to such Mortgage Loan (or related REO Loan); provided, however, that such out-of-pocket expenses shall not include expenses incurred by Certificateholders or Certificate Owners in instituting an Asset Review Vote Election, in taking part in an Asset Review vote or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(l);

 

(v)  Liquidation Fees, if any, payable with respect to such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) (which will not include any Liquidation Fees if such repurchase occurs or a Loss of Value Payment is received during the Initial Cure Period or, if applicable, prior to the expiration of the Extended Cure Period); plus

 

(vi) solely in the case of a repurchase or substitution by the related Mortgage Loan Seller, any Asset Representations Reviewer Asset Review Fee for such Mortgage Loan, to the extent not previously paid by the related Mortgage Loan Seller.

 

Solely with respect to any Serviced Whole Loan to be sold pursuant to Section 3.16(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan, as applicable.  With respect to any REO Property to be sold pursuant to Section 3.16(b), “Purchase Price” shall mean the amount calculated in accordance with the second preceding sentence in respect of the related REO Loan (including any related Companion Loan).  With respect to any sale pursuant to Section 3.16(a)(ii) or Section 3.16(e) or for purposes of calculating any Gain-on-Sale Proceeds, the “Purchase Price” shall be allocated between the related Mortgage Loan and Companion Loan, as applicable, in accordance with, and shall be equal to the amount provided pursuant to, the provisions of the related Intercreditor Agreement. With respect to any Joint Mortgage Loan, the Purchase Price that would be payable by each of the applicable Mortgage Loan Sellers for its related Mortgage Note shall be its respective Mortgage Loan Seller Percentage Interest as of the Closing Date of the total Purchase Price for such Mortgage Loan. Notwithstanding the foregoing, with respect to any repurchase pursuant to sub-clause (A) and sub-clause (C) hereof, the “Purchase Price” shall not include any amounts payable in respect of any related Companion Loan.

 

“Qualified Institutional Buyer”: A “qualified institutional buyer” as defined in Rule 144A under the Act.

 

 -108-

 

 

“Qualified Insurer”:  (i) With respect to any Mortgage Loan, REO Loan or REO Property, an insurance company or security or bonding company qualified to write the related Insurance Policy in the relevant jurisdiction with an insurance financial strength rating of at least:  (a) “A-” by S&P (or, if not rated by S&P, at least an equivalent rating by one NRSRO (which may include Fitch or KBRA)) and (b) “A” by Fitch (or, if not rated by Fitch, at least an equivalent rating by one other NRSRO (which may include S&P or KBRA)), and (ii) with respect to the fidelity bond and errors and omissions insurance policy required to be maintained pursuant to Section 3.07(c), except as otherwise permitted by Section 3.07(c), an insurance company that has a claims paying ability (or the obligations which are guaranteed or backed by a company having such claims paying ability) rated by at least one (1) of the following rating agencies of at least (a) “A3” by Moody’s, (b) “A-” by S&P, (c) “A-” by Fitch, (d) “A-:X” by A.M. Best Company, Inc., or (e) “A(low)” by DBRS Morningstar, or, in the case of clauses (i) or (ii), any other insurer acceptable to the Rating Agencies, as evidenced by a Rating Agency Confirmation and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

“Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the applicable Special Servicer contained in this Agreement, (ii) is not the Operating Advisor, the Asset Representations Reviewer or an Affiliate of the Operating Advisor or the Asset Representations Reviewer, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, (vi) currently has a special servicer rating of at least “CSS3” from Fitch, (vii) is currently acting as a special servicer in a commercial mortgage-backed securities transaction rated by Moody’s on a transaction-level basis (as to which commercial mortgage-backed securities transaction there are outstanding a commercial mortgage-backed securities rated by Moody’s), and has not been publicly cited by Moody’s as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination, (viii) is listed on S&P’s Select Servicer List as a “U.S. Commercial Mortgage Special Servicer”, and (ix) is currently acting as a special servicer in a transaction rated by KBRA and has not been publicly cited by KBRA as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

 -109-

 

 

“Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution will be permitted) replacing a removed Mortgage Loan that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the removed Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a fixed Mortgage Rate not less than the Mortgage Rate of the removed Mortgage Loan, determined without regard to any prior modification, waiver or amendment of the terms of the removed Mortgage Loan; (iii) have the same Due Date as and Grace Period no longer than that of the removed Mortgage Loan; (iv) accrue interest on the same basis as the removed Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve (12) 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than five (5) years less than, the remaining term to stated maturity of the removed Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of the loan-to-value ratio for the removed Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to (A) with respect to any Mortgage Loan other than an NCB Co-op Mortgage Loan, the greater of (i) the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date and (ii) 1.25x; or (B) in the case of an NCB Co-op Mortgage Loan, the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date; (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date five (5) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the removed Mortgage Loan; (xiii) not be substituted for a removed Mortgage Loan unless the Trustee and the Certificate Administrator have received Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved, so long as a Control Termination Event has not occurred and is not continuing and the affected Mortgage Loan is not an Excluded Loan with respect to either the Directing Certificateholder or the Holder of the majority of the Controlling Class, by the Directing Certificateholder; (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a removed Mortgage Loan if it would result in an Adverse REMIC Event other than the imposition of a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel at the cost of the related Mortgage Loan Seller; (xvii) have an engineering report that indicates no material adverse property condition or deferred maintenance with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. In the event that more than one mortgage loan is substituted for a removed Mortgage Loan, then the amounts described in clause (i) shall be determined on the basis of aggregate Stated Principal Balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through

 

 -110-

 

 

(xviii); provided that the rates described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Rate (net of the Servicing Fee Rate, any Non-Serviced Primary Servicing Fee Rate, the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on, or subject to a cap equal to, the Weighted Average Net Mortgage Rate) of any Class of Principal Balance Certificates having a Certificate Balance then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Qualified Substitute Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee, the Certificate Administrator and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder.

 

“RAC No-Response Scenario”:  As defined in Section 3.25(a).

 

“RAC Requesting Party”:  As defined in Section 3.25(a).

 

“Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in December 2064.

 

“Rating Agency”:  Each of Fitch, S&P and KBRA or their successors in interest. If no such rating agency nor any successor thereof remains in existence, “Rating Agency” shall be deemed to refer to such NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each applicable Special Servicer and each applicable Master Servicer, and specific ratings of Fitch, S&P and KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter.

 

“Rating Agency Inquiry”:  As defined in Section 4.07(c).

 

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.07(c).

 

“Realized Loss”:  With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Non-Retained Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the

 

 -111-

 

 

extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any REO Loans (excluding any portion allocable to any related Companion Loan, if applicable) expected to be outstanding immediately following such Distribution Date, is less than (ii) the then-aggregate Certificate Balance of the Principal Balance Certificates (other than the RR Interest) after giving effect to distributions of principal on such Distribution Date.

 

“Received Classes”: As defined in Section 5.11(c).

 

“Record Date”:  With respect to any Distribution Date, the last Business Day of the month immediately preceding the month in which that Distribution Date occurs.

 

“Registered Certificates”:  The Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A and Class X-B Certificates, the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

 

“Regular Certificates”: Any of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G, Class H, Class J, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H and Class X-J Certificates and the RR Interest.

 

“Regulation AB”:  Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

“Regulation AB Companion Loan Securitization”: As defined in Section 11.15(a).

 

“Regulation AB Servicing Officer”: Any officer or employee of any Master Servicer or any Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans or Companion Loans, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee and/or the Certificate Administrator by the applicable Master Servicer or the applicable Special Servicer, as applicable, as such list may from time to time be amended.

 

“Regulation D”:  Regulation D under the Act.

 

“Regulation S”:  Regulation S under the Act.

 

“Regulation S Book-Entry Certificates”: The Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S and represented by one or more Book-Entry Non-Registered Certificates deposited with the Certificate Administrator as custodian for the Depository.

 

 -112-

 

 

“Reimbursement Rate”:  The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate per annum shall equal the Prime Rate.

 

“Related Certificates,” “Related Exchangeable Upper-Tier Regular Interest” and “Related Lower-Tier Regular Interests”: For each of the following Classes of Certificates and Exchangeable Upper-Tier Regular Interests, the related Class of Lower-Tier Regular Interests; and for each of the following Classes of Lower-Tier Regular Interests, the related Class of Certificates or Exchangeable Upper-Tier Regular Interest set forth below:

 

Related Certificates or Related Exchangeable Upper-Tier Regular Interest	Related Lower-Tier Regular Interest
Class A-1 Certificates	Class LA1 Uncertificated Interest
Class A-2 Certificates	Class LA2 Uncertificated Interest
Class A-3 Certificates	Class LA3 Uncertificated Interest
Class A-SB Certificates	Class LASB Uncertificated Interest
Class A-4 Upper-Tier Regular Interest	Class LA4 Uncertificated Interest
Class A-5 Upper-Tier Regular Interest	Class LA5 Uncertificated Interest
Class A-S Upper-Tier Regular Interest	Class LAS Uncertificated Interest
Class B Upper-Tier Regular Interest	Class LB Uncertificated Interest
Class C Upper-Tier Regular Interest	Class LC Uncertificated Interest
Class D Certificates	Class LD Uncertificated Interest
Class E Certificates	Class LE Uncertificated Interest
Class F Certificates	Class LF Uncertificated Interest
Class G Certificates	Class LG Uncertificated Interest
Class H Certificates	Class LH Uncertificated Interest
Class J Certificates	Class LJ Uncertificated Interest
RR Interest	LRR Uncertificated Interest

 

“Relevant Servicing Criteria”: The Servicing Criteria applicable to a specific party, as set forth on Exhibit Z attached hereto. For clarification purposes, multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function Participant engaged by the Trustee, the Certificate Administrator, a Master Servicer or a Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to such Master Servicer, such Special Servicer, the Trustee and/or the Certificate Administrator.

 

“REMIC”:  A “real estate mortgage investment conduit” as defined in Section 860D of the Code (or any successor thereto).

 

“REMIC Administrator”:  The Certificate Administrator or any REMIC administrator appointed pursuant to Section 10.04.

 

“REMIC Provisions”:  Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and temporary and final Treasury Regulations (or proposed regulations that would apply by reason of their proposed effective date

 

 -113-

 

 

to the extent not inconsistent with temporary or final regulations) and any rulings or announcements promulgated thereunder, as the foregoing may be in effect from time to time.

 

“Remittance Date”:  The Business Day immediately preceding each Distribution Date.

 

“Rents from Real Property”:  With respect to any REO Property, gross income of the character described in Section 856(d) of the Code.

 

“REO Account”:  A segregated custodial account or accounts created and maintained by (a) with respect to each of the Mortgage Loans other than the NCB Co-op Mortgage Loans, the General Special Servicer pursuant to Section 3.14(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan, for the benefit of the related Serviced Companion Noteholder, which shall initially be entitled “Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, REO Account” and (b) with respect to the NCB Co-op Mortgage Loans, the NCB Special Servicer, pursuant to and for the benefit of the Persons specified in Section 3.14(b), which shall be titled “National Cooperative Bank, N.A., as NCB Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. Any such account or accounts shall be an Eligible Account.

 

“REO Acquisition”:  The acquisition for federal income tax purposes of any REO Property pursuant to Section 3.09.

 

“REO Disposition”:  The sale or other disposition of the REO Property pursuant to Section 3.16.

 

“REO Extension”:  As defined in Section 3.14(a).

 

“REO Loan”:  Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan, the related Companion Loan, as applicable), deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Loan shall be deemed to be outstanding for so long as the applicable portion of the related REO Property (or beneficial interest therein, in the case of a Non-Serviced Mortgage Loan) remains part of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same terms and conditions as its predecessor Mortgage Loan or Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on such predecessor Mortgage Loan or Companion Loan, if applicable). Each REO Loan shall be deemed to have an initial outstanding principal balance and Stated Principal Balance equal to the outstanding principal balance and Stated Principal Balance, respectively, of its predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition. All amounts due and owing in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest,

 

 -114-

 

 

shall continue to be due and owing in respect of an REO Loan. All amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional trust fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances with respect to such REO Loan, in each case, that were paid from collections on the related Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Aggregate Principal Distribution Amount” shall be deemed outstanding until recovered.  Notwithstanding anything to the contrary, with respect to each Serviced Whole Loan, no amounts relating to the related REO Property or REO Loan allocable to the related Serviced Pari Passu Companion Loan, as applicable, will be available for amounts due to the Certificateholders or to reimburse the Trust, other than in the limited circumstances related to Servicing Advances, indemnification payments, Special Servicing Fees and other reimbursable expenses related to such Serviced Whole Loan incurred with respect to such Serviced Whole Loan, in accordance with Section 3.05(a), or with respect to an AB Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

 

“REO Property”:  A Mortgaged Property acquired by the applicable Special Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for the benefit of the Certificateholders (and the related Companion Holder, subject to the related Intercreditor Agreement, with respect to a Mortgaged Property securing a Serviced Whole Loan) to the extent set forth herein and the Trustee (as holder of the Lower-Tier Regular Interests) (and also including, if applicable, the Trust’s beneficial interest in a Non-Serviced Mortgaged Property acquired by the applicable Non-Serviced Special Servicer on behalf of, and in the name of, the applicable Non-Serviced Trustee or a nominee thereof for the benefit of the certificateholders under the applicable Non-Serviced Trust) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of a Mortgage Loan. References herein to a Special Servicer acquiring, maintaining, managing, inspecting, insuring, selling or reporting or to Appraisal Reduction Amounts and Final Recovery Determinations with respect to an “REO Property”, shall not include the Trust’s beneficial interest in a Non-Serviced Mortgaged Property. For the avoidance of doubt, REO Property, to the extent allocable to a Companion Loan, shall not be an asset of the Trust Fund, any Trust REMIC or the Grantor Trust.

 

“REO Revenues”:  All income, rents and profits derived from the ownership, operation or leasing of any REO Property.

 

“Reportable Event”:  As defined in Section 11.07.

 

“Reporting Requirements”: As defined in Section 11.12.

 

 -115-

 

 

“Reporting Servicer”:  Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant engaged by such parties, as the case may be.

 

“Repurchase Request”:  A Certificateholder Repurchase Request or a PSA Party Repurchase Request.

 

“Repurchase Request Recipient”: As defined in Section 2.02(g).

 

“Repurchased Note”: As defined in Section 3.30(a).

 

“Repurchasing Mortgage Loan Seller”: As defined in Section 3.30(a).

 

“Request for Release”:  A release signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as applicable, in the form of Exhibit E attached hereto.

 

“Requesting Certificateholder”: As defined in Section 2.03(l)(iii).

 

“Requesting Holders”:  As defined in Section 4.05(b).

 

“Required Credit Risk Retention Percentage”: 5%.

 

“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.

 

“Resolution Failure”:  As defined in Section 2.03(k)(iii).

 

“Resolved”:  With respect to a Repurchase Request, (i) that the related Material Defect has been cured, (ii) the related Mortgage Loan has been repurchased in accordance with the related Mortgage Loan Purchase Agreement, (iii) a mortgage loan has been substituted for the related Mortgage Loan in accordance with the related Mortgage Loan Purchase Agreement, (iv) the applicable Mortgage Loan Seller has made a Loss of Value Payment, (v) a contractually binding agreement has been entered into between the Enforcing Servicer, on behalf of the Trust, and the related Mortgage Loan Seller that settles the related Mortgage Loan Seller’s obligations under the related Mortgage Loan Purchase Agreement, or (vi) the related Mortgage Loan is no longer property of the Trust as a result of a sale or other disposition in accordance with this Agreement.

 

“Responsible Officer”:  When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject.

 

 -116-

 

 

“Restricted Period”:  The forty (40) day period prescribed by Regulation S commencing on the later of (a) the date upon which Certificates are first offered to Persons other than the Initial Purchasers or Underwriters and any other distributor (as such term is defined in Regulation S) of the Certificates and (b) the Closing Date.

 

“Retained Certificate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Required Credit Risk Retention Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Retained Certificate Gain-on-Sale Remittance Amount.

 

“Retained Certificate Gain-on-Sale Remittance Amount”: For each Distribution Date, the lesser of (i) the amount on deposit in the Retained Certificate Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Required Credit Risk Retention Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

 

“Retained Certificate Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Holders of the RR Interest, which shall initially be entitled “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Retained Certificate Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

“Retained Certificate Interest Distribution Amount”:  With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of interest distributed to the Holders of the Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(i), (iv), (vii), (x), (xiii), (xvi), (xix), (xxii), (xxv) and (xxviii) on such Distribution Date.

 

“Retained Certificate Principal Distribution Amount”:  With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of principal distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix) on such Distribution Date.

 

“Retained Certificate Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any successor REO Loans (but excluding any related Companion Loans) expected to be outstanding

 

 -117-

 

 

immediately following such Distribution Date, is less than (ii) the Certificate Balance of the RR Interest after giving effect to distributions of principal on such Distribution Date.

 

“Retained Certificate Realized Loss Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of reimbursed Realized Losses and interest thereon distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(iii), (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv), (xxvii) and (xxx) on such Distribution Date.

 

“Retained Defeasance Rights and Obligations”: Any of the rights and obligations of the Mortgage Loan Sellers defined in Section 3.18(i).

 

“Retained Fee Rate”:  A rate equal to (A) 0.0100% per annum with respect to each NCB Mortgage Loan, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans) a rate that causes the Transferable Servicing Interest to equal zero.

 

“Retained Interest Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be deemed to be owned by the Holders of the RR Interest in proportions equal to their respective Percentage Interests.

 

“Retaining Parties”: Each of Morgan Stanley Bank, N.A., Bank of America, National Association, and Wells Fargo Bank, National Association, acting as Holder of the RR Interest, and any successor Holder of all or part of the RR Interest.

 

“Retaining Sponsor”: Morgan Stanley Mortgage Capital Holdings LLC, acting as retaining sponsor as such term is defined in Risk Retention Rules.

 

“Reverse Sequential Order”: With respect to any distribution or allocation relating to principal in respect of the Principal Balance Certificates (other than any Exchangeable Certificates and the RR Interest) and the Exchangeable Upper-Tier Regular Interests:

 

first, to the Class J Certificates;

 

second, to the Class H Certificates;

 

third, to the Class G Certificates;

 

fourth, to the Class F Certificates;

 

fifth, to the Class E Certificates;

 

sixth, to the Class D Certificates;

 

seventh, to the Class C Upper-Tier Regular Interest (and, correspondingly, to the Class C, Class C-1 and Class C-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class C Upper-Tier Regular Interest);

 

 -118-

 

 

eighth, to the Class B Upper-Tier Regular Interest (and, correspondingly, to the Class B, Class B-1 and Class B-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class B Upper-Tier Regular Interest);

 

ninth, to the Class A-S Upper-Tier Regular Interest (and, correspondingly, to the Class A-S, Class A-S-1 and Class A-S-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-S Upper-Tier Regular Interest); and

 

tenth, pro rata (based on their respective Certificate Balances), to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable),

 

in each case until the remaining Certificate Balances of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests have been reduced to zero.

 

“Review Materials”: As defined in Section 12.01(b)(i).

 

“Review Package”: A Rating Agency Confirmation request and any supporting documentation delivered therewith.

 

“Revised Rate”:  With respect to any ARD Loan, the increased interest rate after the related Anticipated Repayment Date (in the absence of a default) for each applicable Mortgage Loan, as calculated and as set forth in the related Mortgage Loan.

 

“Risk Retention Allocation Percentage”: A percentage equal to the Required Credit Risk Retention Percentage divided by the Non-Retained Percentage.

 

“Risk Retention Consultation Party”: The Risk Retention Consultation Party shall be the party selected by the Holders of more than 50% of the RR Interest (by Certificate Balance, as determined by the Certificate Registrar) from time to time. The Depositor shall promptly provide the name and contact information for the initial Risk Retention Consultation Party upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Risk Retention Consultation Party has not changed until such parties receive written notice of the identity and contact information of a replacement of the Risk Retention Consultation Party from a party holding the requisite interest in the RR Interest (as confirmed by the Certificate Registrar). The initial Risk Retention Consultation Party shall be Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company.

 

“Risk Retention Requirements”: The credit risk retention requirements of Section 15G of the Exchange Act (15 U.S.C. §78o-11), as added by Section 941 of the Dodd-Frank Act.

 

“Risk Retention Rules”: The joint final rule that was promulgated to implement the Risk Retention Requirements (which such joint final rule has been codified, inter alia, at 17 C.F.R.

 

 -119-

 

 

§ 246), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development in the adopting release (79 Fed. Reg. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective, from time to time, as of the applicable compliance date specified therein. Any reference to a Section of the Risk Retention Rules shall mean the subsection of the Risk Retention Rules identified with the same corresponding number as the referenced “Section”. For example, “Section 7 of the Risk Retention Rules” means 17 C.F.R. § 246.7.

 

“RR Interest”:  A Certificate (or all Certificates, as the context may require) designated as “RR Interest” on the face thereof, in the form of Exhibit A-4 hereto, and evidencing (i) a beneficial interest in a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions and (ii) beneficial ownership of the RR Interest Specific Grantor Trust Assets.

 

“RR Interest Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of a portion of any Excess Interest equal to the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate amount of Excess Interest received on or prior to the related Determination Date, related amounts in the Excess Interest Distribution Account and the proceeds thereof, beneficial ownership of which is represented by the RR Interest.

 

“RR Interest Transfer Restriction Period”: The period from the Closing Date to the earlier of: (a) the latest of (i) the date on which the aggregate unpaid principal balance of all outstanding Mortgage Loans has been reduced to 33.0% of the aggregate Cut-off Date Balance of the Mortgage Loans; (ii) the date on which the aggregate outstanding principal balance of the Principal Balance Certificates has been reduced to 33.0% of the aggregate outstanding principal balance of the Principal Balance Certificates as of the Closing Date; and (iii) two years after the Closing Date; and (b) the date on which the Risk Retention Rules have been effectively abolished or amended or officially determined by the OCC, the Board of Governors of the Federal Reserve System, the FDIC, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development to be no longer applicable to the Trust.

 

“Rule 144A”:  Rule 144A under the Act.

 

“Rule 144A Book-Entry Certificate”: With respect to the Non-Registered Certificates offered and sold in reliance on Rule 144A, a single, permanent Book-Entry Certificate, in definitive, fully registered form without interest coupons.

 

“Rules”: As defined in Section 2.03(n)(iv).

 

“S&P”:  S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, and its successors in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and

 

 -120-

 

 

specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Sarbanes-Oxley Act”:  The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

“Sarbanes-Oxley Certification”: As defined in Section 11.05(a)(iv).

 

“Schedule AL Additional File”: The data file containing additional information or schedules regarding data points in the CREFC^® Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act.

 

“Scheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the principal portions of the following: (a) all Periodic Payments (excluding Balloon Payments) due in respect of such Mortgage Loans during or, if and to the extent not previously received or advanced pursuant to Section 4.03 in respect of a preceding Distribution Date (and not previously distributed to Certificateholders), prior to, the related Collection Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Collection Period, in each case to the extent either (i) paid by the Mortgagor as of the related Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date) or (ii) advanced by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments with respect to the Mortgage Loans to the extent received on or prior to the related Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above.

 

“Secure Data Room”: The webpage, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “Secure Data Room” tab on the page relating to this transaction.

 

“Securities Act”:  The Securities Act of 1933, as it may be amended from time to time.

 

“Security Agreement”:  With respect to any Mortgage Loan, any security agreement or equivalent instrument, whether contained in the related Mortgage or executed separately, creating in favor of the holder of such Mortgage a security interest in the personal property constituting security for repayment of such Mortgage Loan.

 

“Senior Certificate”:  Any Class A Certificate (other than a Class A-S Exchangeable Certificate) or Class X Certificate.

 

 -121-

 

 

“Serviced AB Mortgage Loan”: Any AB Mortgage Loan serviced pursuant to this Agreement. There are no Serviced AB Mortgage Loans as of the Closing Date.

 

“Serviced AB Whole Loan”: Any AB Whole Loan serviced pursuant to this Agreement. There are no Serviced AB Whole Loans as of the Closing Date.

 

“Serviced Companion Loan”: Any Serviced Pari Passu Companion Loans and any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

“Serviced Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities backed, wholly or partially, by any Serviced Companion Loan.

 

“Serviced Companion Noteholder”: Each of the holders of the Serviced Pari Passu Companion Loans.

 

“Serviced Companion Noteholder Register”: The register maintained by the Companion Paying Agent pursuant to Section 3.28.

 

“Serviced Mortgage Loan”: A Mortgage Loan serviced and administered under this Agreement.   

 

“Serviced Pari Passu Companion Loan”: With respect to each Serviced Whole Loan, any related promissory note that is pari passu in right of payment with the related Serviced Mortgage Loan.

 

“Serviced Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan.

 

“Serviced Pari Passu Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities issued by another securitization and backed by a Serviced Pari Passu Companion Loan.

 

“Serviced Pari Passu Mortgage Loan”: Any Mortgage Loan serviced pursuant to this Agreement that is part of a Serviced Pari Passu Whole Loan. 

 

“Serviced Pari Passu Whole Loan”: Any Whole Loan serviced pursuant to this Agreement comprised of a Serviced Mortgage Loan and one or more Serviced Pari Passu Companion Loans.

 

“Serviced REO Loan”: Any REO Loan that is serviced by a Special Servicer pursuant to this Agreement.

 

“Serviced REO Property”: Any REO Property that is serviced by a Special Servicer pursuant to this Agreement.

 

 -122-

 

 

“Serviced Securitized Companion Loan”: Any Companion Loan that is a component of a Serviced Whole Loan, if and for so long as each such Companion Loan is included in a Regulation AB Companion Loan Securitization.

 

“Serviced Whole Loan”: Each of the Serviced Pari Passu Whole Loans, any Serviced AB Whole Loan and each Servicing Shift Whole Loan (prior to the related Servicing Shift Securitization Date).

 

“Serviced Whole Loan Controlling Holder”: The “Controlling Noteholder” or similar term identified in the Intercreditor Agreement related to a Serviced Whole Loan.

 

“Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan: (i) the date specified as the applicable remittance date (or equivalent concept) in the related Intercreditor Agreement or (ii) if no such applicable remittance date (or equivalent concept) is so specified in the related Intercreditor Agreement, then the earlier of (A) the Remittance Date and (B) one (1) Business Day after the “determination date” (or any term substantially similar thereto) as defined in the related Other Pooling and Servicing Agreement, in each case, as long as the date on which the remittance is required is at least one (1) Business Day after the Due Date.

 

“Servicer Termination Event”: One or more of the events described in Section 7.01(a).

 

“Servicing Account”:  The account or accounts created and maintained pursuant to Section 3.03(a).

 

“Servicing Advances”:  All customary, reasonable and necessary “out of pocket” costs and expenses (including attorneys’ fees and expenses and fees of real estate brokers) incurred by the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and in the case of a Serviced Mortgage Loan, the related Serviced Companion Loan, as applicable), other than a Non-Serviced Mortgage Loan, in respect of which a default, delinquency or other unanticipated event has occurred or as to which a default is reasonably foreseeable or (b) a Mortgaged Property securing a Serviced Mortgage Loan or an REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the applicable Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property and the priority of a Mortgage, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i) – (vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management, maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the applicable Master Servicer or the applicable Special Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of a Mortgage

 

 -123-

 

 

Loan or REO Property.  Each applicable Master Servicer, each applicable Special Servicer and the Trustee shall not make any Servicing Advance in connection with the exercise of any cure rights or purchase rights granted to the holder of a Companion Loan under the related Intercreditor Agreement or this Agreement.

 

“Servicing Criteria”:  The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time and which as of the Closing Date are listed on Exhibit Z hereto.

 

“Servicing Fee”:  With respect to each Mortgage Loan (including each Non-Serviced Mortgage Loan), Serviced Companion Loan, and any REO Loan, the fee payable to the applicable Master Servicer pursuant to the first paragraph of Section 3.11(a).

 

“Servicing Fee Rate”:  With respect to (i) each Serviced Mortgage Loan (other than an NCB Mortgage Loan) (and any successor REO Loan), a per annum rate equal to the sum of master servicing fee rate equal to 0.00250% per annum and a primary servicing fee rate equal to 0.00250% per annum (or, with respect to (A) the Bella Terra Mortgage Loan, 0.01250% per annum, (B) the Skyline Mobile Home and RV Portfolio Mortgage Loan, 0.03000% per annum, (C) the Plaza Retail Center Mortgage Loan, 0.04000% per annum, (D) the Handy Self Storage Mortgage Loan or the Cheyenne West and Donovan Business Parks Mortgage Loan, 0.08000% per annum, and (E) the All Around Storage Mortgage Loan, 0.07250% per annum); (ii) each NCB Mortgage Loan (and any successor REO Loan), a master servicing fee rate equal to 0.08000% per annum and a primary servicing fee rate equal to 0.0% per annum; (iii) each Non-Serviced Mortgage Loan (and any successor REO Loan), a master servicing fee rate equal to 0.00250% per annum; and (iv) each Serviced Companion Loan (and any successor REO Loan), a primary servicing fee rate equal to 0.00250% per annum. Such Servicing Fee Rate shall be computed on the basis of the Stated Principal Balance of the related Mortgage Loan or REO Loan in the same manner in which interest is calculated in respect of such loans. Notwithstanding the above, with respect to each Servicing Shift Mortgage Loan, on and after the related Servicing Shift Securitization Date, the primary servicing fee rate with respect to such Mortgage Loan comprising a part of the related Servicing Fee Rate shall be 0% per annum.

 

“Servicing File”:  A photocopy or electronic copy of all items required to be included in the Mortgage File, together with each of the following, (a) to the extent such items were actually delivered to the related Mortgage Loan Seller, with respect to a Mortgage Loan and (to the extent that the identified documents existed on or before the Closing Date and the applicable reference to Servicing File relates to any period after the Closing Date) delivered by the related Mortgage Loan Seller, to the applicable Master Servicer: (i) a copy of any engineering reports or property condition reports; (ii) other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property), copies of a rent roll (or, with respect to residential cooperative properties, maintenance schedules) and, for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller; (iii) copies of related financial statements or operating statements; (iv) all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller, and its counsel that are privileged communications or constitute legal or other due diligence analyses), Mortgagor’s certificates and certificates of hazard insurance and/or hazard insurance policies or other applicable insurance

 

 -124-

 

 

policies, if any, delivered in connection with the closing of the related Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the documents that were delivered by or on behalf of the Mortgagor, which documents were required to be delivered in connection with the closing of the related Mortgage Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease; and (viii) a copy of all environmental reports that were received by the applicable Mortgage Loan Seller relating to the relevant Mortgaged Property and (b) copies of all modifications, extensions and amendments related to the above, any Appraisals and any other document necessary to service the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and any Serviced Companion Loan, in each case, that are created or prepared after the Closing Date.

 

“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator, that is performing activities that address the Servicing Criteria, unless (i) such Person’s activities relate only to 5% or less of the Mortgage Loans by unpaid principal balance as of any date of determination in accordance with Article XI or (ii) the Depositor reasonably determines that a Master Servicer or a Special Servicer may, for the purposes of the Exchange Act reporting requirements pursuant to applicable Commission guidance, take responsibility for the assessment of compliance with the Servicing Criteria of such Person. The Servicing Function Participants as of the Closing Date are listed on Exhibit FF hereto. Exhibit FF shall be updated and provided to the Depositor and the Certificate Administrator in accordance with Section 11.10(c).

 

“Servicing Officer”:  Any officer and/or employee of a Master Servicer, a Special Servicer or any Additional Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans or Serviced Companion Loans, whose name and specimen signature appear on a list of servicing officers furnished by such Master Servicer, such Special Servicer or any Additional Servicer to the Certificate Administrator, the Trustee, the Operating Advisor and the Depositor on the Closing Date as such list may be amended from time to time thereafter.

 

“Servicing Shift Lead Note”: With respect to any Servicing Shift Whole Loan, as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Servicing Shift Whole Loan including any amendments or modifications, or any renewal or substitution notes, as of such date, the sale of which to the related Non-Serviced Trust will cause servicing to shift from this Agreement to the related Non-Serviced PSA pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. There are no Servicing Shift Lead Notes as of the Closing Date.

 

“Servicing Shift Mortgage Loan” With respect to any Servicing Shift Whole Loan, a Mortgage Loan included in the Trust Fund that will be serviced under this Agreement as of the Closing Date, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on and after the applicable Servicing Shift Securitization Date. There are no Servicing Shift Mortgage Loans as of the Closing Date.

 

 -125-

 

 

“Servicing Shift Securitization Date”: With respect to any Servicing Shift Whole Loan, the date on which the related Servicing Shift Lead Note is included in a Non-Serviced Trust; provided that the holder of such Servicing Shift Lead Note provides each of the parties to this Agreement (in each case only to the extent such party will not also be a party to the related Non-Serviced PSA) with notice in accordance with the terms of the related Intercreditor Agreement that such Servicing Shift Lead Note is to be included in such Non-Serviced Trust which notice shall include contact information for the related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator and Non-Serviced Trustee. There are no Servicing Shift Whole Loans as of the Closing Date.

 

“Servicing Shift Whole Loan”: Any Whole Loan serviced under this Agreement as of the Closing Date that includes a related Servicing Shift Mortgage Loan included in the Trust Fund and one or more Companion Loans not included in the Trust Fund, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on or after the applicable Servicing Shift Securitization Date. There are no Servicing Shift Whole Loans as of the Closing Date.

 

“Servicing Standard”:  As defined in Section 3.01(a).

 

“Servicing Transfer Event”: With respect to any Serviced Mortgage Loan, or related Serviced Companion Loan, the occurrence of any of the following events:

 

(i)   the related Mortgagor has failed to make when due any Balloon Payment, and the Mortgagor has not delivered to the applicable Master Servicer or applicable Special Servicer, on or before the due date of such Balloon Payment, a written and fully executed (subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, as applicable (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to the applicable Special Servicer or the applicable Master Servicer, as applicable) which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within one hundred-twenty (120) days after the date on which such Balloon Payment will become due (provided that if either (x) such refinancing or sale does not occur before the expiration of the time period for refinancing or sale specified in such documentation or (y) the applicable Master Servicer is required to make a P&I Advance in respect of such Mortgage Loan (or, in the case of any Serviced Whole Loan, in respect of the Mortgage Loan included in the same Serviced Whole Loan) at any time prior to such refinancing or sale, a Servicing Transfer Event will occur immediately); or

 

(ii)  the related Mortgagor has failed to make when due any Periodic Payment (other than a Balloon Payment) or any other payment (other than a Balloon

 

 -126-

 

 

Payment) required under the related Mortgage Note or the related Mortgage, which failure has continued unremedied for sixty (60) days;  or

 

(iii) the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect)), that a default in making any Periodic Payment (other than a Balloon Payment) or any other material payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which the subject payment will become due; or the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the holder of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement))) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect), that a default in making a Balloon Payment is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which such Balloon Payment will become due (or, if the Mortgagor has delivered a written and fully executed (subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to

 

 -127-

 

 

the applicable Special Servicer or applicable Master Servicer, as applicable) which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due, the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan prior to the occurrence of a Control Appraisal Period)), that (A) the Mortgagor is likely not to make one or more Assumed Scheduled Payments prior to such a refinancing or sale or (B) such refinancing or sale is not likely to occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due); or

 

(iv) there shall have occurred a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the related Mortgage Loan documents, other than as described in clause (i) or (ii) above, that may, in the good faith and reasonable judgment of the applicable Master Servicer or the applicable Special Servicer (and, in the case of the applicable Special Servicer (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement) or (B) following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing))), materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially and adversely affect the interests of Certificateholders (or, in the case of any Serviced Whole Loan, the interests of any related Serviced Companion Noteholder), which default has continued unremedied for the applicable cure period under the terms of such Mortgage Loan or Serviced Whole Loan (or, if no cure period is specified, sixty (60) days); or

 

 -128-

 

 

(v)  a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the related Mortgagor and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or

 

(vi) the related Mortgagor shall have consented to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property; or

 

(vii) the related Mortgagor shall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspended payment of its obligations; or

 

(viii)           the applicable Master Servicer or the applicable Special Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the corresponding Mortgaged Property; or

 

(ix) the applicable Master Servicer or the applicable Special Servicer (and in the case of the applicable Special Servicer, with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only for so long as no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement))) determines that (i) a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the Mortgage Loan documents (other than as described in clause (iii) above) is imminent or reasonably foreseeable, (ii) such default will materially impair the value of the corresponding Mortgaged Property as security for the Mortgage Loan or Serviced Pari Passu Companion Loan (if any) or otherwise materially and adversely affect the interests of Certificateholders (or the related Serviced Pari Passu Companion Loan Holder) and (iii) the default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan documents, or, if no cure period is specified and the default is capable of being cured, for sixty (60) days;

 

 -129-

 

 

provided that any Mortgage Loan (excluding any Non-Serviced Mortgage Loan) that is cross-collateralized with a Specially Serviced Loan shall be a Specially Serviced Loan so long as such Mortgage Loan is cross-collateralized with a Specially Serviced Loan. If any Serviced Companion Loan becomes a Specially Serviced Loan, the related Serviced Mortgage Loan shall also become a Specially Serviced Loan. If any Serviced Mortgage Loan becomes a Specially Serviced Loan, any related Serviced Companion Loan shall also become a Specially Serviced Loan. With respect to a Non-Serviced Mortgage Loan, the occurrence of a “Servicing Transfer Event” shall be as defined in the Non-Serviced PSA.

 

For the avoidance of doubt, with respect to clauses (ii), (iii), (iv), (vii) and (ix) above, neither (i) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (ii) any default or delinquency that would have existed but for such Payment Accommodation will constitute a Servicing Transfer Event, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

 

“Significant Obligor”: As defined in Section 11.16.

 

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth (4th) calendar quarter of any calendar year), the date that is fifteen (15) days after the Distribution Date occurring on or immediately following the date on which financial statements for such calendar quarter are required to be delivered to the related lender under the related Mortgage Loan documents.

 

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the ninetieth (90th) day after the end of such calendar year.

 

“Similar Law”:  As defined in Section 5.03(n).

 

“Sole Certificateholder”:  Any Certificate Owner, or Certificate Owners acting in unanimity, of a Book-Entry Certificate or a Holder of a Definitive Certificate holding 100% of the then-outstanding Class X-F, Class X-G, Class X-H, Class X-J, Class F, Class G, Class H and Class J Certificates; provided, that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests have been reduced to zero.

 

“Special Notice”:  As defined in Section 5.06.

 

“Special Servicer”: With respect to (i) each of the Mortgage Loans (other than any NCB Mortgage Loan, any Non-Serviced Mortgage Loan and any Excluded Special Servicer Loan), the Serviced Companion Loans, any REO Property acquired by the Trust with respect to any such Mortgage Loan and any matters relating to the foregoing, the General Special Servicer, and its successors in interest and assigns, or any successor special servicer appointed as provided herein, (ii) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to any such NCB Mortgage Loan and any matters relating to the foregoing, the NCB Special Servicer and (iii) any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

 

 -130-

 

 

“Special Servicing Fee”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee payable to the related Special Servicer pursuant to Section 3.11(b).

 

“Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and each REO Loan (other than a Non-Serviced Mortgage Loan) on a loan by loan basis, (a) with respect to the Special Servicer with respect to Mortgage Loans other than the NCB Mortgage Loans, the greater of (i) a per annum rate of 0.25000% and (ii) the per annum rate that would result in a special servicing fee for the related month of $3,500, and (b) with respect to the Special Servicer with respect to NCB Mortgage Loans, the greater of 0.25000% and the per annum rate that would result in a Special Servicing Fee of $1,000 for the related month.

 

“Specially Serviced Loan”:  As defined in Section 3.01(a).

 

“Sponsors”:  The Mortgage Loan Sellers.

 

“Startup Day”:  The day designated as such in Section 10.01(b).

 

“Stated Principal Balance”: With respect to any Mortgage Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage Loan, as of the date it is added to the Trust, the unpaid principal balance of such Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received) minus (y) the sum of:

 

(i)   the principal portion of each Periodic Payment due on such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, due after the Due Date in the related month of substitution), to the extent received from the Mortgagor or advanced by the applicable Master Servicer;

 

(ii)  all Principal Prepayments received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution);

 

(iii) the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on such Mortgage Loan) and Liquidation Proceeds received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution); and

 

(iv) any reduction in the outstanding principal balance of such Mortgage Loan resulting from a Deficient Valuation or a modification of such Mortgage Loan pursuant to the terms and provisions of this Agreement that occurred prior to the end of the Collection Period for the most recent Distribution Date.

 

With respect to any REO Loan that is a successor to a Mortgage Loan (but excluding any related Companion Loan), as of any date of determination, the Stated Principal

 

 -131-

 

 

Balance shall be an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan as of the date of the related REO Acquisition, minus (y) the sum of:

 

(i)   the principal portion of any P&I Advance made with respect to such REO Loan; and

 

(ii)  the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on the related Mortgage Loan), Liquidation Proceeds and REO Revenues received with respect to such REO Loan (but excluding any related Companion Loan).

 

A Mortgage Loan or an REO Loan that is a successor to a Mortgage Loan (but excluding any related Companion Loan) shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which the payments or other proceeds, if any, received in connection with a Liquidation Event in respect thereof are to be (or, if no such payments or other proceeds are received in connection with such Liquidation Event, would have been) distributed to Certificateholders.

 

With respect to each Companion Loan on any date of determination, the Stated Principal Balance shall equal the unpaid principal balance of such Companion Loan as of such date. On any date of determination, the Stated Principal Balance of each Whole Loan shall equal the sum of the Stated Principal Balances of the related Mortgage Loan and the related Companion Loan(s), as applicable, on such date.

 

With respect to any REO Loan that is a successor to a Companion Loan as of any date of determination, the Stated Principal Balance shall equal (x) the Stated Principal Balance of the predecessor Companion Loan as of the date of the related REO Acquisition, minus (y) the principal portion of any amounts allocable to the related Companion Loan in accordance with the related Intercreditor Agreement.

 

With respect to any Mortgage Loan or REO Loan that is paid in full or any Mortgage Loan or REO Loan (or REO Property) liquidated, as of the first Distribution Date that follows the end of the Collection Period during which payments or other proceeds are received in connection with a Liquidation Event with respect to such Mortgage Loan or REO Loan (or REO Property), as applicable, notwithstanding that a loss may occur in connection with such Liquidation Event, the Stated Principal Balance of the Mortgage Loan or REO Loan shall be zero.

 

“Subcontractor”:  Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the CMBS market) of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of a Master Servicer, a Special Servicer, the Operating Advisor, an Additional Servicer or a Sub-Servicer.

 

“Subject Loan”: As defined in Section 12.02(b).

 

“Subordinate Certificate”:  Any Class A-S Exchangeable Certificate, Class B Exchangeable Certificate, Class C Exchangeable Certificate, Class D, Class E, Class F, Class G, Class H or Class J Certificate.

 

 -132-

 

 

“Subordinate Companion Holder”: The holder of any AB Subordinate Companion Loan.

 

“Sub-Servicer”:  Any Person that services Mortgage Loans on behalf of a Master Servicer, a Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by such Master Servicer, such Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans that are identified in Item 1122(d) of Regulation AB.

 

“Sub-Servicing Agreement”:  The written contract between a Master Servicer or a Special Servicer, as the case may be, and any Sub-Servicer relating to servicing and administration of Mortgage Loans as provided in Section 3.20.

 

“Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(b), an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. In the event that one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more removed Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan(s) being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loan(s).

 

“Surrendered Classes”: As defined in Section 5.11(c).

 

“Surviving Entity”:  As defined in Section 6.03(b).

 

“Tax Returns”:  The federal income tax returns on (i) Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC due to its respective classification as a REMIC under the REMIC Provisions and (ii) Internal Revenue Service Form 1041 or Internal Revenue Service Form 1099, as applicable, or any successor forms to be filed on behalf of the Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal tax law or Applicable State and Local Tax Law.

 

“Temporary Regulation S Book-Entry Certificate”: As defined in Section 5.02(a).

 

“Termination Purchase Amount”: The sum of (1) the aggregate Purchase Price of all the Mortgage Loans (exclusive of REO Loans) then included in the Trust, (2) the appraised value of the Trust’s portion of all REO Properties then included in the Trust (which fair market value for any REO Property may be less than the Purchase Price for the corresponding REO Loan), as determined by an appraiser selected by the applicable Special Servicer and approved by the applicable Master Servicer and the Controlling Class and (3) if the Mortgaged Property secures a

 

 -133-

 

 

Non-Serviced Mortgage Loan and is an REO Property under the terms of the related Non-Serviced PSA, the pro rata portion of the fair market value of the related property, as determined by the related Non-Serviced Master Servicer in accordance with clause (2) above.

 

“Test”: As defined in Section 12.01(b)(iv).

 

“Transaction Parties”: As defined in Section 5.03(r).

 

“Transfer”:  Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

 

“Transferable Servicing Interest”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Loan with respect thereto), the amount by which the related Servicing Fee otherwise payable to the applicable Master Servicer hereunder exceeds the sum of (i) the fee payable to the applicable Master Servicer as the portion of the Servicing Fee attributable to primary servicing and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which Transferable Servicing Interest is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement. The Transferable Servicing Interest with respect to each Mortgage Loan is (A) with respect to each NCB Mortgage Loan, six (6) basis points, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans), zero.

 

“Transferee”:  Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

“Transferee Affidavit”:  As defined in Section 5.03(o)(ii).

 

“Transferor”:  Any Person who is disposing by Transfer any Ownership Interest in a Certificate.

 

“Transferor Letter”:  As defined in Section 5.03(o)(ii).

 

“Trust”:  The trust created hereby and to be administered hereunder. The Trust shall be named: “BANK 2021-BNK38”.

 

“Trust Fund”:  The corpus of the Trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a removed Mortgage Loan), together with the Mortgage Files relating thereto (subject to, in the case of a Serviced Whole Loan, the interests of the related Serviced Companion Noteholder in the related Mortgage File); (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (to the extent of the Trust’s interest therein) or the Trust’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (iv) all revenues received in respect of any REO Property (to the extent of the Trust’s interest therein); (v) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust’s interest therein); (vi) any

 

 -134-

 

 

Assignment of Leases and any security agreements (to the extent of the Trust’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Trust’s interest therein); (viii) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Trust’s interest therein), amounts on deposit in each applicable Collection Account (to the extent of the Trust’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Trust’s interest in such REO Account), including any reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the Trust’s interest therein); (x) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent transferred to the Trustee); (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor). For the avoidance of doubt, no Retained Defeasance Rights and Obligations will be an asset of the Trust.

 

“Trust REMIC”:  As defined in the Preliminary Statement.

 

“Trustee”:  Wilmington Trust, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided.

 

“Trustee Fee”:  The fee to be paid to the Trustee as compensation for the Trustee’s activities under this Agreement, which fee is included as part of the Certificate Administrator Fee. No portion of the Trustee Fee shall be calculated by reference to any Companion Loan or the Stated Principal Balance of any Companion Loan. The Trustee Fee shall be equal to $290 per month and shall be paid as a portion of the Certificate Administrator Fee.

 

“UCC”:  The Uniform Commercial Code, as enacted in each applicable state.

 

“UCC Financing Statement”:  A financing statement prepared and filed pursuant to the UCC, as in effect in the relevant jurisdiction.

 

“Uncovered Amount”: With respect to any Master Servicer’s Collection Account, any additional trust fund expense, Nonrecoverable Advance or other item that would be payable or reimbursable out of general funds (as opposed to a specific source of funds) in such Collection Account pursuant to this Agreement, but which cannot be so paid or reimbursed because such general funds are insufficient to cover such payment or reimbursement; provided, that any such additional trust fund expense, Nonrecoverable Advance or other item shall be an Uncovered Amount only to the extent that such general funds are insufficient to cover the payment or reimbursement thereof.

 

 “Underwriters”:  Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC.

 

 -135-

 

 

“Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies or flood insurance policies required to be maintained pursuant to Section 3.07.

 

“United States Securities Person”: Any “U.S. person” as defined in Rule 902(k) of Regulation S.

 

“Unliquidated Advance”:  Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the related Mortgage Loan or REO Property in respect of which the Advance was made.

 

“Unscheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the following: (a) all Principal Prepayments received on such Mortgage Loan on or prior to the Determination Date and (b) the principal portions of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued interest on Advances and other additional expenses of the Trust incurred in connection with the related Mortgage Loan) and, if applicable, REO Revenues received with respect to such Mortgage Loan and any REO Loans (but excluding any related Companion Loans) on or prior to the related Determination Date, but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date.

 

“Unsolicited Information”: As defined in Section 12.01(b)(iii).

 

“Upper-Tier Regular Interests”:  As defined in the Preliminary Statement.

 

“Upper-Tier REMIC”:  One of the REMICs comprising the Trust, the assets of which consist of the Lower-Tier Regular Interests and such amounts as shall from time to time be held in the Upper-Tier REMIC Distribution Account.

 

“Upper-Tier REMIC Distribution Account”: The segregated account or accounts (or a subaccount of the Distribution Account) created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Computershare Trust Company, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Upper-Tier REMIC Distribution Account”. Any such account or accounts shall be an Eligible Account.

 

“U.S. Dollars” or “$”: Lawful money of the United States of America.

 

“U.S. Tax Person”:  A citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax

 

 -136-

 

 

purposes, an estate whose income is subject to United States federal income tax regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Tax Persons).

 

“Voting Rights”:  The portion of the voting rights of all of the Certificates which is allocated to any Certificate. At all times during the term of this Agreement, the Voting Rights shall be allocated among the various Classes of Certificateholders as follows: (i) 2% in the case of the Class X Certificates (allocated pro rata, based upon their respective Notional Amounts as of the date of determination) and (ii) in the case of the Principal Balance Certificates (other than the RR Interest), a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of such Class, in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of the Principal Balance Certificates (other than the RR Interest), determined as of the Distribution Date immediately preceding such time. None of the Class R or Class V Certificates or RR Interest will be entitled to any Voting Rights.

 

“Weighted Average Net Mortgage Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans (including any Non-Serviced Mortgage Loans) as of the first day of the related Collection Period, weighted on the basis of their respective Stated Principal Balances immediately following the preceding Distribution Date (or, in the case of the initial Distribution Date, as of the Closing Date).

 

“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.

 

“WHFIT Regulations”: Treasury Regulations Section 1.671-5, as amended or successor provisions.

 

“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.

 

“Whole Loan”: Any of (i) the One North Wacker Whole Loan, (ii) the Park Avenue Plaza Whole Loan, (iii) the CX – 350 & 450 Water Street Whole Loan and (iv) the 1201 Lake Robbins Whole Loan.

 

“Withheld Amounts”:  As defined in Section 3.21(a).

 

 -137-

 

 

“Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan, the amount of any Advances made with respect to such Mortgage Loan on or before the date such Mortgage Loan becomes (or, but for the making of three (3) Periodic Payments under its modified terms, would then constitute) a Corrected Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

 

“Workout Fee”:  The fee paid to the applicable Special Servicer with respect to each Corrected Loan in accordance with Section 3.11(c).

 

“Workout Fee Rate”:  With respect to each Corrected Loan and in accordance with Section 3.11(c), a fee of 1.00% of each collection (other than Penalty Charges and Excess Interest) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Periodic Payments, (ii) Balloon Payments (other than the Balloon Payments that are received within one hundred twenty (120) days following the related Maturity Date as a result of a Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full if such Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) of the definition of “Servicing Transfer Event”), (iii) Principal Prepayments and (iv) payments (other than those included in clause (i) or (ii) of this definition) at maturity or on the Anticipated Repayment Date, received on each Corrected Loan for so long as it remains a Corrected Loan.

 

“XML”: Extensible Markup Language.

 

“Yield Maintenance Charge”:  With respect to any Mortgage Loan, any premium, fee or other additional amount paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, a Mortgage Loan, calculated, in whole or in part, pursuant to a yield maintenance formula or otherwise pursuant to a formula that reflects the lost interest, including any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.

 

Section 1.02   Certain Calculations. Unless otherwise specified herein, for purposes of determining amounts with respect to the Certificates and the rights and obligations of the parties hereto, the following provisions shall apply:

 

(i)   All calculations of interest (other than as provided in the related Mortgage Loan documents) provided for herein shall be made on the basis of a three hundred-sixty (360) day year consisting of twelve (12) 30-day months.

 

 -138-

 

 

(ii)  Any Mortgage Loan or Companion Loan payment is deemed to be received on the date such payment is actually received by the applicable Master Servicer or the applicable Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with the Servicing Standard consistent with the terms of the related Mortgage Note and Mortgage to reduce the outstanding principal balance of such Mortgage Loan, on which interest accrues.

 

(iii) Any reference to the Certificate Balance of any Class of Principal Balance Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates on such Distribution Date after giving effect to (a) any distributions made on such Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable, and Section 4.01(c), (b) any Realized Losses or Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates on that Distribution Date pursuant to Section 4.04, and (c) any recoveries on the related Mortgage Loans of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount or the Retained Certificate Principal Distribution Amount, as applicable, which recoveries are allocated to such Class of Principal Balance Certificates, and added to the Certificate Balance pursuant to Section 4.04(a).

 

(iv) Unless otherwise specifically provided for herein, all net present value calculations and determinations made with respect to a Mortgage Loan, Serviced Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made, in the event the Mortgage Loan documents are silent, using a discount rate (a) for principal and interest payments on a Mortgage Loan, Serviced Companion Loan, as applicable, or sale by the applicable Special Servicer of a Defaulted Loan, the highest of (x) the rate determined by the applicable Master Servicer or the applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of such Mortgagor as of such date of determination, (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Companion Loan based on its outstanding principal balance and (z) the yield on 10-year U.S. treasuries as of such date of determination, and (b) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.

 

(v)  Any reference to “expense of the trust” or “additional trust fund expense” or words of similar import shall be construed to mean, for any Serviced Mortgage Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust fund expenses or such Intercreditor Agreement does not prohibit the following application of trust fund expenses (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loans in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loans or (ii) with respect to any Serviced AB Whole Loan,

 

 -139-

 

 

first, to the related AB Subordinate Companion Loan and then, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loans in accordance with the respective outstanding principal balances of the related Serviced AB Mortgage Loan and Serviced Pari Passu Companion Loans.

 

[End of Article I]

 

Article II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01   Conveyance of Mortgage Loans.  (a) The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests) all the right, title and interest of the Depositor, whether now owned or existing or hereafter acquired or arising, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4 (other than Section 4(c), (d), (e) and (g)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements; (iii) the Intercreditor Agreements; (iv) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (v) any REO Property (to the extent of the Depositor’s interest therein) or the Depositor’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (vi) all revenues received in respect of any REO Property (to the extent of the Depositor’s interest therein); (vii) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Depositor’s interest therein); (viii) any Assignment of Leases and any security agreements (to the extent of the Depositor’s interest therein); (ix) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Depositor’s interest therein); (x) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Depositor’s interest therein), amounts on deposit in each applicable Collection Account (to the extent of the Depositor’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Depositor’s interest in such REO Account), including any reinvestment income, as applicable; (xi) any Environmental Indemnity Agreements (to the extent of the Depositor’s interest therein); (xii) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent not covered by clause (ii) above); (xiii) the Lower-Tier Regular Interests; (xiv) with respect to the Exchangeable Certificates, each of the

 

 -140-

 

 

Exchangeable Upper-Tier Regular Interests; and (xv) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor, and any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans) (collectively, the “Conveyed Property”).  Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; and (iii) with respect to those Mortgage Loans that were closed in December 2021 but have their first Due Date after December 2021, any interest amounts relating to the period prior to the Cut-off Date). The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 13.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of Sections 2, 3, 4 (other than Section 4(c), (d) and (f)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get the benefit of Sections 10, 13 and 15 thereof in connection with any exercise of rights under the assigned Sections, and the Depositor shall use its best efforts to make available to the Trustee the benefits of Sections 10, 13 and 15 in connection therewith.

 

(b)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver and deposit with, or cause to be delivered to and deposited with, the Custodian, (A) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (B) on or before the date that is 45 days following the Closing Date, the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is a Non-Serviced Whole Loan as of the Closing Date, any other items required to be delivered or deposited by the Mortgage Loan Seller pursuant to this Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the applicable Master Servicer) for each Mortgage Loan. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied upon such Mortgage Loan Seller’s delivery of a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and indemnifying the Trustee and the Trust. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) and (ix) of the definition of “Mortgage File” (or, if applicable, a copy thereof) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered, or will be delivered within ten (10) Business Days of the Closing Date, for filing or recordation, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a provisional basis as of the Closing Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included

 

 -141-

 

 

in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted or to be submitted for filing or recording) is delivered to the Custodian on or before the date set forth herein, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company, in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy).  If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii), and (ix) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon (if intended to be recorded or filed), for any other reason, including, without limitation, that such non-delivered document or instrument has been lost or destroyed, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the date set forth herein.  Neither the Trustee nor any Custodian shall in any way be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, subject to the next sentence, the applicable Mortgage Loan Seller is required to, but cannot, deliver (in complete and recordable form or form suitable for filing or recording, if applicable) any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File” solely because of the unavailability of filing or recording information as to any existing document or instrument, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering with respect to such Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the

 

 -142-

 

 

applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) and clause (f) of the first proviso to the definition of “Mortgage File” herein. As to any Mortgage Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File”, and such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian with respect to such Mortgage Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c) of this Agreement. Notwithstanding anything herein to the contrary, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the applicable Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary’s interest from such Mortgage Loan Seller to the applicable Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the applicable Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the applicable Master Servicer on behalf of the Trust. Regardless of the manner of delivery, the related Mortgage Loan Seller is required pursuant to the related Mortgage Loan Purchase Agreement to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of such Mortgage Loan Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit.

 

(c)       Except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper form for filing or recording, as applicable, and to submit such Assignments for filing or recording, as the case may be, in the applicable public filing or recording office. On the Closing Date, the Mortgage Loan Sellers may deliver one (1) omnibus assignment for all such Mortgage Loans substantially in the form of Exhibit H hereto to the Custodian as provided in Section 2.01(b). Except under the circumstances provided for in the last sentence of this Section 2.01(c) and except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan Seller’s expense will, promptly (and

 

 -143-

 

 

in any event within one hundred-twenty (120) days after the later of the Closing Date and the related Mortgage Loan Seller’s actual receipt of the related documents and the necessary recording and filing information) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC Financing Statements, as appropriate, each Assignment.  Each such Assignment submitted for recording shall reflect that it (or a file copy thereof in the case of a UCC Assignment) should be returned by the public recording office to the Custodian or its designee following recording or filing (or to the related Mortgage Loan Seller or its agent who will then be responsible for delivery of the same to the Custodian or its designee). Any such Assignment received by the Custodian shall be promptly included in the related Mortgage File and be deemed a part thereof, and any such Assignment received by the related Mortgage Loan Seller or its agent shall be required to be delivered to the Custodian to be included as part of the related Mortgage File within thirty (30) days after receipt. If any such document or instrument is determined to be incomplete or not to meet the recording or filing requirements of the jurisdiction in which it is to be recorded or filed, or is lost by the public office or returned unrecorded or unfiled, as the case may be, because of a defect therein, on or about one hundred-eighty (180) days after the Closing Date, the related Mortgage Loan Seller or its designee shall prepare, at its own expense, a substitute therefor or cure such defect, as the case may be, and thereafter the related Mortgage Loan Seller or its designee shall, at the expense of such Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or filed, as appropriate. If, by the first anniversary of the Closing Date, the Custodian has not received confirmation of the recording or filing as the case may be, of any such Assignment, it shall so advise the related Mortgage Loan Seller who may then pursue such confirmation itself or request that the Custodian pursue such confirmation at the related Mortgage Loan Seller’s expense, and upon such a request and provision for payment of such expenses satisfactory to the Custodian, the Custodian, at the expense of the applicable Mortgage Loan Seller, shall cause a search of the land records of each applicable jurisdiction and of the records of the offices of the applicable Secretary of State for confirmation that the Assignment appears in such records and retain a copy of such confirmation in the related Mortgage File. In the event that confirmation of the recording or filing of an Assignment cannot be obtained, the Custodian or the related Mortgage Loan Seller, as applicable, shall promptly inform the other and the Custodian shall provide such Mortgage Loan Seller with a copy of the Assignment and request the preparation of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for the preparation of replacement Assignments for any Assignments which, having been properly submitted for filing or recording to the appropriate governmental office by the Custodian, fail to appear of record and must be resubmitted. Notwithstanding the foregoing, there shall be no requirement to record any assignment to the Trustee referred to in clause (iii) or (v) of the definition of “Mortgage File,” or to file any UCC-3 to the Trustee referred to in clause (ix) of the definition of “Mortgage File,” in those jurisdictions where, in the written opinion of local counsel (which opinion shall be an expense of the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such recordation and/or filing is not required to protect the Trustee’s interest in the related Mortgage Loan against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the applicable Master Servicer, the applicable Special Servicer, any Sub-Servicer or the Depositor.

 

(d)      All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans (including, in the case of such Mortgage Loan Seller, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental

 

 -144-

 

 

reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, but in any case excluding the applicable Mortgage Loan Seller’s internal communications (including such communications between such Mortgage Loan Seller and its Affiliates) and underwriting analysis (including documents prepared by the applicable Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents, attorney-client communications that are privileged communications or constitute legal or other due diligence analyses and credit underwriting or due diligence analyses or data) that (i) are not required to be a part of a Mortgage File in accordance with the definition thereof and (ii) are reasonably necessary for the servicing of each such Mortgage Loan, together with copies of all documents in each Mortgage File, shall be delivered by the Depositor or the applicable Mortgage Loan Seller to the applicable Master Servicer within five (5) Business Days after the Closing Date and shall be held by such Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders (and as Holder of the Lower-Tier Regular Interests) and, if applicable, on behalf of the related Companion Holder; provided, that with respect to the Mortgage File, if any document required to be contained therein is not available on the date that is five (5) Business Days after the Closing Date, such document shall be delivered to the applicable Master Servicer on or before the date such document is required to be delivered to the Custodian pursuant to Section 2.01(b). Such documents and records shall be any documents and records (with the exception of any items excluded under the immediately preceding sentence) that would otherwise be a part of the Servicing File.

 

(e)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall deliver to the Trustee and the applicable Master Servicer, on or before two (2) Business Days after the Closing Date, a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, as in full force and effect, without amendment or modification, on the Closing Date.

 

(f)       The Depositor shall use its reasonable best efforts to require that, promptly after the Closing Date, but in all events within three (3) Business Days after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds on deposit in escrow accounts maintained with respect to the Serviced Mortgage Loans transferred by such Mortgage Loan Seller, whether such accounts are held in the name of the applicable Mortgage Loan Seller or any other name to be transferred to the applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.

 

(g)       [Reserved]

 

(h)       Each Mortgage Loan Purchase Agreement shall provide that within sixty (60) days after the Closing Date, each Mortgage Loan Seller shall deliver or cause to be delivered the Diligence Files for each of its Mortgage Loans to the Depositor by uploading such Diligence Files to the Designated Site. Promptly upon completion of such delivery of the Diligence Files (but in no event later than sixty (60) days after the Closing Date), the applicable Mortgage Loan Seller shall provide the Depositor a certificate (with a copy (which may be sent by e-mail) to each of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Directing Certificateholder, the Asset Representations Reviewer and the Operating Advisor) certifying that the electronic copies of the documents and information

 

 -145-

 

 

uploaded to the Designated Site constitute all documents and information required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the applicable Mortgage Loan Seller (the “Diligence File Certification”).

 

(i)        Notwithstanding anything to the contrary contained herein, (i) with respect to a Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to deliver a Mortgage Note (and any related allonge or assignment) to the Custodian shall be limited to delivery of only the Mortgage Note (and any related allonge or assignment) held by such party to the Custodian. With respect to a Joint Mortgage Loan that is serviced under this Agreement, the obligations of the applicable Mortgage Loan Sellers to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the applicable Mortgage Loan Sellers may deliver one Mortgage File or one of any other document required to be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each of the applicable Mortgage Loan Sellers.

 

(j)        Within five (5) Business Days of the Closing Date, the Depositor shall deliver in EDGAR-Compatible Format and Excel format to each Master Servicer via email to ssreports@wellsfargo.com (in the case of the General Master Servicer) and investorreporting@ncb.coop (in the case of the NCB Master Servicer) the Initial Schedule AL File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer), the Initial Schedule AL Additional File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer) and the Annex A-1 to the Prospectus.

 

(k)       Notwithstanding anything to the contrary contained in this Section 2.01 or in Section 2.02, in connection with each Servicing Shift Whole Loan, (1) instruments of assignment to the Trustee may be in blank and need not be recorded pursuant to this Agreement (other than the endorsements to the note(s) evidencing the related Servicing Shift Mortgage Loan) until the earlier of (i) the Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date and (iii) 180 days after the Closing Date, in which case assignments and recordations shall be effected in accordance with this Section 2.01 until the occurrence, if any, of the Servicing Shift Securitization Date, (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earliest of (i) the Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date in which case such amendment shall be effected in accordance with the terms of this Section 2.01 and (iii) the earlier of (A) 180 days after the Closing Date and (B) any such time as any such letter of credit is required to be drawn upon by the applicable Master Servicer in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (3) on and following the Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Non-Serviced Depositor, at its own expense, shall be (a) entitled to direct in writing, which may be conclusively relied upon by the Custodian, the Custodian to deliver the originals of all the Mortgage Loan documents relating to the Servicing

 

 -146-

 

 

Shift Whole Loan in its possession (other than the original note(s) evidencing the Servicing Shift Mortgage Loan) to the related Non-Serviced Trustee or the related Non-Serviced Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Mortgage Loan documents related to the Servicing Shift Whole Loan so delivered to such Non-Serviced Trustee or such Non-Serviced Custodian, (c) entitled to cause the completion (or, in the event of a recordation as contemplated by clause (1)(ii) of this paragraph, the preparation, execution and delivery) and recordation of instruments of assignment in the name of the related Non-Serviced Trustee or related Non-Serviced Custodian, (d) if the right under clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded, and (e) entitled to require the applicable Master Servicer to transfer, and to cooperate with all reasonable requests in connection with the transfer of, the Servicing File, and any Escrow Payments, reserve funds and items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the Servicing Shift Whole Loan to the related Non-Serviced Master Servicer.

 

Section 2.02   Acceptance by Trustee.  (a) The Trustee, by the execution and delivery of this Agreement (1) acknowledges receipt by it or the Custodian on its behalf, subject to the provisions of Section 2.01, in good faith and without notice of any adverse claim, of the applicable documents specified in clause (i) of the definition of “Mortgage File” with respect to each Mortgage Loan and of all other assets included in the Trust Fund and (2) declares (a) that it or the Custodian on its behalf holds and will hold such documents and the other documents delivered or caused to be delivered by the Mortgage Loan Sellers that constitute the Mortgage Files in the name of the Trust for the benefit of all present and future Certificateholders and Serviced Companion Noteholders, as applicable, and (b) that it holds and will hold such other assets included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders (and for the benefit of the Trustee as holder of the Lower-Tier Regular Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a copy of such Mortgage Note, together with a signed lost note affidavit and appropriate indemnity and shall thereby be deemed to have satisfied the document delivery requirements of Section 2.01 and of this Section 2.02.

 

(b)       Within sixty (60) days after the Closing Date (or with respect to a Qualified Substitute Mortgage Loan within sixty (60) days after the Due Date in the month of substitution), the Custodian, shall review the Mortgage Loan documents delivered or caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and, promptly following such review (but in no event later than sixty (60) days after the Closing Date), the Custodian shall, in the form attached as Exhibit Q, certify in writing to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Directing Certificateholder (so long as no Consultation Termination Event shall have occurred and be continuing and only with respect to Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Operating Advisor and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full)) that, except as specifically identified in any exception report annexed to such writing (the “Custodial Exception Report”), (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the

 

 -147-

 

 

foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct. With respect to each Mortgage Loan listed on the Custodial Exception Report, the Custodian shall specifically identify such Mortgage Loan together with the nature of such exception (in the form reasonably acceptable to the Custodian and the related Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by the related Mortgage Loan Seller but are out for filing or recording and have not been returned by the filing office or the recorder’s office).

 

(c)       The Custodian shall review the Mortgage Loan documents received subsequent to the Closing Date; and, on or about the first anniversary of the Closing Date, the Custodian shall, in the form attached as Exhibit Q, certify in writing to each of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any related Mortgage Loan as to which a Liquidation Event has occurred) or any related Mortgage Loan specifically identified in any exception report annexed to such writing) that, (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and relate to such Mortgage Loan, if applicable, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct.

 

(d)      Notwithstanding anything contained in this Section 2.02 and Section 2.03(b) to the contrary, in the case of a Material Defect in any of the documents specified in clauses (ii) through (v), (vii), (viii) and (ix) in the definition of “Mortgage File”, which Material Defect results solely from a delay in the return of the related documents from the applicable filing or recording office and gives rise to a repurchase or substitution obligation on the part of the related Mortgage Loan Seller with respect to the subject Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the Directing Certificateholder, in its sole judgment, may (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class and, with respect to any other Mortgage Loan, only prior to the occurrence and continuance of a Control Termination Event), and the applicable Special Servicer may, in accordance with the Servicing Standard, after the occurrence and during the continuance of a Control Termination Event, permit the related Mortgage Loan Seller in lieu of repurchasing or substituting for the related Mortgage Loan, to deposit with the applicable Master Servicer an amount, to be held in trust in a segregated Eligible Account (which may be a sub-account of the Collection Account), equal to 25% of the Stated Principal Balance of the related Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver to the applicable Master Servicer a letter of credit in such amount, with a copy to the Custodian). Such funds or letter of credit, as applicable, shall be held by the applicable Master Servicer (i) until the date on

 

 -148-

 

 

which the Custodian determines and notifies such Master Servicer that such Material Defect has been cured or the related Mortgage Loan is no longer part of the Trust Fund, at which time such Master Servicer shall return such funds (or letter of credit) to the related Mortgage Loan Seller, or (ii) until same are applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable) as set forth below in this Section 2.02(d) in the event of a repurchase or substitution by the related Mortgage Loan Seller. Notwithstanding the two (2) immediately preceding sentences, if the applicable Master Servicer or the applicable Special Servicer certifies to the Trustee, the Certificate Administrator and the Custodian that it has determined in the exercise of its reasonable judgment that the document with respect to which such Material Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on collateral securing the related Mortgage Loan or for any immediate significant servicing obligation, the related Mortgage Loan Seller shall be required to repurchase or substitute for the related Mortgage Loan in accordance with, and to the extent required by, the terms and conditions of Section 2.03(b) and Section 5 of the related Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall not be required to repurchase the Mortgage Loan for a period of ninety (90) days after receipt of a notice to repurchase (together with any applicable extension period) if it is attempting to recover the document from the applicable filing or recording office and provides an officer’s certificate setting forth what actions such Mortgage Loan Seller is pursuing in connection with such recovery. In the event of a repurchase or substitution, upon the date of such repurchase or substitution, and in the event that the related Mortgage Loan Seller has delivered a letter of credit to the applicable Master Servicer in accordance with this Section 2.02(d), such Master Servicer shall, to the extent necessary, draw on the letter of credit and deposit the proceeds of such draw, into its Collection Account to be applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable, in which event, the amount of such funds or proceeds that exceed the Substitution Shortfall Amount shall be returned to the related Mortgage Loan Seller) in accordance with Section 2.03(b). All such funds deposited in a Collection Account shall be invested in Permitted Investments, at the direction and for the benefit of the related Mortgage Loan Seller. Such funds shall be treated as an “outside reserve fund” under the REMIC Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller for federal income tax purposes, which Mortgage Loan Seller shall remain liable for any taxes payable on income or gain with respect thereto.

 

(e)       It is herein acknowledged that neither the Trustee nor any Custodian is under any duty or obligation (i) to determine whether any of the documents specified in clauses (vi), (vii) and (xii) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Depositor, the Mortgage Loan Sellers or any other Person or (ii) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loans delivered to it to determine that the same are genuine, enforceable, duly authorized, sufficient to perfect and maintain the perfection of a security interest or appropriate for the represented purpose or that they are other than what they purport to be on their face and, with respect to the documents specified in clause (viii) of the definition of the “Mortgage File”, whether the insurance is effective as of the date of the recordation, whether all endorsements or riders issued are included in the file or if the policy has not been issued whether any acceptable replacement document has been dated the date of the related Mortgage Loan funding. Further, with respect to the UCC Financing Statements referenced in the Mortgage File, absent actual

 

 -149-

 

 

knowledge to the contrary or copies of UCC Financing Statements delivered to the Custodian as part of the Mortgage File indicating otherwise, the Custodian may assume, for the purposes of the filings and the certification to be delivered in accordance with this Section 2.02 that the related Mortgage File should include one (1) state level UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two (2) or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing), or if the Custodian has received notice that a particular UCC Financing Statement was filed as a fixture filing, that the related Mortgage File should include only a local UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two (2) or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing).  The assignments of the UCC Financing Statements to be assigned to the Trust will be delivered on the national forms (or on such other form as may be acceptable for filing or recording in the applicable jurisdiction) and in a format suitable for filing or recording, as applicable, and will be filed or recorded in the jurisdiction(s) where such UCC Financing Statements were originally filed or recorded, as indicated in the documents provided, and in accordance with then-current laws.

 

(f)       If, in the process of reviewing the Mortgage Files or at any time thereafter, the Custodian finds any document or documents constituting a part of a Mortgage File and required to be delivered or caused to be delivered by the applicable Mortgage Loan Seller (1) not to have been properly executed, (2) subject to the timing requirements of Sections 2.01(b) and 2.01(c), not to have been delivered, (3) to contain information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule or (4) to be defective on its face (each, a “Defect” in the related Mortgage File), the Custodian shall promptly so notify the Depositor, the Trustee, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Directing Certificateholder, the applicable Mortgage Loan Seller (and in no event later than ninety (90) days after the Closing Date and every calendar quarter thereafter until all Defects are corrected) by providing a Custodial Exception Report setting forth for each affected Mortgage Loan, with particularity, the nature of such Defect (in a form reasonably acceptable to the Custodian and such Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by such Mortgage Loan Seller but are out for recording or filing and have not been returned by the recorder’s office or filing office).

 

(g)       If a Master Servicer or a Special Servicer (i) receives a Repurchase Request or any other request or demand from any Person for a Mortgage Loan Seller to repurchase or replace a Mortgage Loan because of an alleged Defect or Breach (together with a Repurchase Request, a “15Ga-1 Repurchase Request”) (such Master Servicer or such Special Servicer, as applicable, to the extent it receives such 15Ga-1 Repurchase Request, the “Repurchase Request Recipient” with respect to such 15Ga-1 Repurchase Request); or (ii) receives any withdrawal of a 15Ga-1 Repurchase Request by the Person making such 15Ga-1 Repurchase Request or any rejection of a 15Ga-1 Repurchase Request (or such 15Ga-1 Repurchase Request is forwarded to the applicable Master Servicer or the applicable Special Servicer by another party hereto), then the Repurchase Request Recipient shall deliver notice (which may be by electronic format so long as a “backup” hard copy of such notice is also delivered on or prior to the next Business Day) of such 15Ga-1 Repurchase Request or withdrawal or rejection of a 15Ga-1 Repurchase Request (each, a “15Ga-1 Notice”) to the applicable Mortgage Loan Seller (other than in the case of a rejection by

 

 -150-

 

 

such Mortgage Loan Seller) and the Depositor, in each case within ten (10) Business Days from such Repurchase Request Recipient’s receipt thereof.

 

Each 15Ga-1 Notice shall include (i) the identity of the related Mortgage Loan, (ii) the date the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient or the date any withdrawal of the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient, as applicable, (iii) if known, the basis for the 15Ga-1 Repurchase Request (as asserted in the 15Ga-1 Repurchase Request), (iv) the identity of the Person making such 15Ga-1 Repurchase Request, and (v) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such 15Ga-1 Repurchase Request.

 

A Repurchase Request Recipient shall not be required to provide any information in a 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. The Mortgage Loan Purchase Agreements will provide that (i) any 15Ga-1 Notice provided pursuant to this Section 2.02(g) is so provided only to assist the Mortgage Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.02(g) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any 15Ga-1 Repurchase Request that is the subject of a 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives a 15Ga-1 Repurchase Request, such party shall promptly forward or otherwise provide written notice of such 15Ga-1 Repurchase Request to the applicable Master Servicer, if relating to a Non-Specially Serviced Loan, or to the applicable Special Servicer, if relating to a Specially Serviced Loan or REO Property, and include the following statement in the related correspondence: “This is a ‘15Ga-1 Repurchase Request’ under Section 2.02 of the Pooling and Servicing Agreement relating to BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 requiring action by you as the ‘Repurchase Request Recipient’ thereunder.” Upon receipt of such 15Ga-1 Repurchase Request by the applicable Master Servicer or the applicable Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient in respect of such 15Ga-1 Repurchase Request, and such party shall comply with the procedures set forth in this Section 2.02(g) with respect to such 15Ga-1 Repurchase Request. In no event shall the Custodian, by virtue of this provision, be required to provide any notice other than as set forth in Section 2.02 of this Agreement in connection with its review of the Mortgage File.

 

If the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives notice or has knowledge of a withdrawal or a rejection of a 15Ga-1 Repurchase Request of which notice has been previously received or given, and such notice was not received from or copied to the applicable Master Servicer or the applicable Special Servicer, then such party shall give notice of such withdrawal or rejection to such Master Servicer or such Special Servicer, as applicable. Any such notice received by the Trustee, the Certificate Administrator, the Certificate Registrar, Operating

 

 -151-

 

 

Advisor, Asset Representations Reviewer or the Custodian shall also be provided to the Depositor and, in the case of a withdrawal notice, to the applicable Mortgage Loan Seller.

 

In the event that a Mortgage Loan is repurchased or replaced pursuant to Section 2.03 of this Agreement, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) shall promptly notify the Depositor of such repurchase or replacement.

 

(h)       The parties hereto acknowledge the obligation of each Mortgage Loan Seller pursuant to Section 2(c) of the related Mortgage Loan Purchase Agreement to deliver, on or prior to the fifth (5th) Business Day after the Closing Date, at its expense, to the Custodian five (5) originals of limited powers of attorney substantially in the form attached as Exhibit F thereto in favor of the Custodian (on behalf of the Trustee) and the applicable Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the applicable Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the related Mortgage Loan Seller, any mortgage loan documents required to be recorded as described in Section 2.01 of this Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)); provided, that if the Mortgage Loan Seller fails to promptly pay the applicable Special Servicer or Custodian the expenses associated with recording documents as provided in this sentence, then such expenses shall be payable out of the Trust (it being understood for the avoidance of doubt that the applicable Mortgage Loan Seller will nonetheless remain responsible for reimbursing the Trust for such expenses). Neither the applicable Special Servicer nor the Custodian shall be liable for any failure of such third party in connection with the foregoing, so long as the third party was chosen with due care (in the case of the Custodian) or in accordance with the Servicing Standard (in the case of the applicable Special Servicer).  Each Mortgage Loan Seller has agreed to reasonably cooperate with the Custodian, the Trustee and the applicable Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Loan. The Custodian or the applicable Special Servicer, as applicable, shall submit such documents for recording, at the related Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the applicable Special Servicer, as applicable, shall not submit such assignments for recording if the related Mortgage Loan Seller produces evidence that it or a third-party on its behalf has sent any such assignment for recording and certifies that such Mortgage Loan Seller is awaiting its return from the applicable recording office.

 

Section 2.03   Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage

 

 -152-

 

 

Files and Breaches of Representations and Warranties.  (a) The Depositor hereby represents and warrants that:

 

(i)   The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;

 

(ii)  Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iii) The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor’s assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;

 

(iv) There is no action, suit or proceeding pending or, to the Depositor’s knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and

 

(v)  The Depositor is the lawful owner of the Mortgage Loans with the full right to transfer the Mortgage Loans to the Trust, and the Mortgage Loans have been validly transferred to the Trust.

 

      (b)  After receipt of a Repurchase Request, the Enforcing Servicer shall request in writing that the applicable Mortgage Loan Seller, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the applicable Mortgage Loan Seller’s receipt of such notice of such Repurchase Request or, if earlier, such Mortgage Loan Seller’s discovery of such Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a

 

 -153-

 

 

“qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) discovery by the related Mortgage Loan Seller or any party to this Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to this Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at such Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to this Agreement, (B) repurchase the affected Mortgage Loan or successor REO Loan (but excluding any related Companion Loan) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof), at the applicable Purchase Price and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into the applicable Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the applicable Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or successor REO Loan (but excluding any related Companion Loan) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an officer’s certificate to the Trustee, the Certificate Administrator (who shall promptly deliver a copy of such officer’s certificate to the 17g-5 Information Provider), the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the applicable Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the related Mortgage Loan Seller to have received the recorded document, then such Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date for so long as such Mortgage Loan Seller certifies to the Trustee, the applicable Master Servicer, the applicable

 

 -154-

 

 

Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that such Material Defect is still in effect solely because of its failure to have received the recorded document and that such Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the applicable Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the applicable Mortgage Loan Seller are to be remitted by wire transfer to the applicable Master Servicer for deposit into the applicable Collection Account. In the event the Special Servicer is required to enforce the Repurchase Request related to a Non-Specially Serviced Loan under this Section 2.03(b), within five (5) days of request by the Special Servicer, the Master Servicer shall deliver to the Special Servicer a copy of the Servicing File with respect to any such Non-Specially Serviced Loan.

 

If a Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, makes a cash payment pursuant to an agreement or a settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, for so long as no Control Termination Event has occurred and is continuing and in respect of any Mortgage Loan that is not an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, in either case, with the consent of the Directing Certificateholder) (each such payment, a “Loss of Value Payment”) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be deposited into the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g) of this Agreement. In connection with any Loss of Value Payment with respect to any Non-Specially Serviced Loan, the applicable Master Servicer shall promptly provide the applicable Special Servicer, but in any event within the time frames and in the manner provided in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event), with the Servicing File and all information, documents and records relating to such Non-Specially Serviced Loan and any related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise reasonably available to the applicable Master Servicer, and reasonably required by the applicable Special Servicer to permit the applicable Special Servicer to calculate the Loss of Value Payment, to the extent set forth in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event). The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the applicable Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under

 

 -155-

 

 

any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust, provided that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in the related Mortgage Loan Purchase Agreement or this Section 2.03 (excluding this paragraph) (including any right to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) may not be cured by a Loss of Value Payment.

 

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the related Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable by the related Mortgage Loan Seller to the Asset Representations Reviewer to the extent not previously paid by such Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided that if the Breach relates to a Joint Mortgage Loan, each Mortgage Loan Seller shall only be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note sold by such Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the related Mortgage Loan Seller shall remit the amount of such costs and expenses to the Enforcing Servicer for disbursement to the applicable Persons and, upon its making such remittance, the related Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the related Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the related Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the related Mortgage Loan Seller. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-off Date and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust on or prior to the related date of repurchase or substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by such Master Servicer (or by such Special Servicer to the applicable Master Servicer who shall remit such funds) to the applicable Mortgage Loan Seller effecting the related repurchase or substitution promptly following receipt. Notwithstanding anything

 

 -156-

 

 

contained in this Agreement or the related Mortgage Loan Purchase Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the applicable Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan if (i) the related Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by a party to the applicable Mortgage Loan Purchase Agreement, or this Agreement, to provide prompt notice as required by the terms of the applicable Mortgage Loan Purchase Agreement, or this Agreement, after such party has actual knowledge of such Material Defect (knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File) (iii) such delay precludes such Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable and (iv) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage. Notwithstanding the foregoing, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a borrower), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a borrower), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan shall not be a Material Defect.

 

Pursuant to each Mortgage Loan Purchase Agreement, if there is a Material Defect with respect to one or more Mortgaged Properties with respect to a Mortgage Loan, the related Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the related Mortgage Loan Seller provides an opinion of counsel to the effect that such release in lieu of repurchase would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Trust and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

 

(c)       Subject to the applicable Mortgage Loan Seller’s right to cure as contemplated above in this Section 2.03, and further subject to Section 2.01(b) and Section 2.01(c), any of the following shall cause a document in the Mortgage File to be deemed to have a Material Defect: (i) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity with a copy of the Mortgage Note that appears to be regular on its face; (ii) the absence from the Mortgage File of the original signed Mortgage that appears to be regular on its face, unless there is included in the Mortgage File either a copy of the Mortgage with evidence of recording thereon or a copy of the Mortgage and a certificate from the related Mortgage Loan Seller stating that the original signed Mortgage was sent for recordation; (iii) the absence from the Mortgage File of the item called for by clause (viii) of the definition of “Mortgage File”; (iv) the absence from the Mortgage File of any intervening assignments required to create a complete chain of assignments to the Trustee on behalf of the Trust, unless there is included in the Mortgage File either a copy of the assignment with evidence of recording thereon or a copy of the intervening assignment and a certificate from the related Mortgage Loan Seller stating that the original intervening assignments

 

 -157-

 

 

were sent for filing or recordation, as applicable; (v) the absence from the Mortgage File of any required letter of credit; or (vi) with respect to any related leasehold Mortgage Loan, the absence from the related Mortgage File of a copy (or an original, if available) of the related Ground Lease; provided, however, that no Defect (except the Defects previously described in sub-clauses (i) through (vi) of this Section 2.03(c)) shall be considered to materially and adversely affect the value of the related Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the document with respect to which the Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligation; provided, further, that no Defect relating to any Non-Serviced Mortgage Loan previously described in sub-clauses (ii) through (vi) of this Section 2.03(c) shall be considered to materially and adversely affect the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the related Mortgage Loan Seller, after receipt of notice of such Defect, is unable to produce a copy of the document with respect to which the Defect exists within a reasonable period after receiving such notice or otherwise establish that the original or copy, as applicable, of such document has been delivered, in compliance with the terms of the related Non-Serviced PSA, to the custodian under the related Non-Serviced PSA. Notwithstanding the foregoing, the delivery of executed escrow instructions or a binding commitment to issue a lender’s title insurance policy, as provided in clause (viii) of the definition of “Mortgage File” herein, in lieu of the delivery of the actual policy of lender’s title insurance, shall not be considered a Material Defect with respect to any Mortgage File if such actual policy is delivered to the Custodian not later than eighteen (18) months following the Closing Date.  Notwithstanding the foregoing, to the extent a Mortgage Loan Seller has otherwise complied with its document delivery requirements under this Agreement and the related Mortgage Loan Purchase Agreement, in the event that the Custodian has acknowledged receipt pursuant to Section 2.02 above of a document that is part of the Mortgage File or a Mortgage Loan Seller can otherwise prove delivery of the document, and the Custodian subsequently loses a document, the fact that such document is lost may not be utilized as the basis for a claim of a Material Defect against a Mortgage Loan Seller pursuant to Section 5(a) of the related Mortgage Loan Purchase Agreement and/or this Section 2.03 and the Custodian shall be liable for any such loss to the extent provided for in Section 8.01.

 

(d)      In connection with any repurchase of, or substitution of a Qualified Substitute Mortgage Loan for a Mortgage Loan contemplated by this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer of a trust receipt executed by the applicable Mortgage Loan Seller evidencing such repurchase or substitution, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer (other than attorney-client communications that are privileged communications), and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned, as the case may be to the applicable Mortgage Loan Seller in the same manner as provided in Section 5 of the related Mortgage Loan Purchase Agreement and, if

 

 -158-

 

 

applicable, the definition of “Mortgage File” herein, so as to vest in such Mortgage Loan Seller the legal and beneficial ownership of such repurchased or substituted Mortgage Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents.

 

(e)       Section 5 of each of the Mortgage Loan Purchase Agreements and the provisions of this Section 2.03 provide the sole remedy available to the Certificateholders (subject to the limitations on the rights of the Certificateholders under this Agreement), or the Trustee on behalf of the Certificateholders, the applicable Master Servicer or the applicable Special Servicer, with respect to any Material Defect.

 

(f)       The Enforcing Servicer shall, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests), enforce the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, if any, shall be carried out in the best interest of the Certificateholders in accordance with the Servicing Standard. Any costs incurred by an applicable Master Servicer or applicable Special Servicer with respect to the enforcement of the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement shall, to the extent not recovered from the applicable Mortgage Loan Seller, be deemed to be Servicing Advances to the extent not otherwise provided for herein. The applicable Master Servicer or the applicable Special Servicer, as applicable, shall be reimbursed for the reasonable costs of such enforcement: first, from a specific recovery, if any, of costs, expenses or attorneys’ fees against the applicable Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to Section 3.05(a)(vii) herein out of general collections on the Mortgage Loans on deposit in the related Collection Account. Any costs, expenses or attorneys’ fees related to a repurchase of a Companion Loan shall be paid pursuant to the related Intercreditor Agreement or pursuant to the documents related to an Other Securitization, if applicable.

 

(g)       If a Mortgage Loan Seller incurs any expense in connection with the curing of a Breach that constitutes a Material Defect, which also constitutes a default under the related Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall have a right, and shall be subrogated to the rights of the Trustee and the Trust under the Mortgage Loan to recover the amount of such expenses from the related Mortgagor; provided, however, that such Mortgage Loan Seller’s rights pursuant to this Section 2.03(g) shall be junior, subject and subordinate to the rights of the Trustee, the Certificate Administrator, the Trust, each applicable Master Servicer and each applicable Special Servicer to recover amounts owed by the related Mortgagor under the terms of such Mortgage Loan including, without limitation, the rights to recover unreimbursed Advances, accrued and unpaid interest on Advances at the Reimbursement Rate, fees owed to each applicable Master Servicer or each applicable Special Servicer, and unpaid or unreimbursed expenses of the Trustee, the Certificate Administrator, the Trust, each applicable Master Servicer or each applicable Special Servicer allocable to such Mortgage Loan.  The Enforcing Servicer shall use reasonable efforts to recover such expenses for such Mortgage Loan Seller to the extent consistent with the Servicing Standard, but taking into account the subordinate nature of the reimbursement to the related Mortgage Loan Seller; provided, however, that the Enforcing

 

 -159-

 

 

Servicer determines in the exercise of its sole discretion consistent with the Servicing Standard that such actions by it will not impair the Enforcing Servicer’s collection or recovery of principal, interest and other sums due with respect to the related Mortgage Loan that would otherwise be payable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator and the Certificateholders pursuant to the terms of this Agreement; provided, further, that such Special Servicer may waive the collection of amounts due on behalf of such Mortgage Loan Seller in its sole discretion in accordance with the Servicing Standard.

 

(h)       If (i) any Crossed Underlying Loan is required to be repurchased or substituted for in the manner described in this Section 2.03 and (ii) the applicable Material Defect does not constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group (without regard to this paragraph), then the applicable Material Defect shall be deemed to constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group for purposes of this paragraph, and the related Mortgage Loan Seller shall repurchase or substitute for such other Crossed Underlying Loan(s) in the related Crossed Mortgage Loan Group as provided in Section 2.03(b) unless such other Crossed Underlying Loans satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans in such Crossed Mortgage Loan Group satisfy the Crossed Underlying Loan Repurchase Criteria, the applicable Mortgage Loan Seller may elect either to repurchase or substitute for only the affected Crossed Underlying Loan(s) as to which the related Material Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group.  Any reserve or other cash collateral or letters of credit securing the Crossed Underlying Loans shall be allocated among the related Crossed Underlying Loans in accordance with the related Mortgage Loan documents or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Except as provided in this Section 2.03(h) and Section 2.03(i), all other terms of the related Mortgage Loans shall remain in full force and effect without any modification thereof.

 

(i)        Notwithstanding the foregoing, if the related Mortgage provides for the partial release of one or more of the Crossed Underlying Loans, the Depositor may cause the related Mortgage Loan Seller to repurchase only that Crossed Underlying Loan required to be repurchased pursuant to this Section 2.03, pursuant to the partial release provisions of the related Mortgage; provided, however, that (i) the remaining related Crossed Underlying Loan(s) fully comply with the terms and conditions of the related Mortgage, this Agreement and the related Mortgage Loan Purchase Agreement, including the Crossed Underlying Loan Repurchase Criteria, (ii) in connection with such partial release, the related Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan Seller’s expense) to the effect that the contemplated action will not cause an Adverse REMIC Event and (iii) in connection with such partial release, the related Mortgage Loan Seller delivers or causes to be delivered to the Custodian original modifications to the Mortgage prepared and executed in connection with such partial release.

 

(j)        With respect to any Crossed Underlying Loan, to the extent that the applicable Mortgage Loan Seller is required to repurchase or substitute for such Crossed Underlying Loan in the manner prescribed in Section 2.03(h) or Section 2.03(i) while the Trustee continues to hold any other Crossed Underlying Loans in the related Crossed Mortgage Loan Group, the applicable Mortgage Loan Seller and the Enforcing Servicer, on behalf of the Trustee, as assignee of the Depositor, will, as set forth in the related Mortgage Loan Purchase Agreement,

 

 -160-

 

 

forbear from enforcing any remedies against the other’s Primary Collateral but each will be permitted to exercise remedies against the Primary Collateral securing its respective related Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of the remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Underlying Loans held by such party, then both parties have agreed in the related Mortgage Loan Purchase Agreement to forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Mortgage Loan can be modified in a manner that complies with the related Mortgage Loan Purchase Agreement to remove the threat of material impairment as a result of the exercise of remedies.

 

(k)       (i) In the event an Initial Requesting Certificateholder delivers a written request to a party to this Agreement that a Mortgage Loan be repurchased by the applicable Mortgage Loan Seller alleging the existence of a Material Defect with respect to such Mortgage Loan and setting forth the basis for such allegation (a “Certificateholder Repurchase Request”), such party shall promptly forward that Certificateholder Repurchase Request to the applicable Master Servicer and the applicable Special Servicer, and the Enforcing Servicer shall promptly forward the Certificateholder Repurchase Request to the related Mortgage Loan Seller and each other party to this Agreement. Subject to Section 2.03(l), the Enforcing Servicer shall be the Enforcing Party with respect to a Certificateholder Repurchase Request.

 

(ii)       In the event that the Depositor, a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (solely in its capacity as operating advisor) or the Directing Certificateholder identifies a Material Defect with respect to a Mortgage Loan (without implying any duty of such person to make, or to attempt to make, such a discovery), that party shall deliver prompt written notice of such Material Defect to each other party to this Agreement, the Directing Certificateholder and the related Mortgage Loan Seller identifying the applicable Mortgage Loan and setting forth the basis for such allegation (a “PSA Party Repurchase Request” and each of a Certificateholder Repurchase Request or a PSA Party Repurchase Request, the “Repurchase Request”) and the Enforcing Servicer shall promptly send the PSA Party Repurchase Request to the related Mortgage Loan Seller. The Enforcing Servicer shall act as the Enforcing Party and enforce the rights of the Trust against the related Mortgage Loan Seller with respect to a PSA Party Repurchase Request.

 

(iii)      In the event the Repurchase Request is not Resolved within 180 days after the Mortgage Loan Seller receives the Repurchase Request (a “Resolution Failure”), then the provisions described in Section 2.03(l) below shall apply. Receipt of the Repurchase Request shall be deemed to occur two (2) Business Days after the Repurchase Request is sent to the related Mortgage Loan Seller.  A Resolved Repurchase Request shall not preclude the applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) from exercising any of their respective rights related to a Material Defect in the manner and timing otherwise set forth in this Agreement, in the related Mortgage Loan Purchase Agreement or as provided by law.

 -161-

 

 

(iv)           Within two (2) Business Days after a Resolution Failure occurs with respect to a Repurchase Request made by any Person other than the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder relating to a Non-Specially Serviced Loan, the applicable Master Servicer shall send a written notice (a “Master Servicer Proposed Course of Action Notice”) to the applicable Special Servicer, indicating such Master Servicer’s analysis and recommended course of action with respect to such Repurchase Request. The applicable Master Servicer shall also deliver to the applicable Special Servicer the Servicing File and all information, documents and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to such Non-Specially Serviced Loan and, if applicable, the related Serviced Companion Loan, either in such Master Servicer’s possession or otherwise reasonably available to such Master Servicer, and reasonably requested by the applicable Special Servicer to enable it to assume its duties hereunder to the extent set forth in this Agreement for such Non-Specially Serviced Loan. Upon receipt of such Master Servicer Proposed Course of Action Notice and such Servicing File and other material, the applicable Special Servicer shall become the Enforcing Servicer with respect to such Repurchase Request.

 

(l)             (i) After a Resolution Failure occurs with respect to a Repurchase Request regarding a Mortgage Loan (whether the Repurchase Request was initiated by an Initial Requesting Certificateholder, a party to this Agreement or the Directing Certificateholder), the Enforcing Servicer shall send a notice (a “Proposed Course of Action Notice”) to the Initial Requesting Certificateholder, if any, to the address specified in the Initial Requesting Certificateholder’s Repurchase Request, and to the Certificate Administrator (which shall be delivered via electronic mail to trustadministrationgroup@wellsfargo.com). The Certificate Administrator shall make the Proposed Course of Action Notice available to all other Certificateholders and Certificate Owners by posting such notice on the Certificate Administrator’s Website indicating the Enforcing Servicer’s intended course of action with respect to the Repurchase Request (a “Proposed Course of Action”). The Proposed Course of Action Notice shall include (a) a request to Certificateholders to indicate their agreement with or dissent from such Proposed Course of Action by clearly marking “agree” or “disagree” to the Proposed Course of Action on such notice within thirty (30) days after the date of such notice and a disclaimer that responses received after such thirty (30)-day period will not be taken into consideration, (b) a statement that in the event any Certificateholder disagrees with the Proposed Course of Action, the Enforcing Servicer (either as the Enforcing Party or as the Enforcing Servicer in circumstances where a Certificateholder is acting as the Enforcing Party) shall be compelled to follow the course of action agreed to and/or proposed by the majority of the responding Certificateholders that involves referring the matter to mediation or arbitration, as the case may be, in accordance with the procedures relating to the delivery of Preliminary Dispute Resolution Election Notices and Final Dispute Resolution Election Notices described in this Section 2.03(l), (c) a statement that responding Certificateholders will be required to certify their holdings in connection with such response, (d) a statement that only responses clearly marked “agree” or “disagree” with such Proposed Course of Action will be taken into consideration and (e) instructions for responding Certificateholders to send their responses to the Enforcing Servicer and the Certificate Administrator. The Certificate Administrator shall, within three (3) Business Days after the expiration of the 30-day response period, tabulate the responses received from the Certificateholders and share the results with the Enforcing Servicer. The Certificate Administrator shall only count responses timely received that clearly indicate agreement or dissent with the related Proposed Course of Action and additional verbiage or

 

 -162-

 

 

qualifying language shall not be taken into consideration for purposes of determining whether the related Certificateholder agrees or disagrees with the Proposed Course of Action. The Certificate Administrator shall be under no obligation to answer any questions from Certificateholders regarding such Proposed Course of Action. For the avoidance of doubt, the Certificate Administrator’s obligations in connection with this Section 2.03(l) shall be limited solely to tabulating Certificateholder responses of “agree” or “disagree” to the Proposed Course of Action, and such obligation shall not be construed to impose any enforcement obligation on the Certificate Administrator. The Enforcing Servicer may conclusively rely (without investigation) on the Certificate Administrator’s tabulation of the responses of the responding Certificateholders and whether that amount constitutes a majority. If (a) the Enforcing Servicer’s intended course of action with respect to the Repurchase Request does not involve pursuing further action to exercise rights against the related Mortgage Loan Seller with respect to the Repurchase Request and the Initial Requesting Certificateholder, if any, or any other Certificateholder or Certificate Owner wishes to exercise its right to refer the matter to mediation (including nonbinding arbitration) or arbitration, or (b) the Enforcing Servicer’s intended course of action is to pursue further action to exercise rights against the applicable Mortgage Loan Seller with respect to the Repurchase Request but the Initial Requesting Certificateholder, if any, or any other Certificateholder (other than the holder of the RR Interest) or Certificate Owner does not agree with the dispute resolution method selected by the Enforcing Servicer, then the Initial Requesting Certificateholder, if any, or such other Certificateholder or Certificate Owner may deliver to the Enforcing Servicer a written notice (a “Preliminary Dispute Resolution Election Notice”) within thirty (30) days from the date the Proposed Course of Action Notice is posted on the Certificate Administrator’s Website (the “Dispute Resolution Cut-off Date”) indicating its intent to exercise its right to refer the matter to either mediation or arbitration. In the event any Certificateholder or Certificate Owner entitled to do so delivers a Preliminary Dispute Resolution Election Notice, and the Enforcing Servicer has also received responses from other Certificateholders or Certificate Owners supporting the Enforcing Servicer’s initial Proposed Course of Action, such responses will be considered Preliminary Dispute Resolution Election Notices supporting the Proposed Course of Action.

 

(ii)            If neither the Initial Requesting Certificateholder, if any, nor any other Certificateholder or Certificate Owner entitled to do so delivers a Preliminary Dispute Resolution Election Notice prior to the Dispute Resolution Cut-off Date, no Certificateholder or Certificate Owner otherwise entitled to do so shall have the right to refer the Repurchase Request to mediation or arbitration, and the Enforcing Servicer shall be the sole party entitled to determine a course of action, including, but not limited to, enforcing the Trust’s rights against the related Mortgage Loan Seller, subject to any consent or consultation rights of the Directing Certificateholder pursuant to Section 6.08.

 

(iii)           Promptly and in any event within ten (10) Business Days following receipt of a Preliminary Dispute Resolution Election Notice from (a) the Initial Requesting Certificateholder, if any, or (b) any other Certificateholder (other than of the RR Interest) or Certificate Owner (each of clauses (a) and (b), a “Requesting Certificateholder”), the Enforcing Servicer shall consult with each Requesting Certificateholder regarding such Requesting Certificateholder’s intention to elect either mediation (including nonbinding arbitration) or arbitration as the dispute resolution method with respect to the Repurchase Request (the “Dispute Resolution Consultation”) so that such Requesting Certificateholder may consider the views of the Enforcing Servicer as to the claims underlying the

 

 -163-

 

 

Repurchase Request and possible dispute resolution methods, such discussions to occur and be completed no later than ten (10) Business Days following the Dispute Resolution Cut-off Date. The Enforcing Servicer shall be entitled to establish procedures the Enforcing Servicer deems in good faith to be appropriate relating to the timing and extent of such consultations. No later than five (5) Business Days after completion of the Dispute Resolution Consultation, a Requesting Certificateholder may provide a final notice to the Enforcing Servicer indicating its decision to exercise its right to refer the matter to either mediation or arbitration (“Final Dispute Resolution Election Notice”).

 

(iv)           If, following the Dispute Resolution Consultation, no Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then the Enforcing Servicer will continue to act as the Enforcing Party and will remain obligated under this Agreement to determine a course of action including, but not limited to, enforcing the rights of the Trust with respect to the Repurchase Request and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration.

 

(v)            If a Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then such Requesting Certificateholder shall become the Enforcing Party and must promptly submit the matter to mediation (including nonbinding arbitration) or arbitration. If more than one Requesting Certificateholder timely deliver a Final Dispute Resolution Election Notice, then such Requesting Certificateholders shall collectively become the Enforcing Party, and the holder or holders of a majority of the Voting Rights among such Requesting Certificateholders shall be entitled to make all decisions relating to such mediation or arbitration. If, however, no Requesting Certificateholder commences arbitration or mediation pursuant to the terms of this Agreement within thirty (30) days after delivery of its Final Dispute Resolution Election Notice to the Enforcing Servicer, then (A) the rights of a Requesting Certificateholder to act as the Enforcing Party shall terminate and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration, (B) if the Proposed Course of Action Notice indicated that the Enforcing Servicer shall take no further action with respect to the Repurchase Request, then the related Material Defect shall be deemed waived for all purposes under this Agreement and the related Mortgage Loan Purchase Agreement; provided, however, that such Material Defect shall not be deemed waived with respect to a Requesting Certificateholder, any other Certificateholder or Certificate Owner or the Enforcing Servicer to the extent there is a material change in the facts and circumstances known to such party at the time when the Proposed Course of Action Notice is posted on the Certificate Administrator’s Website, and (C) if the Proposed Course of Action Notice had indicated a course of action other than the course of action under clause (B), then the Enforcing Servicer shall again become the Enforcing Party and, as such, shall be the sole party entitled to enforce the Trust’s rights against the related Mortgage Loan Seller.

 

(vi)          Notwithstanding the foregoing, the dispute resolution provisions described above under this Section 2.03(l) shall not apply, and the Enforcing Servicer shall remain the Enforcing Party, if the Enforcing Servicer has commenced litigation with respect to the Repurchase Request, or determines in accordance with the Servicing Standard that it is in

 

 -164-

 

 

the best interest of Certificateholders to commence litigation with respect to the Repurchase Request to avoid the running of any applicable statute of limitations.

 

(vii)          In the event a Requesting Certificateholder becomes the Enforcing Party, the Enforcing Servicer, on behalf of the Trust, shall remain a party to any proceedings against the related Mortgage Loan Seller as further described herein.

 

(viii)         For the avoidance of doubt, none of the Depositor, any Mortgage Loan Seller nor any of their respective affiliates shall be entitled to be an Initial Requesting Certificateholder or a Requesting Certificateholder.

 

(ix)           The Requesting Certificateholder is entitled to elect either mediation or arbitration in its sole discretion; however, the Requesting Certificateholder shall not be entitled to then utilize the alternative method in the event that the initial method is unsuccessful.

 

(m)            If the Enforcing Party selects mediation (including nonbinding arbitration), the following provisions shall apply:

 

(i)             The mediation shall be administered by a nationally recognized mediation services provider selected by the related Mortgage Loan Seller within sixty (60) days of receipt of written notice of the Enforcing Party’s selection of mediation (such provider, the “Mediation Services Provider”) in accordance with published mediation procedures (the “Mediation Rules”) promulgated by the Mediation Services Provider.

 

(ii)            The mediator shall be impartial, an attorney admitted to practice in the state of New York and have at least fifteen (15) years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Mediation Services Provider. Upon being supplied a list of at least ten (10) potential qualified mediators by the Mediation Services Provider each party will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential mediators in order of preference. The Mediation Services Provider shall select the mediator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

 

(iii)           Prior to accepting an appointment, the mediator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

 

(iv)           The parties shall use commercially reasonable efforts to conduct an organizational conference to begin the mediation within ten (10) Business Days of the selection of the mediator and to conclude the mediation within sixty (60) days thereafter.

 

(v)            The expenses of any mediation shall be allocated among the parties to the mediation including, if applicable, between the Enforcing Party and the Enforcing Servicer, as mutually agreed by the parties as part of the mediation.

 

 -165-

 

 

(vi)           Out of pocket costs and expenses of the applicable Special Servicer for mediation or arbitration, to the extent not agreed to be paid by the Enforcing Party or another party (in the case of mediation) or allocated to the Enforcing Party or another party (in the case of arbitration) shall be reimbursable as a Servicing Advance.

 

(n)            If the Enforcing Party selects third-party arbitration, the following provisions will apply:

 

(i)             The arbitration shall be administered by a nationally recognized arbitration services provider selected by the related Mortgage Loan Seller (such provider, the “Arbitration Services Provider”) in accordance with published arbitration procedures (the “Arbitration Rules”) promulgated by the Arbitration Services Provider.

 

(ii)            The arbitrator shall be impartial, an attorney admitted to practice in the State of New York and have at least fifteen (15) years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Arbitration Services Provider. Upon being supplied a list of at least ten (10) potential arbitrators by the Arbitration Services Provider each party will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential arbitrators in order of preference. The Arbitration Services Provider will select the arbitrator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

 

(iii)           Prior to accepting an appointment, the arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

 

(iv)           After consulting with the parties at an organizational conference held not later than ten (10) Business Days after its appointment, the arbitrator shall devise procedures and deadlines for the arbitration, to the extent not already agreed to by the parties, with the goal of expediting the proceeding and completing the arbitration within 120 days. The arbitrator shall have the authority to schedule, hear, and determine any and all motions, including dispositive and discovery motions, in accordance with the Federal Rules of Civil Procedure for non-jury matters (the “Rules”) (including summary judgment and other prehearing and post hearing motions), and will do so by reasoned decision on the motion of any party to the arbitration.

 

(v)            Notwithstanding whatever other discovery may be available under the Rules, unless otherwise agreed by the parties, each party to the arbitration will be presumptively limited to the following discovery in the arbitration: (A) the parties shall reasonably and in good faith voluntarily produce to all other parties all documents upon which they intend to rely and all documents they reasonably and in good faith believe to be relevant to the claims or defenses asserted by any of the parties, (B) party witness depositions (excluding Rule 30b-6 witnesses), and (C) expert witness depositions, provided that the arbitrator shall have the ability to grant the parties, or either of them,

 

 -166-

 

 

additional discovery to the extent that the arbitrator determines good cause is shown that such additional discovery is reasonable and necessary.

 

(vi)           The arbitrator shall make its final determination no later than thirty (30) days after the conclusion of the hearings and submission of any post-hearing submissions. The arbitrator shall resolve the dispute in accordance with the terms of the related Mortgage Loan Purchase Agreement and this Agreement, and may not modify or change those agreements in any way or award remedies not consistent with those agreements. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by them. Interest on any monetary award shall bear interest from the date of the Final Dispute Resolution Election Notice at the Prime Rate. In its final determination, the arbitrator shall determine and award the costs of the arbitration (including the fees of the arbitrator, cost of any record or transcript of the arbitration, and administrative fees) and shall award reasonable attorneys’ fees to the parties to the arbitration as determined by the arbitrator in its reasonable discretion. The determination of the arbitrator shall be by a reasoned decision in writing and counterpart copies will be promptly delivered to the parties. The final determination of the arbitrator shall be final and non-appealable, except for actions to confirm or vacate the determination permitted under federal or state law, and may be enforced in any court of competent jurisdiction.

 

(vii)          By selecting arbitration, the selecting party is giving up the right to sue in court, including the right to a trial by jury.

 

(viii)         No person may bring a putative or certificated class action to arbitration.

 

(o)            The following provisions will apply to both mediation and third-party arbitration:

 

(i)             Any mediation or arbitration will be held in New York, New York unless another location is agreed by all parties;

 

(ii)            If the dispute involves a matter that cannot effectively be remedied by the payment of damages, or if there be any dispute relating to arbitration or the arbitrators that cannot be resolved promptly by the arbitrators or the Arbitration Services Provider, then any party in such instance may during the pendency of the arbitration proceedings seek temporary equitable remedies, pending the final decision of the arbitration panel, solely by application in the Southern District of New York if such court shall have subject matter jurisdiction, or if the Southern District of New York has no jurisdiction, then the Supreme Court of the State of New York for the County of New York. The arbitration proceedings shall not be stayed unless so ordered by the court.

 

(iii)            The details and/or existence of any Repurchase Request, any informal meetings, mediations or arbitration proceedings conducted under this Section 2.03, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties’ attempt to informally resolve any Repurchase Request, will be confidential, privileged and inadmissible for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding (including any proceeding under

 

 -167-

 

 

this Section 2.03). Such information will be kept strictly confidential and shall not be disclosed or shared with any third party (other than a party’s attorneys, experts, accountants and other agents and representatives, as reasonably required in connection with any resolution procedure under this Section 2.03), except as otherwise required by law, regulatory requirement or court order. If any party to a resolution procedure receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for such confidential information, the recipient shall promptly notify the other party to the resolution procedure and shall provide the other party with a reasonable opportunity to object to the production of its confidential information.

 

(iv)           In the event a Requesting Certificateholder is the Enforcing Party, the agreement with the arbitrator or mediator, as the case may be, shall be required to contain an acknowledgment that the Trust, or the Enforcing Servicer on its behalf, shall be a party to any arbitration or mediation proceedings solely for the purpose of being the beneficiary of any award in favor of the Enforcing Party; provided that the degree and extent to which the Enforcing Servicer actively prepares for and participates in such proceeding shall be determined by such Enforcing Servicer in consultation with the Directing Certificateholder (provided that a Consultation Termination Event has not occurred and is not continuing) and in accordance with the Servicing Standard. All amounts recovered by the Enforcing Party shall be paid to the Trust, or the Enforcing Servicer on its behalf, and deposited in the applicable Collection Account. The agreement with the arbitrator or mediator, as the case may be, shall provide that in the event a Requesting Certificateholder is allocated any related costs and expenses pursuant to the terms of the arbitrator’s decision or the agreement reached in mediation, neither the Trust nor the Enforcing Servicer acting on its behalf shall be responsible for any such costs and expenses allocated to the Requesting Certificateholder.

 

(v)            In the event a Requesting Certificateholder is the Enforcing Party, the Requesting Certificateholder is required to pay any expenses allocated to the Enforcing Party in the arbitration proceedings or any expenses that the Enforcing Party agrees to bear in the mediation proceedings.

 

(vi)           The Trust (or the Trustee or the Enforcing Servicer, acting on its behalf), the Depositor or any Mortgage Loan Seller shall be permitted to redact any personally identifiable customer information included in any information provided for purposes of any mediation or arbitration. Each party to the proceedings shall be required to agree to keep confidential the details related to the Repurchase Request and the dispute resolution identified in connection with such procedures; provided, however, that (A) the Certificateholders shall be permitted to communicate prior to the commencement of any such proceedings to the extent provided in Section 5.06 and (B) the Enforcing Servicer shall be permitted to include such information in any 15Ga-1 Notice as it is required pursuant to Section 2.02(g).

 

(vii)          For the avoidance of doubt, in no event shall the exercise of any right of a Requesting Certificateholder to refer a Repurchase Request to mediation or arbitration or participation in such mediation or arbitration affect in any manner the ability of the Enforcing Servicer to perform its obligations with respect to a Mortgage Loan (including

 

 -168-

 

 

without limitation, a liquidation, foreclosure, negotiation of a loan modification or workout, acceptance of a discounted pay off or deed in lieu, or bankruptcy or other litigation) or the exercise of any rights of a Directing Certificateholder.

 

(viii)         In the event that the method of dispute resolution selected is unsuccessful, the Requesting Certificateholder may not elect to then utilize the alternative method.

 

(ix)           Any out-of-pocket expenses required to be borne by or allocated to the Enforcing Servicer in a mediation or arbitration or related responsibilities pursuant to this Agreement shall be reimbursable as additional Trust Fund expenses.

 

(p)            Notwithstanding anything to the contrary herein, with respect to any Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to repurchase with respect to a Material Defect with respect to the related Mortgage Loan shall be limited to a repurchase with respect to the Mortgage Note it sold to the Depositor in accordance with the related Mortgage Loan Purchase Agreement. With respect to any Joint Mortgage Loan, any cure by either of the applicable Mortgage Loan Sellers with respect to the Mortgage Note sold by it to the Depositor in accordance with the related Mortgage Loan Purchase Agreement that also cures the Material Defect with respect to the entire related Joint Mortgage Loan shall satisfy the cure obligations of both Mortgage Loan Sellers with respect to such Joint Mortgage Loan.

 

Section 2.04        Execution of Certificates; Issuance of Lower-Tier Regular Interests. The Trustee hereby acknowledges the assignment to it of the Mortgage Loans and, subject to Section 2.01 and Section 2.02, the delivery to the Custodian of the Mortgage Files and a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, together with the assignment to it of all of the other assets included in the Lower-Tier REMIC and the Grantor Trust. Concurrently with such assignment and delivery, (i) in exchange for the Mortgage Loans (other than Excess Interest) and the other assets comprising the Lower-Tier REMIC, receipt of which is hereby acknowledged, the Trustee acknowledges the issuance of the Lower-Tier Regular Interests and the Class LR Interest to the Depositor; (ii) the Trustee acknowledges the creation of the Grantor Trust (as described in Section 2.05 below); (iii) the Trustee acknowledges the contribution by the Depositor of the Lower-Tier Regular Interests to the Upper-Tier REMIC; (iv) immediately thereafter, in exchange for the Lower-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class UR Interest and the Exchangeable Upper-Tier Regular Interests and has caused the Certificate Registrar to execute and caused the Authenticating Agent to authenticate and to deliver to or upon the order of the Depositor, the Regular Certificates and the Class R Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing, together with the Exchangeable Upper-Tier Regular Interests, the entire beneficial ownership of the Upper-Tier REMIC (and in the case of the Class R Certificates, the Class LR Interest and the Class UR Interest); (v) the Trustee acknowledges the contribution by the Depositor of the Exchangeable Upper-Tier Regular Interests to the Grantor Trust; (vi) the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class V Certificates and has caused the Certificate Registrar to execute and cause the Authenticating Agent to deliver to or upon the order of the Depositor such Certificates, and the Depositor hereby acknowledges the receipt by it, or its designees, of such Certificates in authorized denominations, evidencing beneficial ownership of their respective portions of the Grantor Trust; and (vii) immediately

 

 -169-

 

 

thereafter, in exchange for the Exchangeable Upper-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Exchangeable Certificates and has caused the Certificate Administrator to execute and caused the Authentication Agent to authenticate and to deliver to or upon the order of the Depositor, the Exchangeable Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing beneficial ownership of their respective portions of the Grantor Trust.

 

Section 2.05        Creation of the Grantor Trust. Each Class of Exchangeable Certificates, the Class V Certificates and the RR Interest are hereby designated as undivided beneficial interests in their corresponding Grantor Trust Designation Portions, which portions shall be treated as a grantor trust within the meaning of subpart E, part I of subchapter J of the Code.

 

[End of Article II]

 

Article III

ADMINISTRATION AND SERVICING OF THE TRUST FUND

 

Section 3.01        Master Servicers to Act as Master Servicers; Special Servicers to Act as Special Servicers; Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties. (a) Each applicable Master Servicer and each applicable Special Servicer shall diligently service and administer the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan), any related Serviced Companion Loans and the applicable REO Properties (other than any REO Property related to a Non-Serviced Mortgage Loan) it is obligated (as provided below) to service in accordance with applicable law, this Agreement and the Mortgage Loan documents and, in the case of a Serviced Whole Loan, the related Intercreditor Agreement on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders and, in the case of the Serviced Companion Loans, the Companion Holders and the Trustee (as Holder of the Lower-Tier Regular Interests), as a collective whole, taking into account the subordinate or pari passu nature of such Companion Loans (as determined by the applicable Master Servicer or the applicable Special Servicer, as the case may be, in its reasonable judgment), in accordance with applicable law, the terms of this Agreement (and, with respect to each Serviced Whole Loan or any Mortgage Loan with related mezzanine debt, the related Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if applicable, the related Companion Loan, taking into account the subordinate or pari passu nature of the Companion Loan. With respect to each Serviced Whole Loan, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement shall control; provided that in no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such Master Servicer or such Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions. The General Master Servicer shall be the Master Servicer with respect to all Mortgage Loans (other than the NCB Mortgage Loans), any related Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Master Servicer hereunder and under any related Intercreditor Agreement. The General Special Servicer shall be

 

 -170-

 

 

the Special Servicer with respect to all the Mortgage Loans (other than the NCB Mortgage Loans), any Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Special Servicer hereunder and under any related Intercreditor Agreement. The NCB Master Servicer shall be the Master Servicer with respect to the NCB Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Mortgage Loans and such other assets as shall be required of the applicable Master Servicer hereunder. The NCB Special Servicer shall be the Special Servicer with respect to the NCB Co-op Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Co-op Mortgage Loans and such other assets as shall be required of the applicable Special Servicer hereunder. For purposes of this Agreement and any references to the duties and obligations of a Master Servicer or Special Servicer, any references to Mortgage Loans in the context of such duties and/or obligations shall be deemed to refer solely to the Mortgage Loans serviced by the applicable Master Servicer or the applicable Special Servicer and no other Mortgage Loan, Serviced Companion Loan or other related asset in the Trust serviced hereunder, unless specifically indicated otherwise. To the extent consistent with the foregoing, each Master Servicer and each Special Servicer shall service the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan) and the related Serviced Companion Loans in accordance with the higher of the following standards of care: (1) in the same manner in which, and with the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans for other third party portfolios and (2) the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans owned by such Master Servicer or such Special Servicer, as the case may be, with a view to the (A) the timely recovery of all payments of principal and interest under the Mortgage Loans or Serviced Whole Loans or (B) in the case of a Specially Serviced Loan or an REO Property, maximization of recovery of principal and interest on a net present value basis on such Mortgage Loans and any related Serviced Companion Loans, and the best interests of the Trust and the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (and in the case of any Whole Loan, the best interests of the Trust, the Certificateholders and any related Companion Holder (as a collective whole as if such Certificateholders and the holder or holders of the related Companion Loans constituted a single lender), taking into account the subordinate or pari passu, as applicable, nature of the related Companion Loans), as determined by the applicable Master Servicer or the applicable Special Servicer, as the case may be, in its reasonable judgment, in either case giving due consideration to the customary and usual standards of practice of prudent institutional commercial, multifamily and manufactured housing community mortgage loan servicers, but without regard to any conflict of interest arising from: (i) any relationship that the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer may have with any Mortgagor, any Mortgage Loan Seller, any other parties to this Agreement, any Sponsor, any originator of a Mortgage Loan or any Affiliate of any of the foregoing; (ii) the ownership of any Certificate, Companion Loan, mezzanine loan, or subordinate debt relating to a Mortgage Loan by the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer, as applicable; (iii) the obligation, if any, of the applicable Master Servicer to make Advances; (iv) the right of the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates to receive compensation for its services and reimbursement for its costs hereunder or

 

 -171-

 

 

with respect to any particular transaction; (v) the ownership, servicing or management for others of (a) a Non-Serviced Mortgage Loan and a Non-Serviced Companion Loan or (b) any other mortgage loans, subordinate debt, mezzanine loans or properties not covered by this Agreement or held by the Trust by the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates; (vi) any debt that the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, has extended to any Mortgagor or an Affiliate of any Mortgagor (including, without limitation, any mezzanine financing); (vii) any option to purchase any Mortgage Loan or a related Companion Loan the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, may have; and (viii) any obligation of the applicable Master Servicer or the applicable Special Servicer, or any of their respective Affiliates, to repurchase or substitute for a Mortgage Loan as a Mortgage Loan Seller (if such Master Servicer or such Special Servicer or any of their respective Affiliates is a Mortgage Loan Seller) (the foregoing, collectively referred to as the “Servicing Standard”).

 

The applicable Master Servicer and the applicable Special Servicer shall act in accordance with the Servicing Standard with respect to any action required to be taken regarding the Non-Serviced Mortgage Loans pursuant to their obligations under this Agreement.

 

Without limiting the foregoing, subject to Section 3.19, the applicable Special Servicer shall be obligated to service and administer (i) any Mortgage Loans (other than the Non-Serviced Mortgage Loans) and any related Serviced Companion Loans as to which a Servicing Transfer Event has occurred and is continuing (each, a “Specially Serviced Loan”) or as otherwise provided herein with respect to Non-Specially Serviced Loans in connection with any Major Decision and (ii) any REO Properties (other than the Non-Serviced Mortgaged Properties); provided that the applicable Master Servicer shall continue to receive payments and make all calculations, and prepare, or cause to be prepared, all reports, required hereunder with respect to the Specially Serviced Loans, except for the reports specified herein as prepared by the applicable Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans) as if no REO Acquisition had occurred, and to render such services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for herein; provided, further, however, that the applicable Master Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by such Special Servicer to otherwise comply with its obligations hereunder. No Master Servicer or Special Servicer, in its capacity as a Master Servicer or Special Servicer, as applicable, shall have any responsibility for the performance by any other Master Servicer or Special Servicer, in its capacity as a Master Servicer or Special Servicer, as applicable, of such other Master Servicer’s or Special Servicer’s duties under this Agreement. Each Mortgage Loan or any related Serviced Companion Loan that becomes a Specially Serviced Loan shall continue as such until satisfaction of the conditions specified in Section 3.19(a). Without limiting the foregoing, subject to Section 3.19 and in accordance with the terms of this Agreement, the applicable Master Servicer shall be obligated to service and administer any Non-Specially Serviced Loan or any related Serviced Companion Loan. The applicable Special Servicer shall make the property inspections, use its reasonable efforts to collect the financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and forward to the applicable Master Servicer the reports in respect of the

 

 -172-

 

 

related Mortgaged Properties with respect to Specially Serviced Loans in accordance with Section 3.12. After notification to the applicable Master Servicer, the applicable Special Servicer may contact the Mortgagor of any Non-Specially Serviced Loan if efforts by such Master Servicer to collect required financial information have been unsuccessful or any other issues remain unresolved. Such contact shall be coordinated through and with the cooperation of the applicable Master Servicer. No provision herein contained shall be construed as an express or implied guarantee by the applicable Master Servicer or the applicable Special Servicer of the collectability or recoverability of payments on the Mortgage Loans or any related Serviced Companion Loan or be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or such Special Servicer (including with respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed for Advances and interest accrued thereon). Any provision in this Agreement for any Advance by the applicable Master Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans or any related Serviced Companion Loans. No provision hereof shall be construed to impose liability on any Master Servicer or Special Servicer for the reason that any recovery to the Certificateholders in respect of a Mortgage Loan at any time after a determination of present value recovery is less than the amount reflected in such determination.

 

(b)            Subject only to the Servicing Standard and the terms of this Agreement (including, without limitation, Section 6.08) and of the respective Mortgage Loans, any related Serviced Companion Loans and any related Intercreditor Agreement, if applicable, and applicable law, each applicable Master Servicer and each applicable Special Servicer shall have full power and authority, acting alone or, subject to Section 3.20, through one or more Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration for which it is responsible which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the applicable Master Servicer and the applicable Special Servicer, in its own name (or in the name of the Trustee and, if applicable, the related Serviced Companion Noteholder), is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders (and, with respect to a Serviced Companion Loan, the related Serviced Companion Noteholder) and the Trustee or any of them, with respect to each Mortgage Loan and any related Serviced Companion Loan it is obligated to service under this Agreement: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral, and shall, from time to time, execute and/or deliver such financing statements, continuation statements and other documents or instruments as necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) subject to Sections 3.08, 3.18 and 6.08, any and all modifications, waivers, amendments or consents to, under or with respect to any documents contained in the related Mortgage File; (iii) any and all instruments of satisfaction or cancellation, pledge agreements and other documents in connection with a defeasance, or of partial or full release or discharge, and all other comparable instruments; and (iv) any or all complaints or other pleadings to initiate and/or to terminate any action, suit or proceeding on behalf of the Trust (in their representative capacities (except as set forth below in this paragraph)). The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall provide to the Mortgagor related to such Mortgage Loans that it is servicing

 

 -173-

 

 

any reports required to be provided to them pursuant to the related Mortgage Loan documents. Subject to Section 3.10, the Trustee shall (i) on the Closing Date, furnish to the applicable Master Servicer and the applicable Special Servicer original powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and (ii) upon request, furnish, or cause to be furnished, to the applicable Master Servicer or the applicable Special Servicer any powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and other documents necessary or appropriate to enable the applicable Master Servicer or the applicable Special Servicer, as the case may be, to carry out its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held responsible or liable for any acts of the applicable Master Servicer or the applicable Special Servicer, or for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer. Notwithstanding anything contained herein to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating such Master Servicer’s or such Special Servicer’s, as the case may be, representative capacity (unless prohibited by any requirement of the applicable jurisdiction in which any such action, suit or proceeding is brought and if so prohibited, in the manner required by such jurisdiction (provided that such Master Servicer or such Special Servicer, as applicable, shall then provide five (5) Business Days’ written notice to the Trustee of the initiation of such action, suit or proceeding (or such shorter time period as is reasonably required in the judgment of such Master Servicer or such Special Servicer, as applicable, made in accordance with the Servicing Standard) prior to filing such action, suit or proceeding, and shall not be required to obtain the Trustee’s consent or indicate such Master Servicer’s or such Special Servicer’s, as applicable, representative capacity)) or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be required to be registered to do business in any state.

 

(c)            To the extent the applicable Master Servicer is permitted pursuant to the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) to exercise its discretion with respect to any action that requires Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall require the costs of such Rating Agency Confirmation to be borne by the related Mortgagor. To the extent the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) require the Mortgagor to bear the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall not waive the requirement that such costs and expenses be borne by the related Mortgagor. To the extent that the terms of the related Mortgage Loan documents or Companion Loan documents (including any

 

 -174-

 

 

related Intercreditor Agreement) are silent as to who bears the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall use reasonable efforts to have the Mortgagor bear such costs and expenses. The applicable Master Servicer shall not be responsible for the payment of such costs and expenses out of pocket other than as a Servicing Advance.

 

(d)            The relationship of each applicable Master Servicer and each applicable Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent.

 

(e)            Each Master Servicer shall, to the extent permitted by the related Mortgage Loan documents or any related Companion Loan documents, and consistent with the Servicing Standard, permit Escrow Payments to be invested only in Permitted Investments.

 

(f)             Within sixty (60) days (or such shorter time period as is required by the terms of the applicable Mortgage Loan documents) after the later of (i) the receipt thereof by the applicable Master Servicer and (ii) the Closing Date, the applicable Master Servicer shall notify each lessor under a Ground Lease for each Mortgage Loan identified as subject to a leasehold interest on the Mortgage Loan Schedule, that the Trust is the leasehold mortgagee and that the applicable Master Servicer or the applicable Special Servicer shall service the related Mortgage Loan for the benefit of the Certificateholders. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor.

 

With respect to letters of credit delivered in accordance with sub-clause (B) of clause (xii) of the definition of “Mortgage File”, (a) within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the related Mortgage Loan Seller shall notify the bank issuing the letter of credit that the applicable Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit, and (b) within sixty (60) days of the Closing Date, the applicable Master Servicer shall present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller in accordance with such sub-clause of the definition of “Mortgage File” to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of (x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” or (y) in the case of the NCB Mortgage Loans, “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. The applicable Master Servicer shall otherwise use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The related Mortgage Loan Seller shall provide such reasonable cooperation as requested by the applicable Master

 

 -175-

 

 

Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

 

If a letter of credit is required to be drawn upon earlier than the date that the letter of credit has been revised as contemplated in the preceding paragraph, such Mortgage Loan Seller shall cooperate with the reasonable requests of the applicable Master Servicer or the applicable Special Servicer in connection with making a draw under such letter of credit. If the Mortgage Loan documents do not require the related Mortgagor to pay any costs and expenses relating to any modifications to or assignment of the related letter of credit, then the applicable Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. If the Mortgage Loan documents require the related Mortgagor to pay any costs and expenses relating to any modifications to the related letter of credit, and such Mortgagor fails to pay such costs and expenses after the applicable Master Servicer has exercised reasonable efforts to collect such costs and expenses from such Mortgagor, then such Master Servicer shall give the applicable Mortgage Loan Seller notice of such failure and the amount of costs and expenses, and such Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor. Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement.

 

Each Master Servicer acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if such Master Servicer sells its rights to service the applicable Mortgage Loan, such Master Servicer shall assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Loan) at the direction of the applicable Special Servicer to such party as such Special Servicer may instruct, in each case at the expense of the applicable Master Servicer. Each Master Servicer shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment.

 

(g)            Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer (or the Trustee, as applicable) make an Advance with respect to any Companion Loan to the extent the related Serviced Mortgage Loan has been paid in full or is no longer included in the Trust Fund.

 

(h)            Servicing and administration of each Serviced Companion Loan shall continue hereunder and in accordance with the related Intercreditor Agreement for so long as the corresponding Serviced Mortgage Loan or any related REO Property is part of the Trust Fund or for such longer period as is contemplated by the related Intercreditor Agreement and, to the extent consistent with the related Intercreditor Agreement, as any amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

 

(i)             The applicable Special Servicer agrees that upon the occurrence of a Servicing Transfer Event with respect to any Mortgage Loan or Serviced Whole Loan that is subject to or becomes subject to an Intercreditor Agreement in the future, it shall, subject to Section 3.19, use commercially reasonable efforts to enforce, on behalf of the Trust, subject to the

 

 -176-

 

 

Servicing Standard and to the extent such Special Servicer determines such action is in the best interests of the Trust, all rights conveyed to the Trustee pursuant to any such Intercreditor Agreement. The costs and expenses incurred by such Special Servicer in connection with such enforcement shall be paid as a Trust Fund expense or, subject to the terms of the applicable Intercreditor Agreement, (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, by the Trust and Serviced Pari Passu Companion Loan Holder(s), in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) or (ii) with respect to any Serviced AB Whole Loan, first, by the related AB Subordinate Companion Loan(s) and then, pro rata and pari passu, by the Trust and any Serviced Pari Passu Companion Loan(s), in accordance with the respective outstanding principal balances of the related Serviced AB Mortgage Loan and Serviced Pari Passu Companion Loan(s).

 

(j)             Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that, to the extent required under the related Intercreditor Agreement, the servicing and administration of a Serviced Whole Loan shall continue hereunder (but not with respect to making Advances) even if the related Serviced Mortgage Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with the related Intercreditor Agreement (it being acknowledged that no Master Servicer or Special Servicer shall be obligated under a separate agreement to which it is not a party); provided that, other than pursuant to Section 6.04 (and, with respect to Section 6.04, solely with respect to claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred in connection with a legal claim or action resulting from an action or inaction taken or not taken while the related Serviced Mortgage Loan was part of the Trust Fund), no costs, expenses, losses or fees accruing with respect to such Serviced Whole Loan on and after the date the related Serviced Mortgage Loan is no longer part of the Trust Fund shall be payable out of the Trust Fund and the applicable Master Servicer shall have no obligation to make any Advance on or after the date such Serviced Mortgage Loan ceases to be part of the Trust Fund; provided, however, that if, in the case of any Serviced Whole Loan, the related Serviced Companion Loan continues to be included in an Other Securitization, then for so long as a separate servicing agreement (pursuant to the related Intercreditor Agreement) has not been entered into, the applicable Master Servicer shall inform the related Other Servicer of any need to make Servicing Advances with respect to a Serviced Whole Loan within three (3) Business Days of determining that such an Advance is necessary or being notified that such an Advance is necessary, or in the case of a Servicing Advance that needs to be made on an emergency or urgent basis, within one (1) Business Day. With respect to Servicing Advances made by any Other Servicer as contemplated in the second proviso to the preceding sentence, the applicable Master Servicer shall, from collections on the related Serviced Whole Loan (but never out of general collections on the Mortgage Loans and REO Properties) received by such Master Servicer, reimburse the Other Servicer for such Servicing Advances in the same manner and on the same level of priority as if such Servicing Advances had been made by such Master Servicer hereunder.

 

(k)            Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Non-Serviced Mortgage Loan are limited by and

 

 -177-

 

 

subject to the terms of the related Non-Serviced Intercreditor Agreement and the rights of the related Non-Serviced Master Servicer and Non-Serviced Special Servicer with respect thereto under the related Non-Serviced PSA. The applicable Master Servicer (or, with respect to any Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standards to enforce the rights of the Trustee (as holder of a Non-Serviced Mortgage Loan) under the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA.

 

(l)             The parties hereto acknowledge that each Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Non-Serviced Intercreditor Agreement and further acknowledge that, pursuant to the related Non-Serviced Intercreditor Agreement, (i) the related Non-Serviced Mortgage Loan is to be serviced and administered by the related Non-Serviced Master Servicer and Non-Serviced Special Servicer in accordance with the related Non-Serviced PSA, and (ii) in the event that (A) the related Non-Serviced Companion Loan is no longer part of the trust fund created by the related Non-Serviced PSA and (B) the related Non-Serviced Mortgage Loan is included in the Trust Fund, then, as set forth in the related Non-Serviced Intercreditor Agreement, the related Non-Serviced Whole Loan shall continue to be serviced in accordance with the related Non-Serviced PSA, until such time as a new servicing agreement has been agreed to by the parties to the related Non-Serviced Intercreditor Agreement in accordance with the provisions of such agreement and confirmation has been obtained from the Rating Agencies that such new servicing agreement would not result in a downgrade, qualification or withdrawal of the then-current ratings of any Class of Certificates then outstanding.

 

(m)           Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Serviced Whole Loan are limited by, and subject to, the terms of the related Intercreditor Agreement. The applicable Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standard to obtain the benefits of the rights of the Trust (as holder of the related Serviced Mortgage Loan) under the related Intercreditor Agreement. In the event of any conflict between this Agreement and the related Intercreditor Agreement, the provisions of the related Intercreditor Agreement shall control.

 

(n)            [RESERVED].

 

(o)            For the avoidance of doubt, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee have no obligation or authority to (a) supervise any related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator or Non-Serviced Trustee or (b) make Servicing Advances with respect to any Non-Serviced Whole Loan. The obligation of the applicable Master Servicer to provide information and collections and make P&I Advances to the Certificate Administrator for the benefit of the Certificateholders with respect to each Non-Serviced Mortgage Loan is dependent on its receipt of the corresponding information and/or collections from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer.

 

(p)            Nothing contained in this Agreement shall limit the ability of the applicable Master Servicer or the applicable Special Servicer to lend money to (to the extent not secured, in

 

 -178-

 

 

whole or in part, by any Mortgaged Property, except, in the case of an NCB Co-op Mortgage Loan, any such indebtedness as to which the NCB Subordinate Debt Conditions have been satisfied, which indebtedness may be secured by a lien on the related Mortgaged Property), accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though the applicable Master Servicer or the applicable Special Servicer was not a party to this Agreement or to the transactions contemplated hereby; provided that this sentence shall not be construed to modify or supersede the Servicing Standard.

 

Section 3.02        Collection of Mortgage Loan Payments. (a) Each of the applicable Master Servicer and the applicable Special Servicer shall each make reasonable efforts to collect all payments called for under the terms and provisions of the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Serviced Companion Loans it is obligated to service hereunder, and shall follow such collection procedures as are consistent with this Agreement (including, without limitation, the Servicing Standard); provided that with respect to each Mortgage Loan that has an Anticipated Repayment Date, for so long as the related Mortgagor is in compliance with each provision of the related Mortgage Loan documents, the applicable Master Servicer and the applicable Special Servicer shall be permitted to take any enforcement action with respect to the failure of the related Mortgagor to make any payment of Excess Interest to the extent permitted under the related Mortgage Loan documents; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as the case may be, may take action to enforce the Trust’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents. The applicable Master Servicer or the applicable Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan that it is obligated to service hereunder three (3) times during any period of twenty-four (24) consecutive months with respect to any Mortgage Loan or Serviced Companion Loan; provided that such Master Servicer or such Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan one additional time in such 24-month period so long as with respect to any of the foregoing waivers, no Advance or additional expense of the Trust has been incurred and remains unreimbursed to the Trust with respect to such Mortgage Loan or Serviced Companion Loan. Any additional waivers during such 24-month period with respect to such Mortgage Loan may be made, subject to the Servicing Standard, only after the applicable Master Servicer or the applicable Special Servicer, as the case may be, has, prior to the occurrence and continuance of a Consultation Termination Event, given notice of a proposed waiver to the Directing Certificateholder and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder has consented to such additional waiver (provided that if such Master Servicer or such Special Servicer, as applicable, fails to receive a response to such notice from the Directing Certificateholder in writing within five (5) days of giving such notice, then the Directing Certificateholder shall be deemed to have consented to such proposed waiver); provided, further, that after the occurrence and during the continuance of a Control Termination Event, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may waive any Penalty Charge in accordance with the Servicing Standard without the consent of the Directing Certificateholder; provided, further, that the Directing Certificateholder shall not have any consent or consultation rights with respect to any Mortgage Loan that is an Excluded Loan as to such party with respect to the foregoing waivers.

 

 -179-

 

 

(b)            (i) All amounts collected by or on behalf of the Trust in respect of a Mortgage Loan shall be applied to amounts due and owing under the Mortgage Loan documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan documents (including any related Intercreditor Agreement); provided, however, that absent express provisions in the related Mortgage Loan documents (including any related Intercreditor Agreement) or to the extent otherwise agreed to by the related Mortgagor in connection with a workout of a Mortgage Loan, all amounts collected by or on behalf of the Trust in respect of a Mortgage Loan in the form of payments from the related Mortgagor, Liquidation Proceeds or Insurance and Condemnation Proceeds under the Mortgage Loan (in the case of each Serviced Whole Loan, exclusive of amounts payable to any applicable Companion Loan pursuant to the terms of the related Intercreditor Agreement) shall be applied in the following order of priority:

 

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to such Mortgage Loan and unpaid interest at the Reimbursement Rate on such Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust Fund from general collections);

 

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on such Mortgage Loan (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that either (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

 

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if the

 

 -180-

 

 

Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

 

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance, and (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of such accrued and unpaid interest pursuant to this clause fifth on earlier dates);

 

sixth, as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to such Mortgage Loan;

 

seventh, as a recovery of any other reserves to the extent then required to be held in escrow with respect to such Mortgage Loan;

 

eighth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

 

ninth, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

 

tenth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

 

eleventh, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees);

 

twelfth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and

 

thirteenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

 

provided that to the extent required under the REMIC Provisions, payments or proceeds received (or receivable by exercise of the lender’s rights under the related Mortgage Loan documents) with respect to any partial release of a Mortgaged Property (including in connection with a condemnation) at a time when the loan to value ratio of the related Mortgage Loan or Serviced Whole Loan, as applicable, exceeds 125%, or would exceed 125% following any partial release

 

 -181-

 

 

(based solely on the value of real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC Provisions as evidenced by an Opinion of Counsel to the Trustee) must be collected and allocated to reduce the principal balance of the Mortgage Loan or Serviced Whole Loan in the manner required by the REMIC Provisions; provided, further, that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan become REO Loans, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

 

(ii)             Collections by or on behalf of the Trust in respect of any REO Property (exclusive of the amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of each Serviced Whole Loan, exclusive of any amounts payable to the holder of the related Companion Loan(s), as applicable, pursuant to the related Intercreditor Agreement) shall be applied in the following order of priority:

 

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to the related Mortgage Loan and interest at the Reimbursement Rate on all Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust Fund from general collections) with respect to such Mortgage Loan;

 

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below or clause fifth of the prior paragraph on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that either (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection

 

 -182-

 

 

with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

 

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan to the extent of its entire unpaid principal balance;

 

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance and (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause fifth or clause fifth of the prior paragraph on earlier dates);

 

sixth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

 

seventh, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

 

eighth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

 

ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

 

tenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

 

provided that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan becomes an REO Loan, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

 

 -183-

 

 

(iii)           Notwithstanding clauses (i) and (ii) above, such provisions shall not be deemed to affect the priority of distributions of payments pursuant to the provisions of this Agreement. To the extent that such amounts are paid by a party other than a Mortgagor, such amounts shall be deemed to have been paid in respect of a purchase of all or part of the Mortgaged Property (in the case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or Companion Loan, as applicable, or in accordance with Section 3.02(b)(ii) above.

 

(c)            To the extent consistent with the terms of the Mortgage Loans (and, with respect to each Serviced Whole Loan, the related Serviced Companion Loan, as applicable, and the related Intercreditor Agreement) and applicable law, the applicable Master Servicer shall apply all Insurance and Condemnation Proceeds it receives on a day other than the Due Date to amounts due and owing under the related Mortgage Loan or Companion Loan as if such Insurance and Condemnation Proceeds were received on the Due Date immediately succeeding the month in which Insurance and Condemnation Proceeds were received and otherwise in accordance with Section 3.02(b)(ii) above.

 

(d)            In the event that the applicable Master Servicer or the applicable Special Servicer receives Excess Interest prior to the Determination Date for any Collection Period, or receives notice from the related Mortgagor that such Master Servicer or such Special Servicer will be receiving Excess Interest prior to the Determination Date for any Collection Period, such Master Servicer or such Special Servicer, as the case may be, shall notify the Trustee and Certificate Administrator two (2) Business Days prior to the related Distribution Date. None of the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee shall be responsible for any failure of the related Mortgagor to pay any such Excess Interest or prepayment penalty. The preceding statements shall not, however, be construed to limit the provisions of Section 3.02(a).

 

(e)            In connection with the Mortgage Loans or any Serviced Pari Passu Companion Loan for which the related Mortgagor was required to escrow funds or to post a letter of credit related to obtaining performance objectives, such as targeted debt service coverage levels or leasing criteria with respect to the Mortgaged Property as a whole or particular portions thereof, if the mortgagee has the discretion under the applicable Mortgage Loan documents to retain the cash or letter of credit (or the proceeds of such letters of credit) as additional collateral if the relevant conditions to release are not satisfied, then the related Master Servicer may continue to hold such escrows or letters of credit (or the proceeds of such letters of credit) as additional collateral or use such funds to reduce the principal balance of the related Mortgage Loan or Serviced Pari Passu Companion Loan (to the extent the related Mortgage Loan documents allow such action), unless holding or application of such funds would otherwise be inconsistent with the Mortgage Loan documents or the Servicing Standard.

 

(f)            Promptly following the Closing Date, in the case of any Non-Serviced Whole Loan and, with respect to any Servicing Shift Mortgage Loan, promptly following receipt of notice in connection with the Servicing Shift Securitization Date, the Certificate Administrator shall send written notice (in the form attached hereto as Exhibit T) to the related Non-Serviced Master Servicer (with a copy to any other applicable party set forth on the schedule of addresses to Exhibit T) stating that, as of such date, the Trustee is the holder of the related Non-Serviced

 

 -184-

 

 

Mortgage Loan and directing such Non-Serviced Master Servicer to remit to the applicable Master Servicer all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to the applicable Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of such Non-Serviced Mortgage Loan under the related Non-Serviced Intercreditor Agreement and the related Non-Serviced PSA. The applicable Master Servicer shall, within two (2) Business Days of receipt of properly identified funds, deposit into the applicable Collection Account all amounts received with respect to the related Non-Serviced Mortgage Loan, the related Non-Serviced Mortgaged Property or any related REO Property.

 

Section 3.03        Collection of Taxes, Assessments and Similar Items; Servicing Accounts. (a) Each Master Servicer shall establish and maintain one or more accounts (the “Servicing Accounts”), into which all Escrow Payments received by it shall be deposited and retained, and shall administer such Servicing Accounts in accordance with the related Mortgage Loan documents and, if applicable, the Companion Loan documents. Any Servicing Account related to a Serviced Whole Loan shall be held for the benefit of the Certificateholders and the related Serviced Companion Noteholder(s) collectively, but this shall not be construed to modify the respective interests of any noteholder therein as set forth in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts may only be invested in accordance with the terms of the related Mortgage Loan documents and Companion Loan documents, or in Permitted Investments in accordance with the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent permitted by the terms of the related Mortgage Loan documents. Withdrawals of amounts so deposited from a Servicing Account may be made only to: (i) effect payment of items for which Escrow Payments were collected and comparable items; (ii) reimburse the Trustee and then the applicable Master Servicer, if applicable, for any Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to be overages; (iv) pay interest to Mortgagors on balances in the Servicing Account, if required by applicable law or the terms of the related Mortgage Loan or Companion Loan and as described below or, if not so required, to the applicable Master Servicer; (v) after the occurrence of an event of default under the related Mortgage Loan or Companion Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage Loan documents; or (viii) clear and terminate the Servicing Account at the termination of this Agreement in accordance with Section 9.01. As part of its servicing duties, the applicable Master Servicer shall pay or cause to be paid to the related Mortgagors interest on funds in Servicing Accounts, to the extent required by law or the terms of the related Mortgage Loan or Companion Loan; provided, however, that in no event shall the applicable Master Servicer be required to remit to any Mortgagor any amounts in excess of actual net investment income or funds in the related Servicing Account. If allowed by the related Mortgage Loan documents and applicable law, the applicable Master Servicer may charge the related Mortgagor an administrative fee for maintenance of the Servicing Accounts.

 

(b)            The applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Serviced Mortgage Loans and each related Serviced Companion Loan, shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of real estate taxes, assessments and other similar items that are or may become a lien thereon and the status of insurance premiums and any ground rents payable in respect thereof. The

 

 -185-

 

 

applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Serviced Mortgage Loans and each related Serviced Companion Loan, shall use reasonable efforts consistent with the Servicing Standard to obtain, from time to time, all bills for the payment of such items (including renewal premiums) and shall effect payment thereof from the REO Account or by the applicable Master Servicer as Servicing Advances prior to the applicable penalty or termination date and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items, employing for such purpose Escrow Payments (which shall be so applied by the applicable Master Servicer at the written direction of the applicable Special Servicer in the case of REO Loans) as allowed under the terms of the related Serviced Mortgage Loan and Companion Loan. Other than with respect to any Non-Serviced Mortgage Loan, the applicable Master Servicer shall service and administer any reserve accounts (including monitoring, maintaining or changing the amounts of required escrows) in accordance with the terms of such Mortgage Loan and the related Serviced Companion Loan, as applicable, and the Servicing Standard. To the extent that a Serviced Mortgage Loan and any related Companion Loan, as applicable, does not require a Mortgagor to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the applicable Special Servicer, in the case of REO Loans, and the applicable Master Servicer, in the case of all other such Mortgage Loans or Companion Loan, as applicable, that it is responsible for servicing hereunder, shall use reasonable efforts consistent with the Servicing Standard to cause the Mortgagor to comply with its obligation to make payments in respect of such items at the time they first become due and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items.

 

(c)             In accordance with the Servicing Standard and for each Serviced Mortgage Loan and each Serviced Whole Loan, as applicable, the applicable Master Servicer shall advance all such funds as are necessary for the purpose of effecting the payment of (i) real estate taxes, assessments and other similar items that are or may become a lien thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance Policies, in each instance if and to the extent Escrow Payments collected from the related Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such item when due and the related Mortgagor has failed to pay such item on a timely basis, and provided, however, that the particular advance would not, if made, constitute a Nonrecoverable Servicing Advance and provided, further, however, that with respect to the payment of taxes and assessments, the applicable Master Servicer shall not be required to make such advance until the later of (i) five (5) Business Days after such Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, has received confirmation that such item has not been paid and (ii) the date prior to the date after which any penalty or interest would accrue in respect of such taxes or assessments. The applicable Special Servicer shall give the applicable Master Servicer and the Trustee no less than five (5) Business Days’ written (facsimile or electronic) notice before the date on which such Master Servicer is requested to make any Servicing Advance with respect to a given Specially Serviced Loan or REO Property; provided, however, that only two (2) Business Days’ written (facsimile or electronic) notice shall be required in respect of Servicing Advances required to be made on an emergency or urgent basis provided, further, that the applicable Special Servicer shall not be entitled to make such a request (other than for Servicing Advances required to be made on an urgent or emergency basis) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The applicable Master Servicer may pay the aggregate amount of

 

 -186-

 

 

such Servicing Advances listed on a monthly request to the applicable Special Servicer, in which case such Special Servicer shall remit such Servicing Advances to the ultimate payees. The applicable Special Servicer shall have no obligation to make any Servicing Advances; provided that in an urgent or emergency situation requiring the making of a Servicing Advance, such Special Servicer may make a Servicing Advance in its sole discretion. Within five (5) Business Days of making such a Servicing Advance, such Special Servicer shall deliver to the applicable Master Servicer a request for reimbursement for such Servicing Advance, along with all information and documentation in such Special Servicer’s possession regarding the subject Servicing Advance as such Master Servicer may reasonably request, and such Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse such Special Servicer for any unreimbursed Servicing Advances (other than Nonrecoverable Servicing Advances) made by such Special Servicer pursuant to the terms hereof, together with interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by such Special Servicer. Upon the applicable Master Servicer’s reimbursement to the applicable Special Servicer of any Servicing Advance and payment to such Special Servicer of interest thereon, all in accordance with this Section 3.03, such Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as such Special Servicer actually made such Servicing Advance, and accordingly, such Master Servicer shall be entitled to be reimbursed for such Servicing Advance, together with interest thereon at the Reimbursement Rate, at the same time, in the same manner and to the same extent as such Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance at the time such Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.03(c), the applicable Master Servicer shall not be required to reimburse the applicable Special Servicer out of its own funds for, or to make at the direction of such Special Servicer, any Servicing Advance if such Master Servicer determines in its reasonable judgment that such Servicing Advance, although not characterized by such Special Servicer as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance. The applicable Master Servicer shall notify such Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Servicing Advance shall instead be reimbursed to such Special Servicer pursuant to Section 3.05 of this Agreement.

 

Any request by a Special Servicer that the applicable Master Servicer make a Servicing Advance shall be deemed to be a determination by such Special Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing Advance, and such Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; provided that the determination shall not be binding on such Master Servicer or Trustee. On the first Business Day after the Determination Date for the related Distribution Date, the applicable Special Servicer shall report to the applicable Master Servicer if such Special Servicer determines any Servicing Advance previously made by such Master Servicer with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable Servicing Advance. Such Master Servicer shall be entitled to conclusively rely on such a determination, and such determination shall be binding upon such Master Servicer, and shall in no way limit the ability of such Master Servicer in the absence of such determination to make its own determination that any Advance is a Nonrecoverable Advance. If the applicable Special Servicer makes a determination that only a portion of, and not all of, any previously made or proposed Servicing Advance is a Nonrecoverable Advance, the applicable

 

 -187-

 

 

Master Servicer shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Advance. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed Servicing Advance with respect to a Serviced Whole Loan, if made, or any outstanding Servicing Advance with respect to a Serviced Whole Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. Any such determination by the applicable Special Servicer that a Servicing Advance is or would be a Nonrecoverable Servicing Advance shall be binding on the applicable Master Servicer and the Trustee. All such Advances shall be reimbursable in the first instance from related collections from the Mortgagors and further as provided in Section 3.05(a). No costs incurred by a Master Servicer or a Special Servicer in effecting the payment of real estate taxes, assessments and, if applicable, ground rents on or in respect of the Mortgaged Properties shall, for purposes hereof, including, without limitation, the Certificate Administrator’s calculation of monthly distributions to Certificateholders, be added to the unpaid principal balances of the related Mortgage Loans, any related Serviced Companion Loan, if applicable, notwithstanding that the terms of such Mortgage Loans, related Serviced Companion Loan, if applicable, so permit. If the applicable Master Servicer fails to make any required Servicing Advance as and when due (including any applicable cure periods), to the extent the Trustee has actual knowledge of such failure, the Trustee shall make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no Servicing Advance shall be required hereunder if such Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance. In addition, each applicable Master Servicer shall consider Unliquidated Advances in respect of prior Servicing Advances for purposes of nonrecoverability determinations. No Special Servicer shall have an obligation to make any Servicing Advances or recoverability determination with respect to any Servicing Advance under this Agreement.

 

Notwithstanding anything to the contrary contained in this Section 3.03(c), the applicable Master Servicer may in its good faith judgment elect (but shall not be required unless directed by the applicable Special Servicer with respect to Specially Serviced Loans and REO Loans) to make a payment from amounts on deposit in the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by a Companion Paying Agent, if applicable) (which shall be deemed first made from amounts distributable as principal and then from all other amounts comprising general collections) to pay for certain expenses set forth below notwithstanding that the applicable Master Servicer (or the applicable Special Servicer, as the case may be) has determined that a Servicing Advance with respect to such expenditure would be a Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced Loans or REO Loans, the applicable Special Servicer has notified the applicable Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan or Serviced Companion Loan; provided that in each instance, the applicable Master Servicer or the applicable Special Servicer, as the case may be, determines in accordance with the Servicing Standard (as evidenced by an Officer’s Certificate delivered to the Trustee) that making such expenditure is in the best interest of the Certificateholders (and, if applicable, the Companion Holders), all as a collective whole (taking into account the subordinate

 

 -188-

 

 

or pari passu nature of any Companion Loans). The applicable Master Servicer or the Trustee may elect to obtain reimbursement of Nonrecoverable Servicing Advances from the Trust pursuant to the terms of Section 3.17(c). The parties acknowledge that pursuant to the applicable Non-Serviced PSA, the applicable Non-Serviced Master Servicer is obligated to make servicing advances with respect to the related Non-Serviced Whole Loan. The applicable Non-Serviced Master Servicer shall be entitled to reimbursement for nonrecoverable servicing advances with respect to such Non-Serviced Whole Loan (with, in each case, any accrued and unpaid interest thereon provided for under the applicable Non-Serviced PSA) in the manner set forth in the applicable Non-Serviced PSA and the applicable Non-Serviced Intercreditor Agreement.

 

(d)           In connection with its recovery of any Servicing Advance out of the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) pursuant to Section 3.05(a), the Trustee, the applicable Special Servicer and then the applicable Master Servicer, as the case may be and in that order, shall be entitled to receive, out of any amounts then on deposit in the applicable Collection Account interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such Servicing Advance from the date made to, but not including, the date of reimbursement. Subject to Section 3.17(c), the applicable Master Servicer shall reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any outstanding Servicing Advance as soon as practically possible after funds available for such purpose are deposited in the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) subject to the applicable Master Servicer’s or the Trustee’s options and rights to defer recovery of such amounts as provided herein; provided, however, that such Master Servicer’s or Trustee’s options and rights to defer recovery of such amounts shall not alter such Master Servicer’s obligation to reimburse such Special Servicer for any outstanding Servicing Advance as provided for in this sentence. To the extent amounts on deposit in the Companion Distribution Account with respect to the related Companion Loan are insufficient for any such reimbursement, the applicable Master Servicer shall use efforts in accordance with the Servicing Standard to enforce the rights of the holder of the related Mortgage Loan under the related Intercreditor Agreement to obtain any reimbursement available from the holder of the related Companion Loan.

 

(e)            To the extent an operations and maintenance plan is required to be established and executed pursuant to the terms of a Serviced Mortgage Loan, the applicable Master Servicer shall request from the Mortgagor written confirmation thereof within a reasonable time after the later of the Closing Date and the date as of which plan is required to be established or completed. To the extent any repairs, capital improvements, actions or remediations are required to have been taken or completed pursuant to the terms of the Serviced Mortgage Loan, the applicable Master Servicer shall request from the Mortgagor written confirmation of such actions and remediations within a reasonable time after the later of the Closing Date and the date as of which action or remediations are required to be or to have been taken or completed. To the extent a Mortgagor shall fail to promptly respond to any inquiry described in this Section 3.03(e), the applicable Master Servicer shall report any such failure to the applicable Special Servicer within a reasonable time after the date as of which actions or remediations are required to be or to have been taken or completed.

 

 -189-

 

 

Section 3.04        The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account. (a) Each Master Servicer shall establish and maintain, or cause to be established and maintained, a Collection Account in which such Master Servicer shall deposit or cause to be deposited on a daily basis and in no event later than the second (2^nd) Business Day following receipt of available and properly identified funds (in the case of payments by Mortgagors or other collections on the Mortgage Loans or Companion Loans), except as otherwise specifically provided herein, the following payments and collections received or made by or on behalf of it subsequent to the Cut-off Date (other than in respect of principal and interest on the Mortgage Loans or Companion Loans due and payable on or before the Cut-off Date, which payments shall be delivered promptly to the appropriate Mortgage Loan Seller or its respective designee and other than any amounts received from Mortgagors which are received in connection with the purchase of defeasance collateral), or payments (other than Principal Prepayments) received by it on or prior to the Cut-off Date but allocable to a period subsequent thereto, in each case, with respect to the Mortgage Loans for which it acts as Master Servicer:

 

(i)             all payments on account of principal, including Principal Prepayments on the Mortgage Loans or principal prepayments on Serviced Companion Loans;

 

(ii)            all payments on account of interest on the Mortgage Loans or the Serviced Companion Loans, including Excess Interest, Prepayment Premiums, Yield Maintenance Charges and Default Interest;

 

(iii)           late payment charges and other Penalty Charges to the extent required to offset interest on Advances and additional expenses of the Trust (including Special Servicing Fees, Workout Fees or Liquidation Fees) as required by Section 3.11(d);

 

(iv)           all Insurance and Condemnation Proceeds and Liquidation Proceeds (other than Gain-on-Sale Proceeds or Non-Serviced Gain-on-Sale Proceeds) received in respect of any Mortgage Loan, Serviced Companion Loan or REO Property (other than (A) Liquidation Proceeds that are received in connection with the purchase by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class, or the Holders of the Class R Certificates of all the Mortgage Loans and any REO Properties in the Trust Fund and that are to be deposited in the Lower-Tier REMIC Distribution Account pursuant to Section 9.01 and (B) any proceeds that are received in connection with the purchase, if any, of a Serviced Pari Passu Companion Loan from a securitization by the related mortgage loan seller, which shall be paid directly to the servicer of such securitization) together with any recovery of Unliquidated Advances in respect of the related Mortgage Loans;

 

(v)            any amounts required to be transferred from the applicable REO Account pursuant to Section 3.14(c);

 

 -190-

 

 

(vi)           any amounts required to be deposited by any Master Servicer pursuant to Section 3.06 in connection with losses incurred with respect to Permitted Investments of funds held in its Collection Account; and

 

(vii)         any amounts required to be deposited by any Master Servicer or any Special Servicer pursuant to Section 3.07(b) in connection with losses resulting from a deductible clause in a blanket hazard or master single interest policy.

 

Notwithstanding the foregoing requirements, a Master Servicer need not deposit into its Collection Account any amount that such Master Servicer would be authorized to withdraw immediately from such account in accordance with the terms of Section 3.05 and shall be entitled to instead immediately pay such amount directly to the Person(s) entitled thereto; provided that such amounts shall be applied in accordance with the terms hereof and shall be reported as if deposited in such Collection Account and then withdrawn.

 

The foregoing requirements for deposit in each applicable Collection Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, actual payments from Mortgagors in the nature of Escrow Payments, charges for beneficiary statements or demands, assumption fees, modification fees, extension fees, defeasance fees, amounts collected for Mortgagor checks returned for insufficient funds or other amounts any Master Servicer or any Special Servicer would be entitled to retain as additional servicing compensation need not be deposited by such Master Servicer in its Collection Account. If any Master Servicer shall deposit in its Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from its Collection Account, any provision herein to the contrary notwithstanding. Assumption, extension and modification fees actually received from Mortgagors on Specially Serviced Loans shall be promptly delivered to the applicable Special Servicer as additional servicing compensation.

 

Upon receipt of any of the foregoing amounts in clauses (i) through (iv) above with respect to any Specially Serviced Loans, the applicable Special Servicer shall remit within one (1) Business Day such amounts to the applicable Master Servicer for deposit into the applicable Collection Account, in accordance with this Section 3.04(a), provided that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern Time) on any given Business Day, the applicable Special Servicer shall use commercially reasonable efforts to remit such amounts within one (1) Business Day of receipt of such amount, but, in any event, the applicable Special Servicer shall remit such amounts to the applicable Master Servicer within two (2) Business Days of receipt of such amounts; Any such amounts received by the applicable Special Servicer with respect to an REO Property shall be deposited by such Special Servicer into its REO Account and remitted to the applicable Master Servicer for deposit into its Collection Account, pursuant to Section 3.14(c). With respect to any such amounts paid by check to the order of the applicable Special Servicer, such Special Servicer shall endorse without recourse or warranty such check to the order of the applicable Master Servicer and shall promptly deliver any such check to such Master Servicer by overnight courier. Funds in each applicable Collection Accounts may only be invested in Permitted Investments in accordance with the provisions of Section 3.06. As of the Closing Date, the Collection Account for the General Master Servicer shall be located at the offices of Wells Fargo Bank, National Association. As of the Closing Date, the Collection Account for the NCB Master Servicer shall be located at the offices of Wells Fargo Bank, National Association.

 

 -191-

 

 

Each Master Servicer shall give written notice to the Trustee, each applicable Special Servicer, the Certificate Administrator and the Depositor of the new location of its Collection Account prior to any change thereof.

 

(b)           The Certificate Administrator, on behalf of the Trustee, shall establish and maintain (i) the Lower-Tier REMIC Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders (other than the Holders of the Excess Interest Certificates), (ii) the Upper-Tier REMIC Distribution Account in trust for the benefit of the Certificateholders (other than the Holders of the Excess Interest Certificates) and (iii) the Excess Interest Distribution Account in trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest. Each Master Servicer shall deliver to the Certificate Administrator each month on or before the P&I Advance Date therein, for deposit (x) in the Lower-Tier REMIC Distribution Account, that portion of the Aggregate Available Funds attributable to the Mortgage Loans for which it acts as Master Servicer (in each case, calculated without regard to clauses (a)(iii)(B), (a)(iv), (c) and (d) of the definition of Aggregate Available Funds) for the related Distribution Date and (y) in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the applicable Collection Account maintained by the applicable Master Servicer after giving effect to withdrawals of funds pursuant to Section 3.05(a)(ii). For the avoidance of doubt, so long as Computershare Trust Company, National Association is the Certificate Administrator, all funds held in the Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account shall remain uninvested.

 

The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j) of this Agreement.

 

With respect to each Serviced Companion Loan, the Companion Paying Agent shall establish and maintain the Companion Distribution Account, which may be a subaccount of the related Collection Account, for distributions to each Serviced Companion Noteholder. Funds in the Companion Distribution Account shall be held for the benefit of the related Serviced Companion Noteholders. The Companion Paying Agent shall separately track for each Serviced Companion Loan all amounts deposited in the Companion Distribution Account with respect to such Serviced Companion Loan.

 

On each Serviced Whole Loan Remittance Date, (1) first, the applicable Master Servicer shall withdraw from its Collection Account (or applicable portion thereof) an aggregate amount equal to all payments and/or collections actually received on, and payable in respect of, the Serviced Companion Loans prior to such date and deposit such amount in the Companion Distribution Account; provided, however, that in no event shall the applicable Master Servicer be required to transfer to the Companion Distribution Account any portion thereof that is payable or reimbursable to or at the direction of any party to this Agreement under the other provisions of this Agreement and/or the related Intercreditor Agreement; and (2) then, the Companion Paying Agent shall make the payments and remittance described in Section 4.01(k). With respect to any Serviced Whole Loan, in the event the applicable Master Servicer has received written notice that an Other Servicer or Other Trustee has made an advance of a monthly debt service payment on a related Serviced Pari Passu Companion Loan and such Master Servicer subsequently receives Late

 

 -192-

 

 

Collections in respect of such advanced payment, such Master Servicer shall remit to the applicable Other Servicer or Other Trustee, within two (2) Business Days following receipt of such Late Collections in properly identified funds, the amount allocable to such Serviced Pari Passu Companion Loan in accordance with the terms of this Agreement and the related Intercreditor Agreement.

 

The Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account and the Interest Reserve Account, may be subaccounts of a single Eligible Account, which shall be maintained as a segregated account separate from other accounts.

 

In addition to the amounts required to be deposited in the Lower-Tier REMIC Distribution Account pursuant to this Section 3.04, each Master Servicer shall, as and when required hereunder, deliver to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account:

 

(i)             any amounts required to be deposited by such Master Servicer pursuant to Section 3.17(a) as Compensating Interest Payments (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) in connection with Prepayment Interest Shortfalls;

 

(ii)            any P&I Advances required to be made by such Master Servicer in accordance with Section 4.03;

 

(iii)           any Liquidation Proceeds paid by such Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates in connection with the purchase of all of the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof required to be deposited in the related Collection Account pursuant to Section 9.01);

 

(iv)           any Prepayment Premiums and Yield Maintenance Charges with respect to the Mortgage Loans actually collected; and

 

(v)            any other amounts required to be so delivered for deposit in the Lower-Tier REMIC Distribution Account pursuant to any provision of this Agreement.

 

If, as of the close of business (New York City time) on any P&I Advance Date or on such other date as any amount referred to in the foregoing clauses (i) through (v) or any Excess Interest are required to be delivered hereunder, the applicable Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, the amounts required to be deposited therein pursuant to the provisions of this Agreement (including any P&I Advance with respect to the Mortgage Loans, pursuant to Section 4.03(a)), the applicable Master Servicer shall pay the Certificate Administrator interest on such late payment at the Prime Rate from and including the date such payment was required to be made (without regard to any Grace Period set forth in Section 7.01(a)(i)) until (but not including) the date such late payment is received by the Certificate Administrator.

 

 -193-

 

 

The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, any and all amounts received by the Certificate Administrator that are required by the terms of this Agreement to be deposited therein.

 

Promptly on each Distribution Date, the Certificate Administrator shall be deemed to withdraw from the Lower-Tier REMIC Distribution Account and deposit in the Upper-Tier REMIC Distribution Account an aggregate amount of immediately available funds equal to the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges for such Distribution Date allocated in payment of the Lower-Tier Regular Interests as specified in Section 4.01(c) and Section 4.01(e), respectively.

 

Funds on deposit in the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account or the Lower-Tier REMIC Distribution Account shall not be invested for so long as Computershare Trust Company, National Association is the Certificate Administrator; provided, however, that such funds may be invested and, if invested, shall be invested by, and at the risk of, the Certificate Administrator (but only if the Certificate Administrator is not Computershare Trust Company, National Association) in Permitted Investments selected by the party hereunder that maintains such account which shall mature, unless payable on demand, not later than such time on the Distribution Date which will allow the Certificate Administrator to make withdrawals from the Distribution Account, and any such Permitted Investment shall not be sold or disposed of prior to its maturity unless payable on demand. All such Permitted Investments to be administered by the Certificate Administrator, shall be made in the name of “Computershare Trust Company, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee for the Holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 as their interests may appear”, or in the name of any successor trustee, as Trustee for the Holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 as their interests may appear. None of the Trust, the Depositor, the Mortgagors, any Master Servicer or any Special Servicer shall be liable for any loss incurred on such Permitted Investments.

 

An amount equal to all income and gain realized from any such investment shall be paid to the Certificate Administrator as additional compensation and shall be subject to its withdrawal at any time from time to time. The amount of any losses incurred in respect of any such investments shall be for the account of the Certificate Administrator which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Distribution Accounts, as the case may be, out of its own funds immediately as realized. If the Certificate Administrator deposits in or transfers to the Distribution Accounts, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Distribution Accounts, as the case may be, any provision herein to the contrary notwithstanding.

 

As of the Closing Date, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account and the Lower-Tier REMIC Distribution Account shall be located at the offices of the Certificate Administrator. The

 

 -194-

 

 

Certificate Administrator shall give notice to the Trustee, each applicable Master Servicer, and the Depositor of the proposed location of the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account, and, if established, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account prior to any change thereof.

 

For the avoidance of doubt, the applicable Collection Account (other than (i) any portion holding Excess Interest and (ii) the Companion Distribution Account, if it is a sub-account of the applicable Collection Account), the Lower-Tier REMIC Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, any Servicing Account, the REO Account and the Interest Reserve Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC; the Excess Interest Distribution Account (and any portion of the applicable Collection Account holding Excess Interest) (including interest, if any, earned on the investment of funds in such account) will be owned by the Grantor Trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest; the Companion Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Companion Holders; and the Upper-Tier REMIC Distribution Account (including interest, if any, earned on the investment of funds such account) will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

 

(c)            Prior to any Determination Date for the first Collection Period during which Excess Interest is received on any Mortgage Loan, and upon notification from a Master Servicer or a Special Servicer pursuant to Section 3.02(d), the Certificate Administrator, on behalf of the Certificateholders, shall establish and maintain the Excess Interest Distribution Account in its own name on behalf of the Trustee in trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest. The Excess Interest Distribution Account shall be established and maintained as an Eligible Account (or as a subaccount of an Eligible Account). Prior to the applicable Distribution Date, the applicable Master Servicer shall remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account an amount equal to the Excess Interest received by such Master Servicer prior to the Determination Date for the applicable Collection Period.

 

(d)            Following the distribution of the applicable portions of Excess Interest to Holders of the Excess Interest Certificates and the RR Interest, as applicable, on the first Distribution Date after which there are no longer any Mortgage Loans outstanding which pursuant to their terms could pay Excess Interest, the Certificate Administrator shall terminate the Excess Interest Distribution Account.

 

(e)            The Certificate Administrator shall establish (upon notice from the applicable Special Servicer of an event occurring that generates Gain-on-Sale Proceeds) and maintain (i) the Gain-on-Sale Reserve Account for the benefit of the Certificateholders (other than the Holders of the RR Interest) and (ii) the Retained Certificate Gain-on-Sale Reserve Account for the benefit of the Holders of the RR Interest. Each of the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account shall be maintained as an Eligible Account (or as a subaccount of an Eligible Account), separate and apart from trust funds for mortgage pass-through certificates of other series administered by the Certificate Administrator.

 

 -195-

 

 

Upon the disposition of any REO Property, in accordance with Section 3.09 or Section 3.16, the applicable Special Servicer will calculate the Gain-on-Sale Proceeds, if any, realized that are allocable to the Mortgage Loan and any gain that is allocable to any related Serviced Companion Loan in connection with such sale and remit such funds to the applicable Master Servicer on the later of (x) the related Determination Date or (y) the date that is two (2) Business Days after such amounts are received and properly identified and determined to be available, along with a notation of the amount of Gain-on-Sale Proceeds in the CREFC^® REO Liquidation Report. On the related Remittance Date, the applicable Master Servicer shall remit such funds that are allocable to the Mortgage Loan to the Certificate Administrator, who shall deposit (i) the Non-Retained Percentage of such funds into the Gain-on-Sale Reserve Account and (ii) the Required Credit Risk Retention Percentage of such funds into the Retained Certificate Gain-on-Sale Reserve Account. Any gain on such disposition that is allocable to any related Companion Loan in accordance with the terms of the related Intercreditor Agreement shall be remitted to the Companion Paying Agent for deposit into the Companion Distribution Account.

 

(f)            Any Non-Serviced Gain-on-Sale Proceeds received with respect to any Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA shall be remitted to the Certificate Administrator as follows: (i) the Non-Retained Percentage of such funds for deposit into the Gain-on-Sale Reserve Account and (ii) the Required Credit Risk Retention Percentage of such funds for deposit into the Retained Certificate Gain-on-Sale Reserve Account.

 

(g)           [RESERVED].

 

(h)           [RESERVED].

 

(i)            If any Loss of Value Payments are received in connection with a Material Defect pursuant to or as contemplated by Section 3.05(g) of this Agreement, the applicable Special Servicer shall establish and maintain one or more non-interest bearing accounts (collectively, the “Loss of Value Reserve Fund”) to be held for the benefit of the Certificateholders, for purposes of holding such Loss of Value Payments. Each account that constitutes the Loss of Value Reserve Fund shall be an Eligible Account or a sub-account of an Eligible Account. The applicable Special Servicer shall, within two (2) Business Days of receipt of properly identified and available Loss of Value Payments, deposit in the Loss of Value Reserve Fund all Loss of Value Payments received by it. The Certificate Administrator shall account for the Loss of Value Reserve Fund as an outside reserve fund within the meaning of Treasury Regulations Section 1.860G-2(h) and not an asset of any Trust REMIC or the Grantor Trust. Furthermore, for all federal tax purposes, the Certificate Administrator shall (i) treat amounts paid out of the Loss of Value Reserve Fund through the applicable Collection Account to the Certificateholders as paid to and distributed by the Trust REMICs and (ii) treat any amounts paid out of the Loss of Value Reserve Fund through the applicable Collection Account to a Mortgage Loan Seller as distributions by the Trust to such Mortgage Loan Seller as beneficial owner of the Loss of Value Reserve Fund. The applicable Mortgage Loan Seller will be the beneficial owner of the Loss of Value Reserve Fund for all federal income tax purposes, and shall be taxable on all income earned thereon.

 

Section 3.05        Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account. (a) Each Master Servicer may, from time to time, make withdrawals from its Collection Account (or the applicable subaccount of

 

 -196-

 

 

the applicable Collection Account exclusive of the Companion Distribution Account) for any of the following purposes (the following not being an order of priority and without duplication of the same payment or reimbursement):

 

(i)             (A)  no later than 4:00 p.m., New York City time, on each P&I Advance Date, to remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account and the Excess Interest Distribution Account the amounts required to be remitted by such Master Servicer pursuant to the first paragraph of Section 3.04(b) or that may be applied to make P&I Advances pursuant to Section 4.03(a); and (B) pursuant to the second paragraph of Section 3.04(b), to remit to the Companion Paying Agent for deposit in the Companion Distribution Account the amounts required to be so deposited with respect to the Companion Loans;

 

(ii)            (A)  to pay itself (or, with respect to any Transferable Servicing Interest, to pay Wells Fargo Bank, National Association if Wells Fargo Bank, National Association is no longer the General Master Servicer or NCB if NCB is no longer the NCB Master Servicer, any such interest pursuant to Section 3.11(a)) unpaid Servicing Fees in respect of each Mortgage Loan, Serviced Companion Loan, Specially Serviced Loan, and REO Loan, as applicable, the applicable Master Servicer’s rights to payment of Servicing Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan, related Serviced Companion Loan, Specially Serviced Loan or REO Loan, as applicable, being limited to amounts received on or in respect of such Mortgage Loan or related Serviced Companion Loan (whether in the form of payments, Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, (B) to pay the applicable Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of each Specially Serviced Loan or REO Loan or Corrected Loan, as applicable, and any expense incurred by such Special Servicer in connection with performing any inspections pursuant to Section 3.12(a), remaining unpaid first, out of related REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds and collections in respect of the related Specially Serviced Loan (provided that, in the case of such payment relating to a Serviced Whole Loan, such payment shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s), in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis) and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, (C) to pay the Operating Advisor (or the applicable Master Servicer, if applicable) any unpaid Operating Advisor Fees or Operating Advisor Consulting Fees in respect of each Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, the Operating Advisor’s right to payment of the Operating Advisor Fee or Operating Advisor Consulting Fee pursuant to this clause (ii)(C) with respect to any Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, being limited to amounts received on or in respect of such Mortgage

 

 -197-

 

 

Loan (whether in the form of payments, P&I Advances (solely with respect to the Operating Advisor Fee), Liquidation Proceeds or Insurance and Condemnation Proceeds), such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, and (D) to pay the Asset Representations Reviewer, any unpaid Asset Representations Reviewer Fee and (subject to Section 12.02(b)) Asset Representations Reviewer Asset Review Fee, if any, payable in connection with any Asset Review performed as a result of an Affirmative Asset Review Vote;

 

(iii)           to reimburse the Trustee and itself, as applicable (in that order), for unreimbursed P&I Advances, the applicable Master Servicer’s or the Trustee’s right to reimbursement pursuant to this clause (iii) being limited to amounts received which represent Late Collections of interest (net of the related Servicing Fee) on and principal of the particular Mortgage Loans and REO Loans with respect to which P&I Advances were made; provided that with respect to each Serviced Whole Loan, reimbursement of P&I Advances shall be made only from amounts collected with respect to the related Serviced Mortgage Loan and not from any amounts collected with respect to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans) prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account; provided, further, that if such P&I Advance with respect to a Mortgage Loan becomes a Workout-Delayed Reimbursement Amount, then the maker of such P&I Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such P&I Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties serviced by such Master Servicer on deposit in such Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (v) below; and provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

 

(iv)           to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order), for unreimbursed Servicing Advances, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s respective rights to receive payment pursuant to this clause (iv) with respect to any Serviced Mortgage Loan or any related Companion Loan or any REO Property being limited to, as applicable, related payments, Liquidation Proceeds, Insurance and Condemnation Proceeds and REO Revenues (provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursements shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to

 

 -198-

 

 

any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account related to any Mortgage Loan); provided, however, that if such Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then the maker of such Servicing Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such Servicing Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties serviced by such Master Servicer on deposit in such Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (v) below; provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

 

(v)            to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order) (1) for Nonrecoverable Advances first, out of REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds, if any, received on the related Mortgage Loan and any related Companion Loan (with respect to such Companion Loan, only for Nonrecoverable Servicing Advances made with respect thereto), then, out of the principal portion of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, then, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any exercise of the sole option to defer reimbursement thereof pursuant to Section 3.17(c), out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, (2) for Workout-Delayed Reimbursement Amounts, out of the principal portion of the general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer net of such amounts being reimbursed pursuant to (1) above; (provided that, in the case of such reimbursement of a Nonrecoverable Servicing Advance relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis and provided, further, that, in the case of such reimbursement with respect to Nonrecoverable Servicing Advances relating to a Serviced Whole Loan, such reimbursement shall be made as described above in this clause (v)(1) and (v)(2), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account; provided, further, that with respect to a Serviced Mortgage Loan, reimbursement of Nonrecoverable P&I Advances from funds collected from the related Serviced Whole Loan shall be made only from amounts collected with respect to such Serviced Mortgage Loan (and not from any amounts collected with respect to the related Serviced Companion Loan), in accordance with the terms of the related Intercreditor Agreement (provided that, with respect to any Serviced Companion Loan, the foregoing with respect to Nonrecoverable Servicing Advances and Nonrecoverable P&I Advances shall not limit or otherwise modify

 

 -199-

 

 

the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and AB Subordinate Companion Loan), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account related to any Mortgage Loan) or (3) to pay itself, with respect to any Mortgage Loan, any related Companion Loan, if applicable, or REO Property any related earned Servicing Fee that remained unpaid in accordance with clause (ii) above following a Final Recovery Determination made with respect to such Mortgage Loan or REO Property and the deposit into such Collection Account of all amounts received in connection therewith;

 

(vi)           at such time as it reimburses the Trustee and itself, as applicable (in that order) or any Other Trustee or Other Servicer for a related securitization trust in respect of any Serviced Pari Passu Companion Loan for (a) any unreimbursed P&I Advance (including any such P&I Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iii) or clause (v) above, to pay itself and/or the Trustee or such other servicing party, as applicable, any interest accrued and payable thereon in accordance with Sections 4.03(d) and 3.11(d), (b) any unreimbursed Servicing Advances (including any such Servicing Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) or clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon in accordance with Section 3.03(d) and Section 3.11(d) or (c) any Nonrecoverable Advances pursuant to clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon; provided that in all events, subject to the related Intercreditor Agreement, interest on P&I Advances on any Serviced Mortgage Loan shall not be paid from funds actually distributable to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and AB Subordinate Companion Loans);

 

(vii)          to reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Material Defect giving rise to a repurchase or substitution obligation of a Mortgage Loan Seller or any other obligation of such Mortgage Loan Seller under Section 4 of the applicable Mortgage Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase or substitution obligation or any other obligation of such Mortgage Loan Seller, each such Person’s right to reimbursement pursuant to this clause (vii) with respect to any Mortgage Loan being limited to that portion of the Purchase Price, the Loss of Value Payment or Substitution Shortfall Amount paid with respect to such Mortgage Loan, that represents such expense in accordance with clause (iv) of the definition of Purchase Price;

 

(viii)         in accordance with Section 2.03(f), to reimburse itself or the applicable Special Servicer, as the case may be, first, out of Liquidation Proceeds, Insurance and

 

 -200-

 

 

Condemnation Proceeds, if any, with respect to the related Mortgage Loan or REO Loan, and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, for any unreimbursed expense reasonably incurred by such Person in connection with the enforcement of a Mortgage Loan Seller’s obligations under Section 4 of the applicable Mortgage Loan Purchase Agreement, but only to the extent that such expenses are not reimbursable pursuant to clause (vii) above or otherwise; provided that, in the case of such reimbursement out of Liquidation Proceeds, and Insurance and Condemnation Proceeds described above relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(ix)            to pay for costs and expenses incurred by the Trust pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds with respect to the related Mortgage Loan, Serviced Companion Loan or REO Loan and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer; provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loan;

 

(x)            to pay itself, as additional servicing compensation in accordance with Section 3.11(a), (a) (1) interest and investment income earned in respect of amounts relating to the Trust Fund held in such Collection Account and the Companion Distribution Account as provided in Section 3.06(b) (but only to the extent of the Net Investment Earnings with respect to such Collection Account and the Companion Distribution Account for the period from and including the prior Distribution Date to and including the P&I

 

 -201-

 

 

Advance Date related to such Distribution Date) and (2) Penalty Charges (other than Penalty Charges collected while the related Mortgage Loan and any related Serviced Companion Loan is a Specially Serviced Loan), but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Mortgage Loan and any related Serviced Companion Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d); and (b) to pay the applicable Special Servicer, as additional servicing compensation in accordance with Section 3.11(c), Penalty Charges collected on Specially Serviced Loans (but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Specially Serviced Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d));

 

(xi)            to recoup any amounts deposited in such Collection Account in error;

 

(xii)           to pay itself, the applicable Special Servicer, the Depositor, the Operating Advisor, the Asset Representations Reviewer or any of their respective directors, officers, members, managers, employees and agents, or CREFC^®, as the case may be, out of general collections, any amounts payable to any such Person pursuant to Section 3.11(g), Section 6.04(a) or Section 6.04(b); provided that, in the case of such reimbursement (other than a reimbursement of any amounts payable to CREFC^®) relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(xiii)          to pay for (a) the cost of the Opinions of Counsel contemplated by Sections 3.09(b), 3.14(a), 3.15(b), 3.18(b), 3.18(d), 3.18(i), 10.01(f) and Section 13.02(a) to the extent payable out of the Trust Fund, (b) the cost of any Opinion of Counsel contemplated by Sections 13.01(a) or Section 13.01(c) in connection with an amendment to this Agreement requested by the Trustee or the applicable Master Servicer, which amendment is in furtherance of the rights and interests of Certificateholders and (c) the cost of obtaining the REO Extension contemplated by Section 3.14(a); provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to the related Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced

 

 -202-

 

 

Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan(s)), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(xiv)         to pay out of general collections on the Mortgage Loans and the REO Properties serviced by such Master Servicer any and all federal, state and local taxes imposed on any Trust REMIC, or any of their assets or transactions, together with all incidental costs and expenses, to the extent that none of the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee is liable therefor pursuant to Section 10.01(g);

 

(xv)          to reimburse the Certificate Administrator out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer for expenses incurred by and reimbursable to it by the Trust pursuant to Section 10.01(c);

 

(xvi)         to pay the applicable Mortgage Loan Seller or any other Person, with respect to each Mortgage Loan, if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the date of purchase relating to periods after the date of purchase; or, in the case of the substitution for a Mortgage Loan by a Mortgage Loan Seller as contemplated by Section 2.03(b), to pay such Mortgage Loan Seller with respect to the replaced Mortgage Loan all amounts received thereon subsequent to the date of substitution, and with respect to the related Qualified Substitute Mortgage Loan(s), all Periodic Payments due thereon during or prior to the month of substitution, in accordance with Section 2.03(b);

 

(xvii)        to remit to the Certificate Administrator for deposit in the Interest Reserve Account the amounts required to be deposited in the Interest Reserve Account pursuant to Section 3.21;

 

(xviii)       so long as such Master Servicer has received notice of the applicable Uncovered Amount on or before the related Determination Date, to pay or reimburse the applicable Person for any Uncovered Amount in respect of the other Master Servicer’s Collection Account, any such Person’s right to payment or reimbursement for any such Uncovered Amount being limited to any general funds in the subject Master Servicer’s Collection Account that are not otherwise to be applied to make any of the payments or reimbursements contemplated to be made out of the subject Master Servicer’s Collection Account pursuant to any of clauses (i) – (xvii) above;

 

(xix)          to reimburse the Operating Advisor for any Operating Advisor Expenses incurred by and reimbursable to it by the Trust pursuant to Section 3.26(i);

 

 -203-

 

 

(xx)           to remit to the Companion Paying Agent for deposit into the Companion Distribution Account the amounts required to be deposited pursuant to Section 3.04(b) without duplication of amounts remitted to the Companion Paying Agent pursuant to clause (i) above;

 

(xxi)          [Reserved];

 

(xxii)         to clear and terminate such Collection Account at the termination of this Agreement pursuant to Section 9.01; and

 

(xxiii)        to pay for any expenditures to be borne by the Trust pursuant to the third paragraph of Section 3.03(c).

 

Each Master Servicer shall also be entitled to make withdrawals from time to time, from its Collection Account of amounts necessary for the payments or reimbursement of amounts required to be paid to the applicable Non-Serviced Trust, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer, the applicable Non-Serviced Trustee, the applicable Non-Serviced Paying Agent or any other applicable party to the applicable Non-Serviced PSA by the holder of a Non-Serviced Mortgage Loan pursuant to the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA.

 

Each Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and property by property basis when appropriate, for the purpose of justifying any withdrawal from its Collection Account.

 

Each Master Servicer shall pay to the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer from its Collection Account amounts permitted to be paid to it therefrom monthly upon receipt of a certificate of a Servicing Officer of such Special Servicer, or an officer of the Operating Advisor or the Asset Representations Reviewer or a Responsible Officer of the Trustee or the Certificate Administrator describing the item and amount to which such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer is entitled. The applicable Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein. The applicable Special Servicer shall keep and maintain separate accounting for each Specially Serviced Loan and REO Loan, on a loan-by-loan basis (or when appropriate, property-by-property basis), for the purpose of justifying any request for withdrawal from the applicable Collection Account. Notwithstanding the above, no written certificate is required for a payment of Special Servicing Fees and/or Workout Fees arising from collections other than the initial collection on a Corrected Loan.

 

Notwithstanding anything to the contrary in this Section 3.05 or elsewhere in this Agreement, no amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer out of general collections that do not specifically relate to a Serviced Whole Loan may be reimbursable from amounts that would otherwise be payable to the related Companion Loan, as applicable.

 

 -204-

 

 

(b)            The Certificate Administrator may, from time to time, make withdrawals from the Lower-Tier REMIC Distribution Account for any of the following purposes (the following not being an order of priority):

 

(i)             to be deemed to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.01(c) and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant to Section 4.01(e) in the Upper-Tier REMIC Distribution Account, and to make distributions on the Class R Certificates in respect of the Class LR Interest pursuant to Section 4.01(c);

 

(ii)            to pay to the Trustee and the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person with respect to the Mortgage Loans pursuant to Section 8.05(b);

 

(iii)           to pay the Certificate Administrator and the Trustee, the Certificate Administrator Fee and the Trustee Fee, as applicable, as contemplated by Section 8.05(a) with respect to the Mortgage Loans;

 

(iv)           to pay for the cost (without duplication) of the Opinions of Counsel sought by (A) the Trustee or the Certificate Administrator as provided in clause (vi) of the definition of “Disqualified Organization,” (B) the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer as contemplated by Section 3.18(d), (C) the Trustee or the Certificate Administrator as contemplated by Section 5.08(c) or Section 8.02 to the extent payable out of the Trust Fund, (D) the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer as contemplated by Section 10.01(f) or Section 10.01(l) to the extent payable out of the Trust Fund, or (E) the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer as contemplated by Section 13.01(a) or Section 13.01(c) in connection with any amendment to this Agreement requested by the Trustee or the Certificate Administrator, which amendment is in furtherance of the rights and interests of Certificateholders, in each case, to the extent not paid pursuant to Section 13.01(g);

 

(v)            to pay any and all federal, state and local taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC or on the assets or transactions of any such REMIC, together with all incidental costs and expenses, to the extent none of the Trustee, the Certificate Administrator, the REMIC Administrator, any Master Servicer or any Special Servicer is liable therefor pursuant to Section 10.01(g);

 

(vi)           to pay the REMIC Administrator any amounts reimbursable to it pursuant to Section 10.01(c) with respect to the Lower-Tier REMIC or the Upper-Tier REMIC;

 

(vii)          to pay to the applicable Master Servicer any amounts deposited by such Master Servicer in the Distribution Accounts not required to be deposited therein;

 

(viii)         to clear and terminate the Lower-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01; and

 

 -205-

 

 

(ix)            termination of this Agreement pursuant to Section 9.01.

 

(c)            The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j).

 

(d)            The Certificate Administrator shall make, or be deemed to make, withdrawals from the Upper-Tier REMIC Distribution Account for any of the following purposes:

 

(i)             to make distributions to the Holders of the Regular Certificates and the Exchangeable Certificates (and to the Holders of the Class R Certificates in respect of the Class UR Interest) on each Distribution Date pursuant to Section 4.01 or Section 9.01, as applicable; and

 

(ii)            to clear and terminate the Upper-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01.

 

(e)            [RESERVED].

 

(f)             Notwithstanding anything herein to the contrary, with respect to any Mortgage Loan, (i) if amounts on deposit in each applicable Collection Account and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of the Servicing Fee listed in Section 3.05(a)(ii), the Operating Advisor Fee listed in Section 3.05(a)(ii) and the Certificate Administrator Fee listed in Section 3.05(b)(iii), then the Certificate Administrator Fee shall be paid in full prior to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and then, after payment of Servicing Fees, the Operating Advisor Fees payable under Section 3.05(a)(ii) and in the event that amounts on deposit in each applicable Collection Account and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of such Certificate Administrator Fee, the Certificate Administrator shall be paid based on the amount of such fees and (ii) if amounts on deposit in each applicable Collection Account are not sufficient to reimburse the full amount of Advances and interest thereon listed in Sections 3.05(a)(ii), (a)(iii), (a)(iv), (a)(v), and (a)(vi) then reimbursements shall be paid first to the Certificate Administrator and to the Trustee, pro rata, second to the applicable Special Servicer, third to the applicable Master Servicer and then to the Operating Advisor.

 

(g)            If any Loss of Value Payments are deposited into the Loss of Value Reserve Fund with respect to any Mortgage Loan or any related Serviced REO Property, then the applicable Special Servicer shall promptly upon written direction from the applicable Master Servicer (provided that, (1) with respect to clause (iv) below, such Special Servicer shall have provided notice to the applicable Master Servicer of the occurrence of such Liquidation Event and (2) with respect to clause (v) below, the Certificate Administrator shall have provided the applicable Master Servicer and such Special Servicer with five (5) Business Days’ prior notice of such final Distribution Date) transfer such Loss of Value Payments (up to the remaining portion thereof) from the Loss of Value Reserve Fund to the applicable Master Servicer for deposit into the applicable Collection Account for the following purposes:

 

(i)             to reimburse the applicable Master Servicer, the applicable Special Servicer or the Trustee, in accordance with Section 3.05(a) of this Agreement, for any

 

 -206-

 

 

Nonrecoverable Advance made by such party with respect to such Mortgage Loan or any related Serviced REO Property (together with any interest on such Advances);

 

(ii)            to pay, in accordance with Section 3.05(a) of this Agreement, or to reimburse the Trust for the prior payment of, any expense or Liquidation Fee relating to such Mortgage Loan or any related Serviced REO Property that constitutes or, if not paid out of such Loss of Value Payments, would constitute an additional expense of the Trust;

 

(iii)           to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be (as calculated without regard to the application of such Loss of Value Payments), incurred with respect to such Mortgage Loan or any related successor REO Loan;

 

(iv)           following the occurrence of a Liquidation Event with respect to such Mortgage Loan or any related Serviced REO Property and any related transfers from the Loss of Value Reserve Fund with respect to the items contemplated by the immediately preceding clauses (i)-(iii) as to such Mortgage Loan, to cover the items contemplated by the immediately preceding clauses (i)-(iii) in respect of any other Mortgage Loan or Serviced REO Loan; and

 

(v)            On the final Distribution Date after all distributions have been made as set forth in clauses (i)-(iv) above, to each Mortgage Loan Seller, its pro rata share, based on the amount that it contributed, net of any amount contributed by such Mortgage Loan Seller that was used pursuant to clauses (i)-(iii) to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be, additional trust fund expenses or any Nonrecoverable Advances incurred with respect to the Mortgage Loan related to such contribution.

 

(h)           Any Loss of Value Payments transferred to a Collection Account pursuant to clauses (i)-(iii) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or any successor REO Loan (but excluding any related Companion Loan) with respect thereto for which such Loss of Value Payments were received; and any Loss of Value Payments transferred to a Collection Account pursuant to clause (iv) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or REO Loan (but excluding any related Companion Loan) for which such Loss of Value Payments are being transferred to such Collection Account to cover an item contemplated by clauses (i)-(iv) of the prior paragraph.

 

(i)             The Companion Paying Agent may, from time to time, make withdrawals from the Companion Distribution Account to make distributions pursuant to Section 4.01(k).

 

Section 3.06        Investment of Funds in Collection Accounts, REO Accounts and Loss of Value Reserve Fund. (a) Each Master Servicer may direct any depository institution maintaining its Collection Account, the Companion Distribution Account (with respect to the General Master Servicer) or any Servicing Account (for purposes of this Section 3.06, an

 

 -207-

 

 

“Investment Account”), each Special Servicer may direct any depository institution maintaining its REO Account or Loss of Value Reserve Fund (also for purposes of this Section 3.06, an “Investment Account”) to invest or if it is such depository institution, may itself invest, the funds held therein, only in one or more Permitted Investments bearing interest or sold at a discount, and maturing, unless payable on demand, (i) no later than the Business Day immediately preceding the next succeeding date on which funds are required to be withdrawn from such account pursuant to this Agreement, if a Person other than the depository institution maintaining such account is the obligor thereon and (ii) no later than the date on which funds are required to be withdrawn from such account pursuant to this Agreement, if the depository institution maintaining such account is the obligor thereon. All such Permitted Investments shall be held to maturity, unless payable on demand. Any funds held in an Investment Account shall be held in the name of the applicable Master Servicer or the applicable Special Servicer, as the case may be, on behalf of the Trustee (in its capacity as such) for the benefit of the Certificateholders. Each Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), each Special Servicer (in the case of the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) on behalf of the Trustee, shall maintain continuous physical possession of any Permitted Investment of amounts in such Collection Account, such Companion Distribution Account, such Servicing Accounts, such Loss of Value Reserve Fund or such REO Account, as applicable, that is either (i) a “certificated security,” as such term is defined in the UCC (such that the Trustee shall have control pursuant to Section 8-106 of the UCC) or (ii) other property in which a secured party may perfect its security interest by physical possession under the UCC or any other applicable law. In the case of any Permitted Investment held in the form of a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC), each Master Servicer or each Special Servicer, as the case may be, shall take or cause to be taken such action as the Trustee deems reasonably necessary to cause the Trustee to have control over such security entitlement. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the applicable Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer) or the applicable Special Servicer (in the case of the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall:

 

(i)             consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (a) all amounts then payable thereunder and (b) the amount required to be withdrawn on such date; and

 

(ii)            demand payment of all amounts due thereunder promptly upon determination by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the Investment Account.

 

(b)            Interest and investment income realized on funds deposited in the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for the applicable Master Servicer to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and

 

 -208-

 

 

including the P&I Advance Date related to the current Distribution Date, shall be for the sole and exclusive benefit of the applicable Master Servicer to the extent (with respect to Servicing Accounts) not required to be paid to the related Mortgagor and shall be subject to its withdrawal, or withdrawal at its direction, in accordance with Section 3.03 or Section 3.05(a), as the case may be. Interest and investment income realized on funds deposited in the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for the applicable Special Servicer, to the extent of the Net Investment Earnings, if any, with respect to such account for each period from and including any Distribution Date to and including the immediately succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the applicable Special Servicer and shall be subject to its withdrawal in accordance with Section 3.14(c). In the event that any loss shall be incurred in respect of any Permitted Investment (as to which the applicable Master Servicer or applicable Special Servicer, as the case may be, would have been entitled to any Net Investment Earnings hereunder) directed to be made by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and on deposit in any of the applicable Collection Account, the Companion Distribution Account, the Servicing Account, Loss of Value Reserve Fund or the REO Account, the applicable Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), the applicable Special Servicer (in the case of the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall deposit therein, no later than the P&I Advance Date, without right of reimbursement, the amount of Net Investment Loss, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date; provided that neither the applicable Master Servicer nor the applicable Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company satisfied the qualifications set forth in the definition of Eligible Account at the time such investment was made (and such federal or state chartered depository institution or trust company is not an Affiliate of such Master Servicer or such Special Servicer, as applicable, unless such depository institution or trust company satisfied the qualification set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) thirty (30) days prior to such insolvency).

 

(c)            Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the applicable Master Servicer may and, upon the request of Holders of Certificates entitled to more than 50% of the Voting Rights allocated to any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings.

 

Section 3.07        Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) Each Master Servicer (with respect to the applicable Serviced Mortgage Loans and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and each Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents

 

 -209-

 

 

except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the applicable Master Servicer or the applicable Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, each Master Servicer (with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan) or each Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer or such Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and an AB Control Appraisal Period is not in effect, with the consent of the holder of the related AB Subordinate Companion Loan) and, after consultation by the applicable Special Servicer with the Risk Retention Consultation Party (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by each Master Servicer (with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan) or each Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by such Master Servicer (with respect to a Non-Specially Serviced Loan) or such Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, such Master Servicer or, with respect to REO Property, such Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, a Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred and is continuing) or, with respect to any Serviced AB Whole Loan, the Subordinate Companion Holder (if an AB Control Appraisal Period is not in effect) and after consultation by the applicable Special Servicer with the Risk Retention Consultation Party (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the applicable Master Servicer or the applicable Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. Each Master Servicer and each Special Servicer shall be entitled to rely on insurance consultants (at the

 

 -210-

 

 

applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a) and the costs of such insurance being reimbursed or paid to the applicable Special Servicer as provided in the third-to-last sentence of this paragraph, such Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless such Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the applicable Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the applicable Master Servicer shall be entitled to conclusively rely on such Special Servicer’s determination. All Insurance Policies maintained by a Master Servicer or a Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the applicable Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by a Master Servicer or a Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the applicable Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by a Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by such Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by a Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is

 

 -211-

 

 

insufficient therefor, advanced by the applicable Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, no Master Servicer shall be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Serviced Mortgage Loan and is currently available at commercially reasonable rates.

 

Notwithstanding the foregoing, with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, each Master Servicer shall, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that each Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) if the related Mortgage Loan is a Specially Serviced Loan, notify the applicable Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon such Master Servicer’s compliance with the immediately preceding clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. In addition, upon the written request of the Risk Retention Consultation Party with respect to any individual triggering event, the applicable Special Servicer shall consult on a non-binding basis pursuant to Section 6.08(a) with the Risk Retention Consultation Party (only with respect to a Specially Serviced Loan and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) within the same time period as it would obtain consent of, or consult with, the Directing Certificateholder in connection with any such determination by such Special Servicer of an Acceptable Insurance Default. If the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, such Special Servicer (with regard to such determination made by the applicable Special Servicer) shall notify the applicable Master Servicer, and the applicable Master Servicer (in the case of a Specially Serviced Loan, after notice from the applicable Special Servicer) shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. Each Master Servicer and each Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. Each Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, each Master Servicer or each Special Servicer, as applicable, shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the

 

 -212-

 

 

Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that a Master Servicer or a Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or any Companion Holder or, with respect to any Serviced AB Whole Loan, the related Subordinate Companion Holder, and/or with respect (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither such Master Servicer nor such Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

 

(b)            (i) If any Master Servicer or any Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including any related Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan) or REO Properties (other than with respect to a Non-Serviced Mortgaged Property), as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the applicable Master Servicer or the applicable Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into its Collection Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan (including any related Serviced Companion Loan), or in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans or any Serviced Companion Loans, the applicable Master Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. Each Special Servicer, to the extent consistent with the Servicing Standard, may maintain, earthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance.

 

(ii)            If any Master Servicer or any Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming such Master Servicer or such Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties and REO Properties. In the event any Master Servicer or any Special Servicer shall cause

 

 -213-

 

 

any Mortgaged Property or REO Property to be covered by such master single interest or force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid by such Master Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case such Master Servicer or such Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the applicable Collection Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including any related Serviced Companion Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard.

 

(c)            Each Master Servicer and each Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s misappropriation of funds or errors or omissions. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standard. Coverage of the applicable Master Servicer or the applicable Special Servicer under a policy or bond obtained by an Affiliate of such Master Servicer or such Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). Each Special Servicer and each Master Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions insurance policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect.

 

(d)            At the time the applicable Master Servicer determines in accordance with the Servicing Standard that any Mortgaged Property (other than a Non-Serviced Mortgaged Property) is in a federally designated special flood hazard area (and such flood insurance has been made available), such Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan and related Serviced Companion Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent such insurance is available at commercially reasonable rates (as determined by such Master Servicer in accordance with the Servicing Standard and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Serviced Mortgage Loan or related Serviced Companion Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standard. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan (and any related Serviced Companion Loan, if applicable), and (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount

 

 -214-

 

 

consistent with the Servicing Standard. If the cost of any insurance described above is not borne by the Mortgagor, such Master Servicer shall promptly make a Servicing Advance for such costs.

 

(e)            During all such times as any REO Property (other than with respect to a Non-Serviced Mortgaged Property) shall be located in a federally designated special flood hazard area, the applicable Special Servicer will cause to be maintained, to the extent available at commercially reasonable rates (as determined by such Special Servicer (with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and in consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in either such case, other than with respect to any Mortgage Loan that is an Excluded Loan as to such party and any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect)) in accordance with the Servicing Standard), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount consistent with the Servicing Standard. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, paid by the applicable Master Servicer as a Servicing Advance.

 

(f)             Notwithstanding the foregoing, so long as the long-term debt obligations or the deposit account or claims-paying ability of the applicable Master Servicer (or its immediate or remote parent) or the applicable Special Servicer (or its immediate or remote parent), as applicable, is rated at least “A-” by S&P or “A-” by Fitch (if rated by Fitch), such Master Servicer (or its public parent) or such Special Servicer (or its public parent), as applicable, shall be allowed to provide self-insurance with respect to any of its obligations under this Section 3.07.

 

(g)            Each of the Operating Advisor and Asset Representations Reviewer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement an “errors and omissions” insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s errors or omissions.

 

Section 3.08        Enforcement of Due-on-Sale Clauses; Assumption Agreements. (a) As to each Serviced Mortgage Loan and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-sale” clause, which by its terms:

 

(i)             provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

 

(ii)             provides that such Mortgage Loan and any related Companion Loan may not be assumed without the consent of the mortgagee in connection with any such sale or other transfer;

 

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to any Non-Specially Serviced

 

 -215-

 

 

Loan as to which such matter does not involve a Major Decision) or the applicable Special Servicer (with respect to any Specially Serviced Loan or any Non-Specially Serviced Loan as to which such matter involves a Major Decision), on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right the lender may have with respect to such Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to any sale or transfer, consistent with the Servicing Standard or (b) waive any right to exercise such rights, provided that if such matter is a Major Decision, (i) (A) prior to the occurrence and continuance of a Control Termination Event and other than with respect to an Excluded Loan as to the Directing Certificateholder or the holder of the majority of the Controlling Class, the applicable Special Servicer has obtained the consent (or deemed consent) of the Directing Certificateholder to the extent required by, and pursuant to the process described under Section 6.08(a), (B) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, a Control Termination Event shall have occurred and be continuing, and no Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) and (C) if such Mortgage Loan is not an Excluded Loan as to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days, plus, if applicable, any additional time period provided under the related Intercreditor Agreement, after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation), and (ii) with respect to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal to $35,000,000, (y) with a Stated Principal Balance greater than or equal to 5% of the aggregated Stated Principal Balance of the Mortgage Loans then outstanding or (z) together with all other Mortgage Loans with which it is cross-collateralized or cross-defaulted or together with all other Mortgage Loans with the same Mortgagor (or an Affiliate thereof), that is one of the ten (10) largest Mortgage Loans outstanding (by Stated Principal Balance), the applicable Master Servicer or the applicable Special Servicer, as the case may be, prior to consenting to any action, shall obtain, a Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), provided, however, that with respect to sub-clauses (y) and (z) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions

 

 -216-

 

 

recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

With respect to any “due-on-sale” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans, within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

 

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(a), the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

 

If any Serviced Mortgage Loan or related Serviced Companion Loan provides that such Mortgage Loan or related Serviced Companion Loan may be assumed or transferred without the consent of the mortgagee, provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine in accordance with the Servicing Standard whether such conditions have been satisfied.

 

(b)            As to each Serviced Mortgage Loan and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-encumbrance” clause that by its terms:

 

(i)             provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

 

(ii)            requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor;

 

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to any Non-Specially Serviced Loan as to which such matter does not involve a Major Decision) or the applicable Special Servicer (with respect to any Specially Serviced Loan or any Non-Specially Serviced Loan as to which such

 

 -217-

 

 

matter involves a Major Decision), on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right the lender may have with respect to such Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to the creation of any additional lien or other encumbrance, consistent with the Servicing Standard or (b) waive its right to exercise such rights, provided that, if such matter is a Major Decision, (i) (A) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, no Control Termination Event shall have occurred and be continuing and the matter involves a Major Decision, the consent (or deemed consent) of the Directing Certificateholder shall have been obtained by the Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a), and (B) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, a Control Termination Event shall have occurred and be continuing, and no Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) and (C) if such Mortgage Loan is not an Excluded Loan as to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days, plus, if applicable, any additional time period provided under the related Intercreditor Agreement, after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation), and (ii) such Master Servicer or such Special Servicer, as the case may be, has obtained Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) if such Mortgage Loan (A) has an outstanding principal balance that is greater than or equal to 2% of the Stated Principal Balance of the outstanding Mortgage Loans or (B) has an LTV Ratio greater than 85% (including any existing and proposed debt) or (C) has a debt service coverage ratio less than 1.20x (in each case, determined based upon the aggregate of the Stated Principal Balance of the Mortgage Loan and related Companion Loan, if any, and the principal amount of the proposed additional lien) or (D) is one of the ten largest Mortgage Loans (by Stated Principal Balance) or (E) has a Stated Principal Balance greater than $35,000,000; provided, however, that with respect to sub-clauses (A), (B), (C) and (D) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions

 

 -218-

 

 

and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

With respect to any “due-on-encumbrance” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest, upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans (for the avoidance of doubt, other than with respect to any transfer or assumptions provided for in clause (xiii) or (xv) of the definition of “Master Servicer Decision” or any waiver of a “due-on-encumbrance” clause which waiver constitutes a Master Servicer Decision pursuant to clause (xiii), (xiv) or (xv) of the definition thereof), within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

 

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(b), the applicable Special Servicer shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

 

To the extent permitted by the related Mortgage Loan documents, the Rating Agency Confirmation described in the immediately preceding paragraph or in Section 3.08(a) shall be an expense of the related Mortgagor; provided that if the Mortgage Loan documents are silent as to who bears the costs of obtaining any such Rating Agency Confirmation, the applicable Special Servicer shall use reasonable efforts to make the related Mortgagor bear such costs and expenses. Unless determined to be a Nonrecoverable Advance such costs not collected from the related Mortgagor shall be advanced as a Servicing Advance and otherwise shall be paid to the applicable Special Servicer from general collections in the Collection Accounts.

 

If any Mortgage Loan or related Companion Loan provides that such Mortgage Loan or related Companion Loan may be further encumbered without the consent of the mortgagee provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine whether such conditions have been satisfied.

 

After receiving a request for any matter described in Section 3.08(a) or this Section 3.08(b) that constitutes a consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan that is a Non-Specially Serviced Loan as to which such matter involves a Major Decision, the applicable Master Servicer shall promptly provide the applicable Special Servicer with written notice of any such request for such matter, and, unless the applicable Master Servicer and the applicable Special Servicer mutually

 

 -219-

 

 

agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and such Master Servicer shall have no further obligation with regard to such request or due-on-sale or due-on-encumbrance except as provided in the next sentence. The applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in such Master Servicer’s possession to the applicable Special Servicer requested by such Special Servicer relating to such consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause. If the applicable Master Servicer and the applicable Special Servicer mutually agree that the applicable Master Servicer shall process such request, the applicable Master Servicer will be required to provide the applicable Special Servicer with such Master Servicer’s written recommendation and analysis, to the extent such Master Servicer is recommending approval, and all information in such Master Servicer’s possession that may be reasonably requested in order to grant or withhold such consent by the applicable Special Servicer or the Directing Certificateholder or other person with consent or consultation rights; provided that in the event that such Special Servicer does not respond within ten (10) Business Days after receipt of such written recommendation and analysis and all such reasonably requested information, plus the time period provided to the Directing Certificateholder or other relevant party under this Agreement and, if applicable, any additional time period provided to a Companion Holder under a related Intercreditor Agreement, such Special Servicer’s consent to such matter shall be deemed granted.

 

(c)            Nothing in this Section 3.08 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any additional lien or other encumbrance with respect to such Mortgaged Property.

 

(d)            Except as otherwise permitted by Section 3.08(a) and (b) and/or Section 3.18, no Master Servicer or Special Servicer shall agree to modify, waive or amend any term of any Mortgage Loan and related Serviced Companion Loan, as applicable, in connection with the taking of, or the failure to take, any action pursuant to this Section 3.08. The applicable Master Servicer and the applicable Special Servicer, as the case may be, shall provide copies of any final waivers (except with respect to provision of any such waivers to the 17g-5 Information Provider, exclusive of any Privileged Information) it effects pursuant to Section 3.08(a) or (b) to each other and to the 17g-5 Information Provider with respect to each Mortgage Loan, and shall notify the Trustee, the Certificate Administrator, each other and, subject to the terms of this Agreement, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website in accordance with Section 3.25) and, with respect to a Whole Loan, the related Serviced Companion Noteholder, of any assumption or substitution agreement executed pursuant to Section 3.08(a) or (b) and shall forward thereto a copy of such agreement.

 

(e)            [Reserved].

 

(f)            For the avoidance of doubt, no Master Servicer or Special Servicer may waive its rights or grant its consent under any “due-on-sale” or “due-on-encumbrance” clause other than in compliance with the provisions of Section 3.08(a) through (d) hereof or, with respect to an NCB Co-op Mortgage Loan, in compliance with the provisions of the following paragraph. In the case of a Special Servicer, no such waiver or consent that constitutes a Major Decision shall be

 

 -220-

 

 

made without (x) (i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained if and to the extent required by, and pursuant to the process described under Section 6.08(a), (y) (i) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, after having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) or (z) other than with respect to any Excluded Loan with respect to the Risk Retention Consultation Party, after having consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a).

 

(g)            Notwithstanding the foregoing, and regardless of whether a particular NCB Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval of, or to consult with, the Directing Certificateholder hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Mortgagor to incur subordinate debt if the NCB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.

 

(h)            Notwithstanding the foregoing provisions of this Section 3.08, if any Master Servicer or any Special Servicer, as applicable, makes a determination under Section 3.08(a) or 3.08(b) that the applicable conditions in the related Mortgage Loan or Companion Loan documents, as applicable, with respect to assumptions or encumbrances permitted without the consent of the mortgagee have been satisfied, the applicable assumptions and transfers may be subject to an assumption or other fee, unless such fees are otherwise prohibited pursuant to the Mortgage Loan documents; provided that any such fee not provided for in the Mortgage Loan documents does not constitute a “significant” change in yield pursuant to Treasury Regulations Section 1.1001-3(e)(2).

 

Section 3.09        Realization Upon Defaulted Loans and Companion Loans. (a) Upon an event of default under the Mortgage Loan documents related to a Serviced Whole Loan or a Mortgage Loan with mezzanine debt, the applicable Master Servicer shall promptly provide written notice to the related Companion Holder or mezzanine lender, as applicable, with a copy of such notice to the applicable Special Servicer. If such Serviced Mortgage Loan or Serviced Whole Loan is a Defaulted Loan, the applicable Special Servicer shall, subject to subsections (b) through (d) of this Section 3.09 and Section 3.24, subject to the Directing Certificateholder’s and the Risk Retention Consultation Party’s respective rights pursuant to Section 6.08, and any Companion Holder or mezzanine lender’s rights under the related Intercreditor Agreement (in the case of a Serviced Whole Loan, on behalf of the holders of the beneficial interest of the related Companion Loan) or this Agreement, exercise reasonable efforts, consistent with the Servicing Standard, to foreclose upon or otherwise comparably convert (which may include an REO Acquisition) the

 

 -221-

 

 

ownership of property securing any such Serviced Mortgage Loan and related Companion Loan, if any, as come into and continue in default as to which no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments, and which are not released from the Trust Fund pursuant to any other provision hereof. The foregoing is subject to the provision that, in any case in which a Mortgaged Property shall have suffered damage from an Uninsured Cause, the applicable Master Servicer or the applicable Special Servicer shall not be required to make a Servicing Advance and expend funds toward the restoration of such property unless such Special Servicer has determined in its reasonable discretion that such restoration will increase the net proceeds of liquidation of such Mortgaged Property to Certificateholders after reimbursement to such Master Servicer or such Special Servicer, as applicable, for such Servicing Advance, and such Master Servicer or such Special Servicer has not determined that such Servicing Advance together with accrued and unpaid interest thereon would constitute a Nonrecoverable Advance. The costs and expenses incurred by the applicable Special Servicer in any such proceedings shall be advanced by the applicable Master Servicer; provided that, in each case, such cost or expense would not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall be construed so as to require a Master Servicer or a Special Servicer, on behalf of the Trust, to make an offer on any Mortgaged Property at a foreclosure sale or similar proceeding that is in excess of the fair market value of such property, as determined by the applicable Master Servicer or the applicable Special Servicer in its reasonable judgment taking into account the factors described in Section 3.16(b) and the results of any Appraisal obtained pursuant to the following sentence, all such offers to be made in a manner consistent with the Servicing Standard. If and when the applicable Special Servicer or the applicable Master Servicer deems it necessary and prudent for purposes of establishing the fair market value of any Mortgaged Property securing a Defaulted Loan or any related defaulted Companion Loan, whether for purposes of making an offer at foreclosure or otherwise, the applicable Special Servicer or the applicable Master Servicer, as the case may be, is authorized to have an Appraisal performed with respect to such property by an Independent MAI-designated appraiser the cost of which shall be paid by such Master Servicer as a Servicing Advance.

 

(b)            No Special Servicer shall acquire any personal property pursuant to this Section 3.09 unless either:

 

(i)             such personal property is incident to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by such Special Servicer; or

 

(ii)            such Special Servicer shall have obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that the holding of such personal property by the Trust (to the extent not allocable to the related Companion Loan) will not cause an Adverse REMIC Event.

 

(c)            Notwithstanding the foregoing provisions of this Section 3.09 and Section 3.24, neither the applicable Master Servicer nor the applicable Special Servicer shall, on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or take any other action with respect to any Mortgaged Property, if, as a result of any such action, the Trustee, on behalf of the Certificateholders and/or any related Companion Holder, would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged Property within the meaning of CERCLA or any comparable law, unless (as

 

 -222-

 

 

evidenced by an Officer’s Certificate to such effect delivered to the Trustee) the applicable Special Servicer has previously determined in accordance with the Servicing Standard, based on an Environmental Assessment of such Mortgaged Property performed by an Independent Person who regularly conducts Environmental Assessments and performed within six (6) months prior to any such acquisition of title or other action, that:

 

(i)             such Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Certificateholders (and with respect to any Serviced Whole Loan, the related Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance with such laws, and

 

(ii)            there are no circumstances present at such Mortgaged Property relating to the use, management or disposal of any hazardous materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such hazardous materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the Certificateholders (and with respect to any Serviced Whole Loan, the Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions with respect to the affected Mortgaged Property.

 

The cost of any such Environmental Assessment shall be paid by the applicable Master Servicer as a Servicing Advance and the cost of any remedial, corrective or other further action contemplated by clause (i) and/or clause (ii) of the preceding sentence shall be paid by the applicable Master Servicer as a Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which case it shall be an expense of the Trust and, in the case of a Serviced Whole Loan, shall be withdrawn in accordance with the related Intercreditor Agreement by the applicable Master Servicer from its Collection Account, including from the Companion Distribution Account (such withdrawal to be made from amounts on deposit therein that are otherwise payable on or allocable to such Serviced Whole Loan)); and if any such Environmental Assessment so warrants, the applicable Special Servicer shall, except with respect to any Companion Loan and any Environmental Assessment ordered after such Mortgage Loan has been paid in full, perform such additional environmental testing at the expense of the Trust as it deems necessary and prudent to determine whether the conditions described in clauses (i) and (ii) of the preceding sentence have been satisfied. With respect to Non-Specially Serviced Loans, the applicable Master Servicer and, with respect to Specially Serviced Loans, the applicable Special Servicer (other than any Non-Serviced Mortgage Loan) shall review and be familiar with the terms and conditions relating to enforcing claims and shall monitor the dates by which any claim or action must be taken (including delivering any notices to the insurer and using reasonable efforts to perform any actions required under such policy) under each environmental insurance policy in effect and obtained on behalf of the mortgagee to receive the maximum proceeds available under such policy for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests).

 

 -223-

 

 

(d)          If (i) the environmental testing contemplated by subsection (c) above establishes that either of the conditions set forth in clauses (i) and (ii) of subsection (c) above of the first sentence thereof has not been satisfied with respect to any Mortgaged Property securing a Defaulted Loan and, in the case of a Serviced Mortgage Loan, any related Companion Loan, and (ii) there has been no breach of any of the representations and warranties set forth in or required to be made pursuant to Section 4 of each of the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan Seller could be required to repurchase such Defaulted Loan pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, then the applicable Special Servicer shall take such action as it deems to be in the best economic interest of the Trust (other than proceeding to acquire title to the Mortgaged Property) and is hereby authorized, with the consent of the Directing Certificateholder and after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, (A) prior to the occurrence and continuance of a Control Termination Event (or with respect to any AB Mortgage Loan, if an AB Control Appraisal Period is in effect, but prior to the occurrence and continuance of a Control Termination Event) and (B) other than with respect to any Excluded Loan as to such party) at such time as it deems appropriate to release such Mortgaged Property from the lien of the related Mortgage, provided that, if such Mortgage Loan has a then-outstanding principal balance of greater than $1,000,000, then prior to the release of the related Mortgaged Property from the lien of the related Mortgage, (i) the applicable Special Servicer shall have notified the Rating Agencies, the Trustee, the Certificate Administrator, the applicable Master Servicer, the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event, and in the case of the Directing Certificateholder or the Risk Retention Consultation Party other than with respect to any Excluded Loan as to such party), in writing of its intention to so release such Mortgaged Property and the bases for such intention, (ii) the Certificate Administrator shall have posted such notice of the applicable Special Servicer’s intention to so release such Mortgaged Property to the Certificate Administrator’s Website pursuant to Section 3.13(b) and (iii) in addition to the prior written consent of the Directing Certificateholder as required above, the Holders of Certificates entitled to more than 50% of the Voting Rights shall have consented or have been deemed to have consented to such release within thirty (30) days of the Certificate Administrator’s posting such notice to the Certificate Administrator’s Website (failure to respond by the end of such 30-day period being deemed consent of the Holders of the Certificates). To the extent any fee charged by any Rating Agency in connection with rendering such written confirmation is not paid by the related Mortgagor, such fee is to be an expense of the Trust; provided that the applicable Special Servicer shall use commercially reasonable efforts to collect such fee from the Mortgagor to the extent permitted under the related Mortgage Loan documents.

 

(e)          Each Special Servicer shall provide written reports and a copy of any Environmental Assessments in electronic format to the Directing Certificateholder and the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party), each applicable Master Servicer and the 17g-5 Information Provider monthly regarding any actions taken by such Special Servicer with respect to any Mortgaged Property securing a Defaulted Loan, or defaulted Companion Loan as to which the environmental testing contemplated in subsection (c) above has revealed that either of the conditions set forth in clauses (i) and (ii) of the first sentence thereof has not been satisfied, in each case until the earlier to occur of satisfaction of both such conditions, repurchase of the related Mortgage Loan by the

 

 -224-

 

 

applicable Mortgage Loan Seller or release of the lien of the related Mortgage on such Mortgaged Property.

 

(f)           Each Special Servicer shall notify the applicable Master Servicer of any abandoned and/or foreclosed properties which require reporting to the Internal Revenue Service and shall provide such Master Servicer with all information regarding forgiveness of indebtedness and required to be reported with respect to any Mortgage Loan or related Companion Loan that is abandoned or foreclosed and such Master Servicer shall report to the Internal Revenue Service and the related Mortgagor, in the manner required by applicable law, such information and such Master Servicer shall report, via Form 1099A or Form 1099C (or any successor form), all forgiveness of indebtedness and abandonment and foreclosure to the extent such information has been provided to such Master Servicer by such Special Servicer. Upon request, the applicable Master Servicer shall deliver a copy of any such report to the Trustee and the Certificate Administrator.

 

(g)          Each Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of the maintenance of an action to obtain a deficiency judgment if the state in which the Mortgaged Property is located and the terms of the Mortgage Loan (and if applicable, the related Companion Loan) permit such an action.

 

(h)          Each Special Servicer shall maintain accurate records, prepared by one of its Servicing Officers, of each Final Recovery Determination in respect of a Defaulted Loan (other than with respect to a Non-Serviced Mortgage Loan) or defaulted Companion Loan or any REO Property (other than any Non-Serviced Mortgaged Property) and the basis thereof. Each Final Recovery Determination shall be evidenced by an Officer’s Certificate promptly delivered to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Risk Retention Consultation Party (but in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party) and the applicable Master Servicer and in no event later than the next succeeding P&I Advance Determination Date.

 

Section 3.10         Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files. (a) Upon the payment in full of any Serviced Mortgage Loan, or the receipt by the applicable Master Servicer or the applicable Special Servicer, as the case may be, of a notification that payment in full shall be escrowed in a manner customary for such purposes, the applicable Master Servicer or the applicable Special Servicer, as the case may be, will promptly notify the Trustee and the Custodian and request delivery of the related Mortgage File. Any such notice and request shall be in the form of a Request for Release signed by a Servicing Officer and shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the applicable Collection Account pursuant to Section 3.04(a) or remitted to the applicable Master Servicer to enable such deposit, have been or will be so deposited. Within seven (7) Business Days (or within such shorter period as release can reasonably be accomplished if the applicable Master Servicer or the applicable Special Servicer notifies the Custodian of an exigency) of receipt of such notice and request, the Custodian shall release the related Mortgage File to the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that in the case of the payment in full of a Serviced Companion Loan or its related Mortgage Loan, the related Mortgage File shall not be released by the Custodian unless the related Serviced Whole Loan is paid in full. No expenses incurred in

 

 -225-

 

 

connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to a Collection Account.

 

(b)          From time to time as is appropriate for servicing or foreclosure of any Serviced Mortgage Loan (and any related Companion Loan), the applicable Master Servicer or the applicable Special Servicer shall deliver to the Custodian a Request for Release signed by a Servicing Officer. Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File or any document therein to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be. Upon return of such Mortgage File or such document to the Custodian, or the delivery to the Trustee and the Custodian of a certificate of a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as the case may be, stating that such Mortgage Loan (and, in the case of a Serviced Whole Loan, the related Companion Loan), was liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the applicable Collection Account (including amounts related to the related Companion Loan, if applicable) pursuant to Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan has become an REO Property, a copy of the Request for Release shall be released by the Custodian to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be, with the original being released upon termination of the Trust.

 

(c)          Within seven (7) Business Days (or within such shorter period as delivery can reasonably be accomplished if the applicable Special Servicer notifies the Trustee of an exigency) of receipt thereof, the Trustee shall execute and deliver to the applicable Special Servicer any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal action brought to obtain judgment against any Mortgagor on the Mortgage Note (including any note evidencing a related Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity. The applicable Special Servicer shall be responsible for the preparation of all such documents and pleadings. When submitted to the Trustee for signature, such documents or pleadings shall be accompanied by a certificate of a Servicing Officer requesting that such pleadings or documents be executed by the Trustee and certifying as to the reason such documents or pleadings are required and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the Mortgage, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale. The Trustee shall not be required to review such documents for their sufficiency or enforceability.

 

(d)          If, from time to time, pursuant to the terms of the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA, and as appropriate for enforcing the terms of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer requests delivery to it of the original Mortgage Note for a Non-Serviced Mortgage Loan, then the Custodian shall release or cause the release of such original Mortgage Note to such Non-Serviced Master Servicer or its designee.

 

Section 3.11         Servicing Compensation. (a) As compensation for its activities hereunder, the applicable Master Servicer shall be entitled to receive the Servicing Fee with respect to each Mortgage Loan, Serviced Companion Loan and REO Loan (other than the portion of any

 

 -226-

 

 

REO Loan related to any Non-Serviced Companion Loan) (including Specially Serviced Loans and any Non-Serviced Mortgage Loan constituting a “specially serviced loan” under any related Non-Serviced PSA). As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Mortgage Loan or Companion Loan or deemed to be due on such REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan, except that if such Mortgage Loan is part of a Serviced Whole Loan and such Serviced Whole Loan continues to be serviced and administered under this Agreement notwithstanding such Liquidation Event, then the applicable Servicing Fee shall continue to accrue and be payable as if such Liquidation Event did not occur. The Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise provided by Section 3.05(a). Each Master Servicer shall be entitled to recover unpaid Servicing Fees in respect of any applicable Mortgage Loan, Companion Loan or REO Loan out of that portion of related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as recoveries of interest, to the extent permitted by Section 3.05(a).

 

Except as set forth in the following sentence, the fourth (4th) paragraph of this Section 3.11(a), Section 6.03, Section 6.05 and Section 7.01(c), the right to receive the Servicing Fee may not be transferred in whole or in part (except in connection with a transfer of all of the applicable Master Servicer’s duties and obligations hereunder to a successor servicer in accordance with the terms hereof). With respect to each Serviced Companion Loan, the Servicing Fee shall be payable to the applicable Master Servicer from amounts payable in respect of such Serviced Companion Loan, subject to the terms of the related Intercreditor Agreement.

 

Each Master Servicer shall be entitled to retain, and shall not be required to deposit in its Collection Account pursuant to Section 3.04(a), additional servicing compensation (other than with respect to a Non-Serviced Mortgage Loan) in the form of the following amounts to the extent collected from the related Mortgagor relating to a Mortgage Loan and any related Serviced Companion Loan for which it acts as Master Servicer:

 

(i)      100% of Excess Modification Fees related to any modifications, waivers, extensions or amendments of any Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) that are Master Servicer Decisions; provided, that if any such matter involves a Major Decision (other than with respect to a Payment Accommodation), then such Master Servicer shall be entitled to 50% of such Excess Modification Fees; provided, that no Master Servicer shall be entitled to any COVID Forbearance Fees with respect to a Payment Accommodation;

 

(ii)     100% of all assumption application fees and other similar items received on any Serviced Mortgage Loans that are Non-Specially Serviced Loans (including any

 

 -227-

 

 

related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) to the extent such Master Servicer is processing the underlying transaction and 100% of all defeasance fees (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees in connection with a defeasance that the applicable Special Servicer is entitled to under this Agreement); and

 

(iii)    100% of assumption, waiver, consent and earnout fees, and other similar fees (other than assumption application fees and defeasance fees) pursuant to Section 3.08 and Section 3.18 or other actions performed in connection with this Agreement on the Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) relating to Master Servicer Decisions; provided, that if any such matter involves a Major Decision (regardless of whether it relates to a Master Servicer Decision), then the applicable Master Servicer shall be entitled to 50% of such assumption, waiver, consent and earnout fees and other similar fees.

 

In addition, the applicable Master Servicer shall be entitled to charge and retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) any charges for beneficiary statements and demands prepared by the applicable Master Servicer and other customary charges, amounts collected for checks returned for insufficient funds (relating to the accounts held by such applicable Master Servicer) and reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, in each case only to the extent actually paid by or on behalf of the related Mortgagor and shall not be required to deposit such amounts in its Collection Account or the Companion Distribution Account pursuant to Section 3.04(a) or Section 3.04(b), respectively. Subject to Section 3.11(d), the applicable Master Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest or other income earned on deposits relating to the Trust Fund in its Collection Account or the Companion Distribution Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date), (iii) interest or other income earned on deposits in its Servicing Accounts which are not required by applicable law or the related Mortgage Loan to be paid to the Mortgagor, and (iv) the difference, if positive, between Prepayment Interest Excesses and Prepayment Interest Shortfalls collected on the Mortgage Loans and any Serviced Pari Passu Companion Loan for which it acts as Master Servicer, during the related Collection Period to the extent not required to be paid as Compensating Interest Payments. The applicable Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not payable directly out of its Collection Account and the applicable Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

 

Notwithstanding anything to the contrary, if either the Master Servicer or the Special Servicer has partially waived any Penalty Charge (part of which accrued when the related Mortgage Loan was not a Specially Serviced Loan and part of which accrued when the related

 

 -228-

 

 

Mortgage Loan was a Specially Serviced Loan), any collections in respect of such Penalty Charge will be shared pro rata by the applicable Master Servicer and the applicable Special Servicer based on the respective portions of such Penalty Charge to which each would otherwise have been entitled.

 

With respect to any of the preceding fees (other than Penalty Charges) as to which both the applicable Master Servicer and the applicable Special Servicer are entitled to receive a portion thereof, the applicable Master Servicer and the applicable Special Servicer shall each have the right in its sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or elect not to charge the portion of any such fee due to the other and (B) to the extent either of the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any such fee, the party that reduced or elected not to charge its respective portion of such fee will not have any right to share in any part of the other party’s portion of such fee. If the applicable Master Servicer decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Special Servicer would have been entitled if such Master Servicer had charged a fee and such Master Servicer will not be entitled to any of such fee charged by such Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Master Servicer would have been entitled if such Special Servicer had charged a fee and such Special Servicer shall not be entitled to any portion of such fee charged by such Master Servicer. For the avoidance of doubt, the applicable Special Servicer may, in connection with a workout or other modification of a Mortgage Loan and without the consent of the applicable Master Servicer, waive any or all related Penalty Charges, regardless of who is entitled to receive such payments as compensation.

 

Notwithstanding anything herein to the contrary, each of Wells Fargo Bank, National Association and National Cooperative Bank, N.A. may, at its option, assign or pledge to any third party or retain for itself the Transferable Servicing Interest with respect to any Mortgage Loan and any Serviced Pari Passu Companion Loan (and any successor REO Loan) for which it acts as Master Servicer; provided, however, that in the event of any resignation or termination of such Master Servicer, all or any portion of the Transferable Servicing Interest may be reduced by the Trustee to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to obtain a qualified successor master servicer that meets the requirements of Section 6.05 and who requires market-rate servicing compensation that accrues at a per annum rate in excess of the Retained Fee Rate, and any such assignment of the Transferable Servicing Interest shall, by its terms be expressly subject to the terms of this Agreement and such reduction. The applicable Master Servicer shall pay the Transferable Servicing Interest to the holder of the Transferable Servicing Interest at such time and to the extent such Master Servicer is entitled to receive payment of its Servicing Fees hereunder, notwithstanding any resignation or termination of Wells Fargo Bank, National Association, as General Master Servicer, or National Cooperative Bank, N.A. as NCB Master Servicer, as applicable, hereunder (subject to reduction pursuant to the preceding sentence).

 

 -229-

 

 

(b)          As compensation for its activities hereunder, each Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan and any REO Loan relating to a Non-Serviced Mortgaged Property). As to each Specially Serviced Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Specially Serviced Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the Specially Serviced Loans or REO Loans, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Specially Serviced Loan or deemed to be due on such REO Loan is computed. The Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan. The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in accordance with the provisions of Section 3.05(a). The right to receive the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the applicable Special Servicer’s responsibilities and obligations under this Agreement. No Special Servicer shall be entitled to any Special Servicing Fees with respect to a Non-Serviced Mortgage Loan.

 

(c)      Each Special Servicer shall be entitled to additional servicing compensation in the form of:

 

(i)      100% of Excess Modification Fees related to modifications, waivers, extensions or amendments of any Specially Serviced Loans and 100% of COVID Forbearance Fees related to any Payment Accommodation,

 

(ii)     100% of assumption application fees and other similar items received with respect to Specially Serviced Loans and 100% of all assumption application fees and other similar items received with respect to Mortgage Loans (other than Non-Serviced Mortgage Loans) and Serviced Companion Loans that are Non-Specially Serviced Loans to the extent the applicable Special Servicer processes the underlying transaction,

 

(iii)    100% of waiver, consent and earnout fees and fees in respect of other actions performed in connection with this Agreement on the Specially Serviced Loans or certain other similar fees paid by the related Mortgagor on Specially Serviced Loans,

 

(iv)   100% of assumption fees and other similar fees received with respect to Specially Serviced Loans,

 

(v)    50% of all Excess Modification Fees and assumption, waiver, consent and earnout fees and other similar fees (other than assumption application fees and defeasance fees) received with respect to any Serviced Mortgage Loans or Serviced Companion Loan(s) that are Non-Specially Serviced Loans to the extent that the matter involves a Major Decision (other than with respect to a Payment Accommodation),

 

(vi)   with respect to the accounts held by such Special Servicer, 100% of charges by such Special Servicer collected for checks returned for insufficient funds, and

 

 -230-

 

 

(vii)  100% of charges for beneficiary statements and demand charges actually paid by the Mortgagors to the extent such beneficiary statements or demands are prepared by such Special Servicer.

 

and shall be promptly paid to each Special Servicer by the applicable Master Servicer (or directly from the related Mortgagor) to the extent such fees are paid by the Mortgagor and shall not be required to be deposited in the applicable Collection Account pursuant to Section 3.04(a). Subject to Section 3.11(d), each Special Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d) and (ii) interest or other income earned on deposits relating to the Trust Fund in the REO Account and Loss of Value Reserve Fund in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to such Distribution Date). In addition, each Special Servicer shall be entitled to retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, and only to the extent actually paid by or on behalf of the related Mortgagor. Each Special Servicer shall also be entitled to additional servicing compensation in the form of a Workout Fee with respect to each Corrected Loan at the Workout Fee Rate on such Corrected Loan for so long as it remains a Corrected Loan; provided, that after receipt by the applicable Special Servicer of Workout Fees with respect to such Corrected Loan in an amount equal to $25,000, any Workout Fees in excess of such amount shall be reduced by the Excess Modification Fee Amount received by the applicable Special Servicer; provided, further, that in the event the Workout Fee collected over the course of such workout calculated at the Workout Fee Rate is less than $25,000, then the applicable Special Servicer shall be entitled to an amount from the final payment on the related Corrected Loan (including any related Serviced Companion Loan) that would result in the total Workout Fees payable to the applicable Special Servicer in respect of that Corrected Loan (including any related Serviced Companion Loan) being equal to $25,000. The Workout Fee shall be reduced (but not below zero) with respect to each collection on such Corrected Loan from which fee would otherwise be payable until an amount equal to the Excess Modification Fee Amount has been deducted in full. The Workout Fee with respect to any Corrected Loan will cease to be payable if such loan again becomes a Specially Serviced Loan; provided that a new Workout Fee will become payable if and when such Specially Serviced Loan again becomes a Corrected Loan. No Special Servicer shall be entitled to any Workout Fee with respect to a Non-Serviced Mortgage Loan. If a Special Servicer is terminated (other than for cause) or resigns, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans or any related Companion Loan that became Corrected Loans prior to the time of that termination or resignation except the Workout Fees will no longer be payable if the Corrected Loan subsequently becomes a Specially Serviced Loan. If a Special Servicer resigns or is terminated (other than for cause), it will receive any Workout Fees payable on Specially Serviced Loans for which the resigning or terminated Special Servicer had determined to grant a forbearance or cured the event of default through a modification, restructuring or workout negotiated by the applicable Special Servicer and evidenced by a signed writing, but which had not as of the time the applicable Special Servicer resigned or was terminated become a Corrected Loan solely because the Mortgagor had not had sufficient time to make three (3) consecutive timely Periodic Payments and which subsequently becomes a Corrected Loan as a result of the Mortgagor making such three (3) consecutive timely Periodic Payments. The successor special servicer will not be

 

 -231-

 

 

entitled to any portion of such Workout Fees. No Special Servicer will be entitled to receive any Workout Fees after termination of such Special Servicer for cause. A Liquidation Fee will be payable to the Special Servicer with respect to (a) each Non-Specially Serviced Loan with respect to which the Special Servicer acts as the Enforcing Servicer, (b) each Specially Serviced Loan (other than a Non-Serviced Mortgage Loan) or REO Property (other than a Non-Serviced Mortgaged Property) as to which the applicable Special Servicer receives any Liquidation Proceeds or Insurance and Condemnation Proceeds and (c) each Mortgage Loan repurchased by a Mortgage Loan Seller or for which a Loss of Value Payment was paid, in each case, subject to the exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation Proceeds, Insurance and Condemnation Proceeds). If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds are received with respect to any Corrected Loan and the applicable Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable based on and out of the portion of such Liquidation Proceeds and Insurance and Condemnation Proceeds that constitute principal and/or interest on such Mortgage Loan. Notwithstanding anything herein to the contrary, each Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to any Companion Loan, the Liquidation Fee, Workout Fee and Special Servicing Fees, if any, will be computed as provided in the related Intercreditor Agreement or to the extent such Intercreditor Agreement is silent or refers to this Agreement or indicates such fees are paid in accordance with this Agreement, as provided herein as though such Companion Loan were a Mortgage Loan. Subject to Section 3.11(d), each Special Servicer will also be entitled to additional fees in the form of Penalty Charges. Each Special Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts, other than management fees in respect of REO Properties, due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not expressly payable directly out of the applicable Collection Account or the REO Account, and the applicable Special Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

 

Notwithstanding anything to the contrary, if either the Master Servicer or the Special Servicer has partially waived any Penalty Charge (part of which accrued when the related Mortgage Loan was a Specially Serviced Loan and part of which accrued when the related Mortgage Loan was not a Specially Serviced Loan), any collections in respect of such Penalty Charge will be shared pro rata by the Master Servicer and the Special Servicer based on the respective portions of such Penalty Charge to which each would otherwise have been entitled.

 

With respect to any of the preceding fees (other than Penalty Charges) as to which both the Master Servicer and the Special Servicer are entitled to receive a portion thereof, the applicable Master Servicer and the applicable Special Servicer shall each have the right in its sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, however, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or elect not to charge the portion of any fee due to the other and (B) to the extent either of the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any fee, the party that reduced or elected not to charge such fee will not have any right to share in any part of the other

 

 -232-

 

 

party’s portion of such fee. If the applicable Master Servicer decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Special Servicer would have been entitled if the applicable Master Servicer had charged a fee and the applicable Master Servicer will not be entitled to any of such fee charged by the applicable Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Master Servicer would have been entitled if the applicable Special Servicer had charged a fee and the applicable Special Servicer shall not be entitled to any portion of such fee charged by the applicable Master Servicer. For the avoidance of doubt, the applicable Special Servicer may, in connection with a workout or other modification of a Mortgage Loan and without the consent of the applicable Master Servicer, waive any or all related Penalty Charges, regardless of who is entitled to receive such payments as compensation.

 

(d)          In determining the compensation of each applicable Master Servicer or each applicable Special Servicer, as applicable, with respect to Penalty Charges, on any Distribution Date, the aggregate Penalty Charges collected on any Serviced Mortgage Loan and any related Companion Loan since the prior Distribution Date shall be applied (in such order) to reimburse (i) the applicable Master Servicer, the applicable Special Servicer or the Trustee for interest on Advances on such Mortgage Loan or related Companion Loan, if applicable (and, in connection with a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the applicable Non-Serviced Trustee for interest on the servicing advances made by any such party with respect to a Non-Serviced Whole Loan pursuant to the applicable Non-Serviced PSA, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) due on such Distribution Date, (ii) the Trust for all interest on Advances previously paid to the applicable Master Servicer or the Trustee pursuant to Section 3.05(a)(vi) (and, in connection with a Non-Serviced Mortgage Loan, the related trust for all interest on servicing advances reimbursed by such trust to any party under the applicable Non-Serviced PSA, which resulted in an additional expense for the Trust, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) with respect to such Mortgage Loan or related Companion Loan, if applicable and (iii) the Trust for all additional expenses of the Trust (including Special Servicing Fees, Workout Fees and Liquidation Fees), including without limitation, inspections by the applicable Special Servicer and all unpaid Advances incurred since the Closing Date with respect to such Mortgage Loan. Penalty Charges (other than with respect to a Non-Serviced Mortgage Loan, which shall be payable as additional servicing compensation under the related Non-Serviced PSA) remaining thereafter shall be distributed to the applicable Master Servicer, if and to the extent accrued while such Mortgage Loan and any related Companion Loan was a Non-Specially Serviced Loan, and to the applicable Special Servicer, if and to the extent accrued on such Mortgage Loan during the period such Mortgage Loan was a Specially Serviced Loan or REO Loan. Any Penalty Charges paid or payable as additional servicing compensation to each applicable Master Servicer and each applicable Special Servicer shall be distributed between the applicable Master Servicer and the applicable Special Servicer, on a pro rata basis, based on such Master Servicer’s and such Special Servicer’s respective entitlements to such compensation described in the previous sentence. Notwithstanding the foregoing or anything else herein to the contrary, Penalty Charges with respect to any Companion Loan will be allocated pursuant to the applicable Intercreditor Agreement after payment of all related Advances and interest thereon and additional expenses of the Trust in accordance with this Section 3.11(d).

 

 -233-

 

 

If a Servicing Shift Whole Loan becomes a Specially Serviced Loan prior to the applicable Servicing Shift Securitization Date, the applicable Special Servicer shall service and administer such Servicing Shift Whole Loan and any related REO Property in the same manner as any other Specially Serviced Loan or Serviced REO Property and shall be entitled to all rights and compensation earned with respect to such Serviced Whole Loan as the applicable Special Servicer of such Serviced Whole Loan. With respect to a Servicing Shift Mortgage Loan, prior to the applicable Servicing Shift Securitization Date, no other special servicer will be entitled to any such compensation or have such rights and obligations. If a Servicing Shift Whole Loan is still a Specially Serviced Loan on the applicable Servicing Shift Securitization Date, the Non-Serviced Special Servicer and the applicable Special Servicer shall be entitled to compensation with respect to such Servicing Shift Whole Loan as if such Special Servicer were being terminated (other than for cause) as the Special Servicer with respect to such Servicing Shift Whole Loan and the Non-Serviced Special Servicer were replacing such Special Servicer as the successor Special Servicer with respect to such Servicing Shift Whole Loan.

 

(e)          With respect to each Distribution Date, each Special Servicer shall deliver or cause to be delivered to the applicable Master Servicer within two (2) Business Days following the Determination Date, and such Master Servicer shall deliver, to the extent it has received, to the Certificate Administrator, without charge and on the related Remittance Date, an electronic report (which may include HTML, Word or Excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator and the applicable Special Servicer) that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, if any, with respect to such Distribution Date; provided that no such report shall be due in any month during which no Disclosable Special Servicer Fees were received.

 

(f)           Each Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Mortgagor, any property manager, any guarantor or indemnitor in respect of a Mortgage Loan and any purchaser of any Mortgage Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan or Serviced Companion Loan, the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.11; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees.

 

(g)          Pursuant to the CREFC^® License Agreement, CREFC^® shall be paid (according to the payment instructions set forth on Exhibit II hereto or such other payment instructions as CREFC^® may provide to each applicable Master Servicer in writing at least two (2) Business Days prior to the Remittance Date) the CREFC^® Intellectual Property Royalty License Fee on a monthly basis. Each Master Servicer shall withdraw from its Collection Account and, to the extent sufficient funds are on deposit therein, pay the CREFC^® Intellectual Property Royalty License Fee to CREFC^® in accordance with Section 3.05(a)(xii) on a monthly basis, from funds on deposit in its Collection Account.

 

 -234-

 

 

Section 3.12         Inspections; Collection of Financial Statements. (a) Each Master Servicer shall perform (at its own expense), or shall cause to be performed (at its own expense), a physical inspection of each Mortgaged Property relating to a Mortgage Loan (other than a Non-Serviced Mortgage Loan or a Specially Serviced Loan or an REO Loan) for which it acts as Master Servicer with a Stated Principal Balance of (i) $2,000,000 or more at least once every twelve (12) months and (ii) less than $2,000,000 at least once every twenty-four (24) months, in each case, commencing in the calendar year 2023 (and each Mortgaged Property shall be inspected on or prior to December 31, 2024); provided, however, that if a physical inspection has been performed by the applicable Special Servicer in the previous twelve (12) months, such Master Servicer will not be required to perform, or cause to be performed, such physical inspection; provided, further, that if any scheduled payment becomes more than sixty (60) days delinquent on the related Mortgage Loan (excluding a delinquency that would have existed but for a Payment Accommodation, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation), the applicable Special Servicer shall inspect or cause to be inspected the related Mortgaged Property as soon as practicable after such Mortgage Loan becomes a Specially Serviced Loan and annually thereafter for so long as such Mortgage Loan remains a Specially Serviced Loan. The cost of such inspection by a Special Servicer pursuant to the second proviso of the immediately preceding sentence shall be an expense of the Trust, and, to the extent not paid by the related Mortgagor, reimbursed first from Penalty Charges actually received from the related Mortgagor and then from the applicable Collection Account pursuant to Section 3.05(a)(ii), provided that, with respect to a Serviced Whole Loan, such cost shall be payable, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan, in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections. With respect to any Serviced AB Whole Loan, the costs will be allocated, first, as an expense of the related Subordinate Companion Holder and, second, as an expense of the holder of the related Mortgage Loan to the extent provided in the related Intercreditor Agreement. The applicable Special Servicer or the applicable Master Servicer, as applicable, shall prepare or cause to be prepared a written report of each such inspection detailing the condition of and any damage to the Mortgaged Property to the extent evident from the inspection and specifying the existence of (i) any vacancy at the Mortgaged Property that the preparer of such report has knowledge of and the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (ii) any sale, transfer or abandonment of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, (iii) any adverse change in the condition of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, and that the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (iv) any visible material waste committed on the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection and (v) photographs of each inspected Mortgaged Property. The

 

 -235-

 

 

applicable Special Servicer and the applicable Master Servicer shall promptly following preparation deliver or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, respectively, to the other party, to the Directing Certificateholder ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan (as to such party) that is a Specially Serviced Loan). Within five (5) Business Days after request for copies of such reports by the Rating Agencies, the applicable Special Servicer or the applicable Master Servicer, as applicable, shall deliver or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, as applicable, to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for review by NRSROs (including the Rating Agencies) that are Privileged Persons. The applicable Master Servicer shall deliver or make available a copy of each such report to the Directing Certificateholder and upon request to each Controlling Class Certificateholder (which request may state that such items may be delivered until further notice) (except, after the occurrence and during the continuance of a Consultation Termination Event or with respect to any Specially Serviced Loan that is an Excluded Loan as to such party).

 

(b)          Each Special Servicer, in the case of any Specially Serviced Loan, and each Master Servicer, in the case of any Non-Specially Serviced Loan shall make reasonable efforts to collect promptly and review from each related Mortgagor under the Mortgage Loans for which it acts as Master Servicer or Special Servicer, as applicable, quarterly and annual (or, in the case of Mortgage Loans secured by residential cooperative properties, annual only) operating statements, financial statements, budgets and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) of the related Mortgaged Property, and the quarterly and annual financial statements of such Mortgagor commencing with the calendar quarter ending on March 31, 2022 and the calendar year ending on December 31, 2022, whether or not delivery of such items is required pursuant to the terms of the related Mortgage Loan documents and any other reports or documents required to be delivered under the terms of the Mortgage Loans (and each Serviced Companion Loan), if delivery of such items is required pursuant to the terms of the related Mortgage Loan documents. The applicable Master Servicer and the applicable Special Servicer shall not be required to request such operating statements or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) more than once if the related Mortgagor is not required to deliver such statements pursuant to the terms of the Mortgage Loan documents. In addition, the applicable Special Servicer shall cause quarterly and annual operating statements, budgets and rent rolls to be regularly prepared in respect of each REO Property and shall collect all such items promptly following their preparation. The applicable Special Servicer shall deliver all such items to the applicable Master Servicer within five (5) Business Days of receipt, and such Master Servicer and such Special Servicer, as applicable, shall deliver or make available copies of all the foregoing items so collected to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Depositor, in electronic format, in each case within sixty (60) days of its receipt thereof, but in no event, in the case of annual statements, later than June 30 of each year commencing in 2023. Upon the request of any Privileged Person (other than the NRSROs) to receive copies of such items, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall deliver or make available electronic copies of such items to the Certificate Administrator to be posted on the Certificate Administrator’s Website. Upon the request of any NRSRO, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall

 

 -236-

 

 

deliver or make available copies of all or any portion of the foregoing items so collected thereby to the 17g-5 Information Provider pursuant to Section 3.13(c).

 

In addition, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties), as applicable, shall prepare with respect to each Mortgaged Property securing a Serviced Mortgage Loan and REO Property for which it acts as Master Servicer or Special Servicer, as applicable:

 

(i)           Within forty-five (45) days after receipt of a quarterly operating statement, if any, commencing within forty-five (45) days of receipt of such quarterly operating statement for the quarter ending March 31, 2022, a CREFC^® Operating Statement Analysis Report (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information) for such Mortgaged Property or REO Property as of the end of that calendar quarter and provides sufficient information to report pursuant to CREFC^® guidelines, provided, however, that any analysis or report with respect to the first calendar quarter of each year will not be required to the extent provided in the then-current applicable CREFC^® guidelines (it being understood that as of the Closing Date, the applicable CREFC^® guidelines provide that such analysis or report with respect to the first calendar quarter (in each year) is not required for a Mortgaged Property or REO Property unless such Mortgaged Property or REO Property is analyzed on a trailing twelve (12) month basis, or if the related Serviced Mortgage Loan is on the CREFC^® Servicer Watch List). The applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties that do not relate to Non-Serviced Mortgage Loans), as applicable, shall deliver or make available copies (in electronic format) of each CREFC^® Operating Statement Analysis Report and, upon request, the related operating statements (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder and the related Companion Holder (with respect to any Serviced Companion Loan).

 

(ii)          Within forty-five (45) days after receipt by the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties) or the applicable Master Servicer (with respect to Non-Specially Serviced Loans) of an annual operating statement or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) (if and to the extent any such information is in the form of normalized year-end financial statements that have been based on a minimum number of months of operating results as recommended by CREFC^® in the instructions to the CREFC^® guidelines) for each calendar year commencing within forty-five (45) days of receipt of such annual operating statement for the calendar year ending December 31, 2022, a CREFC^® NOI Adjustment Worksheet (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information), presenting the computation to “normalize” the full year net operating income and debt service coverage numbers used by the applicable Master Servicer in preparing the CREFC^® Comparative Financial Status Report. The applicable Master Servicer (with respect to all Serviced Mortgage Loans) or the applicable Special Servicer

 

 -237-

 

 

(with respect to REO Properties that do not relate to Non-Serviced Mortgage Loans), as applicable, shall deliver or make available copies (in electronic format) of each CREFC® NOI Adjustment Worksheet and, upon request, the related operating statements or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder, the related Companion Holder (with respect to any Serviced Companion Loan) and, upon request, the 17g-5 Information Provider, and the 17g-5 Information Provider shall post all such items to the 17g-5 Information Provider’s Website.

 

(c)          At or before 2:00 p.m. (New York City time) on each Determination Date, each Special Servicer shall prepare and deliver or cause to be delivered to the applicable Master Servicer and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, the CREFC^® Special Servicer Loan File and any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports with respect to the Specially Serviced Loans (excluding, for the Directing Certificateholder, any Excluded Loans as to such party) and any REO Properties (other than a Non-Serviced Mortgaged Property), providing the information required of the applicable Special Servicer in an electronic format, reasonably acceptable to the applicable Master Servicer as of the Business Day preceding such Determination Date, which CREFC^® Special Servicer Loan File shall include data, to enable the applicable Master Servicer to produce the following supplemental CREFC^® reports: (i) a CREFC^® Delinquent Loan Status Report, (ii) a CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iii) a CREFC^® REO Status Report, (iv) a CREFC^® Comparative Financial Status Report and (v) a CREFC^® NOI Adjustment Worksheet and a CREFC^® Operating Statement Analysis Report, in each case with the supporting financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) submitted by the Mortgagor.

 

(d)          Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning January 2022, each Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the Certificate Administrator the following reports and data files with respect to the Mortgage Loans for which it acts as Master Servicer: (A) to the extent such Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report and the CREFC^® REO Status Report, (B) CREFC^® Loan Setup File (only with respect to the first Distribution Date), (C) the most recent CREFC^® Property File, and CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the applicable Special Servicer and the applicable Master Servicer), (D) a CREFC® Servicer Watch List with information that is current as of such Determination Date, (E) CREFC® Financial File, (F) CREFC® Loan Level Reserve/LOC Report, (G) the CREFC® Advance Recovery Report, (H) CREFC® Total Loan Report and (I) the report on Disclosable Special Servicer Fees delivered pursuant to Section 3.11(e) to the extent received from the applicable Special Servicer, if any. Additionally, not later than 5:00 p.m. (New York City time) on the P&I Advance Date beginning January 2022, the applicable Master Servicer shall deliver or cause to be delivered in electronic format to the Certificate Administrator any applicable CREFC^® Loan Liquidation Reports, CREFC® Loan Modification Reports and CREFC^® REO Liquidation

 

 -238-

 

 

Reports received from the applicable Special Servicer. Not later than 2:00 p.m. (New York City time) two (2) Business Days prior to the Distribution Date beginning January 2022, the applicable Master Servicer shall deliver or cause to be delivered to the Certificate Administrator via electronic format the CREFC^® Loan Periodic Update File and, to the extent received by such Master Servicer, the CREFC^® Appraisal Reduction Template. In no event shall any report described in this subsection be required to reflect information that has not been collected by or delivered to the applicable Master Servicer, or any payments or collections not received by the applicable Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due.

 

Not later than two (2) Business Days prior to each P&I Advance Date, the NCB Master Servicer shall deliver to the General Master Servicer an NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File in both EDGAR-Compatible Format and Excel format; provided, however, that the NCB Master Servicer shall have no obligation to prepare or deliver such NCB CREFC^® Schedule AL File unless the NCB Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(j). If the General Master Servicer does not receive such NCB CREFC^® Schedule AL File from the NCB Master Servicer by two (2) Business Days prior to the related P&I Advance Date, it shall immediately request such NCB CREFC^® Schedule AL File from the NCB Master Servicer via email at BANK2021BNK38@ncb.com and send a copy of such request to the Depositor via email at cmbs_notices@morganstanley.com. In preparing the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the NCB Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial Schedule AL File and Annex A-1 to the Prospectus. The NCB CREFC^® Schedule AL File and the NCB Schedule AL Additional File delivered by the NCB Master Servicer shall each be a single file.

 

Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning January 2022, the General Master Servicer shall deliver to the Certificate Administrator a CREFC^® Schedule AL File and may deliver to the Certificate Administrator a Schedule AL Additional File, each covering all of the Mortgage Loans (which CREFC^® Schedule AL File and Schedule AL Additional File shall include the information contained in the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File, respectively, delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph), and each in both EDGAR-Compatible Format and Excel format; provided, however, that the General Master Servicer shall have no obligation to prepare or deliver the CREFC^® Schedule AL File for any given Distribution Date unless the General Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(j) and the NCB CREFC^® Schedule AL File for such Distribution Date pursuant to the immediately preceding paragraph. If the Certificate Administrator does not receive the CREFC^® Schedule AL File from the General Master Servicer by 5:00 p.m. (New York City time) on the P&I Advance Date, it shall request the CREFC^® Schedule AL File from the General Master Servicer via email at ssreports@wellsfargo.com and send a copy of such request to the Depositor via email at cmbs_notices@morganstanley.com. In preparing the CREFC^® Schedule AL File and any Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the General Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial Schedule AL File

 

 -239-

 

 

and Annex A-1 to the Prospectus and the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph. The CREFC^® Schedule AL File and the Schedule AL Additional File delivered by the General Master Servicer shall each be a single file. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files provided or prepared by or on behalf of any applicable Master Servicer. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File.

 

In the absence of manifest error, each Master Servicer shall be entitled to conclusively rely upon, without investigation or inquiry, any information and reports delivered to it by any third party, and the Certificate Administrator shall be entitled to conclusively rely upon each Master Servicer’s reports and each Special Servicer’s reports and any information provided by the Trustee, without any duty or obligation to recompute, verify or recalculate any of the amounts and other information stated therein.

 

(e)          Each Special Servicer shall deliver to the applicable Master Servicer the reports and information required of such Special Servicer pursuant to Section 3.12(b) and Section 3.12(c), and such Master Servicer shall deliver or make available to the Certificate Administrator the reports and data files set forth in Section 3.12(d). Such Master Servicer may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Certificate Administrator may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Master Servicer pursuant to Section 3.12(d). In the case of information or reports to be furnished by the applicable Master Servicer to the Certificate Administrator pursuant to Section 3.12(d), to the extent that such information or reports are, in turn, based on information or reports to be provided by the applicable Special Servicer pursuant to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to be prepared and delivered by the applicable Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the applicable Master Servicer shall have no obligation to provide such information or reports to the Certificate Administrator until it has received the requisite information or reports from the applicable Special Servicer, and the applicable Master Servicer shall not be in default hereunder due to a delay in providing the reports required by Section 3.12(d) caused by the applicable Special Servicer’s failure to timely provide any information or report required under Section 3.12(b) or Section 3.12(c) of this Agreement.

 

(f)           Notwithstanding the foregoing, however, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by this Section 3.12 shall not constitute a breach of this Section 3.12 to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Mortgaged Properties. A Master Servicer and a Special Servicer may disclose any such information or any additional information to any Person so long as such disclosure is consistent with applicable law and the Servicing Standard. A Master Servicer or a Special Servicer

 

 -240-

 

 

may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

 

(g)          Unless otherwise specifically stated herein, if a Master Servicer or a Special Servicer is required to deliver or make available any statement, report or information under any provisions of this Agreement, such Master Servicer or such Special Servicer, as the case may be, may satisfy such obligation by (x) physically delivering a paper copy of such statement, report or information, (y) delivering such statement, report or information in a commonly used electronic format or (z) making such statement, report or information available on such Master Servicer’s website (with respect to items delivered by such Master Servicer (except with respect to items delivered by such Master Servicer to the Certificate Administrator)) or the Certificate Administrator’s Website, unless this Agreement expressly specifies a particular method of delivery.

 

Notwithstanding anything to the contrary in the foregoing, each Master Servicer and each Special Servicer shall deliver any required statements, reports or other information to the Certificate Administrator in an electronic format mutually agreeable to the Certificate Administrator and the applicable Master Servicer or the applicable Special Servicer, as the case may be. The applicable Master Servicer or the applicable Special Servicer may physically deliver a paper copy of any such statement, report or information as a temporary measure due to system problems, however, copies in electronic format shall follow upon the correction of such system problems.

 

Section 3.13         Access to Certain Information. (a) Each Master Servicer and Special Servicer shall provide or cause to be provided to the Certificate Administrator, and the Certificate Administrator shall afford access to any Mortgage Loan Seller and to any Certificateholder that is a federally insured financial institution, the OCC, the FDIC, the Board of Governors of the Federal Reserve System of the United States of America and the supervisory agents and examiners of such boards and such corporations, and any other federal or state banking or insurance regulatory authority that may exercise authority over any such Certificateholder, and to each Holder of a Non-Registered Certificate, access to any documentation or information regarding the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and, in the case of a Mortgage Loan that is a portion of a Serviced Whole Loan, the related Companion Loan, and the Trust within its control which may be required by applicable law. At the election of the applicable Master Servicer, the applicable Special Servicer or the Certificate Administrator, such access may be afforded to such Person identified above by the delivery of copies of information as requested by such Person and such Master Servicer, such Special Servicer or the Certificate Administrator shall be permitted to require payment (other than from the Directing Certificateholder and the Trustee and the Certificate Administrator on its own behalf or on behalf of the Certificateholders, as applicable) of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it in making such copies. Such access shall (except as described in the preceding sentence) be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.

 

The failure of a Master Servicer or a Special Servicer to provide access as provided in this Section 3.13 as a result of a confidentiality obligation shall not constitute a breach of this Section 3.13. In connection with providing information pursuant to this Section 3.13, each

 

 -241-

 

 

applicable Master Servicer and each applicable Special Servicer may each (i) affix a reasonable disclaimer to any information provided by it for which it is not the original source (without suggesting liability on the part of any other party hereto); (ii) affix to any information provided by it a reasonable statement regarding securities law restrictions on such information and/or condition access to information on (x) the execution of a confidentiality agreement substantially in the form of Exhibit X, or (y) execution of a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s or the applicable Special Servicer’s website; (iii) withhold access to confidential information or any intellectual property; and/or (iv) withhold access to items of information contained in the Servicing File for any Mortgage Loan if the disclosure of such items is prohibited by applicable law or the provisions of any related Mortgage Loan documents or would constitute a waiver of the attorney-client privilege. Notwithstanding any provision of this Agreement to the contrary, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement to the extent that such Master Servicer or such Special Servicer, as the case may be, determines, in its reasonable good faith judgment consistent with the applicable Servicing Standard, that such disclosure would violate applicable law or any provision of a Mortgage Loan or Companion Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Companion Loans or the Mortgaged Properties, constitute a waiver of the attorney-client privilege on behalf of the Trust or otherwise materially harm the Trust. Without limiting the generality of the foregoing, a Master Servicer or a Special Servicer may refrain from disclosing information that it reasonably determines would prejudice the interest of the Certificateholders with respect to a workout or exercise of remedies as to any particular Mortgage Loan.

 

Notwithstanding the limitation set forth in the next succeeding paragraph, but subject to the last sentence of the immediately preceding paragraph, upon the reasonable request of any Certificateholder (or with respect to any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, the holder of such AB Subordinate Companion Loan) that has delivered an Investor Certification to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, may provide (or make available electronically) or make available at the expense of such Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, copies of any appraisals, operating statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and financial statements (in each case, solely relating to the related Serviced Whole Loan or Serviced AB Whole Loan, if requested by the holder of an AB Subordinate Companion Loan, as the case may be) obtained by the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that, in connection with such request, such Master Servicer or such Special Servicer, as applicable, may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, generally to the effect that such Person will keep such information confidential and shall use such information only for the purpose of analyzing asset performance and evaluating any continuing rights the Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, may have under this Agreement.

 

Notwithstanding anything to the contrary herein (other than as permitted in the preceding paragraph with respect to any Certificateholder or as specifically provided for herein

 

 -242-

 

 

with respect to the Directing Certificateholder), unless required by applicable law or court order, no Certificateholder (except, with respect to a Mortgage Loan Seller, to the extent necessary for such party to comply with its obligations under the related Mortgage Loan Purchase Agreement, and except for each applicable Master Servicer and the Certificate Administrator, acting in such capacities) or beneficial owner shall be given access to, or be provided copies of, the Mortgage Files or Diligence Files.

 

(b)          The Certificate Administrator shall make available to Privileged Persons (provided that the Prospectus, Distribution Date Statements, Mortgage Loan Purchase Agreements, this Agreement and the Commission EDGAR filings referred to below will be available to the general public) via the Certificate Administrator’s Website, the following items, in each case, to the extent such items were prepared by or delivered to the Certificate Administrator in electronic format:

 

(i)       The following documents, which will initially be made available under a tab or heading designated “deal documents”:

 

(A)         the Prospectus and any other disclosure document relating to the Registered Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;

 

(B)         this Agreement and any amendments and exhibits hereto;

 

(C)         any Sub-Servicing Agreements delivered to the Certificate Administrator on or after the Closing Date;

 

(D)         the Mortgage Loan Purchase Agreements and any amendments and exhibits thereto; and

 

(E)          the CREFC^® Loan Setup File provided by the applicable Master Servicer to the Certificate Administrator;

 

(ii)     the following documents, which will initially be made available under a tab or heading designated “SEC EDGAR filings”;

 

(A)         any reports on Forms 10-D, ABS-EE, 10-K and 8-K that have been filed by the Certificate Administrator with respect to the Trust through the EDGAR system;

 

(iii)     The following documents, which will initially be made available under a tab or heading designated “periodic reports”:

 

(A)         all Distribution Date Statements prepared by the Certificate Administrator pursuant to Section 4.02;

 

(B)         the CREFC^® Loan Periodic Update File, the CREFC^® Bond Level File, the CREFC^® Collateral Summary File, the CREFC^® Property File, the CREFC^® Financial File, each of the “surveillance reports” identified as such in the

 

 -243-

 

 

definition of “CREFC^® Investor Reporting Package” (including, without limitation, the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheets), the CREFC^® Advance Recovery Report to the extent delivered by the applicable Master Servicer pursuant to this Agreement from time to time; and

 

(C)         all Operating Advisor Annual Reports provided by the Operating Advisor to the Certificate Administrator;

 

(iv)     The following documents, which will initially be made available under a tab or heading designated “additional documents”:

 

(A)         summaries of Final Asset Status Reports or, if an AB Control Appraisal Period is not in effect, summaries of Asset Status Reports approved by the holder of the related Companion Loan, and related information delivered to the Certificate Administrator pursuant to Section 3.19(d);

 

(B)         all property inspection reports and environmental reports delivered to the Certificate Administrator pursuant to Section 3.12(a);

 

(C)         any Appraisals delivered to the Certificate Administrator pursuant to Section 3.19; and

 

(D)         CREFC^® Appraisal Reduction Template;

 

(v)    The following documents, which will initially be made available under a tab or heading designated “special notices”:

 

(A)         any notice with respect to a release pursuant to Section 3.09(d);

 

(B)         any notice regarding a waiver, modification or amendment of the terms of any Mortgage Loan pursuant to Section 3.18(g);

 

(C)         any notice of final payment on the Certificates delivered to the Certificate Administrator pursuant to Section 4.01(h);

 

(D)         any notice of the occurrence of any Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

 

(E)          any notice of the Certificate Administrator’s determination that an Asset Review Trigger has occurred and any other notice required to be delivered to the Certificateholders pursuant to Section 12.01;

 

(F)          any Asset Review Report Summary received by the Certificate Administrator;

 

 -244-

 

 

(G)         any notice of the termination of the Sub-Servicer delivered pursuant to Section 3.20(g);

 

(H)         any notice of resignation of the Trustee or the Certificate Administrator, and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

 

(I)           any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

 

(J)           any notice of resignation or termination of a Master Servicer or a Special Servicer pursuant to Section 7.03;

 

(K)         any notice of termination pursuant to Section 9.01;

 

(L)          any notice of resignation or termination of the Operating Advisor or the Asset Representations Reviewer and any notice of the acceptance of appointment by the successor operating advisor or the successor asset representations reviewer pursuant to Section 3.26 or Section 12.03, respectively;

 

(M)        any notice of any request by requisite percentage of Certificateholders for a vote to terminate a Special Servicer pursuant to Section 7.01(d), the Operating Advisor pursuant to Section 3.26(j) or the Asset Representations Reviewer pursuant to Section 12.05(b);

 

(N)         any notice of recommendation of termination of a Special Servicer by the Operating Advisor and the related report prepared by the Operating Advisor in connection with such recommendation;

 

(O)         any notice that a Control Termination Event has occurred or is terminated or that a Consultation Termination Event has occurred or is terminated;

 

(P)          any notice of the occurrence of an Operating Advisor Termination Event;

 

(Q)         any notice of the occurrence of an Asset Representations Reviewer Termination Event;

 

(R)         any assessments of compliance delivered to the Certificate Administrator;

 

(S)          any attestation reports delivered to the Certificate Administrator;

 

(T)          any “special notices” required by a Certificateholder to be posted on the Certificate Administrator’s website pursuant to Section 5.06;

 

 -245-

 

 

(U)         any notice or documents provided to the Certificate Administrator by the Depositor or a Master Servicer directing the Certificate Administrator to post to the “special notices” tab; and

 

(V)         any Proposed Course of Action Notice;

 

(vi)   the “Investor Q&A Forum” pursuant to Section 4.07(a);

 

(vii)  solely to Certificateholders and Certificate Owners that are Privileged Persons, the “Investor Registry” pursuant to Section 4.07(b); and

 

(viii) the “U.S. Risk Retention Special Notices” tab, which shall contain any notices provided by the Retaining Sponsor relating to ongoing compliance by each Retaining Party with the Risk Retention Rules;

 

provided, that with respect to a Control Termination Event or Consultation Termination Event that is deemed to exist due solely to the existence of an Excluded Loan, the Certificate Administrator will only be required to provide notice of the occurrence and continuance of such event if it has been notified of or has knowledge of the existence of such Excluded Loan.

 

The Certificate Administrator shall post on the Certificate Administrator’s Website the items and reports identified in clauses (iii)(A) and (B) above on each Distribution Date. In addition, if the Depositor so directs the Certificate Administrator, and on terms acceptable to the Certificate Administrator, the Certificate Administrator shall make certain other information and reports related to the Mortgage Loans available through its Internet website.

 

The Certificate Administrator shall, in addition to posting the applicable notices on the “U.S. Risk Retention Special Notices” tab described in clause (viii) above, provide email notification to any Privileged Person (other than the financial market information providers listed in Section 3.13(e)) that has registered to receive access to the Certificate Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab.

 

Notwithstanding the foregoing, all Excluded Information shall be made available under a separate tab or heading designated “Excluded Information” on the Certificate Administrator’s Website (and not under any of the tabs or headings described in items (i) through (viii) above) and made available to Privileged Persons other than any Excluded Controlling Class Holder that is a Borrower Party (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)).

 

Any Person that is a Borrower Party shall only be entitled to access (a) the Distribution Date Statements, and the following items made available to the general public: the Prospectus, this Agreement, the Mortgage Loan Purchase Agreements and the Commission filings on the Certificate Administrator’s Website, and (b) in the case of the Directing Certificateholder or a Controlling Class Certificateholder, if any such Person becomes an Excluded Controlling Class Holder, upon delivery to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) of an investor certification

 

 -246-

 

 

substantially in the form of Exhibit P-1D and upon delivery to the Certificate Administrator in physical form of an investor certification substantially in the form of Exhibit P-1F, which shall include each of the CTSLink User ID associated with such Excluded Controlling Class Holder, all information (other than the Excluded Information with respect to any Excluded Controlling Class Loans (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans)) available on the Certificate Administrator’s Website.

 

In the case of the Directing Certificateholder or a Controlling Class Certificateholder that is not an Excluded Controlling Class Holder, upon delivery of an investor certification substantially in the form of Exhibit P-1B hereto, the Directing Certificateholder or Controlling Class Certificateholder shall be entitled to access all information on the Certificate Administrator’s Website. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee may each rely on (i) an investor certification in the form of Exhibit P-1B hereto from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is not an Excluded Controlling Class Holder and (ii) an investor certification in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is an Excluded Controlling Class Holder with respect to one or more Excluded Controlling Class Loan(s). In the event the Directing Certificateholder or a Controlling Class Certificateholder becomes an Excluded Controlling Class Holder, such party shall promptly notify each of the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in writing substantially in the form of Exhibit P-1E that such party has become an Excluded Controlling Class Holder with respect to the Excluded Controlling Class Loan(s) listed in such notice and shall also provide the Certificate Administrator a notice substantially in the form of Exhibit P-1F listing each of the CTSLink User ID associated with such Excluded Controlling Class Holder and directing the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. Upon confirmation from the Certificate Administrator that such access has been restricted, such Excluded Controlling Class Holder shall submit a new investor certification substantially in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) to access the information on the Certificate Administrator’s Website, except that such Excluded Controlling Class Holder shall not be entitled to access any Excluded Information related to any Excluded Controlling Class Loan(s) (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)) made available on the Certificate Administrator’s Website. With respect to any Excluded Information sent for posting on the Certificate Administrator’s Website, each of the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor shall mark or label such information as “Excluded Information” prior to delivery to the Certificate Administrator, and the Certificate Administrator shall segregate on the Certificate Administrator’s Website such Excluded Information (and, if possible at a later time, on loan-by-loan basis) from information relating to other Mortgage Loans or Whole Loans, as applicable.

 

Notwithstanding anything herein to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall be

 

 -247-

 

 

entitled to conclusively assume that the Directing Certificateholder and all beneficial owners of the Certificates of the Controlling Class are not Excluded Controlling Class Holders except to the extent that the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, has received a notice substantially in the form of Exhibit P-1E from the Directing Certificateholder or a Controlling Class Certificateholder that it has become an Excluded Controlling Class Holder. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall not be liable for any communication to the Directing Certificateholder or a Controlling Class Certificateholder that is an Excluded Controlling Class Holder or disclosure of any information relating to an Excluded Controlling Class Loan (including any related Excluded Information delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website) if the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, did not receive prior written notice that the related Mortgage Loan is an Excluded Controlling Class Loan and/or, with respect to any related Excluded Information posted on the Certificate Administrator’s Website, such information was not delivered to the Certificate Administrator in accordance with Section 3.33.

 

Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder of an investor certification substantially in the form of Exhibit P-1B that it is not or is no longer an Excluded Controlling Class Holder. To the extent the Directing Certificateholder or a Controlling Class Certificateholder receives access pursuant to this Agreement to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the Directing Certificateholder or Controlling Class Certificateholder shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the Directing Certificateholder or Controlling Class Certificateholder or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

 

To the extent the Risk Retention Consultation Party or a Holder of an RR Interest receives access pursuant to this Agreement to any information solely related to a Mortgage Loan with respect to which such party is a Borrower Party (which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans conducted by a Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding such Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, a Master Servicer or a Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, but in each case other than information with respect to such Mortgage Loan that is aggregated with information of other Mortgage Loans at a pool level), on the Certificate Administrator’s Website or otherwise receives access to such information, such Risk Retention Consultation Party or Holder of an RR Interest

 

 -248-

 

 

shall be deemed to have agreed that it (i) will not directly or indirectly provide any such information to (A) the related Borrower Party, (B) any employees or personnel of such Risk Retention Consultation Party or Holder of an RR Interest or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any such Excluded Loan) shall be considered information that is aggregated with information of other Mortgage Loans at a pool level. For avoidance of doubt, the covenants and restrictions in this paragraph are not applicable to Wells Fargo Bank, National Association, acting in its capacity as Master Servicer or as Certificate Administrator.

 

The Certificate Administrator makes no representation or warranty as to the accuracy or completeness of any report, document or other information made available on its Internet website and assumes no responsibility therefor, other than with respect to such reports, documents or other information prepared by the Certificate Administrator. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by it for which it is not the original source. Notwithstanding anything herein to the contrary, the Certificate Administrator shall not be liable for any disclosure of information relating to any Excluded Controlling Class Loan to the extent such information was included in any Asset Status Report or Final Asset Status Report inadvertently delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website and not properly identified as relating to any Excluded Controlling Class Loan.

 

In connection with providing access to the Certificate Administrator’s Website (other than with respect to access provided to the general public in accordance with Section 3.13(b)), the Certificate Administrator may require registration and the acceptance of a disclaimer. The Certificate Administrator shall not be liable for the dissemination of information in accordance herewith. Questions regarding the Certificate Administrator’s Website can be directed to the Certificate Administrator’s CMBS customer service desk at (866) 846-4526.

 

(c)          The 17g-5 Information Provider shall make available solely to the Depositor and the NRSROs the following items to the extent such items are delivered to it (in the form of an electronic document suitable for posting) via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK38” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:

 

(i)      any notices of waivers under Section 3.08(d);

 

(ii)     any Asset Status Report delivered by the applicable Special Servicer under Section 3.19(d);

 

 -249-

 

 

(iii)    any notice of final payment on the Certificates;

 

(iv)   any environmental reports delivered by the applicable Special Servicer under Section 3.09(c);

 

(v)    any Appraisals delivered to the 17g-5 Information Provider pursuant to Section 3.19;

 

(vi)   any annual statements as to compliance and related Officer’s Certificates delivered under Section 11.09 or 11.10;

 

(vii)  any annual independent public accountants’ attestation reports delivered pursuant to Section 11.11;

 

(viii) any notice to the Rating Agencies relating to the applicable Special Servicer’s determination to take action without receiving Rating Agency Confirmation from any Rating Agency as set forth in Section 3.25(a);

 

(ix)   copies of requests or questions that were submitted by the Rating Agencies relating to a request for Rating Agency Confirmation;

 

(x)    any requests for Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.25(a);

 

(xi)   any notice of resignation of the Trustee or the Certificate Administrator and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

 

(xii)  any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

 

(xiii) any notice of a Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

 

(xiv) any notice of the merger or consolidation of the Certificate Administrator or the Trustee pursuant to Section 8.09;

 

(xv)  any notice of any amendment that modifies the procedures herein relating to Rule 17g-5 of the Exchange Act pursuant to Section 13.01(a)(ix);

 

(xvi) any Operating Advisor Annual Report pursuant to Section 3.26;

 

(xvii) any summary of oral communication with the Rating Agencies or any written question or request from the Rating Agencies directed toward the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee regarding any of the information delivered to the 17g-5 Information Provider pursuant to this Section 3.13(c) or regarding any request for a Rating Agency Confirmation or regarding any of the Mortgage Loan documents or any matter related to the Certificates,

 

 -250-

 

 

Mortgage Loans, any related Companion Loan, the related Mortgaged Properties, the related Mortgagors or any other matters related to this Agreement or any applicable Intercreditor Agreement; provided that the summary of such oral communication shall not identify the Rating Agency with whom the communication was held pursuant to Section 3.13(g);

 

(xviii)     any other information delivered to the 17g-5 Information Provider pursuant to this Agreement including, without limitation, Section 2.03(b), Section 3.07(a), Section 3.12, Section 3.17, Section 3.18(g); Section 11.09 or Section 11.10; and

 

(xix)        any other information delivered to the Rating Agencies pursuant to this Agreement including, without limitation, Section 13.10.

 

The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website. Information will be posted on the same Business Day of receipt unless such information is received after 2:00 p.m., New York City time, on such Business Day, in which case, it shall be posted by 12:00 p.m., New York City time, on the next Business Day; provided, however, that any information delivered pursuant to Section 3.13(d) shall be posted in accordance with Section 3.13(d). The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. In the event that any information is delivered or posted in error, each of the Certificate Administrator and the 17g-5 Information Provider may remove such information from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information merely by posting such information to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website or merely by filing such information pursuant to this Agreement via EDGAR or otherwise to the extent such information was not produced by the Certificate Administrator or the 17g-5 Information Provider, as applicable. Access will be provided by the 17g-5 Information Provider to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit P-2 hereto (which certification may be submitted electronically via the 17g-5 Information Provider’s Website). Questions regarding delivery of information to the 17g-5 Information Provider may be directed to (866) 846-4526 or 17g5informationprovider@wellsfargo.com (specifically referencing “BANK 2021-BNK38” in the subject line).

 

Upon delivery by the Depositor to the 17g-5 Information Provider of information designated by the Depositor as pre-closing information from the Depositor’s 17g-5 Website (the “Pre-Close Information”), the 17g-5 Information Provider shall make such information available only to the Depositor and to NRSROs via the 17g-5 Information Provider’s Website pursuant to this Section 3.13(c). Such information shall be provided to the 17g-5 Information Provider via electronic media and delivered to the 17g-5 Information Provider as mutually agreed. The Depositor shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-Close Information or any other information on the 17g-5 Information Provider’s Website to any designee or third party.

 

 -251-

 

 

Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 3.13. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website the Rating Agency that requested such additional information.

 

The 17g-5 Information Provider shall notify any party that delivers any information, report, notice or document to the 17g-5 Information Provider under this Agreement that such information, report, notice or document was received and that it has been posted. Each applicable Master Servicer and each applicable Special Servicer may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider. The 17g-5 Information Provider shall notify each Person that has signed-up for access to the 17g-5 Information Provider’s Website in respect of the transaction governed by this Agreement each time an additional document is posted to the 17g-5 Information Provider’s Website and such notice shall specifically identify such document in the subject line or otherwise in the body of the email notice. The 17g-5 Information Provider shall send such notice to such Person’s email address provided by and used by such Person for the purpose of accessing the 17g-5 Information Provider’s Website, including a general email address if such general email address has been provided to the 17g-5 Information Provider in connection with a completed NRSRO Certification in the form of Exhibit P-2 hereto.

 

Any information required to be delivered or made available to the 17g-5 Information Provider by any party under this Agreement shall be delivered to it via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK38” and an identification of the type of information being provided in the body of such electronic mail, or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider.

 

(d)          The applicable Master Servicer or the applicable Special Servicer, as applicable, may, but shall not be obligated to, provide bulk information that relates to two or more transactions to the 17g-5 Information Provider. Any such information shall be posted by the 17g-5 Information Provider and the 17g-5 Information Provider may, but shall not be obligated to post such information in accordance with the timeframe provided in Section 3.13(c) above, provided, however, that if the 17g-5 Information Provider is not able to post such information in accordance with the timeframe in Section 3.13(c), then it shall post such information within a reasonable time.

 

(e)          Certain information concerning the Mortgage Loans and the Certificates (including the Distribution Date Statements, CREFC^® reports and supplemental notices with respect to such Distribution Date Statements and CREFC^® reports) shall be provided by the Certificate Administrator at the direction of the Depositor to third parties (including Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corp., Markit Group Limited, BlackRock Financial Management, Inc., CMBS.com, Inc., Moody’s Analytics, Morningstar Credit Information & Analytics, LLC, RealInsight, Thomson Reuters Corporation and KBRA Analytics, LLC) with the consent of the Depositor, and providing such information shall not constitute a

 

 -252-

 

 

breach of this Agreement by the Certificate Administrator. Such information will be made available to such third parties upon receipt of a certificate in the form of Exhibit P-3 hereto, which certification may be submitted electronically via the Certificate Administrator’s Website.

 

(f)           Each Master Servicer and each Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also deliver, produce or otherwise make available through its website or otherwise, any additional information relating to the Mortgage Loans (other than any Non-Serviced Mortgage Loan), any related Serviced Companion Loan, the Mortgaged Properties (other than any Non-Serviced Mortgaged Property), or the related Mortgagors, for review by the Depositor, the Underwriters and any other Persons who deliver an Investor Certification in accordance with this Section 3.13 and the Rating Agencies (collectively, the “Disclosure Parties”) (in the case of deliveries to a Rating Agency, only to the extent such additional information is simultaneously delivered to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)), in each case, except to the extent doing so is prohibited by this Agreement (including without limitation, any prohibitions on dissemination of any confidential information, including, without limitation, any Privileged Information), applicable law or by the related Mortgage Loan documents. Each Master Servicer and each Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor and the Rating Agencies, enter into (x) an Investor Certification, (y) a confidentiality agreement substantially in the form of Exhibit X or (z) a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s or Special Servicer’s website, and (B) acknowledge that such Master Servicer or such Special Servicer may contemporaneously provide such information to any other Disclosure Party. In addition, to the extent access to such information is provided via the applicable Master Servicer’s or Special Servicer’s website, such Master Servicer or Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the information described in this Section 3.13(f) to current or prospective Certificateholders, the form of confidentiality agreement used by the applicable Master Servicer or the applicable Special Servicer, as applicable, shall be: (i) in the case of a Certificateholder, an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (ii) in the case of a prospective purchaser of Certificates or interests therein or an investment advisor related thereto, an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein or an investment advisor related thereto and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential with no further dissemination (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators). In the case of a licensed or registered investment advisor acting on behalf of a current or prospective Certificateholder, the Investor Certification shall be executed and delivered by both the investment advisor and such current or prospective Certificateholder.

 

 -253-

 

 

No Master Servicer or Special Servicer shall be liable for its dissemination of information in accordance with this Agreement or by others in violation of the terms of this Agreement. No Master Servicer or Special Servicer shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 3.13 unless such information was produced by the applicable Master Servicer or the applicable Special Servicer, as the case may be.

 

(g)          Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee shall be permitted (but not obligated) to orally communicate with the Rating Agencies regarding any of the Mortgage Loan documents and any other matter related to the Mortgage Loans, the related Mortgaged Properties, the related Mortgagors or any other matters relating to this Agreement or related Intercreditor Agreement; provided that such party summarizes the information provided to the Rating Agencies in such communication in writing and provides the 17g-5 Information Provider with such written summary in accordance with the procedures set forth in Section 3.13(c) the same day such communication takes place; provided, further that the summary of such oral communications shall not identify which Rating Agency the communication was with. The 17g-5 Information Provider shall post such written summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 3.13(c).

 

(h)          Each applicable Special Servicer, subject to the limitations on delivery of Privileged Communications, shall deliver to the Operating Advisor such reports and other information produced or otherwise available to the Directing Certificateholder or the Risk Retention Consultation Party (in each case, other than, prior to the occurrence and continuance of a Control Termination Event, any Asset Status Reports that are not Final Asset Status Reports), or Certificateholders generally, requested by the Operating Advisor in support of the performance of its obligations under this Agreement in electronic format.

 

(i)           None of the foregoing restrictions in this Section 3.13 or otherwise in this Agreement shall prohibit or restrict oral or written communications, or providing information, between the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, on the one hand, and any Rating Agency or NRSRO, on the other hand, with regard to (i) such Rating Agency’s or NRSRO’s review of the ratings it assigns to the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as the case may be, (ii) such Rating Agency’s or NRSRO’s approval of the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer, or (iii) such Rating Agency’s or NRSRO’s evaluation of the applicable Master Servicer’s, the Operating Advisor, the Asset Representations Reviewer’s or the applicable Special Servicer’s, as the case may be, servicing operations in general; provided that such Master Servicer, the Operating Advisor, the Asset Representations Reviewer or such Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans, to any Rating Agency or NRSRO in connection with such review and evaluation by such Rating Agency or NRSRO unless (x) Mortgagor, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on to the 17g-5 Information Provider’s Website or (z) the Rating Agency confirms that it does not intend to use such information in undertaking credit

 

 -254-

 

 

rating surveillance with respect to the Certificates; provided, however, that the Rating Agencies may use information delivered under this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement) or comprised of information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that they have access to) other than pursuant to this Section 3.13(i).

 

(j)           The costs and expenses of compliance with this Section 3.13 by the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and any other party hereto shall not be additional expenses of the Trust, but shall be borne by the applicable party hereto.

 

Section 3.14         Title to REO Property; REO Account. (a) If title to any Mortgaged Property is acquired (directly or through a single member limited liability company established for that purpose) and thus becomes REO Property, the deed or certificate of sale shall be issued in the name of the Trust where permitted by applicable law or regulation and consistent with customary servicing procedures, and otherwise, in the name of the Trustee or its nominee on behalf of the Certificateholders and, if applicable, on behalf of the related Companion Holders, in the case of a Serviced Companion Loan. REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.14. Each Special Servicer, on behalf of the Trust and, if applicable, the related Serviced Companion Noteholder, shall sell any REO Property prior to the close of the third calendar year following the year in which the Trust acquires ownership of such REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless such Special Servicer either (i) applies for a qualifying extension of time no later than sixty (60) days prior to the close of the third calendar year in which it acquired ownership (or the period provided in the then-applicable REMIC Provisions) and such extension is granted or is not denied (an “REO Extension”) by the Internal Revenue Service to sell such REO Property or (ii) obtains for the Trustee and the Certificate Administrator an Opinion of Counsel, addressed to the Trustee and the Certificate Administrator, to the effect that the holding by the Trust of such REO Property subsequent to the close of the third calendar year following the year in which acquisition occurred will not cause an Adverse REMIC Event. If the applicable Special Servicer is granted or not denied the REO Extension contemplated by clause (i) of the immediately preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the immediately preceding sentence, such Special Servicer shall sell such REO Property within such longer period as is permitted by such REO Extension or such Opinion of Counsel, as the case may be. Any expense incurred by such Special Servicer in connection with its being granted the REO Extension contemplated by clause (i) of the second preceding sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of the second preceding sentence, shall be an expense of the Trust payable out of the applicable Collection Account pursuant to Section 3.05(a).

 

(b)          Each Special Servicer shall segregate and hold all funds collected and received in connection with any REO Property separate and apart from its own funds and general assets. If an REO Acquisition shall occur, the applicable Special Servicer shall establish and maintain one or more REO Accounts, held on behalf of the Trustee for the benefit of the Certificateholders and, if applicable, on behalf of any related Companion Holder(s), as applicable, as their interest shall appear, and the Trustee (as holder of the Lower-Tier Regular Interests), for

 

 -255-

 

 

the retention of revenues and other proceeds derived from each REO Property. The REO Account shall be an Eligible Account. The applicable Special Servicer shall deposit, or cause to be deposited, in the REO Account, on the later of the date that is (i) on or prior to each Determination Date or (ii) two (2) Business Days after receipt of properly identified funds, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds received and properly identified in respect of an REO Property. Funds in the REO Account may be invested in Permitted Investments in accordance with Section 3.06. The applicable Special Servicer shall give notice to the Trustee, the Certificate Administrator, and the applicable Master Servicer of the location of the REO Account when first established and of the new location of the REO Account prior to any change thereof.

 

(c)          The applicable Special Servicer shall withdraw from the REO Account funds necessary for the proper operation, management, insuring, leasing, maintenance and disposition of any REO Property, but only to the extent of amounts on deposit in the REO Account relating to such REO Property. On the later of the date that is (x) on or prior to each Determination Date or (y) two (2) Business Days after such amounts are received and properly identified and determined to be available (or, with respect to a Serviced Companion Loan, on the Business Day preceding each Serviced Whole Loan Remittance Date), the applicable Special Servicer shall withdraw from the REO Account and remit to the applicable Master Servicer, which shall deposit into the applicable Collection Account (or the Companion Distribution Account, as applicable), the aggregate of all amounts received in respect of each REO Property during the most recently ended Collection Period, net of (i) any withdrawals made out of such amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on amounts on deposit in the REO Account; provided, however, that the applicable Special Servicer may retain in such REO Account, in accordance with the Servicing Standard, such portion of such balance as may be necessary to maintain a reasonable reserve for repairs, replacements, leasing, management and tenant improvements and other related expenses for the related REO Property. In addition, on or prior to the day the applicable Special Servicer remits funds as provided in this Section 3.14, the applicable Special Servicer shall provide the applicable Master Servicer with a written accounting of amounts remitted to such Master Servicer for deposit in the applicable Collection Account, as applicable, on such date. Such Master Servicer shall apply all such amounts as instructed by such Special Servicer on the Determination Date (or with respect to a Serviced Companion Loan, on each Serviced Whole Loan Remittance Date) for the related Distribution Date.

 

(d)          The applicable Special Servicer shall keep and maintain separate records, on a property-by-property basis, for the purpose of accounting for all deposits to, and withdrawals from, the REO Account pursuant to Section 3.14(b) or Section 3.14(c).

 

Section 3.15         Management of REO Property. (a) If title to any REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect, operate and lease such REO Property (other than any Non-Serviced Mortgaged Property) for the benefit of the Certificateholders and the related Companion Holders and the Trustee (as holder of the Lower-Tier Regular Interests) solely for the purpose of its timely disposition and sale in a manner that does not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust or any Serviced Companion Noteholder of any “income from non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the foregoing,

 

 -256-

 

 

however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith as are in the best interests of and for the benefit of the Certificateholders (and, in the case of each Serviced Whole Loan, the related Companion Holder(s)) and the Trustee (as holder of the Lower-Tier Regular Interests) all as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loan, as the case may be) (as determined by the applicable Special Servicer in its reasonable judgment in accordance with the Servicing Standard). Notwithstanding anything to the contrary herein, REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.15. Subject to this Section 3.15, the applicable Special Servicer may allow the Trust or any commercial mortgage securitization that holds any Serviced Companion Loan to earn “net income from foreclosure property” within the meaning of Section 860G(d) of the Code if it determines that earning such income is in the best interests of Certificateholders and, if applicable, any related Companion Holder(s) on a net after-tax basis as compared with net leasing such REO Property or operating such REO Property on a different basis. In connection therewith, the applicable Special Servicer shall deposit or cause to be deposited on a daily basis (and in no event later than two (2) Business Days following receipt of such properly identified funds) in the applicable REO Account all revenues received by it with respect to each REO Property and the related REO Loan, and shall withdraw from the REO Account, to the extent of amounts on deposit therein with respect to such REO Property, funds necessary for the proper operation, management, leasing and maintenance of such REO Property, including, without limitation:

 

(i)      all insurance premiums due and payable in respect of such REO Property;

 

(ii)     all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;

 

(iii)    any ground rents in respect of such REO Property, if applicable; and

 

(iv)   all costs and expenses necessary to maintain and lease such REO Property.

 

To the extent that amounts on deposit in the REO Account in respect of any REO Property are insufficient for the purposes set forth in clauses (i) through (iv) above with respect to such REO Property, the applicable Master Servicer (subject to receiving notice from the applicable Special Servicer in accordance with the procedures set forth elsewhere in this Agreement) shall advance from its own funds such amount as is necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee, the applicable Special Servicer, the Depositor, the Certificate Administrator and the Directing Certificateholder (with respect to the Directing Certificateholder, in respect of any Mortgage Loan other than an Excluded Loan as to such party, and prior to the occurrence and continuance of a Consultation Termination Event)) such advances would, if made, constitute Nonrecoverable Servicing Advances.

 

(b)          Without limiting the generality of the foregoing, no Special Servicer shall:

 

(i)           permit the Trust to enter into, renew or extend any New Lease with respect to any REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;

 

 -257-

 

 

(ii)          permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;

  

(iii)         authorize or permit any construction on any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

 

(iv)         Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate, any REO Property on any date more than ninety (90) days after its acquisition date;

 

unless, in any such case, the applicable Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code at any time that it is held for the benefit of the Trust, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel.

 

(c)          Each Special Servicer shall contract with any Independent Contractor for the operation and management of any REO Property within ninety (90) days of the acquisition date thereof, provided that:

 

(i)           the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;

 

(ii)          the fees of such Independent Contractor (which shall be an expense of the Trust) shall be reasonable and customary in light of the nature and locality of the Mortgaged Property;

 

(iii)         any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in subsection (a) hereof, and (B) remit all related revenues collected (net of its fees and such costs and expenses) to the applicable Special Servicer upon receipt;

 

(iv)         none of the provisions of this Section 3.15(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and

 

(v)          each Special Servicer shall be obligated to manage and supervise such Independent Contractor in accordance with the Servicing Standard.

 

Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder

 

 -258-

 

 

for indemnification of the applicable Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.

 

(d)          When and as necessary, each Special Servicer shall send to the Trustee, the Certificate Administrator and the applicable Master Servicer a statement prepared by such Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Sections 3.15(a) and 3.15(b).

 

Section 3.16         Sale of Defaulted Loans and REO Properties. (a) (i) Within thirty (30) days after a Defaulted Loan has become a Specially Serviced Loan, the applicable Special Servicer shall order (but shall not be required to have received) an Appraisal and within thirty (30) days of receipt of the Appraisal shall determine the fair value of such Defaulted Loan in accordance with the Servicing Standard; provided, however, that if the applicable Special Servicer is then in the process of obtaining an Appraisal with respect to the related Mortgaged Property, such Special Servicer shall make its fair value determination as soon as reasonably practicable (but in any event within thirty (30) days) after its receipt of such an Appraisal. The applicable Special Servicer may, from time to time, adjust its fair value determination based upon changed circumstances, new information and other relevant factors, in each instance in accordance with a review of such circumstances and new information in accordance with the Servicing Standard including, without limitation, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy; provided that the applicable Special Servicer shall promptly notify the applicable Master Servicer in writing of the initial fair value determination and any adjustment to its fair value determination.

 

(ii)          If any Mortgage Loan or Serviced Companion Loan subject to an Intercreditor Agreement is a Specially Serviced Loan or to the extent otherwise required pursuant to the terms of the related Intercreditor Agreement, then the applicable Special Servicer (with respect to a Specially Serviced Loan) or the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) shall promptly notify in writing the other, any related Companion Holder and any related mezzanine lender, as applicable, of any events requiring notice under the Intercreditor Agreement in accordance with the terms thereof. Thereafter, any related Companion Holder and related mezzanine lender, as applicable, will, notwithstanding anything in this Section 3.16 to the contrary, have the option to purchase the related Mortgage Loan and cure defaults relating thereto as and to the extent set forth in the related Intercreditor Agreement.

 

(iii)         If any Mortgage Loan not subject to an Intercreditor Agreement becomes a Specially Serviced Loan, or if the related Companion Holder or related mezzanine lender, as applicable, for any such Mortgage Loan subject to an Intercreditor Agreement has not previously exercised the option to purchase the Mortgage Loan pursuant to the previous paragraph, the applicable Special Servicer shall use reasonable efforts to solicit offers for each Defaulted Loan on behalf of the Certificateholders and the holder of any related Serviced Companion Loan in such manner as will be reasonably likely to maximize the value of the Defaulted Loan on a net present value basis, if and when the applicable Special

 

 -259-

 

 

Servicer determines, consistent with the Servicing Standard, that no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and, if applicable, the related Companion Holder. In the case of a Non-Serviced Mortgage Loan, to the extent permitted under the related Intercreditor Agreement, and such Non-Serviced Mortgage Loan is not sold together with the Non-Serviced Companion Loan by the Non-Serviced Special Servicer, the applicable Special Servicer will be entitled to sell ((i) with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing and (ii) after consulting with the Risk Retention Consultation Party pursuant to Section 6.08(a), in each case, provided such Non-Serviced Mortgage Loan is not an Excluded Loan as to such party) such Non-Serviced Mortgage Loan if it determines in accordance with the Servicing Standard that such action would be in the best interests of the Certificateholders and, subject to the terms of the related Intercreditor Agreement (and provided that the related Non-Serviced Special Servicer shall not be entitled to such liquidation fee), the applicable Special Servicer shall be entitled to the liquidation fee that the related Non-Serviced Special Servicer would have otherwise been entitled to in connection with the sale of such Non-Serviced Mortgage Loan. Each Special Servicer is required to give the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor and the Directing Certificateholder (but only prior to the occurrence and continuance of a Consultation Termination Event), the Subordinate Companion Holder with respect to any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than in respect of any Excluded Loan as to such party) not less than ten (10) days’ prior written notice of its intention to sell any Defaulted Loan. In the absence of a cash offer at least equal to the Purchase Price, the applicable Special Servicer may purchase the Defaulted Loan for the Purchase Price or may accept the first cash offer received from any Person that constitutes a fair price for the Defaulted Loan.

 

(iv)   (A)    In the case of a Specially Serviced Loan as to which a default has occurred and is continuing, in the absence of any offer at least equal to the Purchase Price pursuant to clause (iii) above (or purchase by the applicable Special Servicer for such price), the applicable Special Servicer shall solicit offers and, subject to sub-clause (B) below, accept the highest offer received from any Person that is determined by such Special Servicer to be a fair price for such Specially Serviced Loan, if the offeror is a Person other than an Interested Person. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any Defaulted Loan, the applicable Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), among other factors, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. If the offeror is an Interested Person (provided that the Trustee may not be an offeror), the Trustee shall determine whether the offer constitutes a fair price unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (x) it is the highest offer received and (y) at least two (2) other offers are received from independent

 

 -260-

 

 

third parties. In determining whether any offer received from an Interested Person represents a fair price for any such Defaulted Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the applicable Master Servicer.

 

Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee shall (at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan or Serviced Whole Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan or Serviced Whole Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable by, the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. The applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Specially Serviced Loan.

 

(B)         The applicable Special Servicer will not be obligated to accept the highest offer if such Special Servicer determines (in consultation with the Directing Certificateholder (unless a Consultation Termination Event has occurred and is continuing) and the Risk Retention Consultation Party subject, in each case, to the limitations on consultation set forth in and in accordance with Section 6.08(a) and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) and, in the case of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder, in accordance with the Servicing Standard (and subject to the requirements of any related Intercreditor Agreement), that the rejection of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender (and, with respect to any Serviced AB Whole Loan, taking into account the subordinate nature of the related AB Subordinate Companion Loan)). In addition, the applicable Special Servicer may accept a lower offer from any Person other than an Affiliate of such Special Servicer

 

 -261-

 

 

if it determines, in accordance with the Servicing Standard, that the acceptance of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender (and, with respect to any Serviced AB Whole Loan, taking into account the subordinate nature of the related AB Subordinate Companion Loan)) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer. The applicable Special Servicer shall use reasonable efforts to sell all Defaulted Loans prior to the Rated Final Distribution Date. For the avoidance of doubt, the Trustee shall have no obligation to make any fair value determination, to the extent required to do so pursuant to this Section 3.16, on the basis of anything other than the related Appraisal.

 

(C)         In connection with any such sale involving a Serviced AB Whole Loan, the applicable Special Servicer shall have the right (if permitted by the related Intercreditor Agreement), but not the obligation, to sell the related AB Subordinate Companion Loan if such Special Servicer determines that such sale is in accordance with the Servicing Standard (taking into account the subordinate nature of the applicable AB Subordinate Companion Loan).

 

(v)          Unless and until any Specially Serviced Loan is sold pursuant to this Section 3.16(a), the applicable Special Servicer shall pursue such other resolution strategies with respect to such Specially Serviced Loan, including, without limitation, workout and foreclosure, as the applicable Special Servicer may deem appropriate, consistent with the Asset Status Report and the Servicing Standard and the REMIC Provisions.

 

(b)          (i)The applicable Special Servicer may purchase any REO Property at the Purchase Price therefor (in the case of a Serviced Whole Loan, such purchase shall be a purchase of the entire REO Property, including the portion relating to the related Companion Loan). The applicable Special Servicer may also offer to sell to any Person any REO Property (in the case of a Serviced Whole Loan, such sale shall be a sale of the entire REO Property, including the portion relating to the related Companion Loan), if and when the applicable Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interest of the Trust and the related Companion Holders. Each Special Servicer shall give the Trustee, the applicable Master Servicer, each Companion Holder, the Certificate Administrator and the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, in respect of any Mortgage Loan other than an Excluded Loan as to such party and prior to the occurrence and continuance of a Consultation Termination Event) not less than ten (10) days’ prior written notice of its intention to (x) purchase any REO Property at the Purchase Price therefor or (y) sell any REO Property, in which case such Special Servicer shall accept the highest offer received from any Person for any REO Property in an amount at least equal to the Purchase Price therefor. To the extent permitted

 

 -262-

 

 

by applicable law, and subject to the Servicing Standard, the applicable Master Servicer, an Affiliate of the applicable Master Servicer, the applicable Special Servicer or an Affiliate of such Special Servicer, or an employee of either of them may act as broker in connection with the sale of any REO Property and may retain from the proceeds of such sale a brokerage commission that does not exceed the commission that would have been earned by an independent broker pursuant to a brokerage agreement entered into at arm’s length.

 

(A)         In the absence of any such offer as set forth in clause (i) above, the applicable Special Servicer shall, subject to sub-clause (C) below, accept the highest offer for such REO Property received from any Person that is determined to be a fair price (1) by such Special Servicer, if the highest offeror is a Person other than an Interested Person, or (2) by the Trustee, if the highest offeror is an Interested Person unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received; provided, however, that absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (A) it is the highest offer received and (B) at least two (2) other offers are received from independent third parties. Notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any REO Property pursuant hereto.

 

(B)         No Special Servicer shall be obligated by either of the foregoing paragraphs or otherwise to accept the highest offer if such Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the subordinate or pari passu nature of any Serviced Companion Loans). In addition, such Special Servicer may accept a lower offer if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the subordinate or pari passu nature of any Serviced Companion Loans) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer.

 

(C)         In determining whether any offer received from an Interested Person represents a fair price for any REO Property, the Trustee shall obtain and may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee in connection with making such determination. The reasonable cost of such Independent appraiser or other Independent expert shall be an expense of the offering Interested Person purchaser. The reasonable fees and costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the applicable Special

 

 -263-

 

 

Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. In determining whether any offer constitutes a fair price for any REO Property, the applicable Special Servicer or the Trustee (or, if applicable, such appraiser) shall take into account, and any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the physical condition of such REO Property, the state of the local economy and the Trust’s obligation to comply with REMIC Provisions.

 

(ii)          Subject to the Servicing Standard, the applicable Special Servicer shall act on behalf of the Trust and the related Companion Holders in negotiating and taking any other action necessary or appropriate in connection with the sale of any REO Property, including the collection of all amounts payable in connection therewith. A sale of any REO Property shall be without recourse to, or representation or warranty by, the Trustee, the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Operating Advisor or the Trust (except that any contract of sale and assignment and conveyance documents may contain customary warranties of title, so long as the only recourse for breach thereof is to the Trust) and, if consummated in accordance with the terms of this Agreement, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Certificate Administrator, the Operating Advisor and the Trustee shall have no liability to the Trust or any Certificateholder or related Companion Holder (if applicable) with respect to the purchase price therefor accepted by the applicable Special Servicer or the Trustee.

 

(c)          Any sale of a Defaulted Loan or any REO Property shall be for cash only (unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration).

 

(d)          With respect to each Serviced Whole Loan, pursuant to the terms of the related Intercreditor Agreement and this Agreement, if the related Serviced Whole Loan becomes a Defaulted Loan, and if the applicable Special Servicer determines to sell the related Mortgage Loan that has become a Defaulted Loan in accordance with this Section 3.16, then the applicable Special Servicer shall sell the related Serviced Pari Passu Companion Loans (and, to the extent permitted by the related Intercreditor Agreement, the related AB Subordinate Companion Loans) together with such Mortgage Loan as one whole loan and shall require that all offers be submitted to such Special Servicer in writing. To the extent a determination is required to be made hereunder as to whether any cash offer constitutes a fair price for a Serviced Whole Loan, such determination shall be made by the applicable Special Servicer unless the offeror is an Interested Person and by the Trustee if the offeror is an Interested Person and the offer is less than the Purchase Price. Notwithstanding the foregoing, the applicable Special Servicer will not be permitted to sell the related Mortgage Loan together with the related Serviced Pari Passu Companion Loan(s) if it becomes a defaulted Whole Loan without the written consent of the holder of the related Serviced Pari Passu Companion Loan (provided that such consent is not required if the holder of the

 

 -264-

 

 

Serviced Pari Passu Companion Loan is the Mortgagor or an Affiliate of the Mortgagor) unless the applicable Special Servicer has delivered to the holder of the related Serviced Pari Passu Companion Loan: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell such Serviced Whole Loan; (b) at least ten (10) days prior to the permitted sale date, a copy of each bid package (together with any amendments to such bid packages) received by the applicable Special Servicer in connection with any such proposed sale; (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for such Serviced Whole Loan, and any documents in the servicing file reasonably requested by the holder of the related Serviced Pari Passu Companion Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Directing Certificateholder and the Risk Retention Consultation Party) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the applicable Master Servicer or the applicable Special Servicer in connection with the proposed sale. In connection with any such sale involving any Serviced AB Whole Loan, the applicable Special Servicer will also have the right (subject to the related Intercreditor Agreement), but not the obligation, to sell the related Subordinate Companion Loan if such Special Servicer determines that such sale is in accordance with the Servicing Standard (taking into account the subordinate nature of the applicable Subordinate Companion Loan). The holder of the related Serviced Pari Passu Companion Loan (or its representative) will be permitted to submit an offer at any sale of such Whole Loan; however, the related Mortgagor and its agents and Affiliates shall not be permitted to submit an offer at such sale. Notwithstanding the foregoing, with respect to each Serviced Whole Loan, the holder of the related Companion Loan may waive any of the delivery or timing requirements set forth in this paragraph with respect to the related Whole Loan. If the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. The Trustee shall act in a commercially reasonable manner in making such determination. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person.

 

(e)          (i) Notwithstanding anything in this Section 3.16 to the contrary, pursuant to the terms of the related Intercreditor Agreement, the holder of the related AB Subordinate Companion Loan for each applicable Serviced AB Whole Loan will have the right to purchase the related Mortgage Loan or related REO Property, as applicable. Such right of the holder of the AB Subordinate Companion Loan shall be given priority over any provision described in this Section 3.16 as and to the extent set forth in the related Intercreditor Agreement. If the related Mortgage Loan or related REO Property is purchased by the holder of such AB Subordinate

 

 -265-

 

 

Companion Loan, repurchased by the applicable Mortgage Loan Seller or otherwise ceases to be subject to this Agreement, the related AB Subordinate Companion Loan will no longer be subject to this Agreement.

 

(ii)          Notwithstanding anything in this Section 3.16 to the contrary, any mezzanine lender will have the right to purchase the related Mortgage Loan or REO Property, as applicable, and cure defaults relating thereto, as and to the extent set forth in the related Intercreditor Agreement.

 

(f)           Unless otherwise provided in an Intercreditor Agreement the sale of any Mortgage Loan pursuant to this Section 3.16 will be on a servicing released basis.

 

(g)          In the event the applicable Master Servicer or the applicable Special Servicer has the right to purchase any Companion Loan on behalf of the Trust pursuant to the related Intercreditor Agreement, neither such Master Servicer nor such Special Servicer shall exercise such right.

 

Section 3.17         Additional Obligations of Master Servicers and Special Servicers. (a) Each Master Servicer shall deliver all Compensating Interest Payments with respect to the Mortgage Loans for which it acts as Master Servicer (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account on each P&I Advance Date, without any right of reimbursement therefor. Each Master Servicer shall deliver the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan to the Companion Paying Agent for deposit in the Companion Distribution Account on each P&I Advance Date, without any right of reimbursement therefor.

 

(b)          Each Master Servicer or each Special Servicer, as applicable, shall provide to each Companion Holder any reports or notices required to be delivered to such Companion Holder pursuant to the related Intercreditor Agreement.

 

(c)          Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Mortgage Loans deposited in the applicable Collection Account and available for distribution on the next Distribution Date, the applicable Master Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the one month collection period ending on the then-current Determination Date, for successive one month periods for a total period not to exceed twelve (12) months (provided that, other than in the case of an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, any such deferral exceeding six (6) months shall require, prior to the occurrence and continuance of any Control Termination Event, the consent of the Directing Certificateholder), and any election to so defer or not to defer shall be deemed to be in accordance with the Servicing Standard. If the applicable Master Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement with respect to all or a

 

 -266-

 

 

portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent collection period (subject, again, to the same sole option to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from principal collections as described above prior to payment from other collections). In connection with a potential election by the applicable Master Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the applicable Master Servicer or the Trustee shall further be authorized to wait for principal collections on the Mortgage Loans serviced by such Master Servicer to be received until the end of such Collection Period before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof; provided, however, that if, at any time the applicable Master Servicer or the Trustee, as applicable, elects, in its sole discretion, not to refrain from obtaining such reimbursement or otherwise determines that the reimbursement of a Nonrecoverable Advance during a Collection Period will exceed the full amount of the principal portion of general collections on or in respect of Mortgage Loans deposited in the applicable Collection Account for such Distribution Date, then the applicable Master Servicer or the Trustee, as applicable, shall use its reasonable efforts to give the 17g-5 Information Provider fifteen (15) days’ notice of such determination for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), unless extraordinary circumstances make such notice impractical, which shall mean that (i) the applicable Master Servicer or the Trustee, as the case may be, determines in its sole discretion that waiting fifteen (15) days after such a notice could jeopardize its ability to recover such Nonrecoverable Advance, (ii) changed circumstances or new or different information becomes known to the applicable Master Servicer or the Trustee, as the case may be, that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance or whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (i) above, or (iii) in the case of the applicable Master Servicer, it has not timely received from the Trustee information required by the applicable Master Servicer to determine whether to defer reimbursement for a Nonrecoverable Advance. If any of the circumstances described in clause (i), (ii) or (iii) of the foregoing sentence apply, the applicable Master Servicer or Trustee, as applicable, shall give the 17g-5 Information Provider a notice for posting of the anticipated reimbursement as soon as reasonably practicable. Notwithstanding the foregoing, failure to give notice as required by the preceding or second preceding sentence shall in no way affect the applicable Master Servicer’s or the Trustee’s election whether to refrain from obtaining such reimbursement or right to obtain such reimbursement as described in this Section 3.17(c). Nothing herein shall give the applicable Master Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable Advance to the extent of any principal collections then available in the applicable Collection Account pursuant to Section 3.05(a)(v). The applicable Master Servicer or the Trustee, as the case may be, shall have no liability for any loss, liability or expenses resulting from any notice provided to the Rating Agencies contemplated by this Section 3.17(c).

 

The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this Section 3.17 or to comply with the terms of this Section 3.17 and the other provisions of this Agreement that apply once such an election, if any, has been made; provided, however, that the fact that a decision to recover such Nonrecoverable Advances over time, or not to do so, benefits some classes of Certificateholders to the detriment of other classes

 

 -267-

 

 

shall not, with respect to the applicable Master Servicer or the applicable Special Servicer, as applicable, constitute a violation of the Servicing Standard and/or with respect to the Trustee (solely in its capacity as Trustee), constitute a violation of any fiduciary duty to Certificateholders or any contractual obligation hereunder. If the applicable Master Servicer or the Trustee, as the case may be, determines, in its sole discretion, to fully recover the Nonrecoverable Advances immediately instead of deferring such reimbursement, then such Master Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Reimbursement Rate from all amounts in the applicable Collection Account for such Distribution Date (deemed first from principal and then from interest). Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more collection periods shall not limit the accrual of interest at the Reimbursement Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The applicable Master Servicer’s or the Trustee’s, as the case may be, agreement to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and shall not be construed as an obligation on the part of such Master Servicer or the Trustee, as applicable, or a right of the Certificateholders. Nothing herein shall be deemed to create in the Certificateholders a right to prior payment of distributions over such Master Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise) and accrued interest thereon. In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be in accordance with the Servicing Standard and none of the applicable Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any of the Companion Holders for any such election that such party makes as contemplated by this Section 3.17 or for any losses, damages or other adverse economic or other effects that may arise from such an election, nor shall such election constitute a violation of the Servicing Standard or any duty under this Agreement. Neither the applicable Master Servicer nor the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this Section 3.17(c).

 

No determination by a Master Servicer (or the Trustee, as applicable) to exercise its sole option to defer the reimbursement of Advances and/or interest thereon under this section shall be construed as an agreement by the applicable Master Servicer (or the Trustee, as applicable) to subordinate (in respect of realizing losses), to any Class of Certificates, such party’s right to such reimbursement during such period of deferral.

 

With respect to any modification or amendment of any Intercreditor Agreement related to a Serviced Whole Loan (to the extent received), the applicable Master Servicer or the applicable Special Servicer, as applicable, shall provide to the 17g-5 Information Provider a copy of any such modification or amendment, which the 17g-5 Information Provider shall promptly post on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

(d)          With respect to any Mortgage Loan (or Serviced Whole Loan), if the related loan documents permit the lender to (but do not require the lender to), at its option, prior to an event of default under the related Mortgage Loan (or Serviced Whole Loan), apply amounts held in any reserve account as a prepayment or hold such amounts in a reserve account, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may not apply such amounts

 

 -268-

 

 

as a prepayment, and will instead continue to hold such amounts in the applicable reserve account, unless not applying those amounts as a prepayment would be a violation of the Servicing Standard. Such amount may be used, if permitted under the loan documents, to defease the loan, or may be used to prepay the Mortgage Loan (or Serviced Whole Loan), or for other purpose consistent with the Servicing Standard and the loan documents, upon a subsequent default.

 

(e)          Within one (1) Business Day after the execution of any amendment or modification of any Intercreditor Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall provide to the Certificate Administrator a copy of any such modification or amendment of any Intercreditor Agreement, and such amendment or modification shall be a Reportable Event.

 

Section 3.18         Modifications, Waivers, Amendments and Consents. (a)The applicable Special Servicer shall process waivers, modifications, amendments and consents with respect to Specially Serviced Loans and all such matters that involve a Major Decision for all Serviced Mortgage Loans (and any related Serviced Companion Loan), and the applicable Master Servicer shall process waivers, modifications, amendments and consents with respect to any Serviced Mortgage Loan and any related Serviced Companion Loan that, in either case, is not a Specially Serviced Loan and does not involve a Major Decision. The applicable Master Servicer and applicable Special Servicer may mutually agree that a modification, waiver, amendment or consent that constitutes a Major Decision shall be processed by the applicable Master Servicer, subject to the applicable Special Servicer’s consent. Except as set forth in Section 3.08(a), Section 3.08(b), this Section 3.18(a), Section 3.18(d), Section 3.18(h), Section 3.18(i), Section 3.18(m) and Section 6.08, but subject to any other conditions set forth thereunder and, with respect to any Serviced Mortgage Loan or any Serviced Whole Loan (and with respect to any Serviced Whole Loan, subject to the rights of the related Companion Holder, as applicable, to advise or consult with the applicable Master Servicer or applicable Special Servicer with respect to, or to consent to, a modification, waiver or amendment, in each case, pursuant to the terms of the related Intercreditor Agreement), the applicable Special Servicer shall not modify, waive or amend the terms of a Mortgage Loan and/or related Companion Loan (and the applicable Special Servicer shall not consent to any such modification, waiver or amendment by the applicable Master Servicer) that would constitute a Major Decision without (x) (i) prior to the occurrence of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained by the applicable Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a) or (y) (i) after the occurrence and during the continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, but prior to the occurrence and continuance of a Consultation Termination Event, the applicable Special Servicer having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a); and provided, further, that no extension entered into pursuant to this Section 3.18(a) shall extend the Maturity Date beyond the earlier of (i) five (5) years prior to the Rated Final Distribution Date and (ii) in the case of a Mortgage Loan secured solely or primarily by a leasehold estate and not also the related fee interest, the date twenty (20) years or, to the extent consistent with the Servicing Standard giving due consideration to the remaining term of the Ground Lease, ten (10) years, prior to the expiration of such leasehold estate. If such extension would extend the Maturity Date of such Mortgage Loan and/or related Companion Loan for more than twelve (12) months from and

 

 -269-

 

 

after the original Maturity Date of such Mortgage Loan and/or related Companion Loan and such Mortgage Loan and/or related Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, prior to any such extension, (1) the applicable Special Servicer shall provide the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor, the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party), with an Opinion of Counsel (at the expense of the related Mortgagor to the extent permitted under the Mortgage Loan documents and, if not required or permitted to be paid by the Mortgagor, to be paid as an expense of the Trust in accordance with Section 3.11(d)) that such extension would not constitute a “significant modification” of the Mortgage Loan and/or Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (2) subject to the Servicing Standard, (x) prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the applicable Special Servicer shall obtain the consent (or deemed consent) of the Directing Certificateholder, (y) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, consult with the Directing Certificateholder and (z) (i) prior to the occurrence and continuance of a Consultation Termination Event, with respect to any Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party and (ii) after the occurrence and during the continuance of a Consultation Termination Event, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, consult with the Risk Retention Consultation Party, in each case, pursuant to the process described in Section 6.08(a).

 

Notwithstanding the foregoing, subject to the rights of the related Companion Holder to advise the applicable Master Servicer with respect to, or consent to, such modification, waiver or amendment pursuant to the terms of the related Intercreditor Agreement, the applicable Master Servicer, with respect to Non-Specially Serviced Loans, without the consent of the applicable Special Servicer or the Directing Certificateholder, may modify or amend the terms of any Non-Specially Serviced Loan and/or related Serviced Companion Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error; provided that, if the Mortgage Loan (other than any Non-Serviced Mortgage Loan) and/or related Serviced Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, such modification or amendment would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

 

Any fees or other charges charged by the applicable Special Servicer in connection with processing any Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan (in the aggregate with each other such Payment Accommodation with respect to such Mortgage Loan or Serviced Whole Loan), in each case as a result of the COVID-19 emergency, shall not exceed an amount equal to 0.30% of the Stated Principal Balance of such Mortgage Loan or Serviced Whole Loan (“COVID Forbearance Fees”) (excluding attorneys’ fees and third party expenses) and shall only be borne by the borrower, not the Trust.

 

 -270-

 

 

Subject to Section 6.08, applicable law and the Mortgage Loan and/or related Serviced Companion Loan documents, neither the applicable Master Servicer nor the applicable Special Servicer shall permit the substitution of any Mortgaged Property (or any portion thereof) for one or more other parcels of real property at any time the Mortgage Loan and/or related Serviced Companion Loan is not in default pursuant to the terms of the related Mortgage Loan and/or related Serviced Companion Loan documents or default with respect thereto is not reasonably foreseeable unless (i) the applicable Master Servicer or the applicable Special Servicer, as the case may be, obtains Rating Agency Confirmation from each Rating Agency (and delivers such Rating Agency Confirmation to the Directing Certificateholder and the Risk Retention Consultation Party, if permitted by the applicable Rating Agency) and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (ii) such substitution would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event (and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may obtain and rely upon an Opinion of Counsel (at the expense of the related Mortgagor if not prohibited by the terms of the related Mortgage Loan documents, and if so prohibited, at the expense of the Trust) with respect thereto).

 

Upon receiving a request for any matter described in this Section 3.18(a) that constitutes a Major Decision with respect to a Serviced Mortgage Loan, the applicable Master Servicer shall forward such request to the applicable Special Servicer and, unless the applicable Master Servicer and the applicable Special Servicer mutually agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and, except as provided in the next sentence, such Master Servicer shall have no further obligation with respect to such request or the Major Decision. With respect to such request, the applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in the applicable Master Servicer’s possession to the applicable Special Servicer that is requested by the applicable Special Servicer relating to such Major Decision. The applicable Master Servicer shall not be required to interface with the Mortgagor or provide a written recommendation and/or analysis with respect to any Major Decision. If the applicable Master Servicer and the applicable Special Servicer mutually agree that such Master Servicer will (subject to the consent (or deemed consent) of such Special Servicer) process a request with respect to a Major Decision and such Master Servicer is recommending approval of such request, such Master Servicer will prepare and submit its written analysis and recommendation to such Special Servicer with all information in the possession of such Master Servicer that such Special Servicer may reasonably request in order to withhold or grant its consent, and in all cases such Special Servicer will be entitled (subject to any applicable consultation rights of the Operating Advisor or any applicable consent or consultation rights of the Directing Certificateholder or any applicable consultation rights of any related Companion Holders) to approve or disapprove any modification, waiver, amendment or other action that constitutes a Major Decision. In addition, the applicable Master Servicer shall provide the applicable Special Servicer with any notice that it receives relating to a default by the Mortgagor under a Ground Lease where the collateral for the Mortgage Loan is the Ground Lease, and such

 

 -271-

 

 

Special Servicer will determine in accordance with the Servicing Standard whether the Trust as lender should cure any Mortgagor defaults relating to Ground Leases. Any costs relating to any such cure of a Mortgagor default relating to a Ground Lease shall be paid by the applicable Master Servicer as a Servicing Advance.

 

Neither the Master Servicer nor the Special Servicer shall enter into, or structure (including, without limitation, by way of the application of credits, discounts, forgiveness or otherwise), any modification, waiver, amendment, work-out, consent or approval with respect to a Mortgage Loan in a manner that would have the effect of placing amounts payable as compensation, or otherwise reimbursable, to such Master Servicer or Special Servicer in a higher priority than the allocation and payment priorities set forth in Section 3.02(b) or in the related Intercreditor Agreement.

 

(b)          If the applicable Special Servicer determines that a modification, waiver or amendment (including, without limitation, the forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the Mortgage Loan (other than any Non-Serviced Mortgage Loan) and/or related Serviced Companion Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Specially Serviced Loan with respect to which a payment default or other material default has occurred or a payment default or other material default is, in the applicable Special Servicer’s judgment, reasonably foreseeable (as evidenced by an Officer’s Certificate of such Special Servicer), is reasonably likely to produce a greater (or equivalent) recovery on a net present value basis (the relevant discounting to be performed at the related Mortgage Rate) to the Trust and, if applicable, the Companion Holders, as the holders of the related Serviced Companion Loan, than liquidation of such Specially Serviced Loan, then the applicable Special Servicer may agree to a modification, waiver or amendment of such Specially Serviced Loan, subject to (w) the provisions of this Section 3.18(b) and Section 3.18(c), (x) (a) the approval of the Directing Certificateholder with respect to any Major Decision, with respect to any Mortgage Loan other than any Excluded Loan as to such party (prior to the occurrence and continuance of a Control Termination Event or after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, upon consultation with the Directing Certificateholder) as provided in Section 6.08, and (b) with respect to any Major Decision in respect of a Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, upon consultation with the Risk Retention Consultation Party as provided in Section 6.08, and (y) with respect to any Serviced AB Whole Loan, any rights of the related Subordinate Companion Holder to consent to such modification, waiver or amendment and (z) additionally, with respect to a Serviced Whole Loan, the rights of the related Serviced Companion Noteholder or with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) with mezzanine debt, the rights of the related mezzanine lender, to advise or consult with the applicable Special Servicer with respect to, or consent to, such modification, waiver or amendment, in each case, pursuant to the terms of the related Intercreditor Agreement or mezzanine intercreditor agreement, as applicable; provided that with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, the consent of, or consultation with, the related Serviced AB Whole Loan Controlling Holder will be required to the extent set forth in the related Intercreditor Agreement and the Directing Certificateholder shall have no consent or consultation rights, and the Risk Retention Consultation Party shall have no consultation rights, regarding the matter; provided, further, that in the case of any release or substitution of collateral

 

 -272-

 

 

(other than a defeasance), the applicable Special Servicer shall have obtained an Opinion of Counsel that such release or substitution would not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

In connection with (i) the release of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property from the lien of the related Mortgage or (ii) the taking of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property by exercise of the power of eminent domain or condemnation, if the related Mortgage Loan documents require the applicable Master Servicer or the applicable Special Servicer, as the case may be, to calculate (or to approve the calculation of the related Mortgagor of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation shall, unless then permitted by the REMIC Provisions, exclude the value of personal property and going concern value, if any, as determined by an appropriate third party.

 

If, following any such release or taking, the loan-to-value ratio as calculated is greater than 125%, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall require payment of principal by a “qualified amount” as determined under Revenue Procedure 2010-30 or successor provisions, unless the related Mortgagor provides an Opinion of Counsel that if such amount is not paid, the related Mortgage Loan will not fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code.

 

The applicable Special Servicer shall use its reasonable efforts to the extent possible to cause each Specially Serviced Loan to fully amortize prior to the Rated Final Distribution Date and shall not agree to a modification, waiver or amendment of any term of any Specially Serviced Loan for which it is acting as special servicer if such modification, waiver or amendment would (1) extend the maturity date of any such Specially Serviced Loan to a date occurring later than the earlier of (a) five (5) years prior to the Rated Final Distribution Date and (b) if such Specially Serviced Loan is secured solely or primarily by a leasehold estate and not also the related fee interest, the date occurring twenty (20) years or, to the extent consistent with the Servicing Standard giving due consideration to the remaining term of the ground lease and (A) prior to the occurrence and continuance of a Control Termination Event, with the consent of the Directing Certificateholder and (B) to the extent such modification, waiver or amendment constitutes a Major Decision, after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a), (in each case, other than with respect to a Mortgage Loan that is an Excluded Loan as to such party), ten (10) years prior to the expiration of such leasehold estate (including any options to extend such leasehold estate exercisable unilaterally by the related Mortgagor), or

 

 -273-

 

 

 (2) provide for the deferral of interest unless interest accrues on the related Mortgage Loan, or Serviced Whole Loan generally at the related Mortgage Rate.

 

(c)          Any provision of this Section 3.18 to the contrary notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default or default with respect thereto is reasonably foreseeable, no fee described in this Section 3.18 shall be collected by any Master Servicer or any Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan or Companion Loan, as applicable (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).

 

(d)          To the extent consistent with this Agreement (including, without limitation, the first sentence of Section 3.18(a), and Section 6.08), the applicable Master Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18 if such matter constitutes a Master Servicer Decision) or the applicable Special Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18(a) if any such waiver, modification or amendment constitutes a Major Decision or relates to a Specially Serviced Loan) may, consistent with the Servicing Standard, agree to any waiver, modification or amendment of a Mortgage Loan and/or Serviced Companion Loan that is not in default or as to which default is not reasonably foreseeable only if the contemplated waiver, modification or amendment (i) will not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not cause an Adverse REMIC Event. In making this determination, the Master Servicer or the Special Servicer may obtain and rely upon (and shall provide to the Trustee and the Certificate Administrator if obtained) an Opinion of Counsel (at the expense of the related Mortgagor or such other Person requesting such modification or, if such expense cannot be collected from the related Mortgagor or such other Person, to be paid out of the Collection Account pursuant to Section 3.05(a); provided that the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use its reasonable efforts to collect such fee from the Mortgagor or such other Person to the extent permitted under the related Mortgage Loan documents). Notwithstanding the foregoing, neither the applicable Master Servicer nor the applicable Special Servicer may waive the payment of any Prepayment Premium or Yield Maintenance Charge or the requirement that any prepayment of a Mortgage Loan be made on a Due Date, or if not made on a Due Date, be accompanied by all interest that would be due on the next Due Date with respect to any Mortgage Loan or Serviced Companion Loan that is not a Specially Serviced Loan.

 

(e)          Subject to Section 3.18(c), the applicable Master Servicer and the applicable Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification (including extensions), waiver or indulgence or any other matter or thing, the granting of which is within such Master Servicer’s or such Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan or Companion Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to such Master Servicer or such Special Servicer, as the case may be, as additional servicing compensation, a reasonable or customary fee, for the additional services performed in connection with such request; provided that the charging of such fee is not a “significant

 

 -274-

 

 

modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

 

(f)           All modifications (including extensions), waivers and amendments of the Mortgage Loans and/or Companion Loans entered into pursuant to this Section 3.18 shall be in writing, signed by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and the related Mortgagor (and by any guarantor of the related Mortgage Loan, if such guarantor’s signature is required by the applicable Special Servicer in accordance with the Servicing Standard).

 

(g)          With respect to any modification, waiver or amendment for which it is responsible for processing pursuant to this Section 3.18, the applicable Special Servicer shall deliver written notice thereof to the applicable Master Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder, other than following the occurrence and continuance of a Consultation Termination Event, and in the case of the Directing Certificateholder or the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party), the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB Subordinate Companion Loan, an AB Control Appraisal Period has occurred, if applicable), the related Mortgage Loan Seller (if such Mortgage Loan Seller is not the Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or the Risk Retention Consultation Party) and the 17g-5 Information Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) in writing of any modification, waiver or amendment (in each case, after it is finalized and executed) of any term of any Mortgage Loan or Companion Loan that is modified, waived or amended and the date thereof. With respect to any modification, waiver or amendment (in each case, after it is finalized and executed) for which it is responsible for processing pursuant to this Section 3.18, the applicable Master Servicer shall provide written notice of any such modification, waiver or amendment to the Trustee, the Certificate Administrator, the applicable Special Servicer (and the applicable Special Servicer shall forward such notice to the Directing Certificateholder (in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to an Excluded Loan as to such party) and the Risk Retention Consultation Party (in the case of the Risk Retention Consultation Party, other than with respect to an Excluded Loan as to such party)), the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB Subordinate Companion Loan, an AB Control Appraisal Period has occurred, if applicable) and the related Mortgage Loan Seller (so long as such Mortgage Loan Seller is not the Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or Risk Retention Consultation Party) and the 17g-5 Information Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). The party responsible for delivering notice shall deliver to the Custodian with a copy to the applicable Master Servicer (if such notice is being delivered by the applicable Special Servicer) for deposit in the related Mortgage File, an original counterpart of the agreement relating

 

 -275-

 

 

to such modification, waiver or amendment, promptly (and in any event within ten (10) Business Days) following the execution thereof, with a copy to the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement), if any. Following receipt of the applicable Master Servicer’s or the applicable Special Servicer’s, as the case may be, delivery of the aforesaid modification, waiver or amendment to the Certificate Administrator, the Certificate Administrator shall forward a copy thereof to each Holder of a Certificate (other than the Class R Certificates). With respect to the processing of any modification, waiver or consent related to any Mortgagor incurring additional debt or mezzanine debt, the applicable Special Servicer (if such Special Servicer processes such modification, waiver or consent pursuant to Section 3.18(a)) or the applicable Master Servicer (if such Master Servicer processes such modification, waiver or consent pursuant to Sections 3.18(a) and (m)) shall, on or before the later of (i) 3:00 p.m. on the related P&I Advance Date and (ii) five (5) Business Days immediately following the applicable Master Servicer or the applicable Special Servicer, as the case may be, obtaining actual knowledge of the incurrence of such additional debt or mezzanine debt, deliver notice of the Mortgagor’s incurrence of such debt, substantially in the form of Exhibit JJ, to cts.sec.notifications@wellsfargo.com and an Additional Disclosure Notification in the form attached hereto as Exhibit DD. The notice contemplated in the preceding sentence shall set forth, to the extent the applicable Special Servicer or the applicable Master Servicer, as the case may be, has the requisite information or can reasonably obtain such information, (1) the amount of additional debt that was incurred in the related Collection Period, (2) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and additional debt, and (3) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and additional debt. In the event that either (i) the CREFC^® Investor Reporting Package is amended to include such information set forth above, in a manner reasonably acceptable to the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator, as applicable, and such Master Servicer confirms with the Certificate Administrator that such amended CREFC^® Investor Reporting Package enables the Certificate Administrator to include such information on Form 10-D in a manner reasonably acceptable to the Certificate Administrator, or (ii) the Trust is no longer subject to the Exchange Act, the additional report in the form of Exhibit JJ shall no longer be required hereunder. From time to time, the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator may agree on a different delivery time and format for the information set forth in this paragraph.

 

(h)          Subject to the consent rights and processes set forth in Section 6.08 with respect to Major Decisions, each Master Servicer shall process all defeasance transactions for the Mortgage Loans for which it acts as Master Servicer and shall be entitled to all defeasance fees paid related thereto (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that any Special Servicer is entitled to under this Agreement). Notwithstanding the foregoing, such Master Servicer shall not permit (or, with regard to any Non-Serviced Mortgage Loan, take any act in furtherance of) the substitution of any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole Loan unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)(ii) and such Master Servicer has received (i) replacement collateral consisting of government securities within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), which satisfies the requirements of the applicable Mortgage Loan documents, in an amount sufficient to make all scheduled payments under the related Mortgage

 

 -276-

 

 

Loan (or defeased portion thereof) when due, (ii) a certificate of an Independent certified public accountant to the effect that such substituted property will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on such Mortgage Loan or Serviced Whole Loan in compliance with the requirements of the terms of the related Mortgage Loan documents and, if applicable, Companion Loan documents, (iii) one or more Opinions of Counsel (at the expense of the related Mortgagor) to the effect that the Trustee, on behalf of the Trust, will have a first priority perfected security interest in such substituted Mortgaged Property; provided, however, that, to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the related Mortgagor shall pay the cost of any such opinion as a condition to granting such defeasance, (iv) to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the Mortgagor shall establish a single purpose entity to act as a successor mortgagor, if so required by the Rating Agencies, (v) to the extent permissible under the related Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall use its reasonable efforts to require the related Mortgagor to pay all costs of such defeasance, including but not limited to the cost of maintaining any successor mortgagor, and (vi) to the extent permissible under the Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall obtain, at the expense of the related Mortgagor, Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided, further, however, that no such confirmation from any Rating Agency shall be required to the extent that the applicable Master Servicer has delivered a defeasance certificate substantially in the form of Exhibit U hereto for any Mortgage Loan that (together with any Mortgage Loans cross-collateralized with such Mortgage Loans) is: (i) a Mortgage Loan with a Cut-off Date Balance less than $35,000,000, (ii) a Mortgage Loan that represents less than 5% of the aggregate Cut-off Date Balance of all Mortgage Loans, and (iii) a Mortgage Loan that is not one of the ten (10) largest Mortgage Loans by Stated Principal Balance. Notwithstanding the foregoing, in the event that requiring the Mortgagor to pay for the items specified in clauses (ii), (iv) and (v) in the preceding sentence would be inconsistent with the related Mortgage Loan documents, such reasonable costs shall be paid by the related Mortgage Loan Seller as and to the extent set forth in the applicable Mortgage Loan Purchase Agreement.

 

(i)           Notwithstanding anything herein or in the related Mortgage Loan documents and, if applicable, Companion Loan documents, to the contrary, the applicable Master Servicer may permit the substitution of “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) for any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole Loan, as applicable (or any portion thereof), in lieu of the defeasance collateral specified in the related Mortgage Loan documents or Serviced Whole Loan documents, as applicable; provided that such substitution is consistent with the Servicing Standard and the applicable Master Servicer reasonably determines that allowing their use would not cause a default or event of default to become reasonably foreseeable and the applicable Master Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the extent permitted under the Mortgage Loan documents and, if applicable or Companion Loan documents or

 

 -277-

 

 

otherwise as a Trust Fund expense) to the effect that such use would not be and would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any Trust REMIC; and provided, further, that the requirements set forth in Section 3.18(h) (including receipt of any Rating Agency Confirmation) are satisfied; and provided, further, that such securities are backed by the full faith and credit of the United States government, or the applicable Master Servicer shall obtain Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

Notwithstanding the foregoing, with respect to (i) all of the Mortgage Loans originated or acquired by Bank of America, National Association that are subject to defeasance and (ii) all of the Mortgage Loans originated or acquired by Morgan Stanley Mortgage Capital Holdings LLC that are subject to defeasance, each of Bank of America, National Association and Morgan Stanley Mortgage Capital Holdings LLC, as applicable, has transferred to a third party or has retained on behalf of itself or an Affiliate the right to establish or designate the successor borrower and/or to purchase or cause to be purchased the related defeasance collateral, in each case as set forth in the related Mortgage Loan Purchase Agreement (any such right or obligation, the “Retained Defeasance Rights and Obligations”). In the event the General Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller, which such Mortgage Loan provides for Retained Defeasance Rights and Obligations in the related Mortgage Loan documents, the Master Servicer shall provide, within five (5) Business Days of receipt of such notice, written notice of such defeasance request to Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, in the case of any such Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller. Until such time as Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, provides the Master Servicer with written notice to the contrary, the notice of a defeasance of a Mortgage Loan with Retained Defeasance Rights and Obligations as to which (i) Bank of America, National Association is the related Mortgage Loan Seller shall be delivered to Bank of America, National Association, One Bryant Park, Mail Code: NY-100-11-07, New York, New York 10036, Attention: Director of CMBS Securitization, email: leland.f.bunch@bofa.com, with copies to Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255, Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director, email: todd.stillerman@bofa.com and cmbsnotices@bofa.com, and Joshua J. Yablonski, Katten Muchin Rosenman LLP, 550 South Tryon Street, Suite 2900, Charlotte, North Carolina 28202, email: joshua.yablonski@katten.com or (ii) Morgan Stanley Mortgage Capital Holdings LLC is the related Mortgage Loan Seller shall be delivered to Morgan Stanley Mortgage Capital Holdings LLC, 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Mortgage Capital Holdings LLC, 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division, and a copy by email to cmbs_notices@morganstanley.com). With respect to any Mortgage Loan originated or acquired

 

 -278-

 

 

by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, that is subject to defeasance, if the successor borrower is not designated or formed by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as the case may be, or any Affiliate or successor thereto, the successor borrower shall be reasonably acceptable to the applicable Master Servicer in accordance with the Servicing Standard.

 

(j)           If required under the related Mortgage Loan or Companion Loan documents or if otherwise consistent with the Servicing Standard, the applicable Master Servicer shall establish and maintain one or more accounts (the “Defeasance Accounts”), which shall be Eligible Accounts, into which all payments received by such Master Servicer from any defeasance collateral substituted for any Mortgaged Property shall be deposited and retained, and shall administer such Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan documents. Notwithstanding the foregoing, in no event shall the applicable Master Servicer permit such amounts to be maintained in the Defeasance Account for a period in excess of ninety (90) days, unless such amounts are reinvested by such Master Servicer in “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii). To the extent not required or permitted to be placed in a separate account, the applicable Master Servicer shall deposit all payments received by it from defeasance collateral substituted for any Mortgaged Property into the applicable Collection Account and treat any such payments as payments made on the Mortgage Loan or Companion Loan in advance of its Due Date in accordance with clause (a)(i) of the definition of “Aggregate Available Funds” and not as a prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer permit such amounts to be maintained in the applicable Collection Account for a period in excess of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in the case of a leap year).

 

(k)          Notwithstanding anything to the contrary in this Agreement, neither the applicable Master Servicer nor the applicable Special Servicer, as the case may be, shall, unless it has received Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) (the cost of which shall be paid by the related Mortgagor, if so allowed by the terms of the related loan documents and otherwise paid out of general collections) grant or accept any consent, approval or direction regarding the termination of the related property manager or the designation of any replacement property manager, with respect to any Mortgaged Property that secures a Mortgage Loan that (i) is one of the ten (10) largest Mortgage Loans a by Stated Principal Balance or (ii) has an unpaid principal balance that is at least equal to 5% of the then-aggregate principal balance of all Mortgage Loans or $35,000,000.

 

(l)           Notwithstanding anything to the contrary in this Agreement, in connection with any modification, waiver, consent or amendment in connection with any release of collateral securing any Mortgage Loan in connection with a defeasance of such collateral, the applicable Special Servicer shall not approve any such modification, waiver or amendment or consent thereto without first having received a copy of an Opinion of Counsel addressed to such Special Servicer

 

 -279-

 

 

and the applicable Master Servicer that such modification, waiver, consent or amendment will not cause an Adverse REMIC Event to the extent the Special Servicer determines in its reasonable good faith business judgment consistent with the Servicing Standard that such Opinion of Counsel is reasonably necessary.

 

In addition to the foregoing, the applicable Special Servicer shall be allowed to grant a forbearance only if (i) prior to September 30, 2021 (or prior to such later date as may be provided by the Internal Revenue Service in any future guidance), the period of forbearance granted, when added to any prior periods of forbearance granted before or after the Trust acquired such Mortgage Loan (whether or not such prior grants of forbearance were covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12 and any future guidance)), does not exceed six (6) months (or such longer period of time as may be allowed by future guidance that is binding on federal income tax authorities) or the applicable forbearance program pursuant to which the related forbearance was granted is otherwise identical or similar to those described in Section 2.07 of Revenue Procedure 2020-26 and such forbearance is covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12 and any future guidance), (ii) such forbearance is permitted under another provision of this Agreement and the requirements under such provision are satisfied, or (iii) an Opinion of Counsel is delivered to the effect that such forbearance will not result in an Adverse REMIC Event.

 

(m)         Notwithstanding any other provisions of this Section 3.18 or Section 3.08, but subject to any related Intercreditor Agreement, the applicable Master Servicer may, without any Directing Certificateholder approval, consent or consultation (except as otherwise provided below in the definition of Master Servicer Decision), Risk Retention Consultation Party consultation or the applicable Special Servicer’s approval, consent or consultation take any of the following actions with respect to Mortgage Loans that are not Specially Serviced Loans and any related Serviced Companion Loans (each such action, a “Master Servicer Decision”): (i) grant waivers of non-material covenant defaults (other than financial covenants) including late (but not waived) financial statements (except that, other than with respect to any NCB Co-op Mortgage Loan or any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder’s consent (or deemed consent) shall be required to grant waivers of more than three (3) consecutive late deliveries of financial statements); (ii) consents to releases of non-material, non-income producing parcels of a Mortgaged Property that do not materially affect the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the Mortgage Loan as and when due, provided such releases are required by the related Mortgage Loan documents; (iii) approve or consent to grants of easements or rights of way (including, without limitation, for utilities, access, parking, public improvements or another purpose) or subordination of the lien of the Mortgage Loan to easements except that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required to approve or consent to grants of easements or rights of way that materially affect the use or value of a Mortgaged Property or a Mortgagor’s ability to make payments with respect to the related Mortgage Loan or any related Companion Loan; (iv) grant routine approvals, including granting of subordination, non-disturbance and attornment agreements and consents involving leasing activities, including approval of new leases and

 

 -280-

 

 

amendments to current leases (other than for ground leases) (provided that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required for leasing activities that affect an area greater than or equal to the lesser of (1) 30% of the net rentable area of the improvements at the Mortgaged Property or (2) 30,000 square feet of the improvements at the Mortgaged Property), including approval of new leases and amendments to current leases; (v) consent to actions and releases related to condemnation of parcels of a Mortgaged Property (provided that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required in connection with any condemnation with respect to a material parcel or a material income producing parcel or any condemnation that materially affects the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or any related Companion Loan when due); (vi) consent to a change in property management relating to any Mortgage Loan or any related Companion Loan if the replacement property manager is not a Borrower Party (provided that, prior to the occurrence and continuance of any Control Termination Event, and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and other than any NCB Co-op Mortgage Loan, the Directing Certificateholder’s consent (or deemed consent) shall be required for any Mortgage Loan (including any related Companion Loans) that has an outstanding principal balance equal to or greater than $10,000,000); (vii) approve annual operating budgets for Mortgage Loans; (viii) consent to any releases or reductions of or withdrawals from (as applicable) any letters of credit, escrow funds, reserve funds or other additional collateral with respect to any Mortgage Loan, except that (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and prior to the occurrence and continuance of a Control Termination Event and other than with respect to any NCB Co-op Mortgage Loan) the Directing Certificateholder’s consent (or deemed consent) shall be required for earnout or performance reserve releases with respect to the letters of credit, escrow funds, reserve funds and other additional collateral listed on Schedule 3; (ix) grant any extension or enter into any forbearance with respect to the anticipated refinancing of a Mortgage Loan or sale of a Mortgaged Property after the related Maturity Date of such Mortgage Loan so long as (A) such extension or forbearance does not extend beyond 120 days after the related Maturity Date and (B) the related Mortgagor, on or before the related Maturity Date, has delivered documentation reasonably satisfactory in form and substance to the applicable Master Servicer, which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days after the date on which such Balloon Payment will become due; (x) any modification, amendment, consent to a modification or waiver of any term of any Intercreditor Agreement, except that (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class and other than amendments to split or resize notes consistent with the terms of such Intercreditor Agreement) the Directing Certificateholder’s consent (or deemed consent) shall be required for any such modification to an Intercreditor Agreement other than during a Control Termination Event, and if any such modification or amendment would adversely impact the applicable Special Servicer, such modification or amendment will additionally require the consent of such Special Servicer as a condition to its effectiveness; (xi) any

 

 -281-

 

 

determination of an Acceptable Insurance Default, except that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required in accordance with this Agreement for any such determination; (xii) approve or consent to any defeasance of the related Mortgage Loan or Serviced Companion Loan other than agreeing to (A) a modification of the type of defeasance collateral required under the Mortgage Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the Mortgage Loan documents do not otherwise permit such principal prepayment; (xiii) any assumption of the Mortgage Loan or transfer of the Mortgaged Property, in each case, that the Mortgage Loan documents allow without the consent of the lender but subject to satisfaction of conditions specified in the Mortgage Loan documents where no lender discretion is necessary in order to determine if such conditions are satisfied; (xiv) with respect to NCB Co-op Mortgage Loans, consent to the related Mortgagor incurring subordinate debt secured by the related Mortgaged Property, subject to the satisfaction of the Co-op Subordinate Debt Conditions with respect to such subordinate debt; and (xv) grant or agree to any other waiver, modification, amendment and/or consent that does not constitute a Major Decision; provided that (w) any such action would not in any way affect a payment term of the Certificates, (x) any such action would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes (as evidenced by an Opinion of Counsel (at the expense of the Trust to the extent not reimbursed or paid by the related Mortgagor), to the extent requesting such opinion is consistent with the Servicing Standard), (y) agreeing to such action would be consistent with the Servicing Standard, and (z) agreeing to such action would not violate the terms, provisions or limitations of this Agreement or any Intercreditor Agreement; provided, further, that, with respect to any Serviced AB Whole Loan prior to the occurrence of a Control Appraisal Period with regard to such Serviced AB Whole Loan, the foregoing matters shall not include (and Master Servicer Decision shall not include) any action that constitutes a “major decision” under the related Intercreditor Agreement. In the case of any Master Servicer Decision that requires the consent of the Directing Certificateholder, such consent shall be deemed given if a response to the request for consent is not provided within ten (10) Business Days, plus, if applicable, an additional time period provided under the related Intercreditor Agreement, after receipt of the applicable Master Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to such Master Servicer in order to grant or withhold such consent. The foregoing is intended to be an itemization of actions the Master Servicers may take without having to obtain the approval of any other party and is not intended to limit the responsibilities of the Master Servicers hereunder.

 

(n)          No Master Servicer or Special Servicer shall modify any Mortgage Loan into an AB Modified Loan unless the documents evidencing such modification provide that all payments on the junior or “B” portion of such AB Modified Loan (including interest, principal and other amounts) shall only be payable after the point in time at which all interest and principal on the senior or “A” portion of such AB Modified Loan shall have been paid in full and such senior or “A” portion shall no longer be outstanding; provided, however, that interest and other amounts in respect of such junior or “B” portion may accrue prior to such point in time.

 

 -282-

 

 

Section 3.19         Transfer of Servicing Between Master Servicers and Special Servicers; Recordkeeping; Asset Status Report. (a) Upon determining that a Servicing Transfer Event has occurred with respect to any Serviced Mortgage Loan or Serviced Companion Loan, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall promptly give notice to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Operating Advisor and the Directing Certificateholder (in the case of the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) thereof, and the applicable Master Servicer shall deliver the related Mortgage File and Servicing File to the applicable Special Servicer and concurrently provide a copy of such Servicing File, exclusive of all Privileged Communications, to the Operating Advisor. The applicable Master Servicer shall use its reasonable efforts to provide the applicable Special Servicer with all documents and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to such Mortgage Loan and, if applicable, the related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise available to such Master Servicer without undue burden or expense, and reasonably requested by the applicable Special Servicer to enable it to assume its functions hereunder with respect thereto. Such Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each related Servicing Transfer Event (or, in the case of clauses (iii), (iv), (viii) or (ix) of the definition of Servicing Transfer Event, within five (5) Business Days of receiving notice from the applicable Special Servicer of such Servicing Transfer Event when such Special Servicer makes the determination) and in any event shall continue to act as Master Servicer and administrator of such Mortgage Loan and, if applicable, the related Serviced Companion Loan until such Special Servicer has commenced the servicing of such Mortgage Loan and, if applicable, the related Serviced Companion Loan. The applicable Master Servicer shall deliver to the Trustee, the Certificate Administrator, the Operating Advisor, the Directing Certificateholder (with respect to the Directing Certificateholder (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party), a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer to the applicable Special Servicer, or by the applicable Special Servicer to the applicable Master Servicer, pursuant to this Section 3.19. Prior to the occurrence and continuance of a Consultation Termination Event, the Certificate Administrator shall deliver to each Controlling Class Certificateholder a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer pursuant to this Section 3.19.

 

Upon determining that a Specially Serviced Loan (other than an REO Loan) has become current and has remained current for three (3) consecutive Periodic Payments (provided that (i) no additional Servicing Transfer Event is foreseeable in the reasonable judgment of the applicable Special Servicer, and (ii) for such purposes taking into account any modification or amendment of such Mortgage Loan and, if applicable, the related Companion Loan), and that no other Servicing Transfer Event is continuing with respect thereto, the applicable Special Servicer shall immediately give notice thereof to the applicable Master Servicer, the Operating Advisor, the related Serviced Companion Noteholder (unless with respect to an AB Subordinate Companion Loan an AB Control Appraisal Period is in effect) and the Directing Certificateholder (with respect to the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) and shall return the related Mortgage File and Servicing File to the applicable Master Servicer (or

 

 -283-

 

 

copies thereof if copies only were delivered to the applicable Special Servicer) and upon giving such notice, and returning such Mortgage File and Servicing File to such Master Servicer, such Special Servicer’s obligation to service such Corrected Loan shall terminate and the obligations of such Master Servicer to service and administer such Mortgage Loan and, if applicable, the related Companion Loan shall recommence.

 

(b)          In servicing any Specially Serviced Loans and Serviced Companion Loans, the applicable Special Servicer will provide to the Custodian originals of documents included within the definition of “Mortgage File” for inclusion in the related Mortgage File to the extent within its possession (with a copy of each such original to the applicable Master Servicer), and provide the applicable Master Servicer with copies of any additional related Mortgage Loan or Serviced Companion Loan information including correspondence with the related Mortgagor.

 

(c)          Notwithstanding the provisions of Section 3.12(c), the applicable Master Servicer shall maintain ongoing payment records with respect to each of the Specially Serviced Loans, Serviced Companion Loans and REO Properties (other than with respect to a Non-Serviced Mortgage Loan) and shall provide the applicable Special Servicer with any information in its possession with respect to such records to enable such Special Servicer to perform its duties under this Agreement; provided that this statement shall not be construed to require such Master Servicer to produce any additional reports.

 

(d)          No later than sixty (60) days after a Servicing Transfer Event for a Serviced Mortgage Loan and, if applicable, the related Companion Loan, the applicable Special Servicer shall deliver in electronic format a report (the “Asset Status Report”) with respect to such Mortgage Loan and related Companion Loan, if applicable, and the related Mortgaged Property to the applicable Master Servicer, the Directing Certificateholder (but with respect to the Directing Certificateholder, only in respect of any Mortgage Loan other than (A) any Excluded Loan as to such party or (B) any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, and in any event prior to the occurrence and continuance of a Consultation Termination Event), any related Subordinate Companion Holder if an AB Control Appraisal Period is not in effect with respect to any Serviced AB Whole Loan, the Risk Retention Consultation Party (but only with respect to any Mortgage Loan other than an Excluded Loan as to such party), the Operating Advisor (but, other than with respect to an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, only after the occurrence and during the continuance of a Control Termination Event and, with respect to any Serviced AB Whole Loan, only to the extent that such Whole Loan is subject to an AB Control Appraisal Period) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) and, with respect to any related Serviced Companion Loan, to the related Companion Holder or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer of such Other Securitization into which the related Serviced Companion Loan has been sold; the applicable Special Servicer shall also deliver a summary of each Final Asset Status Report to the Certificate Administrator and the Certificate Administrator shall post the summary of the Final Asset Status Report to the Certificate Administrator’s Website. Each Final Asset Status Report shall be labeled or otherwise identified or communicated as being final by the applicable Special Servicer. For the avoidance of doubt, no Master Servicer shall make any Asset Status Reports available to any Certificateholders on its website. None of the parties to this Agreement

 

 -284-

 

 

shall provide any Asset Status Report or any Final Asset Status Report to the Certificate Administrator. The applicable Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Certificateholder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the applicable Special Servicer. Further, the Certificate Administrator shall not request any Asset Status Report or Final Asset Status Report from any Master Servicer. Such Asset Status Report shall set forth the following information to the extent reasonably determinable based on the information that was delivered to the applicable Special Servicer in connection with the transfer of servicing pursuant to the Servicing Transfer Event:

 

(i)           a summary of the status of such Specially Serviced Loan and any negotiations with the related Mortgagor;

 

(ii)          a discussion of the legal and environmental considerations reasonably known to the applicable Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the related Mortgage Loan (and any related Serviced Companion Loan) and whether outside legal counsel has been retained;

 

(iii)         the most current rent roll (or with respect to residential cooperative properties, maintenance schedule), and income or operating statement available for the related Mortgaged Property;

 

(iv)         (A) the applicable Special Servicer’s recommendations on how such Specially Serviced Loan might be returned to performing status (including the modification of a monetary term, and any workout, restructure or debt forgiveness) and returned to the applicable Master Servicer for regular servicing or otherwise realized upon (including any proposed sale of a Defaulted Loan or REO Property), (B) a description of any such proposed or taken actions, and (C) the alternative courses of action that were or are being considered by the applicable Special Servicer in connection with the proposed or taken actions;

 

(v)          the status of any foreclosure actions or other proceedings undertaken with respect to such Specially Serviced Loan, any proposed workouts and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Whole Loan;

 

(vi)         a description of any amendment, modification or waiver of a material term of any ground lease (or any space lease or air rights lease, if applicable) or franchise agreement;

 

(vii)        the decision that the applicable Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth such Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives;

 

 -285-

 

 

(viii)       an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the applicable Special Servicer made such determination and (y) the net present value calculation and all related assumptions;

 

(ix)         the appraised value of the related Mortgaged Property (and a copy of the last obtained Appraisal of such Mortgaged Property) together with a description of any adjustments to the valuation of such Mortgaged Property made by the applicable Special Servicer together with an explanation of those adjustments; and

 

(x)          such other information as the applicable Special Servicer deems relevant in light of the Servicing Standard.

 

If within ten (10) Business Days of receiving an Asset Status Report, the Directing Certificateholder does not disapprove such Asset Status Report in writing or if the applicable Special Servicer makes a determination, in accordance with the Servicing Standard that the disapproval by the Directing Certificateholder (communicated to the applicable Special Servicer within ten (10) Business Days) is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), the applicable Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the applicable Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan documents. If, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder disapproves such Asset Status Report within ten (10) Business Days of receipt and the applicable Special Servicer has not made the affirmative determination described above, the applicable Special Servicer shall revise such Asset Status Report and deliver a new Asset Status Report as soon as practicable, but in no event later than thirty (30) days after such disapproval, to the applicable Master Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event and, in the case of a Serviced AB Whole Loan, only prior to the occurrence and continuance of a Consultation Termination Event and if an AB Control Appraisal Period is in effect with respect to the related AB Subordinate Companion Loan), the Operating Advisor (but only after the occurrence and during the continuance of a Control Termination Event) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the applicable Special Servicer shall revise such Asset Status Report as described above in this Section 3.19(d) until the Directing Certificateholder shall fail to disapprove such revised Asset Status Report in writing within ten (10) Business Days of receiving such revised Asset Status Report or until the applicable Special Servicer makes a determination, in accordance with the Servicing Standard, that the disapproval is not in the best interests of the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan); provided that, if the Directing Certificateholder has not approved the Asset Status Report for a period of sixty (60) Business Days following the first submission of an

 

 -286-

 

 

Asset Status Report, the applicable Special Servicer, prior to the occurrence and continuance of a Control Termination Event, shall act pursuant to the Directing Certificateholder’s direction, if consistent with the Servicing Standard, and after the occurrence and continuance of a Control Termination Event, may act upon the most recently submitted form of Asset Status Report, if consistent with the Servicing Standard; provided, however, that such Asset Status Report does not, and is not intended to be, a substitute for the approvals that are specifically required pursuant to Section 6.08. Each Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report; provided that such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.19(d). Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with an Asset Status Report for an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class that includes a Major Decision and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

No direction or disapproval of the Directing Certificateholder hereunder or under a related Intercreditor Agreement or failure of the Directing Certificateholder to consent to or approve (including any deemed consents or approvals) any request of the applicable Special Servicer, shall (a) require or cause the applicable Special Servicer to violate the terms of a Specially Serviced Loan, applicable law or any provision of this Agreement, including the applicable Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, or (b) result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or (c) expose the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Operating Advisor, the Mortgage Loan Sellers, the Trust, the Trustee, the Certificate Administrator or their respective officers, directors, members, employees or agents to any claim, suit or liability or (d) materially expand the scope of the applicable Special Servicer’s, the Trustee’s or the applicable Master Servicer’s responsibilities under this Agreement.

 

Prior to the occurrence and continuance of a Control Termination Event, the applicable Special Servicer shall deliver each Final Asset Status Report to the Operating Advisor promptly following the approval or deemed approval of the Directing Certificateholder.

 

If a Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, if both a Control Termination Event has occurred and is continuing and an AB Control Appraisal Period is in effect), the applicable Special Servicer shall promptly deliver each Asset Status Report prepared in connection with a Specially Serviced Loan to the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)). The Operating Advisor shall provide comments to the applicable Special Servicer in respect of the Asset Status Report, if any, within ten (10) Business Days following the later of (i) receipt of such Asset Status Report or (ii) receipt of such additional information reasonably requested by the Operating Advisor related thereto, and propose possible alternative courses of action to the extent it determines such alternatives to be in the best interest of the Certificateholders

 

 -287-

 

 

(including any Certificateholders that are holders of the Control Eligible Certificates), as a collective whole. The applicable Special Servicer shall consider such alternative courses of action and any other feedback provided by the Operating Advisor (and the Directing Certificateholder (in each case, if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party or a Non-Serviced Mortgage Loan)) in connection with the applicable Special Servicer’s preparation of any Asset Status Report. The applicable Special Servicer may revise the Asset Status Report as it deems necessary to take into account any input and/or comments from the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)), to the extent the applicable Special Servicer determines that the Operating Advisor’s and/or Directing Certificateholder’s input and/or recommendations are consistent with the Servicing Standard and in the best interest of the Certificateholders as a collective whole (or, with respect to a Serviced Whole Loan, the best interest of the Certificateholders and the holders of the related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of such Companion Loan)). Promptly upon determining whether or not to revise any Asset Status Report to take into account any input and/or comments from the Operating Advisor or the Directing Certificateholder, the applicable Special Servicer shall revise the Asset Status Report, if applicable, and deliver to the Operating Advisor and the Directing Certificateholder the revised Asset Status Report (until a Final Asset Status Report is issued).

 

After the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), the Directing Certificateholder shall have no right to consent to any Asset Status Report under this Section 3.19. After the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder (except with respect to any Excluded Loan as to such party or any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect) and the Operating Advisor shall consult with the applicable Special Servicer and propose alternative courses of action and provide other feedback in respect of any Asset Status Report. The Directing Certificateholder (other than in its capacity as a Certificateholder) (in each case, after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan as to such party)), shall have no right to receive any Asset Status Report or otherwise consult with the applicable Special Servicer with respect to Asset Status Reports and the applicable Special Servicer shall only be obligated to consult with the Operating Advisor with respect to any Asset Status Report as described above. The applicable Special Servicer may choose to revise the Asset Status Report as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of the Operating Advisor or the Directing Certificateholder during the applicable periods described above, but is under no obligation to follow any particular recommendation of the Operating Advisor or the Directing Certificateholder.

 

Notwithstanding the foregoing, if an AB Control Appraisal Period is not in effect with respect to an AB Subordinate Companion Loan, the applicable Special Servicer shall prepare an Asset Status Report for any Serviced AB Whole Loan, upon it becoming a Specially Serviced Loan pursuant to this Agreement and the related Intercreditor Agreement, but the Directing Certificateholder will have no approval rights over any such Asset Status Report, and the consent

 

 -288-

 

 

or approval rights with respect to such Asset Status Report shall be as set forth in the related Intercreditor Agreement. 

The consent and consultation rights of the Directing Certificateholder, the Risk Retention Consultation Party and the Operating Advisor with respect to Asset Status Reports are subject to the provisions of Section 6.08.

 

(e)          (i)Upon receiving notice of the occurrence of the events described in clause (iv) or (ix) of the definition of Servicing Transfer Event (without regard to the 60-day period set forth therein), the applicable Master Servicer shall with reasonable promptness give notice thereof, and shall use its reasonable efforts to provide the applicable Special Servicer with all information relating to the Mortgage Loan or Serviced Companion Loan and reasonably requested by such Special Servicer to enable it to negotiate with the related Mortgagor. The applicable Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each such event.

 

(ii)     After the occurrence and during the continuance of a Control Termination Event, upon receiving notice of the occurrence of an event described in clause (iv) or (ix) of the definition of Servicing Transfer Event (without regard to the 60-day period set forth therein), the applicable Master Servicer shall deliver notice thereof to the Operating Advisor at the same time such notice is provided to the applicable Special Servicer pursuant to clause (i) above.

 

(f)           Prior to the occurrence and continuance of a Control Termination Event, no later than two (2) Business Days following the establishment of a Final Asset Status Report with respect to any Specially Serviced Loan, the applicable Special Servicer shall deliver in electronic format to the Directing Certificateholder (other than with respect to any Excluded Loan as to such party) a draft notice that will include a draft summary of the Final Asset Status Report (which briefly summarizes such Final Asset Status Report, but shall not include any Privileged Information) (and shall deliver each Asset Status Report with respect to a Serviced AB Mortgage Loan if an AB Control Appraisal Period is not in effect (to the extent approved by the related AB Whole Loan Controlling Holder), to the Directing Certificateholder). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, if, prior to the occurrence and continuance of a Control Termination Event, within five (5) Business Days of receipt of such draft summary, the Directing Certificateholder approves of, or does not disapprove of such draft summary, then the applicable Special Servicer shall deliver in electronic format such notice and summary of the Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b). If the Directing Certificateholder affirmatively disapproves of such summary in writing, then within two (2) Business Days of receipt of such disapproval, the applicable Special Servicer shall revise the summary and deliver such new summary to the Directing Certificateholder until the Directing Certificateholder approves such draft summary; provided, however, that if the Directing Certificateholder has not approved of the draft summary of the Final Asset Status Report within twenty (20) Business Days of receipt of the initial draft summary of the Final Asset Status Report, then the most recent draft summary of the Final Asset Status Report delivered by the applicable Special Servicer prior to such twentieth (20th) Business Day shall be deemed to be the final summary of the Final Asset Status Report; provided, further,

 

 -289-

 

 

however, that if at any time the applicable Special Servicer determines that any affirmative disapproval of such draft summary by the Directing Certificateholder is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), pursuant to the Servicing Standard, the applicable Special Servicer shall deliver in electronic format such notice and summary of the Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b) notwithstanding such disapproval. The applicable Special Servicer shall promptly deliver (but in any event no later than two (2) Business Days following its completion) a copy of each Final Asset Status Report to the Operating Advisor. The applicable Special Servicer shall prepare a summary of any Final Asset Status Report related to any Serviced AB Whole Loan for which the related holder of an AB Subordinate Companion Loan is not subject to an AB Control Appraisal Period, which Final Asset Status Report has been approved or deemed approved by the holder of the related AB Subordinate Companion Loan in accordance with the related Intercreditor Agreement (to the extent such Intercreditor Agreement requires such approval or deemed approval), and deliver in electronic format notice of such Final Asset Status Report and the summary of such Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b).

 

(g)          No provision of this Section 3.19 shall require a Special Servicer to take or to refrain from taking any action because of any proposal, objection or comment by the Operating Advisor or a recommendation of the Operating Advisor.

 

Section 3.20         Sub-Servicing Agreements. (a) Each Master Servicer and each Special Servicer may enter into Sub-Servicing Agreements to provide for the performance by third parties of any or all of its respective obligations hereunder; provided that the Sub-Servicing Agreement as amended or modified: (i) is consistent with this Agreement in all material respects and requires the Sub-Servicer to comply with all of the applicable conditions of this Agreement; (ii) provides that if the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall for any reason no longer act in such capacity hereunder (including, without limitation, by reason of a Servicer Termination Event), the Trustee or its designee shall thereupon assume all of the rights and, except to the extent they arose prior to the date of assumption, obligations of such party under such agreement, or, alternatively, may act in accordance with Section 7.02 under the circumstances described therein (subject to Section 3.20(g)); (iii) provides that the Trustee (for the benefit of the Certificateholders and the related Companion Holder (if applicable)) and the Trustee (as holder of the Lower-Tier Regular Interests) shall be a third party beneficiary under such Sub-Servicing Agreement, but that (except to the extent the Trustee or its designee assumes the obligations of such party thereunder as contemplated by the immediately preceding clause (ii)) none of the Trust, the Trustee, the Operating Advisor, the Certificate Administrator, any Master Servicer or any Special Servicer, as applicable, (other than the applicable Master Servicer or applicable Special Servicer that enters into such Sub-Servicing Agreement) any successor master servicer or successor special servicer or any Certificateholder (or the related Companion Holder, if applicable) shall have any duties under such Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its option and without penalty; provided, however, that the Initial Sub-Servicing Agreements may only be terminated by the Trustee or its designees as contemplated

 

 -290-

 

 

by Section 3.20(g) and in such additional manner and by such other Persons as is provided in such Sub-Servicing Agreement; (v) does not permit the Sub-Servicer any direct rights of indemnification that may be satisfied out of assets of the Trust except through the applicable Master Servicer or the applicable Special Servicer, as the case may be, if and only to the extent provided pursuant to Section 6.04; (vi) does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, is permitted hereunder to modify such Mortgage Loan; (vii) does not permit the Sub-Servicer to take any action constituting a Major Decision without the consent of the applicable Master Servicer or the applicable Special Servicer, as applicable (which consent shall not be granted except in accordance with Section 6.08); (viii) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant or an Additional Servicer, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party and (ix) provides that the Sub-Servicer shall be in default under the related Sub-Servicing Agreement and such Sub-Servicing Agreement shall be terminated (following the expiration of any applicable grace period) if the Sub-Servicer fails (A) to deliver by the due date any Exchange Act reporting items required to be delivered to the applicable Master Servicer, the Certificate Administrator or the Depositor under Article XI or under the Sub-Servicing Agreement or to the applicable master servicer under any other pooling and servicing agreement that the Depositor is a party to, or (B) to perform in any material respect any of its covenants or obligations contained in the Sub-Servicing Agreement regarding creating, obtaining or delivering any Exchange Act reporting items required for any party to this Agreement to perform its obligations under Article XI or under the Exchange Act reporting items required under any other pooling and servicing agreement that the Depositor is a party to. Any successor master servicer or successor special servicer, as applicable, hereunder shall, upon becoming a successor master servicer or successor special servicer, as applicable, be assigned and may assume any Sub-Servicing Agreements from the applicable predecessor Master Servicer or Special Servicer, as the case may be (subject to Section 3.20(g)). In addition, each Sub-Servicing Agreement entered into by the applicable Master Servicer may but need not provide that the obligations of the Sub-Servicer thereunder may terminate with respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced Loan; provided, however, that the Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) that the Sub-Servicer will continue to make all Advances and calculations and prepare all reports required under the Sub-Servicing Agreement with respect to Specially Serviced Loans and continue to collect its Primary Servicing Fees as if no Servicing Transfer Event had occurred and with respect to REO Properties (and the related REO Loans) as if no REO Acquisition had occurred and to render such incidental services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for in such Sub-Servicing Agreement. The applicable Master Servicer or applicable Special Servicer, as the case may be, shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any amendments thereto and modifications thereof, entered into by it, in each case promptly upon its execution and delivery of such documents. References in this Agreement to actions taken or to be taken by the applicable Master Servicer include actions taken or to be taken by a Sub-Servicer on behalf of each Master Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) to satisfy the obligations of the applicable Master Servicer hereunder to make Advances shall be deemed to have been advanced by the

 

 -291-

 

 

applicable Master Servicer out of its own funds and, accordingly, in such event, such Advances shall be recoverable by such Sub-Servicer in the same manner and out of the same funds as if such Sub-Servicer were the applicable Master Servicer, and, for so long as they are outstanding, such Advances shall accrue interest in accordance with Section 3.03(d), such interest to be allocable between the applicable Master Servicer and such Sub-Servicer as may be provided (if at all) pursuant to the terms of the Sub-Servicing Agreement. For purposes of this Agreement, each Master Servicer shall be deemed to have received any payment when a Sub-Servicer retained by it receives such payment. The applicable Master Servicer or the applicable Special Servicer, as the case may be, shall notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Trustee and the Depositor (and such Special Servicer shall notify the Operating Advisor) in writing promptly of the appointment by it of any Sub-Servicer, except that a Master Servicer need not provide such notice as to the Initial Sub-Servicing Agreements.

 

(b)          Each Sub-Servicer shall be authorized to transact business in the state or states in which the related Mortgaged Properties it is to service are situated, if and to the extent required by applicable law to the extent necessary to ensure the enforceability of the related Mortgage Loans or the compliance with its obligations under the Sub-Servicing Agreement and the applicable Master Servicer’s obligations under this Agreement.

 

(c)          As part of its servicing activities hereunder, the applicable Master Servicer and the applicable Special Servicer for the benefit of the Trustee and the Certificateholders, shall (at no expense to the Trustee, the Certificateholders or the Trust) monitor the performance and enforce the obligations of each of its Sub-Servicers under the related Sub-Servicing Agreement, except that the applicable Master Servicer shall be required only to use reasonable efforts to cause any Initial Sub-Servicer to comply with the requirements of Article XI. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Sub-Servicing Agreements in accordance with their respective terms and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as is in accordance with the Servicing Standard. The applicable Master Servicer shall have the right to remove a Sub-Servicer retained by it pursuant to the terms of the related Sub-Servicing Agreement.

 

(d)          In the event the Trustee or its designee becomes a successor master servicer and assumes the rights and obligations of a Master Servicer under any Sub-Servicing Agreement, the applicable Master Servicer, at its expense, shall deliver to the assuming party all documents and records relating to such Sub-Servicing Agreement and the Mortgage Loans and, if applicable, the Companion Loans then being serviced thereunder and an accounting of amounts collected and held on behalf of it thereunder, and otherwise use reasonable efforts to effect the orderly and efficient transfer of the Sub-Servicing Agreement to the assuming party.

 

(e)          Notwithstanding the provisions of any Sub-Servicing Agreement and this Section 3.20, except to the extent provided in Article XI with respect to the obligations of any Sub-Servicer that is an Initial Sub-Servicer, the applicable Master Servicer shall remain obligated and responsible to the Trustee, the applicable Special Servicer, holders of the Companion Loans serviced hereunder and the Certificateholders for the performance of its obligations and duties under this Agreement in accordance with the provisions hereof to the same extent and under the same terms and conditions as if it alone were servicing and administering the Mortgage Loans for which it is responsible, and the applicable Master Servicer shall pay the fees of any Sub-Servicer

 

 -292-

 

 

thereunder as and when due from its own funds. In no event shall the Trust bear any termination fee required to be paid to any Sub-Servicer as a result of such Sub-Servicer’s termination under any Sub-Servicing Agreement.

 

(f)           The Trustee, upon the request of the applicable Master Servicer, shall furnish to any Sub-Servicer any documents necessary or appropriate to enable such Sub-Servicer to carry out its servicing and administrative duties under any Sub-Servicing Agreement.

 

(g)          Each Sub-Servicing Agreement shall provide that, in the event the Trustee or any other Person becomes a successor master servicer, the Trustee or such successor master servicer shall have the right to terminate such Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding the foregoing or any other contrary provision in this Agreement, the Trustee and any successor master servicer shall assume each Initial Sub-Servicing Agreement and (i) the Initial Sub-Servicer’s rights and obligations under the Initial Sub-Servicing Agreement shall expressly survive a termination of the applicable Master Servicer’s servicing rights under this Agreement; provided that the Initial Sub-Servicing Agreement has not been terminated in accordance with its provisions; (ii) any successor master servicer, including, without limitation, the Trustee (if it assumes the servicing obligations of the applicable Master Servicer) shall be deemed to automatically assume and agree to the then-current Initial Sub-Servicing Agreement without further action upon becoming the successor master servicer and (iii) this Agreement may not be modified in any manner which would increase the obligations or limit the rights of the Initial Sub-Servicer hereunder and/or under the Initial Sub-Servicing Agreement, without the prior written consent of the Initial Sub-Servicer (which consent shall not be unreasonably withheld).

 

(h)          With respect to Mortgage Loans subject to a Sub-Servicing Agreement with any Master Servicer, the applicable Special Servicer shall, upon request (such request to be made reasonably in advance as appropriate to the circumstances surrounding such request) of the related Sub-Servicer, reasonably cooperate in delivering reports and information, including remittance information, and affording access to information to the related Sub-Servicer that would be required to be delivered or afforded, as the case may be, to the applicable Master Servicer pursuant to the terms hereof.

 

(i)           Notwithstanding any other provision of this Agreement, no Special Servicer shall enter into any Sub-Servicing Agreement that provides for the performance by third parties of any or all of its obligations herein, without, prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the consent of the Directing Certificateholder, except to the extent necessary for the applicable Special Servicer to comply with applicable regulatory requirements.

 

Section 3.21         Interest Reserve Account.

 

(a)          On the P&I Advance Date occurring in each February or in any January that occurs in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), the Certificate Administrator, in respect of the Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account, an amount equal to one (1) day’s interest on the Stated Principal Balance of the Actual/360 Mortgage Loans as of the Distribution Date occurring

 

 -293-

 

 

in the month preceding the month in which the P&I Advance Date occurs at the related Net Mortgage Rate, to the extent a full Periodic Payment or P&I Advance is made in respect thereof (all amounts so deposited in any consecutive February and January, “Withheld Amounts”).

 

(b)          On each P&I Advance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw, from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding January (if applicable) and February, if any, and deposit such amount into the Lower-Tier REMIC Distribution Account.

 

Section 3.22         Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers. Within a reasonable time upon request from the Directing Certificateholder or the Operating Advisor, as applicable, and no more often than on a monthly basis, each applicable Master Servicer and each applicable Special Servicer shall, without charge, make a knowledgeable Servicing Officer via telephone available to verbally answer questions from (a) the Directing Certificateholder ((i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) and (b) upon the occurrence and during the continuance of any Control Termination Event, the Operating Advisor (with respect to a Special Servicer only), regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is responsible.

 

Section 3.23         Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party. (a) Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer and the Operating Advisor of the transfer of any Certificate of a Controlling Class by delivering a notice to each such Person substantially in the form of Exhibit MM attached hereto, the selection of a Directing Certificateholder or the resignation or removal thereof. The Directing Certificateholder (other than the Loan-Specific Directing Certificateholder) is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor when such Certificateholder is appointed Directing Certificateholder and when it is removed or resigns. To the extent there is only one Controlling Class Certificateholder and it is also the General Special Servicer, it shall be the Directing Certificateholder.

 

On the Closing Date, the initial Directing Certificateholder (other than the Loan-Specific Directing Certificateholder) shall execute a certification substantially in the form of Exhibit P-1G to this Agreement. Upon the resignation or removal of the existing Directing Certificateholder (other than the Loan-Specific Directing Certificateholder), any successor directing certificateholder shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1G to this Agreement prior to being recognized as the new Directing Certificateholder.

 

 -294-

 

 

On the Closing Date, the initial Risk Retention Consultation Party shall execute a certification substantially in the form of Exhibit P-1H to this Agreement. Upon the resignation or removal of the existing Risk Retention Consultation Party, any successor Risk Retention Consultation Party shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1H to this Agreement prior to being recognized as the new Risk Retention Consultation Party.

 

(b)          Once a Directing Certificateholder has been selected, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Controlling Class Certificateholders entitled to appoint such Directing Certificateholder, by Certificate Balance, or the Directing Certificateholder shall have notified the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and each other Controlling Class Certificateholder, in writing, of the resignation of such Directing Certificateholder or the selection of a new Directing Certificateholder. In the event that (i) the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee or the Operating Advisor receives written notice from a majority of the Controlling Class Certificateholders that a Directing Certificateholder is no longer designated and (ii) the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) becomes the Directing Certificateholder pursuant to the proviso of the definition of “Directing Certificateholder”, then the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or its representative) shall provide its name and address to the Certificate Administrator and notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor that it is the new Directing Certificateholder; provided that the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor shall be entitled to rely on the written notification provided by the purported Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class without independently verifying that such Controlling Class Certificateholder actually owns the largest aggregate Certificate Balance of the Controlling Class. The foregoing provisions shall not be applicable to the Directing Certificateholder that is a Loan-Specific Directing Certificateholder. Additionally, once a Risk Retention Consultation Party has been selected, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Holders of the RR Interest entitled to appoint the Risk Retention Consultation Party, by Certificate Balance, or such Risk Retention Consultation Party shall have notified each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and each other Holder of the RR Interest, in writing, of the selection of a new Risk Retention Consultation Party.

 

(c)          Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor and the Trustee shall be entitled to rely on the most recent notification with respect to the identity of the Controlling Class Certificateholder, the Directing Certificateholder and the Risk Retention Consultation Party.

 

 -295-

 

 

(d)          In the event that no Directing Certificateholder or Risk Retention Consultation Party, as applicable, has been appointed or identified to any Master Servicer or any Special Servicer, as applicable, and such Master Servicer or such Special Servicer, as the case may be, has attempted to obtain such information from the Certificate Administrator and no such entity has been identified to such Master Servicer or such Special Servicer, as applicable, then until such time as the new Directing Certificateholder or Risk Retention Consultation Party, as applicable, is identified to such Master Servicer or such Special Servicer, as applicable, such Master Servicer or such Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of the Directing Certificateholder or Risk Retention Consultation Party, as the case may be.

 

(e)          Upon request, the Certificate Administrator shall deliver to the Depositor, Trustee, each applicable Special Servicer, the Operating Advisor, each applicable Master Servicer and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, a list of each Controlling Class Certificateholder as reflected in the Certificate Register, including names and addresses. In addition to the foregoing, within five (5) Business Days of receiving notice of the selection of a new Directing Certificateholder or Risk Retention Consultation Party or the existence of a new Controlling Class Certificateholder, the Certificate Administrator shall notify the Trustee, the Operating Advisor, the applicable Master Servicer and the applicable Special Servicer. Notwithstanding the foregoing, (a) KKR Real Estate Credit Opportunity Partners II L.P. shall be the initial Directing Certificateholder and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing, provided that if such Directing Certificateholder resigns, there shall be no Directing Certificateholder until such time as one is appointed pursuant to the terms of this Agreement and the Special Servicer or any other party under this Agreement shall not be required to consent or consult with, or provide notices or documents to, such Directing Certificateholder, and (b) Morgan Stanley Mortgage Capital Holdings LLC shall be the initial Risk Retention Consultation Party and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing.

 

Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee shall be entitled to rely on the preceding sentence with respect to the identity of the Directing Certificateholder and the Risk Retention Consultation Party.

 

(f)           If the Certificate Administrator determines that a Class of Book-Entry Certificates is the Controlling Class, the Certificate Administrator shall notify the related Certificateholders of such Class (through the Depository) of the Class becoming the Controlling Class.

 

(g)          Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class or in its own interest; (iii) the Directing Certificateholder does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class (or in the case of the Loan-Specific Directing Certificateholder has no liabilities or duties to the Controlling Class or the

 

 -296-

 

 

Holders of any Class of Certificates); (iv) the Directing Certificateholder may take actions that favor interests of the Holders of one or more Classes including the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Directing Certificateholder shall have no liability whatsoever (other than to a Controlling Class Certificateholder; provided that the Loan-Specific Directing Certificateholder shall have no such liability) for having so acted as set forth in clauses (i) through (v) above, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal of the Directing Certificateholder for having so acted.

 

Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Risk Retention Consultation Party may act solely in the interests of the Holders of the RR Interest; (iii) the Risk Retention Consultation Party does not have any liability or duties to the Holders of any Class of Certificates other than the RR Interest; (iv) the Risk Retention Consultation Party may take actions that favor interests of the Holders of one or more Classes including the RR Interest over the interests of the Holders of one or more other Classes of Certificates; and (v) the Risk Retention Consultation Party shall have no liability whatsoever (other than to a Holder of an RR Interest) for having so acted as set forth in clauses (i) through (iv) above, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal of the Risk Retention Consultation Party for having so acted.

 

(h)          All requirements of each Master Servicer and each Special Servicer to provide notices, reports, statements or other information (including the access to information on a website) to the Directing Certificateholder contained in this Agreement shall also apply to each Companion Holder with respect to information relating to the related Serviced AB Mortgage Loan or a Serviced Whole Loan, as applicable; provided, however, that nothing in this subsection (h) shall in any way eliminate the obligation to deliver any information required to be delivered under the related Intercreditor Agreement.

 

(i)           Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor shall be entitled to rely on the most recent notification with respect to the identity and contact information of the Controlling Class Certificateholder, the Directing Certificateholder, the Risk Retention Consultation Party and any AB Whole Loan Controlling Holder.

 

(j)           With respect to a Serviced Whole Loan and any approval and consent rights in this Agreement with respect to such Serviced Whole Loan, the related Serviced Whole Loan Controlling Holder shall exercise such rights in accordance with the related Intercreditor Agreement.

 

(k)          The Certificate Registrar shall determine which Class of Certificates is the then-current Controlling Class within two (2) Business Days of a request from the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, Trustee, or any Certificateholder and provide such information to the requesting party.

 

 -297-

 

 

(l)       At any time that the Controlling Class Certificateholder is the Holder of a majority of the Class H Certificates and the Class H Certificates are the Controlling Class, such Controlling Class Certificateholder may waive its right (a) to appoint the Directing Certificateholder and (b) to exercise any of the Directing Certificateholder’s rights under this Agreement by irrevocable written notice delivered to the Depositor, the Certificate Administrator (which shall be via email to trustadministrationgroup@wellsfargo.com), the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor. Notwithstanding anything to the contrary contained herein, during such time as a Control Termination Event or Consultation Termination Event is in existence solely as a result of the operation of clause (ii) of the definition of Control Termination Event and clause (ii) of the definition of Consultation Termination Event, such Control Termination Event or Consultation Termination Event shall be deemed to no longer be in existence and have not occurred with respect to any unaffiliated third party to whom the Controlling Class Certificateholder that irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder has sold or transferred all or a portion of its interest in the Class H Certificates if such unaffiliated third party holds the majority of the Controlling Class after giving effect to such transfer (the “Non-Waiving Successor”). Following any such sale or transfer, the Non-Waiving Successor shall again have the rights of the Controlling Class Certificateholder as set forth herein (including the rights to appoint a Directing Certificateholder or cause the exercise of the rights of the Directing Certificateholder) without regard to any prior waiver by the predecessor Controlling Class Certificateholder. The Non-Waiving Successor shall also have the right to irrevocably waive its right to appoint the Directing Certificateholder and to exercise any of the rights of the Controlling Class Certificateholder. The Non-Waiving Successor shall also have the right to exercise any of the rights of the Controlling Class Certificateholder. No Non-Waiving Successor described above shall have any consent rights with respect to any Mortgage Loan that became a Specially Serviced Loan prior to the sale or transfer of the Class H Certificates to the Non-Waiving Successor and had not also become a Corrected Loan prior to such sale or transfer until such time as such Mortgage Loan becomes a Corrected Loan.

 

(m)       Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall (i) include on its statement made available pursuant to Section 4.02(a) of this Agreement the identity of the new Controlling Class and (ii) provide to each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor notice of such event and the identity and contact information of the new Controlling Class Certificateholder (the cost of obtaining such information from DTC being an expense of the Trust). The Certificate Administrator shall notify the Operating Advisor, each applicable Master Servicer and each applicable Special Servicer within ten (10) Business Days of the existence or cessation of (i) any Control Termination Event or (ii) any Consultation Termination Event. Upon the Certificate Administrator’s determination that a Control Termination Event or a Consultation Termination Event has occurred or is terminated, the Certificate Administrator shall, within ten (10) Business Days, post a “special notice” on the Certificate Administrator’s Website pursuant to this provision.

 

In the event that a Control Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Control Termination Event has occurred due to the reduction of the Certificate Balance of the Class H Certificates to less than 25% of the aggregate Original Certificate Balance thereof, with regard to the application of any Cumulative Appraisal Reduction Amounts.”

 

 -298-

 

  

In the event that a Consultation Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Consultation Termination Event has occurred due to the reduction of the Certificate Balance of the Class H Certificates to less than 25% of the aggregate Original Certificate Balance thereof, without regard to the application of any Cumulative Appraisal Reduction Amounts.”

 

In the event that a Control Termination Event or Consultation Termination Event has occurred pursuant to clause (ii) of the definition of each of such terms, such special notice shall state “A Control Termination Event and a Consultation Termination Event has occurred due to the irrevocable waiver by the applicable Controlling Class Certificateholder of its rights as Controlling Class Certificateholder.”

 

In the event that a Consultation Termination Event has occurred due to the reduction of each Class of Control Eligible Certificates below 25% of its Original Certificate Balance, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts, such special notice shall state: “A Consultation Termination Event has occurred because no Class of Control Eligible Certificates exists where such class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that class, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts.”

 

In the event of any transfer of a Class H Certificate, and upon notice to the Certificate Administrator in the form of Exhibit MM that results in a termination of a Control Termination Event or a Consultation Termination Event, such “special notice” shall state: “A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class Certificates to an unaffiliated third party which has terminated any waiver by the prior Holder.”

 

The Directing Certificateholder shall not have any consent or consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. Notwithstanding the proviso to each of the definitions of “Control Termination Event” and “Consultation Termination Event”, in either such case, in respect of the servicing of any such Excluded Loan, a Control Termination Event and a Consultation Termination Event will each be deemed to have occurred with respect to any such Excluded Loan as to such party.

 

The Risk Retention Consultation Party shall not have any consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either such Risk Retention Consultation Party or the Holder of the majority of the RR Interest.

 

Section 3.24    Intercreditor Agreements.  (a) Each Master Servicer and Special Servicer acknowledges and agrees that each Serviced Whole Loan being serviced under this Agreement and each Mortgage Loan with mezzanine debt is subject to the terms and provisions of the related Intercreditor Agreement and each agrees to service each such Serviced Whole Loan, and each Mortgage Loan with mezzanine debt, in accordance with the related Intercreditor Agreement and this Agreement, including, without limitation, effecting distributions and allocating reimbursement of expenses in accordance with the related Intercreditor Agreement and, in the event of any conflict between the provisions of this Agreement and the related Intercreditor

 

 -299-

 

 

Agreement, the related Intercreditor Agreement shall govern. Notwithstanding anything contrary in this Agreement, each applicable Master Servicer and each applicable Special Servicer agrees not to take any action with respect to a Serviced Whole Loan, or a Mortgage Loan with mezzanine debt, or the related Mortgaged Property without the prior consent of the related Companion Holder or mezzanine lender, as applicable, to the extent that the related Intercreditor Agreement provides that such Companion Holder or mezzanine lender, as applicable, is required or permitted to consent to such action. Each applicable Master Servicer and each applicable Special Servicer acknowledges and agrees that each Companion Holder and each mezzanine lender or its respective designee has the right to purchase the related Mortgage Loan pursuant to the terms and conditions of this Agreement and the related Intercreditor Agreement to the extent provided for therein. Each Master Servicer and each Special Servicer further acknowledges and agrees that any AB Whole Loan Controlling Holder will have the right to replace the applicable Special Servicer solely with respect to the related Serviced AB Whole Loan, to the extent provided for herein and in the related Intercreditor Agreement.

 

(b)       Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for any cost, claim or damage that arises from any entitlement in favor of a Companion Holder or a mezzanine lender under the related Intercreditor Agreement or conflict between the terms of this Agreement and the terms of such Intercreditor Agreement. Notwithstanding any provision of any Intercreditor Agreement that may otherwise require such Master Servicer or such Special Servicer to abide by any instruction or direction of a Companion Holder or a mezzanine lender, neither such Master Servicer nor such Special Servicer shall be required to comply with any instruction or direction the compliance with which requires an Advance that constitutes or would constitute a Nonrecoverable Advance. In no event shall any expense arising from compliance with an Intercreditor Agreement constitute an expense to be borne by the applicable Master Servicer or the applicable Special Servicer for its own account without reimbursement. In no event shall the applicable Master Servicer or the applicable Special Servicer be required to consult with or obtain the consent of any Companion Holder or a mezzanine lender unless such Companion Holder or mezzanine lender has delivered notice of its identity and contact information to each of the parties to this Agreement (upon which notice each of the parties to this Agreement shall be conclusively entitled to rely). As of the Closing Date, the contact information for the Companion Holders and mezzanine lenders is as set forth in the related Intercreditor Agreement. In no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, be required to consult with or obtain the consent of a new Directing Certificateholder or a new Controlling Class Certificateholder or consult with a new Risk Retention Consultation Party unless the Certificate Administrator has delivered notice to such Master Servicer or such Special Servicer, as applicable, as required under Section 3.23(e) or such Master Servicer or such Special Servicer, as applicable, have actual knowledge of the identity and contact information of a new Directing Certificateholder, a new Controlling Class Certificateholder or a new Risk Retention Consultation Party.

 

(c)       No direction or disapproval of the Companion Holders or any mezzanine lender shall (a) require or cause the applicable Master Servicer or the applicable Special Servicer to violate the terms of a Mortgage Loan or Serviced Companion Loan, applicable law or any provision of this Agreement, including such Master Servicer’s or such Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, (b) result in the imposition of

 

 -300-

 

 

a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions or (c) materially expand the scope of the applicable Special Servicer’s, Trustee’s, the Certificate Administrator’s or the applicable Master Servicer’s responsibilities under this Agreement.

 

(d)       With respect to any Serviced Pari Passu Companion Loan, notwithstanding any rights the Operating Advisor, the Directing Certificateholder or the Risk Retention Consultation Party hereunder may have to consult with respect to any action or other matter with respect to the servicing of such Companion Loan, to the extent the related Intercreditor Agreement provides that such right is exercisable by the related Companion Holder or is exercisable in conjunction with any related Companion Holder, the Directing Certificateholder and the Risk Retention Consultation Party shall not be permitted to exercise such right or, to the extent provided in the related Intercreditor Agreement, shall be required to exercise such right in conjunction with the related Companion Holder, as applicable (except to the extent that the Directing Certificateholder or the Risk Retention Consultation Party is the related Serviced Whole Loan Controlling Holder). Additionally, notwithstanding anything in this Agreement to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall consult, seek the approval or obtain the consent of the holder of any Serviced Companion Loan with respect to any matters with respect to the servicing of such Companion Loan to the extent required under related Intercreditor Agreement and shall not take such actions requiring consent of the related Companion Holder without such consent. In addition, notwithstanding anything to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall deliver reports and notices to the related Companion Holder as required under the Intercreditor Agreement.

 

(e)       Notwithstanding anything in this Agreement to the contrary, the applicable Special Servicer shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Controlling Class Certificateholder pursuant to this Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to a Serviced Whole Loan to the related Companion Holder, within the same time frame it is required to provide to the Controlling Class Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Certificateholder under this Agreement due to the occurrence and continuance of a Control Termination Event or the occurrence and continuance of a Consultation Termination Event) and (ii) to consult with any related Companion Holder on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Companion Holder requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to a Serviced Whole Loan, and consider alternative actions recommended by such related Companion Holder; provided that after the expiration of a period of ten (10) Business Days from the delivery to such related Companion Holder by the applicable Special Servicer of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Certificateholder, the applicable Special Servicer shall no longer be obligated to consult with such related Companion Holder, whether or not such related Companion Holder has responded within such ten (10) Business Day period (unless, such Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the related

 

 -301-

 

 

Companion Holder set forth in the immediately preceding sentence, such Special Servicer may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if such Special Servicer determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Holder. In no event shall the applicable Special Servicer be obligated at any time to follow or take any alternative actions recommended by the related Companion Holder.

 

(f)       In addition to the consultation rights of the holder of a Serviced Pari Passu Companion Loan provided in the immediately preceding paragraph, such Companion Holder shall have the right to attend (in person or telephonically, in the discretion of the applicable Master Servicer or applicable Special Servicer, as the case may be) annual meetings with the applicable Master Servicer or the applicable Special Servicer at the offices of such Master Servicer or such Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, in which servicing issues related to the related Whole Loan are discussed.

 

(g)       With respect to any Serviced Whole Loan, the applicable Special Servicer shall not modify, waive or amend the terms of the related Intercreditor Agreement such that the monthly remittance to the holder of the related Companion Loan is required earlier than 2 Business Days after receipt by the applicable Master Servicer of the related Periodic Payment without the consent of such Master Servicer.

 

(h)       To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to any Intercreditor Agreement for a Whole Loan are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.

 

Section 3.25    Rating Agency Confirmation. (a) Notwithstanding the terms of any related Mortgage Loan documents or other provisions of this Agreement, if any action under any Mortgage Loan documents or this Agreement requires Rating Agency Confirmation as a condition precedent to such action, if the party (the “RAC Requesting Party”) required to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within ten (10) Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then such RAC Requesting Party shall be required to confirm (through direct communication and not by posting any confirmation on the 17g-5 Information Provider’s Website) that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again (which may be through direct communication). The circumstances described in the preceding sentence are referred to in this Agreement as a “RAC No-Response Scenario.” Once the RAC Requesting Party has sent a request for a Rating Agency Confirmation to the 17g-5 Information Provider, such RAC Requesting Party may, but shall not be obligated to send such request directly to the Rating Agencies in accordance with the procedures set forth in Section 13.10(d).

 

 -302-

 

 

If there is no response to such Rating Agency Confirmation request within five (5) Business Days of such second request in a RAC No-Response Scenario or if such Rating Agency has responded in a manner that indicates such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (x) with respect to any condition in any Mortgage Loan document requiring such Rating Agency Confirmation or with respect to any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) below), the requirement to obtain a Rating Agency Confirmation shall be deemed not to apply (as if such requirement did not exist) with respect to such Rating Agency and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may then take such action if the applicable Master Servicer or the applicable Special Servicer, as the case may be, confirms its original determination (made prior to making such request) that taking the action with respect to which it requested the Rating Agency Confirmation would still be consistent with the Servicing Standard, and (y) with respect to a replacement of the applicable Master Servicer or the applicable Special Servicer, such condition shall be deemed not to apply (as if such requirement did not exist) if (i) the replacement master servicer or special servicer is listed on S&P’s Select Servicer List as a “U.S. Commercial Mortgage Master Servicer” or “U.S. Commercial Mortgage Special Servicer”, as applicable, if S&P is the non-responding Rating Agency, (ii) the applicable replacement master servicer or special servicer is rated at least “CMS3” (in the case of the replacement master servicer) or “CSS3” (in the case of the replacement special servicer), if Fitch is the non-responding Rating Agency or (iii) KBRA has not publicly cited servicing concerns with respect to the applicable replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other CMBS transaction serviced by such replacement master servicer or special servicer prior to the time of determination, if KBRA is the non-responding Rating Agency.

 

Any Rating Agency Confirmation request made by any Master Servicer, any Special Servicer, Certificate Administrator or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

Promptly following the applicable Master Servicer’s or the applicable Special Servicer’s determination to take any action discussed in this Section 3.25(a) following any requirement to obtain a Rating Agency Confirmation being deemed not to apply (as if such requirement did not exist), such Master Servicer or such Special Servicer, as applicable, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

(b)       Notwithstanding anything to the contrary in this Section 3.25, for purposes of the provisions of any Mortgage Loan document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral) or release or substitution of any collateral, any Rating Agency Confirmation requirement in the Mortgage Loan

 

 -303-

 

 

documents for which the applicable Master Servicer or the applicable Special Servicer would have been permitted to waive obtaining or to make a determination with respect to such Rating Agency Confirmation pursuant to Section 3.25(a) shall be deemed not to apply (as if such requirement did not exist).

 

(c)       For all other matters or actions not specifically discussed in Section 3.25(a) above, the applicable RAC Requesting Party shall deliver Rating Agency Confirmation from each Rating Agency.

 

(d)       With respect to any Serviced Pari Passu Companion Loan as to which there exists Serviced Pari Passu Companion Loan Securities, if any action relating to the servicing and administration of the related Whole Loan or any related REO Property (including, but not limited to, the replacement of the applicable Master Servicer, the applicable Special Servicer or a sub-servicer) (the “Relevant Action”) requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then such action will also require delivery of a confirmation of each Companion Loan Rating Agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Pari Passu Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to this Section 3.25) as a condition precedent to such action, which confirmation shall be sought by the applicable Master Servicer or the applicable Special Servicer, as applicable, seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action.

 

Section 3.26    The Operating Advisor. (a) The Operating Advisor shall promptly review (i) all information made available to Privileged Persons on the Certificate Administrator’s Website (A) that relates to any Specially Serviced Loan, and (B) that is contained in the CREFC^® Servicer Watch List prepared by the applicable Master Servicer and (ii) each Final Asset Status Report delivered to the Operating Advisor by the applicable Special Servicer.

 

(b)       The Operating Advisor and its Affiliates will be obligated to keep confidential any information appropriately labeled as “Privileged Information” received from the applicable Special Servicer or Directing Certificateholder in connection with the Directing Certificateholder’s exercise of its rights under this Agreement (including, without limitation, in connection with the review and/or approval of any Asset Status Report), subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information. Subject to the terms and conditions in this Agreement related to Privileged Information, the Operating Advisor agrees that it shall use information received from the applicable Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.

 

(c)       (i) After the occurrence and during the continuance of a Control Termination Event, based on the Operating Advisor’s review of any assessment of compliance report, attestation report, Asset Status Report and other information (other than any communications between the Directing Certificateholder and the applicable Special Servicer that would be Privileged Information) delivered to the Operating Advisor by such Special Servicer, including each Asset Status Report delivered during the prior calendar year, the Operating Advisor

 

 -304-

 

 

shall (if any Mortgage Loans (other than Servicing Shift Mortgage Loans) were Specially Serviced Loans during the prior calendar year) deliver to the applicable Special Servicer, the Certificate Administrator and the 17g-5 Information Provider within one hundred-twenty (120) days of the end of the prior calendar year for which a Control Termination Event was continuing as of December 31 in the prior calendar year, an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit V (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement including, without limitation, provisions herein relating to Privileged Information; provided, however, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement), setting forth the Operating Advisor’s assessment of the applicable Special Servicer’s performance of its duties under this Agreement during the prior calendar year with respect to the resolution and/or liquidation of Specially Serviced Loans (other than Servicing Shift Mortgage Loans) that the applicable Special Servicer is responsible for servicing under this Agreement; provided, further, however, that in the event the applicable Special Servicer is replaced, the Operating Advisor Annual Report shall only relate to such Special Servicer that was acting as Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report. Notwithstanding the foregoing, with respect to any Serviced AB Whole Loan, no Operating Advisor Annual Report will be permitted to include an assessment of the applicable Special Servicer’s performance in respect of such Serviced AB Whole Loan until an AB Control Appraisal Period is in effect under the related Intercreditor Agreement. Subject to the restrictions in this Agreement, including, without limitation, Section 3.26(c), each such Operating Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the applicable Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Loans or REO Properties that the applicable Special Servicer is responsible for servicing under this Agreement (other than with respect to any REO Property related to a Non-Serviced Mortgage Loan or a Servicing Shift Mortgage Loan) and (B) comply with all of the confidentiality requirements described in this Agreement regarding Privileged Information (subject to any permitted exceptions); provided that the Operating Advisor shall not be required to report on any instances of non-compliance with, or deviations from, the Servicing Standard or the applicable Special Servicer’s obligations under this Agreement that the Operating Advisor determines, in accordance with the Operating Advisor Standard, to be immaterial. Such Operating Advisor Annual Report shall be delivered to the applicable Special Servicer, the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website in accordance with Section 3.13(b)) and the 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)); provided, however, that the applicable Special Servicer shall be given an opportunity to review the Operating Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider. The Operating Advisor shall have no obligation to adopt any comments to the Operating Advisor Annual Report that are provided by the applicable Special Servicer. The Operating Advisor Annual Report will be prepared on the basis of the applicable Special Servicer’s performance of its duties as they relate to the resolution and/or liquidation of Specially Serviced Loans, taking into account the applicable Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing

 

 -305-

 

 

Standard, with reasonable consideration by the Operating Advisor of the items required to be reviewed by it pursuant to this Agreement. Notwithstanding the foregoing, no Operating Advisor Annual Report shall be required from the Operating Advisor with respect to any calendar year as to which no Final Asset Status Report was prepared by the applicable Special Servicer in connection with a Specially Serviced Loan or REO Property.

 

(ii)  In the event the Operating Advisor’s ability to perform its obligations in respect of the Operating Advisor Annual Report is limited or prohibited due to the failure of a party hereto to timely deliver information required to be delivered to the Operating Advisor or because such information is inaccurate or incomplete, the Operating Advisor shall set forth such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from such limitations or prohibitions. The Operating Advisor shall be entitled to conclusively rely on the accuracy and completeness of any information it is provided without liability for any such reliance hereunder. In the event a lack of access to Privileged Information limits or prohibits the Operating Advisor from performing its duties under this Agreement, the Operating Advisor shall set forth any such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from its lack of access to Privileged Information.

 

(d)       With respect to each Serviced Mortgage Loan (other than a Servicing Shift Mortgage Loan) or Serviced Whole Loan (other than a Servicing Shift Whole Loan), prior to the occurrence and continuance of a Control Termination Event (or, with respect to a Serviced AB Whole Loan, prior to the occurrence and continuance of a Control Termination Event and if an AB Control Appraisal Period is not in effect), the applicable Special Servicer will forward any Appraisal Reduction Amount and net present value calculations used in the applicable Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan to the Operating Advisor after such calculations have been finalized. The Operating Advisor shall review such calculations but shall not opine on or take any affirmative action with respect to such Appraisal Reduction Amount calculations and/or net present value calculations (except that if the Operating Advisor discovers a material mathematical error contained in such calculations, them the Operating Advisor shall notify the applicable Special Servicer of such error).

 

(e)       (i) With respect to each Serviced Mortgage Loan (other than a Servicing Shift Mortgage Loan) or Serviced Whole Loan (other than a Servicing Shift Whole Loan), after the occurrence and during the continuance of a Control Termination Event, and with respect to any Serviced AB Whole Loan, after the occurrence and during the continuance of a Control Termination Event and if an AB Control Appraisal Period is in effect, after the calculation but prior to the utilization by the applicable Special Servicer of any of the calculations related to (i) Appraisal Reduction Amounts or Collateral Deficiency Amount (if the applicable Special Servicer has calculated any such Appraisal Reduction Amount or Collateral Deficiency Amount) or (ii) net present value in accordance with Section 1.02(iv), the applicable Special Servicer shall forward such calculations, together with any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Operating Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Communications), to the Operating Advisor promptly, but in any event no later

 

 -306-

 

 

than two (2) Business Days after preparing such calculations, and the Operating Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portion of the applicable formulas required to be utilized in connection with any such calculation.

 

(ii)       In connection with this Section 3.26(e), in the event the Operating Advisor does not agree with the mathematical calculations of the Appraisal Reduction Amount or Collateral Deficiency Amount (if calculated by the applicable Special Servicer) or net present value or the application of the applicable non-discretionary portions of the formula required to be utilized for such calculation, the Operating Advisor and the applicable Special Servicer shall consult with each other in order to resolve any material inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations. The applicable Master Servicer shall cooperate with such Special Servicer and provide any information reasonably requested by such Special Servicer necessary for the calculation of the Appraisal Reduction Amount or Collateral Deficiency Amount that is either in its possession or, solely with respect to Non-Specially Serviced Loans, reasonably obtainable by the applicable Master Servicer. In the event the Operating Advisor and the applicable Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Operating Advisor shall promptly notify the Certificate Administrator of such disagreement and the Certificate Administrator shall examine the calculations and supporting materials provided by the Operating Advisor and the applicable Special Servicer and determine which calculation is to apply and shall provide such parties prompt written notice of its determination.

 

(iii)      Notwithstanding the foregoing, the consultation duties of the Operating Advisor set forth in this Agreement shall not be permitted to be exercised by the Operating Advisor with respect to any Serviced AB Whole Loan until after the occurrence and during the continuance of a Control Termination Event (except with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) and an AB Control Appraisal Period is in effect. 

(f)Notwithstanding the foregoing, prior to the occurrence and continuance of a Control Termination Event, the Operating Advisor will be limited to review of the action taken by the Special Servicer and compliance with any Final Asset Status Report based on such report and other information delivered to the Operating Advisor by the applicable Special Servicer or made available to Privileged Persons that are posted on the Certificate Administrator’s Website during the prior calendar year (together with any additional information and material reviewed by the Operating Advisor), and, therefore, it shall have no specific involvement with respect to collateral substitutions, assignments, workouts, modifications, consents, waivers, lockbox management, insurance policies, borrower substitutions, lease changes, additional borrower debt, defeasances, property management changes, releases from escrow, assumptions and other similar actions that such Special Servicer may perform under this Agreement.

 

 -307-

 

 

(g)       The Operating Advisor and its Affiliates shall keep all information appropriately labeled as “Privileged Information” confidential and shall not disclose such labeled Privileged Information to any Person (including Certificateholders other than the Directing Certificateholder), other than (1) to the extent expressly required by this Agreement to the other parties to this Agreement with a notice indicating that such information is Privileged Information, (2) pursuant to a Privileged Information Exception or (3) where necessary to support specific findings or conclusions concerning allegations of deviations from the Servicing Standard or the Special Servicer’s obligations under this Agreement (i) in the Operating Advisor Annual Report or (ii) in connection with a recommendation by the Operating Advisor to replace a Special Servicer. Each party to this Agreement that receives Privileged Information from the Operating Advisor with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (with respect to any Mortgage Loan other than a Non-Serviced Whole Loan and other than any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) other than pursuant to a Privileged Information Exception. Notwithstanding the foregoing, the Operating Advisor shall be permitted to share Privileged Information with its Affiliates and any subcontractors of the Operating Advisor that agree in writing to be bound by the same confidentiality provisions applicable to the Operating Advisor.

 

(h)       Subject to the requirements of confidentiality imposed on the Operating Advisor herein (including without limitation in respect of Privileged Information), the Operating Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 4.07(a).

 

(i)        The Operating Advisor shall be paid a fee of $10,000 on the Closing Date. As compensation for its activities hereunder, the Operating Advisor shall be entitled to receive the Operating Advisor Fee on each Remittance Date with respect to each Mortgage Loan and each REO Loan (but excluding any related Companion Loan). As to each Mortgage Loan and each REO Loan, the Operating Advisor Fee shall accrue from time to time at the Operating Advisor Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the related Mortgage Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on the related Mortgage Loan or deemed to be due on such REO Loan is computed.

 

The Operating Advisor shall be entitled to reimbursement of any Operating Advisor Expenses provided for pursuant to Section 6.04(a) and/or 6.04(b), such amounts to be reimbursed from amounts on deposit in the applicable Collection Account as provided by Section 3.05(a). Each successor operating advisor shall be required to acknowledge and agree to the terms of the preceding sentence.

 

In addition, the Operating Advisor Consulting Fee shall be payable to the Operating Advisor with respect to each Major Decision for which the Operating Advisor has consultation obligations hereunder. The Operating Advisor Consulting Fee shall be payable from funds on deposit in the applicable Collection Account as provided in Section 3.05(a)(ii) of this Agreement,

 

 -308-

 

 

but, with respect to the period when the outstanding Certificate Balances of the Control Eligible Certificates have not been reduced to zero as a result of the allocation of Realized Losses to such Certificates, only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor. When the Operating Advisor has consultation obligations with respect to a Major Decision under this Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Operating Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision, but only to the extent not prohibited by the related Mortgage Loan documents, and in no event will it take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection. The applicable Master Servicer or the applicable Special Servicer, as the case may be, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard; provided that the applicable Master Servicer or the applicable Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction. Notwithstanding the foregoing, the Operating Advisor will have no obligations or consultation rights in its capacity as operating advisor with respect to: (i) any Servicing Shift Mortgage Loan, Non-Serviced Whole Loan or any related REO Property or (ii) any Serviced AB Whole Loan, prior to the occurrence and continuance of a Control Termination Event and if an AB Control Appraisal Period is not in effect; provided, further, that the Operating Advisor shall not be entitled to an Operating Advisor Consulting Fee with respect to any Non-Serviced Whole Loan.

 

(j)        After the occurrence and during the continuance of a Consultation Termination Event, the Operating Advisor may be removed upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Cumulative Appraisal Reduction Amounts are allocable) requesting a vote to replace the Operating Advisor with a replacement Operating Advisor selected by such Certificateholders (provided that the proposed replacement Operating Advisor is an Eligible Operating Advisor), (ii) payment by such requesting Holders to the Certificate Administrator of all reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote and (iii) receipt by the Trustee and the Certificate Administrator of Rating Agency Confirmation from each Rating Agency (which confirmations will be obtained by the Certificate Administrator at the expense of such Holders and will not constitute an additional expense of the Trust). The Certificate Administrator shall promptly provide written notice to all Certificateholders of such request by posting such notice on the Certificate Administrator’s Website in accordance with Section 3.13(b), and concurrently by mail, and conduct the solicitation of votes of all Certificates in such regard. Upon the vote or written direction of Holders of Certificates evidencing at least 75% of the Voting Rights (taking into account the application of Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Cumulative Appraisal Reduction Amounts are allocable), the Trustee shall immediately replace the Operating Advisor with the replacement Operating Advisor.

 

(k)       After the occurrence of an Operating Advisor Termination Event, the Trustee may, and upon the written direction of Holders of Certificates representing at least 25% of the Voting Rights (taking into account the application of any Cumulative Appraisal Reduction

 

 -309-

 

 

Amounts to notionally reduce the Certificate Balance of the Classes of Certificates), the Trustee shall promptly terminate the Operating Advisor for cause and appoint a replacement Operating Advisor that is an Eligible Operating Advisor; provided that no such termination shall be effective until a successor operating advisor has been appointed and has assumed all of the obligations of the Operating Advisor under this Agreement. No such termination shall terminate, change, reduce, or otherwise modify the rights and obligations of the Operating Advisor that accrued prior to such termination, including the right to receive all amounts accrued and owing to it under this Agreement, and other than indemnification rights (arising out of events occurring prior to such termination). The Trustee may rely on a certification by the replacement Operating Advisor that it is an Eligible Operating Advisor. Upon any termination of the Operating Advisor and appointment of a successor to the Operating Advisor, the Trustee will, as soon as possible, be required to give written notice of the termination and appointment to the applicable Special Servicer, the applicable Master Servicer, the Certificate Administrator, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website), the Depositor, the Directing Certificateholder, the Risk Retention Consultation Party, any Companion Loan holder and the Certificateholders.

 

(l)        The Holders of Certificates representing at least 25% of the Voting Rights affected by any Operating Advisor Termination Event hereunder may waive such Operating Advisor Termination Event within twenty (20) days of the receipt of notice from the Trustee of the occurrence of such Operating Advisor Termination Event. Upon any such waiver of an Operating Advisor Termination Event, such Operating Advisor Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of an Operating Advisor Termination Event by certificateholders, the trustee and the certificate administrator will be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Operating Advisor Termination Event prior to such waiver from the Trust.

 

(m)      Prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder shall have the right to consent, such consent not to be unreasonably withheld, conditioned or delayed, to the identity of any replacement Operating Advisor appointed pursuant to this Section 3.26; provided, further, that such consent will be deemed to have been granted if no objection is made within ten (10) Business Days following the Directing Certificateholder’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn.

 

(n)       The Operating Advisor may resign from its obligations and duties hereby imposed on it (a) upon thirty (30) days prior written notice to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Directing Certificateholder and the Risk Retention Consultation Party, if applicable, and (b) upon the appointment of, and the acceptance of such appointment by, a successor operating advisor that is an Eligible Operating Advisor and receipt by the Trustee of Rating Agency Confirmation from each Rating Agency. No such resignation by the Operating Advisor shall become effective until the replacement Operating Advisor shall have assumed the resigning Operating Advisor’s responsibilities and obligations. The resigning Operating Advisor shall pay all costs and expenses (including costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 3.26.

 

 -310-

 

 

(o)       In the event there are no Classes of Certificates outstanding other than the Control Eligible Certificates, the RR Interest and the Class X-F, Class X-G, Class X-H, Class X-J, Class V and Class R Certificates, then all of the rights and obligations of the Operating Advisor shall terminate without payment of any termination fee (other than any rights or obligations that accrued prior to the date of such termination (including accrued and unpaid compensation) and other than indemnification rights arising out of events occurring prior to such termination). In connection with any termination pursuant to this Section 3.26(o), no successor operating advisor shall be appointed. Upon receipt of written notice of such acts by a Responsible Officer of the Trustee, the Trustee shall provide the Operating Advisor with prompt notice upon its termination pursuant to this Section 3.26(o).

 

(p)       In the event the Operating Advisor resigns or is otherwise terminated for any reason it shall remain entitled to any accrued and unpaid Operating Advisor Fees and Operating Advisor Consulting Fees and reimbursement of accrued and unpaid Operating Advisor Expenses pursuant to Section 3.26(i) and shall also remain entitled to any rights of indemnification provided hereunder.

 

(q)       The parties hereto agree, and the Certificateholders by their acceptance of their Certificates shall be deemed to have agreed, that (i) subject to Section 6.04, the Operating Advisor shall have no liability to any Certificateholder for any actions taken or for refraining from taking any actions under this Agreement, (ii) the Operating Advisor shall act solely as a contracting party to the extent set forth in this Agreement, (iii) the Operating Advisor shall have no (A) fiduciary duty, or (B) other duty except with respect to its specific obligations under this Agreement, and shall have no duty to any particular Class of Certificates or particular Certificateholders, and (iv) the Operating Advisor does not constitute an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended, or a “broker” or “dealer” within the meaning of the Exchange Act. Furthermore, the Operating Advisor shall have no obligations or responsibility at any time to review the actions of a Master Servicer for compliance with the Servicing Standard, and the Operating Advisor shall not be required to consider such Master Servicer actions in connection with any Operating Advisor Annual Report.

 

(r)       Neither the Operating Advisor nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker-dealer Affiliate of the Operating Advisor or (ii) investments by an Affiliate of the Operating Advisor if the Operating Advisor and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Operating Advisor under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Operating Advisor and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

 

(s)       The Operating Advisor shall at all times be an Eligible Operating Advisor and if the Operating Advisor ceases to be an Eligible Operating Advisor, the Operating Advisor shall immediately resign under Section 3.26(n) of this Agreement and the Trustee shall appoint a successor operating advisor subject to and in accordance with this Section 3.26. Notwithstanding the foregoing, if the Trustee is unable to find a successor operating advisor within thirty (30) days of the termination of the Operating Advisor, the Depositor shall be permitted to find a replacement.

 

 -311-

 

 

(t)        The Operating Advisor may delegate its duties and obligations to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Agreement related to the Operating Advisor’s duties and obligations; provided that no agent or subcontractor may (i) be affiliated with a Sponsor, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Operating Advisor shall remain obligated and primarily liable for its obligations hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Operating Advisor alone were performing its obligations under this Agreement. The Operating Advisor shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Operating Advisor by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

 

(u)       With respect to the determination of whether a Control Termination Event or Consultation Termination Event has occurred and is continuing, or has terminated, the Operating Advisor is entitled to rely solely on its receipt from the Certificate Administrator of notice thereof pursuant to Section 3.23(m), and, with respect to any obligations of the Operating Advisor that are performed only after the occurrence and continuance of a Control Termination Event and/or Consultation Termination Event, the Operating Advisor shall have no obligation to perform any such duties until the receipt of such notice or actual knowledge of the occurrence of a Control Termination Event or Consultation Termination Event, as applicable.

 

Section 3.27    Companion Paying Agent. (a) With respect to each of the Serviced Companion Loans, the applicable Master Servicer shall be the Companion Paying Agent hereunder. The Companion Paying Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.

 

(b)       No provision of this Agreement shall be construed to relieve the Companion Paying Agent from liability for its negligent failure to act, bad faith or its own willful misfeasance; provided, however, that the duties and obligations of the Companion Paying Agent shall be determined solely by the express provisions of this Agreement. The Companion Paying Agent shall not be liable except for the performance of such duties and obligations, no implied covenants or obligations shall be read into this Agreement against the Companion Paying Agent. In the absence of bad faith on the part of the Companion Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth and correctness of the statements or conclusions expressed therein, upon any resolutions, certificates, statements, opinions, reports, documents, orders or other instrument furnished to the Companion Paying Agent by any Person and which on their face do not contradict the requirements of this Agreement.

 

 -312-

 

 

(c)       In the case of each of the Serviced Companion Loans, upon the resignation or removal of the applicable Master Servicer pursuant to Article VII of this Agreement, the applicable Master Servicer, as the Companion Paying Agent, shall be deemed simultaneously to resign or be removed.

 

(d)       This Section 3.27 shall survive the termination of this Agreement or the resignation or removal of the Companion Paying Agent, as regards to rights accrued prior to such resignation or removal.

 

Section 3.28    Serviced Companion Noteholder Register. The Companion Paying Agent shall maintain a register (the “Serviced Companion Noteholder Register”) with respect to each Serviced Companion Loan on which it will record the names and address of, and wire transfer instructions for, the Serviced Companion Noteholders from time to time, to the extent such information is provided in writing to it by each Serviced Companion Noteholder. The initial Serviced Companion Noteholders, along with their respective name and address, are listed on Exhibit S hereto. In the event a Serviced Companion Noteholder transfers a Serviced Companion Loan without notice to the Companion Paying Agent, the Companion Paying Agent shall have no liability for any misdirected payment in such Serviced Companion Loan and shall have no obligation to recover and redirect such payment.

 

The Companion Paying Agent shall promptly provide the name and address of any Serviced Companion Noteholder to any party hereto or any successor Serviced Companion Noteholder upon written request and any such Person may, without further investigation, conclusively rely upon such information. The Companion Paying Agent shall have no liability to any Person for the provision of any such name and address.

 

For the avoidance of doubt, any notices or information required to be delivered pursuant to this Agreement by any party hereto to a Serviced Companion Noteholder with respect to a Serviced Companion Loan that has been included in an Other Securitization shall be provided to the Other Servicer under the Other Pooling and Servicing Agreement.

 

Section 3.29    Certain Matters Relating to the Non-Serviced Mortgage Loans and the Serviced Pari Passu Companion Loans. (a) In the event that any of the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer shall be replaced in accordance with the terms of the applicable Non-Serviced PSA, the applicable Master Servicer and the applicable Special Servicer shall acknowledge its successor as the successor to the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be.

 

(b)       If any of the Trustee, the Certificate Administrator or the applicable Master Servicer receives notice from a Rating Agency that the applicable Master Servicer is no longer an “approved” master servicer by any of the Rating Agencies rating the Certificates, then the Trustee, the Certificate Administrator or such Master Servicer, as applicable, shall promptly notify each Non-Serviced Master Servicer of the same.

 

(c)       In connection with the securitization of each Serviced Pari Passu Companion Loan, (in each case, only while it is a Serviced Companion Loan), upon the request of

 

 -313-

 

 

(and at the expense of) the related Serviced Companion Noteholder (or its designee), each of the applicable Master Servicer, the applicable Special Servicer and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Noteholder in attempting to cause the related Mortgagor to provide information relating to such Whole Loan and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

 

(d)       In connection with the sale of any Non-Serviced Whole Loan by any Non-Serviced Special Servicer, upon receipt of any notices or materials required to be furnished by the Non-Serviced Special Servicer to the holder of the related Non-Serviced Mortgage Loan pursuant to the related Intercreditor Agreement, the applicable Special Servicer shall, prior to the occurrence and continuance of a Control Termination Event, forward such materials to the Directing Certificateholder for its consent, if such consent is required. The applicable Special Servicer may (with the consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event) waive any timing or delivery requirements related to such sale to the extent set forth in the related Intercreditor Agreement.

 

(e)       With respect to any Non-Serviced Mortgage Loan, the Directing Certificateholder (as determined under clause (B) of the definition thereof), prior to the occurrence and continuance of a Consultation Termination Event, or the applicable Special Servicer, following the occurrence and during the continuance of a Consultation Termination Event, shall be entitled to exercise any consultation rights held by the holder of such Mortgage Loan in its capacity as a “Non-Controlling Note Holder” (or similar term identified in the related Intercreditor Agreement) under the related Intercreditor Agreement.

 

(f)       With respect to each Mortgage Loan that is part of a Whole Loan, this Agreement is subject to the related Intercreditor Agreement and incorporates by reference all provisions required to be included herein pursuant to such Intercreditor Agreement.

 

(g)       With respect to each Serviced Whole Loan, if any Serviced Companion Loan becomes the subject of an “asset review” (or such analogous term defined in the related Other Pooling and Servicing Agreement) pursuant to the related Other Pooling and Servicing Agreement, the applicable Master Servicer, the applicable Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the Other Asset Representations Reviewer or any other party to the Other Pooling and Servicing Agreement in connection with such Asset Review by providing the Other Asset Representations Reviewer or such other requesting party with any documents reasonably requested by the Other Asset Representations Reviewer or such other requesting party, but only to the extent such documents are in the possession of such Master Servicer, such Special Servicer, the Trustee or the Custodian, as the case may be, but in any event excluding any documents known to such Master Servicer, such Special Servicer, the Trustee or the Custodian to contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications.

 

(h)       With respect to any Non-Serviced Mortgage Loan, if the applicable Master Servicer or Special Servicer shall receive any communication from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer regarding any Major Decision pursuant to clause (xii) of the definition of such term or “Master Servicer Decision” pursuant to clause (ix) of

 

 -314-

 

 

the definition of such term, then such Master Servicer or Special Servicer shall forward the communication to the Directing Certificateholder (and to the applicable Master Servicer, if the applicable Special Servicer is forwarding such communication, and to the applicable Special Servicer if the applicable Master Servicer is forwarding such communication), and the Master Servicer or the Special Servicer, as the case may be, shall reasonably cooperate with the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be, in effecting any action by the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, in any such case subject to and consistent with the related Intercreditor Agreement.

 

(i)        During the period from and after the date on which a Serviced Pari Passu Companion Loan is deposited into an Other Securitization, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date the General Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement the following reports and data files with respect to such Serviced Pari Passu Companion Loan: (A) to the extent the General Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report and the CREFC^® REO Status Report, (B) the CREFC^® Loan Setup File (only with respect to the first “distribution date” (or analogous term) as defined in the related Other Pooling and Servicing Agreement), (C) the most recent CREFC^® Property File and the CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the General Special Servicer and the General Master Servicer), (D) a CREFC^® Servicer Watch List with information that is current as of such Serviced Whole Loan Remittance Date, (E) a CREFC^® Financial File, (F) a CREFC^® Loan Level Reserve/LOC Report, (G) a CREFC^® Advance Recovery Report, (H) a CREFC^® Total Loan Report, (I) the CREFC^® Loan Periodic Update File and (J) the CREFC^® Significant Insurance Event Report. Additionally, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date, the General Master Servicer shall deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports received from the General Special Servicer. In no event shall any report described in this Section 3.29(i) be required to reflect information that has not been collected by or delivered to the General Master Servicer, or any payments or collections not received by the General Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due. In addition, the General Master Servicer shall deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement any and all other reports required to be delivered by the General Master Servicer to the Certificate Administrator hereunder pursuant to the terms hereof to the extent related to such Serviced Pari Passu Companion Loan.

 

(j)        On a Servicing Shift Securitization Date, (i) the Custodian shall, upon receipt of a Request for Release, transfer the related Mortgage File (other than the Mortgage Note evidencing the related Servicing Shift Mortgage Loan, the original of which shall be retained by the Custodian) for the related Servicing Shift Whole Loan to the related Non-Serviced Trustee under the related Non-Serviced PSA and retain a copy of such Mortgage File and (ii) the applicable

 

 -315-

 

 

Master Servicer shall, upon receipt of notice from the applicable Mortgage Loan Seller that the applicable Servicing Shift Lead Note has been or is being securitized on the related Servicing Shift Securitization Date, transfer (and cooperate with reasonable requests in connection with such transfer of) the Servicing File for the related Servicing Shift Whole Loan, and any Escrow Payments, reserve funds and originals of items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the related Servicing Shift Whole Loan, to the related Non-Serviced Master Servicer on the related Servicing Shift Securitization Date

 

(k)       Promptly upon any change in the identity of the applicable Master Servicer, the successor Master Servicer shall deliver notice of such change (together with the contact information of such successor Master Servicer) to each Non-Serviced Trustee, Non-Serviced Certificate Administrator, Non-Serviced Special Servicer, Non-Serviced Master Servicer and Non-Serviced Operating Advisor.

 

Section 3.30   Certain Matters with Respect to Joint Mortgage Loans.

 

(a)       If a Mortgage Loan Seller with respect to a Joint Mortgage Loan (a “Repurchasing Mortgage Loan Seller”) repurchases the Mortgage Note(s) (as such term is defined in this Section 3.30(a)) (a “Repurchased Note”) related to such Joint Mortgage Loan that it sold to the Depositor, but the other Mortgage Loan Seller with respect to such Joint Mortgage Loan does not repurchase the Mortgage Note(s) related to such Joint Mortgage Loan that it sold to the Depositor, the provisions of this Section 3.30 shall apply prior to the adoption, pursuant to Section 13.01(l), of any amendment to this Agreement that provides otherwise. Each Mortgage Loan Seller of a Joint Mortgage Loan has agreed pursuant to the terms of the related Mortgage Loan Purchase Agreement that the terms set forth in this Section 3.30 with respect to the servicing and administration of such Joint Mortgage Loan shall apply if one or more of the Mortgage Notes related to such Joint Mortgage Loan has been repurchased from the Trust and at least one other Mortgage Note related to such Joint Mortgage Loan is included in the Trust until such time as all of the Mortgage Notes related to such Joint Mortgage Loan are no longer included in the Trust. For purposes of this Section 3.30, Section 13.01(l) and Section 13.08(a) only, “Mortgage Note” shall mean with respect to any Joint Mortgage Loan, each original promissory note that collectively represents the Mortgage Note (as defined in Article I) with respect to such Joint Mortgage Loan and shall not be a collective reference to such promissory notes. With respect to any Joint Mortgage Loan that is part of a Whole Loan, clauses (b)–(j) below shall not apply, and the terms of the related Intercreditor Agreement shall continue to govern the relationship between the related Mortgage Notes as if each related Repurchased Note were a Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan, as applicable. With respect to any other Joint Mortgage Loan, clauses (b)–(j) below shall apply to such Joint Mortgage Loan.

 

(b)       Custody of and record title under the Mortgage Loan documents with respect to the applicable Joint Mortgage Loan shall be held exclusively by the Custodian as provided under this Agreement or, with respect to a Non-Serviced Mortgage Loan, the Non-Serviced Custodian as provided under the related Non-Serviced PSA, except that the Repurchasing Mortgage Loan Seller shall hold and retain title to its original Repurchased Note(s) and any related endorsements thereof.

 

 -316-

 

 

(i)        All of the Mortgage Notes with respect to any Joint Mortgage Loan shall be of equal priority with each other, and no portion of any Mortgage Note shall have priority or preference over any other portion of the other Mortgage Notes or security therefor. Payments from the related Mortgagor (including, without limitation, any Penalty Charges) or any other amounts received with respect to each Mortgage Note shall be collected as provided in this Agreement by the applicable Master Servicer and shall be applied upon receipt by such Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Payments or any other amounts received with respect to the related Repurchased Note shall be held in trust for the benefit of the applicable Repurchasing Mortgage Loan Seller and remitted (net of its pro rata share of amounts payable at the Administrative Fee Rate and any other amounts due to the applicable Master Servicer or the applicable Special Servicer) to the applicable Repurchasing Mortgage Loan Seller or its designee by the applicable Master Servicer on each Distribution Date pursuant to instructions provided by the applicable Repurchasing Mortgage Loan Seller and deposited and applied in accordance with this Agreement, subject to Section 3.30(b)(ii). If any Joint Mortgage Loan to which this Section 3.30 applies becomes an REO Loan, payments or any other amounts received with respect to any such Joint Mortgage Loan shall be collected and shall be applied upon receipt by the applicable Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Any Appraisal Reduction Amounts calculated with respect to any Joint Mortgage Loan subject to this Section 3.30 shall be allocated to each related Mortgage Note pro rata based upon the respective unpaid principal balances thereof.

 

(ii)       If the applicable Master Servicer or the applicable Special Servicer, as applicable, receives an aggregate payment of less than the aggregate amount due under any such Joint Mortgage Loan at any particular time, the applicable Repurchasing Mortgage Loan Seller shall receive from such Master Servicer an amount equal to its Mortgage Loan Seller Percentage Interest of such payment. All expenses, losses and shortfalls relating solely to such Joint Mortgage Loan including, without limitation, losses of principal or interest, Nonrecoverable Advances, interest on Servicing Advances, Special Servicing Fees, Workout Fees and Liquidation Fees (including any such fees related to the applicable Mortgage Notes), shall be allocated between the holders of the related Mortgage Notes pro rata based upon the respective unpaid principal balances thereof. In no event shall any costs, expenses, fees or any other amounts related to any Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage Loan be deducted from payments or any other amounts received with respect to such Joint Mortgage Loan and payable to the applicable Repurchasing Mortgage Loan Seller.

 

(iii)      A Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies shall be serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller and the Certificateholders pursuant to the terms and conditions of this Agreement in accordance with the Servicing Standard and in accordance with the provisions herein as if (A) such Joint Mortgage Loan were a Serviced Whole Loan, (B) the related Mortgage Note(s) not repurchased were (1) a Serviced Pari Passu Mortgage Loan and (2) the only Mortgage Loan that is part of such Joint Mortgage Loan (or related Serviced Whole Loan), and (C) the related Repurchased Note were a Serviced Pari Passu

 

 -317-

 

 

Companion Loan. No Repurchasing Mortgage Loan Seller shall be permitted to terminate the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor as servicer, special servicer or operating advisor, respectively, of the related Repurchased Note. All rights of the mortgagee under each such Joint Mortgage Loan shall be exercised by the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the Trust to the extent of its interest therein and the applicable Repurchasing Mortgage Loan Seller in accordance with this Agreement.

 

(iv)      With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the related Repurchasing Mortgage Loan Seller shall be treated hereunder as if it were a Serviced Pari Passu Companion Loan holder on a pari passu basis. Funds collected by the applicable Master Servicer or the applicable Special Servicer, as applicable, and applied to the applicable Mortgage Notes shall be deposited and disbursed in accordance with the provisions hereof relating to holders of promissory notes comprising Serviced Whole Loans that are pari passu in right of payment. Compensation shall be paid to the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor with respect to each Repurchased Note as provided in this Agreement as if each such Repurchased Note were a Serviced Pari Passu Companion Loan. None of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor shall have any obligation to make P&I Advances with respect to any Repurchased Note or, if no related Mortgage Note is part of the Trust, a Servicing Advance with respect to any Repurchased Note. Except as otherwise specified herein, the applicable Master Servicer and the applicable Special Servicer shall have no reporting requirement with respect to any Repurchased Note other than to deliver to the related Repurchasing Mortgage Loan Seller any document as is required to be delivered to a holder of a Serviced Pari Passu Companion Loan hereunder.

 

(c)       If any non-repurchased Mortgage Note relating to a Joint Mortgage Loan to which this Section 3.30 applies is a Specially Serviced Loan, then any related Repurchased Note shall also be a Specially Serviced Loan under this Agreement. The applicable Special Servicer shall cause such related Repurchased Note to be specially serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller in accordance with the terms and provisions set forth in this Agreement and shall be entitled to any Special Servicing Fee, Workout Fee or Liquidation Fee payable to such Special Servicer under this Agreement as with respect to a Serviced Pari Passu Companion Loan.

 

(d)       If (A) the applicable Master Servicer shall pay any amount to any Repurchasing Mortgage Loan Seller pursuant to the terms hereof in the belief or expectation that a related payment has been made or will be received or collected in connection with any or all of the applicable Mortgage Notes and (B) such related payment is not received or collected by such Master Servicer, then the applicable Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer return such amount to such Master Servicer. If such Master Servicer determines at any time that any amount received or collected by such Master Servicer in respect of any Joint Mortgage Loan to which this Section 3.30 applies must be returned to the related Mortgagor or paid to any other person or entity pursuant to any insolvency law or otherwise, notwithstanding any other provision of this Agreement, such Master Servicer shall not

 

 -318-

 

 

be required to distribute any portion thereof to the related Repurchasing Mortgage Loan Seller, and such Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer repay (which obligation shall survive the termination of this Agreement) any portion thereof that such Master Servicer shall have distributed to such Repurchasing Mortgage Loan Seller, together with interest thereon at such rate, if any, as such Master Servicer may pay to the related Mortgagor or such other person or entity with respect thereto.

 

(e)       With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, subject to this Agreement (including, without limitation, the consent and consultation rights of the Directing Certificateholder and any consultation rights of the Operating Advisor), the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the holders of any of the Repurchased Notes, shall have the exclusive right and obligation to (i) administer, service and make all decisions and determinations regarding the related Joint Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as provided hereunder. Without limiting the generality of the preceding sentence, the applicable Master Servicer or the applicable Special Servicer, as applicable, may agree to any modification, waiver or amendment of any term of, forgive interest on and principal of, capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release of the related Mortgagor on or any guarantor of any Joint Mortgage Loan it is required to service and administer as contemplated by this Section 3.30, without the consent of the related Repurchasing Mortgage Loan Seller, subject, however, to the terms of this Agreement as they pertain to a Serviced Pari Passu Companion Loan.

 

(f)       In taking or refraining from taking any action permitted hereunder, the applicable Master Servicer and the applicable Special Servicer shall each be subject to the same degree of care with respect to the administration and servicing of the Joint Mortgage Loans that are not Non-Serviced Mortgage Loans and to which this Section 3.30 applies as is consistent with this Agreement and shall be liable to any Repurchasing Mortgage Loan Seller only to the same extent as set forth herein with respect to any holder of a Serviced Pari Passu Companion Loan.

 

(g)       If the Trustee, the applicable Master Servicer or the applicable Special Servicer has made a Servicing Advance with respect to any Repurchased Note which would otherwise be reimbursable to such advancing party under this Agreement, and such Advance is determined to be a Nonrecoverable Advance, the applicable Repurchasing Mortgage Loan Seller shall reimburse the Trust in an amount equal to such Repurchasing Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest of such Nonrecoverable Advance with interest thereon. Notwithstanding the foregoing, the applicable Repurchasing Mortgage Loan Seller shall not be obligated to reimburse the Trustee, the applicable Master Servicer or the applicable Special Servicer (and amounts due to the applicable Repurchasing Mortgage Loan Seller shall not be offset) for Advances or interest thereon or any amounts related to any Mortgage Loans or any other Joint Mortgage Loan other than such amounts relating to the applicable Repurchased Note. To the extent that the applicable Repurchasing Mortgage Loan Seller reimburses any such Nonrecoverable Advances and such amounts are subsequently recovered, the applicable Repurchasing Mortgage Loan Seller shall receive a reimbursement from such recovery based on its Mortgage Loan Seller Percentage Interest of such recovery. This reimbursement right shall not limit the Trustee’s, the applicable Master Servicer’s or the applicable Special Servicer’s rights to reimbursement under this Agreement. Notwithstanding anything to the contrary contained herein,

 

 -319-

 

 

the total liability of each Repurchasing Mortgage Loan Seller shall not exceed an amount equal to its Mortgage Loan Seller Percentage Interest of the amount to be reimbursed.

 

(h)       Each Repurchasing Mortgage Loan Seller shall have the right to assign the related Repurchased Note; provided that, with respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the assignee of the related Repurchased Note shall agree in writing to be bound by the terms of this Agreement.

 

(i)        With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the applicable Master Servicer and the applicable Special Servicer shall, in connection with their servicing and administrative duties under this Agreement, exercise efforts consistent with the Servicing Standard to execute and deliver, on behalf of each Repurchasing Mortgage Loan Seller as a holder of a pari passu interest in the applicable Joint Mortgage Loan, any and all financing statements, continuation statements and other documents and instruments necessary to maintain the lien created by any Mortgage or other security document related to the applicable Joint Mortgage Loan on the related Mortgaged Property and related collateral, any and all modifications, waivers, amendments or consents to or with respect to the related Joint Mortgage Loan documents, and any and all instruments of satisfaction or cancellation, or of full release or discharge, and all other comparable instruments with respect to the related Repurchased Note or related Repurchased Notes and the related Mortgaged Property all in accordance with, and subject to, the terms of this Agreement. Each Repurchasing Mortgage Loan Seller agrees to furnish, or cause to be furnished, to the applicable Master Servicer and the applicable Special Servicer any powers of attorney or other documents necessary or appropriate to enable such Master Servicer or such Special Servicer, as the case may be, to carry out its servicing and administrative duties under this Agreement related to the applicable Joint Mortgage Loan; provided, that such Repurchasing Mortgage Loan Seller shall not be liable, and shall be indemnified by the applicable Master Servicer or the applicable Special Servicer, as applicable, for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer, as the case may be; provided, further, that the applicable Master Servicer or the applicable Special Servicer, without the written consent of the applicable Repurchasing Mortgage Loan Seller, shall not initiate any action in the name of such Repurchasing Mortgage Loan Seller without indicating its representative capacity or take any action with the intent to cause and that actually causes, such Repurchasing Mortgage Loan Seller to be registered to do business in any state.

 

(j)        Pursuant to the related Mortgage Loan Purchase Agreement, the applicable Repurchasing Mortgage Loan Seller is required to deliver to the applicable Master Servicer or the applicable Special Servicer, as applicable, the Mortgage Loan documents related to the applicable Repurchased Note, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or otherwise available at law or equity with respect to the related Repurchased Note.

 

Section 3.31   [RESERVED].

 

Section 3.32   [RESERVED].

 

 -320-

 

 

Section 3.33    Delivery of Excluded Information to the Certificate Administrator. Any Excluded Information that a Master Servicer, a Special Servicer or the Operating Advisor identifies and delivers to the Certificate Administrator for posting to the Certificate Administrator’s Website shall be delivered to the Certificate Administrator via e-mail (or such other electronic means as is mutually acceptable to the parties) in one or more separate files labeled “Excluded Information” followed by the applicable loan name and loan file to cmbsexcludedinformation@wellsfargo.com. For the avoidance of doubt, any information that is not appropriately labeled and delivered in accordance with this Section 3.33 shall not be separately posted as Excluded Information on the Certificate Administrator’s Website, and any information appropriately labeled and delivered to the Certificate Administrator pursuant to this Section 3.33 shall be posted on the Certificate Administrator’s Website under the “Excluded Information” section, as provided under Section 3.13. When so posted, the Excluded Controlling Class Holders shall be prohibited from the access of Excluded Information with respect to any Excluded Controlling Class Loans on the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans). Each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor shall have no obligations to separately label and deliver any Excluded Information in accordance with this Section 3.33 until such party has received written notice with respect to the related Excluded Controlling Class Loan in the form of Exhibit P-1E to this Agreement. Nothing set forth in this Agreement shall prohibit the Directing Certificateholder or any Controlling Class Certificateholder from receiving, requesting or reviewing any Excluded Information relating to any Excluded Controlling Class Loan with respect to which the Directing Certificateholder or such Controlling Class Certificateholder is not a Borrower Party and, if such Excluded Information is not available on the Certificate Administrator’s Website on account of it constituting Excluded Information, such Directing Certificateholder or Controlling Class Certificateholder that is not a Borrower Party with respect to the related Excluded Controlling Class Loan shall be permitted to obtain such information in accordance with Section 4.02(f) of this Agreement.

 

[End of Article III]

 

Article IV

DISTRIBUTIONS TO CERTIFICATEHOLDERS

 

Section 4.01    Distributions.

 

(a)       Distributions of Available Funds. On each Distribution Date, to the extent of the Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to each Class of Lower-Tier Regular Interests (other than the LRR Uncertificated Interest), and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

 

 -321-

 

 

(i)        first, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class A-SB Certificates, the Class X-A Certificates, the Class X-B Certificates, the Class X-D Certificates, the Class X-F Certificates, the Class X-G Certificates, the Class X-H Certificates and the Class X-J Certificates and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest, Class A-4-X1 Upper-Tier Regular Interest, Class A-4-X2 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-5-X1 Upper-Tier Regular Interest and Class A-5-X2 Upper-Tier Regular Interest pro rata (based upon their respective Interest Distribution Amounts for such Distribution Date), in respect of interest, up to an amount equal to the aggregate Interest Distribution Amount in respect of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests for such Distribution Date;

 

(ii)       second, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the Class A-SB Certificates and the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, in reduction of the Certificate Balances thereof: (I) prior to the Cross-Over Date (1) first, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount, until the outstanding Certificate Balance of the Class A-SB Certificates has been reduced to the Class A-SB Planned Principal Balance for such Distribution Date; (2) second, to the Holders of the Class A-1 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clause (1) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-1 Certificates has been reduced to zero; (3) third, to the Holders of the Class A-2 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1) and (2) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-2 Certificates has been reduced to zero; (4) fourth, to the Holders of the Class A-3 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2) and (3) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-3 Certificates has been reduced to zero; (5) fifth, to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3) and (4) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-4 Upper-Tier Regular Interest has been reduced to zero; (6) sixth, to the Grantor Trust in respect of the Class A-5 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4) and (5) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-5 Upper-Tier Regular Interest has been reduced to zero; and (7) seventh, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4), (5) and (6) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-SB Certificates has been reduced to zero; and (II) on or after the Cross-Over Date, to the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-SB Certificates, Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular

 

 -322-

 

 

Interest, pro rata (based on their respective Certificate Balances) in an amount equal to the Principal Distribution Amount for such Distribution Date, until the Certificate Balance of each of the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-SB Certificates, Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest is reduced to zero;

 

(iii)      third, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the Class A-SB Certificates, and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, up to an amount equal to, and pro rata based upon, first, in an amount equal to the aggregate unreimbursed Realized Losses previously allocated to each such Class, and then, in an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

(iv)      fourth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest and the Class A-S-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(v)       fifth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class A-S Upper-Tier Regular Interest has been reduced to zero;

 

(vi)      sixth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

 

(vii)      seventh, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest and the Class B-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(viii)     eighth, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class B Upper-Tier Regular Interest has been reduced to zero;

 

 -323-

 

 

(ix)     ninth, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

 

(x)       tenth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(xi)      eleventh, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class C Upper-Tier Regular Interest has been reduced to zero;

 

(xii)      twelfth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

 

(xiii)     thirteenth, to the Holders of the Class D Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xiv)     fourteenth, to the Holders of the Class D Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class D Certificates has been reduced to zero;

 

(xv)       fifteenth, to the Holders of the Class D Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

(xvi)     sixteenth, to the Holders of the Class E Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xvii)    seventeenth, to the Holders of the Class E Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class E Certificates has been reduced to zero;

 

 -324-

 

 

(xviii)   eighteenth, to the Holders of the Class E Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

(xix)     nineteenth, to the Holders of the Class F Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xx)      twentieth, to the Holders of the Class F Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class F Certificates has been reduced to zero;

 

(xxi)     twenty-first, to the Holders of the Class F Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

(xxii)    twenty-second, to the Holders of the Class G Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xxiii)    twenty-third, to the Holders of the Class G Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class G Certificates has been reduced to zero;

 

(xxiv)    twenty-fourth, to the Holders of the Class G Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

(xxv)    twenty-fifth, to the Holders of the Class H Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xxvi)     twenty-sixth, to the Holders of the Class H Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class H Certificates has been reduced to zero;

 

(xxvii)    twenty-seventh, to the Holders of the Class H Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

 

 -325-

 

 

(xxviii)   twenty-eighth, to the Holders of the Class J Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xxix)      twenty-ninth, to the Holders of the Class J Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class J Certificates has been reduced to zero;

 

(xxx)      thirtieth, to the Holders of the Class J Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class; and

 

(xxxi)     thirty-first, to the Holders of the Class R Certificates in respect of the Class UR Interest, the amount, if any, of the Available Funds remaining in the Upper-Tier REMIC Distribution Account with respect to such Distribution Date.

 

If, in connection with any Distribution Date, the Certificate Administrator has reported the amount of an anticipated distribution to DTC based on the receipt of payments as of the Determination Date and additional Periodic Payments, balloon payments or unscheduled principal payments are subsequently received by the applicable Master Servicer and required to be part of the Aggregate Available Funds for such Distribution Date, such Master Servicer shall promptly notify the Certificate Administrator and the Certificate Administrator will use commercially reasonable efforts to cause DTC to make the revised distribution on a timely basis on such Distribution Date. Each applicable Master Servicer, each applicable Special Servicer and the Certificate Administrator shall not be liable or held responsible for any resulting delay in the making of such distribution to Certificateholders solely on the basis of the actions described in the preceding sentence.

 

Amounts distributable or otherwise allocable to any Exchangeable Upper-Tier Regular Interest set forth above will be distributed to the corresponding Classes of Exchangeable Certificates in accordance with their Class Percentage Interests therein pursuant to Section 5.11.

 

(b)       Distributions of Retained Certificate Available Funds. On each Distribution Date, to the extent of the Retained Certificate Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to the LRR Uncertificated Interest, and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

 

(i)         first, to the Holders of the RR Interest, in respect of interest, up to an amount equal to the Retained Certificate Interest Distribution Amount for such Distribution Date;

 

 -326-

 

 

(ii)       second, to the Holders of the RR Interest, in reduction of the Certificate Balance thereof, an amount equal to the Retained Certificate Principal Distribution Amount for such Distribution Date, until the outstanding Certificate Balance of the RR Interest has been reduced to zero; and

 

(iii)      third, to the Holders of the RR Interest, up to an amount equal to the Retained Certificate Realized Loss Distribution Amount for such Distribution Date;

 

provided, however, that to the extent any Retained Certificate Available Funds remain in the Upper-Tier REMIC Distribution Account after applying amounts as set forth in clauses (i) – (iii) above, any such amounts so remaining shall be disbursed to the Holders of the Class R Certificates in respect of the Class UR Interest.

 

(c)       On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to receive distributions in respect of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, in an amount equal to the amount of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, actually distributable to the Holders of the respective Related Certificates or Related Exchangeable Upper-Tier Regular Interests as provided in Sections 4.01(a), 4.01(b), 4.01(d), 4.01(f) and 4.01(i) such that at all times the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests is equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest. On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to receive distributions in respect of interest in an amount equal to the Interest Distribution Amount or Retained Certificate Interest Distribution Amount, as applicable, in respect of each Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest plus a pro rata portion of the Interest Distribution Amount in respect of (i) in the case of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4 and Class LA5 Uncertificated Interests, the Class X-A Certificates, (ii) in the case of the Class LAS and Class LB Uncertificated Interests, the Class X-B Certificates, (iii) in the case of the Class LD and Class LE Uncertificated Interests, the Class X-D Certificates, (iv) in the case of the Class LF Uncertificated Interest, the Class X-F Certificates, (v) in the case of the Class LG Uncertificated Interest, the Class X-G Certificates, (vi) in the case of the Class LH Uncertificated Interest, the Class X-H Certificates or (vii) in the case of the Class LJ Uncertificated Interest, the Class X-J Certificates, in each case, computed based on an interest rate equal to the excess of the Weighted Average Net Mortgage Rate over the Pass-Through Rate of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest and a notional amount equal to its related Lower-Tier Principal Amount, in each case to the extent actually distributable thereon as provided in Section 4.01(a) or 4.01(b), as applicable. Amounts distributable pursuant to this paragraph are referred to herein collectively as the “Lower-Tier Distribution Amount”, and shall be made by the Certificate Administrator by deeming such Lower-Tier Distribution Amount to be withdrawn from the Lower-Tier REMIC Distribution Account to be deposited in the Upper-Tier REMIC Distribution Account.

 

As of any date, the principal balance of each Lower-Tier Regular Interest shall equal the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest with respect thereto, as adjusted for the allocation of Realized Losses and Retained Certificate Realized Losses, as provided in Sections 4.04(b) and 4.04(c). The initial

 

 -327-

 

 

principal balance of each Lower-Tier Regular Interest shall equal the respective Original Lower-Tier Principal Amount. The Pass-Through Rate with respect to each Lower-Tier Regular Interest for any Distribution Date shall be the Weighted Average Net Mortgage Rate for such Distribution Date.

 

Any amount that remains in the Lower-Tier REMIC Distribution Account on each Distribution Date after distribution of the Lower-Tier Distribution Amount and distribution of Prepayment Premiums and Yield Maintenance Charges pursuant to Section 4.01(e) shall be distributed to the Holders of the Class R Certificates in respect of the Class LR Interest (but only to the extent of the Aggregate Available Funds for such Distribution Date remaining in the Lower-Tier REMIC Distribution Account, if any).

 

(d)         After the Certificate Balance of any Class of Certificates has been reduced to zero, such Class shall not be entitled to any further distributions in respect of interest or principal other than reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, and other amounts provided for in this Section 4.01.

 

(e)          Funds on deposit in the Distribution Account on each Distribution Date that represent Prepayment Premiums or Yield Maintenance Charges received by the Trust with respect to any Mortgage Loan or REO Loan (but excluding any related Companion Loan) during the related Collection Period, in each case net of any Liquidation Fees or Workout Fees payable therefrom, shall be distributable as follows: if any Yield Maintenance Charge or Prepayment Premium is collected during any particular Collection Period with respect to any Mortgage Loan, then on the Distribution Date corresponding to that Collection Period, the Certificate Administrator shall pay that Yield Maintenance Charge or Prepayment Premium (net of Liquidation Fees or Workout Fees payable therefrom) in the following manner:

 

(i)          to the Non-Retained Certificates, in the following amounts:

 

(A)      to each Class of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1, Class C-2, Class D and Class E Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) the related Base Interest Fraction for such Class of Certificates and the applicable principal prepayment, and (3) a fraction, the numerator of which is equal to the amount of principal distributed to such Class of Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date;

 

(B)      to the Class A-4-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-1 Certificates for that Distribution Date, and the denominator of

 

 -328-

 

 

which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-4-1 Certificates and the applicable principal prepayment;

 

(C)      to the Class A-4-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-4-2 Certificates and the applicable principal prepayment;

 

(D)      to the Class A-5-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-5 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-5-1 Certificates and the applicable principal prepayment;

 

(E)      to the Class A-5-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-5 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-5-2 Certificates and the applicable principal prepayment;

 

 -329-

 

 

(F)       to the Class A-S-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-S-1 Certificates and the applicable principal prepayment;

 

(G)      to the Class A-S-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-S-2 Certificates and the applicable principal prepayment;

 

(H)      to the Class B-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class B-1 Certificates and the applicable principal prepayment;

 

(I)       to the Class B-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable

 

 -330-

 

 

Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class B-2 Certificates and the applicable principal prepayment;

 

(J)       to the Class C-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class C-1 Certificates and the applicable principal prepayment;

 

(K)      to the Class C-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class C-2 Certificates and the applicable principal prepayment;

 

(L)      to the Class X-A Certificates, the excess, if any, of (1) the product of (i) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium and (ii) a fraction, the numerator of which is equal to the total amount of principal distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates and the Class A-5 Exchangeable Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date, over (2) the total amount of such Yield Maintenance Charge or Prepayment Premium distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates and the Class A-5 Exchangeable Certificates as described above;

 

 -331-

 

 

(M)     to the Class X-B Certificates, the excess, if any, of (1) the product of (i) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium and (ii) a fraction, the numerator of which is equal to the total amount of principal distributed to the Class A-S Exchangeable Certificates and the Class B Exchangeable Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date, over (2) the total amount of such Yield Maintenance Charge or Prepayment Premium distributed to the Class A-S Exchangeable Certificates and the Class B Exchangeable Certificates as described above; and

 

(N)      to the Class X-D Certificates, any remaining portion of the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium not distributed as described above in this clause (i); and

 

(ii)         to the RR Interest, the Required Credit Risk Retention Percentage of such Yield Maintenance Charge or Prepayment Premium.

 

For purposes of the first paragraph of this Section 4.01(e), the relevant “Base Interest Fraction” in connection with any Principal Prepayment of any Mortgage Loan that provides for the payment of a Yield Maintenance Charge or Prepayment Premium, and with respect to any Class of Principal Balance Certificates (other than the RR Interest), shall be a fraction (A) the numerator of which is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on such Class for the related Distribution Date, and (ii) the applicable Discount Rate and (B) the denominator of which is the difference between (i) the Mortgage Rate on such Mortgage Loan and (ii) the applicable Discount Rate; provided that: (a) under no circumstances will the Base Interest Fraction be greater than 1.0; (b) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is greater than or equal to the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction will equal zero; and (c) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is less than the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction shall be equal to 1.0. If a Mortgage Loan provides for a step-up in the Mortgage Rate, then the Mortgage Rate used in the determination of the Base Interest Fraction will be the Mortgage Rate in effect at the time of the prepayment.

 

For purposes of the preceding paragraph, the relevant “Discount Rate” in connection with any Prepayment Premium or Yield Maintenance Charge collected on any prepaid Mortgage Loan or REO Loan and distributable on any Distribution Date shall be a rate per annum equal to (i) if a discount rate was used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, such discount rate (as reported by the applicable Master Servicer), converted (if necessary) to a monthly equivalent yield, or (ii) if a discount rate was not used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, the yield calculated by the linear

 

 -332-

 

 

interpolation of the yields (as reported under the heading “U.S. Government Securities/Treasury Constant Maturities” in Federal Reserve Statistical Release H.15 (519) published by the Federal Reserve Board for the week most recently ended before the date of the relevant prepayment (or deemed prepayment) of U.S. Treasury constant maturities with a maturity date, one longer and one shorter, most nearly approximating the related Stated Maturity Date (in the case of a Mortgage Loan or REO Loan that is not related to an ARD Loan) or the related Anticipated Repayment Date (in the case of a Mortgage Loan or REO Loan that is related to an ARD Loan)), such interpolated yield converted to a monthly equivalent yield. If Federal Reserve Statistical Release H.15 (519) is no longer published, the Certificate Administrator shall select a comparable publication as the source of the applicable yields of U.S. Treasury constant maturities.

 

No Yield Maintenance Charge or Prepayment Premium shall be distributed to the Class X-F, Class X-G, Class X-H, Class X-J, Class F, Class G, Class H, Class J, Class R or Class V Certificates.

 

All distributions of Yield Maintenance Charges and Prepayment Premiums made in respect of the respective Classes of Regular Certificates and Exchangeable Certificates on each Distribution Date pursuant to Section 4.01(e) shall first be deemed to be distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Lower-Tier Regular Interests, pro rata based upon the amount of principal distributed in respect of each such Class of Lower-Tier Regular Interests for such Distribution Date pursuant to Section 4.01(c) above.

 

(f)       On each Distribution Date, the Certificate Administrator shall withdraw amounts from the Gain-on-Sale Reserve Account (other than amounts with respect to a Non-Serviced Mortgage Loan) equal to the Gain-on-Sale Remittance Amount for such Distribution Date. The Certificate Administrator shall deposit such amounts in the Distribution Account for distribution pursuant to Section 4.01(a) to the Holders of the Regular Certificates (other than the RR Interest) and the Exchangeable Upper-Tier Regular Interests (and correspondingly, the Exchangeable Certificates) in order of distribution priority (first deeming such amounts to be distributed with respect to the Related Lower-Tier Regular Interests). Amounts paid in reimbursement of Realized Losses shall not reduce the Certificate Balances of the Classes of Certificates receiving such distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after such distributions shall be applied to offset future Realized Losses with respect to the Principal Balance Certificates and related Realized Losses in each case allocable to the Regular Certificates (other than the RR Interest) and the Exchangeable Certificates. Upon termination of the Trust, any amounts remaining in the Gain-on-Sale Reserve Account shall be distributed to the Holders of the Class R Certificates from the Lower-Tier REMIC in respect of the Class LR Interest.

 

In addition, on each Distribution Date, the Certificate Administrator shall withdraw amounts from the Retained Certificate Gain-on-Sale Reserve Account (other than amounts with respect to a Non-Serviced Mortgage Loan) equal to the Retained Certificate Gain-on-Sale Remittance Amount for such Distribution Date. The Certificate Administrator shall deposit such amounts in the Distribution Account for distribution pursuant to Section 4.01(b) to the Holders of the RR Interest (first deeming such amounts to be distributed with respect to the Related Lower-Tier Regular Interest). Amounts paid in reimbursement of Retained Certificate Realized Losses shall not reduce the Certificate Balance of the RR Interest if it receives such distributions. Any amounts remaining in the Retained Certificate Gain-on-Sale Reserve Account after such

 

 -333-

 

 

distributions shall be applied to offset future Retained Certificate Realized Losses with respect to the RR Interest. Upon termination of the Trust, any amounts remaining in the Retained Certificate Gain-on-Sale Reserve Account shall be distributed to the Holders of the Class R Certificates from the Lower-Tier REMIC in respect of the Class LR Interest.

 

(g)       All distributions made with respect to each Class of Certificates on each Distribution Date shall be allocated pro rata among the outstanding Certificates in such Class based on their respective Percentage Interests. Except as otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such distributions with respect to each Class on each Distribution Date shall be made to the Certificateholders of the respective Class of record at the close of business on the related Record Date and shall be made by wire transfer of immediately available funds to the account of any such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided the Certificate Administrator with wiring instructions no less than five (5) Business Days prior to the related Record Date (which wiring instructions may be in the form of a standing order applicable to all subsequent Distribution Dates), or otherwise by check mailed to such Certificateholder at its address in the Certificate Register. The final distribution on each Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Certificate) will be made in like manner, but only upon presentation and surrender of such Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Each distribution with respect to a Book-Entry Certificate shall be paid to the Depository, as Holder thereof, and the Depository shall be responsible for crediting the amount of such distribution to the accounts of its Depository Participants in accordance with its normal procedures. Each Depository Participant shall be responsible for disbursing such distribution to the Certificate Owners that it represents and to each indirect participating brokerage firm (a “brokerage firm” or “indirect participating firm”) for which it acts as agent. Each brokerage firm shall be responsible for disbursing funds to the Certificate Owners that it represents. None of the Trustee, the Certificate Administrator, the Certificate Registrar, the Depositor, any Master Servicer, any Special Servicer or the Underwriters shall have any responsibility therefor except as otherwise provided by this Agreement or applicable law.

 

(h)       Except as otherwise provided in Section 9.01, whenever the Certificate Administrator expects that the final distribution with respect to any Class of Certificates (determined without regard to any possible future reimbursement of any amount of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Class of Certificates) will be made on the next Distribution Date, the Certificate Administrator shall, no later than the related P&I Advance Determination Date, post on the Certificate Administrator’s Website pursuant to Section 3.13(b) a notice in electronic format to the effect that:

 

(i)       the Certificate Administrator expects that the final distribution with respect to such Class of Certificates will be made on such Distribution Date but only upon presentation and surrender of such Certificates at the offices of the Certificate Registrar or such other location therein specified; and

 

 -334-

 

 

(ii)      no interest shall accrue on such Certificates from and after such Distribution Date.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section 4.01(h) shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust hereunder by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.01(h).

 

(i)        Distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to the Regular Certificates and Exchangeable Certificates shall be made in the amounts and manner specified in Section 4.01(a), Section 4.01(b) or Section 4.01(d), as applicable, to the Holders of the respective Class otherwise entitled to distributions of interest and principal on such Class on the relevant Distribution Date; provided that all distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to a Class of Certificates which has since been retired shall be to the prior Holders that surrendered the Certificates of such Class upon retirement thereof and shall be made by check mailed to the address of each such prior Holder last shown in the Certificate Register. Notice of any such distribution to a prior Holder shall be made in accordance with Section 13.05 at such last address. The amount of the distribution to each such prior Holder shall be based upon the aggregate Percentage Interest evidenced by the Certificates surrendered thereby. If the check mailed to any such prior Holder is returned uncashed, then the amount thereof shall be set aside and held uninvested in trust for the benefit of such prior Holder, and the Certificate Administrator shall attempt to contact such prior Holder in the manner contemplated by Section 4.01(h) as if such Holder had failed to surrender its Certificates.

 

(j)        On each Distribution Date, any Excess Interest received during the related Collection Period with respect to any ARD Loans shall be distributed (i) to the Holders of the Excess Interest Certificates in an amount equal to the Non-Retained Percentage of such Excess Interest and (ii) to the Holders of the RR Interest in an amount equal to the Required Credit Risk Retention Percentage of such Excess Interest, in each case, from the Excess Interest Distribution Account. Excess Interest will not be available to pay any other amounts except for distributions on Excess Interest Certificates and the RR Interest as set forth in the prior sentence.

 

 -335-

 

 

(k)       On each Serviced Whole Loan Remittance Date, with respect to any Serviced Companion Loan, the Companion Paying Agent shall make withdrawals and payments from the Companion Distribution Account for each Companion Loan in the following order of priority:

 

(i)       to pay to the applicable Master Servicer for deposit into the applicable Collection Account, as applicable, any amounts deposited by such Master Servicer in the Companion Distribution Account not required to be deposited therein;

 

(ii)      to the extent permitted under the related Intercreditor Agreement and not otherwise previously reimbursed, to pay the Trustee or the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05, to the extent any such amounts relate solely to a Serviced Whole Loan related to such Companion Loan, and such amounts are to be paid by the related Companion Holder pursuant to the related Intercreditor Agreement;

 

(iii)     to pay all amounts remaining in the Companion Distribution Account related to such Serviced Companion Loan to the related Companion Holder, in accordance with the related Intercreditor Agreement; and

 

(iv)     to clear and terminate the Companion Distribution Account at the termination of this Agreement pursuant to Section 9.01.

 

All distributions from the Companion Distribution Account required hereunder shall be made by the Companion Paying Agent to the related Companion Holder by wire transfer in immediately available funds on each Serviced Whole Loan Remittance Date (and on each additional date required by this Agreement or the related Intercreditor Agreement) to the account of such Companion Holder or an agent therefor appearing on the Serviced Companion Noteholder Register on the related Record Date (or, if no such account so appears or information relating thereto is not provided at least five (5) Business Days prior to the related Record Date, by check sent by first class mail to the address of such Companion Holder or its agent appearing on the Serviced Companion Noteholder Register). Any such account shall be located at a commercial bank in the United States.

 

On the final Remittance Date, each Master Servicer shall withdraw from its Collection Account and deliver to the Certificate Administrator who shall distribute to the Mortgage Loan Sellers, any Loss of Value Payments relating to the Mortgage Loans that it is servicing and that were transferred from the Loss of Value Reserve Fund to its Collection Account on the immediately preceding Remittance Date.

 

Section 4.02    Distribution Date Statements; CREFC^® Investor Reporting Packages; Grant of Power of Attorney. (a) On each Distribution Date, the Certificate Administrator shall make available pursuant to Section 3.13(b) on the Certificate Administrator’s Website to any Privileged Person a statement (substantially in the form set forth as Exhibit G hereto and based in part upon information supplied to the Certificate Administrator in the related CREFC^® Investor

 

 -336-

 

 

Reporting Package in accordance with CREFC^® guidelines) as to the distributions made on such Distribution Date (each, a “Distribution Date Statement”) which shall include:

 

(i)         the amount of the distribution on such Distribution Date to the Holders of each Class of Certificates in reduction of the Certificate Balance thereof;

 

(ii)       the aggregate amount of Advances made, with respect to the pool of Mortgage Loans, during the period from but not including the previous Distribution Date to and including such Distribution Date and details of P&I Advances as of the P&I Advance Date;

 

(iii)      the aggregate amount of compensation paid to the Trustee and the Certificate Administrator, servicing compensation paid to the applicable Master Servicer and the applicable Special Servicer, compensation paid to the Operating Advisor, compensation paid to the Asset Representations Reviewer and CREFC^® Intellectual Property Royalty License Fees paid to CREFC^®, in each case, with respect to the Collection Period for such Determination Date together with detailed calculations of servicing compensation paid to such Master Servicer and such Special Servicer;

 

(iv)      the aggregate Stated Principal Balance of the Mortgage Loans and any REO Loans (but excluding any related Companion Loans), with respect to the pool of Mortgage Loans, outstanding immediately before and immediately after such Distribution Date;

 

(v)        the aggregate amount of unscheduled payments received;

 

(vi)      the number of loans, their aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans, as of the end of the related Collection Period for such Distribution Date;

 

(vii)      the number and aggregate principal balance of the Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 days to 120 days, (D) current but specially serviced or in foreclosure but not an REO Property and (E) for which the related Mortgagor is subject to oversight by a bankruptcy court;

 

(viii)    the value of any REO Property (and, with respect to any Serviced Whole Loan, the trust’s interest therein) included in the Trust Fund as of the end of the related Determination Date for such Distribution Date, on a loan-by-loan basis, based on the most recent Appraisal or valuation;

 

(ix)       the Available Funds and Retained Certificate Available Funds for such Distribution Date;

 

(x)        the (A) Interest Distribution Amount, Interest Accrual Amount and Interest Shortfall or (B) Retained Certificate Interest Distribution Amount, as applicable, in respect of such Class of Certificates for such Distribution Date, separately identifying any Interest Distribution Amount, Interest Accrual Amount, Interest Shortfall or Retained Certificate

 

 -337-

 

 

Interest Distribution Amount, as applicable, for such Distribution Date allocated to such Class of Certificates;

 

(xi)       the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates allocable to (A) Yield Maintenance Charges, (B) in the case of the Class V Certificates and the RR Interest, Excess Interest and (C) Prepayment Premiums;

 

(xii)       the Pass-Through Rate for such Class of Certificates for such Distribution Date and the next succeeding Distribution Date;

 

(xiii)     the Scheduled Principal Distribution Amount and the Unscheduled Principal Distribution Amount for such Distribution Date, with respect to the pool of Mortgage Loans;

 

(xiv)     the Certificate Balance or Notional Amount, as the case may be, of each Class of Certificates immediately before and immediately after such Distribution Date, separately identifying any reduction therein as a result of the allocation of any Realized Loss or Retained Certificate Realized Loss, as applicable, on such Distribution Date and the aggregate amount of all reductions as a result of allocations of Realized Losses or Retained Certificate Realized Losses, as applicable, in respect of the Principal Balance Certificates (other than the RR Interest) and the RR Interest, respectively, to date;

 

(xv)      the Certificate Factor for each Class of Certificates (other than the Class R and Class V Certificates) immediately following such Distribution Date;

 

(xvi)     the amount of any Cumulative Appraisal Reduction Amounts effected (including, with respect to any Serviced Whole Loan, the amount allocable to the related Mortgage Loan and Serviced Companion Loan) in connection with such Distribution Date on a loan-by-loan basis;

 

(xvii)    the current Controlling Class;

 

(xviii)   the number and related Stated Principal Balance of any Mortgage Loans extended or modified since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) on a loan-by-loan basis;

 

(xix)      a loan-by-loan listing of each Mortgage Loan which was the subject of a Principal Prepayment since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) and the amount and the type of Principal Prepayment occurring;

 

(xx)       a loan-by-loan listing of each Mortgage Loan which was defeased since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

 

(xxi)      all deposits into, withdrawals from, and the balance of the Interest Reserve Account on the P&I Advance Date;

 

 -338-

 

 

(xxii)        in the case of the Class R Certificates, the amount of any distributions on such Certificates pursuant to Sections 4.01(a), 4.01(b), 4.01(c) and 4.01(f);

 

(xxiii)       the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates in reimbursement of previously allocated Realized Losses or Retained Certificate Realized Losses, as applicable;

 

(xxiv)       the aggregate unpaid principal balance of the Mortgage Loans outstanding as of the close of business on the related Determination Date, with respect to the pool of Mortgage Loans;

 

(xxv)        with respect to any Mortgage Loan as to which a Liquidation Event occurred since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) or prior to the related Determination Date (other than a payment in full), (A) the loan number thereof, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with such Liquidation Event (separately identifying the portion thereof allocable to distributions on the Certificates), (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in connection with such Liquidation Event, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in connection with such Liquidation Event;

 

(xxvi)       with respect to any REO Property (including, with respect to any Non-Serviced Whole Loan, the Trust’s interest therein) included in the Trust as to which the applicable Special Servicer determined, in accordance with the Servicing Standard, that all payments or recoveries with respect to the Mortgaged Property have been ultimately recovered since the previous Determination Date, (A) the loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Certificates), (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in respect of the related REO Loan in connection with that determination, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in respect of the related REO Loan in connection with that determination;

 

(xxvii)      the aggregate amount of interest on P&I Advances paid to the applicable Master Servicer and the Trustee since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date), with respect to the pool of Mortgage Loans;

 

(xxviii)     exchanges of Exchangeable Certificates that took place since the last Distribution Date and the designations of the applicable Classes that were exchanged or, if applicable, that no such exchanges have occurred;

 

(xxix)        the then-current credit support levels for each Class of Certificates;

 

 -339-

 

 

(xxx)     the aggregate amount of Prepayment Premiums and Yield Maintenance Charges on the Mortgage Loans (each separately identified) collected since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

 

(xxxi)       a loan-by-loan listing of any material modification, extension or waiver of a Mortgage Loan;

 

(xxxii)      a loan-by-loan listing of any material breach of the representations and warranties given with respect to a Mortgage Loan by the applicable Mortgage Loan Seller;

 

(xxxiii)     an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, which information will be provided to the Certificate Administrator by the applicable Master Servicer; and

 

(xxxiv)      the amount of any Excess Interest actually received.

 

In the case of information furnished pursuant to clauses (i), (ix), (x), (xi), (xiv), (xxiii), (xxiv) and (xxxiv) above, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per Definitive Certificate.

 

The Certificate Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information only by virtue of its receipt and posting of such information to the Certificate Administrator’s website.

 

Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate, a statement containing the information set forth in clauses (i) and (x) above as to the applicable Class, aggregated for such calendar year or applicable portion thereof during which person was a Certificateholder, together with such other information as the Certificate Administrator deems necessary or desirable, or that a Certificateholder or Certificate Owner reasonably requests, to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.

 

Upon receipt of an Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall (i) include such Asset Review Report Summary in Item 1B on the Form 10-D for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

 

(b)       [RESERVED].

 

(c)       Each applicable Master Servicer and each applicable Special Servicer may, at its sole cost and expense, make available by electronic media, bulletin board service or Internet website (in addition to making information available as provided herein) any reports or other information such Master Servicer or such Special Servicer, as applicable, is required or permitted

 

 -340-

 

 

to provide to any party to this Agreement, the Rating Agencies or any Certificateholder or any prospective Certificateholder that has provided such Master Servicer or such Special Servicer, as applicable, with an Investor Certification or has executed a “click-through” confidentiality agreement in accordance with Section 3.13 (which may be a licensed or registered investment advisor) to the extent such action does not conflict with the terms of this Agreement (including without limitation, any requirements to keep Privileged Information confidential), the terms of the Mortgage Loans or applicable law. Notwithstanding this paragraph, the availability of such information or reports on the Internet or similar electronic media shall not be deemed to satisfy any specific delivery requirements in this Agreement except as set forth herein. In connection with providing access to the applicable Master Servicer’s Internet website, such Master Servicer shall take reasonable measures to ensure that only such parties listed above may access such information including, without limitation, requiring registration, a confidentiality agreement and acceptance of a disclaimer. No Master Servicer or Special Servicer, as the case may be, shall be liable for dissemination of this information in accordance with this Agreement, and no Master Servicer or Special Servicer shall be responsible for any information delivered, produced, or made available pursuant to Section 3.13 and Section 4.02(a), other than information produced by such Master Servicer or such Special Servicer, as applicable; provided that such information otherwise meets the requirements set forth herein with respect to the form and substance of such information or reports. The applicable Master Servicer shall be entitled to attach to any report provided pursuant to this Section 4.02(c), any reasonable disclaimer with respect to information provided, or any assumptions required to be made by such report.

 

Each Special Servicer shall from time to time (and, in any event, as may be reasonably required by the applicable Master Servicer) provide the applicable Master Servicer with such information in its possession regarding the Specially Serviced Loans and REO Properties as may be necessary for the applicable Master Servicer to prepare each report and any supplemental information to be provided by the applicable Master Servicer to the Certificate Administrator. None of the Certificate Administrator, the Trustee or the Depositor shall have any obligation to recompute, verify or recalculate the information provided thereto by the applicable Master Servicer. Unless the Certificate Administrator has actual knowledge that any report or file received from such Master Servicer contains erroneous information, the Certificate Administrator is authorized to rely thereon in calculating and making distributions to Certificateholders in accordance with Section 4.01, preparing the Distribution Date Statement required by Section 4.02(a) and allocating Realized Losses and/or Retained Certificate Realized Losses, as applicable, to the Certificates in accordance with Section 4.04.

 

Notwithstanding the foregoing, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed pursuant to this Section 4.02(c) or Section 4.02(d) shall not constitute a breach of this Section 4.02(c) or of Section 4.02(d) to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or the Mortgaged Properties. The applicable Master Servicer or the applicable Special Servicer may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

 

 -341-

 

 

(d)       Upon the written request of a Certificateholder, any beneficial owner of a Certificate, or any prospective purchaser of a Certificate that is a Qualified Institutional Buyer and is designated by a Certificateholder or a beneficial owner of a Certificate as such and, in any case, has delivered an Investor Certification to the Depositor and the Certificate Administrator, as soon as reasonably practicable, at the expense of the requesting party, the Certificate Administrator shall make available to the requesting party such information that is in the Certificate Administrator’s possession or can reasonably be obtained by the Certificate Administrator as is requested by such person, for purposes of satisfying applicable reporting requirements under Rule 144A under the Securities Act. Neither the Certificate Registrar, nor the Certificate Administrator shall have any responsibility for the sufficiency under Rule 144A or any other securities laws of any available information so furnished to any person including any prospective purchaser of a Certificate or any interest therein, nor for the content or accuracy of any information so furnished which was prepared or delivered to them by another.

 

(e)       The information to which any Certificateholder is entitled is limited to the information gathered and provided to the Certificateholder by the parties hereto pursuant to this Agreement and by acceptance of any Certificate, each Certificateholder agrees that except as specifically provided herein, no Certificateholder shall contact any Mortgagor directly with respect to any Mortgage Loan.

 

(f)       Upon the reasonable request of the Directing Certificateholder or any Controlling Class Certificateholder that, in either case, is an Excluded Controlling Class Holder with respect to any Excluded Controlling Class Loan identified to the applicable Master Servicer’s (in the case of a Non-Specially Serviced Loan) or the applicable Special Servicer’s (in the case of a Specially Serviced Loan) reasonable satisfaction (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder) and if such information is in such Master Servicer’s or such Special Servicer’s possession, as applicable, such Master Servicer or such Special Servicer shall provide or make available (or forward electronically) to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder, as applicable) any Excluded Information (available to Privileged Persons through the Certificate Administrator’s Website but not accessible to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, through the Certificate Administrator’s Website because the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, is an Excluded Controlling Class Holder with respect to another Excluded Controlling Class Loan) relating to any Excluded Controlling Class Loan with respect to which the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, is not a Borrower Party; provided that, in connection therewith, the applicable Master Servicer or the applicable Special Servicer may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, generally to the effect that such Person is the Directing Certificateholder or a Controlling Class Certificateholder, will keep such Excluded Information confidential and is not a Borrower Party, upon which such Master Servicer or such Special Servicer may conclusively rely. In addition, the applicable Master Servicer and the applicable Special Servicer shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder, as applicable, of an Investor Certification substantially in the form of Exhibit P-1B that the Directing Certificateholder or Controlling Class Certificateholder is not an Excluded

 

 -342-

 

 

Controlling Class Holder with respect to a particular Mortgage Loan. For the avoidance of doubt, the applicable Special Servicer referenced in this Section 4.02(f) shall include any applicable Excluded Special Servicer with respect to the related Excluded Special Servicer Loan(s).

 

Section 4.03    P&I Advances. (a) On or before 4:00 p.m., New York City time, on each P&I Advance Date, the applicable Master Servicer shall (i) remit to the Certificate Administrator for deposit from its own funds into the Lower-Tier REMIC Distribution Account, an amount equal to the aggregate amount of P&I Advances, if any, with respect to the Mortgage Loans serviced by such Master Servicer to be made in respect of the related Distribution Date, (ii) apply amounts held in the applicable Collection Account, for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made. Any amounts held in the applicable Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer’s records and replaced by such Master Servicer by deposit in the applicable Collection Account on or before the next succeeding P&I Advance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The applicable Master Servicer shall notify the Certificate Administrator of (i) the aggregate amount of P&I Advances to be made by such Master Servicer for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances with respect to Mortgage Loans serviced by such Master Servicer for such Distribution Date, on or before two (2) Business Days prior to such Distribution Date. If the applicable Master Servicer fails to make a required P&I Advance by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on the related Distribution Date, unless such Master Servicer shall have cured such failure (and provided written notice of such cure to the Trustee and the Certificate Administrator) by 11:00 a.m., New York City time, on such Distribution Date. In the event that the applicable Master Servicer fails to make a required P&I Advance hereunder, the Certificate Administrator shall notify the Trustee of such circumstances by 4:30 p.m., New York City time, on the related P&I Advance Date. Notwithstanding the foregoing, the portion of any P&I Advance equal to the CREFC^® Intellectual Property Royalty License Fee shall not be remitted to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account but shall be deposited into the applicable Collection Account for payment to CREFC^® on such Distribution Date.

 

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to any Mortgage Loan that is part of a Whole Loan with a related Serviced Companion Loan, then it shall provide to the related other master servicer and Other Trustee under the Other Pooling and Servicing Agreement written notice of the amount of such P&I Advance with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance.

 

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to a Non-Serviced Mortgage Loan, then it shall provide to the related Non-Serviced Master Servicer and Non-Serviced Trustee written notice of the amount of such P&I Advance within two (2) Business Days of making such P&I Advance.

 

 -343-

 

 

No Special Servicer shall have an obligation to make any P&I Advance or any recoverability determination with respect to any P&I Advance under this Agreement.

 

(b)       Subject to Section 4.03(c) and Section 4.03(e) below, the amount of P&I Advances to be made by each Master Servicer with respect to any Distribution Date, and each Mortgage Loan for which it acts as Master Servicer, shall be equal to: (i) the Periodic Payments (net of related Servicing Fees and, in the case of any Non-Serviced Mortgage Loan, a fee accruing at the related Non-Serviced Primary Servicing Fee Rate) other than Balloon Payments, that were due on such Mortgage Loan (including any Non-Serviced Mortgage Loan) and any REO Loan (other than any portion of an REO Loan related to a Companion Loan) for which it acts as Master Servicer during the related Collection Period and were not received as of the close of business on the Business Day preceding the related P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the applicable Master Servicer) and (ii) with respect to each such Mortgage Loan delinquent in respect of its Balloon Payment as of the P&I Advance Date (including any REO Loan (other than any portion of an REO Loan related to a Companion Loan) as to which the related Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to Section 4.03(c) below, the obligation of the applicable Master Servicer to make such P&I Advances is mandatory, and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan), shall continue until the Distribution Date on which the proceeds, if any, received in connection with a Liquidation Event or the disposition of the REO Property, as the case may be, with respect thereto are to be distributed. No P&I Advances shall be made with respect to any Companion Loan. For the avoidance of doubt, each Master Servicer shall make P&I Advances on the basis of the original terms of any Mortgage Loan, including Mortgage Loans subject to forbearance agreements or other temporary deferrals or payment accommodations, unless (i) the terms of the Mortgage Loan have been permanently modified to reduce or forgive a monetary obligation or (ii) such advance has been determined to be non-recoverable.

 

(c)       Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. With respect to each Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination that a P&I Advance that has been made on such Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Serviced Mortgage Loan independently of any determination made by the applicable Other Servicer or Other Trustee, as the case may be, under the applicable Other Pooling and Servicing Agreement in respect of the related Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Other Servicer, as the case may be, that an Other Servicer or the Other Trustee has determined, in accordance with the applicable Other Pooling and Servicing Agreement with respect to a Serviced Companion Loan, that any proposed advance under the applicable Other Pooling and Servicing Agreement that is similar to a P&I Advance would be, or any outstanding

 

 -344-

 

 

advance under such Other Pooling and Servicing Agreement that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Other Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

 

With respect to each Non-Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination (based on information provided by the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer) that a P&I Advance that has been made on such Non-Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Non-Serviced Mortgage Loan independently of any determination made by the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the Non-Serviced Trustee, as the case may be, under the applicable Non-Serviced PSA in respect of the related Non-Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Non-Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, that either has determined, or the Non-Serviced Trustee has determined, in accordance with the applicable Non-Serviced PSA with respect to a Non-Serviced Companion Loan, that any proposed advance under the applicable Non-Serviced PSA that is similar to a P&I Advance would be, or any outstanding advance under such Non-Serviced PSA that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Non-Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related Non-Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Non-Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall

 

 -345-

 

 

have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

 

(d)       In connection with the recovery of any P&I Advance out of the applicable Collection Account, pursuant to Section 3.05(a), the applicable Master Servicer shall be entitled to pay the Trustee and itself (in that order of priority) as the case may be, out of any amounts then on deposit in the applicable Collection Account (but in no event from any funds allocable to a Serviced Companion Noteholder (unless related thereto), except to the extent permitted pursuant to the terms of the related Intercreditor Agreement), interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such P&I Advance from the date made to but not including the date of reimbursement; provided, however, that no interest will accrue on any P&I Advance (i) if the related Periodic Payment is received on or before the related Due Date has passed and any applicable Grace Period has expired or (ii) if the related Periodic Payment is received after the Determination Date but on or prior to the related P&I Advance Date. The applicable Master Servicer shall reimburse itself and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject to Section 3.17 of this Agreement, as soon as practicably possible after funds available for such purpose are deposited in the applicable Collection Account.

 

(e)       Notwithstanding the foregoing, (i) neither the applicable Master Servicer nor the Trustee shall make an advance for Excess Interest, Yield Maintenance Charges, Default Interest, late payment charges, Prepayment Premiums, or Balloon Payments or make any P&I Advance with respect to any Companion Loan or any cure payment payable by a holder of an AB Subordinate Companion Loan and (ii) if an Appraisal Reduction Amount has been determined with respect to any Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan, an “appraisal reduction amount” (or similar item) has been made in accordance with the related Non-Serviced PSA and the applicable Master Servicer has notice of such appraisal reduction amount) then in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Mortgage Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (x) the amount of the interest portion of such P&I Advance for such Mortgage Loan for such Distribution Date without regard to this clause 4.03(e)(ii), and (y) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (or, in the case of a Serviced Whole Loan, the portion of such Appraisal Reduction Amount allocated to the related Mortgage Loan), if any, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. For purposes of the immediately preceding sentence, the Periodic Payment due on the Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment for the related Distribution Date.

 

Section 4.04    Allocation of Realized Losses. (a) On each Distribution Date, immediately following the distributions to be made on such date pursuant to Section 4.01, the Certificate Administrator shall calculate the Realized Loss and Retained Certificate Realized Loss for such Distribution Date. Any allocation of Realized Losses or Retained Certificate Realized Losses to a Class of Regular Certificates or Exchangeable Certificates or Exchangeable Upper-Tier Regular Interest shall be made by reducing the Certificate Balance thereof by the amount so allocated. Any Realized Losses or Retained Certificate Realized Losses so allocated to a Class of

 

 -346-

 

 

Regular Certificates or Exchangeable Certificates shall be allocated among the respective Certificates of such Class of Regular Certificates or Exchangeable Certificates in proportion to the Percentage Interests evidenced thereby. The allocation of Realized Losses or Retained Certificate Realized Losses shall constitute an allocation of losses and other shortfalls experienced by the Trust. Reimbursement of previously allocated Realized Losses and Retained Certificate Realized Losses will not constitute distributions of principal for any purpose and will not result in an additional reduction in the Certificate Balance of the applicable Class of Certificates or Upper-Tier Regular Interest in respect of which any such reimbursement is made. With respect to any Class of Principal Balance Certificates (other than any Exchangeable Certificates) and Exchangeable Upper-Tier P&I Regular Interests, to the extent any Nonrecoverable Advances (plus interest thereon) that were reimbursed from principal collections on the Mortgage Loans and previously resulted in a reduction of the Aggregate Principal Distribution Amount (and corresponding to a reduction of the Principal Distribution Amount and Retained Certificate Principal Distribution Amount) are subsequently recovered on the related Mortgage Loan, the amount of such recovery will be added to the Certificate Balance of the Class or Classes of such Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interests that previously were allocated Realized Losses and Retained Certificate Realized Losses, as applicable, and in the case of Realized Losses, in sequential order according to the priority of payments for such Principal Balance Certificates (other than the RR Interest) and Exchangeable Upper-Tier P&I Regular Interests (and with respect to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable), on a pro rata basis according to the amount of unreimbursed Realized Losses on such Classes), in each case up to the amount of the unreimbursed Realized Losses and Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interests.

 

(b)       (i) On each Distribution Date, the Certificate Balances of the Principal Balance Certificates (other than any Exchangeable Certificates and the RR Interest) and the Exchangeable Upper-Tier P&I Regular Interests will be reduced without distribution, as a write-off to the extent of any Realized Losses, if any, allocable to such Certificates or Exchangeable Upper-Tier Regular Interests with respect to such Distribution Date. Any such write-off shall be allocated in Reverse Sequential Order.

 

(ii)       On each Distribution Date, the Certificate Balance of the RR Interest will be reduced without distribution, as a write-off to the extent of any Retained Certificate Realized Losses with respect to such Distribution Date.

 

(iii)      Any Realized Losses applied to the Class A-4, Class A-5, Class A-S, Class B or Class C Upper-Tier Regular Interests shall be allocated to the corresponding Classes of Exchangeable Certificates with Certificate Balances that represent an interest therein pro rata to reduce their Certificate Balances in accordance with their Class Percentage Interests therein.

 

(c)       With respect to any Distribution Date, any Realized Losses or Retained Certificate Realized Losses allocated to a Class of Principal Balance Certificates (other than any Exchangeable Certificates) or Exchangeable Upper-Tier P&I Regular Interest pursuant to

 

 -347-

 

 

Section 4.04(a) or Section 4.04(b) with respect to such Distribution Date shall reduce the Lower-Tier Principal Amount of the Related Lower-Tier Regular Interest with respect thereto as a write-off.

 

Section 4.05    Appraisal Reduction Amounts; Collateral Deficiency Amounts. (a) For purposes of (x) determining the Controlling Class (and whether a Control Termination Event has occurred and is continuing) and (y) determining the Voting Rights of the related Classes for purposes of removal of the applicable Special Servicer or the Operating Advisor, Allocated Appraisal Reduction Amounts and Allocated Collateral Deficiency Amounts (with respect to a Serviced Whole Loan, to the extent allocated to the related Mortgage Loan) shall be allocated to each Class of Certificates (other than the RR Interest and any Exchangeable Certificates) and the Exchangeable Upper-Tier Regular Interests in reverse sequential order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class is reduced to zero (i.e., first, to the Class J Certificates, second, to the Class H Certificates, third, to the Class G Certificates, fourth, to the Class F Certificates, fifth, to the Class E Certificates, sixth, to the Class D Certificates, seventh, to the Class C Upper-Tier Regular Interest, eighth, to the Class B Upper-Tier Regular Interest, ninth, to the Class A-S Upper-Tier Regular Interest, and finally, pro rata based on their respective interest entitlements, to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests). Allocated Appraisal Reduction Amounts and Allocated Collateral Deficiency Amounts allocated to any Exchangeable Upper-Tier Regular Interest as set forth above will be allocated to the Classes of Exchangeable P&I Certificates representing interests therein pro rata in accordance with their respective Class Percentage Interests in such Exchangeable Upper-Tier Regular Interest.

 

Appraisal Reduction Amounts and Cumulative Appraisal Reduction Amounts allocated to a related Mortgage Loan will be allocated between the RR Interest on the one hand and the Senior Certificates and Subordinate Certificates, on the other hand, based on the Required Credit Risk Retention Percentage and the Non-Retained Percentage, respectively.

 

As of the first Determination Date following a Serviced Mortgage Loan becoming an AB Modified Loan, the applicable Special Servicer shall calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent Appraisal obtained by the applicable Special Servicer with respect to such Mortgage Loan, and all other information relevant to a Collateral Deficiency Amount determination. The applicable Master Servicer shall provide (via electronic delivery) the applicable Special Servicer with any information in its possession that is reasonable required to determine, redetermine, calculate or recalculate any Collateral Deficiency Amount for any Serviced Mortgage Loan and any Serviced Companion Loan using reasonable efforts to deliver such information within four (4) Business Days of such Special Servicer’s reasonable request. Upon obtaining knowledge or receipt of notice by the applicable Master Servicer that a Non-Serviced Mortgage Loan has become an AB Modified Loan, the applicable Master Servicer shall (i) promptly request from the related Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee the most recent appraisal with respect to such AB Modified Loan, in addition to all other information reasonably required by the applicable Master Servicer to calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, and (ii) as of the first Determination Date following receipt by the applicable Master Servicer of the appraisal and any other information set forth in the immediately preceding clause (i) that the applicable Master Servicer reasonably

 

 -348-

 

 

expects to receive, calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent appraisal obtained by the Non-Serviced Special Servicer with respect to such Non-Serviced Mortgage Loan, and all other information in its possession relevant to a Collateral Deficiency Amount determination. Upon obtaining actual knowledge or receipt of notice by any other party to this Agreement that a Non-Serviced Mortgage Loan has become an AB Modified Loan, such party shall promptly notify the applicable Master Servicer thereof. Upon reasonable prior written request, the applicable Master Servicer shall provide the applicable Special Servicer with information in its possession that is reasonably required to calculate or recalculate any Collateral Deficiency Amount. None of the Master Servicers (with respect to Mortgage Loans (other than the Non-Serviced Mortgage Loans)), the Special Servicers (with respect to Non-Serviced Mortgage Loans), the Operating Advisor (unless a Control Termination Event has occurred and is continuing and the applicable Special Servicer has calculated any such Collateral Deficiency Amount), the Trustee or the Certificate Administrator shall calculate or verify any Collateral Deficiency Amount.

 

For purposes of determining the Controlling Class and whether a Control Termination Event has occurred and is continuing, Allocated Collateral Deficiency Amounts allocated to an AB Modified Loan will be allocated to each Class of Control Eligible Certificates in Reverse Sequential Order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class of Control Eligible Certificates is reduced to zero. For the avoidance of doubt, for purposes of determining the Controlling Class or the occurrence and continuance of a Control Termination Event, any Class of Control Eligible Certificates shall be allocated both applicable Appraisal Reduction Amounts and applicable Collateral Deficiency Amounts (the sum of which shall constitute the applicable Cumulative Appraisal Reduction Amount), in accordance with this Section 4.05(a), but only to the extent of the Allocated Appraisal Reduction Amounts and Allocated Cumulative Appraisal Reduction Amounts.

 

With respect to (i) any Appraisal Reduction Amount calculated for the purposes of determining the Voting Rights of the related Classes for purposes of removal of a Special Servicer or Operating Advisor and (ii) any Appraisal Reduction Amount or Collateral Deficiency Amount calculated for purposes of determining the Controlling Class or the occurrence and continuance of a Control Termination Event, the appraised value of the related Mortgaged Property shall be determined on an “as is” basis.

 

The applicable Special Servicer shall promptly notify the applicable Master Servicer and the Certificate Administrator, to the extent it receives such information, of the amount of any Appraisal Reduction Amount, any Collateral Deficiency Amount and any resulting Cumulative Appraisal Reduction Amount allocated to each Mortgage Loan, AB Modified Loan or Serviced Whole Loan (which notification shall be satisfied through delivery of such Appraisal Reduction Amount as included in the CREFC^® Appraisal Reduction Amount Template included in the CREFC^® Investor Reporting Package with respect to the Collateral Deficiency Amount and the Cumulative Appraisal Reduction Amount) and the Certificate Administrator shall promptly post notice of such Appraisal Reduction Amount, Collateral Deficiency Amount and/or Cumulative Appraisal Reduction Amount, as applicable, to the Certificate Administrator’s Website. Based on information in its possession, the Certificate Administrator shall determine from time to time which Class of Certificates is the Controlling Class. Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall notify the

 

 -349-

 

 

applicable Master Servicer, the applicable Special Servicer and the Operating Advisor of such event, including the identity and contact information of the new Controlling Class Certificateholder and the identity of the Controlling Class as set forth in Section 3.23(m) (the cost of obtaining such information from the Depository being an expense of the Trust).

 

(b)       (i) The Holders of the majority of Voting Rights of any Class of Control Eligible Certificates that is determined at any time of determination to no longer be the Controlling Class because its Certificate Balance has been reduced to less than 25% of its initial Certificate Balance (any such Class, an “Appraised-Out Class”) as a result of an Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) in respect of such Class shall have the right, at their sole expense, to require the applicable Special Servicer to order (or, with respect to a Non-Serviced Mortgage Loan, require the applicable Master Servicer to request from the applicable Non-Serviced Special Servicer) a second Appraisal with respect to any Mortgage Loan (or Serviced Whole Loan) for which an Appraisal Reduction Event has occurred or as to which there exists a Collateral Deficiency Amount (such Holders, the “Requesting Holders”). The applicable Special Servicer shall use its reasonable efforts to cause such second Appraisal to be delivered within thirty (30) days from receipt of the Requesting Holders’ written request and shall cause such Appraisal to be prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the applicable Special Servicer to obtain an additional Appraisal). With respect to any such Non-Serviced Mortgage Loan, the applicable Master Servicer shall use commercially reasonable efforts to obtain such second Appraisal from the applicable Non-Serviced Special Servicer and to forward such second Appraisal to the applicable Special Servicer.

 

(ii)       Upon receipt of any supplemental Appraisal pursuant to clause (i) above, the applicable Master Servicer (for Collateral Deficiency Amounts on Non-Serviced Mortgage Loans), the Non-Serviced Special Servicer (for Appraisal Reduction Amounts on Non-Serviced Mortgage Loans to extent provided for in the applicable Non-Serviced PSA and applicable Intercreditor Agreement) and the applicable Special Servicer (for any Serviced Mortgage Loan) shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such supplemental Appraisal, any recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) is warranted, and if so warranted, such Person shall recalculate the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on such supplemental Appraisal and (for any Serviced Mortgage Loan) any information received from the applicable Master Servicer. If required by such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class and each other Appraised-Out Class shall, if applicable, have its related Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount, Allocated Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable. The Certificate Administrator, the Operating Advisor and the Special Servicers shall be entitled to conclusively rely on the applicable Master Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to Non-Serviced Mortgage Loans. The Holders of an Appraised-Out Class requesting any supplemental Appraisal pursuant to clause (i) above shall refrain from exercising any direction, control, consent and/or similar rights of the Controlling Class until such time, if any, as the Class is reinstated as the Controlling Class (such period

 

 -350-

 

 

beginning upon receipt by the applicable Special Servicer of any request to obtain a supplemental Appraisal pursuant to clause (i) above to but excluding the date on which either (A) the applicable Special Servicer determines that no recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount is warranted or (B) the applicable Special Servicer recalculates the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on the supplemental Appraisal, the “Appraisal Review Period”). The rights of the Controlling Class during each Appraisal Review Period shall be exercised by the next most senior Class of Control Eligible Certificates that is not an Appraised-Out Class, if any.

 

(c)       With respect to each Serviced Mortgage Loan, and each Serviced Whole Loan as to which an Appraisal Reduction Event has occurred (unless such Mortgage Loan or Serviced Whole Loan has become a Corrected Loan (for such purposes taking into account any amendment or modification of such Mortgage Loan, any related Companion Loan or Serviced Whole Loan)), the applicable Special Servicer shall (1) within thirty (30) days of the occurrence or of each anniversary of the related Appraisal Reduction Event, and (2) upon its determination that the value of the related Mortgaged Property has materially changed, notify the applicable Master Servicer of the occurrence of such anniversary or determination and order an Appraisal (which may be an update of a prior Appraisal), the cost of which shall be paid by such Master Servicer as a Servicing Advance or to the extent it would be a Nonrecoverable Advance, an expense of the Trust, or conduct an internal valuation, as applicable and, promptly following receipt of any such Appraisal or performance of such valuation (or receipt of any Appraisal obtained in accordance with Section 4.05(b)(i) above), shall deliver a copy thereof to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder. Based upon such Appraisal or internal valuation (or any Appraisal obtained in accordance with Section 4.05(b) above) and receipt of information reasonably requested by the applicable Special Servicer from the applicable Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount, the applicable Special Servicer shall determine or redetermine, as applicable, and report to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder, the amount and calculation or recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount with respect to such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, and such report shall be delivered in the CREFC^® Appraisal Reduction Template format; provided, however, that the applicable Special Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Master Servicer to provide sufficient information to such Special Servicer to comply with such duties or failure by such Master Servicer to otherwise comply with its obligations hereunder. Following a Master Servicer’s receipt from the applicable Special Servicer of the calculation of the Appraisal Reduction Amounts, such Master Servicer shall provide such information to the Certificate Administrator in the form of the CREFC^® Loan Periodic Update File and the CREFC^® Appraisal Reduction Template provided to it by the applicable Special Servicer or such other report or reports mutually agreed upon between the applicable Master Servicer and the applicable Special Servicer, and the Certificate Administrator will calculate the Allocated Appraisal Reduction Amount and

 

 -351-

 

 

the Allocated Cumulative Appraisal Reduction Amount. Such report of the Appraisal Reduction Amount shall also be promptly forwarded by the applicable Master Servicer (or the applicable Special Servicer if the related Mortgage Loan is a Specially Serviced Loan), to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the Other Servicer or Other Trustee of such Other Securitization into which the related Serviced Companion Loan has been sold, or to the holder of any related Serviced Companion Loan by the applicable Master Servicer (or the applicable Special Servicer if the related Mortgage Loan is a Specially Serviced Loan). If the applicable Special Servicer is required to redetermine the Appraisal Reduction Amount or Collateral Deficiency Amount, such redetermined Appraisal Reduction Amount or Collateral Deficiency Amount shall replace the prior Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, with respect to such Mortgage Loan, Companion Loan or Serviced Whole Loan, as applicable. Prior to the occurrence and continuance of a Consultation Termination Event (and unless the related Mortgage Loan is an Excluded Loan as to such party), the applicable Special Servicer shall consult with the Directing Certificateholder with respect to any Appraisal, valuation or downward adjustment in connection with an Appraisal Reduction Amount or Collateral Deficiency Amount. Notwithstanding the foregoing but subject to Section 4.05(b), the applicable Special Servicer will not be required to obtain an Appraisal or conduct an internal valuation, as applicable, with respect to a Mortgage Loan or related Companion Loan or Serviced Whole Loan as to which an Appraisal Reduction Event has occurred to the extent the applicable Special Servicer has obtained an Appraisal or conducted such a valuation (in accordance with requirements of this Agreement), as applicable, with respect to the related Mortgaged Property within the twelve-month period immediately prior to the occurrence of such Appraisal Reduction Event. Instead, the applicable Special Servicer may use such prior Appraisal or valuation, as applicable, in calculating any Appraisal Reduction Amount with respect to such Mortgage Loan or related Companion Loan or Serviced Whole Loan; provided that the applicable Special Servicer is not aware of any material change to the related Mortgaged Property having occurred and affecting the validity of such Appraisal or valuation.

 

The applicable Master Servicer shall deliver by electronic mail to the applicable Special Servicer any information in its possession or, with respect to Non-Specially Serviced Loans, reasonably obtainable by the applicable Master Servicer that is reasonably required to determine, calculate, redetermine or recalculate any Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, using reasonable efforts to deliver such information, within four (4) Business Days following the applicable Special Servicer’s reasonable request therefor; provided that such Special Servicer’s failure to timely make such request shall not relieve such Master Servicer of its obligation to use reasonable efforts to provide such information to such Special Servicer within four (4) Business Days following such Special Servicer’s reasonable request. The applicable Master Servicer shall not calculate Appraisal Reduction Amounts.

 

(d)       Any Serviced Mortgage Loan, any related Serviced Companion Loan and any Serviced Whole Loan previously subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, which has become a Corrected Loan (for such purposes taking into account any amendment or modification of such Mortgage Loan, any related Serviced Companion Loan and any Serviced Whole Loan, as applicable), and with respect to which no other Appraisal Reduction Event has occurred and is continuing, will no longer be subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount. Any Appraisal Reduction

 

 -352-

 

 

Amount in respect of a Non-Serviced Whole Loan shall be calculated by the applicable party under and in accordance with and pursuant to the terms of the applicable Non-Serviced PSA.

 

(e)       Each Serviced Whole Loan will be treated as a single Mortgage Loan for purposes of calculating an Appraisal Reduction Amount with respect to the Mortgage Loan and Companion Loan(s) that comprise such Serviced Whole Loan. Any Appraisal Reduction Amount in respect of a Serviced AB Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, first, to the related AB Subordinate Companion Loan (until its principal balance is notionally reduced to zero by such Appraisal Reduction Amounts) and second, pro rata, between the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans. Any Appraisal Reduction Amount in respect of any Serviced Pari Passu Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, pro rata, between the related Serviced Pari Passu Mortgage Loan and the related Serviced Pari Passu Companion Loan, based upon their respective outstanding principal balances.

 

Section 4.06    Grantor Trust Reporting.  (a) The parties intend that the portions of the Trust Fund constituting the Grantor Trust, shall constitute, and that the affairs of the Grantor Trust shall be conducted so as to qualify such portion as, a “grantor trust” under subpart E, part I of subchapter J of the Code, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, neither the Trustee nor the Certificate Administrator shall have the power to vary the investment of the Holders of the Class V Certificates, the Exchangeable Certificates or the RR Interest in the Grantor Trust so as to improve their rate of return. The Certificate Administrator shall prepare or cause to be prepared, submit to the Trustee for execution (and the Trustee shall timely execute and timely return to the Certificate Administrator) and timely file all Tax Returns in respect of the Grantor Trust. In addition, the Certificate Administrator shall (A) file, or cause to be filed, Internal Revenue Service Form 1041, Form 1099 or such other form as may be applicable with the Internal Revenue Service with copies of the statements in the following clause, (B) furnish, or cause to be furnished, to the Holders of the Class V Certificates and the RR Interest, their allocable share of income and expense with respect to the Excess Interest and Excess Interest Distribution Account, in the time or times and in the manner required by the Code, and (C) furnish, or cause to be furnished, to the Holders of the Exchangeable Certificates, their allocable share of income and expense with respect to the Exchangeable Upper-Tier REMIC Regular Interests, in the time or times and in the manner required by the Code.

 

(b)       As of the Closing Date, the Grantor Trust is a WHFIT that is a WHMT. The Certificate Administrator shall report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Certificate Administrator to do so is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that Hare & Co. LLC is the only “middleman” as defined in the WHFIT Regulations unless and until the Depositor provides the Certificate Administrator with the identities of other “middlemen” that are Certificateholders. The Certificate Administrator shall be entitled to indemnification in accordance with the terms of this Agreement in the event that the Internal Revenue Service makes a determination that the first sentence of this paragraph is incorrect.

 

 -353-

 

 

(c)       The Certificate Administrator shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available (via its website) WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.

 

(d)       The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Certificate Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each Holder of a Class V Certificate, an Exchangeable Certificate or an RR Interest, by acceptance of its interest in such Class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of a Class V Certificate, an Exchangeable Certificate or an RR Interest, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.

 

(e)       To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on an appropriate website the CUSIP for the Class V Certificates or the Exchangeable Certificates. The CUSIP so published shall represent the Rule 144A CUSIP. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent such CUSIP has been received. Absent the receipt of such CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.

 

Section 4.07    Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool.  (a) The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where (i) Certificateholders and beneficial owners of Certificates that are Privileged Persons may submit questions to (A) the Certificate Administrator relating to the Distribution Date Statement, (B) the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports being made available pursuant to Sections 3.13(b) and Section 3.13(d), the Mortgage Loans (excluding any Non-Serviced Mortgage Loan) or the related Mortgaged Properties or (C) the Operating Advisor relating to the Operating Advisor Annual Report or other reports prepared by the Operating Advisor or actions by the applicable Special Servicer referenced in any Operating Advisor Annual Report (each an “Inquiry” and collectively, “Inquiries”), and (ii) Privileged Persons may view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator or the Operating Advisor, as applicable, and in the case of any Inquiry relating to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer or related

 

 -354-

 

 

Non-Serviced Special Servicer, as applicable, the Certificate Administrator shall forward the Inquiry to the appropriate person (in the case of the General Master Servicer to the following: REAM_InvestorRelations@wellsfargo.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of an Inquiry, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Operating Advisor, as applicable, unless such party determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall be delivered to the Certificate Administrator by electronic mail. In the case of an Inquiry relating to a Non-Serviced Mortgage Loan, the Certificate Administrator shall make reasonable efforts to obtain an answer from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as applicable; provided that the Certificate Administrator shall not be responsible for the content of such answer or any delay or failure to obtain such answer. The Certificate Administrator shall post (within a commercially reasonable period of time following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described above, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, the applicable Mortgage Loan documents or this Agreement, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged Information (subject to the Privileged Information Exception), (vi) that answering the Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or (vii) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor, shall promptly notify the Certificate Administrator of such determination. In addition, no party shall post or otherwise disclose any direct communications with the Directing Certificateholder or the Risk Retention Consultation Party (in its capacity as Risk Retention Consultation Party) as part of its response to any Inquiries. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. Any notice by the Certificate Administrator to the Person who submitted an Inquiry that will not be answered shall include the following statement: “Because the Pooling and Servicing Agreement provides that a Master Servicer, a Special Servicer, the Certificate Administrator and the Operating Advisor shall not answer an Inquiry if it determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described in the Pooling and Servicing Agreement, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law or the applicable Mortgage Loan documents, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional costs or expenses to the Trustee, a Master Servicer, a Special Servicer, the Certificate Administrator or Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged Information, or (vi) answering any Inquiry is otherwise, for any reason, not advisable, no inference should or may be drawn from the fact that a Master Servicer, a Special Servicer, the Certificate Administrator or the Operating Advisor has declined to answer the Inquiry.” Answers posted on

 

 -355-

 

 

the Investor Q&A Forum will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Underwriters or any of their respective Affiliates. None of the Underwriters, the Depositor, the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee or the Operating Advisor or any of their respective Affiliates will certify to any of the information posted in the Investor Q&A Forum and no such party shall have any responsibility or liability for the content of any such information. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. The Investor Q&A Forum will not reflect questions, answers and other communications that are not submitted via the Certificate Administrator’s Website. Notwithstanding the foregoing, the Operating Advisor shall not be required to respond to any Inquiries from Certificateholders for which its response would require the Operating Advisor to provide information to such inquiring Certificateholders that they are otherwise not entitled to receive under the terms of this Agreement.

 

(b)       The Certificate Administrator shall make available to any Certificateholder and any Certificate Owner that is a Privileged Person, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Certificate Owners that are Privileged Persons can register and thereafter obtain information with respect to any other Certificateholder or Certificate Owner that has so registered. Any person registering to use the Investor Registry shall certify that (a) it is a Certificateholder or a Certificate Owner and a Privileged Person and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such certification to persons entitled to access to the Investor Registry. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Certificate Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.

 

(c)       The 17g-5 Information Provider shall make available, only to NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where NRSROs may (i) submit questions to the Certificate Administrator relating to any Distribution Date Statements, or submit questions to the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports prepared by such parties (each such submission, a “Rating Agency Inquiry”), and (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the responses thereto. In addition, NRSROs may use the forum to submit requests (each such submission also, a “Rating Agency Inquiry”) to the applicable Master Servicer for loan-level reports and other related information. Upon receipt of a Rating Agency Inquiry for the applicable Master Servicer or the applicable Special Servicer, the 17g-5 Information Provider shall forward the Rating Agency Inquiry to the

 

 -356-

 

 

appropriate person (in the case of the General Master Servicer to the following: RAInvRequests@wellsfargo.com; and, in the case of the NCB Master Servicer, to the following: BANK2021BNK38@ncb.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of a Rating Agency Inquiry from the 17g-5 Information Provider, the applicable Master Servicer or the applicable Special Servicer, as the case may be, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply by email to the Certificate Administrator. The 17g-5 Information Provider shall post (within a commercially reasonable period of time following receipt of such response) such Rating Agency Inquiry with the related response thereto (or such reports, as applicable) to the Rating Agency Q&A Forum and Document Request Tool. Any reports posted by the 17g-5 Information Provider in response to an inquiry may be posted on a separate website or web page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or any Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege with, or the disclosure of attorney work product, or (iii) (A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, and (B) the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Master Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Rating Agency Inquiry and shall promptly notify the 17g-5 Information Provider by email of such determination. The 17g-5 Information Provider shall promptly thereafter post the Rating Agency Inquiry with the reason it was not answered to the Rating Agency Q&A Forum and Document Request Tool. The 17g-5 Information Provider shall not be liable for the failure by any other such Person to so answer. Questions posted on the Rating Agency Q&A Forum and Document Request Tool shall not be attributed to the submitting NRSRO. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any other person. None of the Underwriters, the Depositor, or any of their respective Affiliates will certify to any of the information posted in the Rating Agency Q&A Forum and Document Request Tool and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications that are not submitted via the 17g-5 Information Provider’s Website.

 

Section 4.08    Secure Data Room. (a) The Certificate Administrator shall create a Secure Data Room and the Depositor shall, upon the receipt of each Mortgage Loan Seller’s Diligence File Certification and within 120 days following the Closing Date, deliver to the Certificate Administrator an electronic copy of the Diligence Files for the Mortgage Loans that have been uploaded by the Mortgage Loan Sellers to the Designated Site. Upon receipt thereof, the Certificate Administrator shall promptly upload the contents of each Diligence File actually

 

 -357-

 

 

received by it to the Secure Data Room. Access to the Secure Data Room shall be granted by the Certificate Administrator to (i) the Asset Representations Reviewer and (ii) any other Person at the direction of the Depositor, in each case, upon the occurrence of an Affirmative Asset Review Vote and receipt by the Certificate Administrator of a certification substantially in the form of Exhibit QQ hereto (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s website). In no case whatsoever shall Certificateholders be permitted to access the Secure Data Room. For the avoidance of doubt, the Certificate Administrator shall be under no obligation to post any documents or information to the Secure Data Room other than the contents of the Diligence Files initially delivered to it by the Depositor.

 

(b)       The Certificate Administrator shall not have any obligation or duty to verify, review, confirm or otherwise determine whether the type, number or contents of any Diligence File delivered to the Certificate Administrator is accurate, complete, or relates to the transaction or confirm that all documents and information constituting any Diligence File have actually been delivered to the Certificate Administrator. In no case shall the Certificate Administrator be deemed to have obtained actual or constructive knowledge of the contents of, or information contained in, any Diligence File by virtue of posting such Diligence File to the Secure Data Room. In the event that any document or information is posted in error, the Certificate Administrator may remove such document or information from the Secure Data Room. The Certificate Administrator shall not have any obligation to produce physical or electronic copies of any document or information provided to it for posting to the Secure Data Room. The Certificate Administrator shall not be responsible or held liable for any other Person’s use or dissemination of the documents or information contained on the Secure Data Room; provided that such event or occurrence is not also a result of its own negligence, bad faith or willful misconduct. The Certificate Administrator shall not be required to restrict access to the Secure Data Room on a loan-by-loan basis and any Person with access to the Secure Data Room shall covenant to access only the information necessary to perform its duties and responsibilities under this Agreement.

 

(c)       Upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07, the Certificate Administrator shall transfer electronic copies of the Diligence Files to a successor certificate administrator designated in writing by the Depositor or the applicable Master Servicer, and all costs and expenses associated with the transfer of the Diligence Files shall be payable as part of the costs and expenses associated with the transfer of its responsibilities upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07. Following the date on which any Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust, the applicable Special Servicer may direct the Certificate Administrator in writing to delete the Diligence File related to such Mortgage Loan from the Secure Data Room; provided that absent such direction, the Certificate Administrator shall not be obligated to delete any Diligence File from the Secure Data Room. Following the termination of the Trust pursuant to Section 9.01, the Certificate Administrator shall be permitted to delete all files from the Secure Data Room. Upon deletion, in no event shall the Certificate Administrator be obligated to reproduce or retrieve such deleted files.

 

[End of Article IV]

 

 -358-

 

 

Article V

THE CERTIFICATES

 

Section 5.01    The Certificates. (a) The Certificates will be substantially in the respective forms annexed hereto as Exhibit A-1 through and including Exhibit A-4, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may, in the reasonable judgment of the Certificate Registrar, be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required by law, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof. The Class X Certificates will be issuable only in minimum Denominations of authorized initial Notional Amount of not less than $1,000,000 and in integral multiples of $1.00 in excess thereof. The Registered Certificates (other than the Class X-A Certificates and Class X-B Certificates) will be issuable only in minimum Denominations of authorized initial Certificate Balance of not less than $10,000, and in integral multiples of $1.00 in excess thereof. The Non-Registered Certificates (other than any Class X Certificates and other than the Class V and Class R Certificates and the RR Interest) will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $100,000, and in integral multiples of $1.00 in excess thereof. The RR Interest will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $1.00, and in integral multiples of $0.01 in excess thereof. If the Original Certificate Balance or initial Notional Amount, as applicable, of any Class (other than the RR Interest) does not equal an integral multiple of $1.00, then a single additional Certificate of such Class may be issued in a minimum denomination of authorized initial Certificate Balance or initial Notional Amount, as applicable, that includes the excess of (i) the Original Certificate Balance or initial Notional Amount, as applicable, of such Class over (ii) the largest integral multiple of $1.00 that does not exceed such amount. The Class R and Class V Certificates shall be issued, maintained and transferred in minimum percentage interests of 10% of such Class R or Class V Certificates and in integral multiples of 1% in excess thereof.

 

(b)           One authorized signatory shall sign the Certificates for the Certificate Registrar by manual or facsimile signature. If an authorized signatory whose signature is on a Certificate no longer holds that office at the time the Certificate Registrar countersigns the Certificate, the Certificate shall be valid nevertheless. A Certificate shall not be valid until an authorized signatory of the Certificate Registrar (who may be the same officer who executed the Certificate) manually countersigns the Certificate. The signature shall be conclusive evidence that the Certificate has been executed and countersigned under this Agreement.

 

Section 5.02    Form and Registration. No transfer of any Non-Registered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer (other than one by the Depositor to an Affiliate thereof or by the Initial Purchasers to KKR CMBS II Aggregator Type 1 L.P. or affiliates thereof) is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, then either:

 

 -359-

 

 

 

 

(a)           Each Class of the Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S under the Act shall initially be represented by a temporary book-entry certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each a “Temporary Regulation S Book-Entry Certificate”), which shall be deposited on the Closing Date on behalf of the purchasers of the Non-Registered Certificates represented thereby with the Certificate Registrar, at its principal trust office, as custodian, for the Depository, and registered in the name of the Depository or the nominee of the Depository for the account of designated agents holding on behalf of Euroclear and/or Clearstream. Prior to the expiration of the 40-day period commencing on the later of the commencement of the offering and the Closing Date (the “Restricted Period”), beneficial interests in each Temporary Regulation S Book-Entry Certificate may be held only through Euroclear or Clearstream. After the expiration of the Restricted Period, a beneficial interest in a Temporary Regulation S Book-Entry Certificate may be exchanged for an interest in the related Regulation S Book-Entry Certificate in the applicable form set forth as an exhibit hereto in accordance with the procedures set forth in Section 5.03(f). During the Restricted Period, distributions due in respect of a beneficial interest in a Temporary Regulation S Book-Entry Certificate shall only be made upon delivery to the Certificate Registrar by Euroclear or Clearstream, as applicable, of a Non-U.S. Beneficial Ownership Certification. After the expiration of the Restricted Period, distributions due in respect of any beneficial interests in a Temporary Regulation S Book-Entry Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the Regulation S Book-Entry Certificate of the same Class is improperly withheld or refused. The aggregate Certificate Balance of a Temporary Regulation S Book-Entry Certificate or a Regulation S Book-Entry Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

 

On the Closing Date, the Certificate Administrator shall execute, the Authenticating Agent shall authenticate, and the Certificate Administrator shall deliver to the Certificate Registrar the Regulation S Book-Entry Certificates, which shall be held by the Certificate Registrar for purposes of effecting the exchanges contemplated by the preceding paragraph. Computershare Trust Company, National Association is hereby initially appointed the Authenticating Agent with the power to act, on the Trustee’s behalf, in the authentication and delivery of the Certificates in connection with transfers and exchanges as herein provided. If Computershare Trust Company, National Association is removed as Certificate Administrator, then Computershare Trust Company, National Association shall be terminated as Authenticating Agent. If the Authenticating Agent is terminated, the Trustee shall appoint a successor authenticating agent, which may be the Trustee or an Affiliate thereof.

 

(b)          Certificates of each Class of Non-Registered Certificates (other than any RR Interest during the RR Interest Transfer Restriction Period) offered and sold to Qualified Institutional Buyers in reliance on Rule 144A under the Act (“Rule 144A”) shall be represented by Rule 144A Book-Entry Certificates, which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Balance of a Rule 144A Book-Entry Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

 

 -360-

 

 

(c)           Certificates of each Class of Non-Registered Certificates that are initially offered and sold to investors that are Institutional Accredited Investors that are not Qualified Institutional Buyers (the “Non-Book Entry Certificates”) shall be in the form of Definitive Certificates, substantially in the applicable form set forth as an exhibit hereto, and shall be registered in the name of such investors or their nominees by the Certificate Registrar who shall deliver the certificates for such Non-Book Entry Certificates to the respective beneficial owners or owners. For the avoidance of doubt, the Class R and Class V Certificates shall only be in the form of Definitive Certificates, and the RR Interest shall be issued in the form of Definitive Certificates at all times during the RR Interest Transfer Restriction Period.

 

(d)          Owners of beneficial interests in Book-Entry Certificates of any Class shall not be entitled to receive physical delivery of certificated Certificates unless: (i) the Depository advises the Certificate Registrar in writing that the Depository is no longer willing or able to discharge properly its responsibilities as depository with respect to the Book-Entry Certificates of such Class or ceases to be a Clearing Agency, and the Certificate Registrar and the Depository are unable to locate a qualified successor within ninety (90) days of such notice or (ii) the Trustee has instituted or has been directed to institute any judicial proceeding to enforce the rights of the Holders of such Class and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Certificate Registrar to obtain possession of the Certificates of such Class; provided, however, that under no circumstances will certificated Non-Registered Certificates be issued to beneficial owners of a Temporary Regulation S Book-Entry Certificate. Upon notice of the occurrence of any of the events described in clause (i) or (ii) above with respect to any Certificates of a Class that are in the form of Book-Entry Certificates and upon surrender by the Depository of any Book-Entry Certificate of such Class and receipt from the Depository of instructions for re-registration, the Certificate Registrar shall issue Certificates of such Class in the form of Definitive Certificates (bearing, in the case of a Definitive Certificate issued for a Rule 144A Book-Entry Certificate, the same legends regarding transfer restrictions borne by such Book-Entry Certificate), and thereafter the Certificate Registrar shall recognize the Holders of such Definitive Certificates as Certificateholders under this Agreement. Unless and until Definitive Certificates are issued in respect of a Class of Book-Entry Certificates, beneficial ownership interests in such Class of Certificates will be maintained and transferred on the book entry records of the Depository and Depository Participants, and all references to actions by Holders of such Class of Certificates will refer to action taken by the Depository upon instructions received from the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures and, except as otherwise set forth herein, all references herein to payments, notices, reports and statements to Holders of such Class of Certificates will refer to payments, notices, reports and statements to the Depository or its nominee as the registered Holder thereof, for distribution to the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures.

 

(e)           Subject to the following provisions, during the RR Interest Transfer Restriction Period, any RR Interest shall only be held as a Definitive Certificate in the Retained Interest Safekeeping Account by the Certificate Administrator (and each Retaining Party’s respective interest shall be tracked in the form of an entry in the Certificate Administrator’s trust accounting system under the Retained Interest Safekeeping Account), for the benefit of the Holder of the related Certificate.

 

 -361-

 

 

The Certificate Administrator shall hold the RR Interest in safekeeping and shall release the Definitive Certificate representing a portion of the requesting Retaining Party’s RR Interest only upon receipt of written instructions from the applicable Holder of the RR Interest and the Retaining Sponsor’s written consent, or in connection with a transfer, in accordance with Section 5.03(i), and in accordance with any authentication procedures as may be utilized by the Certificate Administrator and in accordance with this Agreement. There shall be, and hereby is, established by the Certificate Administrator an account which will be designated the “Retained Interest Safekeeping Account” and into which the RR Interest shall be held and which shall be governed by and subject to this Agreement. In addition, on and after the date hereof, the Certificate Administrator may establish any number of subaccounts to the Retained Interest Safekeeping Account for each Retaining Party. The RR Interest to be delivered in physical form to the Certificate Administrator shall be delivered as set forth herein. No amounts distributable to the RR Interest shall be remitted to the Retained Interest Safekeeping Account, but shall be remitted directly to each Retaining Party in accordance with written instructions provided separately by each Retaining Party to the Certificate Administrator. Under no circumstances by virtue of safekeeping the RR Interest shall the Certificate Administrator be obligated to bring legal action or institute proceedings against any person on behalf of the Retaining Parties. During the RR Interest Transfer Restriction Period and for such longer time as the Retaining Parties may request, the Certificate Administrator shall hold the Definitive Certificate representing the RR Interest at the below location, or any other location; provided the Certificate Administrator has given notice to each of the Retaining Parties of such new location:

 

Computershare Trust Company, N.A.

Attn: Security Control and Transfer (SCAT) – MAC N9345-010

425 E Hennepin Avenue

Minneapolis, MN 55414

 

The Certificate Administrator shall make available to each Retaining Party its respective account information as mutually agreed upon by the Certificate Administrator and each respective Retaining Party, and in accordance with the Certificate Administrator’s policies and procedures. Any transfer of an RR Interest shall be subject to Section 5.03(g) and Section 5.03(i). The Certificate Administrator is directed by the Depositor to enter into a safekeeping account agreement to facilitate the initial settlement and sale of the RR Interest on the Closing Date.

 

On the Closing Date and upon any transfer of the RR Interest pursuant to Section 5.03(i), the Certificate Administrator shall deliver written confirmation to the Depositor, the Retaining Sponsor and the initial Holder of the RR Interest substantially in the form of Exhibit UU to this Agreement evidencing its receipt of the RR Interest.

 

Section 5.03   Registration of Transfer and Exchange of Certificates. (a) The Certificate Administrator shall keep or cause to be kept at the Corporate Trust Office books (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided (the Certificate Administrator, in such capacity, being the “Certificate Registrar”). In such capacities, the Certificate Administrator shall be responsible for, among other things, (i) maintaining the Certificate Register and a record of the aggregate holdings of Certificates of each Class of Non-Registered Certificates represented by a Temporary

 

 -362-

 

 

Regulation S Book-Entry Certificate, a Regulation S Book-Entry Certificate and a Rule 144A Book-Entry Certificate and accepting Certificates for exchange and registration of transfer, (ii) holding the RR Interest as Definitive Certificates on behalf of each Holder of such Class and (iii) transmitting to the Depositor, each applicable Master Servicer and each applicable Special Servicer any notices from the Certificateholders. No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of Transfer or exchange of any Certificate (other than Definitive Certificates) referred to in this Section 5.03.

 

(b)          Subject to the restrictions on transfer set forth in this Article V, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

 

(c)           Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time during the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, or to transfer its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, such holder may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in such Temporary Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit, or cause to be credited, a beneficial interest in the Temporary Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account and (3) a certificate in the form of Exhibit I hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions (who shall be the agent member of Euroclear or Clearstream, or both) a beneficial interest in the Temporary Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

 

(d)          Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time following the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the

 

 -363-

 

 

Regulation S Book-Entry Certificate of the same Class, or to transfer its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in a Regulation S Book-Entry Certificate, such holder may, subject to the rules and procedures of the Depository, exchange, or cause the exchange of, such interest for an equivalent beneficial interest in such Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with such increase and (3) a certificate in the form of Exhibit J hereto given by the holder of such beneficial interest stating (A) that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, or (B) that the transferee is otherwise entitled to hold its interest in the applicable Certificates in the form of an interest in the Regulation S Book-Entry Certificate, without any registration of such Certificates under the Act (in which case such certificate shall enclose an Opinion of Counsel to such effect and such other documents as the Certificate Registrar may reasonably require), then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

 

(e)           Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate. If a holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate of the same Class, or to transfer its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Rule 144A Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, as the case may be, and the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in the Rule 144A Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions from Euroclear or Clearstream, if applicable, and the Depository, directing the Certificate Registrar, as registrar, to credit or cause to be credited a beneficial interest in the Rule 144A Book-Entry Certificate equal to the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, (2) with respect to a transfer of an interest in the

 

 -364-

 

 

Regulation S Book-Entry Certificate, information regarding the participant account of the Depository to be debited with such decrease and (3) with respect to a transfer of an interest in the Temporary Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate (i) during the Restricted Period, a certificate in the form of Exhibit K hereto given by the holder of such beneficial interest and stating that the Person transferring such interest in the Temporary Regulation S Book-Entry Certificate reasonably believes that the Person acquiring such interest in the Rule 144A Book-Entry Certificate is a Qualified Institutional Buyer or (ii) after the Restricted Period, an Investment Representation Letter in the form of Exhibit C attached hereto from the transferee to the effect that such transferee is a Qualified Institutional Buyer (an “Investment Representation Letter”) and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Rule 144A Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, and the Certificate Registrar shall instruct the Depository, concurrently with such reduction, to credit, or cause to be credited, to the account of the Person specified in such instructions, a beneficial interest in the Rule 144A Book-Entry Certificate equal to the reduction in the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to debit, or cause to be debited, from the account of the Person making such transfer the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate that is being transferred.

 

(f)           Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate. Interests in a Temporary Regulation S Book-Entry Certificate as to which the Certificate Registrar has received from Euroclear or Clearstream, as the case may be, a certificate (a “Non-U.S. Beneficial Ownership Certification”) to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit L hereto from the holder of a beneficial interest in such Temporary Regulation S Book-Entry Certificate, shall be exchanged after the Restricted Period, for interests in the Regulation S Book-Entry Certificate of the same Class. The Certificate Registrar shall effect such exchange by delivering to the Depository for credit to the respective accounts of such holders, a duly executed and authenticated Regulation S Book-Entry Certificate, representing the aggregate Certificate Balance of interests in the Temporary Regulation S Book-Entry Certificate initially exchanged for interests in the Regulation S Book-Entry Certificate. The delivery to the Certificate Registrar by Euroclear or Clearstream of the certificate or certificates referred to above may be relied upon by the Depositor and the Certificate Registrar as conclusive evidence that the certificate or certificates referred to therein has or have been delivered to Euroclear or Clearstream pursuant to the terms of this Agreement and the Temporary Regulation S Book-Entry Certificate. Upon any exchange of interests in the Temporary Regulation S Book-Entry Certificate for interests in the Regulation S Book-Entry Certificate, the Certificate Registrar shall endorse the Temporary Regulation S Book-Entry Certificate to reflect the reduction in the Certificate Balance represented thereby by the amount so exchanged and shall endorse the Regulation S Book-Entry Certificate to reflect the corresponding increase in the amount represented thereby. Until so exchanged in full and except as provided therein, the Temporary Regulation S Book-Entry Certificate, and the Certificates evidenced thereby, shall in all respects be entitled to the same benefits under this Agreement as

 

 -365-

 

 

the Regulation S Book-Entry Certificate and Rule 144A Book-Entry Certificate authenticated and delivered hereunder.

 

(g)           Non-Book Entry Certificate to Book-Entry Certificate. If a holder of a Non-Book Entry Certificate (other than (a) a Class R Certificate or (b) an RR Interest during the RR Interest Transfer Restriction Period) wishes at any time to exchange its interest in such Non-Book Entry Certificate for an interest in a Book-Entry Certificate of the same Class, or to transfer all or part of such Non-Book Entry Certificate to a Person who is entitled to take delivery thereof in the form of an interest in a Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, if applicable, and the Depository, cause the exchange of all or part of such Non-Book Entry Certificate for an equivalent beneficial interest in the appropriate Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) such Non-Book Entry Certificate, duly endorsed as provided herein, (2) instructions from such holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Book-Entry Certificate equal to the portion of the Certificate Balance of the Non-Book Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase and (3) a certificate in the form of Exhibit M hereto (in the event that the applicable Book-Entry Certificate is the Temporary Regulation S Book-Entry Certificate), in the form of Exhibit N hereto (in the event that the applicable Book-Entry Certificate is the Regulation S Book-Entry Certificate) or in the form of Exhibit O hereto (in the event that the applicable Book-Entry Certificate is the Rule 144A Book-Entry Certificate), then the Certificate Registrar, as registrar, shall cancel, or cause to be canceled, all or part of such Non-Book Entry Certificate, shall, if applicable, execute, authenticate and deliver to the transferor a new Non-Book Entry Certificate equal to the aggregate Certificate Balance of the portion retained by such transferor and shall instruct the Depository to increase, or cause to be increased, such Book-Entry Certificate by the aggregate Certificate Balance of the portion of the Non-Book Entry Certificate to be exchanged and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Book-Entry Certificate equal to the Certificate Balance of the portion of the Non-Book Entry Certificate so canceled. Upon the written direction of the Depositor (which may be by email to cts.cmbs.bond.admin@wellsfargo.com) or its Affiliate, the Certificate Registrar shall execute any instrument as may be reasonably required by the Depository to effect such exchange.

 

(h)          Non-Book Entry Certificates on Initial Issuance Only. Subject to the issuance of Definitive Certificates, if and when permitted by Section 5.02(d), and subject to the issuance and transfer of the RR Interest during the RR Interest Transfer Restriction Period in accordance with Section 5.03(i), no Non-Book Entry Certificate shall be issued to a transferee of an interest in any Rule 144A Book-Entry Certificate, Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate or to a transferee of a Non-Book Entry Certificate (or any portion thereof).

 

(i)           Transfers of RR Interest. At all times, if a Transfer of any RR Interest after the Closing Date is to be made, then the following documents shall be delivered to the Certificate Administrator, who will facilitate the transfer in conjunction with the Certificate Registrar who shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon) (A) if such RR Interest is in the possession of the Certificate Administrator, a letter notifying

 

 -366-

 

 

the Certificate Administrator in writing of the Holder of an RR Interest’s intention to transfer such RR Interest from the Retained Interest Safekeeping Account and identifying the transferee, (B) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit D-3, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (C) a certification from the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit D-4, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (D) a completed W-9 by the prospective transferee and (E) contact information and wiring instructions for the prospective transferee. So long as the RR Interest is held by the Certificate Administrator in the Retained Interest Safekeeping Account, upon the completion of any such Transfer during the RR Interest Transfer Restriction Period, the Certificate Administrator shall issue a receipt to such transferor and transferee. Upon receipt of the foregoing certifications, the Certificate Registrar shall, subject to Section 5.02(e) and Section 5.03(a), reflect such RR Interest in the name of the prospective Transferee. For the avoidance of doubt, in no event shall an RR Interest be held as a Book-Entry Certificate during the RR Interest Transfer Restriction Period. Any attempted or purported transfer in violation of this Section 5.03(i) shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

 

(j)           Other Exchanges. In the event that a Book-Entry Certificate is exchanged for a Definitive Certificate, such Certificates may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of subsections (c) through (f) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S under the Act, at the case may be) and such other procedures as may from time to time be adopted by the Certificate Registrar.

 

(k)          Restricted Period. Prior to the termination of the Restricted Period with respect to the issuance of the Certificates, transfers of interests in the Temporary Regulation S Book-Entry Certificate to U.S. persons (as defined in Regulation S) shall be limited to transfers made pursuant to the provisions of subsection (e) above.

 

(l)           If Non-Registered Certificates are issued upon the transfer, exchange or replacement of Certificates bearing a restrictive legend relating to compliance with the Act, or if a request is made to remove such legend on Certificates, the Non-Registered Certificates so issued shall bear the restrictive legend, or such legend shall not be removed, as the case may be, unless there is delivered to the Certificate Registrar such satisfactory evidence, which may include an Opinion of Counsel that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Regulation S under the Act. Upon provision of such satisfactory evidence, the Certificate Registrar shall authenticate and deliver Certificates that do not bear such legend.

 

(m)         All Certificates surrendered for registration of transfer and exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with the Certificate Registrar’s customary procedures.

 

(n)          With respect to the ERISA Restricted Certificates, no sale, transfer, pledge or other disposition (other than any initial transfer to the Initial Purchasers or with respect to the

 

 -367-

 

 

RR Interest, the applicable Retaining Parties) of any such Certificate shall be made unless the Trustee and Certificate Administrator shall have received either (i) a representation letter from the proposed purchaser or transferee of such Certificate substantially in the form of Exhibit F-1 attached hereto, to the effect that such proposed purchaser or transferee is not and will not be (A) an employee benefit plan subject to the fiduciary responsibility provisions of ERISA or a plan subject to Section 4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) for which no election has been made under Section 410(d) of the Code or any other plan subject to any federal, state or local law (“Similar Law”) which is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each, a “Plan”) or (B) a person acting on behalf of (including an entity whose underlying assets include Plan assets within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of any such Plan, other than an insurance company using the assets of its general account under circumstances whereby the purchase and holding of such Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 (or, in the case of a Plan subject to Similar Law, would not constitute or result in a non-exempt violation of Similar Law) or (ii) if such Certificate is presented for registration in the name of a purchaser or transferee that is any of the foregoing, an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a non-exempt “prohibited transaction” within the meaning of ERISA, Section 4975 of the Code or a non-exempt violation of any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, any Master Servicer, any Special Servicer, any Sub-Servicer, the Initial Purchasers, the Underwriters, the Operating Advisor, the Asset Representations Reviewer or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Agreement. The Trustee and Certificate Administrator shall not register the sale, transfer, pledge or other disposition of any ERISA Restricted Certificate unless the Trustee and Certificate Administrator have received either the representation letter described in clause (i) above or the Opinion of Counsel described in clause (ii) above. The costs of any of the foregoing representation letters or Opinions of Counsel shall not be borne by any of the Depositor, any Master Servicer, any Special Servicer, any Sub-Servicer, the Trustee, the Certificate Administrator, the Initial Purchasers, the Underwriters, the Operating Advisor, the Certificate Registrar, the Asset Representations Reviewer or the Trust. Each Certificate Owner of an ERISA Restricted Certificate shall be deemed to represent that it is not and will not become a Person specified in clauses (i)(A) or (i)(B) above. Any transfer, sale, pledge or other disposition of any ERISA Restricted Certificates that would constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate the provisions of this Section 5.03(n) shall be deemed absolutely null and void ab initio, to the extent permitted under applicable law.

 

(o)          No Class R or Class V Certificate may be purchased by or transferred to any prospective purchaser or transferee that is or will be a Plan, or any person acting on behalf of a Plan (including an entity whose underlying assets include Plan assets within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of a Plan to purchase such Class R or Class V Certificate. Each prospective transferee of a Class R or Class V Certificate shall deliver to the transferor and the Certificate Administrator

 

 -368-

 

 

a representation letter, substantially in the form of Exhibit F-2, stating that the prospective transferee is not and will not become a Plan or a person acting on behalf of or using the assets of a Plan. Any attempted or purported transfer in violation of these transfer restrictions shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

 

Each Person who has or acquires any Residual Ownership Interest shall be deemed by the acceptance or acquisition of such Residual Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Residual Ownership Interest are expressly subject to the following provisions:

 

(i)      Each Person acquiring or holding any Residual Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Residual Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Residual Ownership Interest) as a Permitted Transferee. Any acquisition described in the first sentence of this Section 5.03(o) by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void ab initio and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Residual Ownership Interest as soon and as fully as possible.

 

(ii)     No Residual Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar, and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Residual Ownership Interest, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached as Exhibit D-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of this Section 5.03(o) and (y) other than in connection with the initial issuance of a Class R Certificate, require a

 

 -369-

 

 

statement from the proposed transferor substantially in the form attached as Exhibit D-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in its Transferee Affidavit are false.

 

(iii)    Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, however, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee. Upon notice to the Certificate Registrar that there has occurred a Transfer to any Person that is a Disqualified Organization or an agent thereof (including a broker, nominee or middleman) in contravention of the foregoing restrictions, and in any event not later than sixty (60) days after a request for information from the transferor of such Residual Ownership Interest or such agent, the Certificate Registrar agrees to furnish to the Internal Revenue Service and the transferor of such Residual Ownership Interest or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code, including, but not limited to, the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar, the Certificate Registrar may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, however, that such Persons shall in no event be excused from furnishing such information.

 

(p)          The Class R Certificates may only be transferred to and owned by Qualified Institutional Buyers.

 

(q)          Notwithstanding any other provision of this Agreement, the Certificate Administrator shall comply with all federal withholding requirements respecting payments to Certificateholders and other payees of interest or original issue discount that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for such withholding, and the Certificateholders shall be required to provide the Certificate Administrator with such forms and such other information reasonably required by the Certificate Administrator. If the Certificate Administrator does withhold any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Certificate Administrator shall indicate the amount withheld to such Person. Such amounts shall be deemed to have been distributed to such Persons for all purposes of this Agreement.

 

(r)           Notwithstanding any other provision of this Agreement, none of the Depositor, the Trust, any Underwriter, any Initial Purchaser, the Trustee, any Master Servicer, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any of their respective affiliated entities (the “Transaction Parties”) is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the acquisition of any Certificates by any Plan subject to Section 406 of ERISA or Section 4975

 

 -370-

 

 

of the Code (an “ERISA Plan”). In addition, each beneficial owner of any Certificate or any interest therein that is an ERISA Plan, including any fiduciary purchasing Certificates on behalf of an ERISA Plan (“Plan Fiduciary”) will be deemed to have represented by its acquisition of such Certificate that none of the Transaction Parties has provided any investment recommendation or investment advice on which the ERISA Plan or the Plan Fiduciary has relied in connection with the decision to acquire Offered Certificates, and they are not otherwise acting as a fiduciary (within the meaning of Section 3(21) of ERISA or Section 4975(e)(3) of the Code) to the ERISA Plan in connection with the ERISA Plan’s acquisition of Offered Certificates (unless an applicable prohibited transaction exemption is available to cover the purchase or holding of the Offered Certificates or the transaction is not otherwise prohibited), and (ii) the Plan Fiduciary making the decision to acquire the Offered Certificates is exercising its own independent judgment in evaluating the investment in the Offered Certificates.

 

Section 5.04   Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of actual notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust. In connection with the issuance of any new Certificate under this Section 5.04, the Certificate Registrar may require the payment of a sum sufficient to cover any expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 5.04 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

 

Section 5.05   Persons Deemed Owners. Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Certificate Registrar and any agent of any of them shall not be affected by any notice to the contrary; provided, that to the extent that a party to this Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to this Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

 

Section 5.06   Access to List of Certificateholders’ Names and Addresses; Special Notices. (a) The Certificate Registrar shall maintain in as current form as is reasonably practicable the most recent list available to it of the names and addresses of the Certificateholders. If any Certificateholder that has provided an Investor Certification (i) requests in writing from the Certificate Registrar a list of the names and addresses of Certificateholders, (ii) states that such Certificateholder desires to communicate with other Certificateholders with respect to its rights under this Agreement or under the Certificates and (iii) provides a copy of the communication which Certificateholder proposes to transmit, then the Certificate Registrar shall, within ten (10)

 

 -371-

 

 

Business Days after the receipt of such request, furnish such Certificateholder (at such Certificateholder’s sole cost and expense) a current list of the Certificateholders. In addition, upon written request to the Certificate Administrator of any Certificateholder or Certificate Owner (if applicable) that has provided an Investor Certification, the Certificate Administrator shall promptly notify such Certificateholder or Certificate Owner of the identity of the then-current Directing Certificateholder. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which information was derived. Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and the Depositor shall be entitled to a list of the names and addresses of Certificateholders from time to time upon request therefor.

 

(b)          (i) The Certificate Administrator shall include in any Form 10-D any written request received in accordance with Section 11.04(a) prior to the Distribution Date to which the Form 10-D relates (and on or after the Distribution Date preceding such Distribution Date) from a Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners related to Certificateholders or Certificate Owners exercising their rights under the terms of this Agreement. Any Form 10-D containing such disclosure (a “Special Notice”) regarding the request to communicate shall include the following and no more than the following (a) the name of the Certificateholder or Certificate Owner making the request, (b) the date the request was received, (c) a statement to the effect that the Certificate Administrator has received such request, stating that such Certificateholder or Certificate Owner is interested in communicating with other Certificateholders or Certificate Owners with regard to the possible exercise of rights under this Agreement, and (d) a description of the method other Certificateholders or Certificate Owners may use to contact the requesting Certificateholder or Certificate Owner. It is hereby understood that a disclosure in substantially the following form shall be deemed to satisfy the requirements in the preceding sentence: “On [date], the Certificate Administrator received from [name], a Certificateholder or Certificate Owner, a request to communicate with other Certificateholders and Certificate Owners in the securitization transaction to which this report on Form 10-D relates (the “Securitization”). The requesting Certificateholder or Certificate Owner is interested in communicating with other Certificateholders and Certificate Owners with regard to the possible exercise of rights under the pooling and servicing agreement governing the Securitization. Other Certificateholders and Certificate Owners may contact the requesting Certificateholder or Certificate Owner at [telephone number], [email address] and/or [mailing address].”

 

(ii)     In verifying the identity of any Certificateholder or Certificate Owner in connection with any request to communicate, (i) if the Certificateholder or Certificate Owner is the holder of record with respect to any Certificate, the Certificate Administrator shall not require any further verification or (ii) if the Certificateholder or Certificate Owner is not the holder of record with respect to any Certificate, the Certificate Administrator shall require no more than (x) a written certification from such Certificateholder or Certificate Owner that it is the beneficial owner of a Certificate and (y) one of the following documents confirming ownership of such Certificate: a trade confirmation, an account statement, a letter from a broker-dealer or another document acceptable to the Certificate Administrator that is similar to any of the foregoing documents. The Certificate Administrator shall not have any obligation to verify the information provided by any

 

 -372-

 

 

Certificateholder or Certificate Owner in any request to communicate and may rely on such information conclusively. Additionally, any expenses the Certificate Administrator incurs in connection with any request to communicate will be paid by the Trust.

 

Section 5.07   Maintenance of Office or Agency. The Certificate Registrar shall maintain or cause to be maintained an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Certificates and this Agreement may be served. The Certificate Registrar initially designates its office at 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415 as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Certificateholders and the Mortgagors of any change in the location of the Certificate Register or any such office or agency.

 

Section 5.08   Appointment of Certificate Administrator. (a) Computershare Trust Company, National Association is hereby initially appointed Certificate Administrator in accordance with the terms of this Agreement. If the Certificate Administrator resigns or is terminated, the Trustee shall appoint a successor certificate administrator which may be the Trustee or an Affiliate thereof to fulfill the obligations of the Certificate Administrator hereunder which must satisfy the eligibility requirements set forth in Section 8.06.

 

(b)          The Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.

 

(c)           The Certificate Administrator, at the expense of the Trust (but only if such amount constitutes “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith.

 

(d)          The Certificate Administrator shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.

 

(e)           The Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Certificate Administrator of its duties or obligations hereunder.

 

(f)           The Certificate Administrator shall not be responsible for any act or omission of the Trustee, any Master Servicer, any Special Servicer or the Depositor.

 

Section 5.09     [RESERVED]

 

Section 5.10    Voting Procedures. With respect to any matters submitted to Certificateholders for a vote, the Certificate Administrator shall administer such vote through the

 

 -373-

 

 

Depository with respect to Book-Entry Certificates and directly with registered Holders by mail with respect to Definitive Certificates. In each case, such vote shall be administered in accordance with the following procedures, unless different procedures are otherwise described herein with respect to a specific vote:

 

(a)           Any matter submitted to Certificateholders for a vote shall be announced in a notice prepared by the Certificate Administrator. Such notice shall include the record date determined by the Certificate Administrator for purposes of the vote and a voting deadline which shall be no less than thirty (30) days and no later than sixty (60) days after the date such notice is distributed. The notice and related ballot shall be sent to Holders of Book-Entry Certificates through the Depository and by mail to the registered Holders of Definitive Certificates. In addition, the notice and related ballot shall be posted to the Certificate Administrator’s Website. Notices delivered in this manner shall be considered delivered to all Holders regardless of whether any Holder actually receives the notice and ballot.

 

(b)          In connection with any vote administered pursuant to this Agreement, voting Holders shall be required to certify their holdings in the manner set forth on the ballot, unless a specific manner is otherwise provided herein. Holders may only vote in accordance with their Voting Rights. Voting Rights with respect to any outstanding Class of Certificates shall be calculated by the Certificate Administrator in accordance with the definition of Voting Rights as of the record date for the vote. Only Classes with an outstanding Certificate Balance greater than zero as of the record date of the vote shall be permitted to vote. Once a Holder has cast its vote, the vote may be changed or retracted on or before the vote deadline. Any changes or retractions shall be communicated by the Certificateholder to the Certificate Administrator in writing on a ballot. After the vote deadline has passed, votes may not be changed or retracted by any Holder unless the Holder wishing to change or retract its vote holds a sufficient portion of the Voting Rights such that the Holder, by its vote alone, could approve or deny the proposition subject to a vote without taking into consideration the votes cast by any other Holder. Transferees or purchasers of any Class of Certificates are subject to and shall be bound by all votes of Holders initiated or conducted prior to its acquisition of such Certificate.

 

(c)           The Certificate Administrator may take up to fifteen (15) Business Days to tabulate the results of any vote. The Certificate Administrator shall use its reasonable efforts to resolve any illegible or incomplete ballots received prior to the voting deadline. Illegible or incomplete ballots that are received on the voting deadline or that cannot be resolved by the voting deadline shall not be counted. Promptly after the votes are tabulated, the Certificate Administrator shall prepare a notice announcing the results of the vote. Such notice shall include the percentage of Voting Rights in favor of the proposition, the percentage against the proposition and the percentage abstaining. In addition, the notice will announce whether the proposition has been adopted by Certificateholders. The notice shall be distributed in accordance with the methods described in Section 5.10(a) above. The Certificate Administrator shall also include such notice on the Form 10-D prepared in connection with the distribution period that corresponds with the date such notice is distributed. All vote tabulations shall be final and the Certificate Administrator shall not, absent manifest error, re-tabulate the votes or conduct a new vote for the same proposition.

 

 -374-

 

 

(d)          Any and all reasonable expenses incurred by the Certificate Administrator in connection with administering any vote shall be borne by the Trust. The Certificate Administrator is under no obligation to advise Holders about the matter being voted on or answer questions other than process-related questions regarding the administration of the vote.

 

(e)           If any party to this Agreement believes a vote of Certificateholders is needed for some matter related to the administration of the Trust that is not specifically contemplated herein, such party may request the Certificate Administrator to conduct a vote and the Certificate Administrator will conduct the requested vote in accordance with these procedures. Unless specifically provided herein, all such votes require a majority of Certificateholders to carry a proposition.

 

Section 5.11    Exchangeable Certificates. (a) On the Closing Date, the Grantor Trust shall issue the several Classes of Exchangeable Certificates. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest. All amounts allocated to an Exchangeable Upper-Tier Regular Interest hereunder, including principal and interest payable thereon and reimbursement of previously allocated Realized Losses (with interest), shall be allocated to the Classes of Exchangeable Certificates representing an interest therein, in proportion to their Class Percentage Interests therein; provided, that the Exchangeable Certificates will be entitled to Prepayment Premiums and Yield Maintenance Charges as described in Section 4.01(e).

 

(b)          Certificates of each Class of Exchangeable Certificates (each such Class, in connection with any exchange, an applicable “Surrendered Class”) may be exchanged on the books of DTC for Certificates of the corresponding Classes of Exchangeable Certificates set forth next to such Class in the table below (each, an applicable “Received Class”), and vice versa. The Denomination of each of the Received Classes of Certificates must be equal to the Denomination of each of the Surrendered Classes of Certificates. No fee shall be required with respect to any exchange of Exchangeable Certificates. Following any exchange of Certificates of one or more Surrendered Classes for Certificates of one or more Received Classes, the Class Percentage Interests in the Corresponding Exchangeable Upper-Tier Regular Interests that are represented by the Surrendered Classes (and consequently their related Certificate Balances or Notional Amounts) shall be decreased, and those of the Received Classes (and consequently their related Certificate Balances or Notional Amounts) shall be increased. The Certificate Administrator or Certificate Registrar, as applicable, shall (i) make the appropriate notation of such exchange on the Certificate Register and on the Book-Entry Certificate for each Class of Exchangeable Certificates involved in such exchange to reflect such reductions and increases and (ii) give appropriate instructions to the Depository to reflect such reductions and increases.

 

 -375-

 

 

Surrendered Classes (or Received Classes) of Certificates		Received Classes (or Surrendered Classes) of Certificates
Class A-4		Class A-4-1, Class A-4-X1
Class A-4		Class A-4-2, Class A-4-X2
Class A-5		Class A-5-1, Class A-5-X1
Class A-5		Class A-5-2, Class A-5-X2
Class A-S		Class A-S-1, Class A-S-X1
Class A-S		Class A-S-2, Class A-S-X2
Class B		Class B-1, Class B-X1
Class B		Class B-2, Class B-X2
Class C		Class C-1, Class C-X1
Class C		Class C-2, Class C-X2

 

For example, a Certificateholder holding Class A-S Certificates with a Denomination of $69,256,000 may surrender Class A-S Certificates with a Denomination of $34,628,000 (the Certificates of the applicable Surrendered Class) and receive in exchange Class A-S-1 Certificates with a Denomination of $34,628,000 and Class A-S-X1 Certificates with a Denomination of $34,628,000 (collectively, the Certificates of the applicable Received Classes). In such event, (i) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be reduced from 100% to 50%, (ii) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% to 50%, and (iii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be increased from 0% to 50%.

 

Similarly a Certificateholder holding Class A-S-1 Certificates with a Denomination of $34,628,000 that seeks to surrender all such Certificates in exchange for Class A-S Certificates will be required to surrender all such Certificates, as well as Class A-S-X1 Certificates with a Denomination of $34,628,000 in order to accomplish such exchange. In such event, (i) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be reduced from 50% to 0%, (ii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be reduced from 50% to 0%, and (iii) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% (assuming no other Class A-S Certificates are then outstanding) to 50%.

 

(c)           The maximum Certificate Balance or Notional Amount of each Class of Class A-4 Exchangeable Certificates, Class A-5 Exchangeable Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates or Class C Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class A-4, Class A-5, Class A-S, Class B or Class C Upper-Tier Regular Interest, respectively.

 

(d)          In order to effect an exchange of Exchangeable Certificates, the Certificateholder shall deliver a notice substantially in the form of Exhibit TT to the Certificate Administrator by e-mail to cts.cmbs.bond.admin@wellsfargo.com (with a subject line referencing “BANK 2021-BNK38” and setting forth the proposed Exchange Date) no later than three (3)

 

 -376-

 

 

Business Days before the proposed exchange date (the “Exchange Date”). The Exchange Date may be any Business Day other than the first or last Business Day of the month. The notice must (i) be set forth on the applicable Certificateholder’s letterhead, (ii) carry a medallion stamp guarantee and (iii) set forth the following information: (x) the CUSIP number, outstanding Certificate Balance or Notional Amount and Original Certificate Balance or Original Notional Amount of each proposed Surrendered Class and of each proposed Received Class; (y) the Certificateholder’s DTC participant number; and (z) the proposed Exchange Date. A notice shall become irrevocable on the second Business Day before the proposed Exchange Date.

 

(e)           Upon the satisfaction of the conditions to an exchange described in this Section 5.11, the Certificate Administrator shall deliver Certificates of the applicable Received Classes to the requesting Certificateholder. The Certificate Administrator shall reduce the outstanding Certificate Balance(s) or Notional Amount(s) of the Surrendered Classes, and increase the outstanding Certificate Balance(s) or Notional Amount(s) of the Received Classes, on the Certificate Register. The Certificateholder and the Certificate Administrator shall utilize the “deposit and withdrawal system” at the Depository to effect the exchange.

 

(f)           The Certificate Administrator shall make the first distribution on Certificates of any Received Classes related to an exchange on the Distribution Date in the month following the month of exchange to the Certificateholder of record as of the applicable Record Date for such Certificates and Distribution Date. If an Exchange Date occurs in any month before the Distribution Date in such month, then any distributions to be made on such Distribution Date on Certificates of any Surrendered Classes shall be so made to the Certificateholders of record as of the applicable Record Date for such Certificates and such Distribution Date. Neither the Certificate Administrator nor the Depositor shall have any obligation to ensure the availability in the market of the applicable Certificates to accomplish any exchange.

 

[End of Article V]

 

Article VI

THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, the Operating Advisor, the asset representations reviewer, THE DIRECTING CERTIFICATEHOLDER AND THE Risk Retention Consultation Party

 

Section 6.01   Representations, Warranties and Covenants of each Applicable Master Servicer, each Applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer. (a) Each Master Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Special Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

 

(i)      The Master Servicer is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America, and

 

 -377-

 

 

the Master Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)     The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not (A) violate the Master Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets or (C) violate any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(iii)    The Master Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)     The Master Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(vi)    No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer which would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(vii)   The Master Servicer has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)  No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required under federal or state law for

 

 -378-

 

 

the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the Master Servicer’s consummation of any transactions contemplated hereby, other than (A) such consents, approvals, authorizations, orders, qualifications, registrations, filings or notices as have been obtained, made or given prior to the actual performance by the Master Servicer of its obligations under this Agreement or (B) where the lack of such consent, approval, authorization, order, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Master Servicer under this Agreement.

 

(b)          Each Special Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

 

(i)      The Special Servicer is (A) in the case of the General Special Servicer, a division of a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and (B) in the case of the NCB Special Servicer, a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and, in each case, the Special Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)     The execution and delivery of this Agreement by the Special Servicer, and the performance and compliance with the terms of this Agreement by the Special Servicer, do not (A) violate the Special Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Special Servicer or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Special Servicer to perform its obligations under this Agreement or its financial condition;

 

(iii)    The Special Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of the creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

 -379-

 

 

(v)     The Special Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

 

(vi)    No litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer, which would prohibit the Special Servicer from entering into this Agreement or, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

 

(vii)   The Special Servicer has errors and omissions coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)  No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Special Servicer of, or compliance by the Special Servicer with, this Agreement or the consummation of the transactions of the Special Servicer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Special Servicer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Special Servicer to perform its obligations hereunder.

 

(c)           The Operating Advisor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, each Special Servicer, as of the Closing Date, that:

 

(i)      The Operating Advisor is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and the Operating Advisor is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)     The execution and delivery of this Agreement by the Operating Advisor, and the performance and compliance with the terms of this Agreement by the Operating Advisor, do not (A) violate the Operating Advisor’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Operating Advisor or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or its financial condition;

 

 -380-

 

 

(iii)    The Operating Advisor has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Operating Advisor, enforceable against the Operating Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)     The Operating Advisor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or the financial condition of the Operating Advisor;

 

(vi)    The Operating Advisor has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07;

 

(vii)   No litigation is pending or, to the best of the Operating Advisor’s knowledge, threatened against the Operating Advisor, which would prohibit the Operating Advisor from entering into this Agreement or, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement; and

 

(viii)  No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Operating Advisor of, or compliance by the Operating Advisor with, this Agreement or the consummation of the transactions of the Operating Advisor contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Operating Advisor of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder.

 

(d)          The Asset Representations Reviewer hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Depositor, each Master Servicer, each Special Servicer and the Certificate Administrator, as of the Closing Date, that:

 

 -381-

 

 

(i)      The Asset Representations Reviewer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Asset Representations Reviewer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)     The execution and delivery of this Agreement by the Asset Representations Reviewer, and the performance and compliance with the terms of this Agreement by the Asset Representations Reviewer, do not (A) violate the Asset Representations Reviewer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Asset Representations Reviewer or its property is subject, which, in the case of either (B) or (C) above, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or its financial condition;

 

(iii)    The Asset Representations Reviewer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Asset Representations Reviewer, enforceable against the Asset Representations Reviewer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)     The Asset Representations Reviewer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or the financial condition of the Asset Representations Reviewer;

 

(vi)    No litigation is pending or, to the best of the Asset Representations Reviewer’s knowledge, threatened against the Asset Representations Reviewer, which would prohibit the Asset Representations Reviewer from entering into this Agreement or, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Asset Representations Reviewer to perform its obligations under this Agreement;

 

 -382-

 

 

(vii)   The Asset Representations Reviewer has errors and omissions coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)  No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Asset Representations Reviewer of, or compliance by the Asset Representations Reviewer with, this Agreement or the consummation of the transactions of the Asset Representations Reviewer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Asset Representations Reviewer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Asset Representations Reviewer to perform its obligations hereunder; and

 

(ix)    The Asset Representations Reviewer is an Eligible Asset Representations Reviewer.

 

   (e)       The representations and warranties set forth in paragraphs (a)-(d) above shall survive the execution and delivery of this Agreement. Upon written notice or actual knowledge by any party to this Agreement (or upon written notice thereof from any Certificateholder or any Companion Holder) of a breach of any of the representations and warranties set forth in this Section 6.01 which materially and adversely affects the interests of any party to this Agreement, the Certificateholders, the party discovering such breach shall give prompt written notice to the other parties hereto, each certifying Certificateholder, and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

 

Section 6.02    Liability of the Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer. The Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the respective obligations specifically imposed upon and undertaken by the Depositor, such Master Servicer, the Operating Advisor, such Special Servicer and the Asset Representations Reviewer herein.

 

Section 6.03     Merger, Consolidation or Conversion of the Depositor, a Master Servicer, the Operating Advisor, a Special Servicer or the Asset Representations Reviewer. (a) Subject to 6.03(b) below, each of the Depositor, each applicable Master Servicer and each applicable Special Servicer will keep in full effect its existence, rights and franchises as an entity under the laws of the jurisdiction of its incorporation or organization, and each will obtain and preserve its qualification to do business as a foreign entity in each jurisdiction in which qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Certificates or any of the Mortgage Loans or Companion Loans and to perform its respective duties under this Agreement.

 

(b)          Each of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets (which may

 

 -383-

 

 

be limited to all or substantially all of its assets related to commercial mortgage loan servicing or commercial mortgage surveillance, as the case may be) to any Person, in which case any Person resulting from any merger or consolidation to which the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, shall be the successor of the Depositor, such Master Servicer, such Special Servicer, the Operating Advisor, or the Asset Representations Reviewer (such Person, in the case of a Master Servicer or a Special Servicer, in each of the foregoing cases, the “Surviving Entity”), as the case may be, hereunder, without the execution or filing of any paper (other than an assumption agreement wherein the successor shall agree to perform the obligations of and serve as the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, as the case may be, in accordance with the terms of this Agreement) or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that with respect to such merger, consolidation or succession, Rating Agency Confirmation is received from each Rating Agency with respect to the Classes of Certificates and, with respect to any class of Serviced Companion Loan Securities, a confirmation is received from each applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates as described in Section 3.25); provided, further, that if a Master Servicer, a Special Servicer or the Operating Advisor enters into a merger and such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, is the surviving entity under applicable law, such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall not, as a result of the merger, be required to provide a Rating Agency Confirmation with respect to ratings of the Classes of Certificates or, with respect to any class of Serviced Companion Loan Securities, a confirmation of the rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings; provided, further, that for so long as the Trust, and, with respect to any Serviced Companion Loan included as part of the trust in a related Other Securitization, is subject to the reporting requirements of the Exchange Act, if such Master Servicer, such Special Servicer or the Operating Advisor notifies the Depositor in writing (a “Merger Notice”) of any such merger, consolidation, conversion or other change in form, and the Depositor or the depositor in such Other Securitization, as the case may be, notifies such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, in writing that the Depositor or the depositor in such Other Securitization, as the case may be, has discovered that such successor entity has not complied with its Exchange Act reporting obligations under any other commercial mortgage loan securitization (and specifically identifying the instance of noncompliance), then it shall be an additional condition to such succession that the Depositor or the depositor in such Other Securitization, as the case may be, shall have consented (which consent shall not be unreasonably withheld or delayed) to such successor entity. Notwithstanding the foregoing, no Master Servicer, Special Servicer or Operating Advisor may remain a Master Servicer, a Special Servicer or Operating Advisor, as applicable, under this Agreement after (x) being merged or consolidated with or into any Person that is a Prohibited Party, or (y) transferring all or substantially all of its assets to any Person if such Person is a Prohibited Party, except to the extent (i) such Master Servicer, such Special Servicer or Operating Advisor, as applicable, is the surviving entity of such merger, consolidation or transfer and has been and continues to be in compliance with its Regulation AB

 

 -384-

 

 

reporting obligations hereunder or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld. If, within sixty (60) days following the date of delivery of the Merger Notice to the Depositor or the depositor in such Other Securitization, as the case may be, the Depositor or depositor in such Other Securitization, as the case may be, shall have failed to notify such Master Servicer or such Special Servicer, as applicable, in writing of the Depositor’s determination, or depositor’s determination, in the case of an Other Securitization, to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent. If the conditions to the provisions in the second preceding sentence are not met, the Trustee may terminate, and if the conditions set forth in the third proviso of the third preceding sentence are not met the Trustee shall terminate, the applicable Surviving Entity’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 7.01.

 

(i)      The Asset Representations Reviewer shall keep in full effect its existence and rights as an entity under the laws of the jurisdiction of its organization, and shall be in compliance with the laws of all jurisdictions to the extent necessary to perform its duties under this Agreement.

 

(ii)     Any Person into which the Asset Representations Reviewer may be merged or consolidated, or any Person resulting from any merger or consolidation to which the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Asset Representations Reviewer, shall be the successor of the Asset Representations Reviewer hereunder, and shall be deemed to have assumed all of the liabilities and obligations of such Asset Representations Reviewer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the Trustee has received a Rating Agency Confirmation with respect to such successor or surviving Person.

 

Section 6.04   Limitation on Liability of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others. (a) None of the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor, the Asset Representations Reviewer or any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing shall be under any liability to the Trust, the Certificateholders or the Companion Holders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor, the Asset Representations Reviewer or any such Person against any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of such party’s obligations or duties or by reason of negligent disregard of such party’s obligations and duties hereunder. The Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and any partner, director, officer, shareholder, member, manager, employee or agent of the Depositor, a Master Servicer (including in its capacity as Companion Paying Agent, if applicable), a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, and

 

 -385-

 

 

any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing may rely on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer, the Operating Advisor and the Non-Serviced Trust (with respect to any Non-Serviced Mortgage Loan, to the extent provided under the related Intercreditor Agreement) and any partner, director, officer, shareholder, member, manager, employee or agent of any of the foregoing shall be indemnified and held harmless by the Trust against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including without limitation reasonable attorneys’ fees and expenses and expenses relating to the enforcement of this indemnity and of investigation, counsel fees, damages, judgments and amounts paid in settlement) incurred in connection with any actual or threatened legal or administrative action (whether in equity or at law) or claim relating to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates, other than any loss, liability or expense: (i) specifically required to be borne thereby pursuant to the terms hereof; (ii) incurred in connection with any breach of a representation or warranty made by it herein; (iii) incurred by reason of bad faith, willful misconduct or negligence in the performance of its obligations or duties hereunder, or by reason of negligent disregard of such obligations or duties; or (iv) in the case of the Depositor and any of its partners, directors, officers, shareholders, members, managers, employees and agents, incurred in connection with any violation by any of them of any state or federal securities law. In addition, absent actual fraud (as determined by a final non-appealable court order), neither the Trustee nor the Certificate Administrator (including in its capacity as Custodian, Certificate Registrar and 17g-5 Information Provider) shall be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action. Each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer and the Operating Advisor conclusively may rely on, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) as contemplated by and in accordance with this Agreement and reasonably believed or in good faith believed by the applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor to be genuine and to have been signed or presented by the proper party or parties and each of them may consult with counsel, in which case any written advice of counsel or Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.

 

(b)          None of the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor or the Asset Representations Reviewer shall be under any obligation to appear in, prosecute or defend any legal or administrative action (whether in equity or at law), proceeding, hearing or examination that is not incidental to its respective duties under this Agreement or which in its opinion may involve it in any expense or liability not recoverable from the Trust; provided, however, that each of the

 

 -386-

 

 

Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor or the Asset Representations Reviewer may in its discretion undertake any such action, proceeding, hearing or examination that it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders (and, in the case of any Serviced Whole Loan, the rights of the Certificateholders and the holders of a Serviced Companion Loan (as a collective whole) taking into account the subordinate or pari passu nature of such Serviced Companion Loan); provided, however, that if a Serviced Whole Loan and/or the holder of any related Companion Loan are involved, such expenses, costs and liabilities will be payable out of funds related to the applicable Serviced Whole Loan in accordance with the related Intercreditor Agreement and will also be payable out of the other funds in the applicable Collection Account if amounts on deposit with respect to such Serviced Whole Loan are insufficient therefor. If any such expenses, costs or liabilities relate to a Mortgage Loan or Companion Loan, then any subsequent recovery on that Mortgage Loan or Companion Loan, as applicable, will be used to reimburse the Trust for any amounts advanced for the payment of such expenses, costs or liabilities. In such event, the legal expenses and costs of such action, proceeding, hearing or examination and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust, and the Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer and the Operating Advisor shall be entitled to be reimbursed therefor out of amounts attributable to the Mortgage Loans or the Companion Loan on deposit in the applicable Collection Account (including, without duplication, any subaccount thereof), as provided by Section 3.05(a)(xii).

 

(c)           Each applicable Master Servicer and each applicable Special Servicer, as applicable, agrees to indemnify the Depositor, the Trustee, the related Serviced Companion Noteholder, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable) (in the case of each applicable Special Servicer and any other applicable Master Servicer), the applicable Special Servicer (in the case of each applicable Master Servicer and any other applicable Special Servicer) and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of such Master Servicer or such Special Servicer, as the case may be, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by such Master Servicer or such Special Servicer, as the case may be, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein by such Master Servicer or such Special Servicer, as applicable. The Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the applicable Master Servicer or the applicable Special Servicer, as applicable, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall assume the defense of such claim (with counsel reasonably satisfactory to the Trustee, the Certificate Administrator or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any

 

 -387-

 

 

judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless such Master Servicer’s or such Special Servicer’s, as the case may be, defense of such claim is materially prejudiced thereby.

 

Each applicable Master Servicer and each applicable Special Servicer shall indemnify and hold harmless the Depositor from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the Depositor or its Affiliates that arise out of or are based upon, severally and not jointly (i) a breach by such Master Servicer or such Special Servicer, as applicable, of any obligation it has to deliver information to the 17g-5 Information Provider as set forth in this Agreement, including Section 3.07(a), Section 3.08, Section 3.09(e), Section 3.12, Section 3.17(c) and Section 3.18(g) or (ii) a breach of any obligation it has set forth in Sections 3.13(e), (h) and (j).

 

(d)          Each of the Trustee and the Certificate Administrator (including in its role as Custodian), respectively agrees to indemnify the Depositor, each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Trustee or the Certificate Administrator, respectively, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Trustee or the Certificate Administrator, respectively, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The Depositor, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Trustee and the Certificate Administrator, respectively, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Trustee or the Certificate Administrator shall assume the defense of such claim (with counsel reasonably satisfactory to the Depositor, such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Asset Representations Reviewer or the Operating Advisor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trustee or the Certificate Administrator shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Trustee’s or the Certificate Administrator’s defense of such claim is materially prejudiced thereby.

 

 -388-

 

 

(e)           The Depositor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Depositor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Depositor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Depositor if a claim is made by a third party with respect to this Agreement, whereupon the Depositor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable) or such Special Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Depositor shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Depositor’s defense of such claim is materially prejudiced thereby.

 

(f)           The Operating Advisor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Operating Advisor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Operating Advisor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor, as the case may be, shall immediately notify the Operating Advisor if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Operating Advisor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent), such Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Operating Advisor shall not affect any

 

 -389-

 

 

rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Operating Advisor’s defense of such claim is materially prejudiced thereby.

 

(g)           Neither the Operating Advisor nor its Affiliates or any of the partners, directors, officers, shareholders, members, managers, employees or agents of the Operating Advisor shall be under any liability to any Certificateholder for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Operating Advisor against any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations and duties hereunder.

 

(h)          The Asset Representations Reviewer agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Asset Representations Reviewer, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Asset Representations Reviewer of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor, as the case may be, shall immediately notify the Asset Representations Reviewer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Asset Representations Reviewer shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Asset Representations Reviewer shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Asset Representations Reviewer’s defense of such claim is materially prejudiced thereby.

 

(i)           The applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator, Non-Serviced Operating Advisor (if any), Non-Serviced Depositor, Non-Serviced Trustee, and any of their respective partners, directors, officers, shareholders, members, managers, employees or agents (collectively, the “Non-Serviced Indemnified Parties”), shall be indemnified by the Trust and held harmless against the Trust’s pro rata share (subject to the applicable Non-Serviced Intercreditor Agreement) of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred in connection with the servicing and administration of a Non-Serviced Mortgage Loan and the related Non-Serviced Mortgaged

 

 -390-

 

 

Property under the applicable Non-Serviced PSA (as and to the same extent the applicable Non-Serviced Trust is required to indemnify such parties in respect of other mortgage loans in the applicable Non-Serviced Trust pursuant to the terms of the related Non-Serviced PSA).

 

The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer.

 

(j)           For purposes of this Section 6.04 and Section 11.12, a Master Servicer or Special Servicer, as the case may be, will be deemed not to have engaged in willful misconduct or committed bad faith or negligence in the performance of their respective obligations and duties hereunder or acted in negligent disregard of such obligations and duties if such Master Servicer or such Special Servicer, as applicable, fails to follow any terms of any Mortgage Loan documents because such Master Servicer or such Special Servicer, as applicable, in accordance with the Servicing Standard, determines that compliance with such terms would or potentially would cause an Adverse REMIC Event or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code (for which determination such Master Servicer and such Special Servicer will be entitled to rely on advice of counsel, the cost of which will be reimbursed as an additional expense of the Trust).

 

(k)          The NCB Master Servicer shall indemnify and hold harmless the General Master Servicer and its partners, directors, officers, shareholders, members, managers, employees or agents from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by the General Master Servicer or such Persons in connection with any CREFC^® Schedule AL File prepared by the General Master Servicer that arise out of or are based upon any error, inaccuracy or incompleteness in any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d) or any failure by the NCB Master Servicer to deliver to the General Master Servicer any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File by the time specified in Section 3.12(d).

 

Section 6.05   Depositor, Master Servicers and Special Servicers Not to Resign. Subject to the provisions of Section 6.03, no Master Servicer or Special Servicer shall resign from its obligations and duties hereby imposed on it except upon (a) determination that such party’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by such party or (b) in the case of a Master Servicer or a Special Servicer, upon the appointment of, and the acceptance of such appointment by, a successor (which may be appointed by the resigning Master Servicer or Special Servicer, as applicable), and receipt by the Certificate Administrator and the Trustee of Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25). Any such determination permitting the resignation of such Master Servicer or such Special Servicer pursuant to clause (a) above shall be evidenced by an Opinion of Counsel (at the

 

 -391-

 

 

expense of the resigning party) to such effect delivered to the Trustee and (prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder. Unless applicable law requires the resignation of such Master Servicer or such Special Servicer (as the case may be) to be effective immediately, and the Opinion of Counsel delivered pursuant to the prior sentence so states, no such resignation by such Master Servicer or such Special Servicer under clause (a) above shall become effective until the Trustee or a successor master servicer or special servicer, as applicable, shall have assumed such Master Servicer’s or such Special Servicer’s, as applicable, responsibilities and obligations in accordance with Section 7.02 and no such resignation by such Master Servicer or such Special Servicer shall become effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Upon any termination (as described in Section 7.01(c)) or resignation of such Master Servicer or such Special Servicer, pursuant to this Section 6.05, such Master Servicer or such Special Servicer, as applicable, shall have the right and opportunity to appoint any successor master servicer or special servicer with respect to this Section 6.05; provided that, such successor master servicer or special servicer shall not be the Asset Representations Reviewer, the Operating Advisor or one of their respective Affiliates and (prior to the occurrence and continuance of a Control Termination Event) such successor special servicer is approved by the Directing Certificateholder, such approval not to be unreasonably withheld. The resigning party shall pay all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 6.05. Except as provided in Section 7.01(c), in no event shall such Master Servicer or such Special Servicer have the right to appoint any successor master servicer or special servicer if such Master Servicer or Special Servicer, as applicable, is terminated or removed pursuant to Section 7.01.

 

Section 6.06   Rights of the Depositor in Respect of each applicable Master Servicer and Special Servicer. The Depositor may, but is not obligated to, enforce the obligations of any Master Servicer and any Special Servicer hereunder and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of any Master Servicer and any Special Servicer hereunder or exercise the rights of any Master Servicer or any Special Servicer, as applicable, hereunder; provided, however, that any Master Servicer and any Special Servicer shall not be relieved of any of their respective obligations hereunder by virtue of such performance by the Depositor or its designee. The Depositor shall not have any responsibility or liability for any action or failure to act by any Master Servicer or any Special Servicer and is not obligated to supervise the performance of the Trustee, any Master Servicer, the Operating Advisor or any Special Servicer under this Agreement or otherwise.

 

Section 6.07    Master Servicers and Special Servicers as Certificate Owners. Any Master Servicer, any Special Servicer or any Affiliate thereof may become the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect to) any Certificate with (except as otherwise set forth in the definition of “Certificateholder”) the same rights it would have if it were not a Master Servicer, a Special Servicer or an Affiliate thereof.

 

Section 6.08    The Directing Certificateholder and the Risk Retention Consultation Party. (a) (A) Other than with respect to any Serviced AB Whole Loan that is not subject to an AB Control Appraisal Period, for so long as no Control Termination Event has occurred and is

 

 -392-

 

 

continuing, the Directing Certificateholder shall be entitled to advise (1) the applicable Special Servicer with respect to all Major Decisions (other than with respect to any applicable Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class) and (2) the applicable Master Servicer to the extent the Directing Certificateholder’s consent is required by the applicable clauses of the definition of “Master Servicer Decision”, and (B) the Risk Retention Consultation Party shall (other than with respect to any applicable Excluded Loan with respect to the Risk Retention Consultation Party) be entitled to consult on a strictly non-binding basis with the applicable Special Servicer with respect to any Major Decision (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan). For the avoidance of doubt, any consultation with the Risk Retention Consultation Party under this Agreement shall occur only upon the written request of the Risk Retention Consultation Party with respect to any individual triggering event, and any such consultation shall be on a strictly non-binding basis and shall be subject to all limitations with respect to the procedures and timing of such consultation set forth in this Section 6.08.

 

Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, the third and fourth paragraphs of this Section 6.08(a) and Section 6.08(b), for so long as no Control Termination Event has occurred and is continuing, the applicable Special Servicer shall not be permitted to take (or, other than with respect to any Payment Accommodation, to consent to any Master Servicer’s taking) any of the following actions (each, a “Major Decision”) as to which the Directing Certificateholder has objected in writing within ten (10) Business Days (or thirty (30) days with respect to clause (ix) of the definition of “Major Decision”) after the Directing Certificateholder’s receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to the applicable Special Servicer in order to grant or withhold such consent (provided that if such written consent has not been received by the applicable Special Servicer within the applicable time period, then the Directing Certificateholder will be deemed to have approved such action):

 

(i)      any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of properties securing any Specially Serviced Loan that comes into and continues in default;

 

(ii)     any modification, consent to a modification or waiver of any monetary term (other than late fees and Default Interest) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs and Payment Accommodations) of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan or any extension of the maturity date of such Mortgage Loan or Serviced Whole Loan other than in connection with a maturity default if a refinancing or sale is expected within 120 days as provided in clause (ix) of the definition of “Master Servicer Decision”;

 

(iii)    any sale of a Defaulted Loan and any related defaulted Companion Loan, or any REO Property (other than in connection with the termination of the Trust) or a defaulted Non-Serviced Mortgage Loan that the applicable Special Servicer is permitted to

 

 -393-

 

 

sell in accordance with Section 3.16(a)(iii) of this Agreement, in each case, for less than the applicable Purchase Price;

 

(iv)    any determination to bring a Mortgaged Property or an REO Property into compliance with applicable environmental laws or to otherwise address hazardous material located at a Mortgaged Property or an REO Property;

 

(v)     any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Serviced Mortgage Loan or a Serviced Whole Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor or consent to the incurrence of additional debt, other than (A) any such transfer or incurrence of debt as described under clauses (xiv) or (xv) of the definition of “Master Servicer Decision” or as may be effected (I) without the consent of the lender under the related loan agreement, (II) pursuant to the specific terms of such Mortgage Loan and (III) for which there is no lender discretion, or (B) solely with respect to an NCB Co-op Mortgage Loan, subject to the satisfaction of various conditions and subject to certain parameters set forth in this Agreement, (a) the waiver of a “due-on-encumbrance” clause pertaining to an NCB Co-op Mortgage Loan with respect to subordinate financing as to which the Co-op Subordinate Debt Conditions have been satisfied and (b) the incurrence of additional indebtedness by a Mortgagor of an NCB Co-op Mortgage Loan;

 

(vi)    (a) other than in the case of an NCB Co-op Mortgage Loan, any property management company changes with respect to a Specially Serviced Loan with a principal balance equal to or greater than $10,000,000, including, without limitation, approval of the termination of a manager and appointment of a new property manager, (b) with respect to any Serviced Mortgage Loan or Serviced Companion Loan that is a Non-Specially Serviced Loan, a change in property management if the replacement property manager is a Borrower Party or (c) franchise changes with respect to a Mortgage Loan for which the lender is required to consent or approve such changes under the related Mortgage Loan documents;

 

(vii)   other than in the case of any Non-Specially Serviced Loan or any NCB Co-op Mortgage Loan, releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Mortgage Loan documents (provided, however, that any releases for which there is lender discretion with respect to Specially Serviced Loans of material amounts from any escrow accounts, reserve funds or letters of credit held as performance escrows or performance reserves specified (along with the related Mortgage Loans) on Schedule 3 hereto shall also constitute Major Decisions);

 

(viii)  any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in a Mortgagor or guarantor releasing a Mortgagor or guarantor from liability under a Serviced Mortgage Loan or Serviced Whole Loan other than pursuant to the specific terms of such Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;

 

 -394-

 

 

(ix)    other than in the case of a Non-Specially Serviced Loan, any determination of an Acceptable Insurance Default;

 

(x)     other than in the case of a Non-Specially Serviced Loan, any modification, waiver or amendment of any lease, the execution of any new lease or the granting of a subordination and non-disturbance or attornment agreement in connection with any lease (other than for ground leases), at a Mortgaged Property if (a) the lease affects an area greater than or equal to the lesser of (1) 30% of the net rentable area of the improvements at the Mortgaged Property or (2) 30,000 square feet and (b) such transaction is not a routine leasing matter;

 

(xi)    other than in the case of a Non-Specially Serviced Loan or a Non-Serviced Mortgage Loan, any modification, amendment, consent to a modification or waiver of any material term of any Intercreditor Agreement or any action to enforce rights (or decision not to enforce rights) with respect thereto; provided, however, that any such modification or amendment that would adversely impact the applicable Master Servicer shall additionally require the consent of such Master Servicer as a condition to its effectiveness;

 

(xii)   any consent to incurrence of additional debt by a Mortgagor or mezzanine debt by a direct or indirect parent of a Mortgagor, to the extent the Mortgagee’s approval is required under the related Mortgage Loan documents, other than with respect to an NCB Co-op Mortgage Loan as to which the Co-op Subordinate Debt Conditions have been satisfied;

 

(xiii)  requests for property or other collateral releases or substitutions, other than (A) grants of easements or rights of way, (B) releases of non-material, non-income producing parcels of a Mortgaged Property (including, without limitation, any such releases as to which the related Mortgage Loan documents expressly require the mortgagee thereunder to make such releases), (C) consents to releases related to condemnation of parcels of a Mortgaged Property, (D) the release of collateral securing any Mortgage Loan in connection with defeasance of the collateral for such Mortgage Loan or (E) the items listed in clause (vii) of this definition and clause (viii) of the definition of “Master Servicer Decision”;

 

(xiv)  other than in the case of a Non-Specially Serviced Loan, approval of easements and rights of way that materially affect the use or value of a Mortgaged Property or the Mortgagor’s ability to make any payments with respect to the related Mortgage Loan;

 

(xv)   agreeing to any modification, waiver, consent or amendment of the related Mortgage Loan or Serviced Whole Loan in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (A) a modification of the type of defeasance collateral required under the Mortgage Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States of America would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the applicable loan documents do not otherwise permit such principal prepayment;

 

 -395-

 

 

(xvi)     determining whether to cure any default by a Mortgagor under a ground lease or permit any ground lease modification, amendment or subordination, non-disturbance and attornment agreement or entry into a new ground lease;

 

(xvii)     other than in the case of a Non-Specially Serviced Loan, consent to actions and releases related to condemnation of parcels of a Mortgaged Property with respect to a material parcel or a material income producing parcel or any condemnation that materially affects the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or any related Companion Loan when due;

 

(xviii)    following a default or an event of default with respect to a Mortgage Loan or Serviced Whole Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or Serviced Whole Loan or initiation of any proceedings, judicial or otherwise, under the related Mortgage Loan documents;

 

(xix)      other than with respect to the NCB Co-op Mortgage Loans and other than in the case of any Non-Specially Serviced Loan, approval of any waiver regarding the receipt of financial statements (other than immaterial timing waivers including late financial statements which in no event relieve any borrower of the obligation to provide financial statements on at least a quarterly basis) following three consecutive late deliveries of financial statements; and

 

(xx)       the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of a borrower

 

provided, however, that, in the event that the applicable Special Servicer or the applicable Master Servicer, as the case may be, determines that immediate action, with respect to the foregoing matters or any Master Servicer Decision, or any other matter requiring consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event in this Agreement (or any matter requiring consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor), is necessary to protect the interests of the Certificateholders (or, with respect to any Serviced Whole Loan, the interest of the Certificateholders and the holders of any related Serviced Companion Loan) (as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans)), the applicable Special Servicer or the applicable Master Servicer, as the case may be, may take any such action without waiting for the Directing Certificateholder’s response (or without waiting to consult with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor, as the case may be); provided that if such matter requires consent of or consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor pursuant to this Agreement, the applicable Special Servicer or the applicable Master Servicer, as the case may be, provides the Directing Certificateholder (or the Operating Advisor, if applicable) and the Risk Retention Consultation Party (if applicable) with prompt written notice following such action including a reasonably detailed explanation of the basis therefor. None of the Master Servicers or the Special Servicers is required to obtain the consent of the Directing Certificateholder for any of the foregoing actions or any other matter requiring consent of the Directing Certificateholder after the occurrence and during the continuance of a Control

 

 -396-

 

 

Termination Event; provided, however, that, after the occurrence and during the continuance of a Control Termination Event, the applicable Special Servicer shall consult with the Directing Certificateholder (only prior to the occurrence and continuance of a Consultation Termination Event) in connection with any Major Decision not relating to an Excluded Loan with respect to the Directing Certificateholder (and any other actions which otherwise require consultation with the Directing Certificateholder prior to the occurrence and continuance of a Consultation Termination Event hereunder) and consider alternative actions recommended by the Directing Certificateholder in respect thereof. If the applicable Master Servicer and the applicable Special Servicer have mutually agreed that the applicable Master Servicer will process any Major Decision, the applicable Master Servicer shall not be permitted to take any of the actions that constitute Major Decisions unless it has obtained the consent of the applicable Special Servicer, which consent will be deemed given (unless earlier objected to by the applicable Special Servicer) ten (10) Business Days after the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendation and analysis with respect to such Major Decision and all information reasonably requested by the applicable Special Servicer and reasonably available to the applicable Master Servicer in order to make an informed decision with respect to such Major Decision plus the time period provided to the Directing Certificateholder or other relevant party under this Agreement and, if applicable, any additional time period permitted in the related Intercreditor Agreement. Additionally, the applicable Special Servicer shall consult with the Risk Retention Consultation Party on a non-binding basis (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) in connection with any Major Decision not relating to an Excluded Loan with respect to the Risk Retention Consultation Party and consider alternative actions recommended by the Risk Retention Consultation Party, in respect thereof. In the event the applicable Special Servicer receives no response from the Directing Certificateholder or the Risk Retention Consultation Party within ten (10) Business Days following its written request for input on any required consultation, the applicable Special Servicer shall not be obligated to consult with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on the specific matter; provided, however, that the failure of the Directing Certificateholder or the Risk Retention Consultation Party to respond shall not relieve the applicable Special Servicer from consulting with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on any future matters with respect to the applicable Serviced Mortgage Loan (other than an Excluded Loan with respect to such party) or Serviced Whole Loan. In addition, after a Control Termination Event, the applicable Special Servicer will also be required to consult with the Operating Advisor in connection with any proposed Major Decision (and any other actions which otherwise require consultation with the Operating Advisor after the occurrence and during the continuance of a Control Termination Event hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the applicable Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the applicable Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the applicable Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the

 

 -397-

 

 

applicable Mortgage Loan or any other Mortgage Loan. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in this Section 6.08 for consulting with the Operating Advisor.

 

Subject to the terms and conditions of this Section 6.08(a), (i) the applicable Special Servicer shall process all requests in respect of Specially Serviced Loans and any matter (other than as described in clause (ii)(B) below) that constitutes a Major Decision with respect to Non-Specially Serviced Loans, and (ii) the applicable Master Servicer shall process all requests in respect of (A) any matter that constitutes a Master Servicer Decision with respect to Non-Specially Serviced Loans and (B) any matter that constitutes a Major Decision with respect to a Non-Specially Serviced Loan that such Master Servicer and such Special Servicer have mutually agreed such Master Servicer shall process.

 

Upon receiving a request for any matter that constitutes a Major Decision with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is not a Specially Serviced Loan, the applicable Master Servicer shall forward such request to the applicable Special Servicer and, unless such Master Servicer and such Special Servicer mutually agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and such Master Servicer will have no further obligation with respect to such request or the Major Decision. With respect to such request, the applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in the applicable Master Servicer’s possession to the applicable Special Servicer that is reasonably requested by the applicable Special Servicer relating to such Major Decision. The applicable Master Servicer shall not be permitted to process any such Major Decision and shall not be required to interface with the Mortgagor or provide a written recommendation and analysis with respect to any such Major Decision. Prior to the occurrence of a Consultation Termination Event, the applicable Special Servicer shall within ten (10) Business Days forward such request to the Directing Certificateholder together with the Special Servicer’s written recommendation and analysis. The Directing Certificateholder shall promptly provide notice to the applicable Special Servicer of any objection the Directing Certificateholder has to such Special Servicer’s written recommendation and analysis (provided that if such written consent has not been received by the applicable Special Servicer within the applicable time period, then the Directing Certificateholder will be deemed to have approved such action).

 

With respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, any Major Decision relating to a Specially Serviced Loan, and (ii) after the occurrence and during the continuance of a Consultation Termination Event, any Major Decision relating to a Mortgage Loan (in each case, other than with respect to an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest), the Special Servicer shall provide copies of any notice, information and report that it is required to provide to the Directing Certificateholder pursuant to this Agreement with respect to such Major

 

 -398-

 

 

Decision to the Risk Retention Consultation Party, within the same time frame it is required to provide such notice, information or report to the Directing Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Directing Certificateholder under this Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event).

 

In addition, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, for so long as no Control Termination Event has occurred and is continuing, the Directing Certificateholder, subject to any rights, if any, of the related Companion Holder to advise the applicable Special Servicer with respect to the related Serviced Whole Loan, pursuant to the terms of the related Intercreditor Agreement, may direct the applicable Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to which provision is otherwise made herein; provided that notwithstanding anything herein to the contrary, no such direction or objection contemplated by the preceding paragraphs of this Section 6.08(a) or this paragraph may require or cause the applicable Master Servicer or applicable Special Servicer to violate any provision of any Mortgage Loan or related Intercreditor Agreement or mezzanine intercreditor agreement, applicable law, this Agreement, or the REMIC Provisions (and, with respect to a Serviced Whole Loan, subject to the rights of the holders of the related Companion Loan), including without limitation the obligation of either Master Servicer and either Special Servicer to act in accordance with the Servicing Standard, or expose the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Trust or the Trustee to liability, or materially expand the scope of the responsibilities of either Master Servicer or either Special Servicer, as applicable, hereunder or cause either Master Servicer or either Special Servicer, as applicable, to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the applicable Special Servicer, as the case may be, is not in the best interests of the Certificateholders.

 

In the event a Special Servicer or a Master Servicer, as applicable, determines that a refusal to consent by the Directing Certificateholder or any advice from the Directing Certificateholder or the Risk Retention Consultation Party, would cause such Special Servicer or such Master Servicer, as applicable, to violate the terms of any Mortgage Loan, applicable law or this Agreement, including without limitation, the Servicing Standard, such Special Servicer or such Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify the Directing Certificateholder or the Risk Retention Consultation Party, respectively, and the Trustee and the Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by such Master Servicer or such Special Servicer in accordance with the direction of or approval of the Directing Certificateholder or the approval of the Risk Retention Consultation Party that does not violate the terms of any Mortgage Loan, applicable law or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of such Master Servicer or such Special Servicer.

 

With respect to any matter for which the consent or consultation of the Directing Certificateholder or Risk Retention Consultation Party is required, to the extent no specific time period for deemed consent or deemed waiver of consultation rights is expressly stated, in the event

 

 -399-

 

 

no response from the Directing Certificateholder or Risk Retention Consultation Party, as applicable, is received within ten (10) Business Days following written request for input on any required consent or consultation and receipt of all reasonably requested information on any required consent or consultation, the Directing Certificateholder or Risk Retention Consultation Party, as applicable, shall be deemed to have consented to or approved or consulted on the specific matter; provided that the failure of the Directing Certificateholder or Risk Retention Consultation Party, as applicable, to respond will not affect any future matters with respect to the applicable Mortgage Loan or any other Mortgage Loan.

 

The Directing Certificateholder shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Directing Certificateholder shall not be protected against any liability to a Controlling Class Certificateholder that would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties owed to the Controlling Class Certificateholders or by reason of reckless disregard of obligations or duties owed to the Controlling Class Certificateholders. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Directing Certificateholder may take actions that favor the interests of one or more Classes of the Certificates including the Holders of the Controlling Class over other Classes of the Certificates, and that the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class, including the Holders of the Controlling Class, that the Directing Certificateholder does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Directing Certificateholder shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Directing Certificateholder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal thereof for having so acted.

 

The Risk Retention Consultation Party shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Risk Retention Consultation Party shall not be protected against any liability to a Holder of an RR Interest that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in the performance of duties owed to the Holders of the RR Interest or by reason of reckless disregard of obligations or duties owed to the Holders of the RR Interest. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Risk Retention Consultation Party may take actions that favor the interests of one or more Classes of the Certificates including the Holders of an RR Interest over other Classes of the Certificates, and that the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Risk Retention Consultation Party may act solely in the interests of the Holders of an RR Interest, that the Risk Retention Consultation Party does not have any duties or liability to the Holders of any Class of Certificates other than the RR Interest, that the Risk Retention Consultation Party shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holder of the RR Interest, and that the Risk Retention Consultation Party shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against

 

 -400-

 

 

the Risk Retention Consultation Party or any director, officer, employee, agent or principal thereof for having so acted.

 

Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Non-Serviced PSA including the holders of the controlling class under such Non-Serviced PSA over other classes of the certificates issued under the Non-Serviced PSA and/or any Class of Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.

 

(b)          Notwithstanding anything to the contrary contained herein (i) after the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to a Directing Certificateholder), the Directing Certificateholder shall have no right to consent to or direct any action taken or not taken by any party to this Agreement; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder (other than a Loan-Specific Directing Certificateholder) and the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the applicable Special Servicer and any other applicable party shall consult (on a non-binding basis) with the Directing Certificateholder and, with respect to any Specially Serviced Loan, the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party) to the extent set forth herein in connection with any action to be taken or refrained from being taken to the extent set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class), the Directing Certificateholder (other than a Loan-Specific Directing Certificateholder) shall have no direction, consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Directing Certificateholder and, other than with respect to any Excluded Loan with respect to the Risk Retention Consultation Party or the holder of a majority of the RR Interest, the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the

 

 -401-

 

 

applicable Special Servicer and any other applicable party shall consult with the Risk Retention Consultation Party (on a non-binding basis) to the extent set forth herein in connection with any Major Decision to be taken or refrained from being taken to the extent set forth herein.

 

Section 6.09    Knowledge of Wells Fargo Bank, National Association. Except as otherwise expressly set forth in this Agreement, Wells Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Wells Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers or Servicing Officers, as applicable.

 

Section 6.10    Knowledge of Computershare Trust Company, National Association. Except as otherwise expressly set forth in this Agreement, knowledge or information acquired by Computershare Trust Company, National Association, in any particular capacity hereunder, shall not be imputed to Computershare Trust Company, National Association in any of its other capacities hereunder or to Computershare Trust Company, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement.

 

[End of Article VI]

 

Article VII

SERVICER TERMINATION EVENTS

 

Section 7.01   Servicer Termination Events; Master Servicers and Special Servicers Termination. (a) “Servicer Termination Event”, wherever used herein, means, with respect to any Master Servicer or any Special Servicer, as the case may be, any one of the following events:

 

(i)      (A) any failure by such Master Servicer to make any deposit required to be made by such Master Servicer to its Collection Account, or remit to the Companion Paying Agent for deposit into the related Companion Distribution Account, on the day and by the time such deposit or remittance is first required to be made under the terms of this Agreement, which failure is not remedied within one (1) Business Day or (B) any failure by such Master Servicer to deposit into, or remit to the Certificate Administrator for deposit into, any Distribution Account any amount required to be so deposited or remitted, which failure is not remedied by 11:00 a.m. (New York City time) on the relevant Distribution Date; or

 

(ii)     any failure by such Special Servicer to deposit into the REO Account, within one (1) Business Day after such deposit is required to be made or to remit to the applicable Master Servicer for deposit into the applicable Collection Account or any other

 

 -402-

 

 

required account hereunder, any amount required to be so deposited or remitted by such Special Servicer pursuant to, and at the time specified by, the terms of this Agreement; or

 

(iii)    any failure on the part of such Master Servicer or such Special Servicer, as the case may be, duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement, which failure continues unremedied for a period of thirty (30) days (or (A) with respect to any year that a report on Form 10-K is required to be filed, five (5) Business Days in the case of such Master Servicer’s or such Special Servicer’s obligations, as the case may be, contemplated by Article XI, (B) fifteen (15) days in the case of such Master Servicer’s failure to make a Servicing Advance or (C) fifteen (15) days in the case of a failure to pay the premium for any property insurance policy required to be maintained) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to such Master Servicer or such Special Servicer, as the case may be, by any other party hereto, or (B) to such Master Servicer or such Special Servicer, as the case may be, with a copy to each other party to this Agreement, by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, solely as it relates to the servicing of a Serviced Pari Passu Whole Loan if affected by that failure, by the related Serviced Companion Noteholder; provided, however, if such failure is capable of being cured and such Master Servicer or such Special Servicer, as applicable, is diligently pursuing such cure, such period will be extended an additional thirty (30) days; provided, further, however, that such extended period will not apply to the obligations regarding Exchange Act reporting; or

 

(iv)    any breach on the part of such Master Servicer or such Special Servicer, as the case may be, of any representation or warranty contained in Section 6.01(a) or Section 6.01(b), as applicable, which materially and adversely affects the interests of any Class of Certificateholders or Companion Holders (excluding the holder of any Non-Serviced Companion Loan) and which continues unremedied for a period of thirty (30) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to such Master Servicer or such Special Servicer, as the case may be, by the Depositor, the Certificate Administrator or the Trustee, or to such Master Servicer, such Special Servicer, the Depositor, the Certificate Administrator and the Trustee by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, as it relates to the servicing of a Serviced Pari Passu Whole Loan affected by such breach, by the related Serviced Companion Noteholder; provided, however, that if such breach is capable of being cured and such Master Servicer or such Special Servicer, as the case may be, is diligently pursuing such cure, such 30-day period will be extended an additional thirty (30) days; or

 

(v)     a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against such Master Servicer or such Special Servicer, as the case may be, and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of sixty (60) days; or

 

 -403-

 

 

(vi)    such Master Servicer or such Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Master Servicer or such Special Servicer, as the case may be, or of or relating to all or substantially all of its property; or

 

(vii)   such Master Servicer or such Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing;

 

(viii)  such Master Servicer or such Special Servicer, as the case may be, is removed from S&P’s Select Servicer List as a “U.S. Commercial Mortgage Master Servicer” or a “U.S. Commercial Mortgage Special Servicer”, as applicable, and is not restored to such status on such list within sixty (60) days;

 

(ix)    such Master Servicer or such Special Servicer, as the case may be, is no longer rated at least “CMS3” or “CSS3”, respectively, by Fitch and such Master Servicer or Special Servicer is not reinstated to at least that rating within 60 days of the delisting; or

 

(x)     KBRA has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, or (B) placed one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, on “watch status” in contemplation of a ratings downgrade or withdrawal (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by KBRA (or, in the case of Serviced Pari Passu Companion Loan Securities, such Companion Loan Rating Agency) within sixty (60) days of such rating action) and, in the case of either of clauses (A) or (B), such Rating Agency publicly cited servicing concerns with the applicable Master Servicer or the applicable Special Servicer, as the case may be, as the sole or a material factor in such rating action.

 

(b)          If any Servicer Termination Event with respect to a Master Servicer or a Special Servicer (in either case, for purposes of this Section 7.01(b), the “Affected Party”) shall occur and be continuing, then, and in each and every such case, so long as such Servicer Termination Event shall not have been remedied, the Trustee may, and at the written direction of the Directing Certificateholder (solely with respect to such Special Servicer and only (i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to a Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) or the Holders of Certificates entitled to more than 25% of the Voting Rights, the Trustee shall, terminate (and the Depositor may direct the Trustee to terminate each of such Master Servicer or such Special Servicer, as the case may be, upon five (5) Business Days’ written notice if there is a Servicer Termination Event under clause (A) in the parenthetical in Section 7.01(a)(iii) above), by notice in writing to the Affected Party, with a copy of such notice to the Depositor and the Operating Advisor, all of the rights (subject to Section 3.11 and Section 6.04) and obligations of the Affected Party under this Agreement and in and to the

 

 -404-

 

 

Mortgage Loans and the proceeds thereof (other than as a Certificateholder or Companion Holder, if applicable); provided, however, that the Affected Party shall be entitled to the payment of accrued and unpaid compensation and reimbursement through the date of such termination as provided for under this Agreement for services rendered and expenses incurred. From and after the receipt by the Affected Party of such written notice except as otherwise provided in this Article VII, all authority and power of the Affected Party under this Agreement, whether with respect to the Certificates (other than as a Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee with respect to a termination of such Master Servicer or such Special Servicer pursuant to and under this Section 7.01, and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Affected Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents, or otherwise. Such Master Servicer and such Special Servicer each agree that if it is terminated pursuant to this Section 7.01(b), it shall promptly (and in any event no later than twenty (20) Business Days subsequent to its receipt of the notice of termination) provide the Trustee with all documents and records requested by it to enable it to assume such Master Servicer’s or such Special Servicer’s, as the case may be, functions hereunder, and shall cooperate with the Trustee in effecting the termination of such Master Servicer’s or such Special Servicer’s, as the case may be, responsibilities and rights (subject to Section 3.11 and Section 6.04) hereunder, including, without limitation, the transfer within five (5) Business Days to the Trustee for administration by it of all cash amounts which shall at the time be or should have been credited by such Master Servicer to its Collection Account or any Servicing Account (if it is the Affected Party), by such Special Servicer to the REO Account (if it is the Affected Party) or thereafter be received with respect to the applicable Mortgage Loans or any REO Property (provided, however, that such Master Servicer and such Special Servicer each shall, if terminated pursuant to this Section 7.01(b) or pursuant to Section 7.01(d) (with respect to such Special Servicer), continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the date of such termination, whether in respect of Advances (in the case of such Special Servicer or such Master Servicer) or otherwise, and it and its Affiliates and the directors, managers, officers, members, employees and agents of it and its Affiliates shall continue to be entitled to the benefits of Section 3.11 and Section 6.04 notwithstanding any such termination).

 

(c)           If a Master Servicer receives notice of termination under Section 7.01(b) solely due to a Servicer Termination Event under Section 7.01(a)(viii), (a)(ix) or (a)(x), such Master Servicer shall have a forty-five (45) day period after such notice in which to find a successor master servicer qualified to act as Master Servicer hereunder in accordance with Section 6.03 and Section 7.02 and to which such Master Servicer can sell its rights to service the Mortgage Loans under this Agreement. During such forty-five (45) day period such Master Servicer may continue to serve as a Master Servicer hereunder. In the event that such Master Servicer is unable, within such forty-five (45) day period, to cause a qualified successor master servicer to assume the duties of such Master Servicer hereunder, then and in such event, the Trustee shall assume the obligations of such Master Servicer hereunder.

 

Notwithstanding Section 7.01(b), if any Servicer Termination Event on the part of the General Special Servicer shall occur and be continuing that affects the Holder of a Serviced

 

 -405-

 

 

Pari Passu Companion Loan, then, so long as the General Special Servicer is not otherwise terminated, the Holder of such Serviced Pari Passu Companion Loan or the Other Trustee appointed under the related Other Pooling and Servicing Agreement, as applicable, shall be entitled to direct the Trustee to terminate the General Special Servicer with respect to the related Serviced Pari Passu Whole Loan. The General Special Servicer appointed to replace the General Special Servicer with respect to a Serviced Pari Passu Mortgage Loan cannot at any time be (without the prior written consent of the holder of such Serviced Pari Passu Companion Loan) the person (or Affiliate thereof) that was terminated at the direction of the holder of the related Serviced Pari Passu Companion Loan. Any such Special Servicer under this paragraph shall meet the eligibility requirements of Section 7.02 and the eligibility requirements of the related Other Pooling and Servicing Agreement, and the appointment thereof shall comply with the provisions of Section 7.02. Any appointment of a replacement General Special Servicer in accordance with this paragraph shall be subject to the receipt of Rating Agency Confirmation and confirmation from the applicable rating agencies that such appointment or replacement will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Companion Loan Securities (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

(d)          Subject to the rights of the holder of a related AB Subordinate Companion Loan pursuant to the related Intercreditor Agreement, at any time prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder shall be entitled to terminate the rights (subject to Section 3.11 and Section 6.04) and obligations of the applicable Special Servicer under this Agreement, (A) for cause at any time and (B) without cause at any time, in each case, upon ten (10) Business Days’ notice to such Special Servicer, each applicable Master Servicer, the Certificate Administrator, the Trustee and the Operating Advisor; such termination to be effective upon the appointment of a successor special servicer meeting the requirements of this Section 7.01(d). Upon a termination of such Special Servicer, the Directing Certificateholder (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) shall appoint a successor special servicer to assume the duties of such Special Servicer hereunder; provided, however, that (i) such successor will meet the requirements set forth in Section 7.02, (ii) each Rating Agency delivers Rating Agency Confirmation and, in the case of any class of any Serviced Companion Loan Securities, the applicable rating agencies deliver a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (iii) no replacement of such Special Servicer shall be effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan.

 

After the occurrence and during the continuance of a Control Termination Event and upon (a) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances pursuant to Section 4.05) of the

 

 -406-

 

 

Principal Balance Certificates (other than the RR Interest) requesting a vote to replace such Special Servicer with a new special servicer designated in such written direction to assume the duties of such Special Servicer hereunder, (b) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any legal fees and any Rating Agency fees and expenses) to be incurred by the Certificate Administrator in connection with administering such vote and which will not be additional expenses of the Trust and (c) delivery by such Holders to the Certificate Administrator and Trustee of Rating Agency Confirmation from each Rating Agency (which Rating Agency Confirmation shall be obtained at the expense of such Holders) and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall promptly post notice to all Certificateholders of such request on the Certificate Administrator’s Website in accordance with Section 3.13(b) and concurrently by mail, and conduct the solicitation of votes of all Certificates (other than the RR Interest) in such regard, which requisite affirmative votes shall be received within one hundred-eighty (180) days of the posting of such notice, and if not so received, such votes shall be null and void ab initio. Upon the written direction of Holders of Certificates evidencing at least 66-2/3% of a Certificateholder Quorum of Certificates, the Trustee shall terminate all of the rights and obligations of such Special Servicer under this Agreement and appoint the successor special servicer to assume the duties of such Special Servicer (which must be a Qualified Replacement Special Servicer) designated by such Certificateholders. The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder may (i) access such notices via the Certificate Administrator’s Website and (ii) register to receive electronic mail notifications when such notices are posted thereon. Notwithstanding the foregoing, the Certificateholder’s direction to remove a Special Servicer shall not apply to any Serviced AB Whole Loan for which the holder of the related AB Subordinate Companion Loan is not subject to an AB Control Appraisal Period or any Servicing Shift Whole Loan.

 

An AB Whole Loan Controlling Holder shall have the right, if an AB Control Appraisal Period is not in effect, to replace the applicable Special Servicer solely with respect to the related Serviced AB Whole Loan, so long as (A) each Rating Agency delivers a Rating Agency Confirmation; (B) the successor special servicer has assumed in writing (from and after the date such successor special servicer becomes a Special Servicer) all of the responsibilities, duties and liabilities of such Special Servicer under this Agreement from and after the date it becomes a Special Servicer as they relate to any Serviced AB Whole Loan pursuant to an assumption agreement reasonably satisfactory to the Certificate Administrator; and (C) the Certificate Administrator shall have received an opinion of counsel reasonably satisfactory to the Certificate Administrator to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with this Agreement, (y) such replacement will be bound by the terms of this Agreement with respect to any Serviced AB Whole Loan and (z) subject to customary qualifications and exceptions, this Agreement will be enforceable against such replacement in accordance with the terms hereof.

 

The parties hereto acknowledge that, notwithstanding anything to the contrary contained in this section, and subject to the related Intercreditor Agreement, if a servicer termination event on the part of a Non-Serviced Special Servicer under a Non-Serviced PSA remains unremedied and affects the holder of the related Non-Serviced Mortgage Loan, and the

 

 -407-

 

 

related Non-Serviced Special Servicer has not otherwise been terminated, the holder of the related Non-Serviced Mortgage Loan (or the Trustee, acting at the direction of the Directing Certificateholder prior to the occurrence and continuance of a Consultation Termination Event (subject to the related Intercreditor Agreement)) will be entitled to direct the related Non-Serviced Trustee to terminate the related Non-Serviced Special Servicer solely with respect to the related Non-Serviced Whole Loan. The appointment (or replacement) of the applicable Non-Serviced Special Servicer with respect to a Non-Serviced Whole Loan will in any event be subject to Rating Agency Confirmation from each Rating Agency. A replacement special servicer will be selected by the related Non-Serviced Trustee or, prior to a control termination event under the related Non-Serviced PSA, by the related Non-Serviced Whole Loan Controlling Holder; provided, however, that any successor special servicer appointed to replace such Special Servicer with respect to such Non-Serviced Whole Loan cannot at any time be the Person (or an Affiliate thereof) that was terminated at the direction of the holder of such Non-Serviced Mortgage Loan, without the prior written consent of the Directing Certificateholder.

 

Following the occurrence and continuance of a Consultation Termination Event, subject to the immediately succeeding paragraph, if the Operating Advisor determines in accordance with the Operating Advisor Standard that a Special Servicer is not performing its duties as required hereunder or is otherwise not acting in accordance with the Servicing Standard, the Operating Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to such Special Servicer, a written report in the form of Exhibit W attached hereto, setting forth the reasons supporting its recommendation (along with any information the Operating Advisor considered relevant to its recommendation) and recommending a replacement Special Servicer (which form may be modified or supplemented from time to time to cure any ambiguity or error or to incorporate any additional information, subject to compliance of such form with the terms and provisions of this Agreement; provided, further, that in no event shall the information or any other content included in such written recommendation contravene any provision of this Agreement) detailing the reasons supporting its recommendation (along with relevant information justifying its recommendation) and recommending a suggested replacement special servicer to assume the duties of such Special Servicer, which shall be a Qualified Replacement Special Servicer. In such event, the Certificate Administrator shall promptly post notice to all Certificateholders of such recommendation and the related report on the Certificate Administrator’s Website in accordance with Section 3.13(b), and by mail conduct the solicitation of votes of all Certificates in such regard. Upon (i) the affirmative vote of Holders of Principal Balance Certificates evidencing at least a majority of the aggregate Voting Rights (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the respective Certificate Balances of such Certificates) of all Principal Balance Certificates on an aggregate basis within 180 days of posting of the Operating Advisor’s recommendation to the Certificate Administrator’s Website, and if not so received, such votes shall be null and void ab initio, and (ii) receipt by the Certificate Administrator following satisfaction of the foregoing clause (i) of Rating Agency Confirmation from each Rating Agency and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Pari Passu Companion Loan Securities, the Trustee shall (i) terminate all of the rights and obligations of such Special Servicer under this Agreement and appoint a successor special servicer approved by the Certificateholders and (ii) promptly notify such outgoing Special Servicer of the effective date of such termination. The reasonable out-of-pocket costs and expenses (including reasonable

 

 -408-

 

 

legal fees and expenses of outside counsel) associated with obtaining such Rating Agency Confirmations and administering such vote and the Operating Advisor’s identification of a Qualified Replacement Special Servicer shall be an additional expense of the Trust. In the event that the Trustee does not receive at least a majority of the requested votes, then the Trustee shall have no obligation to remove such Special Servicer. Prior to the appointment of any replacement special servicer, such replacement special servicer shall have agreed to succeed to the obligations of such Special Servicer under this Agreement and to act as such Special Servicer’s successor hereunder. Notwithstanding the foregoing, the Operating Advisor shall not be permitted to recommend the replacement of a Special Servicer with respect to an AB Whole Loan so long as the related Serviced Companion Noteholder is not subject to an AB Control Appraisal Period under the related Intercreditor Agreement or with respect to any Servicing Shift Whole Loan.

 

No penalty or fee shall be payable to the terminated Special Servicer with respect to any termination pursuant to this Section 7.01(d). All costs of any such termination made by the Directing Certificateholder without cause shall be paid by the Holders of the Controlling Class.

 

For the avoidance of doubt, the indemnification of the Operating Advisor in Section 6.04 shall include, subject to the limitations set forth in Section 6.04, any action or claim arising from, or relating to, the Operating Advisor’s determination under this Section 7.01(d) (regarding removal of a Special Servicer), or the result of the vote of the Certificateholders (regarding removal of a Special Servicer).

 

(e)           Each Master Servicer and each Special Servicer shall, as the case may be, from time to time, take all such reasonable actions as are required by it in accordance with the related Servicing Standard in order to prevent the Certificates from being placed on “watch” status or downgraded due to servicing or special servicing, as applicable, concerns by any Rating Agency with respect to such Master Servicer or Special Servicer, as applicable. In no event shall the remedy for a breach of the foregoing covenant extend beyond termination pursuant to Section 7.01(a)(viii), (ix) or (x) and the resulting operation of Section 7.01(b) and (c). The operation of this subsection (e) shall not be construed to limit the effect of Section 7.01(a)(viii), (ix) or (x).

 

(f)           Notwithstanding the foregoing, (1) if any Servicer Termination Event on the part of a Master Servicer affects a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, and if such Master Servicer is not otherwise terminated, or (2) if a Servicer Termination Event on the part of a Master Servicer affects only a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, then such Master Servicer may not be terminated by or at the direction of the related holder of such Serviced Companion Loan or the holders of any Serviced Companion Loan Securities, but upon the written direction of the related holder of such Serviced Companion Loan, such Master Servicer shall be required to appoint a sub-servicer that will be responsible for servicing the related Serviced Whole Loan.

 

(g)           Notwithstanding anything to the contrary contained in this Section 7.01, with respect to any Excluded Special Servicer Loan, if any, the related Special Servicer shall resign as Special Servicer of that Excluded Special Servicer Loan. Prior to the occurrence and continuance of a Control Termination Event, if the applicable Excluded Special Servicer Loan is not also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the

 

 -409-

 

 

majority of the Controlling Class, the Directing Certificateholder shall select an Excluded Special Servicer, as successor to the resigning Special Servicer, for the related Excluded Special Servicer Loan in accordance with this Agreement. After the occurrence and during the continuance of a Control Termination Event, (i) if at any time the applicable Excluded Special Servicer Loan is also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class or (ii) if the Directing Certificateholder is entitled to appoint the Excluded Special Servicer but does not so appoint within thirty (30) days of resignation, the resigning Special Servicer shall use reasonable efforts to select the related Excluded Special Servicer. The resigning Special Servicer shall not have any liability with respect to the actions or inactions of the applicable Excluded Special Servicer or with respect to the identity of the applicable Excluded Special Servicer so long as, on the date of the appointment, the selected Excluded Special Servicer is a Qualified Replacement Special Servicer. It shall be a condition to any such appointment that (i) the Rating Agencies confirm that the appointment would not result in a qualification, downgrade or withdrawal of any of their then-current ratings of the Certificates and each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities makes the equivalent confirmation, (ii) the related Excluded Special Servicer is a Qualified Replacement Special Servicer and (iii) the related Excluded Special Servicer delivers to the Depositor and the Certificate Administrator and any applicable Other Depositor and Other Certificate Administrator, the information, if any, required under Item 6.02 of Form 8-K pursuant to the Exchange Act regarding itself in its role as Excluded Special Servicer.

 

If at any time a Special Servicer that had previously acted as a Special Servicer is no longer a Borrower Party with respect to an Excluded Special Servicer Loan (including, without limitation, as a result of the related Mortgaged Property becoming REO Property), (1) the related Excluded Special Servicer shall resign, (2) the related Mortgage Loan or Serviced Whole Loan shall no longer be an Excluded Special Servicer Loan, (3) such original Special Servicer shall become the Special Servicer again for such related Mortgage Loan or Serviced Whole Loan and (4) such original Special Servicer shall be entitled to all special servicing compensation with respect to such Mortgage Loan or Serviced Whole Loan earned during such time on and after such Mortgage Loan or Serviced Whole Loan is no longer an Excluded Special Servicer Loan.

 

The applicable Excluded Special Servicer shall perform all of the obligations of the Special Servicer for the related Excluded Special Servicer Loan and shall be entitled to all special servicing compensation with respect to such Excluded Special Servicer Loan earned during such time as the related Mortgage Loan or Serviced Whole Loan is an Excluded Special Servicer Loan (provided that the applicable Special Servicer shall remain entitled to all other special servicing compensation with respect to all Mortgage Loans and Serviced Whole Loans that are not Excluded Special Servicer Loans during such time).

 

If a Servicing Officer of the applicable Master Servicer, a related Excluded Special Servicer, or the applicable Special Servicer, as the case may be, has actual knowledge that a Mortgage Loan is no longer an Excluded Loan, an Excluded Controlling Class Loan or an Excluded Special Servicer Loan, as applicable, the applicable Master Servicer, the related Excluded Special Servicer or the applicable Special Servicer, as the case may be, shall provide prompt written notice thereof to each of the other parties to this Agreement.

 

 -410-

 

 

Section 7.02   Trustee to Act; Appointment of Successor. On and after the time a Master Servicer or a Special Servicer, as the case may be, either resigns pursuant to clause (a) of Section 6.05 or receives a notice of termination for cause pursuant to Section 7.01(b), and provided that no acceptable successor has been appointed within the time period specified in Section 7.01(c), the Trustee shall be the successor to such party, until such successor to that Master Servicer or that Special Servicer, as applicable, is appointed as provided in this Section 7.02 or by the Directing Certificateholder as provided in Section 7.01(d), as applicable, in all respects in its capacity as such Master Servicer or such Special Servicer, as applicable, under this Agreement and the transactions set forth or provided for herein and shall be subject to, and have the benefit of, all of the rights, (subject to Section 3.11 and Section 6.04) benefits, responsibilities, duties, liabilities and limitations on liability relating thereto and that arise thereafter placed on or for the benefit of such Master Servicer or Special Servicer, as applicable, by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the terminated party’s failure under Section 7.01 to provide information or moneys required hereunder shall not be considered a default by such successor hereunder. The appointment of a successor master servicer shall not affect any liability of the predecessor Master Servicer which may have arisen prior to its termination as Master Servicer, and the appointment of a successor special servicer shall not affect any liability of the predecessor Special Servicer which may have arisen prior to its termination as Special Servicer. The Trustee in its capacity as successor to such Master Servicer or such Special Servicer, as such case may be, shall not be liable for any of the representations and warranties of such Master Servicer or such Special Servicer, respectively, herein or in any related document or agreement, for any acts or omissions of the predecessor master servicer or special servicer or for any losses incurred by the predecessor Master Servicer pursuant to Section 3.06 hereunder, nor shall the Trustee be required to purchase any Mortgage Loan hereunder solely as a result of its obligations as successor master servicer or special servicer, as the case may be. Subject to Section 3.11, as compensation therefor, the Trustee as successor master servicer shall be entitled to the Servicing Fees and all fees relating to the Mortgage Loans or the Companion Loans which that Master Servicer would have been entitled to if such Master Servicer had continued to act hereunder, including but not limited to any income or other benefit from any Permitted Investment pursuant to Section 3.06, and subject to Section 3.11, and the Trustee as successor to such Special Servicer shall be entitled to the Special Servicing Fees to which such Special Servicer would have been entitled if such Special Servicer had continued to act hereunder. Should the Trustee succeed to the capacity of such Master Servicer or such Special Servicer, as the case may be, the Trustee shall be afforded the same standard of care and liability as such Master Servicer or such Special Servicer, as applicable, hereunder notwithstanding anything in Section 8.01 to the contrary, but only with respect to actions taken by it in its role as successor master servicer or successor special servicer, as the case may be, and not with respect to its role as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling to act as successor to that Master Servicer or that Special Servicer, as applicable, or shall, if it is unable to so act, or if the Trustee is not approved as a servicer by each Rating Agency, or if the Directing Certificateholder (solely with respect to such Special Servicer) ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) or the Holders of Certificates entitled to more than 50% of the Voting Rights so request in writing to the Trustee, promptly appoint, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution which meets the criteria set forth in

 

 -411-

 

 

Section 6.05 and otherwise herein, as the successor to that Master Servicer or that Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of such Master Servicer or such Special Servicer hereunder. No appointment of a successor to such Master Servicer or such Special Servicer hereunder shall be effective until (i) the assumption in writing by the successor to such Master Servicer or such Special Servicer of all its responsibilities, duties and liabilities hereunder that arise thereafter, (ii) receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), (iii) such appointment (solely with respect to such Special Servicer) has been approved (prior to the occurrence and continuance of a Control Termination Event) by the Directing Certificateholder, such approval not to be unreasonably withheld and (iv) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Pending appointment of a successor to such Master Servicer or such Special Servicer hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in such capacity as herein above provided. In connection with such appointment and assumption of a successor to such Master Servicer or such Special Servicer as described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on the Mortgage Loans as it and such successor shall agree; provided, however, that no such compensation with respect to a successor master servicer or successor special servicer, as the case may be, shall be in excess of that permitted the terminated Master Servicer or Special Servicer, as the case may be, hereunder. The Trustee, the non-terminated Master Servicer or the non-terminated Special Servicer and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. Any reasonable out-of-pocket costs and expenses associated with the transfer of the servicing function (other than with respect to a termination without cause) under this Agreement shall be borne by the predecessor Master Servicer or Special Servicer, as applicable. If such predecessor Master Servicer or Special Servicer (as the case may be) has not reimbursed the party requesting such termination or the successor master servicer or special servicer for such expenses within ninety (90) days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust; provided that the terminated Master Servicer or Special Servicer shall not thereby be relieved of its liability for such expenses. If and to the extent that the terminated Master Servicer or Special Servicer has not reimbursed such costs and expenses, the party requesting such termination shall have an affirmative obligation to take all reasonable actions to collect such expenses on behalf of the Trust. In the event of a termination without cause, such costs and expenses shall be borne by the party requesting such termination, or as otherwise set forth herein; provided that the Certificate Administrator and the Trustee shall not bear any such costs and expenses. For the avoidance of doubt, if the Trustee is terminating a Master Servicer or a Special Servicer in accordance with this Agreement at the direction of any party or parties permitted to direct the Trustee to so terminate such Master Servicer or such Special Servicer pursuant to this Agreement, the Trustee shall not have any liability for such expenses pursuant to this paragraph.

 

Section 7.03    Notification to Certificateholders. (a) Upon any resignation of a Master Servicer or a Special Servicer pursuant to Section 6.05, any termination of a Master

 

 -412-

 

 

Servicer or a Special Servicer pursuant to Section 7.01 or any appointment of a successor to a Master Servicer or a Special Servicer pursuant to Section 7.02, the Certificate Administrator shall give prompt written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register.

 

(b)          Not later than the later of (i) sixty (60) days after the occurrence of any event which constitutes or, with notice or lapse of time or both, would constitute a Servicer Termination Event and (ii) five (5) days after the Certificate Administrator would be deemed to have notice of the occurrence of such an event in accordance with Section 8.02(vii), the Certificate Administrator shall transmit by mail to the Depositor and all Certificateholders (and, if a Serviced Whole Loan is affected, the related Serviced Companion Noteholder) notice of such occurrence, unless such default shall have been cured.

 

Section 7.04   Waiver of Servicer Termination Events. The Holders of Certificates representing at least 66-2/3% of the Voting Rights allocated to each Class of Certificates affected by any Servicer Termination Event hereunder may waive such Servicer Termination Event; provided, however, that a Servicer Termination Event under clause (i), (ii), (viii), (ix) or (x) of Section 7.01(a) may be waived only with the consent of all of the Certificateholders of the affected Classes, and a Servicer Termination Event under clause (iii) of Section 7.01(a) (with respect to obligations under Article XI) may be waived only with the consent of the Depositor. Upon any such waiver of a Servicer Termination Event, subject to the rights of any affected holder of a Serviced Companion Loan under Section 7.01(c) or Section 7.01(f), such Servicer Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of a Servicer Termination Event by Certificateholders, the Trustee and the Certificate Administrator shall be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Servicer Termination Event prior to such waiver from the Trust. No such waiver shall extend to any subsequent or other Servicer Termination Event or impair any right consequent thereon except to the extent expressly so waived. Notwithstanding any other provisions of this Agreement, for purposes of waiving any Servicer Termination Event pursuant to this Section 7.04, Certificates registered in the name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to the matters described above as they would if any other Person held such Certificates.

 

Section 7.05    Trustee as Maker of Advances. In the event that a Master Servicer fails to fulfill its obligations hereunder to make any Advances and such failure remains uncured, the Trustee shall perform such obligations (x) within five (5) Business Days following such failure by a Master Servicer with respect to Servicing Advances resulting in a Servicer Termination Event under Section 7.01(a)(iii) to the extent a Responsible Officer of the Trustee has actual knowledge of such failure with respect to such Servicing Advances and (y) by noon, New York City time, on the related Distribution Date with respect to P&I Advances pursuant to the Certificate Administrator’s notice of failure pursuant to Section 4.03(a) unless such failure has been cured. With respect to any such Advance made by the Trustee, the Trustee shall succeed to all of such Master Servicer’s rights with respect to Advances hereunder, including, without limitation, such Master Servicer’s rights of reimbursement and interest on each Advance at the Reimbursement Rate, and rights to determine that a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without regard to any impairment of any such rights of reimbursement caused by such Master Servicer’s default in its obligations hereunder); provided,

 

 -413-

 

 

however, that if Advances made by the Trustee and a Master Servicer shall at any time be outstanding, or any interest on any Advance shall be accrued and unpaid, all amounts available to repay such Advances and the interest thereon hereunder shall be applied entirely to the Advances outstanding to the Trustee, until such Advances shall have been repaid in full, together with all interest accrued thereon, prior to reimbursement of such Master Servicer for such Advances. The Trustee shall be entitled to conclusively rely on any notice given with respect to a Nonrecoverable Advance hereunder.

 

[End of Article VII]

 

Article VIII

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

 

Section 8.01    Duties of the Trustee and the Certificate Administrator. (a) The Trustee and the Certificate Administrator, prior to the occurrence of a Servicer Termination Event and after the curing or waiving of all Servicer Termination Events which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If a Servicer Termination Event occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee and the Certificate Administrator contained in this Agreement shall not be construed as a duty.

 

(b)          The Trustee or the Certificate Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II, the Diligence Files, any CREFC^® reports and any information delivered for posting to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Certificate Administrator shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Certificate Administrator shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, a Master Servicer or a Special Servicer or another Person, and accepted by the Trustee or the Certificate Administrator in good faith, pursuant to this Agreement.

 

(c)           No provision of this Agreement shall be construed to relieve the Trustee or the Certificate Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:

 

(i)      Prior to the occurrence of a Servicer Termination Event, and after the curing of all such Servicer Termination Events which may have occurred, the duties and obligations of the Trustee and the Certificate Administrator shall be determined solely by the express provisions of this Agreement, the Trustee and the Certificate Administrator

 

 -414-

 

 

shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the Certificate Administrator and, in the absence of bad faith on the part of the Trustee and the Certificate Administrator, the Trustee and the Certificate Administrator may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee or the Certificate Administrator and conforming to the requirements of this Agreement;

 

(ii)     Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Certificate Administrator, respectively, unless it shall be proved that the Trustee or the Certificate Administrator, as applicable, was negligent in ascertaining the pertinent facts; and

 

(iii)    Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of Certificates entitled to greater than 25% (i) of the Percentage Interest of each affected Class, or (ii) if each Class is an affected Class of the aggregate Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Certificate Administrator, or exercising any trust or power conferred upon the Trustee or the Certificate Administrator, under this Agreement (unless a higher percentage of Voting Rights is required for such action).

 

(d)          The Certificate Administrator shall make available via its internet website initially located at www.ctslink.com to the Serviced Companion Noteholders all reports that the Certificate Administrator has made available to Certificateholders under this Agreement to the extent such reports relate to the related Serviced Companion Loan and upon the submission of an Investor Certification pursuant to this Agreement.

 

Section 8.02    Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:

 

(i)      The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, direction of the Depositor, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(ii)     The Trustee and the Certificate Administrator may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;

 

 -415-

 

 

(iii)    Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, security or indemnity reasonably satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;

 

(iv)    Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

 

(v)     Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require indemnity reasonably satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;

 

(vi)    The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, affiliates or attorneys; provided, however, that the appointment of such agents, affiliates or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;

 

 -416-

 

 

(vii)   For all purposes under this Agreement, none of the Trustee, the Custodian or the Certificate Administrator shall be deemed to have actual knowledge or notice of any Servicer Termination Event or Asset Representations Reviewer Termination Event or any act, failure or breach of any Person upon the occurrence of which the Trustee or Certificate Administrator may be required to act unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event, act, failure or breach, as applicable, which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;

 

(viii)  Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of a Master Servicer or a Special Servicer (unless the Trustee is acting as a Master Servicer or a Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as a Master Servicer or a Special Servicer) or of the Depositor, the Operating Advisor or the Asset Representations Reviewer;

 

(ix)    Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency;

 

(x)     In no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct;

 

(xi)    Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and

 

(xii)   Nothing herein shall be construed as an obligation for any party to this Agreement to advise a Certificateholder with respect to its rights and protections relative to the Trust.

 

Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Registrar, 17g-5 Information Provider and Authenticating Agent).

 

Section 8.03    Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and in the Certificates, other than the acknowledgments of the Trustee or the Certificate Administrator in Sections 2.01(h) and Section 2.04 and the signature, if any, of the Certificate Registrar and Authenticating Agent set forth on any outstanding Certificate, shall not be taken as the statements of the Trustee or the Certificate Administrator, and the Trustee or the Certificate Administrator assume no responsibility for their correctness. Neither the Trustee nor the Certificate

 

 -417-

 

 

Administrator makes any representations as to the validity or sufficiency of this Agreement or of any Certificate (other than as to the signature, if any, of the Trustee or the Certificate Administrator set forth thereon) or of any Mortgage Loan or related document. Neither the Trustee nor the Certificate Administrator shall be accountable for the use or application by the Depositor of any of the Certificates issued to it or of the proceeds of such Certificates, or for the use or application of any funds paid to the Depositor in respect of the assignment of the Mortgage Loans to the Trust, or any funds deposited in or withdrawn from each applicable Collection Account or any other account by or on behalf of the Depositor, the applicable Master Servicer, the applicable Special Servicer or in the case of the Trustee, the Certificate Administrator. The Trustee and the Certificate Administrator shall not be responsible for and may rely upon the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, a Master Servicer or a Special Servicer and accepted by the Trustee or the Certificate Administrator, in good faith, pursuant to this Agreement.

 

Section 8.04    Trustee or Certificate Administrator May Own Certificates. The Trustee or the Certificate Administrator, each in its individual capacity, not as Trustee or Certificate Administrator, may become the owner or pledgee of Certificates, and may deal with the Depositor, any Master Servicer, any Special Servicer or the Underwriters in banking transactions, with the same rights it would have if it were not Trustee or the Certificate Administrator.

 

Section 8.05    Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator. (a) As compensation for the performance of their respective duties hereunder, the Trustee will be paid the Trustee Fee, which shall cover recurring and otherwise reasonably anticipated expenses of the Trustee, and the Certificate Administrator will be paid the Certificate Administrator Fee equal to the Certificate Administrator’s portion of one (1) month’s interest at the Certificate Administrator Fee Rate, which shall cover recurring and otherwise reasonably anticipated expenses of the Certificate Administrator. The Trustee Fee and Certificate Administrator Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan), the Certificate Administrator shall pay to the Trustee monthly the Trustee Fee from the Certificate Administrator Fee, which Certificate Administrator Fee shall accrue from time to time at the Certificate Administrator Fee Rate and the Certificate Administrator Fee shall be computed in the same manner as interest is calculated thereon and for the same period respecting which any related interest payment due or deemed thereon is computed. The Trustee Fee (which shall not be limited to any provision of law in regard to the compensation of a trustee of an express trust) shall constitute the Trustee’s sole form of compensation for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties of the Trustee hereunder, except for the reimbursement of expenses specifically provided for herein. The Certificate Administrator Fee shall constitute the Certificate Administrator’s sole form of compensation for the exercise and performance of its powers and duties hereunder, except for the reimbursement of expenses specifically provided for herein. No Trustee Fee or Certificate Administrator Fee shall be payable with respect to any Companion Loan.

 

(b)          The Trustee, the Certificate Administrator (in each case, including in its capacity as Custodian and in its individual capacity) and any director, officer, employee,

 

 -418-

 

 

representative or agent of the Trustee and the Certificate Administrator, respectively, shall be entitled to be indemnified and held harmless by the Trust (to the extent of amounts on deposit in each applicable Collection Account or the Lower-Tier REMIC Distribution Account, as applicable, from time to time) against any loss, liability or expense (including, without limitation, costs and expenses of litigation, and of investigation, counsel fees, damages, judgments and amounts paid in settlement, and expenses incurred in becoming the successor to the applicable Master Servicer or the applicable Special Servicer, to the extent not otherwise paid hereunder, and, for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) arising out of, or incurred in connection with, any act or omission of the Trustee or the Certificate Administrator, respectively, relating to the exercise and performance of any of the powers, rights and duties of the Trustee or the Certificate Administrator, respectively (including in any capacities in which they serve, such as paying agent, REMIC Administrator, Authenticating Agent, Custodian, Certificate Registrar, and 17g-5 Information Provider) hereunder; provided, however, that none of the Trustee or the Certificate Administrator, nor any of the other above specified Persons shall be entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or made by or on behalf of the Trustee or the Certificate Administrator, respectively, in the normal course of the Trustee or the Certificate Administrator, respectively, performing its duties in accordance with any of the provisions hereof, which are not “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of the Trustee’s or the Certificate Administrator’s, respectively, obligations and duties hereunder, or by reason of negligent disregard of such obligations or duties, or as may arise from a breach of any representation or warranty of the Trustee specified in Section 8.12 or the Certificate Administrator specified in Section 8.14, respectively, made herein. The provisions of this Section 8.05(b) shall survive the termination of this Agreement and any resignation or removal of the Trustee or the Certificate Administrator, respectively, and appointment of a successor thereto. The foregoing indemnity shall also apply to the Certificate Administrator in all of its capacities hereunder, including Custodian, Certificate Registrar and Authenticating Agent.

 

(c)           The Certificate Administrator shall indemnify and hold harmless the Depositor and the Mortgage Loan Sellers from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the Depositor or any Mortgage Loan Seller or its Affiliates that arise out of or are based upon (i) a breach by the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, of its obligations under this Agreement or (ii) negligence, bad faith or willful misconduct on the part of the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, in the performance of such obligations or its negligent disregard of its obligations and duties under this Agreement.

 

Section 8.06    Eligibility Requirements for Trustee and Certificate Administrator. Each of the Trustee and the Certificate Administrator hereunder shall at all times be, and will be

 

 -419-

 

 

required to resign if it fails to be, (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority and in the case of the Trustee, shall not be an Affiliate of any Master Servicer or any Special Servicer (except during any period when the Trustee is acting as, or has become successor to, the applicable Master Servicer or the applicable Special Servicer, as the case may be, pursuant to Section 7.02), (ii) in the case of the Trustee, an institution whose long-term senior unsecured debt is rated at least (x) “BBB” by S&P, (y) “A” by Fitch (or short-term rating of “F1” by Fitch) and (z) “BBB-” by KBRA (or, if not rated by KBRA, then at least an equivalent rating by two other NRSROs which may include S&P and Fitch) or, in each case of clauses (x), (y) and (z), such other rating with respect to which each of the Rating Agencies have provided a Rating Agency Confirmation, and (iii) an entity that is not a Prohibited Party.

 

If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.06 the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In the event the place of business from which the Certificate Administrator administers the Trust REMICs or in which the Trustee’s office is located is in a state or local jurisdiction that imposes a tax on the Trust on the net income of a REMIC (other than a tax corresponding to a tax imposed under the REMIC Provisions), the Certificate Administrator or the Trustee, as applicable shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.07, (ii) pay such tax at no expense to the Trust or (iii) administer the Trust REMICs from a state and local jurisdiction that does not impose such a tax.

 

Section 8.07    Resignation and Removal of the Trustee and Certificate Administrator. (a) The Trustee and the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Depositor, each Master Servicer, each Special Servicer and the Trustee or the Certificate Administrator, as applicable, the Operating Advisor, the Asset Representations Reviewer, 17g-5 Information Provider and to all Certificateholders. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c). Upon receiving such notice of resignation, the Depositor shall use its reasonable best efforts to promptly appoint a successor trustee or successor certificate administrator acceptable to the General Master Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder by written instrument, in duplicate, which instrument shall be delivered to the resigning Trustee or Certificate Administrator and to the successor trustee or certificate administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer, the Certificateholders and the Trustee or Certificate Administrator, as applicable, by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of resignation, the resigning Trustee or Certificate

 

 -420-

 

 

Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, and such petition will be an expense of the Trust.

 

(b)          If at any time the Trustee or Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 8.06 (and in the case of the Certificate Administrator, Section 5.08) and shall fail to resign after written request therefor by the Depositor or a Master Servicer, or if at any time the Trustee or Certificate Administrator shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate Administrator or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, or if the Trustee or Certificate Administrator (if different than the Trustee) shall fail to timely publish any report to be delivered, published or otherwise made available by the Certificate Administrator pursuant to Section 4.02 and such failure shall continue unremedied for a period of five (5) days, or if the Certificate Administrator fails to make distributions required pursuant to Section 4.01 or Section 9.01, then the Depositor may remove the Trustee or Certificate Administrator, as applicable, and appoint a successor trustee or certificate administrator acceptable to the requesting Master Servicer, by written instrument, in duplicate, which instrument shall be delivered to the Trustee or Certificate Administrator so removed and to the successor trustee or certificate administrator in the case of the removal of the Trustee or Certificate Administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer and the Certificateholders by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of removal, the removed Trustee or Certificate Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, at the expense of the Trust.

 

(c)           The Holders of Certificates entitled to at least 75% of the Voting Rights may, upon thirty (30) days’ prior written notice, with or without cause, remove the Trustee or Certificate Administrator and appoint a successor trustee or certificate administrator by written instrument or instruments, in triplicate, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to each Master Servicer, one complete set to the Trustee or Certificate Administrator so removed and one complete set to the successor so appointed. A copy of such instrument shall be delivered to the Depositor, each Special Servicer and the remaining Certificateholders by each applicable Master Servicer. In the event of any such termination without cause pursuant to this Section 8.07(c), the successor trustee or certificate administrator, as applicable, shall be responsible for all costs and expenses necessary to effect the transfer of responsibilities from its predecessor.

 

(d)          Any resignation or removal of the Trustee or Certificate Administrator and appointment of a successor trustee or certificate administrator pursuant to any of the provisions of this Section 8.07 shall not become effective until (i) acceptance of appointment by the successor trustee or certificate administrator as provided in Section 8.08 and (ii) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Further, the resigning Trustee or Certificate Administrator, as the case may be, shall pay all costs and expenses associated with the transfer of its duties.

 

 -421-

 

 

If the same party is acting as Trustee and Certificate Administrator pursuant to this Agreement, any removal of either such party in its capacity as Trustee or Certificate Administrator, as applicable, shall also result in such party’s removal in its capacity as Trustee or Certificate Administrator, as applicable, and the Depositor shall appoint a successor certificate administrator and a successor trustee, in each instance meeting the eligibility requirements set forth hereunder.

 

Upon any succession of the Trustee or Certificate Administrator under this Agreement, the predecessor Trustee or Certificate Administrator shall be entitled to the payment of accrued and unpaid compensation and reimbursement as provided for under this Agreement for services rendered and expenses incurred (including without limitation, unreimbursed Advances). No Trustee or Certificate Administrator shall be personally liable for any action or omission of any successor trustee or certificate administrator.

 

(e)           Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor, or upon the termination of the Trustee, (a) the outgoing Trustee shall (i) endorse the original executed Mortgage Note for each Mortgage Loan (to the extent that the original executed Mortgage Note for each Mortgage Loan was endorsed to the outgoing trustee), without recourse, representation or warranty, express or implied, to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 or in blank, and (ii) in the case of the other assignable Mortgage Loan documents (to the extent such other Mortgage Loan documents were assigned to the outgoing trustee), assign such Mortgage Loan documents to such successor, and such successor shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made; (b) if any original executed Mortgage Note for a Mortgage Loan was not endorsed to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release, deliver such Mortgage Note to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Note is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 or in blank; provided, however, that, notwithstanding anything to the contrary herein, to the extent any such endorsement of such Mortgage Note requires the signature of the related Mortgage Loan Seller in order to comply with the foregoing, then the applicable Master Servicer shall use reasonable efforts to cause the related Mortgage Loan Seller to execute such endorsement; (c) if any other assignable Mortgage Loan document was not assigned to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release, deliver such Mortgage Loan document to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Loan document is assigned to such successor trustee; and (d) in any case, such successor trustee shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsements and assignments have been made or, in the event such endorsement or assignment cannot be made for any reason, to note the same in such certification.

 

(f)           Neither the Asset Representations Reviewer nor any of its Affiliates may be appointed as successor trustee or certificate administrator.

 

 -422-

 

 

Section 8.08   Successor Trustee or Certificate Administrator. (a) Any successor trustee or certificate administrator appointed as provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor, each Master Servicer, each Special Servicer and to its predecessor Trustee or Certificate Administrator an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Certificate Administrator shall become effective and such successor trustee or certificate administrator without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as Trustee or Certificate Administrator herein. The predecessor Trustee shall deliver to the successor trustee all Mortgage Files and related documents and statements held by it hereunder (other than any Mortgage Files at the time held on its behalf by the Custodian, which Custodian, at Custodian’s option shall become the agent of the successor trustee), and the Depositor, the applicable Master Servicer, the applicable Special Servicer and the predecessor Trustee shall execute and deliver such instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee all such rights, powers, duties and obligations, and to enable the successor trustee to perform its obligations hereunder.

 

(b)          No successor trustee or successor certificate administrator shall, as applicable, accept appointment as provided in this Section 8.08 unless at the time of such acceptance such successor trustee or successor certificate administrator, as applicable, shall be eligible under the provisions of Section 8.06.

 

(c)           Upon acceptance of appointment by a successor trustee or successor certificate administrator as provided in this Section 8.08, the General Master Servicer shall deliver notice of the succession of such Trustee or Certificate Administrator, as applicable, to the Depositor and the Certificateholders. If the General Master Servicer fails to deliver such notice within ten (10) days after acceptance of appointment by the successor trustee or successor certificate administrator, as applicable, such successor trustee or successor certificate administrator shall cause such notice to be delivered at the expense of the General Master Servicer.

 

Section 8.09    Merger or Consolidation of Trustee or Certificate Administrator. Any Person into which the Trustee or the Certificate Administrator may be merged or converted or with which it may be consolidated or any Person resulting from any merger, conversion or consolidation to which the Trustee or the Certificate Administrator shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee or the Certificate Administrator shall be the successor of the Trustee or the Certificate Administrator, as applicable, hereunder; provided that, in the case of the Trustee, such successor person shall be eligible under the provisions of Section 8.06, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and shall provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

Section 8.10    Appointment of Co-Trustee or Separate Trustee. (a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the same

 

 -423-

 

 

may at the time be located, each applicable Master Servicer and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as each applicable Master Servicer and the Trustee may consider necessary or desirable. If any Master Servicer shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request to do so, or in case a Servicer Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 8.06 hereunder and no notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 8.08. All co-trustee fees shall be payable out of the Trust Fund.

 

(b)          In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to a Master Servicer or a Special Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee.

 

(c)           Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then-separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.

 

(d)          Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

 

(e)           The appointment of a co-trustee or separate trustee under this Section 8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.

 

Section 8.11    Appointment of Custodians. The Certificate Administrator is hereby appointed as the Custodian to hold all or a portion of the Mortgage Files. The Custodian shall be

 

 -424-

 

 

a depository institution subject to supervision by federal or state authority, shall have combined capital and surplus of at least $15,000,000 and shall be qualified to do business in the jurisdiction in which it holds any Mortgage File. The Custodian shall be subject to the same obligations and standard of care as would be imposed on the Certificate Administrator hereunder in connection with the retention of Mortgage Files directly by the Certificate Administrator. Upon termination or resignation of the Custodian, the Certificate Administrator may appoint another Custodian meeting the foregoing requirements. The appointment of one or more Custodians by the Certificate Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible for all acts and omissions of any Custodian other than the initial Custodian. Any Custodian appointed hereunder must maintain a fidelity bond and errors and omissions policy in an amount customary for Custodians which serve in such capacity in commercial mortgage loan securitization transactions, or may self-insure.

 

Section 8.12    Representations and Warranties of the Trustee. The Trustee hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder and the Certificate Administrator for the benefit of the Certificateholders, as of the Closing Date, that:

 

(i)      The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America;

 

(ii)     The execution and delivery of this Agreement by the Trustee, and the performance and compliance with the terms of this Agreement by the Trustee, will not violate the Trustee’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

 

(iii)    The Trustee has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Trustee, enforceable against the Trustee in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)     The Trustee is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Trustee’s good faith and reasonable judgment, is likely to affect

 

 -425-

 

 

materially and adversely the ability of the Trustee to perform its obligations under this Agreement;

 

(vi)    No litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit the Trustee from entering into this Agreement or, in the Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Trustee to perform its obligations under this Agreement; and

 

(vii)   No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Trustee, or compliance by the Trustee with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Trustee of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Trustee to perform its obligations hereunder.

 

Section 8.13    Provision of Information to Certificate Administrator, Master Servicers and Special Servicers. The applicable Master Servicer shall promptly, upon request, provide the applicable Special Servicer and the Certificate Administrator with notice of any change in the identity and/or contact information of any Serviced Companion Noteholder (to the extent it receives written notice of such change). The Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer may each conclusively rely on the information provided to them regarding identity and/or contact information regarding any Serviced Companion Noteholder, and the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer, as applicable, shall have no liability for notices not sent to the correct Serviced Companion Noteholders or any obligation to determine the identity and/or contact information of the Serviced Companion Noteholders to the extent updated or correct information regarding the holders of any of the Serviced Companion Noteholders or the most recent identity and/or contact information regarding any of the Serviced Companion Noteholders has not been provided to the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable.

 

Section 8.14   Representations and Warranties of the Certificate Administrator. The Certificate Administrator hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder, and the Trustee, for the benefit of the Certificateholders, as of the Closing Date, that:

 

(i)      The Certificate Administrator is a national banking association duly organized under the laws of the United States of America, duly organized, validly existing and in good standing under the laws thereof;

 

(ii)     The execution and delivery of this Agreement by the Certificate Administrator, and the performance and compliance with the terms of this Agreement by the Certificate Administrator, will not violate the Certificate Administrator’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both,

 

 -426-

 

 

would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

 

(iii)    The Certificate Administrator has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)    This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)     The Certificate Administrator is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Certificate Administrator’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator;

 

(vi)    No litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator which would prohibit the Certificate Administrator from entering into this Agreement or, in the Certificate Administrator’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator; and

 

(vii)   No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Certificate Administrator, or compliance by the Certificate Administrator with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Certificate Administrator of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Certificate Administrator to perform its obligations hereunder.

 

Section 8.15   Compliance with the PATRIOT Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the Trustee, the Certificate Administrator, each applicable Special Servicer and each applicable Master Servicer is required to obtain, verify and record certain

 

 -427-

 

 

information relating to individuals and entities which maintain a business relationship with the Trustee, the Certificate Administrator, each applicable Special Servicer or each applicable Master Servicer, as applicable, arising out of the Trust or this Agreement. Accordingly, each of the parties to this Agreement agrees to provide to the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer, upon its respective reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer to comply with Applicable Laws.

 

[End of Article VIII]

 

Article IX

TERMINATION

 

Section 9.01    Termination upon Repurchase or Liquidation of All Mortgage Loans. Subject to this Section 9.01 and Section 9.02, the Trust and the respective obligations and responsibilities under this Agreement of the Certificate Administrator (other than the obligations of the Certificate Administrator to provide for and make payments to Certificateholders as hereafter set forth), the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and the Trustee, shall terminate upon payment (or provision for payment) to the Certificateholders of all amounts held by the Certificate Administrator and required hereunder to be so paid on the Distribution Date following the earlier to occur of (i) the final payment (or related Advance) or other liquidation of the last Mortgage Loan and REO Property (as applicable) subject hereto, (ii) the purchase or other liquidation by the Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, of all the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund at a price equal to (a) the sum of (1) the Termination Purchase Amount and (2) the reasonable out-of-pocket expenses of each applicable Master Servicer and each applicable Special Servicer with respect to such termination, unless such Master Servicer or such Special Servicer, as applicable, is the purchaser of such Mortgage Loans, minus (b) solely in the case where a Master Servicer is exercising such purchase right, the aggregate amount of unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer in respect of such Advances in accordance with Section 3.03(d) and Section 4.03(d) and any unpaid Servicing Fees, remaining outstanding and payable solely to such Master Servicer (which items shall be deemed to have been paid or reimbursed to the applicable Master Servicer in connection with such purchase) or (iii) so long as the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests, are no longer outstanding, the voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest) and the payment or deemed payment by such exchanging party of the Termination Purchase Amount for the remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the terms of the immediately succeeding paragraph, of which (a) an amount equal to

 

 -428-

 

 

the product of (i) the Required Credit Risk Retention Percentage and (ii) the Termination Purchase Amount will be paid to the Holders of the RR Interest in exchange for the surrender of the RR Interest, and (b) an amount equal to the product of (i) the Non-Retained Percentage and (ii) the Termination Purchase Amount will be deemed paid to the Trust and deemed distributed to the Holder or Holders of the then-outstanding Certificates (other than the RR Interest) in exchange for such Certificates; provided, however, that in no event shall the trust created hereby continue beyond the expiration of twenty-one (21) years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date hereof. Upon termination of the Trust pursuant to clause (i) of the immediately preceding sentence, the Custodian shall release or cause to be released to the General Master Servicer and the NCB Master Servicer, at their respective addresses provided in Section 13.05 of this Agreement or to such other address designated by it in writing, those Mortgage Files remaining in its possession relating to the Mortgage Loans other than the NCB Mortgage Loans (in the case of the General Master Servicer) and those Mortgage Files relating to the NCB Mortgage Loans (in the case of the NCB Master Servicer). In connection with a termination of the Trust under this Article IX, the obligations and responsibilities of the Custodian under this Agreement shall terminate upon its delivery of such Mortgage Files to the applicable Master Servicer, Sole Certificateholder or other party as required by this Section 9.01, except for the obligation of the Custodian to execute assignments, endorsements and other instruments as required by this Section 9.01.

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01(a) by giving written notice to all the parties hereto no later than sixty (60) days prior to the anticipated date of exchange. In the event that the Sole Certificateholder elects to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and the RR Interest) and pay the Termination Purchase Amount for all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall (i) remit for deposit in the Collection Account of the General Master Servicer an amount in immediately available funds equal to (a) the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount plus (b) all amounts due and owing to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee and the Certificate Administrator hereunder through the date of the liquidation of the Trust that may be withdrawn from the applicable Collection Account, or an escrow account acceptable to the respective parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the Distribution Account pursuant to Section 3.05(a), but only to the extent that such amounts are not already on deposit in the applicable Collection Account, and (ii) be deemed to pay to the Trust (which amount shall be further deemed distributed to the Holders of all outstanding Certificates (other than the RR Interest)) an amount equal to the product of the Non-

 

 -429-

 

 

Retained Percentage and the Termination Purchase Amount. In addition, each Master Servicer shall transfer all amounts required to be transferred to the Lower-Tier REMIC Distribution Account and Excess Interest Distribution Account on the P&I Advance Date related to such Distribution Date in which the final distribution on the Certificates is to occur from the applicable Collection Account pursuant to the first paragraph of Section 3.04(b) (provided, however, that if a Serviced Whole Loan is secured by REO Property, the portion of the above-described purchase price allocable to such Trust’s portion of REO Property shall initially be deposited into the related REO Account). Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Class V Certificates, Class R Certificates and the RR Interest) on the applicable Distribution Date, (i) the Certificate Administrator shall remit to the Holders of the RR Interest in immediately available funds an amount equal to the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount and (ii) the Custodian shall, upon receipt of a Request for Release from each applicable Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund, and the Trust shall be liquidated in accordance with Section 9.02. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the Lower-Tier REMIC for an amount equal to the aggregate remaining Certificate Balance of the Principal Balance Certificates (other than any Exchangeable Certificates) and the Exchangeable Upper-Tier P&I Regular Interests, plus accrued, unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of such Certificates, Exchangeable Upper-Tier P&I Regular Interests and Related Lower-Tier Regular Interests.

 

The obligations and responsibilities under this Agreement of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator and the Companion Paying Agent shall terminate with respect to any Companion Loan to the extent (i) its related Serviced Mortgage Loan has been paid in full or is no longer part of the Trust Fund and (ii) no amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of this Section 9.01 by giving written notice to the Trustee, the Certificate Administrator, and the other parties hereto no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, any Special Servicer, any Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balance of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date

 

 -430-

 

 

Balance of the Mortgage Loans as set forth in the Preliminary Statement (solely for the purposes of this calculation, if such right is being exercised after December 2031 and any of the CX – 350 & 450 Water Street Mortgage Loan, JCI Sanford Mortgage Loan or JCI El Paso Mortgage Loan is still an asset of the Trust Fund, then such Mortgage Loan that is still an asset of the Trust Fund shall be excluded from the aggregate Cut-off Date Balance of the Mortgage Loans and the aggregate Stated Principal Balance of the Mortgage Loans as of the related determination date) (in order to make such determination, the General Master Servicer may, at any time, request that the NCB Master Servicer commence to periodically inform the General Master Servicer of the Stated Principal Balance of the NCB Mortgage Loans and, commencing upon such request of the General Master Servicer, the NCB Master Servicer shall inform the General Master Servicer (which may be through providing the General Master Servicer access to the NCB Master Servicer’s website) of the Stated Principal Balance of the NCB Mortgage Loans on a monthly basis, or at an accelerated interval as requested by the General Master Servicer of the NCB Master Servicer). This purchase shall terminate the Trust and retire the then-outstanding Certificates. In the event that a Master Servicer or a Special Servicer purchases, or the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund in accordance with the preceding sentence, the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, shall deposit in the Lower-Tier REMIC Distribution Account not later than the P&I Advance Date relating to the Distribution Date on which the final distribution on the Certificates is to occur, an amount in immediately available funds equal to the above-described purchase price (exclusive of any portion thereof payable to any Person other than the Certificateholders pursuant to Section 3.05(a), which portion shall be deposited in the Collection Account of the General Master Servicer). In addition, each Master Servicer shall transfer to the Lower-Tier REMIC Distribution Account all amounts required to be transferred thereto on such P&I Advance Date from its Collection Account pursuant to the first paragraph of Section 3.04(b), together with any other amounts on deposit in its Collection Account that would otherwise be held for future distribution. Upon confirmation that such final deposits and payments have been made, the Custodian shall release or cause to be released to the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, as shall be necessary to effectuate transfer of the Mortgage Loans as assets of the Trust and REO Properties remaining in the Trust Fund. If the Holders of the majority of the Controlling Class, the General Special Servicer, the NCB Special Servicer (if not then NCB), the General Master Servicer or the NCB Master Servicer (if not then NCB) makes such an election, then NCB (so long as NCB is either the NCB Special Servicer or the NCB Master Servicer) will have the option, by giving written notice to the other parties hereto no later than 30 days prior to the anticipated date of purchase, to purchase all of the NCB Mortgage Loans and each related REO Property remaining in the Trust, and the other party will then have the option to purchase only the remaining Mortgage Loans and each related REO Property.

 

For purposes of this Section 9.01, the Holder of the majority of the Controlling Class shall have the first option to terminate the Upper-Tier REMIC and Lower-Tier REMIC, then the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time,

 

 -431-

 

 

then the other Special Servicer, then the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, then the other Master Servicer, and then the Holders of the Class R Certificates. For purposes of this Section 9.01, the Directing Certificateholder with the consent of the Holders of the Controlling Class, shall act on behalf of the Holders of the Controlling Class in purchasing the assets of the Trust and terminating the Trust.

 

Notice of any termination pursuant to this Section 9.01 shall be given promptly by the Certificate Administrator by letter to the Certificateholders, each Serviced Companion Noteholder and the 17g-5 Information Provider in accordance with the provisions of Section 3.13(c) (who shall promptly post a copy of such additional notice on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)) and, if not previously notified pursuant to this Section 9.01, to the other parties hereto mailed (a) in the event such notice is given in connection with the purchase of all of the Mortgage Loans is an asset of the Trust and each REO Property remaining in the Trust Fund, not earlier than the fifteenth (15th) day and not later than the twenty-fifth (25th) day of the month next preceding the month of the final distribution on the Certificates, or (b) otherwise during the month of such final distribution on or before the P&I Advance Determination Date in such month, in each case specifying (i) the Distribution Date upon which the Trust will terminate and final payment of the Certificates will be made, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Certificates at the offices of the Certificate Registrar or such other location therein designated. Upon termination of the Trust pursuant to this Section 9.01, the Certificate Administrator shall provide notice thereof to the Trustee via email.

 

After transferring the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable to the Regular Certificates and the Exchangeable Certificates pursuant to Section 4.01(e) to the Upper-Tier REMIC Distribution Account, in each case pursuant to Section 3.04(b) and upon presentation and surrender of the Certificates by the Certificateholders on the final Distribution Date, the Certificate Administrator shall distribute to each Certificateholder so presenting and surrendering its Certificates (i) such Certificateholder’s Percentage Interest of that portion of the amounts then on deposit in the Upper-Tier REMIC Distribution Account that are allocable to payments on the Class of Certificates so presented, (ii) to Holders of the Excess Interest Certificates or the RR Interest so presented, any amounts remaining on deposit in the Excess Interest Distribution Account, and (iii) any remaining amount shall be distributed to the Class R Certificates in respect of the Class LR Interest or the Class UR Interest, as applicable. Amounts transferred from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account as of the final Distribution Date, shall be distributed in termination and liquidation of the Lower-Tier Regular Interests and the Class LR Interest in accordance with Sections 4.01(a), 4.01(b), 4.01(c), 4.01(e) and 4.01(f). Any funds not distributed on such Distribution Date shall be set aside and held uninvested in trust for the benefit of the Certificateholders not presenting and surrendering their Certificates in the aforesaid manner and shall be disposed of in accordance with this Section 9.01 and Section 4.01(h).

 

Section 9.02    Additional Termination Requirements. (a) In the event a Master Servicer or a Special Servicer purchases, or the Holders of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO

 

 -432-

 

 

Property remaining in the Trust Fund as provided in Section 9.01, the Upper-Tier REMIC and Lower-Tier REMIC, as applicable, shall be terminated in accordance with the following additional requirements, which meet the definition of a “qualified liquidation” in Section 860F(a)(4) of the Code:

 

(i)      the Certificate Administrator shall specify the date of adoption of the plan of complete liquidation (which shall be the date of mailing of the notice specified in Section 9.01) in a statement attached to each of the related Trust REMICs’ final Tax Returns pursuant to Treasury Regulations Section 1.860F-1;

 

(ii)     during the 90-day liquidation period and at or prior to the time of the making of the final payment on the Certificates, the Certificate Administrator on behalf of the Trustee shall sell all of the assets of the related Trust REMICs to the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates, as applicable, for cash; and

 

(iii)    within such 90-day liquidation period and immediately following the making of the final payment on the Lower-Tier Regular Interests and the Certificates, the Certificate Administrator shall distribute or credit, or cause to be distributed or credited, to the Holders of the Class R Certificates in respect of the Class LR Interest (in the case of the Lower-Tier REMIC) and in respect of the Class UR Interest (in the case of the Upper-Tier REMIC) all cash on hand (other than cash retained to meet claims), and the Trust (if applicable) or the related Trust REMIC(s) shall terminate at that time.

 

[End of Article IX]

 

Article X

ADDITIONAL REMIC PROVISIONS

 

Section 10.01   REMIC Administration. (a) The Certificate Administrator shall make elections or cause elections to be made to treat each Trust REMIC as a REMIC under the Code and, if necessary, under Applicable State and Local Tax Law. Each such election will be made on Form 1066 or other appropriate federal tax return for the taxable year ending on the last day of the calendar year in which the Lower-Tier Regular Interests and the Certificates are issued. For the purposes of the REMIC election in respect of the Upper-Tier REMIC, the Upper-Tier Regular Interests shall be designated the “regular interests,” and the Class UR Interest shall be designated the sole class of “residual interests” in the Upper-Tier REMIC. For purposes of the REMIC election in respect of the Lower-Tier REMIC, each Class of Lower-Tier Regular Interests shall be designated as a class of “regular interests” and the Class LR Interest shall be designated as the sole class of “residual interests” in the Lower-Tier REMIC. Each applicable Special Servicer, each applicable Master Servicer and the Trustee shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any Trust REMIC other than the foregoing interests. The Certificate Administrator shall prepare or cause to be prepared and timely produced to the Trustee to sign (and the Trustee shall timely sign) and file or cause to be filed with the Internal Revenue Service, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such Trust REMIC on IRS Form

 

 -433-

 

 

SS-4 or obtain such number by other permissible means. The Certificate Administrator shall be responsible for the preparation of the related IRS Form W-9, if such form is requested. The Trustee shall be entitled to rely on the information contained therein, and is hereby directed to execute such IRS Form W-9; provided, however, the Certificate Administrator shall also be directed to execute such IRS Form W-9 (in lieu of the Trustee) if permitted by IRS regulations.

 

(b)          The Closing Date is hereby designated as the “startup day” (“Startup Day”) of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.

 

(c)           The Certificate Administrator shall act on behalf of each Trust REMIC in relation to any tax matter or controversy involving either such REMIC and shall represent each such REMIC in any administrative or judicial proceeding relating to an examination or audit by any governmental taxing authority with respect thereto. The legal expenses, including without limitation attorneys’ or accountants’ fees, and costs of any such proceeding and any liability resulting therefrom shall be expenses of the Trust and the Certificate Administrator shall be entitled to reimbursement therefor out of amounts attributable to the Mortgage Loans and any REO Properties on deposit in each applicable Collection Account as provided by Section 3.05(a) unless such legal expenses and costs are incurred by reason of the Certificate Administrator’s willful misconduct, bad faith or negligence. The Certificate Administrator shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code of each Trust REMIC. By their acceptance thereof, the Holders of the Class R Certificates agree to the designation of the Certificate Administrator as “partnership representative” for the Trust REMICs.

 

(d)          The Certificate Administrator shall prepare or cause to be prepared and shall file, or cause to be filed, all of the Tax Returns that it determines are required with respect to each Trust REMIC created hereunder, and shall cause the Trustee to sign (and the Trustee shall timely sign) such Tax Returns in a timely manner. The ordinary expenses of preparing such returns shall be borne by the Certificate Administrator without any right of reimbursement therefor. The Certificate Administrator shall prepare or cause to be prepared, and file or cause to be filed with the IRS, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such REMIC on IRS Form SS-4 or obtain such number by other permissible means.

 

(e)           The Certificate Administrator shall provide or cause to be provided (i) to any Transferor of a Class R Certificate such information as is necessary for the application of any tax relating to the transfer of such Class R Certificate to any Person who is a Disqualified Organization, or in the case of a Transfer to an agent thereof, to such agent, (ii) to the Certificateholders such information or reports as are required by the Code or the REMIC Provisions including reports relating to interest, original issue discount and market discount or premium (using the Prepayment Assumption) and (iii) to the Internal Revenue Service, Form 8811, within thirty (30) days after the Closing Date.

 

(f)           The Certificate Administrator shall take such actions and shall cause the Trust to take such actions as are reasonably within the Certificate Administrator’s control and the scope of its duties more specifically set forth herein as shall be necessary to maintain the status of each Trust REMIC as a REMIC under the REMIC Provisions and the Trustee shall assist the Certificate Administrator to the extent reasonably requested by the Certificate Administrator to do

 

 -434-

 

 

so. No Master Servicer or Special Servicer shall knowingly or intentionally take any action, cause the Trust to take any action or fail to take (or fail to cause to be taken) any action reasonably within its control and the scope of duties more specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) cause any Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon any Trust REMIC or the Trust (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”) (either such event, an “Adverse REMIC Event”) unless the Certificate Administrator receives an Opinion of Counsel (at the expense of the party seeking to take such action or, if such party fails to pay such expense, and the Certificate Administrator determines that taking such action is in the best interest of the Trust and the Certificateholders, at the expense of the Trust, but in no event at the expense of the Certificate Administrator or the Trustee) to the effect that the contemplated action will not, with respect to the Trust, any Trust REMIC created hereunder, cause the loss of such status or, unless the Certificate Administrator determines in its sole discretion to indemnify the Trust against such tax, result in the imposition of such a tax (not including a tax on “net income from foreclosure property”). The Trustee shall not take or fail to take any action (whether or not authorized hereunder) as to which the Certificate Administrator has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action. The Certificate Administrator may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not expressly permitted by this Agreement, but in no event at the expense of the Certificate Administrator or the Trustee. At all times as may be required by the Code, the Certificate Administrator will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each Trust REMIC as “qualified mortgages” as defined in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.

 

(g)           In the event that any applicable federal, state or local tax, including interest, penalties or assessments, additional amounts or additions to tax, is imposed on any Trust REMIC, such tax shall be charged against amounts otherwise distributable to the Holders of the Certificates, except as provided in the last sentence of this Section 10.01(g); provided that with respect to the estimated amount of tax imposed on any “net income from foreclosure property” pursuant to Section 860G(c) of the Code or any similar tax imposed by a state or local tax authority, the applicable Special Servicer shall retain in the related REO Account a reserve for the payment of such taxes in such amounts and at such times as it shall deem appropriate (or as advised by the Certificate Administrator in writing), and shall remit to the applicable Master Servicer such reserved amounts as the applicable Master Servicer shall request in order to pay such taxes. Except as provided in the preceding sentence, the applicable Master Servicer shall withdraw from the applicable Collection Account sufficient funds to pay or provide for the payment of, and to actually pay, such tax as is estimated to be legally owed by any Trust REMIC (but such authorization shall not prevent the Certificate Administrator from contesting, at the expense of the Trust (other than as a consequence of a breach of its obligations under this Agreement), any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Certificate Administrator is hereby authorized to and shall segregate, into a separate non-interest bearing account, the net income from any “prohibited transaction” under Section 860F(a) of the Code or the amount of any taxable contribution to any Trust REMIC after the Startup Day that is subject to tax under Section 860G(d) of the Code and use such income or

 

 -435-

 

 

amount, to the extent necessary, to pay such prohibited transactions tax. To the extent that any such tax (other than any such tax paid in respect of “net income from foreclosure property”) is paid to the Internal Revenue Service or applicable state or local tax authorities, the Certificate Administrator shall retain an equal amount from future amounts otherwise distributable to the Holders of Class R Certificates (as applicable) and shall distribute such retained amounts, (x) in the case of the Lower-Tier Regular Interests, to the Upper-Tier REMIC to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class LR Interest in the manner specified in Section 4.01(c) and (y) in the case of the Upper-Tier REMIC, to the Holders of the Principal Balance Certificates in the manner specified in Section 4.01(a) or Section 4.01(b), as applicable, to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class UR Interest. None of the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer shall be responsible for any taxes imposed on any Trust REMIC except to the extent such taxes arise as a consequence of a breach of their respective obligations under this Agreement which breach constitutes willful misconduct, bad faith, or negligence by such party.

 

(h)          The Certificate Administrator shall, for federal income tax purposes, maintain or cause to be maintained books and records with respect to each Trust REMIC on a calendar year and on an accrual basis or as otherwise may be required by the REMIC Provisions.

 

(i)           Following the Startup Day, neither the Certificate Administrator nor the Trustee shall accept any contributions of assets to any Trust REMIC unless the Certificate Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make such contribution) to the effect that the inclusion of such assets in such Trust REMIC will not cause an Adverse REMIC Event.

 

(j)           Neither the Certificate Administrator nor the Trustee shall enter into any arrangement by which the Trust or any Trust REMIC will receive a fee or other compensation for services nor permit the Trust or any Trust REMIC to receive any income from assets other than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted investments” as defined in Section 860G(a)(5) of the Code.

 

(k)          Solely for the purposes of Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” by which the Certificate Balance or Notional Amount of each Class of Regular Certificates, Exchangeable Certificates or Exchangeable Upper-Tier Regular Interests and by which the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests would be reduced to zero is the date that is the Rated Final Distribution Date.

 

(l)           None of the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as applicable, shall sell, dispose of or substitute for any of the Mortgage Loans (except in connection with (i) the default, imminent default or foreclosure of a Mortgage Loan, including but not limited to, the acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust, (iii) the termination of the Trust pursuant to Article IX of this Agreement or (iv) a purchase of

 

 -436-

 

 

Mortgage Loans pursuant to Article II or Article III of this Agreement) or acquire any assets for the Trust or any Trust REMIC or sell or dispose of any investments in the applicable Collection Account or the REO Account for gain unless it has received an Opinion of Counsel that such sale, disposition or substitution will not (a) affect adversely the status of any Trust REMIC as a REMIC or (b) unless the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, has determined in its sole discretion to indemnify the Trust against such tax, cause the Trust or any Trust REMIC to be subject to a tax on “prohibited transactions” pursuant to the REMIC Provisions.

 

(m)         The Certificate Administrator’s authority under this Agreement includes the authority to make, and the Certificate Administrator is hereby directed to make, any elections allowed under the Code (i) to avoid the application of Section 6221 of the Code (or successor provisions) to either Trust REMIC and (ii) to avoid payment by either Trust REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any Holder of a Class R Certificate, past or present. Each Holder of a Class R Certificate agrees, by acquiring such Certificate, to any such elections.

 

(n)          The Exchangeable Upper-Tier Regular Interests shall be held in the Grantor Trust and have been placed in the Grantor Trust through the efforts of the Underwriters. The Exchangeable Upper-Tier Regular Interests shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Exchangeable Certificates, which Exchangeable Certificates, in the aggregate, will evidence 100% beneficial ownership of such assets from and after the Closing Date. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest.

 

Section 10.02    Use of Agents. (a) The Trustee shall execute all of its obligations and duties under this Article X through its Corporate Trust Office. The Trustee may execute any of its obligations and duties under this Article X either directly or by or through agents, affiliates or attorneys. The Trustee shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents, affiliates or attorneys.

 

(b)          The Certificate Administrator may execute any of its obligations and duties under this Article X either directly or by or through agents or attorneys. The Certificate Administrator shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents or attorneys.

 

Section 10.03  Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator. (a) The Depositor shall provide or cause to be provided to the Certificate Administrator within ten (10) days after the Depositor receives a request from the Certificate Administrator, all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes as to the valuations and issue prices of the Certificates, including, without limitation, the price, yield, Prepayment Assumptions and projected cash flow of the Certificates.

 

 -437-

 

 

(b)          Each applicable Master Servicer and each applicable Special Servicer shall each furnish such reports, certifications and information, and upon reasonable notice and during normal business hours, access to such books and records maintained thereby, as may relate to the Certificates or the Trust and as shall be reasonably requested by the Certificate Administrator in order to enable it to perform its duties hereunder.

 

Section 10.04  Appointment of REMIC Administrators. (a) The Certificate Administrator may appoint at the Certificate Administrator’s expense, one or more REMIC Administrators, which shall be authorized to act on behalf of the Certificate Administrator in performing the functions set forth in Section 10.01 herein. The Certificate Administrator shall cause any such REMIC Administrator to execute and deliver to the Certificate Administrator an instrument in which REMIC Administrator shall agree to act in such capacity, with the obligations and responsibilities herein. The appointment of a REMIC Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible and liable for all acts and omissions of the REMIC Administrator. Each REMIC Administrator must be acceptable to the Certificate Administrator and must be organized and doing business under the laws of the United States of America or of any State and be subject to supervision or examination by federal or state authorities. In the absence of any other Person appointed in accordance herewith acting as REMIC Administrator, the Certificate Administrator hereby agrees to act in such capacity in accordance with the terms hereof. If Computershare Trust Company, National Association is removed as Certificate Administrator, then Computershare Trust Company, National Association shall be terminated as REMIC Administrator.

 

(b)          Any Person into which any REMIC Administrator may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion, or consolidation to which any REMIC Administrator shall be a party, or any Person succeeding to the corporate agency business of any REMIC Administrator, shall continue to be the REMIC Administrator without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the REMIC Administrator.

 

(c)           Any REMIC Administrator may at any time resign by giving at least thirty (30) days’ advance written notice of resignation to the Trustee, the Certificate Registrar, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer and the Depositor. The Certificate Administrator may at any time terminate the agency of any REMIC Administrator by giving written notice of termination to such REMIC Administrator, each applicable Master Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice of resignation or upon such a termination, or in case at any time any REMIC Administrator shall cease to be eligible in accordance with the provisions of this Section 10.04, the Certificate Administrator may appoint a successor REMIC Administrator, in which case the Certificate Administrator shall give written notice of such appointment to each applicable Master Servicer, the Trustee and the Depositor and shall mail notice of such appointment to all Certificateholders; provided, however, that no successor REMIC Administrator shall be appointed unless eligible under the provisions of this Section 10.04. Any successor REMIC Administrator upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as REMIC Administrator. No REMIC Administrator shall have responsibility or liability for any action taken by it as such at the direction of the Certificate Administrator.

 

 -438-

 

 

[End of Article X]

 

Article XI

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

 

Section 11.01    Intent of the Parties; Reasonableness. The parties hereto acknowledge and agree that the purpose of Article XI of this Agreement is to facilitate compliance by the Depositor (and any Other Depositor of any Other Securitization that includes a Serviced Companion Loan) with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its rights to request delivery of information or other performance under these provisions other than in reasonable good faith, or for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, due to interpretive guidance provided by the Commission or its staff, and agree to comply with requests made by the Depositor (or any Other Depositor or Other Trustee of any Other Securitization that includes a Serviced Companion Loan) in good faith for delivery of information under these provisions on the basis of such evolving interpretations of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered”). In connection with BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, and any Other Securitization subject to Regulation AB that includes a Serviced Companion Loan, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Trustee, the Custodian and the Certificate Administrator shall cooperate fully with the Depositor and the Certificate Administrator, and any Other Depositor, Other Trustee and Other Certificate Administrator of any Other Securitization that includes a Serviced Companion Loan, as applicable, to deliver or make available to the Depositor or the Certificate Administrator, and any such Other Depositor, Other Trustee or Other Certificate Administrator, as applicable (including any of its assignees or designees), any and all statements, reports, certifications, records and any other information (in its possession or reasonably attainable) necessary in the reasonable good faith determination of the Depositor or such Other Depositor, as applicable, to permit the Depositor or such Other Depositor, as applicable, to comply with the provisions of Regulation AB, together with such disclosures relating to each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Trustee, the Custodian, the Asset Representations Reviewer and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans (and the related Serviced Companion Loan, if applicable), reasonably believed by the Depositor or the related Other Depositor to be necessary in order to effect such compliance. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 11.01, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor and each Other Depositor to satisfy any related filing requirements. For purposes of this Article XI, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.

 

 -439-

 

 

Section 11.02    Succession; Subcontractors. (a) As a condition to the succession to any Master Servicer and any Special Servicer or to any Sub-Servicer (but only if such Sub-Servicer is a servicer as contemplated by Item 1108(a)(2)) as servicer or sub-servicer or succession to the Certificate Administrator under this Agreement by any Person (i) into which the applicable Master Servicer and the applicable Special Servicer, such Sub-Servicer or Certificate Administrator may be merged or consolidated, or (ii) which may be appointed as a successor to the applicable Master Servicer and the applicable Special Servicer or to any such Sub-Servicer or Certificate Administrator, the person removing and replacing a Master Servicer and a Special Servicer or Certificate Administrator shall provide to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and each Other Depositor, as applicable, at least fifteen (15) calendar days prior to the effective date of such succession or appointment (or such shorter period as is agreed to by the Depositor), (x) written notice to the Depositor, the Other Depositor and the Other Certificate Administrator of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor, all information relating to such successor reasonably requested by the Depositor, Other Depositor or Other Certificate Administrator in order to comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act); provided, however that if disclosing such information prior to such effective date would violate any applicable law or confidentiality agreement, the applicable Master Servicer, the applicable Special Servicer, any Additional Servicer or the Certificate Administrator, as the case may be, shall submit such disclosure to the Depositor and the Other Depositor no later than the effective date of such succession or appointment.

 

(b)          Each applicable Master Servicer, each applicable Special Servicer, the Sub-Servicer, the Trustee, the Operating Advisor and the Certificate Administrator (each such Master Servicer, Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator and each Sub-Servicer, for purposes of this Section 11.02, a “Servicer”) is permitted to utilize one or more Subcontractors to perform certain of its obligations hereunder. If such Subcontractor will be a Servicing Function Participant, such Servicer shall promptly upon written request provide to the Depositor or any Mortgage Loan Seller (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) a written description (in form and substance satisfactory to the Depositor, such Mortgage Loan Seller or such Other Trustee, Other Certificate Administrator or Other Depositor, as applicable) of the role and function of each Subcontractor utilized by such Servicer, specifying (i) the identity of such Subcontractor and (ii) the elements of the Servicing Criteria that will be addressed in assessments of compliance provided by each such Subcontractor. As a condition to the utilization by such Servicer of any Subcontractor determined to be a Servicing Function Participant, such Servicer shall (i) with respect to any such Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause, and (ii) with respect to any other subcontractor with which it has entered into a servicing relationship, cause such Subcontractor used by such Servicer for the benefit of the Depositor and the Trustee (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) to comply with the provisions of Section 11.10 and Section 11.11 of this Agreement to the same extent as if such Subcontractor were such Servicer. With respect to any Servicing Function Participant engaged by such Servicer that is an Initial Sub-Servicer, such Servicer shall be responsible for using commercially reasonable efforts to obtain, and with respect to each other Servicing Function Participant engaged

 

 -440-

 

 

by such Servicer, such Servicer shall obtain from each such Servicing Function Participant and deliver to the applicable Persons any assessment of compliance report and related accountant’s attestation required to be delivered by such Subcontractor under Section 11.10 and Section 11.11, in each case, as and when required to be delivered. For the avoidance of doubt, the Custodian shall not be permitted to utilize any Subcontractor to perform any of its obligations hereunder.

 

(c)          Notwithstanding the foregoing, if a Servicer engages a Subcontractor, other than an Initial Sub-Servicer in connection with the performance of any of its duties under this Agreement, such Servicer shall be responsible for determining whether such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and whether any such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding sentence, that such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a Sub-Servicer for purposes of this Agreement, the engagement of such Sub-Servicer shall not be effective unless and until notice is given to the Depositor and the Certificate Administrator of any such Sub-Servicer and Sub-Servicing Agreement. Other than with respect to the Initial Sub-Servicer, no Sub-Servicing Agreement shall be effective until fifteen (15) days after such written notice is received by the Depositor and the Certificate Administrator (or such shorter period as is agreed to by the Depositor). Such notice shall contain all information reasonably necessary to enable the Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

 

(d)          In connection with the succession to the Trustee under this Agreement by any Person (i) into which the Trustee may be merged or consolidated, or (ii) which may be appointed as a successor to the Trustee, the Trustee shall deliver written notice to the Depositor, the Certificate Administrator and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), in each case at least thirty (30) calendar days prior to the effective date of such succession or appointment (or if such prior notice is violative of applicable law or any applicable confidentiality agreement, no later than one (1) Business Day after such effective date of succession) and shall furnish to the Depositor and the Certificate Administrator, in writing and in form and substance reasonably satisfactory to the Depositor and the Certificate Administrator, all information reasonably necessary for the Certificate Administrator to accurately and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

 

(e)          Notwithstanding anything to the contrary contained in this Article XI, in connection with any Sub-Servicer and/or any Mortgage Loan that is the subject of an Initial Sub-Servicing Agreement, with respect to all matters related to Regulation AB, the applicable Master Servicer shall not have any obligation other than to use commercially reasonable efforts to cause such Sub-Servicer to comply with its obligations under such Initial Sub-Servicing Agreement.

 

(f)           Any notice and/or information furnished or required to be furnished pursuant to this Section 11.02 shall also be provided to each Other Depositor and each Other

 

 -441-

 

 

Certificate Administrator (to the extent the information relates to a party that services, specially services or is trustee for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.02.

 

Section 11.03    Filing Obligations. (a) Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee shall reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06 and 11.07 of this Agreement, the Certificate Administrator shall prepare for execution by the Depositor any Forms 8-K, 10-D, ABS-EE and 10-K required by the Exchange Act, in order to permit the timely filing thereof, and the Certificate Administrator shall file (via the Commission’s Electronic Data Gathering and Retrieval System (“EDGAR”)) such Forms executed by the Depositor.

 

Each party hereto shall be entitled to rely on the information in the Prospectus or this Agreement with respect to the identity of any “sponsor”, credit enhancer, derivative provider or “significant obligor” as of the Closing Date other than with respect to itself or any information required to be provided by it or indemnified for by it pursuant to any separate agreement.

 

(b)          In the event that the Certificate Administrator is unable to timely file with the Commission all or any required portion of any Form 8-K, 10-D, ABS-EE or 10-K required to be filed by this Agreement because required disclosure information was either not delivered to it or delivered to it after the delivery deadlines set forth in this Agreement, the Certificate Administrator will promptly notify the Depositor. In the case of Forms 10-D, ABS-EE and 10-K, the Depositor, each applicable Master Servicer, the Certificate Administrator, the Operating Advisor and the Trustee will thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A, Form ABS-EE/A or Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Certificate Administrator will, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the next succeeding Form 10-D to be filed for the Trust. In the event that any previously filed Form 8-K, Form 10-D, Form ABS-EE or Form 10-K needs to be amended, the Certificate Administrator will notify the Depositor, and such other parties as needed and the parties hereto will cooperate with the Certificate Administrator to prepare any necessary Form 8-K/A, Form 10-D/A, Form ABS-EE/A or Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K shall be signed by an officer of the Depositor. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.03 related to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K is contingent upon the parties observing all applicable deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10, 11.11 and 11.15 of this Agreement. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such

 

 -442-

 

 

Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D, Form ABS-EE or Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.

 

Section 11.04    Form 10-D and Form ABS-EE Filings. (a) Within fifteen (15) days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit AA to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, absent such reporting, direction and approval.

 

For so long as the Trust is subject to the reporting requirements of the Exchange Act, as set forth on Exhibit AA hereto, within five (5) calendar days after the related Distribution Date, (i) certain parties to this Agreement identified on Exhibit AA hereto shall be required to provide to the Certificate Administrator and the Depositor (and in the case of any Servicing Function Participant, with a copy to the applicable Master Servicer), to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format, or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-D Disclosure, if applicable; provided that information relating to any REO Account to be reported under “Item 9: Other Information” on Exhibit AA shall be reported by the applicable Special Servicer to the applicable Master Servicer within four (4) calendar days after the related Distribution Date on Exhibit LL; (ii) the parties listed on Exhibit AA hereto shall include with such Additional Form 10-D Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit DD (except with respect to the reporting of REO Account balances which shall be delivered in the form of Exhibit LL hereto) and (iii) the Depositor shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com (or such other e-mail address as the Certificate Administrator may instruct) or by facsimile to 410-715-2380, Attn: CTS SEC Notifications. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit AA of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee or Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.

 

The Certificate Administrator shall include in any Form 10-D filed by it (i) the information required by Rule 15Ga-1(a) of the Exchange Act concerning all assets of the Trust that were subject of a demand for the repurchase of, or the substitution of a Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by Section 2.03(b), (ii) a reference to the most recent Form ABS-15G filed by the Depositor and the Mortgage Loan Sellers, if applicable, and the Commission’s assigned “Central Index Key” for each such filer and (iii) to the extent such

 

 -443-

 

 

information is provided to the Certificate Administrator by the applicable Master Servicer in the form of Exhibit LL hereto for inclusion therein within the time period described in this Section 11.04, the balances of the REO Account (to the extent the related information has been received from the applicable Special Servicer within the time period specified in this Section 11.04) and each applicable Collection Account as of the related Distribution Date and as of the immediately preceding Distribution Date and (iv) the balances of the Distribution Accounts, the Gain-on-Sale Reserve Account and the Interest Reserve Account, in each case as of the related Distribution Date and as of the immediately preceding Distribution Date. The Depositor and the Mortgage Loan Sellers, in accordance with Section 5(f) of the applicable Mortgage Loan Purchase Agreement, shall deliver such information as described in clause (i) and clause (ii) of this paragraph.

 

Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator by email to cts.sec.notifications@wellsfargo.com, no later than the fifth (5th) calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

 

With respect to any Mortgage Loan that permits Additional Debt or mezzanine debt in the future, the Certificate Administrator shall include as part of any applicable Form 10-D filed by it (to the extent it receives such information from the applicable Servicer) the identity of such Mortgage Loan and, to the extent such information is received by the Certificate Administrator from the applicable Master Servicer or the applicable Special Servicer, as the case may be, substantially in the form of Exhibit JJ (A) the amount of any such Additional Debt or mezzanine debt, as applicable, that is incurred during the related Collection Period, (B) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable, and (C) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable.

 

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Forms 10-D and ABS-EE for each reporting period: Name: George Kok, Telephone: (212) 761-0327. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

 

Upon receipt of the Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall (i) include such Asset Review Report Summary in Item 1B on the Form 10-D in accordance with Section 11.04 for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

 

 -444-

 

 

To the extent the Certificate Administrator receives a request from any Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners pursuant to Section 5.06, the Certificate Administrator shall include on the Form 10-D relating to the reporting period in which such request was received a Special Notice including the information required to be included pursuant to Section 5.06.

 

(b)          After preparing the Forms 10-D and ABS-EE, the Certificate Administrator shall forward electronically copies of the Forms 10-D and ABS-EE to the Depositor for review no later than ten (10) calendar days after the related Distribution Date or, if the 10th calendar day after the related Distribution Date is not a Business Day, the immediately preceding Business Day. Within two (2) Business Days after receipt of such copies, but no later than the two (2) Business Days prior to the 15th calendar day after the Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D and Form ABS-EE, respectively, and, a duly authorized officer of the Depositor shall sign the Form 10-D and Form ABS-EE and return an electronic or fax copy of such signed Form 10-D and Form ABS-EE (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Alternatively, if the Certificate Administrator agrees in its sole discretion, the Depositor may deliver to the Certificate Administrator manually signed copies of a power of attorney meeting the requirements of Item 601(b)(24) of Regulation S-K under the Securities Act under the Securities Act, and certified copies of a resolution of the Depositor’s board of directors authorizing such power of attorney, each to be filed with each Form 10-D and each Form ABS-EE, as applicable, in which case the Certificate Administrator shall sign such Forms 10-D and Forms ABS-EE, as applicable, as attorney in fact for the Depositor. As provided in Section 11.04(d), the Certificate Administrator shall file such Form ABS-EE, upon receipt of the Depositor’s signature thereof, prior to the filing of the related Form 10-D. If a Form 10-D or Form ABS-EE cannot be filed on time or if a previously filed Form 10-D or Form ABS-EE needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will make available on its Internet website a final executed copy of each Form 10-D and Form ABS-EE filed by the Certificate Administrator. The signing party at the Depositor can be contacted at 1585 Broadway, New York, New York, 10036, Attention: George Kok, with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division, and a copy by email to cmbs_notices@morganstanley.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.04(b) related to the timely preparation and filing of Form 10-D and Form ABS-EE, as applicable, is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.04(b). Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, or claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-D or such Form ABS-EE, respectively, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any party to this Agreement needed to prepare, arrange for execution or file such Form 10-D or such Form ABS-EE, respectively, not resulting from its own negligence, bad faith or willful misconduct.

 

(c)           Prior to the filing of each Form 10-D by the Certificate Administrator pursuant to Section 11.04(a), the Certificate Administrator shall prepare and file on behalf of the Trust any Form ABS-EE in form and substance as required by the Exchange Act and the rules and

 

 -445-

 

 

regulations of the Commission thereunder; provided that the foregoing shall not apply to any Form ABS-EE required to be filed with the Commission and incorporated by reference in the Prospectus (or the preliminary version thereof). The Certificate Administrator shall file each Form ABS-EE with a copy of the related CREFC^® Schedule AL File received by the Certificate Administrator pursuant to Section 3.12(c) as Exhibit 102 thereto. To the extent the Certificate Administrator receives any Schedule AL Additional File with respect to such Form ABS-EE pursuant to Section 3.12(c), the Certificate Administrator shall file such Schedule AL Additional File as Exhibit 103 to such Form ABS-EE. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File. After preparing the Form ABS-EE, the Certificate Administrator shall forward electronically a copy of such Form ABS-EE (together with the related CREFC^® Schedule AL File and any Schedule AL Additional File received by the Certificate Administrator) concurrently with the related Form 10-D to the Depositor for review and approval. Any questions shall be directed to ssreports@wellsfargo.com; provided, that if any such question pertains to information included in any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d), the General Master Servicer shall promptly provide a copy of such question to the NCB Master Servicer (via email at BANK2021BNK38@ncb.com) and consult with the NCB Master Servicer as to any response thereto. The General Master Servicer shall reasonably cooperate with the Depositor to answer any reasonable questions that the Depositor may pose to such Master Servicer regarding the data or information contained in any CREFC^® Schedule AL File or Schedule AL Additional File (other than questions regarding data that is in the Initial Schedule AL File, Initial Schedule AL Additional File or the Annex A-1 to the Prospectus) as of the time the applicable Master Servicer delivered such CREFC^® Schedule AL File or Schedule AL Additional File, as applicable, to the Certificate Administrator. The Certificate Administrator, the General Master Servicer, the NCB Master Servicer and the Depositor shall each, to the extent related to such party’s obligations hereunder, reasonably cooperate to remedy any filing errors regarding any CREFC^® Schedule AL File or any Schedule AL Additional File in a timely manner.

 

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Form ABS-EE for each reporting period: Name: George Kok, Telephone: (212) 761-0327. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

 

(d)          Any notice and/or information furnished or required to be furnished pursuant to this Section 11.04 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.04.

 

Section 11.05    Form 10-K Filings.(a) Within ninety (90) days after the end of each fiscal year of the Trust (it being understood that the fiscal year for the Trust ends on December 31 of each year) or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”), commencing in March 2022, the Certificate Administrator shall prepare and file on

 

 -446-

 

 

behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator within the applicable time frames set forth in this Agreement:

 

(i)       an annual compliance statement for each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian and each Additional Servicer, as described under Section 11.09, including disclosure regarding any material instance of noncompliance and the nature and status thereof;

 

(ii)      (A) the annual reports on assessment of compliance with servicing criteria for the Trustee, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each other Servicing Function Participant utilized by each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Custodian or Trustee, as described under Section 11.10; and

 

(B)              if any such report on assessment of compliance with servicing criteria described under Section 11.10 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance (including whether such instance of noncompliance involved the servicing of the assets backing the Certificates issued pursuant to this Agreement and any steps taken to remedy such instance of noncompliance), or if such report on assessment of compliance with servicing criteria described under Section 11.10 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included;

 

(iii)     (A) the registered public accounting firm attestation report for the Trustee, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each Servicing Function Participant utilized by each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Custodian or the Trustee, as described under Section 11.11; and

 

(B)              if any registered public accounting firm attestation report described under Section 11.11 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included; and

 

(iv)     a certification in the form attached hereto as Exhibit Y, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the “Sarbanes-Oxley Certification”), which shall, except as described below, be signed by the senior officer of the Depositor in charge of securitization.

 

 -447-

 

 

Any disclosure or information in addition to clauses (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit BB to the Depositor and the Certificate Administrator and approved by the Depositor and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, absent such reporting, direction and approval. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com or by facsimile to (410) 715 2380, Attn: CTS SEC Notifications.

 

As set forth on Exhibit BB hereto, no later than March 1st of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2022, (i) the parties listed on Exhibit BB shall be required to provide to the Certificate Administrator and the Depositor, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-K Disclosure, if applicable, (ii) the parties listed on Exhibit BB hereto shall include with such Additional Form 10-K Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit DD and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit BB of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.

 

Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator in writing, no later than March 1st with respect to the filing of a report on Form 10-K, if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

 

(b)          After preparing the Form 10-K, the Certificate Administrator shall forward electronically a copy of the Form 10-K to the Depositor for review no later than six (6) Business Days prior to the 10-K Filing Deadline. Within three (3) Business Days after receipt of such copy, but no later than March 25th, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-K and the senior officer in charge of securitization for the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator at such time. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator shall follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will make available on its Internet website a final executed copy of

 

 -448-

 

 

each Form 10-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at 1585 Broadway, New York, New York, 10036, Attention: George Kok, with copies to: Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division, and cmbs_notices@morganstanley.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.05 related to the timely preparation and filing of Form 10-K is contingent upon the parties to this Agreement (and any Additional Servicer or Servicing Function Participant engaged or utilized, as applicable, by any such parties) observing all applicable deadlines in the performance of their duties under this Section 11.05. Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-K, where such failure results from the Certificate Administrator’s failure to receive, on a timely basis, any information from the parties to this Agreement (or any Sub-Servicer or Servicing Function Participant engaged by any such parties) needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.

 

(c)           Upon written request from any Mortgage Loan Seller, Other Depositor, any Master Servicer or any Special Servicer, the Certificate Administrator shall confirm to such Mortgage Loan Seller, Other Depositor, applicable Master Servicer or applicable Special Servicer whether it has received notice that any party to this Agreement has changed since the Closing Date and will provide to such Mortgage Loan Seller or Other Depositor, the applicable Master Servicer or the applicable Special Servicer, if known to the Certificate Administrator, the identity of the new party.

 

(d)          Any notice and/or information furnished or required to be furnished pursuant to this Section 11.05 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.05.

 

Section 11.06    Sarbanes-Oxley Certification. Each Form 10-K shall include a Sarbanes-Oxley Certification in the form attached as Exhibit Y required to be included therewith pursuant to the Sarbanes-Oxley Act. For so long as the Trust or the trust for any Other Securitization is subject to the reporting requirements of the Exchange Act, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer (in the case of the Asset Representations Reviewer, solely with respect to reporting periods in which the Asset Representations Reviewer is required to deliver an Asset Review Report) shall provide, and (i) with respect to each Initial Sub-Servicer engaged by the applicable Master Servicer or the applicable Special Servicer, as the case may be, that is a Servicing Function Participant shall use commercially reasonable efforts to cause such Initial Sub-Servicer to provide, and (ii) with respect to each other Servicing Function Participant with which any Master Servicer, any Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans, shall cause such Servicing Function Participant to provide, to each Person who signs the Sarbanes-Oxley Certification for the Trust or any Other Securitization that includes a Serviced Companion Loan (individually and collectively, the “Certifying Person”), on or before March 1st of each year commencing in March 2022, a

 

 -449-

 

 

certification substantially in the form attached hereto as Exhibits Y-1, Y-2, Y-3, Y-4, Y-5, Y-6 or Y-7 (each, a “Performance Certification”), as applicable, on which each Certifying Person, the entity for which such Certifying Person acts as an officer (if the Certifying Person is an individual), and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely; provided that, if a Servicing Function Participant (other than an Initial Sub-Servicer) with which the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans fails to provide a Performance Certification, the Performance Certification provided by the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor, as applicable, that engaged such Servicing Function Participant shall not exclude information that would have been provided by such Servicing Function Participant. In addition, in the event that any Serviced Companion Loan is deposited into a commercial mortgage securitization (including an “Other Securitization”) and the Reporting Servicer is provided with timely and complete contact information for the parties to such Other Securitization, each Reporting Servicer, upon not less than thirty (30) days prior written request, shall provide to the Person who signs the Sarbanes-Oxley Certification with respect to such Other Securitization either the Performance Certification or a separate certification in form and substance similar to applicable Performance Certification (which shall address the matters contained in the applicable Performance Certification, but solely with respect to the related Companion Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and such entity’s officers, directors and Affiliates can reasonably rely. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure a Sarbanes-Oxley Certification from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to a Performance Certification. The senior officer in charge of securitization for the Depositor shall serve as the Certifying Person on behalf of the Trust. In addition, each Reporting Servicer shall execute a reasonable reliance certificate (which may be included as part of such other certifications being delivered by such Reporting Servicer) to enable the Certification Parties to rely upon each (i) annual compliance statement provided pursuant to Section 11.09, if applicable, (ii) annual report on assessment of compliance with servicing criteria provided pursuant to Section 11.10 and (iii) accountant’s report provided pursuant to Section 11.11, and shall include a certification that each such annual compliance statement or report discloses any deficiencies or defaults described to the registered public accountants of such Reporting Servicer to enable such accountants to render the certificates provided for in Section 11.11. In the event any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a certification to each affected Certifying Person pursuant to this Section 11.06 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be. Each such Performance Certification shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator, any affected Other Depositor and Other Certificate Administrator and such providing parties. Notwithstanding the foregoing, nothing in this Section 11.06 shall require any Reporting Servicer (i) to certify or verify the accurateness or completeness of any information provided to such Reporting Servicer by third parties (including a “significant obligor”, but other than an Additional Servicer or a Sub-Servicer appointed pursuant to Section 3.20), (ii) to

 

 -450-

 

 

certify information other than to such Reporting Servicer’s knowledge and in accordance with such Reporting Servicer’s responsibilities hereunder or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Reporting Servicer have been completed except as they have been left blank on their face.

 

Notwithstanding anything to the contrary contained in this Section 11.06, with respect to each year in which the Trust and the trust for each Other Securitization is not subject to the reporting requirements of the Exchange Act, none of the parties required to deliver any certification under this Section 11.06 shall be obligated to do so.

 

Section 11.07    Form 8-K Filings. Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor and to the extent it receives the Form 8-K Disclosure Information described below, the Certificate Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act and shall provide notice thereof to the Depositor, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit CC to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, absent such reporting, direction and approval.

 

As set forth on Exhibit CC hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than close of business, New York City time, on the second (2^nd) Business Day after the occurrence of a Reportable Event (i) the parties set forth on Exhibit CC hereto shall be required to provide to the Depositor and the Certificate Administrator, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties any Form 8-K Disclosure Information, if applicable, (ii) the parties listed on Exhibit CC hereto shall include with such Form 8-K Disclosure Information, an Additional Disclosure Notification in the form attached hereto as Exhibit DD and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit CC of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com or by facsimile to 410-715-2380, Attn: CTS SEC Notifications.

 

After preparing the Form 8-K, the Certificate Administrator shall forward electronically a copy of the Form 8-K to the Depositor for review no later than noon, New York City time, on the 3rd Business Day after the Reportable Event, but in no event earlier than twenty-

 

 -451-

 

 

four (24) hours after having received the Form 8-K Disclosure Information pursuant to the immediately preceding paragraph. Promptly, but no later than the close of business on the third (3rd) Business Day after the Reportable Event, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. No later than noon, New York City time, on the 4th Business Day after the Reportable Event, a duly authorized officer of the Depositor shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will, make available on its Internet website a final executed copy of each Form 8-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at 1585 Broadway, New York, New York, 10036, Attention: George Kok, with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division, and a copy by email to cmbs_notices@morganstanley.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.07 related to the timely preparation and filing of Form 8-K is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.07. Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from the parties to this Agreement needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.

 

Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee shall promptly notify (and the applicable Master Servicer and the applicable Special Servicer, as the case may be, shall (i) with respect to each Initial Sub-Servicer that is an Additional Servicer engaged by such Master Servicer or such Special Servicer, as applicable, use commercially reasonable efforts to cause such Additional Servicer to promptly notify and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement) cause such Additional Servicer to promptly notify) the Depositor and the Certificate Administrator, but in no event later than noon, New York City time, on the second (2nd) Business Day after its occurrence, of any Reportable Event applicable to such party to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format.

 

Notwithstanding anything to the contrary in this Section 11.07, with respect to each year in which the Trust and the trust for each Other Securitization is not subject to the reporting requirements of the Exchange Act, none of the parties hereto are required to deliver Form 8-K Disclosure Information.

 

Any notice and/or information furnished or required to be furnished pursuant to this Section 11.07 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan

 

 -452-

 

 

or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.07.

 

For so long as the Trust is subject to the reporting obligations of the Exchange Act, with respect to any Non-Serviced Mortgage Loan serviced under a related Non-Serviced PSA, no resignation, removal or replacement of any party to such Non-Serviced PSA that would be required to be reported on a Form 8-K relating to this Trust shall become effective with respect to this Trust until the Certificate Administrator has filed any required Form 8-K pursuant to this Section 11.07.

 

Section 11.08    Form 15 Filing. On or prior to January 30th of the first year in which the Depositor shall provide notice to the Certificate Administrator of its ability under applicable law to suspend its Exchange Act filings, the Certificate Administrator shall prepare and file a notification relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act (the “Form 15 Suspension Notification”) or any form necessary to be filed with the Commission to suspend such reporting obligations. With respect to any reporting period occurring after the filing of such form, subject to Section 11.15(h), the obligations of the parties to this Agreement under Section 11.04, Section 11.05 and Section 11.07 shall be suspended and reports or certifications due under Section 11.09, 11.10 and 11.11 shall not be due until April 15th of each year. The Certificate Administrator shall provide prompt notice to the Mortgage Loan Sellers and all other parties hereto that such form has been filed. If, after the filing of a Form 15 Suspension Notification, the Depositor shall provide notice to the Certificate Administrator that it is required to resume its Exchange Act filings, the Certificate Administrator shall recommence preparing and filing reports on Forms 10-D, 10-K, ABS-EE and 8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07, and all parties’ obligations under this Article XI shall recommence.

 

Section 11.09    Annual Compliance Statements. Each applicable Master Servicer, each applicable Special Servicer (regardless of whether the applicable Special Servicer has commenced special servicing of a Mortgage Loan), the Custodian, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it) and the Certificate Administrator (each, a “Certifying Servicer”) shall (and each such party shall (i) with respect to each Additional Servicer engaged by the Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer to deliver to and (ii) with respect to each other Additional Servicer that is also a Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to deliver to), on or before March 1st of each year, commencing in March 2022, deliver to the Trustee, the Certificate Administrator (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website), the Depositor and the 17g-5 Information Provider (who shall post to the 17g-5 Information Provider’s Website), an Officer’s Certificate, in the form attached hereto as Exhibit GG (or such other form, similar in substance, as may be reasonably acceptable to the Depositor) stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer has fulfilled all its obligations under this Agreement, or

 

 -453-

 

 

the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Such Officer’s Certificate shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties. Each Certifying Servicer shall (i) with respect to each Additional Servicer engaged by such Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer, and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to forward a copy of each such statement (or, in the case of the Certificate Administrator, make a copy of each such statement available on its Internet website) to the Directing Certificateholder and the 17g-5 Information Provider. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such Officer’s Certificate from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit GG. Promptly after receipt of each such Officer’s Certificate, the Depositor may review each such Officer’s Certificate and, if applicable, consult with the Certifying Servicer as to the nature of any failures by the Certifying Servicer or any related Additional Servicer with which the Certifying Servicer has entered into a servicing relationship with respect to the Mortgage Loans in the fulfillment of any of the Certifying Servicer’s or Additional Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement. The obligations of the Certifying Servicer and each Additional Servicer under this Section 11.09 apply to the Certifying Servicer and each Additional Servicer that serviced a Mortgage Loan during the applicable period, whether or not such Certifying Servicer or Additional Servicer is acting as a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator or Additional Servicer at the time such Officer’s Certificate is required to be delivered. Each applicable Master Servicer, each applicable Special Servicer and each Additional Servicer shall not be required to cause the delivery of any such statement until April 15 in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

 

In the event any Master Servicer, any Special Servicer, the Trustee or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer to provide and (ii) with respect to any other Additional Servicer engaged by such party that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide, an annual statement of compliance pursuant to this Section 11.09 with respect to the period of time that the applicable Master Servicer, the applicable Special Servicer, the Trustee or the Certificate Administrator was subject to this Agreement or the period of time that such Additional Servicer was subject to such other servicing agreement.

 

Any certificate, statement, report, notice and/or information furnished or required to be furnished pursuant to this Section 11.09 shall also be provided to each Other Depositor and

 

 -454-

 

 

each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.09.

 

Section 11.10    Annual Reports on Assessment of Compliance with Servicing Criteria. (a) On or before March 1st of each year, commencing in March 2022, each applicable Master Servicer, each applicable Special Servicer (regardless of whether any Special Servicer has commenced special servicing of the Mortgage Loans), the Trustee (provided, however, that the Trustee shall be required to deliver an assessment of compliance only if an Advance was made by the Trustee in such calendar year), the Custodian, the Operating Advisor, the Certificate Administrator and each Additional Servicer, each at its own expense, shall furnish (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by a Master Servicer, a Special Servicer, Trustee, Operating Advisor, Custodian, or Certificate Administrator that is a Servicing Function Participant, use commercially reasonable efforts to cause such Servicing Function Participant to furnish and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to furnish) to the Trustee, the Certificate Administrator, the Depositor (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website) (and, with respect to each applicable Special Servicer, also to the Operating Advisor), and the 17g-5 Information Provider, a report substantially in the form of Exhibit HH or such other form provided by such Reporting Servicer that complies in all material respects with the requirements of Item 1122 of Regulation AB, on an assessment of compliance with the Servicing Criteria applicable to it that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Relevant Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 11.05, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit HH. Such report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the Reporting Servicer.

 

Each such report shall be addressed to the Depositor and signed by an authorized officer of the applicable company, and shall address the Relevant Servicing Criteria specified on a certification substantially in the form of Exhibit Z hereto delivered to the Depositor on the Closing Date. Promptly after receipt of each such report, (i) the Depositor may review each such report and, if applicable, consult with each Reporting Servicer as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria applicable to it (and each Servicing Function Participant engaged or utilized by each Reporting Servicer, as applicable), and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Exhibit Z and notify the Depositor of any

 

 -455-

 

 

exceptions. Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and any Servicing Function Participant shall not be required to cause the delivery of any such assessments until April 15th in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

 

Notwithstanding the foregoing, at any time that the Certificate Administrator and the Trustee are the same entity, the Certificate Administrator and Trustee may provide a combined assessment of compliance required pursuant to this Section 11.10(a) in respect of their combined Relevant Servicing Criteria as set forth on Exhibit Z hereto.

 

(b)          Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator hereby acknowledge and agree that the Relevant Servicing Criteria set forth on Exhibit Z is appropriately set forth with respect to such party and any Servicing Function Participant with which each applicable Master Servicer, each applicable Special Servicer, Trustee, Operating Advisor or Certificate Administrator has entered into a servicing relationship.

 

(c)           No later than ten (10) Business Days after the end of each fiscal year for the Trust, any Master Servicer and any Special Servicer shall notify the Certificate Administrator, the Depositor and each Mortgage Loan Seller as to the name of each Additional Servicer engaged by it and each Servicing Function Participant utilized by it, in each case other than with respect to any Initial Sub-Servicer, and the Trustee, the Operating Advisor and the Certificate Administrator shall notify the Depositor and each Mortgage Loan Seller as to the name of each Servicing Function Participant utilized by it, in each case by providing an updated Exhibit FF, and each such notice (except to a Mortgage Loan Seller) will specify what specific Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant. When each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor submit their assessments pursuant to Section 11.10(a), such Master Servicer, such Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor, as applicable, will also at such time include the assessment (and related attestation pursuant to Section 11.11) of each Servicing Function Participant engaged by it.

 

In the event any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each such party shall cause any Servicing Function Participant engaged by it to provide (and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such Master Servicer or Special Servicer that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer and (ii) with respect to any other Additional Servicer that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide) an annual assessment of compliance pursuant to this Section 11.10, coupled with an attestation as required in Section 11.11 with respect to the period of time that the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator was

 

 -456-

 

 

subject to this Agreement or the period of time that the Additional Servicer was subject to such other servicing agreement.

 

(d)          The Operating Advisor may at any time request from the Certificate Administrator confirmation of whether a Control Termination Event or Consultation Termination Event occurred during the previous calendar year, and upon such request the Certificate Administrator shall deliver such confirmation to the Operating Advisor within ten (10) days of such request.

 

(e)          Any certificate, statement, report, assessment, attestation, notice and/or information furnished or required to be furnished pursuant to this Section 11.10 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.10.

 

Section 11.11    Annual Independent Public Accountants’ Attestation Report. On or before March 1st of each year, commencing in March 2022, each applicable Master Servicer, each applicable Special Servicer, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it), the Custodian, the Operating Advisor and the Certificate Administrator, each at its own expense, shall cause (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee, Operating Advisor or Certificate Administrator that is a Servicing Function Participant use commercially reasonable efforts to cause such Servicing Function Participant to cause and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to cause) a registered public accounting firm (which may also render other services to each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor or the applicable Servicing Function Participant, as the case may be) and that is a member of the American Institute of Certified Public Accountants to furnish a report to the Trustee, the Certificate Administrator (who will promptly post such report on the Certificate Administrator’s Website pursuant to Section 3.13(b)) and the Depositor, the 17g-5 Information Provider and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, and, promptly, but not earlier than the second (2^nd) Business Day following the delivery of such report to the 17g-5 Information Provider, to the Rating Agencies, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assertion that such Reporting Servicer has complied with the Relevant Servicing Criteria applicable to it and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is issuing an opinion as to whether such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria applicable to it was fairly stated in all material respects. In the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each such related accountant’s attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will

 

 -457-

 

 

use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee. Copies of such statement will be provided by the Certificate Administrator in accordance with Section 3.13(b). Such report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the providing parties.

 

Promptly after receipt of such report from any Master Servicer, any Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant, (i) the Depositor may review the report and, if applicable, consult with the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator as to the nature of any defaults by each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian, the Certificate Administrator or any Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, as the case may be, in the fulfillment of any of the applicable Master Servicer’s, the applicable Special Servicer’s, the Trustee’s, the Certificate Administrator’s, the Operating Advisor’s, the Custodian’s or the applicable Servicing Function Participants’ obligations hereunder or under the applicable sub-servicing or primary servicing agreement, and (ii) the Certificate Administrator shall confirm that each accountants’ attestation report submitted pursuant to this Section 11.11 relates to an assessment of compliance meeting the requirements of Section 11.10 and notify the Depositor of any exceptions. Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian and any Additional Servicer shall not be required to deliver, or shall be required to cause the delivery of such reports until April 15th in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed with respect to the Trust for the preceding fiscal year.

 

Any notice, report, assessment of compliance, statement, certificate and/or information furnished or required to be furnished pursuant to this Section 11.11 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this ‎Section 11.11.

 

Section 11.12    Indemnification. Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer shall indemnify and hold harmless each Certification Party from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Certification Party arising out of (i) an actual breach by such Master Servicer, such Special Servicer, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Certificate Administrator, as the case may be, of its obligations under this Article XI, (ii) negligence, bad faith or willful misconduct on the part of such Master Servicer, such Special Servicer, the Trustee, the Asset Representations Reviewer, the Operating Advisor, the Custodian or the Certificate Administrator in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable by, or on behalf of, such party.

 

 -458-

 

 

Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, in each case, indemnify and hold harmless each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Certification Party arising out of (a) a breach of its obligations to provide any of the annual compliance statements or annual assessment of compliance with the servicing criteria or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement, (b) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (c) any failure by it, as a Servicer (as defined in Section 11.02(b)) to identify a Servicing Function Participant pursuant to Section 11.02(c), or (d) delivery of any Deficient Exchange Act Deliverable.

 

In addition, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement) with the Depositor and each Other Depositor as necessary for the Depositor or such Other Depositor, as applicable, to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).

 

In connection with comments provided to the Depositor or any Other Depositor from the Commission or its staff regarding information (x) delivered by each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or an Additional Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such Affected Reporting Party to prepare such information, which information is contained in a report filed by the Depositor or any Other Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s or any Other Depositor’s filing of such report, the Depositor or any Other Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission or its staff for inclusion in the Depositor’s or any Other Depositor’s response to the Commission or its staff, unless such Affected Reporting Party elects, with the consent of the Depositor or any Other Depositor, as applicable (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission or its staff and negotiate a response and/or resolution with the Commission or its staff; provided, however, that if an Affected Reporting Party is a Servicing Function Participant or Additional Servicer retained by a Master Servicer, a Master Servicer shall receive

 

 -459-

 

 

copies of all material communications pursuant to this Section 11.12. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission or its staff in a timely manner; provided that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor or any Other Depositor informed of its progress with the Commission or its staff and copy the Depositor or any Other Depositor on all correspondence with the Commission or its staff and provide the Depositor or any Other Depositor with the opportunity to participate (at the Depositor’s or any Other Depositor’s expense) in any telephone conferences and meetings with the Commission or its staff and (ii) the Depositor or any Other Depositor shall cooperate with any Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission or its staff with respect to any comments from the Commission or its staff relating to such Affected Reporting Party and to notify the Commission or its staff of such authorization. The Depositor (or any Other Depositor) and the Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission or its staff for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor or any Other Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor or any Other Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses required to be at the Depositor’s or any Other Depositor’s expense as set forth above) and any amendments to any reports filed with the Commission or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor or any Other Depositor, as the case may be. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) with respect to any Initial Sub-Servicer engaged by it that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.

 

If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor (the “Performing Party”) shall contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to Sections 11.06, 11.09 (if applicable), 11.10, 11.11 (or breach of its obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer or Servicing Function Participant, in each case, with which it has entered into a servicing relationship with respect to the Mortgage

 

 -460-

 

 

Loans cause such party, in each case, to agree to the foregoing indemnification and contribution obligations. This Section 11.12 shall survive the termination of this Agreement or the earlier resignation or removal of any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator.

 

Section 11.13    Amendments. This Article XI may be amended with the written consent of the parties hereto pursuant to Section 13.01 for purposes of complying with Regulation AB and/or to conform to standards developed within the CMBS market and the Sarbanes-Oxley Act without any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement; provided that the reports and certificates required to be prepared pursuant to Sections 3.13, 11.09, 11.10 and 11.11 shall not be eliminated without Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, without a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25). For the avoidance of doubt, any amendment to this Article XI affecting a Serviced Companion Loan shall be subject to Section 13.01(k).

 

Section 11.14    Regulation AB Notices. Any notice, report or certificate required to be delivered by any Master Servicer, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Trustee, as the case may be, to the Depositor pursuant to this Article XI may be delivered via email (and additionally delivered via phone or telecopy), notwithstanding the provisions of Section 13.05, to cts.sec.notifications@wellsfargo.com.

 

Section 11.15    Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans. (a) Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any sub-servicer appointed with respect to any Serviced Pari Passu Companion Loan to, upon written request or notice from a Mortgage Loan Seller (or a permitted transferee of such Mortgage Loan Seller pursuant to the related Intercreditor Agreement), reasonably cooperate with the Mortgage Loan Seller (or such permitted transferee) selling any Serviced Pari Passu Companion Loan into a securitization that is required to comply with Regulation AB (a “Regulation AB Companion Loan Securitization”) and, to the extent needed in order to comply with Regulation AB, provide to the Mortgage Loan Seller (or such permitted transferee) information about itself that such Mortgage Loan Seller reasonably requires to meet the requirements of Items 1117 and 1119 and paragraphs (b), (c)(2), (c)(3), (c)(4), (c)(5), (c)(6) and (e) of Item 1108 of Regulation AB and shall reasonably cooperate with such Mortgage Loan Seller to provide such other information as may be reasonably necessary to comply with the requirements of Regulation AB. Each of the

 

 -461-

 

 

Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer understands that such information may be included in the offering material related to a Regulation AB Companion Loan Securitization and agrees to (i) negotiate in good faith an agreement (subject to the final sentence of this sub-section) to indemnify and hold the related depositor and underwriters involved in the offering of the related commercial mortgage pass through certificates harmless for any costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the depositor or such underwriters as a result of any material misstatements or omissions or alleged material misstatements or omissions in any such offering material to the extent that such material misstatement or omission was made in reliance upon any such information provided by the Trustee (where such information pertains to the Trustee individually and not to any specific aspect of the Trustee’s duties or obligations under this Agreement), the Certificate Administrator (where such information pertains to the Certificate Administrator individually and not to any specific aspect of the Certificate Administrator’s duties or obligations under this Agreement), the applicable Master Servicer (where such information pertains to the applicable Master Servicer individually and not to any specific aspect of the applicable Master Servicer’s duties or obligations under this Agreement) and the applicable Special Servicer (where such information pertains to the applicable Special Servicer individually and not to any specific aspect of the applicable Special Servicer’s duties or obligations under this Agreement), as applicable, to such depositor, underwriters or Mortgage Loan Seller (or permitted transferee) as required by this Section 11.15(a) and (ii) deliver such securities law opinion(s) of counsel, certifications and/or indemnification agreement(s) (to the extent the cost thereof is paid by the related Mortgage Loan Seller) with respect to such information that are substantially similar to those delivered with respect to the offering material for this securitization by the applicable Master Servicer or the applicable Special Servicer, Trustee and Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the offering material related to a Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent that the information provided by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, for inclusion in the offering materials related to such Regulation AB Companion Loan Securitization is substantially and materially similar to the information provided by such party with respect to the offering materials related to this transaction, subject to any required changes due to any amendments to Regulation AB or any changes in the interpretation of Regulation AB or changes in factual circumstances, such party shall be deemed to be in compliance with this Section 11.15(a). Any indemnification agreement executed by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer in connection with the Regulation AB Companion Loan Securitization shall be substantially similar to the related indemnification agreement executed in connection with this Agreement. It shall be a condition precedent to any party’s obligations otherwise set forth above and/or elsewhere in Article XI that the applicable Mortgage Loan Seller (or permitted transferee) shall have (a) provided reasonable advance notice (and, in any event, not less than ten (10) Business Days) of the exercise of its rights hereunder and (b) paid, or entered into reasonable agreement to cause to be paid, the reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by such party in reviewing and/or causing the delivery of any disclosure, opinion of counsel or indemnification agreement.

 

(b)          Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the

 

 -462-

 

 

applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), cooperate with the depositor, trustee, certificate administrator, master servicer or special servicer for any Regulation AB Companion Loan Securitization in preparing each Form 10-D, Form ABS-EE and Form 10-K required to be filed by such Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or other applicable party for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) and shall provide to such depositor, trustee, certificate administrator or master servicer within the time period set forth in the Other Pooling and Servicing Agreement (so long as such time period is no earlier than the time periods set forth herein) for such Regulation AB Companion Loan Securitization such information relating to a Serviced Securitized Companion Loan as may be reasonably necessary for the depositor, trustee, certificate administrator and master servicer of the Regulation AB Companion Loan Securitization to comply with the reporting requirements of Regulation AB and the Exchange Act; provided, however, that any parties to any Regulation AB Companion Loan Securitization shall consult with the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer (and the applicable Master Servicer shall consult with any sub-servicer appointed by it with respect to the related Serviced Whole Loan), and the Trustee, the Certificate Administrator, such Master Servicer and such Special Servicer shall cooperate with such parties in respect of establishing the time periods for preparation of the Form 10-D and Form ABS-EE reports in the documentation for such Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(b) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(b).

 

(c)           Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide the depositor, trustee or certificate administrator, as applicable, under a Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or certificate administrator, as applicable, for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) information with respect to any event that is required to be disclosed under Form 8-K with respect to a Serviced Securitized Companion Loan within two (2) Business Days after the occurrence of such event of which it has knowledge. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, any Master Servicer or any Special

 

 -463-

 

 

Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(c) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(c).

 

(d)          On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide, with respect to itself, to the depositor, trustee or certificate administrator, as applicable, under such Regulation AB Companion Loan Securitization, to the extent required pursuant to Item 1122 of Regulation AB, (i) a report on an assessment of compliance with the servicing criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting firm’s attestation report on such Person’s assessment of compliance with the applicable servicing criteria to the extent required pursuant to Item 1122(b) of Regulation AB and (iii) such other information as may be required pursuant to Item 1122(c) of Regulation AB. Notwithstanding the foregoing, to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(d) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(d).

 

(e)           On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to, to the extent required pursuant to Item 1123 of Regulation AB, deliver, with respect to itself, to the depositor, trustee and certificate administrator under such Regulation AB Companion Loan Securitization (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), under such Regulation

 

 -464-

 

 

AB Companion Loan Securitization a servicer compliance statement signed by an authorized officer of such Person that satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(e) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(e).

 

(f)           Each of the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause a Servicing Function Participant to agree (severally but not jointly) to indemnify (such indemnity limited to each such parties respective failure described below) and hold the related Mortgage Loan Seller (or permitted transferee), depositor, sponsor(s), trustee, certificate administrator or master servicer under a Regulation AB Companion Loan Securitization harmless for any costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Mortgage Loan Seller, depositor, sponsor(s), trustee, certificate administrator or master servicer as a result of any failure by the Servicing Function Participant to comply with the reporting requirements to the extent applicable set forth under Sections 11.15(b), (c), (d) or (e) above.

 

Any subservicing agreement related to a Serviced Securitized Companion Loan shall contain a provision requiring the related Sub-Servicer to provide to the applicable Master Servicer or the applicable Special Servicer, as applicable, information, reports, statements and certificates with respect to itself and such Serviced Securitized Companion Loan comparable to any information, reports, statements or certificates required to be provided by the applicable Master Servicer or the applicable Special Servicer pursuant to this Section 11.15, even if such Sub-Servicer is not otherwise required to provide such information, reports or certificates to any Person in order to comply with Regulation AB. Such information, reports or certificates shall be provided to the applicable Master Servicer or the applicable Special Servicer, as the case may be, no later than two (2) Business Days prior to the date on which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is required to deliver its comparable information, reports, statements or certificates pursuant to this Section 11.15.

 

(g)          With respect to any Mortgaged Property that secures a Serviced Pari Passu Companion Loan that the applicable Other Depositor has notified the applicable Master Servicer and the applicable Special Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) (together with notification of the relevant Distribution Date) with respect to an Other Securitization that includes such Serviced Companion Loan, to the extent that the applicable Master Servicer or the applicable Special Servicer, as the case may be, is in receipt of the updated financial statements of such “significant obligor” for any calendar quarter (other than the fourth (4th) calendar quarter of any calendar year) from the Mortgagor, beginning with the first calendar quarter in which such notice from the Other Depositor was received, or the updated financial statements of such “significant obligor” for any calendar year, beginning for the calendar year in which such notice from the Other Depositor was received, as applicable, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall deliver to

 

 -465-

 

 

the Other Depositor, on or prior to the day that occurs two (2) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seven (7) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs twelve (12) or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seventeen (17) or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, the financial statements of such “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as calculated by the applicable Master Servicer (or as calculated by the applicable Special Servicer and provided to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or as calculated by the applicable Special Servicer with respect to any Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer) in accordance with CREFC^® guidelines and (B) if such financial statement receipt occurs less than twelve (12) Business Day prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than seventeen (17) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of the “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as reported by the related Mortgagor in such financial statements (or as reported by the related Mortgagor to the applicable Special Servicer and provided by the applicable Special Servicer to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or as reported by the applicable Special Servicer with respect to the Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer).

 

If the applicable Master Servicer or the applicable Special Servicer, as the case may be, does not receive such financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten (10) Business Days after the date such financial information is required to be delivered under the related Mortgage Loan documents, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall notify the Other Depositor with respect to such Other Securitization that includes the related Serviced Pari Passu Companion Loan (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to notify such Other Depositor) that it has not received such financial information. The applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements required to be delivered by the related Mortgagor under the related Mortgage Loan documents.

 

The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the related Mortgagor related to any such “significant obligor” (identified to it as such by the Other Depositor in accordance with the second preceding paragraph) to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed with respect to the

 

 -466-

 

 

Other Securitization, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization; provided, however, the applicable Special Servicer shall provide such Officer’s Certificate to the applicable Master Servicer and the applicable Master Servicer shall forward such Officer’s Certificate to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.

 

(h)          If any Other Securitization includes a Serviced Companion Loan and is subject to the reporting requirements of the Exchange Act, then the obligations of the parties hereto set forth in this Article XI with respect such Other Securitization shall remain in full force and effect notwithstanding that the Trust may cease to be subject to the reporting requirements of the Exchange Act.

 

Section 11.16    Certain Matters Regarding Significant Obligors. As of the Closing Date, with respect to the Trust, there is no “significant obligor” within the meaning of Item 1101(k) of Regulation AB (“Significant Obligor”).

 

Section 11.17    Impact of Cure Period. For the avoidance of doubt, no Master Servicer or Special Servicer shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, during any grace period provided for in this Article XI; provided that if any such party fails to comply with the delivery requirements of this Article XI by the expiration of any applicable grace period such failure shall constitute a Servicer Termination Event. No Master Servicer or Special Servicer shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, for failing to deliver any item required under this Article XI by the time required hereunder with respect to any reporting period for which the Trust (or any trust in a related Other Securitization) is not required to file Exchange Act reports.

 

[End of Article XI]

 

Article XII

THE ASSET REPRESENTATIONS REVIEWER

 

Section 12.01    Asset Review.

 

(a)           On or prior to each Distribution Date, based either on the CREFC^® Delinquent Loan Status Report and/or the CREFC^® Loan Periodic Update File delivered by the applicable Master Servicer for such Distribution Date, the Certificate Administrator shall determine if an Asset Review Trigger has occurred. If an Asset Review Trigger is determined to have occurred, the Certificate Administrator shall promptly provide notice to all Certificateholders

 

 -467-

 

 

and each other party to this Agreement. Any notice required to be delivered to the Certificateholders pursuant to this Article XII shall be delivered by the Certificate Administrator by posting such notice on the Certificate Administrator’s Website, by mailing such notice to the Certificateholders’ addresses appearing in the Certificate Register in the case of Definitive Certificates and by delivering such notice via the Depository in the case of Book-Entry Certificates. The Certificate Administrator shall include in the Form 10-D relating to the reporting period in which the Asset Review Trigger occurred the following statement describing the events that caused the Asset Review Trigger to occur: “As of the [Date of Distribution], the following Mortgage Loans identified below are sixty (60) or more days delinquent and an Asset Review Trigger as defined in the Pooling and Servicing Agreement has occurred.”. On each Distribution Date occurring after providing such notice to Certificateholders, the Certificate Administrator, based on information provided to it by the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall determine whether (1) any additional Mortgage Loan has become a Delinquent Loan, (2) any Mortgage Loan has ceased to be a Delinquent Loan and (3) whether an Asset Review Trigger has ceased to exist, and, if there is an occurrence of any of the events or circumstances identified in clauses (1), (2) and/or (3), deliver such information in a written notice (which may be via email) in the form of Exhibit RR within two (2) Business Days to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

 

If Certificateholders (other than Holders of the RR Interest) evidencing not less than 5% of the Voting Rights of the Certificates deliver to the Certificate Administrator, within ninety (90) days after the filing of the Form 10-D reporting the occurrence of an Asset Review Trigger, a written direction requesting a vote to commence an Asset Review (an “Asset Review Vote Election”), then the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders (with a copy to the Asset Representations Reviewer) and conduct a solicitation of votes in accordance with Section 5.10 to authorize an Asset Review. Upon the affirmative vote to authorize an Asset Review by Holders of Certificates evidencing at least (i) a majority of those Certificateholders who cast votes and (ii) a majority of an Asset Review Quorum within one hundred fifty (150) days of receipt of the Asset Review Vote Election (an “Affirmative Asset Review Vote”), the Certificate Administrator shall promptly provide written notice thereof to all parties to this Agreement, the Underwriters, the Mortgage Loan Sellers, the Directing Certificateholder, the Risk Retention Consultation Party and the other Certificateholders (the “Asset Review Notice”). Upon receipt of an Asset Review Notice, the Asset Representations Reviewer shall request access to the Secure Data Room by providing the Certificate Administrator with a certification substantially in the form attached hereto as Exhibit QQ (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s Website). Upon receipt of such certification, the Certificate Administrator shall promptly (and in any case within two (2) Business Days after such receipt) grant the Asset Representations Reviewer access to the Secure Data Room. In the event an Affirmative Asset Review Vote has not occurred within such one hundred fifty (150) day period following the receipt of the Asset Review Vote Election, no Certificateholder may request a vote or cast a vote for an Asset Review and the Asset Representations Reviewer will not be required to review any Delinquent Loan unless and until (A) an additional Mortgage Loan has become a Delinquent Loan after the expiration of such one hundred fifty (150) day period, (B) a new Asset Review Trigger has occurred as a result or an Asset Review Trigger is otherwise in effect, (C) the Certificate Administrator has timely received any Asset Review Vote Election after the occurrence

 

 -468-

 

 

of the events described in clauses (A) and (B) in this sentence and (D) an Affirmative Asset Review Vote has occurred within one hundred fifty (150) days after the Asset Review Vote Election described in clause (C) in this sentence. After the occurrence of any Asset Review Vote Election or an Affirmative Asset Review Vote, no Certificateholder may make any additional Asset Review Vote Election except as described in the immediately preceding sentence. Any reasonable out-of-pocket expenses incurred by the Certificate Administrator in connection with administering such vote will be paid as an expense of the Trust from the applicable Collection Account. The Certificate Administrator shall be entitled to administer any vote in connection with the foregoing through an agent.

 

(b)          (i) Upon receipt of an Asset Review Notice, the Custodian (with respect to clauses (1) - (5) below for all Mortgage Loans), the applicable Master Servicer (with respect to clauses (6) and (7) below for Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to clauses (6) and (7) below for Specially Serviced Loans), in each case to the extent in such party’s possession, shall promptly, but in no event later than ten (10) Business Days, provide the following materials in electronic format to the Asset Representations Reviewer (collectively, with the Diligence Files posted on the Secure Data Room by the Certificate Administrator pursuant to Section 4.08, a copy of the Prospectus, a copy of each related Mortgage Loan Purchase Agreement and a copy of this Agreement, the “Review Materials”):

 

(1)       a copy of an assignment of the Mortgage in favor of the Trustee, with evidence of recording thereon, for each Delinquent Loan that is subject to an Asset Review;

 

(2)       a copy of an assignment of any related assignment of leases (if such item is a document separate from the Mortgage) in favor of the Trustee, with evidence of recording thereon, related to each Delinquent Loan that is subject to an Asset Review;

 

(3)       a copy of the assignment of all unrecorded documents relating to each Delinquent Loan that is subject to an Asset Review, if not already covered pursuant to clause (1) or clause (2) above;

 

(4)       a copy of all filed copies (bearing evidence of filing) or evidence of filing of any UCC financing statements related to each Delinquent Loan that is subject to an Asset Review;

 

(5)       a copy of an assignment in favor of the Trustee of any financing statement executed and filed in the relevant jurisdiction related to each Delinquent Loan that is subject to an Asset Review;

 

(6)       a copy of any notice previously delivered by the applicable Master Servicer or the applicable Special Servicer, as applicable, of any alleged defect or breach with respect to any Delinquent Loan; and

 

(7)        copies of any other related documents that were entered into or delivered in connection with the origination of the related Mortgage Loan that the Asset Representations Reviewer has determined are necessary in connection with

 

 -469-

 

 

its completion of any Asset Review and that are requested by the Asset Representations Reviewer, in the time frames and as otherwise described in clause (ii) hereof.

 

(ii)     In addition, in the event that, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, the Asset Representations Reviewer shall promptly, but in no event later than ten (10) Business Days after receipt of the Review Materials, notify the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, of such missing document(s), and request that the applicable Master Servicer or the applicable Special Servicer, as the case may be, promptly, but in no event later than ten (10) Business Days after receipt of notification from the Asset Representations Reviewer, deliver to the Asset Representations Reviewer such missing document(s) to the extent in its possession; provided that any such notification and/or request shall be in writing, specifically identifying the documents being requested and sent to the notice address for the related party set forth in Section 13.05 of this Agreement. In the event any missing documents are not provided by the applicable Master Servicer or the applicable Special Servicer, as the case may be, within such ten (10) Business Day period, the Asset Representations Reviewer shall request such documents from the related Mortgage Loan Seller; provided that the Mortgage Loan Seller is required under the related Mortgage Loan Purchase Agreement to deliver such missing document only to the extent such document is in the possession of such party but in any event excluding any documents that contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications (and, if such documents are not in its possession, solely with respect to any Mortgage Loan sold by such Mortgage Loan Seller that is a Non-Serviced Mortgage Loan, Mortgage Loan Seller shall be required to make a request under the applicable Non-Serviced PSA for any such documents that are not in its possession). In the event any missing documents with respect to a Non-Serviced Mortgage Loan are not provided by the Mortgage Loan Seller, the Asset Representations Reviewer shall request such documents from the parties to the related Non-Serviced PSA, to the extent that the Asset Representations Reviewer is entitled to request such documents under such Non-Serviced PSA.

 

(iii)     The Asset Representations Reviewer may, but is under no obligation to, consider and rely upon information furnished to it by a Person that is not a party to this Agreement or the applicable Mortgage Loan Seller, and shall do so only if such information can be independently verified (without unreasonable effort or expense to the Asset Representations Reviewer) and is determined by the Asset Representations Reviewer in its good faith and sole discretion to be relevant to the Asset Review conducted pursuant to this Section 12.01 (any such information, “Unsolicited Information”).

 

(iv)     Upon receipt by the Asset Representations Reviewer of the Asset Review Notice and access to the Diligence File with respect to a Delinquent Loan, the Asset Representations Reviewer, as an independent contractor, shall commence a review of the compliance of each Delinquent Loan with the representations and warranties related to that

 

 -470-

 

 

Delinquent Loan (such review, the “Asset Review”). The Asset Representations Reviewer shall perform an Asset Review with respect to each representation and warranty made by the related Mortgage Loan Seller with respect to such Delinquent Loan in accordance with the procedures set forth on Exhibit PP (each such procedure, a “Test”); provided, that the Asset Representations Reviewer may, but is under no obligation to, modify any Test and/or associated Review Materials described in Exhibit PP if, and only to the extent, the Asset Representations Reviewer determines pursuant to the Asset Review Standard that it is necessary to modify such Test and/or such associated Review Materials in order to facilitate its Asset Review in accordance with the Asset Review Standard. Once an Asset Review of a Mortgage Loan is completed, no further Asset Review shall be required in respect of, or performed on, such Mortgage Loan notwithstanding that such Mortgage Loan may continue to be a Delinquent Loan or again become a Delinquent Loan at a time when a new Asset Review Trigger occurs and a new Affirmative Asset Review Vote is obtained subsequent to the occurrence of such new Asset Review Trigger.

 

(v)     No Certificateholder shall have the right to change the scope of the Asset Review, and the Asset Representations Reviewer shall not be required to review any information other than (1) the Review Materials and (2) if applicable, Unsolicited Information.

 

(vi)    The Asset Representations Reviewer may, absent manifest error and subject to the Asset Review Standard, (i) assume, without independent investigation or verification, that the Review Materials are accurate and complete in all material respects and (ii) conclusively rely on such Review Materials.

 

(vii)   The Asset Representations Reviewer shall prepare a preliminary report with respect to each Delinquent Loan within fifty-six (56) days after the date on which access to the Secure Data Room is provided, subject to the last sentence of this Section 12.01(b)(vii). In the event that the Asset Representations Reviewer determines that the Review Materials are insufficient to complete a Test and such missing documentation is not delivered to the Asset Representations Reviewer by the related Mortgage Loan Seller, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) to the extent in the possession of the applicable Master Servicer or applicable Special Servicer, as applicable, within ten (10) Business Days following the request by the Asset Representations Reviewer to the applicable Master Servicer, the applicable Special Servicer or the related Mortgage Loan Seller, as the case may be, as described in Section 12.01(b)(ii), the Asset Representations Reviewer shall list such missing documents in such preliminary report setting forth the preliminary results of the application of the Tests and the reasons why such missing documents are necessary to complete a Test and (if the Asset Representations Reviewer has so concluded) that the absence of such documents will be deemed to be a failure of such Test. The Asset Representations Reviewer shall provide such preliminary report to the applicable Master Servicer (only with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) and the related Mortgage Loan Seller. If the preliminary report indicates that any of the representations and warranties fails or is deemed to fail any Test, the related Mortgage Loan Seller shall have ninety (90) days (the “Cure/Contest Period”) to remedy or otherwise

 

 -471-

 

 

refute the failure. Any documents or explanations to support the related Mortgage Loan Seller’s claim that the representation and warranty has not failed a Test or that any missing information or documents in the Review Materials are not required to complete a Test shall be sent by such Mortgage Loan Seller to the Asset Representations Reviewer. For avoidance of doubt, the Asset Representations Reviewer shall not be required to prepare a preliminary report in the event the Asset Representations Reviewer determines that there is no Test failure with respect to the related Mortgage Loan.

 

(viii)   The Asset Representations Reviewer shall, within sixty (60) days after the date on which access to the Secure Data Room is provided to the Asset Representations Reviewer by the Certificate Administrator or within the ten (10) days after the expiration of the Cure/Contest Period (whichever is later), complete an Asset Review with respect to each Delinquent Loan and deliver (i) a report setting forth the Asset Representations Reviewer’s findings and conclusions as to whether or not it has determined there is any evidence of a failure of any Test based on the Asset Review and a statement that the Asset Representations Reviewer’s findings and conclusions set forth in such report were not influenced by any third party (an “Asset Review Report”) to each party to this Agreement, the related Mortgage Loan Seller for each Delinquent Loan, the Directing Certificateholder and (ii) a summary of the Asset Representations Reviewer’s conclusions included in such Asset Review Report (an “Asset Review Report Summary”) to the Trustee, the applicable Special Servicer and the Certificate Administrator. The period of time by which the Asset Review Report must be completed and delivered may be extended by up to an additional thirty (30) days, upon written notice to the parties to this Agreement and the applicable Mortgage Loan Seller, if the Asset Representations Reviewer determines pursuant to the Asset Review Standard that such additional time is required due to the characteristics of the Mortgage Loan and/or the Mortgaged Property or Mortgaged Properties. In no event may the Asset Representations Reviewer determine whether any Test failure constitutes a Material Defect, or whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller, which, in each case, shall be a responsibility of the applicable Enforcing Servicer pursuant to Section 2.03(k) of this Agreement.

 

(ix)      In addition, in the event that the Asset Representations Reviewer does not receive any documentation that it requested from the applicable Master Servicer (with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) or the related Mortgage Loan Seller in sufficient time to allow the Asset Representations Reviewer to complete its Asset Review and deliver an Asset Review Report, the Asset Representations Reviewer shall prepare the Asset Review Report solely based on the documentation received by the Asset Representations Reviewer with respect to the related Delinquent Loan, and the Asset Representations Reviewer shall have no responsibility to independently obtain any such documentation from any party to this Agreement or otherwise.

 

(x)       Within thirty (30) days after receipt of an Asset Review Report with respect to any Mortgage Loan, the Enforcing Servicer shall determine whether at that time, based on the Servicing Standard, there exists a Material Defect with respect to such Mortgage Loan. If the Enforcing Servicer determines that a Material Defect exists, it shall enforce

 

 -472-

 

 

the obligations of the applicable Mortgage Loan Seller with respect to such Material Defect in accordance with Section 2.03(b).

 

(c)           The Asset Representations Reviewer and its affiliates shall keep confidential any information appropriately labeled as “Privileged Information” received from any party to this Agreement or any Sponsor (including, without limitation, in connection with the review of the Mortgage Loans) and not disclose such Privileged Information to any Person (including Certificateholders), other than (1) to the extent expressly required by this Agreement in an Asset Review Report or otherwise, to the other parties to this Agreement with a notice indicating that such information is Privileged Information or (2) pursuant to a Privileged Information Exception. Each party to this Agreement that receives Privileged Information from the Asset Representations Reviewer with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer other than pursuant to a Privileged Information Exception.

 

(d)          The Asset Representations Reviewer may delegate its duties to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Section 12.01; provided that no agent or subcontractor may (i) be affiliated with any Mortgage Loan Seller, any Master Servicer, any Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Asset Representations Reviewer shall remain obligated and primarily liable for any Asset Review required hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Asset Representations Reviewer alone were performing its obligations under this Agreement. The Asset Representations Reviewer shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Asset Representations Reviewer by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

 

Section 12.02    Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability.

 

(a)           The Asset Representations Reviewer shall be paid a fee of $5,000 on the Closing Date. As compensation for the performance of its routine duties, the Asset Representations Reviewer shall be paid a fee (the “Asset Representations Reviewer Fee”), payable monthly from amounts received in respect of the Mortgage Loans and shall be equal to the product of a rate equal to 0.00044% per annum (the “Asset Representations Reviewer Fee Rate”) and the Stated Principal Balance of each such Mortgage Loan and REO Loan (including any Non-Serviced Mortgage Loan, but not any Companion Loan) and shall be calculated in the same manner as interest is calculated on such Mortgage Loans.

 

 -473-

 

 

(b)          As compensation for the performance of its duties hereunder, with respect to an individual Asset Review Trigger and the Mortgage Loans that are Delinquent Loans and are subject to an Asset Review (for purposes of this paragraph, each a “Subject Loan”), upon the completion of any Asset Review with respect to an individual Asset Review Trigger, the Asset Representations Reviewer shall be paid a fee equal to (a) in the case of a Subject Loan that is not an NCB Co-op Mortgage Loan, (i) $15,000, plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance less than $20,000,000, (ii) $20,000 plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance greater than or equal to $20,000,000, but less than $40,000,000 or (iii) $25,000 plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance greater than or equal to $40,000,000 and (b) in the case of a Subject Loan that is an NCB Co-op Mortgage Loan, $10,000 (any such fee, the “Asset Representations Reviewer Asset Review Fee”). The Asset Representations Reviewer Asset Review Fee with respect to each Delinquent Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) shall be paid by the related Mortgage Loan Seller; provided, however, that if the related Mortgage Loan Seller is insolvent or fails to pay such amount within ninety (90) days of written invoice therefor by the Asset Representations Reviewer, such fee shall be paid by the Trust following delivery by the Asset Representations Reviewer of a certification to the applicable Master Servicer that the requirements for payment set forth in this Section 12.02(b) have been met. The Asset Representations Reviewer shall not deliver any such certificate unless it has invoiced payment of such amount and otherwise met the requirements for payment set forth in this Section 12.02(b), including receipt of evidence of such insolvency or failure to pay such amount. A Mortgage Loan Seller shall be deemed to have failed to pay such amount hereunder ninety (90) days after delivery by the Asset Representations Reviewer of an itemized invoice to such Mortgage Loan Seller by registered mail or overnight courier to the address listed in this Agreement for such Mortgage Loan Seller, or to such other address as shall be provided by such Mortgage Loan Seller for delivery of notices in accordance with this Agreement, or ninety (90) days following attempted delivery of such invoice by registered mail or overnight courier and reasonable follow -up by telephone or e-mail. Notwithstanding any payment of such fee by the Trust to the Asset Representations Reviewer, such fee will remain an obligation of the related Mortgage Loan Seller and the Enforcing Servicer shall pursue remedies against such Mortgage Loan Seller to recover any such amounts to the extent paid by the Trust.

 

(c)           Notwithstanding the foregoing, the Asset Representations Reviewer Asset Review Fee with respect to a Delinquent Loan shall be included in the Purchase Price for any Mortgage Loan that was the subject of a completed Asset Review that is repurchased or substituted by a Mortgage Loan Seller, and such portion of the Purchase Price received shall be used to reimburse the Asset Representations Reviewer or the Trust, as the case may be, for such fees pursuant to Section 12.02(b).

 

(d)          The Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.

 

Section 12.03    Resignation of the Asset Representations Reviewer. The Asset Representations Reviewer may resign and be discharged from its obligations hereunder by giving written notice thereof to the other parties to this Agreement and each Rating Agency. Upon such notice of resignation, the Depositor shall promptly appoint a successor asset representations

 

 -474-

 

 

reviewer that is an Eligible Asset Representations Reviewer. If no successor asset representations reviewer shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Asset Representations Reviewer may petition any court of competent jurisdiction for the appointment of a successor asset representations reviewer that is an Eligible Asset Representations Reviewer. The Asset Representations Reviewer will bear all reasonable costs and expenses of each party hereto and each Rating Agency in connection with its resignation.

 

Section 12.04    Restrictions of the Asset Representations Reviewer. Neither the Asset Representations Reviewer nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker dealer Affiliate of the Asset Representations Reviewer or (ii) investments by an Affiliate of the Asset Representations Reviewer if the Asset Representations Reviewer and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Asset Representations Reviewer under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Asset Representations Reviewer and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

 

Section 12.05    Termination of the Asset Representations Reviewer.

 

(a)           An “Asset Representations Reviewer Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(i)           any failure by the Asset Representations Reviewer to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure shall continue unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Asset Representations Reviewer by the Trustee or to the Asset Representations Reviewer and the Trustee by the Holders of Certificates having greater than 25% of the Voting Rights, provided that any such failure that is not curable within such thirty (30) day period, the Asset Representations Reviewer shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(ii)           any failure by the Asset Representations Reviewer to perform its obligations hereunder in accordance with the Asset Review Standard in any material respect, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

 

 -475-

 

 

(iii)          any failure by the Asset Representations Reviewer to be an Eligible Asset Representations Reviewer, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

 

(iv)          a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Asset Representations Reviewer, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(v)           the Asset Representations Reviewer shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Asset Representations Reviewer or of or relating to all or substantially all of its property; or

 

(vi)          the Asset Representations Reviewer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations.

 

Upon receipt by the Certificate Administrator of written notice of the occurrence of any Asset Representations Reviewer Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders (which shall be simultaneously delivered to the Asset Representations Reviewer) in accordance with the notice distribution procedures described in Section 12.01(a), unless the Certificate Administrator has received written notice that such Asset Representations Reviewer Termination Event has been remedied. If an Asset Representations Reviewer Termination Event shall occur then, and in each and every such case, so long as such Asset Representations Reviewer Termination Event shall not have been remedied, either the Trustee (i) may or (ii) upon the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (without regard to the application of any Cumulative Appraisal Reduction Amounts), shall, terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement, other than rights and obligations accrued prior to such termination (including the right to receive all amounts accrued and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination), by notice in writing to the Asset Representations Reviewer. The Asset Representations Reviewer is required to bear all reasonable costs and expenses of itself and of each other party to this Agreement in connection with its termination due to an Asset Representations Reviewer Termination Event. Notwithstanding anything herein to the contrary, the Depositor and each Mortgage Loan Seller shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Asset Representations Reviewer Termination Event of which it becomes aware.

 

 -476-

 

 

(b)          Upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (without regard to the application of any Cumulative Appraisal Reduction Amounts) requesting a vote to terminate and replace the Asset Representations Reviewer with a proposed successor asset representations reviewer that is an Eligible Asset Representations Reviewer and (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote, the Certificate Administrator shall promptly provide written notice thereof to the Asset Representations Reviewer and to all Certificateholders by (i) posting such notice on its internet website, and (ii) mailing such notice to all Certificateholders at their addresses appearing in the Certificate Register and to the Asset Representations Reviewer. Upon the written direction of Holders of Certificates evidencing at least 75% of a Certificateholder Quorum (without regard to the application of any Cumulative Appraisal Reduction Amounts), the Trustee shall terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement (other than any rights or obligations that accrued prior to the date of such termination and other than indemnification rights arising out of events occurring prior to such termination) by notice in writing to the Asset Representations Reviewer and appoint the proposed successor. As between the Asset Representations Reviewer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Asset Representations Reviewer. In the event that Holders of the Certificates evidencing at least 75% of a Certificateholder Quorum (without regard to the application of any Cumulative Appraisal Reduction Amounts) elect to remove the Asset Representations Reviewer without cause and appoint a successor, the successor asset representations reviewer will be responsible for all expenses necessary to effect the transfer of responsibilities from its predecessor.

 

(c)           On or after the receipt by the Asset Representations Reviewer of written notice of termination, subject to this Section 12.05, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Asset Representations Reviewer shall execute any and all documents and other instruments, and do or accomplish all other acts or things reasonably necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than thirty (30) days after (1) the Asset Representations Reviewer resigns pursuant to Section 12.03 of this Agreement or (2) the Trustee delivers such written notice of termination to the Asset Representations Reviewer, the Trustee shall appoint a successor asset representations reviewer that is an Eligible Asset Representations Reviewer. The Trustee shall provide written notice of the appointment of an Asset Representations Reviewer to each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator, the Directing Certificateholder and each Certificateholder within one Business Day of such appointment.

 

The Asset Representations Reviewer shall at all times be an Eligible Asset Representations Reviewer and if the Asset Representations Reviewer ceases to be an Eligible Asset Representations Reviewer, the Asset Representations Reviewer shall immediately notify each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor, the Certificate Administrator and the Directing Certificateholder of such disqualification and immediately resign under Section 12.03 of this Agreement and the Trustee shall appoint a successor asset representations reviewer subject to and in accordance with this Section 12.05. Notwithstanding the foregoing, if the Trustee is unable to find a successor asset representations

 

 -477-

 

 

reviewer within thirty (30) days of the termination of the Asset Representations Reviewer, the Depositor shall be permitted to find a replacement. The Trustee shall not be liable for any failure to identify and appoint a successor asset representations reviewer so long as the Trustee uses commercially reasonable efforts to conduct a search for a successor asset representations reviewer and such failure is not a result of the Trustee’s negligence, bad faith or willful misconduct in the performance of its obligations hereunder.

 

(d)          Upon any termination of the Asset Representations Reviewer and appointment of a successor to the Asset Representations Reviewer, the Trustee shall, as soon as possible, give written notice thereof to each applicable Special Servicer, each applicable Master Servicer, the Certificate Administrator (who shall, as soon as possible, give written notice thereof to the Certificateholders), the Operating Advisor, the Mortgage Loan Sellers, the Depositor, each Rating Agency, and, prior to the occurrence and continuance of a Consultation Termination Event and the Directing Certificateholder. In the event that the Asset Representations Reviewer is terminated, all of its rights and obligations under this Agreement shall terminate, other than any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination).

 

[End of Article XII]

 

Article XIII

MISCELLANEOUS PROVISIONS

 

Section 13.01    Amendment. (a) This Agreement may be amended from time to time by the parties hereto, without the consent of any of the Certificateholders or the Companion Holders:

 

(i)            to correct any defect or ambiguity in this Agreement in order to address any manifest error in any provision of this Agreement;

 

(ii)           to cause the provisions in this Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or this Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

 

(iii)          to change the timing and/or nature of deposits in any applicable Collection Account, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

 

 -478-

 

 

(iv)          to modify, eliminate or add to any of its provisions to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust or any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

 

(v)           to modify, eliminate or add to the provisions of Section 5.03(o) or any other provision hereof restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

 

(vi)          to revise or add any other provisions with respect to matters or questions arising under this Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or any holder of a Serviced Pari Passu Companion Loan not consenting to such revision or addition, as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

 

(vii)         to amend or supplement any provision hereof to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

 

 -479-

 

 

(viii)        to modify the provisions of Sections 3.05 and 3.17 (with respect to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the applicable Master Servicer, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder, determine that the CMBS industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

 

(ix)           to modify the procedures of this Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holders of the RR Interest), as evidenced by (x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

 

(x)           to modify, eliminate or add to any of its provisions to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

 

(xi)          to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the foreign or domestic risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal.

 

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

 

(b)          This Agreement may also be amended from time to time by the parties hereto with the consent of the Holders of Certificates of each Class affected by such amendment

 

 -480-

 

 

evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

 

(i)            reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

 

(ii)          reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

 

(iii)          adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

 

(iv)          change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller; or

 

(v)          amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and, if required under the related Intercreditor Agreement, the consent of the holder of any AB Subordinate Companion Loan for each Serviced AB Whole Loan.

 

(c)           Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, any Master Servicer or any Special Servicer shall consent to any amendment hereto without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted hereunder and that such amendment or the exercise of any power granted to the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to this Agreement may be made that changes any provision specifically required to be included in this Agreement by an Intercreditor Agreement

 

 -481-

 

 

related to a Companion Loan without, in each case, the consent of the holder of the related Companion Loan(s).

 

(d)          No later than the effective date of any amendment to this Agreement, the Certificate Administrator shall post a copy of the same to the Certificate Administrator’s Website, deliver a copy of the same to the 17g-5 Information Provider who shall post a copy of the same on the 17g-5 Information Provider’s Website pursuant to Section 3.13(b) and Section 3.13(c), as applicable, and thereafter, the Certificate Administrator shall furnish written notification of the substance of such amendment together with a copy of such amendment in electronic format to each Certificateholder and each Serviced Companion Noteholder, the Depositor, each Other Depositor, each Other Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Underwriters and the Rating Agencies.

 

(e)           It shall not be necessary for the consent of Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Certificate Administrator may prescribe.

 

(f)           The Trustee and the Certificate Administrator shall not be obligated to enter into any amendment pursuant to this Section 13.01 that affects its rights, duties and immunities under this Agreement or otherwise.

 

(g)          The cost of any Opinion of Counsel to be delivered pursuant to Section 13.01(a) or Section 13.01(c) and the cost of any amendment entered into hereunder shall be borne by the Person seeking the related amendment, except that if any Master Servicer, the Certificate Administrator or the Trustee requests any amendment of this Agreement in furtherance of the rights and interests of Certificateholders, the cost of any Opinion of Counsel required in connection therewith pursuant to Section 13.01(a) or Section 13.01(c) shall be payable out of each applicable Collection Account.

 

(h)          The Servicing Standard shall not be amended unless each Rating Agency provides Rating Agency Confirmation and, with respect to any class of Serviced Companion Loan Securities, the applicable rating agencies provide a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

(i)            To the extent the Operating Advisor, the Trustee, the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or Depositor obtains an Opinion of Counsel as provided for in Section 13.01(c) in connection with executing any amendment to this Agreement, such party shall be deemed not to have acted negligently in connection with entering into such amendment for purposes of availing itself of any indemnity provided to such party under this Agreement.

 

(j)            Notwithstanding any other provision of this Agreement, for purposes of the giving or withholding of consents pursuant to this Section 13.01, Certificates registered in the

 

 -482-

 

 

name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to matters described above as they would if any other Person held such Certificates, so long as neither the Depositor nor any of its Affiliates is performing servicing duties with respect to any of the Mortgage Loans.

 

(k)          This Agreement may not be amended without the consent of any holder of a Companion Loan if such amendment would materially and adversely affect the rights of such Companion Holder hereunder.

 

(l)            In addition, if one but not all of the Mortgage Notes evidencing a Joint Mortgage Loan is repurchased by the applicable Mortgage Loan Sellers, this Agreement may be amended by the parties hereto (at the expense of the party requesting such amendment (or, if the applicable Master Servicer or applicable Special Servicer is requesting such amendment in connection with the fulfillment of its duties under this Agreement, at the expense of the Trust)), without the consent of any Certificateholder, to add or modify provisions relating to the applicable Repurchased Note for purposes of the servicing and administration of such Repurchased Note provided that the amendment shall not adversely affect in any material respect the interests of the Certificateholders, as evidenced by a Rating Agency Confirmation from each Rating Agency (obtained at the expense of the Repurchasing Mortgage Loan Seller) with respect to such amendment (or, if no such Rating Agency Confirmation is actually received, by an Opinion of Counsel to such effect). Prior to the effectiveness of such amendment, if one but not all of the Mortgage Notes with respect to a Joint Mortgage Loan is repurchased, the terms of Section 3.30 shall govern the servicing and administration of such Joint Mortgage Loan.

 

Section 13.02    Recordation of Agreement; Counterparts. (a) To the extent permitted by applicable law, this Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Certificate Administrator at the expense of the Depositor on direction by the applicable Special Servicer and with the consent of the Depositor (which may not be unreasonably withheld), but only upon direction accompanied by an Opinion of Counsel (the cost of which shall be paid by the Depositor) to the effect that such recordation materially and beneficially affects the interests of the Certificateholders.

 

(b)          For the purpose of facilitating the recordation of this Agreement as herein provided and for other purposes, this Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or

 

 -483-

 

 

use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

 

(c)           The Trustee shall make any filings required under the laws of the state of its place of business required solely by virtue of the fact of the location of the Trustee’s place of business, the costs of which, if any, to be at the Trustee’s expense.

 

Section 13.03    Limitation on Rights of Certificateholders. (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.

 

(b)          No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third party by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.

 

(c)           No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, any Intercreditor Agreement, any Mortgage Loan, or with respect to the Certificates, unless, with respect to any suit, action or proceeding upon or under or with respect to this Agreement, such Holder previously shall have given to the Trustee and the Certificate Administrator a written notice of default, and of the continuance thereof, as herein before provided, or of the need to institute such suit, action or proceeding on behalf of the Trust and unless also (except in the case of a default by the Trustee) the Holders of Certificates of any Class evidencing not less than 25% of the related Percentage Interests in such Class shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty (60) days after its receipt of such notice, request and offer of such indemnity, shall have neglected or refused to institute any such action, suit or proceeding. The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Holders of Certificates unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or hereby. It is understood and intended, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatsoever by virtue of any provision of this Agreement or the Certificates to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, which priority or preference is not

 

 -484-

 

 

otherwise provided for herein, or to enforce any right under this Agreement or the Certificates, except in the manner herein or therein provided and for the equal, ratable and common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section 13.03(c), each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Section 13.04    Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

 

EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.

 

THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 13.05    Notices. (a) Any communications provided for or permitted hereunder shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given if personally delivered at or couriered, sent by facsimile transmission (other than with respect to the Mortgage Loan Sellers) or mailed by registered mail, postage prepaid (except for notices to the Mortgage Loan Sellers, each applicable Master Servicer the Certificate Administrator and the Trustee which shall be deemed to have been duly given only when received), to:

 

In the case of the Depositor:

 

 -485-

 

 

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

 

with copies to:

 

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

 

and

 

cmbs_notices@morganstanley.com

 

In the case of the General Master Servicer:

 

Wells Fargo Bank, National Association
Commercial Mortgage Servicing

 

550 South Tryon Street
MAC D1086-23A 

23rd Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Facsimile number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com

 

with a copy to:

 

K&L Gates LLP 

300 South Tryon Street 

Suite 1000 

Charlotte, North Carolina 28202 

Attention: Stacy G. Ackermann 

Reference: BANK 2021-BNK38

 

In the case of the NCB Master Servicer:

 

National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop

 

 -486-

 

 

with a copy to:

 

National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Karyn Mann, Senior Vice President 

Facsimile number: (703) 647-3479 

Email: kmann@ncb.coop

 

In the case of the General Special Servicer:

 

Midland Loan Services, a Division of PNC Bank, National Association 

10851 Mastin Street, Suite 700
Overland Park, Kansas 66210
Attention: Executive Vice President – Division Head 

Facsimile: (888) 706-3565 

Email: NoticeAdmin@midlandls.com (with a copy to
AskMidland@midlandls.com, solely with respect to notices under Section 3.13 and Section 13.10)

 

with a copy to:

 

Stinson LLP 

1201 Walnut Street 

Suite 2900 

Kansas City, Missouri 64106-2150 

Fax Number: (816) 412-9338 

Attention: Kenda K. Tomes

 

In the case of the NCB Special Servicer:

 

National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop

 

with a copy to:

 

National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Karyn Mann, Senior Vice President 

Facsimile number: (703) 647-3479 

Email: kmann@ncb.coop

 

 -487-

 

 

In the case of the Directing Certificateholder:

 

KKR Real Estate Credit Opportunity Partners II L.P. 

30 Hudson Yards, Suite 7500 

New York, New York 10001 

Facsimile number: (212) 750-0003 

Attention: Matt Salem 

Facsimile number: (212) 750-0003 

Email: RESecurities@kkr.com

 

with a copy to:

 

Dechert LLP 

Cira Centre 

2929 Arch Street 

Philadelphia, Pennsylvania 19104-2808 

Facsimile number: (215) 655-2647 

Attention: David Forti 

Email: david.forti@dechert.com

 

In the case of the Risk Retention Consultation Party:

 

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

 

with copies to:

 

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

 

and

 

cmbs_notices@morganstanley.com

 

In the case of the Trustee:

 

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee BANK 2021-BNK38

 

with a copy to:

 

 -488-

 

 

CMBSTrustee@wilmingtontrust.com
Facsimile No.: (302) 636-4140

 

In the case of the Certificate Administrator:

 

Computershare Trust Company, National Association 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

 

with a copy to:

 

cts.cmbs.bond.admin@wellsfargo.com 

trustadministrationgroup@wellsfargo.com

 

In the case of the Custodian:

 

Computershare Trust Company, National Association 

1055 10th Avenue SE 

Minneapolis, Minnesota, 55414 

Attention: Document Custody Group BANK 2021-BNK38

 

with a copy to:

 

cmbscustody@wellsfargo.com

 

in the case of a surrender, transfer or exchange other than with respect to the RR Interest:

 

Computershare Trust Company, National Association 

600 South 4th Street 

7th Floor 

Minneapolis, Minnesota 55415 

Attention: CTS – Certificate Transfer Services – BANK 2021-BNK38

 

In the case of the release or transfer of the RR Interest:

 

Computershare Trust Company, National Association
9062 Old Annapolis Road 

7th Floor
Columbia, Maryland 21045
Attention: Risk Retention Custody – BANK 2021-BNK38

 

with a copy to:

 

riskretentioncustody@wellsfargo.com

 

 -489-

 

 

in the case of a surrender, transfer or exchange other than with respect to the RR Interest:

 

Computershare Trust Company, National Association
600 South 4th Street
7th Floor
Minneapolis, Minnesota 55415
Attention: Certificate Transfer Services – BANK 2021-BNK38

 

In the case of the Mortgage Loan Sellers:

 

1. Wells Fargo Bank, National Association
301 South College St.
Charlotte, North Carolina 28288
Attention: BANK 2021-BNK38, Commercial Mortgage Pass-Through
Certificates, Series 2021-BNK38

 

with a copy to:

 

Troy Stoddard, Senior Counsel
Wells Fargo Legal Department, D1086-341
550 S. Tryon St., 34th Floor
Charlotte, North Carolina 28202

 

and a copy to:

 

Herschel Patel
Wells Fargo Bank, National Association
10 S. Wacker Dr., 32nd Floor
Chicago, IL 60606

 

and a copy via email to:

 

cmbsnotices@wellsfargo.com and herschel.patel@wellsfargo.com

 

2. Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

 

with copies to:

 

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

 

 -490-

 

 

and

 

cmbs_notices@morganstanley.com

 

3. Bank of America, National Association
One Bryant Park,
Mail Code: NY1-100-11-07
New York, New York 10036
Attention: Director of CMBS Securitization
Email: leland.f.bunch@bofa.com

 

with copies to:

 

Bank of America Legal Department
150 North College Street 

Mail Code: NC1-028-24-02
Charlotte, North Carolina 28255
Attention: W. Todd Stillerman, Esq. 

Associate General Counsel & Director 

Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

 

and

 

Katten Muchin Rosenman LLP
550 South Tryon Street, Suite 2900
Charlotte, North Carolina 28202
Attention: Joshua J. Yablonski, Esq.
Facsimile: (704) 444-2050
Email: joshua.yablonski@katten.com

 

4. National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number (703) 647-3473 

Email: kluzik@ncb.coop

 

with a copy to:

 

National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Karyn Mann, Senior Vice President 

Facsimile number: (703) 647-3479 

Email: kmann@ncb.coop

 

 -491-

 

 

In the case of the Operating Advisor and the Asset Representations Reviewer:

 

Pentalpha Surveillance LLC 

375 N. French Road, Suite 100 

Amherst, New York, 14228 

Attention: BANK 2021-BNK38 Transaction Manager

 

With a copy sent via email to:

 

notices@pentalphasurveillance.com with BANK 2021-BNK38 in the subject line

 

In the case of any mezzanine lender or Companion Loan Holder:

 

The address set forth in the related Intercreditor Agreement.

 

To each such Person, such other address as may hereafter be furnished by such Person to the parties hereto in writing. Any communication required or permitted to be delivered to a Certificateholder shall be deemed to have been duly given when mailed first class, postage prepaid, to the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.

 

(b)          Any party required to deliver any notice or information pursuant to the terms of this Agreement to the Rating Agencies shall deliver such written notice of the events or information specified in Section 3.13(c) to the Rating Agencies at the address listed below, promptly following the occurrence thereof. The applicable Master Servicer or the applicable Special Servicer, as the case may be, the Certificate Administrator, and Trustee also shall furnish such other information regarding the Trust as may be reasonably requested by the Rating Agencies to the extent such party has or can obtain such information without unreasonable effort or expense; provided, however, that such other information is first provided to the 17g-5 Information Provider in accordance with the procedures set forth in Section 3.13(c); provided, further, that the 17g-5 Information Provider shall not disclose which Rating Agency has requested such information. Notwithstanding the foregoing, the failure to deliver such notices or copies shall not constitute a Servicer Termination Event, as the case may be, under this Agreement. Any confirmation of the rating by the Rating Agencies required hereunder shall be in writing.

 

Any notices to the Rating Agencies shall be sent to the following addresses:

 

Kroll Bond Rating Agency, LLC 

805 Third Avenue, 29th Floor 

New York, New York 10022 

Attention: CMBS Surveillance 

E-mail: cmbssurveillance@kbra.com

 

 -492-

 

 

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
E-mail: info.cmbs@fitchratings.com

 

S&P Global Ratings 

55 Water Street, 41st Floor 

New York, New York 10041 

Attention: Commercial Mortgage Surveillance Manager 

E-mail: CMBS_Info_17g5@spglobal.com

 

Section 13.06    Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

 

Section 13.07    Grant of a Security Interest. The Depositor intends that the conveyance of the Conveyed Property shall constitute a sale and not a pledge of security for a loan. If such conveyance is deemed to be a pledge of security for a loan, however, the Depositor intends that the rights and obligations of the parties to such loan shall be established pursuant to the terms of this Agreement. The Depositor also intends and agrees that, in such event, (i) the Depositor shall be deemed to have granted to the Trustee (in such capacity) a first priority security interest in the Depositor’s entire right, title and interest in, to and under the Conveyed Property and all proceeds thereof, in each case, whether now owned or existing or hereafter acquired or arising, and (ii) this Agreement shall constitute a security agreement under applicable law. The Depositor shall file or cause to be filed, as a precautionary filing, a UCC Financing Statement in all appropriate locations in the State of Delaware promptly following the initial issuance of the Certificates, and the Certificate Administrator shall, at the expense of the Depositor (to the extent reasonable), prepare and file continuation statements with respect thereto, in each case in the six-month period prior to every fifth anniversary of the date of the initial UCC Financing Statement. The Depositor shall cooperate in a reasonable manner with the Certificate Administrator in the preparation and filing of such continuation statement. This Section 13.07 shall constitute notice to the Certificate Administrator and the Trustee pursuant to any of the requirements of the applicable UCC.

 

Section 13.08    Successors and Assigns; Third Party Beneficiaries. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, and all such provisions shall inure to the benefit of the Certificateholders. Each Mortgage Loan Seller (and its respective agents), each Companion Holder (and its respective agents), each Underwriter, each depositor of a Regulation AB Companion Loan Securitization, each Other Exchange Act Reporting Party (with respect to its rights under Article XI of this Agreement) and each Initial Purchaser is an intended third-party beneficiary to this Agreement in respect of the respective rights afforded it hereunder. No other person, including, without limitation, any Mortgagor, shall be entitled to any benefit or equitable

 

 -493-

 

 

right, remedy or claim under this Agreement. If one, but not all, of the Mortgage Notes evidencing any Joint Mortgage Loan is repurchased, the applicable Repurchasing Mortgage Loan Seller shall be a third-party beneficiary of this Agreement to the same extent as if it were a holder of a Serviced Pari Passu Companion Loan, as contemplated by Section 3.30 hereof.

 

(b)          Each Serviced Companion Noteholder shall be a third-party beneficiary to this Agreement in respect to the rights afforded it hereunder. Each of the Other Servicers and the Other Trustees shall be a third-party beneficiary to this Agreement in respect to all provisions herein expressly relating to compensation, reimbursement or indemnification of such Other Servicer and Other Trustee, and any provisions regarding reimbursement or advances or interest thereon to such Other Servicer or Other Trustee.

 

(c)           Each of the applicable Non-Serviced Trustee, Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Depositor, Non-Serviced Certificate Administrator and any Non-Serviced Trust holding a related Non-Serviced Companion Loan, shall be a third-party beneficiary to this Agreement in respect to its rights as specifically provided for herein and under the applicable Non-Serviced Intercreditor Agreement.

 

(d)          Subject to Section 2.03(k), Section 2.03(l)(iv) and Section 2.03(l)(v), any Requesting Certificateholder shall be an express third-party beneficiary to this Agreement for purposes of exercising rights under Section 2.03(k) through Section 2.03(o).

 

Section 13.09    Article and Section Headings. The article and section headings herein are for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.

 

Section 13.10    Notices to the Rating Agencies. (a) The Certificate Administrator shall use reasonable efforts promptly to provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), (and the related 17g-5 information provider for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each of the following of which it has actual knowledge:

 

(i)           any material change or amendment to this Agreement;

 

(ii)          the occurrence of a Servicer Termination Event that has not been cured;

 

(iii)         the resignation or termination of the Certificate Administrator, any Master Servicer, the Asset Representations Reviewer or any Special Servicer; and

 

(iv)         the repurchase or substitution of Mortgage Loans by the related Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement.

 

(b)          Each applicable Master Servicer shall use reasonable efforts to promptly provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), with respect to each of the following of which it has actual knowledge:

 

 -494-

 

 

(i)            the resignation or removal of the Trustee or the Certificate Administrator;

 

(ii)           any change in the location of each applicable Collection Account;

 

(iii)          any event that would result in the voluntary or involuntary termination of any insurance of the accounts of the Trustee;

 

(iv)          any change in the lien priority of any Mortgage Loan with respect to an assumption of the Mortgage Loan or additional encumbrance described in Section 3.08;

 

(v)           any additional lease to an anchor tenant or termination of any existing lease to an anchor tenant at retail properties for any Mortgage Loan with a Stated Principal Balance that is equal to or greater than the lesser of (1) an amount greater than 5% of the then-aggregate outstanding principal balances of the Mortgage Loans and (2) $35,000,000;

 

(vi)          any material damage to any Mortgaged Property;

 

(vii)         any assumption with respect to a Mortgage Loan; and

 

(viii)        any release or substitution of any Mortgaged Property.

 

(c)           The Certificate Administrator shall promptly furnish notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to the Rating Agencies of (i) any change in the location of the Distribution Accounts and (ii) the final payment to any Class of Certificateholders.

 

(d)           The Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer, as applicable, shall furnish to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to each Rating Agency (and any rating agency for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each Serviced Mortgage Loan such information as any Rating Agency shall reasonably request and which the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, can reasonably provide in accordance with applicable law and without waiving any attorney-client privilege relating to such information or violating the terms of this Agreement or any Mortgage Loan documents. The Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer, as applicable, may include any reasonable disclaimer it deems appropriate with respect to such information. Notwithstanding anything to the contrary herein, nothing in this Section 13.10 shall require a party to provide duplicative notices or copies to the Rating Agencies with respect to any of the above listed items. In connection with the delivery by any Master Servicer or any Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify such Master Servicer or such Special Servicer when such information, report, notice or document has been posted. The applicable Master Servicer or the applicable Special Servicer, as the case may be, may, but shall not be obligated to, send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously

 

 -495-

 

 

provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider.

 

Section 13.11    Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements. It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Sellers are entitled to the benefit of any securitization indemnification provisions that specifically run to the benefit of the lenders in the Mortgage Loan documents. Therefore, the Depositor, Master Servicer, Special Servicer and Trustee hereby agree to reasonably cooperate with any Mortgage Loan Seller, at the sole expense of such Mortgage Loan Seller, with respect to obtaining the benefits of the provisions of any section of a loan agreement or securitization cooperation agreement providing for indemnification of the lender and/or its loan seller affiliates with respect to the current securitization of the related Mortgage Loan, including, without limitation, executing any documents as are reasonably necessary to permit the related Mortgage Loan Seller to enforce such provisions for its benefit; provided, that none of the Depositor, Master Servicer, Special Servicer or Trustee shall be required to take any action that is inconsistent with the Servicing Standard, would violate applicable law, the terms and provisions of this Agreement or the Mortgage Loan documents, would adversely affect any Certificateholder, would cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, or would result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions. To the extent that the Trustee is required to execute any document facilitating the above rights of a Mortgage Loan Seller under this Section 13.11, such document shall be in form and substance reasonably acceptable to the Trustee.

 

Section 13.12    PNC Bank, National Association. PNC Bank, National Association, by execution hereof by its division, Midland Loan Services, a Division of PNC Bank, National Association, acknowledges and agrees that this Agreement is binding upon and enforceable against PNC Bank, National Association to the full extent of the obligations set forth herein with respect to Midland Loan Services, a Division of PNC Bank, National Association.

 

[End of Article XIII]

 

[SIGNATURES COMMENCE ON FOLLOWING PAGE]

 

 -496-

 

IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized, in each case as of the day and year first above written. 

 

	MORGAN STANLEY CAPITAL I INC., Depositor
	By:
		Name: Title:
	WELLS FARGO BANK, NATIONAL ASSOCIATION, General Master Servicer
	By:
		Name:
		Title:
	NATIONAL COOPERATIVE BANK, N.A., NCB Master Servicer
	By:
		Name:
		Title:
	MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, National Association, General Special Servicer
	By:
		Name:
		Title:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

	NATIONAL COOPERATIVE BANK, N.A., NCB Special Servicer
	By:
		Name:
		Title:
	COMPUTERSHARE TRUST COMPANY, national association, not in its individual capacity, but solely as Certificate Administrator
	By:
		Name:
		Title:
	Wilmington Trust, national association, not in its individual capacity, but solely as Trustee
	By:
		Name:
		Title:
	PENTALPHA SURVEILLANCE LLC, as Operating Advisor
	By:
		Name:
		Title:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

	PENTALPHA SURVEILLANCE LLC, as Asset Representations Reviewer
	By:
		Name:
		Title:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

 

STATE OF NEW YORK	)
	) ss.:
COUNTY OF NEW YORK	)

 

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared _________ known to me to be a ___________ of Morgan Stanley Capital I Inc., that executed the within instrument, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ________ known to me to be a _________ of Wells Fargo Bank, National Association, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ________ known to me to be a _________ of National Cooperative Bank, N.A., and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ________ known to me to be a _________ of Midland Loan Services, a Division of PNC Bank, National Association, that executed the within instrument, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement 

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ________ known to me to be a _________ of National Cooperative Bank, N.A., and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement 

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ________ known to me to be a _________ of Computershare Trust Company, National Association, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement 

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ___________ known to me to be a _________ of Wilmington Trust, National Association, that executed the within instrument, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement 

 

 

 

 

STATE OF	)
	) ss.:
COUNTY OF	)

 

On the ___ day of ________, ____, before me, a notary public in and for said State, personally appeared ___________ known to me to be a _________ of Pentalpha Surveillance LLC, a limited liability company, that executed the within instrument, and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

		Notary Public
[SEAL]
My commission expires:

 

BANK 2021-BNK38 – Pooling and Servicing Agreement 

 

 

 

 

 

EXHIBIT A-1

 

[FORM OF] CLASS [__] CERTIFICATE

 

BANK 2021-BNK38

 

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

 

SERIES 2021-BNK38, CLASS [__]

 

[FOR CLASSES X-D, X-F, X-G, X-H, X-J, D, E, F, G, H AND J OFFERED PURSUANT TO REGULATION S:]¹ [THIS CERTIFICATE IS A TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE FOR PURPOSES OF REGULATION S (“REGULATION S”) UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.

 

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]

 

[FOR BOOK-ENTRY CERTIFICATES:]² [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS

 

 

 

¹        Temporary Regulation S Book-Entry Certificate legend. 

 

²        Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.

 

A-1-1

 

 

SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]

 

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, ANY MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

 

[FOR CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G, H AND J:] [PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.]

 

[FOR CLASS X CERTIFICATES AND CLASSES A-4-X1, A-4-X2, A-5-X1, A-5-X2, A-S-X1, A-S-X2, B-X1, B-X2, C-X1 AND C-X2:] [THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY DISTRIBUTIONS OF PRINCIPAL. THE NOTIONAL AMOUNT OF THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE AGGREGATE CERTIFICATE BALANCE OF ANY UNDERLYING CLASS OF PRINCIPAL BALANCE CERTIFICATES OR UPPER-TIER REGULAR INTERESTS, AS APPLICABLE, THAT COMPRISE ITS NOTIONAL AMOUNT. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.

 

THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THIS CLASS OF CERTIFICATES IS BASED WILL BE REDUCED AS A

 

A-1-2

 

 

RESULT OF PRINCIPAL PAYMENTS AND LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.]

 

[FOR CLASSES X-D, X-F, X-G, X-H, X-J, D, E, F, G, H AND J:] [THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.]

 

[FOR CLASSES X-F, X-G, X-H, X-J, F, G, H AND J:] [THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH

 

A-1-3

 

 

RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WOULD NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.]

 

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2): SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.]

 

[FOR REGULAR CERTIFICATES OTHER THAN THE RR INTEREST (CLASSES A-1, A-2, A-3, A-SB, D, E, F, G, H, J, X-A, X-B, X-D, X-F, X-G, X-H AND X-J): THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.]

 

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2)): THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL INTEREST IN A PORTION OF THE RELATED EXCHANGEABLE CLASS SPECIFIC GRANTOR TRUST ASSETS.]

 

[FOR SUBORDINATE CERTIFICATES (CLASSES A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2, D, E, F, G, H AND J): THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]

 

A-1-4

 

 

PASS-THROUGH RATE: [FOR CLASS A-1/A-2/A-3/A-SB/A-4/A-4-1/A-4-2/A-4-X1/A-4-X2/A-5/A-5-1/A-5-2/A-5-X1/A-5-X2/A-S-X1/A-S-X2/B-X1/B-X2/C-X1/C-X2/D/E/F/G/H/J: [____]% PER ANNUM] [FOR CLASS X-A/X-B/X-D/X-F/X-G/X-H/X-J: VARIABLE IN ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT][FOR CLASS A-S/B: THE LESSER OF (I) [_]% PER ANNUM AND (II) THE WEIGHTED AVERAGE NET MORTGAGE RATE] [FOR CLASS A-S-1/B-1/C1: THE SUM OF THE CLASS A-S/B/C UT PASS-THROUGH RATE AND THE CLASS A-S-X2/B-X2/C-X2 UT PASS-THROUGH RATE][FOR CLASS A-S-2/B-2/C-2: THE CLASS A-S/B/C UT PASS-THROUGH RATE][FOR CLASS C: THE WEIGHTED AVERAGE NET MORTGAGE RATE]   INITIAL [CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[            ]   DATE OF POOLING AND SERVICING AGREEMENT: AS OF DECEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: DECEMBER 22, 2021   FIRST DISTRIBUTION DATE: January 18, 2022   APPROXIMATE AGGREGATE [CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THE CLASS [__] CERTIFICATES AS OF THE CLOSING DATE: $[_________]		GENERAL MASTER SERVICER:  WELLS FARGO BANK, NATIONAL ASSOCIATION    GENERAL SPECIAL SERVICER:  MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE:  WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR:  COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION   OPERATING Advisor:   PENTALPHA SURVEILLANCE LLC   ASSET REPRESENTATIONS REVIEWER:  PENTALPHA SURVEILLANCE LLC   CUSIP NO.: [            ]   ISIN NO.: [            ]   COMMON CODE NO.: [            ]   CERTIFICATE NO.: [_]-[_]

 

A-1-5

 

 

CLASS [__] CERTIFICATE

 

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

 

MORGAN STANLEY CAPITAL I INC.

 

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [______]] is the registered owner of the interest evidenced by this Certificate in the Class [__] Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (subject to adjustments reflected on the schedule of exchanges attached hereto)], by the aggregate initial Certificate Balance or Notional Amount, as applicable, of the Class [__] Certificates [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates)]. The Certificates are designated as the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

 

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and

 

A-1-6

 

 

obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

 

[FOR REGULAR CERTIFICATES OTHER THAN THE RR INTEREST (CLASSES A-1, A-2, A-3, A-SB, D, E, F, G, H, J, X-A, X-B, X-D, X-F, X-G, X-H AND X-J): This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”).] [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): This certificate represents an undivided beneficial interest in a portion of the related Exchangeable Class Specific Grantor Trust Assets]. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and/or interest then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate specified above on the Certificate Balance or Notional Amount, as applicable, of this Certificate immediately prior to each Distribution Date. Principal and/or interest allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Available Funds to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

 

Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Realized Losses on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the

 

A-1-7

 

 

Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, each applicable Collection Account and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in each applicable Collection Account will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from each applicable Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

 

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

 

A-1-8

 

 

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

 

Subject to the terms of the Pooling and Servicing Agreement, the Class [__] Certificates will be issued in minimum denominations of [FOR REGISTERED PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES (CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): $10,000][FOR NON-REGISTERED PRINCIPAL BALANCE CERTIFICATES: CLASSES D, E, F, G, H AND J: $100,000][FOR CLASS X CERTIFICATES: $1,000,000], and in integral multiples of $1 in excess thereof, with one Certificate of each such Class evidencing an additional amount equal to the remainder of the initial Certificate Balance of such Class.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): and Section 5.11] of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

 

The Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

 

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued

 

A-1-9

 

 

upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, each applicable Special Servicer, each applicable Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans (solely for the purposes of this calculation, if such right is being exercised after December 2031 and any of the CX – 350 & 450 Water Street Mortgage Loan, JCI Sanford Mortgage Loan or JCI El Paso Mortgage Loan is still an asset of the Trust Fund, then such Mortgage Loan that is still an asset of the Trust Fund shall be excluded from the aggregate Cut-off Date Balance of the Mortgage Loans and the aggregate Stated Principal Balance of the Mortgage Loans as of the related determination date).

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

 

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years

 

A-1-10

 

 

from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

 

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

 

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 

A-1-11

 

 

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal. 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
	By:
		Name:
		Title:

  

Dated: December ___, 2021

 

CERTIFICATE OF AUTHENTICATION

 

THIS IS ONE OF THE CLASS [__] CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Authenticating Agent
	By:
		Name:
		Title:

 

 

 

A-1-12

 

 

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as	Under Uniform Gifts to Minors
		tenants in common	Act __________________________
			(State)

 

Additional abbreviations may also be used though not in the above list. 

 

FORM OF TRANSFER

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

 

 

 

 

(Please insert Social Security or other identifying number of Assignee)

 

 

(Please print or typewrite name and address of assignee)

 

 

 

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

  

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

 

SIGNATURE GUARANTEED

 

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

 

A-1-13

 

DISTRIBUTION INSTRUCTIONS

 

The assignee should include the following for purposes of distribution:

 

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 

A-1-14

 

 

 

[TO BE ATTACHED TO RULE 144A/REGULATION S BOOK-ENTRY CERTIFICATES AND EXCHANGEABLE CERTIFICATES]

 

SCHEDULE OF EXCHANGES OF CERTIFICATES

 

The following exchanges of a part of this Certificate have been made:

 

A-1-15

 

 

EXHIBIT A-2

 

[FORM OF] CLASS R CERTIFICATE

 

BANK 2021-BNK38

 

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

 

SERIES 2021-BNK38, CLASS R

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.

 

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, ANY MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE

 

A-2-1

 

 

FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

 

THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, DISQUALIFIED NON-U.S. TAX PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 5.03 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE CERTIFICATE ADMINISTRATOR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN SECTION 860E(e)(5) OF THE CODE, OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS “NON-ECONOMIC RESIDUAL INTERESTS” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE

 

A-2-2

 

 

REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.

 

A-2-3

 

 

PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: [_]%   DATE OF POOLING AND SERVICING AGREEMENT: AS OF DECEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: DECEMBER 22, 2021   FIRST DISTRIBUTION DATE: JANUARY 18, 2022		GENERAL MASTER SERVICER:  WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER:  MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION  NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE:  WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR:  COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION   OPERATING Advisor:   PENTALPHA SURVEILLANCE LLC   ASSET REPRESENTATIONS REVIEWER:  PENTALPHA SURVEILLANCE LLC   CUSIP NO.: [            ]   ISIN NO.: [            ]   CERTIFICATE NO.: R-[_]

 

A-2-4

 

 

CLASS R CERTIFICATE

 

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

 

MORGAN STANLEY CAPITAL I INC.

 

THIS CERTIFIES THAT [____________________] is the registered owner of the interest evidenced by this Certificate in the Class R Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class of Certificates specified on the face hereof. The Certificates are designated as the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

 

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

 

This Class R Certificate represents a “residual interest” in two “real estate mortgage investment conduits”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”). Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this

 

A-2-5

 

 

Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code of each Trust REMIC. By their acceptance thereof, the Holders of the Class R Certificates hereby agree to the designation of the Certificate Administrator as “partnership representative” for the Trust REMICs.

 

Pursuant to the terms of the Pooling and Servicing Agreement, distributions, if any, on this Certificate shall be made by the Certificate Administrator in an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) and to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the Distribution Date to the Person in whose name this Certificate is registered as of the related Record Date. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, each applicable Collection Account and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in each applicable Collection Account will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from each applicable Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

 

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates

 

A-2-6

 

 

shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

 

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

 

Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions: (A) no Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Disqualified Organization or agent thereof (including a nominee, middleman or similar person) (an “Agent”), a Plan or a Person acting on behalf of or investing the assets of a Plan (such Plan or Person, an “ERISA Prohibited Holder”) or a Disqualified Non-U.S. Tax Person and shall promptly notify the Certificate Registrar of any change or impending change to such status; (B) in connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached to the Pooling and Servicing Agreement as Exhibit D-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be

 

A-2-7

 

 

attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of Section 5.03(o) of the Pooling and Servicing Agreement and (y) other than in connection with the initial issuance of a Class R Certificate, require a statement from the proposed transferor substantially in the form attached as Exhibit D-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in its Transferee Affidavit are false.

 

The Class R Certificates will be issued in fully registered, certificated form, in minimum percentage interests of 10% and integral multiples of 1% in excess thereof.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

 

The Trustee, the Certificate Administrator, each applicable Master Servicer each applicable Special Servicer and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

 

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

 

A-2-8

 

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, any Special Servicer, any Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans (solely for the purposes of this calculation, if such right is being exercised after December 2031 and any of the CX – 350 & 450 Water Street Mortgage Loan, JCI Sanford Mortgage Loan or JCI El Paso Mortgage Loan is still an asset of the Trust Fund, then such Mortgage Loan that is still an asset of the Trust Fund shall be excluded from the aggregate Cut-off Date Balance of the Mortgage Loans and the aggregate Stated Principal Balance of the Mortgage Loans as of the related determination date).

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

 

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

 

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar

 

A-2-9

 

 

has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

 

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 

A-2-10

 

 

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
	By:
		Name:
		Title:

 

Dated: December ___, 2021

 

CERTIFICATE OF AUTHENTICATION

 

THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT. 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Authenticating Agent
	By:
		Name:
		Title:

 

A-2-11

 

 

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as	Under Uniform Gifts to Minors
		tenants in common	Act __________________________
			(State)

 

Additional abbreviations may also be used though not in the above list. 

 

FORM OF TRANSFER

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

 

 

 

 

(Please insert Social Security or other identifying number of Assignee)

 

 

(Please print or typewrite name and address of assignee)

 

 

 

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

  

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

 

SIGNATURE GUARANTEED

 

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

 

 

A-2-12

 

 

DISTRIBUTION INSTRUCTIONS

 

The assignee should include the following for purposes of distribution:

 

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 

A-2-13

 

 

EXHIBIT A-3

 

[FORM OF] CLASS V CERTIFICATE

 

BANK 2021-BNK38

 

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

 

SERIES 2021-BNK38, CLASS V

 

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, ANY MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE

 

A-3-1

 

 

FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

 

THIS CERTIFICATE REPRESENTS AN UNDIVIDED beneficial INTEREST IN A PORTION OF THE EXCESS INTEREST GRANTOR TRUST ASSETS.

 

EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.

 

A-3-2

 

 

PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: [_]%   DATE OF POOLING AND SERVICING AGREEMENT: AS OF DECEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: DECEMBER 22, 2021   FIRST DISTRIBUTION DATE:
JANUARY 18, 2022     GENERAL MASTER SERVICER:
WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER:
MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR:
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION   OPERATING ADVISOR:
PENTALPHA SURVEILLANCE LLC   ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC   CUSIP NO.: [ ]   ISIN NO.: [ ]   CERTIFICATE NO.: V-[_]  

A-3-3

 

 

CLASS V CERTIFICATE

 

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

 

MORGAN STANLEY CAPITAL I INC.

 

THIS CERTIFIES THAT [____________________] is the registered owner of the interest evidenced by this Certificate in the Class V Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class of Certificates specified on the face hereof. The Certificates are designated as the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

 

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

 

This Certificate represents an undivided beneficial interest in a portion of the Excess Interest Grantor Trust Assets. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in

 

A-3-4

 

 

accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

Pursuant to the terms of the Pooling and Servicing Agreement the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of the Excess Interest then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

This Certificate is limited in right of payment to, among other things, Excess Interest actually collected on the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, each applicable Collection Account and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in each applicable Collection Account will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from each applicable Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

 

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate

 

A-3-5

 

 

Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

 

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

 

The Class V Certificates will be issued in fully registered, certificated form, in minimum percentage interests of 10% and integral multiples of 1% in excess thereof.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

 

The Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

 

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment

 

A-3-6

 

 

evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, any Special Servicer, any Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans (solely for the purposes of this calculation, if such right is being exercised after December 2031 and any of the CX – 350 & 450 Water Street Mortgage Loan, JCI Sanford Mortgage Loan or JCI El Paso Mortgage Loan is still an asset of the Trust Fund, then such Mortgage Loan that is still an asset of the Trust Fund shall be excluded from the aggregate Cut-off Date Balance of the Mortgage Loans and the aggregate Stated Principal Balance of the Mortgage Loans as of the related determination date).

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

 

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property)

 

A-3-7

 

 

pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

 

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

 

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 

A-3-8

 

 

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal. 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
	By:
		Name:
		Title:

 

Dated: December ___, 2021

 

CERTIFICATE OF AUTHENTICATION

 

THIS IS ONE OF THE CLASS V CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT. 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Authenticating Agent
	By:
		Name:
		Title:

  

A-3-9

 

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as	Under Uniform Gifts to Minors
		tenants in common	Act __________________________
			(State)

 

Additional abbreviations may also be used though not in the above list. 

 

FORM OF TRANSFER

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

 

 

 

 

(Please insert Social Security or other identifying number of Assignee)

 

 

(Please print or typewrite name and address of assignee)

 

 

 

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

  

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

 

SIGNATURE GUARANTEED

 

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

 

A-3-10

 

 

DISTRIBUTION INSTRUCTIONS

 

The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________ account number ____________________________ or, if mailed by check, to _____________________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 

A-3-11

 

 

EXHIBIT A-4

 

[FORM OF] RR Interest

 

BANK 2021-BNK38

 

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

 

SERIES 2021-BNK38, RR INTEREST

 

[FOR BOOK-ENTRY CERTIFICATES ONLY AFTER THE RR INTEREST TRANSFER RESTRICTION PERIOD:]³ [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]

 

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, ANY MASTER SERVICER, ANY SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

 

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING

 

 

³ Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.

 

 A-4-1

 

 

AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF RETAINED CERTIFICATE REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE RETAINED CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.

 

 A-4-2

 

 

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WOULD NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

THIS CERTIFICATE REPRESENTS (I) A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND (II) AN UNDIVIDED BENEFICIAL INTEREST IN A PORTION OF THE EXCESS INTEREST GRANTOR TRUST ASSETS.

 

 A-4-3

 

PASS-THROUGH RATE: THE WEIGHTED AVERAGE NET MORTGAGE RATE   INITIAL CERTIFICATE BALANCE OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[            ]   DATE OF POOLING AND SERVICING AGREEMENT: AS OF DECEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: DECEMBER 22, 2021   FIRST DISTRIBUTION DATE:
JANUARY 18, 2022   APPROXIMATE AGGREGATE
CERTIFICATE BALANCE OF THE RR INTEREST
AS OF THE CLOSING DATE: $[_________]   GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER: MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR: COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION   OPERATING Advisor: PENTALPHA SURVEILLANCE LLC   ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC   CUSIP NO.: [______]   CERTIFICATE NO.: RR-[_]  

 A-4-4

 

 

RR INTEREST

 

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

 

MORGAN STANLEY CAPITAL I INC.

 

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES ONLY AFTER THE RR INTEREST TRANSFER RESTRICTION PERIOD: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [MORGAN STANLEY BANK, N.A.][BANK OF AMERICA, NATIONAL ASSOCIATION][WELLS FARGO BANK, NATIONAL ASSOCIATION] is the registered owner of the interest evidenced by this Certificate in the RR Interest issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof, by the aggregate initial Certificate Balance of the RR Interest. The Certificates are designated as the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

 

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any

 

 A-4-5

 

 

conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

 

This Certificate represents (i) a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) an undivided beneficial interest in a portion of the Excess Interest Grantor Trust Assets. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest (including Excess Interest) then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Retained Certificate Available Funds to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

 

Retained Certificate Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Retained Certificate Realized Losses allocated to the RR Interest will be allocated pro rata among the outstanding Certificates of such Class.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans and Excess Interest actually collected on the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, each applicable Collection Account and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in each applicable

 

 A-4-6

 

 

Collection Account will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from each applicable Collection Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

 

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

 

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon receipt by the Certificate Administrator of (i) a certificate from the prospective Transferee in the form set forth in the Pooling and Servicing Agreement, countersigned by the Retaining Sponsor and (ii) a certificate from the prospective Transferor in the form set forth in the Pooling and Servicing Agreement.

 

The RR Interest will be issued in fully registered, certificated form in minimum denominations of $1, and in integral multiples of $0.01 in excess thereof, with one Certificate of

 

 A-4-7

 

 

each such Class evidencing an additional amount equal to the remainder of the initial Certificate Balance of such Class.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

 

The Trustee, the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

 

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, any Special Servicer, any Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans

 

 A-4-8

 

 

held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans (solely for the purposes of this calculation, if such right is being exercised after December 2031 and any of the CX – 350 & 450 Water Street Mortgage Loan, JCI Sanford Mortgage Loan or JCI El Paso Mortgage Loan is still an asset of the Trust Fund, then such Mortgage Loan that is still an asset of the Trust Fund shall be excluded from the aggregate Cut-off Date Balance of the Mortgage Loans and the aggregate Stated Principal Balance of the Mortgage Loans as of the related determination date).

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

 

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

 

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

 

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 

 A-4-9

 

 

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
	By:
		Name:
		Title:

  

Dated: December __, 2021

 

CERTIFICATE OF AUTHENTICATION

 

THIS IS A PART OF THE RR INTEREST REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Authenticating Agent
	By:
		Name:
		Title:

 

 A-4-10

 

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian                           (Cust)
JT TEN	-	as joint tenants with rights of
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

 

Additional abbreviations may also be used though not in the above list.

 

FORM OF TRANSFER

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

 

(Please insert Social Security or other identifying number of Assignee)

 

 

(Please print or typewrite name and address of assignee)

 

 

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

 

Dated:  ___________________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

 

SIGNATURE GUARANTEED  

 

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.

 

 A-4-11

 

 

DISTRIBUTION INSTRUCTIONS

 

The assignee should include the following for purposes of distribution:

 

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 

 A-4-12

 

 

 

 

EXHIBIT B

 

MORTGAGE LOAN SCHEDULE

 

 

 

BANK 2021-BNK38

Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
1	BANA	One North Wacker	$72,000,000	1 North Wacker Drive	Chicago	IL	9/10/2021	10/1/2031	2.7185%	120	118	0	No	0.000000%	0.002500%	0.002500%
2	MSMCH	Park Avenue Plaza	$70,000,000	55 East 52nd Street	New York	NY	10/8/2021	11/5/2031	2.8375%	120	119	0	No	0.000000%	0.007500%	0.002500%
3	BANA	CX - 350 & 450 Water Street	$55,000,000	350 and 450 Water Street	Cambridge	MA	10/14/2021	11/6/2031	2.7920%	120	119	0	Yes	0.000000%	0.006000%	0.002500%
4	WFB	1201 Lake Robbins	$55,000,000	1201 Lake Robbins Drive	The Woodlands	TX	10/8/2021	10/11/2031	3.8270%	120	118	0	No	0.000000%	0.002500%	0.002500%
5	MSMCH	Bella Terra	$52,250,000	5472 West Grand Parkway South	Richmond	TX	11/12/2021	12/1/2031	3.4800%	120	120	0	No	0.012500%	0.000000%	0.002500%
6	WFB	Storquest - Richmond, CA	$34,000,000	321 Canal Boulevard	Richmond	CA	11/24/2021	12/11/2031	3.6660%	120	120	0	No	0.002500%	0.000000%	0.002500%
7	MSMCH	153 Kearny Street	$30,000,000	153 Kearny Street	San Francisco	CA	11/16/2021	12/1/2031	2.8700%	120	120	0	No	0.002500%	0.000000%	0.002500%
8	MSMCH	Storage Stables Jackson	$25,000,000	3400 US Highway 89, 3945 US-89 and 670 Roice Lane	Jackson	WY	11/23/2021	12/1/2031	3.2950%	120	120	0	No	0.002500%	0.000000%	0.002500%
9	MSMCH	Twin Ridge Apartments	$20,000,000	1901 Snow Meadow Lane	Baltimore	MD	11/16/2021	12/1/2031	2.7000%	120	120	0	No	0.002500%	0.000000%	0.002500%
10	WFB	Norwood Business Park	$9,250,000	3950 Development Drive, 3951 Research Drive, 251 and 271 Opportunity Street	Sacramento	CA	11/30/2021	12/11/2031	2.8450%	120	120	0	No	0.002500%	0.000000%	0.002500%
11	WFB	Madison West Business Park	$8,750,000	3600, 3608, 3612 and 3628 Madison Avenue	North Highlands	CA	11/30/2021	12/11/2031	2.8450%	120	120	0	No	0.002500%	0.000000%	0.002500%
12.00	BANA	Oregon Self Storage Portfolio	$18,000,000	Various	Various	OR	11/2/2021	12/1/2028	3.3070%	84	84	0	No	0.002500%	0.000000%	0.002500%
12.01	BANA	Pad-N-Lock Mini Storage	$5,334,545	597 & 633 Shelley Street	Springfield	OR
12.02	BANA	All Your Treasures Mini Storage	$5,190,545	2520 West Main Street	Medford	OR
12.03	BANA	Airport Mini Storage	$4,699,636	3030 Bullock Road	Medford	OR
12.04	BANA	Skypark Mini Storage	$2,775,273	1620 & 1630 Sky Park Drive	Medford	OR
13.00	MSMCH	Skyline Mobile Home and RV Portfolio	$17,000,000	Various	Various	AZ	11/17/2021	12/1/2031	3.9700%	120	120	0	No	0.030000%	0.000000%	0.002500%
13.01	MSMCH	Black Canyon Ranch	$3,969,414	33900 Old Black Canyon Highway	Black Canyon City	AZ
13.02	MSMCH	Blue Sky RV Resort	$3,595,300	10247 South Frontage Road	Yuma	AZ
13.03	MSMCH	Black Rock RV Park	$3,011,936	46751 East Highway 60	Salome	AZ
13.04	MSMCH	Holiday Palms RV Resort	$2,460,276	355 West Main Street	Quartzsite	AZ
13.05	MSMCH	Mountain View RV Park	$1,204,775	99 West Vista Lane	Huachuca City	AZ
13.06	MSMCH	Goldwater Estates	$1,096,978	2837 West 1st Street	Yuma	AZ
13.07	MSMCH	Garden Oasis Estates	$894,069	669 South Clifford Way	Yuma	AZ
13.08	MSMCH	Sun Country Estates RV	$767,252	10321 Fresno Street	Wellton	AZ
14	NCB	Forest Hills South Owners, Inc.	$16,900,000	77-15 113th Street, 77-02 113th Street, 77-14 113th Street, 77-34 113th Street, 76-35 113th Street, 77-35 113th Street, 76-36 113th Street and 112-50 78th Avenue	Forest Hills	NY	11/18/2021	12/1/2031	2.8500%	120	120	360	No	0.000000%	0.000000%	0.080000%
15	MSMCH	JCI Sanford	$13,303,500	101 McNeill Road	Sanford	NC	11/17/2021	7/1/2031	2.9550%	115	115	0	Yes	0.002500%	0.000000%	0.002500%
16	MSMCH	Wilmington Ohio Industrial Park	$11,500,000	3268 and 3336 Progress Way	Wilmington	OH	11/18/2021	12/5/2031	3.3400%	120	120	0	No	0.002500%	0.000000%	0.002500%
17	WFB	The Plaza Retail Center	$10,000,000	3480 Financial Center Way	Buford	GA	10/6/2021	10/11/2031	3.5300%	120	118	0	No	0.040000%	0.000000%	0.002500%
18	MSMCH	2720 North Clark	$9,950,000	2720-2722 North Clark Street	Chicago	IL	11/1/2021	11/1/2031	3.6950%	120	119	0	No	0.002500%	0.000000%	0.002500%
19	WFB	The Meadows	$9,500,000	31355 Oak Crest Drive and 4333 Park Terrace Drive	Westlake Village	CA	11/4/2021	11/11/2026	3.5840%	60	59	0	No	0.002500%	0.000000%	0.002500%
20.00	BANA	Red Hill Self Storage Portfolio	$9,000,000	Various	Various	PA	11/12/2021	12/1/2031	3.3600%	120	120	0	No	0.002500%	0.000000%	0.002500%
20.01	BANA	Hilltop Self Storage	$7,567,055	2650 Carlisle Pike	New Oxford	PA
20.02	BANA	Littlestown Self Storage	$1,432,946	4835 Baltimore Pike	Littlestown	PA
21	BANA	Capo Surf Center	$8,600,000	34700 Pacific Coast Highway	Dana Point	CA	10/29/2021	11/1/2031	3.1510%	120	119	0	No	0.002500%	0.000000%	0.002500%
22	BANA	Guardian Self Storage – Frederick, CO	$8,150,000	9051 Bruin Boulevard	Frederick	CO	11/18/2021	12/1/2031	3.9400%	120	120	0	No	0.002500%	0.000000%	0.002500%
23.00	MSMCH	871 Longwood Avenue 280-284 Lenox Avenue	$8,000,000	Various	Various	NY	10/28/2021	11/1/2031	3.0000%	120	119	0	No	0.002500%	0.000000%	0.002500%
23.01	MSMCH	280-284 Lenox Avenue	$6,294,416	280-284 Malcolm X Boulevard	New York	NY
23.02	MSMCH	871 Longwood Avenue	$1,705,584	871 Longwood Avenue	Bronx	NY
24	BANA	71 Fuller Road	$7,920,000	71-95 Fuller Road	Albany	NY	11/17/2021	12/1/2031	3.2350%	120	120	0	No	0.002500%	0.000000%	0.002500%
25	BANA	112 Greene Street	$7,800,000	112 Greene Street	New York	NY	11/12/2021	12/1/2031	3.5900%	120	120	0	No	0.002500%	0.000000%	0.002500%
26.00	BANA	Mississippi Self Storage Portfolio	$7,120,000	Various	Various	MS	11/30/2021	12/1/2031	3.7150%	120	120	360	No	0.002500%	0.000000%	0.002500%
26.01	BANA	Mini Storage - North	$4,814,964	3307 Highway 11 North	Picayune	MS
26.02	BANA	Mini Storage – Carriere	$1,417,170	7174 Highway 11 North	Carriere	MS
26.03	BANA	Mini Storage – South	$529,305	1309 US Highway 11	Picayune	MS
26.04	BANA	Mini-Storage - Union	$358,561	1288 West Union Road	Picayune	MS
27	BANA	Raymour & Flanigan Quakertown Warehouse	$7,100,000	125 Penn Am Drive	Quakertown	PA	11/4/2021	12/1/2031	3.2490%	120	120	0	No	0.002500%	0.000000%	0.002500%
28	MSMCH	NWA Storage	$6,500,000	260 Commerce Parkway	Lowell	AR	11/10/2021	12/1/2031	3.0400%	120	120	0	No	0.002500%	0.000000%	0.002500%
29	MSMCH	Anchor Bay RV Storage	$6,400,000	2750 West Shady Shores Road	Corinth	TX	11/30/2021	12/1/2031	4.1150%	120	120	0	No	0.002500%	0.000000%	0.002500%
30	MSMCH	StorIt Self Storage	$6,310,000	6701 Gulfway Drive	Groves	TX	11/23/2021	12/1/2031	4.1500%	120	120	360	No	0.002500%	0.000000%	0.002500%
31	NCB	Tova Realty Corp.	$6,250,000	42-22 Ketcham Street	Elmhurst	NY	11/19/2021	12/1/2031	2.9200%	120	120	360	No	0.000000%	0.000000%	0.080000%
32	MSMCH	JCI El Paso	$6,100,000	12504 Weaver Road	Horizon City	TX	11/17/2021	12/1/2031	3.1550%	120	120	0	Yes	0.002500%	0.000000%	0.002500%
33.00	BANA	Fenton Self Storage Portfolio	$6,000,000	Various	Fenton	MI	11/4/2021	12/1/2031	3.8450%	120	120	360	No	0.002500%	0.000000%	0.002500%
33.01	BANA	Citizen Storage – Fenton South	$4,273,084	3144 Copper Avenue	Fenton	MI
33.02	BANA	Citizen Storage – Fenton North (Satellite)	$1,726,916	1159 North Leroy Street	Fenton	MI
34	WFB	Layton Crossing	$5,990,607	730, 750, 820, and 842 North Main Street	Layton	UT	10/20/2021	11/11/2031	3.5300%	120	119	360	No	0.002500%	0.000000%	0.002500%
35	MSMCH	Spring Realty Multifamily Portfolio	$5,750,000	171 & 173 Elizabeth Street and 14 Spring Street	New York	NY	11/22/2021	12/1/2031	3.7500%	120	120	0	No	0.002500%	0.000000%	0.002500%
36	NCB	Park East Apartments, Inc.	$5,150,000	233 East 86th Street	New York	NY	11/23/2021	12/1/2031	2.8500%	120	120	0	No	0.000000%	0.000000%	0.080000%
37	NCB	Regency Park Owners Corp.	$4,700,000	25 Lake Street	White Plains	NY	11/19/2021	12/1/2031	3.0400%	120	120	360	No	0.000000%	0.000000%	0.080000%
38	WFB	Handy Self Storage	$4,660,000	1500 Washington Boulevard	Montebello	CA	11/30/2021	12/11/2031	4.0420%	120	120	0	No	0.080000%	0.000000%	0.002500%
39.00	WFB	UNICO VI - Dollar General Portfolio	$4,050,000	Various	Various	Various	10/26/2021	11/11/2031	4.6550%	120	119	0	No	0.002500%	0.000000%	0.002500%
39.01	WFB	Dollar General - Carson, WA	$1,534,950	1241 Metzger Road	Carson	WA
39.02	WFB	Dollar General - Rome, GA	$1,283,850	1790 Redmond Circle Northwest	Rome	GA
39.03	WFB	Dollar General - Monahans, TX	$1,231,200	600-602 West Sealy Avenue	Monahans	TX
40	BANA	Coolidge Hill Road Apartments	$4,010,000	39-47 Coolidge Hill Road	Watertown	MA	11/19/2021	12/1/2031	3.7680%	120	120	0	No	0.002500%	0.000000%	0.002500%
41	MSMCH	Highlands Professional Plaza	$3,760,000	451 Duvall Avenue Northeast	Renton	WA	11/5/2021	12/1/2031	3.6600%	120	120	0	No	0.002500%	0.000000%	0.002500%
42	WFB	Cubesmart - Elyria OH	$3,637,500	821 Cleveland Street	Elyria	OH	11/18/2021	12/11/2031	3.6400%	120	120	360	No	0.002500%	0.000000%	0.002500%
43.00	WFB	Cheyenne West and Donovan Business Parks	$3,500,000	Various	North Las Vegas	NV	11/15/2021	12/11/2031	3.5940%	120	120	0	No	0.080000%	0.000000%	0.002500%
43.01	WFB	Donovan Business Park	$2,100,000	4550 and 4560 Donovan Way	North Las Vegas	NV
43.02	WFB	Cheyenne West	$1,400,000	2475 West Cheyenne Avenue	North Las Vegas	NV
44	NCB	Lincoln Gardens Owners, Inc.	$3,496,230	144-40, 144-44, 144-46 & 144-50 38th Avenue	Flushing	NY	10/27/2021	11/1/2031	3.0100%	120	119	480	No	0.000000%	0.000000%	0.080000%
45	NCB	1136 Tenants' Corporation	$3,000,000	1136 Fifth Avenue	New York	NY	11/18/2021	12/1/2031	3.0600%	120	120	360	No	0.000000%	0.000000%	0.080000%
46	MSMCH	All Around Storage	$2,800,000	2650 South City Lake Road	Fayetteville	AR	11/29/2021	12/1/2026	5.2500%	60	60	0	No	0.072500%	0.000000%	0.002500%
47	BANA	South Whitney Multifamily Portfolio	$2,700,000	150-154 South Whitney Street, 149-151 Sisson Avenue, 28-30 Kibbe Street and 63-65 Evergreen Avenue	Hartford	CT	11/24/2021	12/1/2031	3.6500%	120	120	0	No	0.002500%	0.000000%	0.002500%
48	NCB	East Hampton Mews Tenants Corp.	$2,600,000	514 Pantigo Road a/k/a 514 Montauk Highway	East Hampton	NY	11/19/2021	12/1/2031	3.0900%	120	120	0	No	0.000000%	0.000000%	0.080000%
49	NCB	86-10 Owners Corp.	$2,497,351	86-10 109th Street	Richmond Hill	NY	10/29/2021	11/1/2031	3.0800%	120	119	480	No	0.000000%	0.000000%	0.080000%
50	NCB	Vermont Owners Corp.	$2,497,300	99-41 64th Avenue	Rego Park	NY	10/27/2021	11/1/2031	3.0000%	120	119	480	No	0.000000%	0.000000%	0.080000%

BANK 2021-BNK38

Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
51	NCB	Tanglewood Gardens Owners Corp.	$2,300,000	101 North Broadway and 260 Church Street	White Plains	NY	11/1/2021	11/1/2031	3.1200%	120	119	0	No	0.000000%	0.000000%	0.080000%
52	MSMCH	Affordable Storage - Concord NC	$2,275,000	345 Wilshire Avenue	Concord	NC	11/4/2021	12/1/2031	4.2700%	120	120	0	No	0.002500%	0.000000%	0.002500%
53	NCB	67 Owners Ltd.	$2,100,000	67 Park Avenue	New York	NY	11/19/2021	12/1/2031	3.0200%	120	120	360	No	0.000000%	0.000000%	0.080000%
54	NCB	55 East 66th Street Corporation	$2,000,000	53/55 East 66th Street	New York	NY	11/19/2021	12/1/2031	2.9900%	120	120	0	No	0.000000%	0.000000%	0.080000%
55	BANA	Able Self Storage – Pearland, TX	$2,000,000	17215 Pearland Sites Road	Pearland	TX	11/23/2021	12/1/2031	4.4300%	120	120	0	No	0.002500%	0.000000%	0.002500%
56	BANA	Texas Bear Creek Self Storage – New Braunfels, TX	$2,000,000	1936 Farm to Market 2722	New Braunfels	TX	11/23/2021	12/1/2031	4.1200%	120	120	0	No	0.002500%	0.000000%	0.002500%
57	NCB	196-23rd Street, Jackson Heights, Inc.	$1,816,962	34-05 80th Street	Jackson Heights	NY	10/27/2021	11/1/2031	3.1600%	120	119	360	No	0.000000%	0.000000%	0.080000%
58	NCB	76 Remsen Street, Inc.	$1,747,048	76-78 Remsen Street a/k/a 9-11 Grace Court Alley	Brooklyn	NY	10/28/2021	11/1/2031	3.1000%	120	119	360	No	0.000000%	0.000000%	0.080000%
59	NCB	510 West 123rd Street Owners Corp.	$1,600,000	510 West 123rd Street	New York	NY	11/29/2021	12/1/2031	3.1100%	120	120	240	No	0.000000%	0.000000%	0.080000%
60	NCB	4-10 Bogardus Corp.	$1,600,000	4-10 Bogardus Place	New York	NY	11/19/2021	12/1/2031	3.1800%	120	120	360	No	0.000000%	0.000000%	0.080000%
61	NCB	21-23 Bleecker Street Owners Corp.	$1,500,000	21-23 Bleecker Street	New York	NY	10/29/2021	11/1/2031	3.3600%	120	119	0	No	0.000000%	0.000000%	0.080000%
62	NCB	Broad Hollow Owners, Inc.	$1,422,666	700 Broadway	Amityville	NY	10/29/2021	11/1/2031	3.2700%	120	119	360	No	0.000000%	0.000000%	0.080000%
63	NCB	Baldwin Pointe Owners Corp.	$1,200,000	715 Prospect Street and 714 School Street	Baldwin	NY	10/29/2021	11/1/2031	3.2400%	120	119	0	No	0.000000%	0.000000%	0.080000%
64	NCB	77 East Owners Corp.	$1,000,000	77 Eastern Parkway	Brooklyn	NY	11/10/2021	12/1/2031	3.1600%	120	120	360	No	0.000000%	0.000000%	0.080000%
65	NCB	Rue Blanc Corp.	$1,000,000	44 White Street	New York	NY	11/15/2021	12/1/2031	3.2500%	120	120	480	No	0.000000%	0.000000%	0.080000%

EXHIBIT C

 

FORM OF INVESTMENT REPRESENTATION LETTER

 

Computershare Trust Company, National Association 

as Certificate Registrar, 

600 South 4th Street, 7th Floor 

Minneapolis, Minnesota 55415 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38 

[OR OTHER CERTIFICATE REGISTRAR]

 

Morgan Stanley Capital I Inc.  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

 

Morgan Stanley Capital I Inc.  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

Re: Transfer of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

Ladies and Gentlemen:

 

This letter is delivered pursuant to Section 5.03 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 in connection with the transfer by _________________ (the “Seller”) to the undersigned (the “Purchaser”) of $_______________ aggregate [Certificate Balance][Notional Amount][__% Percentage Interest] of Class ___ Certificates (the “Certificates”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

 

Exhibit C-1

 

 

In connection with such transfer, the Purchaser hereby represents and warrants to you and the addressees hereof as follows:

 

1.       Check one of the following:^*

 

☐ The Purchaser is not purchasing a Class R Certificate and the Purchaser is an institution that is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D (“Regulation D”) under the Securities Act of 1933, as amended (the “Securities Act”) or any entity in which all of the equity owners are “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D (each, an “Institutional Accredited Investor”) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Certificates, and the Purchaser and any accounts for which it is acting are each able to bear the economic risk of the Purchaser’s or such account’s investment. The Purchaser is acquiring the Certificates purchased by it for its own account or for one or more accounts, each of which is an Institutional Accredited Investor, as to each of which the Purchaser exercises sole investment discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs incurred by it in connection with this transfer.

 

☐ The Purchaser is a “qualified institutional buyer” (a “QIB”) within the meaning of Rule 144A (“Rule 144A”) under the Securities Act. The Purchaser is aware that the transfer is being made in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the information required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.

 

2.       The Purchaser’s intention is to acquire the Certificates (a) for investment for the Purchaser’s own account or (b) for reoffer, resale, pledge or other transfer (i) to QIBs in transactions under Rule 144A, and not in any event with the view to, or for resale in connection with, any distribution thereof, or (ii) (other than with respect to a Class R Certificate) to Institutional Accredited Investors, subject in the case of clause (ii) above to (w) the receipt by the Certificate Registrar of a letter substantially in the form hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel acceptable to the Trustee and Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act, (y) the receipt by the Certificate Registrar of such other evidence acceptable to the Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act and other applicable laws and (z) a written undertaking to reimburse the Trust for any costs incurred by it in connection with the proposed transfer. The Purchaser understands that the Certificates (and any subsequent Certificates) have not been registered under the Securities Act, by reason of a specified exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the Purchaser’s investment intent (or intent to reoffer, resell, pledge or transfer the Certificates only to certain investors in certain exempted transactions) as expressed herein.

 

3.       The Purchaser has reviewed the Preliminary Prospectus and the Final Prospectus relating to the Offered Certificates (collectively, the “Prospectus”) (and, with respect

 

 

 

* Purchaser must select one of the following two certifications.

 

Exhibit C-2

 

 

to Offered Private Certificates, the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum related to such Offered Private Certificates) and the agreements and other materials referred to therein and has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by the Prospectus.

 

4.       The Purchaser acknowledges that the Certificates (and any Certificates issued on transfer or exchange thereof) have not been registered or qualified under the Securities Act or the securities laws of any State or any other jurisdiction, and that the Certificates cannot be reoffered, resold, pledged or otherwise transferred unless it is registered or qualified thereunder or unless an exemption from such registration or qualification is available.

 

5.       The Purchaser hereby undertakes to be bound by the terms and conditions of the Pooling and Servicing Agreement in its capacity as an owner of a Certificate or Certificates, as the case may be (each, a “Certificateholder”), in all respects as if it were a signatory thereto. This undertaking is made for the benefit of the Trust, the Certificate Registrar and all Certificateholders present and future.

 

6.       The Purchaser will not sell or otherwise transfer any portion of the Certificate or Certificates, except in compliance with Section 5.03 of the Pooling and Servicing Agreement.

 

7.       Check one of the following:^**

 

☐ The Purchaser is a U.S. Tax Person (as defined below) and it has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).

 

☐ The Purchaser is not a U.S. Tax Person and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Registrar (or its agent) with respect to distributions to be made on the Certificates. The Purchaser has attached hereto [(i) a duly executed IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form, as applicable), which identifies such Purchaser as the beneficial owner of the Certificates and states that such Purchaser is not a U.S. Tax Person, (ii) IRS Form W-8IMY (with all appropriate attachments) or (iii)]^*** two duly executed copies of IRS Form W-8ECI (or successor form), which identify such Purchaser as the beneficial owner of the Certificates and state that interest and original issue discount on the Certificates and Permitted Investments is, or is expected to be, effectively connected with a U.S. trade or business. The Purchaser agrees to provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any applicable successor IRS forms, or such other certifications as the Certificate Registrar may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Registrar.

 

 

 

^** Each Purchaser must include one of the two alternative certifications.

 

^*** Does not apply to a transfer of Class R Certificates.

 

Exhibit C-3

 

 

For purposes of this paragraph 7, “U.S. Tax Person” means a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States federal income tax regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Tax Persons).

 

8. Please make all payments due on the Certificates:^****

 

  ☐ (a) by wire transfer pursuant to wire instructions provided by the Purchaser.

 

  ☐ (b) by mailing a check or draft to the following address:

 

 

9.            If the Purchaser is purchasing a Class R Certificate, the Purchaser is not a partnership (including any entity treated as a partnership for U.S. federal income tax purposes), any interest in which is owned, directly or indirectly, through one or more partnerships, trusts or other pass-through entities by a Disqualified Non-U.S. Tax Person.

 

	Very truly yours,
	[The Purchaser]

 

	By:
		Name:
		Title:

 

Dated:

 

 

 

^**** Only to be filled out by Purchasers of Definitive Certificates. Please select (a) or (b). For holders of the Definitive Certificates, wire transfers are only available if such holder’s Definitive Certificates have an aggregate Certificate Balance or Notional Amount, as applicable, of at least U.S. $5,000,000.

 

Exhibit C-4

 

 

EXHIBIT D-1

 

Form of Transferee Affidavit FOR TRANSFERS
OF CLASS R CERTIFICATES

 

[Date]

 

Computershare Trust Company, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

Minneapolis, Minnesota 55415 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38 

[OR OTHER CERTIFICATE REGISTRAR]

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of December 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

 

STATE OF		)
		)	ss.:
COUNTY OF		)

 

I, [______], under penalties of perjury, declare that, to the best of my knowledge and belief, the following representations are true, correct and complete, and being first sworn, depose and say that:

 

1.       I am a [______] of [______] (the “Purchaser”), on behalf of which I have the authority to make this affidavit.

 

2.       The Purchaser is acquiring Class R Certificates representing [__]% of the residual interest in each of the real estate mortgage investment conduits (each, a “REMIC”) designated as the (i)  “Lower-Tier REMIC” and (ii) “Upper-Tier REMIC”, respectively, relating to the Certificates for which an election is to be made under Section 860D of the Internal Revenue Code of 1986 (the “Code”).

 

3.       The Purchaser is not a “Disqualified Organization” (as defined below), and that the Purchaser is not acquiring the Class R Certificates for the account of, or as agent or nominee of, or with a view to the transfer of direct or indirect record or beneficial ownership thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified Organization is any of the following: (i) the United States, any State or political subdivision thereof, any

 

Exhibit D-1-1

 

 

possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause a Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

4.       The Purchaser acknowledges that Section 860E(e) of the Code would impose a substantial tax on the transferor or, in certain circumstances, on an agent for the transferee, with respect to any transfer of any interest in any Class R Certificates to a Disqualified Organization.

 

5.       The Purchaser is a Permitted Transferee and, to the extent applicable, the Purchaser’s U.S. taxpayer identification number is [__________].

 

6.       No purpose of the acquisition of the Class R Certificates is to impede the assessment or collection of tax.

 

7.       The Purchaser will not cause income from the Class R Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other person.

 

8.       Check the applicable paragraph:

 

☐       The present value of the anticipated tax liabilities associated with holding the Class R Certificate, as applicable, does not exceed the sum of:

 

(i)      the present value of any consideration given to the Purchaser to acquire such Class R Certificate;

 

(ii)     the present value of the expected future distributions on such Class R Certificate; and

 

(iii)    the present value of the anticipated tax savings associated with holding such Class R Certificate as the related REMIC generates losses.

 

Exhibit D-1-2

 

 

For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the highest rate currently specified in Section 11(b) of the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate specified in Section 11(b) of the Code if the Purchaser has been subject to the alternative minimum tax under Section 55 of the Code in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Purchaser.

 

☐     The transfer of the Class R Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,

 

(i)      the Purchaser is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Class R Certificate will only be taxed in the United States;

 

(ii)     at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;

 

(iii)    the Purchaser will transfer the Class R Certificate only to another “eligible corporation,” as defined in Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Treasury Regulations Section 1.860E-1(c)(5); and

 

(iv)    the Purchaser determined the consideration paid to it to acquire the Class R Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.

 

☐     None of the above.

 

9.       The Purchaser historically has paid its debts as they have come due and intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Class R Certificates as they become due.

 

10.     The Purchaser understands that it may incur tax liabilities with respect to the Class R Certificate in excess of any cash flows generated by such Certificate.

 

11.     The Purchaser is aware that the Certificate Registrar will not register any transfer of a Class R Certificate by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.

 

Exhibit D-1-3

 

 

12.     The Purchaser represents that it is not acquiring the Class R Certificate as a nominee, trustee or agent for any person that is not a Permitted Transferee and that for so long as it retains its interest in the Class R Certificate, it will endeavor to remain a Permitted Transferee.

 

13.     The Purchaser consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Class R Certificate will only be owned, directly or indirectly, by a Permitted Transferee.

 

14.     The Purchaser has reviewed the provisions of Section 5.03 of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Class R Certificates; and the Purchaser expressly agrees to be bound by and to comply with such provisions.

 

15.     The Purchaser consents to the designation of the Certificate Administrator as “partnership representative” of each Trust REMIC pursuant to Section 10.01 of the Pooling and Servicing Agreement.

 

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized officer this ___day of _________, 20__.

 

	By:
		Name:
		Title:
	By:
		Name:
		Title:

 

Exhibit D-1-4

 

 

On this ____ day of _______20__, before me, the undersigned, a Notary Public in and for the State of _______________, duly commissioned and sworn, personally appeared ______________________ and ________________________, known or proved to me to be the same persons who executed the foregoing instrument and to be _____________________________ and ___________________________, respectively, of the Purchaser, and acknowledged to me that they executed the same as their respective free acts and deeds and as the free act and deed of the Purchaser.

 

	NOTARY PUBLIC in and for the State of _______________

 

[SEAL]
My Commission expires:

 

Exhibit D-1-5

 

 

EXHIBIT D-2

 

FORM OF TRANSFEROR LETTER FOR TRANSFERS
OF CLASS R CERTIFICATES

 

[Date]

 

Computershare Trust Company, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

Minneapolis, Minnesota 55415 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38 

[OR OTHER CERTIFICATE REGISTRAR]

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”)

 

Ladies and Gentlemen:

 

This letter is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of Class R Certificates evidencing a [__]% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:

 

(1)       No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.

 

(2)       The Transferor understands that the Transferee has delivered to you a Transferee Affidavit in the form attached to the Pooling and Servicing Agreement as Exhibit D-1. The Transferor does not know or believe that any representation contained therein is false.

 

(3)       The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in the future. The Transferor understands that the transfer of the Residual Certificates may not be

 

Exhibit D-2-1

 

 

respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.

 

	Very truly yours,
	(Transferor)
	By:
		Name:
		Title:

 

Exhibit D-2-2

 

 

EXHIBIT D-3

 

Form of Transferee CERTIFICATE FOR TRANSFERS
OF RR Interest

 

[Date]

 

Computershare Trust Company, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

Minneapolis, Minnesota 55415 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38 

[OR OTHER CERTIFICATE REGISTRAR]

 

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

 

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

Morgan Stanley Capital I Inc. 

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

 

Morgan Stanley Capital I Inc. 

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

Exhibit D-3-1

 

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of December 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

 

[_____] (the “Purchaser”) hereby certifies, represents and warrants to you, as Certificate Registrar and as “retaining sponsor” as such term is defined in Regulation RR, that:

 

1. The Purchaser is acquiring $[_____] Certificate Balance of the RR Interest from [_____] (the “Transferor”).

 

2. The Purchaser is aware that the Certificate Registrar will not register any transfer of an RR Interest by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, a certificate in substantially the same form as this certificate. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such certificate is false.

 

3. If the Purchaser is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the acquisition of the RR Interest will be effected through Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc., Drexel Hamilton, LLC or an affiliate thereof.

 

4. Check one of the following:

 

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Purchaser certifies, represents and warrants to you, as Certificate Registrar, that:

 

A. It is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

 

B. It is not acquiring the RR Interest as a nominee, trustee or agent for any person that is not a Majority-Owned Affiliate, and that for so long as it retains its interest in the RR Interest, it will remain a Majority-Owned Affiliate.

 

C. It will be bound by the U.S. Credit Risk Retention Agreement, between Morgan Stanley Mortgage Capital Holdings LLC, Morgan Stanley Bank, N.A., Bank of America, National Association, Wells Fargo Bank, National Association and

 

Exhibit D-3-2

 

 

    National Cooperative Bank, N.A., dated and effective as of December 22, 2021 (the “Credit Risk Retention Agreement”) as if it were a party to such agreement.

 

D. It hereby makes each representation set forth in Section 4(b) of the Credit Risk Retention Agreement.

 

E. It consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that its ownership of the RR Interest will satisfy the risk retention requirements of the Transferor, in its capacity as [sponsor][originator] under Regulation RR.

 

☐       The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

 

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

 

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

 

	By:
		Name:
		Title:

 

	By:
		Name:
		Title:

 

Exhibit D-3-3

 

 

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

 

[RETAINING SPONSOR]

 

By:
	Name:
	Title:

 

[Medallion Stamp Guarantee]

 

Exhibit D-3-4

 

 

EXHIBIT D-4

 

FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF RR INTEREST

 

[Date]

 

Computershare Trust Company, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

Minneapolis, Minnesota 55415 

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38 

[OR OTHER CERTIFICATE REGISTRAR]

 

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

 

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

[EACH OTHER HOLDER OF AN RR INTEREST]

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”)

 

Ladies and Gentlemen:

 

This is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of RR Interest evidencing $[____] Certificate Balance in such Class. The Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used

 

Exhibit D-4-1

 

 

but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you that:

 

1. The transfer is in compliance with the Pooling and Servicing Agreement.

 

2. If the Transferee is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the acquisition of the RR Interest will be effected through Morgan Stanley & Co. LLC, BofA Securities, Inc., Wells Fargo Securities, LLC, Academy Securities, Inc., Drexel Hamilton, LLC or an affiliate thereof.

 

3. Check one of the following:

 

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Transferor certifies, represents and warrants to you that:

 

A. The transfer is in compliance with the U.S. Credit Risk Retention Agreement, between Morgan Stanley Mortgage Capital Holdings LLC, Morgan Stanley Bank, N.A., Bank of America, National Association, Wells Fargo Bank, National Association and National Cooperative Bank, N.A., dated and effective as of December 22, 2021 (the “Credit Risk Retention Agreement”).

 

B. The Transferee is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor.

 

C. The Transferee has complied in all material respects with all of the covenants in the Credit Risk Retention Agreement during the period from the date of the Credit Risk Retention Agreement through and including the date of this transfer.

 

D. All of the representations and warranties made by the Transferor in the Credit Risk Retention Agreement are true and correct as of the date of the transfer.

 

E. All of the requirements set forth in Section 3(c) of the Credit Risk Retention Agreement have been complied with through and including the date of the transfer.

 

☐       The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

 

4. The Transferor understands that the Transferee has delivered to you a Transferee Certificate in the form attached to the Pooling and Servicing Agreement as Exhibit D-3. The Transferor does not know or believe that any representation contained therein is false.

 

IN WITNESS WHEREOF, the Transferor has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

 

Exhibit D-4-2

 

 

		[TRANSFEROR]
	By:
		Name:
		Title:

   

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

 

[RETAINING SPONSOR]

 

By:
	Name:
	Title:

   

[Medallion Stamp Guarantee]

 

Exhibit D-4-3

 

 

EXHIBIT E

 

FORM OF REQUEST FOR RELEASE
(for Custodian)

 

Loan Information
	Name of Mortgagor:
	[[General][NCB] Master Servicer]
	[[General][NCB] Special Servicer] Loan No.:
Custodian
	Name:	Computershare Trust Company, National Association
	Address:	1055 10th Ave SE Minneapolis, Minnesota 55414 Attention: Document Custody Group BANK 2021-BNK38
	Custodian/Trustee Mortgage File No.:
Depositor
	Name:	Morgan Stanley Capital I Inc.
	Address:	1585 Broadway New York, New York 10036 Attention: Jane Lam   with a copy to   Morgan Stanley Capital I Inc. 1633 Broadway, 29th Floor New York, New York 10019 Attention: Legal Compliance Division   and cmbs_notices@morganstanley.com
	Certificates:	BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

Exhibit E-1

 

  

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby requests delivery from Computershare Trust Company, National Association, as custodian (the “Custodian”) on behalf of Wilmington Trust, National Association, as trustee (the “Trustee”), for the Holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, the documents referred to below (the “Documents”). All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Pooling and Servicing Agreement dated as of December 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer (the “Pooling and Servicing Agreement”).

 

	( )
	( )
	( )
	( )

 

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby acknowledges and agrees as follows:

 

(1)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall hold and retain possession of the Documents in trust for the benefit of the Trustee, solely for the purposes provided in the Pooling and Servicing Agreement.

 

(2)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claims, liens, security interests, charges, writs of attachment or other impositions nor shall the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof except as otherwise provided in the Pooling and Servicing Agreement.

 

(3)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall return the Documents to the Custodian when the need therefor no longer exists, unless the Mortgage Loans have been liquidated or the Mortgage Loans have been paid in full and the proceeds thereof have been remitted to the Collection Account except as expressly provided in the Pooling and Servicing Agreement.

 

(4)       The Documents and any proceeds thereof, including proceeds of proceeds, coming into the possession or control of the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall at all times be earmarked for the account of the Trustee, and the

 

Exhibit E-2

 

 

[[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall keep the Documents separate and distinct from all other property in the [[General][NCB] Master Servicer’s] [[General][NCB] Special Servicer’s] possession, custody or control.

 

	[____________]
	By:
		Name:
		Title:

 

Date: _________

 

Exhibit E-3

 

 

EXHIBIT F-1

 

FORM OF ERISA REPRESENTATION
LETTER REGARDING ERISA RESTRICTED CERTIFICATES

 

Computershare Trust Company, National Association,
600 South 4th Street, 7th Floor
Minneapolis, Minnesota 55415

Attention: Corporate Trust Services – BANK 2021-BNK38

[OR OTHER CERTIFICATE REGISTRAR]

 

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention: Jane Lam

 

Morgan Stanley Capital I Inc. 

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

Re: Transfer of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

Ladies and Gentlemen:

 

The undersigned (the “Purchaser”) proposes to purchase US$[___] aggregate initial [Notional Amount][Certificate Balance] in the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, [Class [X-F][X-G][X-H][X-J][F][G][H][J] Certificates][RR Interest] issued pursuant to that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

 

Exhibit F-1-1

 

 

In connection with such transfer, the undersigned hereby represents and warrants to you as follows:

 

1.       The Purchaser is not and will not be (a) an employee benefit plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) for which no election has been made under Section 410(d) of the Code, or any other plan subject to any federal, state or local law (“Similar Law”) which is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each a “Plan”) or (b) a person acting on behalf of (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of any such Plan, other than an insurance company using the assets of its “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60) under circumstances whereby the purchase and holding of Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of PTCE 95-60 (or a Plan subject to Similar Law purchasing under circumstances that would not constitute or result in a non-exempt violation of applicable Similar Law).

 

2.       The Purchaser understands that if the Purchaser is or becomes a Person referred to in 1(a) or (b) above, such Purchaser is required to provide to the Trustee and Certificate Administrator an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a “prohibited transaction” within the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, any Master Servicer, any Special Servicer, any sub-servicer, the Initial Purchasers, the Underwriters, the Asset Representations Reviewer, the Operating Advisor or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Pooling and Servicing Agreement, which Opinion of Counsel shall not be at the expense of the Depositor, any Master Servicer, any Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Initial Purchasers, the Underwriters or the Trust.

 

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____________, 20__.

 

	Very truly yours,
	[The Purchaser]
	By:
		Name:
		Title:

Date: _________

 

Exhibit F-1-2

 

 

EXHIBIT F-2

 

Form of ERISA Representation Letter
regarding CLASS V AND CLASS R CERTIFICATES

 

[Date]

 

Computershare Trust Company, National Association,
as Certificate Administrator

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services – BANK 2021-BNK38

[OR OTHER CERTIFICATE REGISTRAR]

 

[Transferor]

[______]

[______]

Attention: [______]

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

Ladies and Gentlemen:

 

The undersigned (the “Purchaser”) proposes to purchase [__]% Percentage Interest in the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, [Class V][Class R] Certificates (the “[Class V][Class R] Certificate”) issued pursuant to that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

 

In connection with such transfer, the undersigned hereby represents and warrants to you that, with respect to the [Class R][Class V] Certificate, the Purchaser is not and will not become (a) an employee benefit plan or other plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (each, a “Plan”), or (b) any person acting on behalf of any such Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by

 

Exhibit F-2-1

 

 

Section 3(42) of ERISA) or using the assets of a Plan to purchase such [Class V][Class R] Certificate.

 

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____, 20__.

 

	Very truly yours,
	[The Purchaser]
	By:
		Name:
		Title:

Date: _______

 

Exhibit F-2-2

 

 

EXHIBIT G

 

FORM OF DISTRIBUTION DATE STATEMENT

 

 

Exhibit G-1

 

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Table of Contents
Section	Pages
Certificate Distribution Detail	2-3
Certificate Factor Detail	4
Certificate Interest Reconciliation Detail	5
Exchangeable Certificate Detail	6
Exchangeable Certificate Factor Detail	7
Additional Information	8
Bond / Collateral Reconciliation - Cash Flows	9
Bond / Collateral Reconciliation - Balances	10
Current Mortgage Loan and Property Stratification	11-15
Mortgage Loan Detail (Part 1)	16
Mortgage Loan Detail (Part 2)	17
Principal Prepayment Detail	18
Historical Detail	19
Delinquency Loan Detail	20
Collateral Stratification and Historical Detail	21
Specially Serviced Loan Detail - Part 1	22
Specially Serviced Loan Detail - Part 2	23
Modified Loan Detail	24
Historical Liquidated Loan Detail	25
Historical Bond / Collateral Loss Reconciliation Detail	26
Interest Shortfall Detail - Collateral Level	27
Supplemental Notes	28

Contacts
Role	Party and Contact Information
Depositor	Morgan Stanley Capital I Inc.
	Jane Lam	(212) 761-4000	cmbs_notices@morganstanley.com
	1585 Broadway | New York, NY 10036
Certificate Administrator	Computershare Trust Company, N.A.
	Corporate Trust Services (CMBS)		cts.cmbs.bond.admin@wellsfargo.com; trustadministrationgroup@wellsfargo.com
	9062 Old Annapolis Road | Columbia, MD 21045
Master Servicer	Wells Fargo Bank, National Association
	Commercial Servicing		commercial.servicing@wellsfargo.com
	Three Wells Fargo, MAC D1050-084, 401 S. Tryon Street, 8th Floor | Charlotte, NC 28202
NCB Master Servicer	National Cooperative Bank, N.A.
	Kathleen Luzik, Chief Operating Officer		kluzik@ncb.coop
	2011 Crystal Drive, Suite 800 | Arlington, VA 22202
Special Servicer	Midland Loan Services, a Division of PNC Bank, National Association
	Executive Vice President – Division Head		NoticeAdmin@midlandls.com
	10851 Mastin Street, Building 82, Suite 300 | Overland Park, KS 66210
Operating Advisor & Asset Representations Reviewer	Pentalpha Surveillance LLC
	Don Simon	(203) 660-6100
	375 North French Road, Suite 100 | Amherst, NY 14228
Trustee	Wilmington Trust, National Association
	CMBS Trustee	(302) 636-4140
	1100 North Market Street | Wilmington, DE 19890

This report is compiled by Computershare Trust Company, N.A. from information provided by third parties. Computershare Trust Company, N.A. has not independently confirmed the accuracy of the information.

Please visit www.ctslink.com for additional information and if applicable, any special notices and any credit risk retention notices. In addition, certificate holders may register online for email notification when special notices are posted. For information or assistance please call 866-846-4526.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 1 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Certificate Distribution Detail
Class	CUSIP	Pass-Through Rate (2)	Original Balance	Beginning Balance	Principal Distribution	Interest Distribution	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance	Current Credit Support¹	Original Credit Support¹
Regular Certificates
A-1		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-2		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-3		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-SB		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-4		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-5		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
A-S		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
B		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
C		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
D		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
E		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
F		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
G		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
H		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
J		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
V		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
R		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
RR Int		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
Regular SubTotal			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Notional Certificates
X-A		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-B		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-D		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-F		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00

Certificate Distribution Detail continued to next page

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 2 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Certificate Distribution Detail
Class	CUSIP	Pass-Through Rate (2)	Original Balance	Beginning Balance	Principal Distribution	Interest Distribution	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance	Current Credit Support¹	Original Credit Support¹
Notional Certificates
X-G		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-H		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-J		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Notional SubTotal			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Deal Distribution Total					0.00	0.00	0.00	0.00	0.00

*	Denotes the Controlling Class (if required)
(1)	Calculated by taking (A) the sum of the ending certificate balance of all classes in a series less (B) the sum of (i) the ending certificate balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate to the designated class and dividing the result by (A).
(2)	Pass-Through Rates with respect to any Class of Certificates on next month's Payment Date is expected to be the same as the current respective Pass-Through Rate, subject to any modifications on the underlying loans, any change in certificate or pool balance, any change in the underlying index (if and as applicable), and any other matters provided in the governing documents.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 3 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Certificate Factor Detail
Class	CUSIP	Beginning Balance	Principal Distribution	Interest Distribution	Interest Shortfalls / (Paybacks)	Cumulative Interest Shortfalls	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance
Regular Certificates
A-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-3		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-SB		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-4		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-5		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-S		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
D		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
E		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
F		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
G		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
H		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
J		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
V		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
R		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
RR Int		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
Notional Certificates
X-A		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-B		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-D		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-F		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-G		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-H		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
X-J		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 4 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Certificate Interest Reconciliation Detail
Class	Accrual Period	Accrual Days	Prior Cumulative Interest Shortfalls	Accrued Certificate Interest	Net Aggregate Prepayment Interest Shortfall	Distributable Certificate Interest	Interest Shortfalls / (Paybacks)	Payback of Prior Realized Losses	Additional Interest Distribution Amount	Interest Distribution	Cumulative Interest Shortfalls
A-1	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-2	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-3	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-SB	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-4	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-A	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-B	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-D	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-F	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-G	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-H	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X-J	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
D	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
E	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
F	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
G	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
H	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
J	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
RR Int	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Totals			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 5 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Exchangeable Certificate Detail
Class	CUSIP	Pass-Through Rate	Maximum Initial Balance	Beginning Balance	Principal Distribution	Interest Distribution	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance
Exchangeable Certificate Details
A-4 (Exch)		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-4-1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-4-2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-4-X1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-4-X2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5 (Exch)		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5-1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5-2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5-X1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-5-X2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S (Exch)		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S-1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S-2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S-X1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
A-S-X2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B (Exch)		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B-1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B-2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B-X1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B-X2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C (Exch)		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C-1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C-2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C-X1		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C-X2		N/A	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Exchangeable Certificates Total			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 6 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Exchangeable Certificate Factor Detail
Class	CUSIP	Beginning Balance	Principal Distribution	Interest Distribution	Interest Shortfalls / (Paybacks)	Cumulative Interest Shortfalls	Prepayment Penalties	Losses	Total Distribution	Ending Balance
Regular Interest
A-4-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-4-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-5-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-5-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-S-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-S-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C-1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C-2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
Notional Certificates
A-4-X1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-4-X2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-5-X1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-5-X2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-S-X1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
A-S-X2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B-X1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B-X2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C-X1		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C-X2		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 7 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Additional Information

Total Available Distribution Amount (1) 0.00

(1) The Available Distribution Amount includes any Prepayment Premiums.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 8 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Bond / Collateral Reconciliation - Cash Flows

Total Funds Collected

Interest
	Interest Paid or Advanced	0.00
	Interest Reductions due to Nonrecoverability Determination	0.00
	Interest Adjustments	0.00
	Deferred Interest	0.00
	ARD Interest	0.00
	Net Prepayment Interest Excess / (Shortfall)	0.00
	Extension Interest	0.00
	Interest Reserve Withdrawal	0.00
	Total Interest Collected	0.00

Principal
	Scheduled Principal	0.00
	Unscheduled Principal Collections
	Principal Prepayments	0.00
	Collection of Principal after Maturity Date	0.00
	Recoveries From Liquidations and Insurance Proceeds	0.00
	Excess of Prior Principal Amounts Paid	0.00
	Curtailments	0.00
	Negative Amortization	0.00
	Principal Adjustments	0.00
	Total Principal Collected	0.00

Other
	Prepayment Penalties / Yield Maintenance	0.00
	Gain on Sale / Excess Liquidation Proceeds	0.00
	Borrower Option Extension Fees	0.00
	Total Other Collected	0.00

Total Funds Collected 0.00

Total Funds Distributed

Fees
	Master Servicing Fee	0.00
	Certificate Administrator Fee	0.00
	Trustee Fee	0.00
	CREFC® Intellectual Property Royalty License Fee	0.00
	Operating Advisor Fee	0.00
	Asset Representations Reviewer Fee	0.00
	Total Fees	0.00

Expenses/Reimbursements
	Reimbursement for Interest on Advances	0.00
	ASER Amount	0.00
	Special Servicing Fees (Monthly)	0.00
	Special Servicing Fees (Liquidation)	0.00
	Special Servicing Fees (Work Out)	0.00
	Legal Fees	0.00
	Rating Agency Expenses	0.00
	Taxes Imposed on Trust Fund	0.00
	Non-Recoverable Advances	0.00
	Workout Delayed Reimbursement Amounts	0.00
	Other Expenses	0.00
	Total Expenses/Reimbursements	0.00

Interest Reserve Deposit 0.00

Payments to Certificateholders and Others
	Interest Distribution	0.00
	Principal Distribution	0.00
	Prepayment Penalties / Yield Maintenance	0.00
	Total Payments to Certificateholders and Others	0.00

Total Funds Distributed 0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 9 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Bond / Collateral Reconciliation - Balances

Collateral Reconciliation

		Total
Beginning Scheduled Collateral Balance	0.00	0.00
(-) Scheduled Principal Collections	0.00	0.00
(-) Unscheduled Principal Collections	0.00	0.00
(-) Principal Adjustments (Cash)	0.00	0.00
(-) Principal Adjustments (Non-Cash)	0.00	0.00
(-) Realized Losses from Collateral	0.00	0.00
(-) Other Adjustments²	0.00	0.00
Ending Scheduled Collateral Balance	0.00	0.00
Beginning Actual Collateral Balance	0.00	0.00
Ending Actual Collateral Balance	0.00	0.00

Certificate Reconciliation

		Total
Beginning Certificate Balance		0.00
(-) Principal Distributions		0.00
(-) Realized Losses		0.00
	Realized Loss and Realized Loss Adjustments on Collateral	0.00
	Current Period NRA¹	0.00
	Current Period WODRA¹	0.00
	Principal Used to Pay Interest	0.00
	Non-Cash Principal Adjustments	0.00
	Certificate Other Adjustments**	0.00
Ending Certificate Balance		0.00

NRA/WODRA Reconciliation
	Non-Recoverable Advances (NRA) from Principal	Workout Delayed Reimbursement of Advances (WODRA) from Principal
Beginning Cumulative Advances	0.00	0.00
Current Period Advances	0.00	0.00
Ending Cumulative Advances	0.00	0.00

Under / Over Collateralization Reconciliation
Beginning UC / (OC)	0.00
UC / (OC) Change	0.00
Ending UC / (OC)	0.00
Net WAC Rate	0.00%
UC / (OC) Interest	0.00

(1)	Current Period NRA and WODRA displayed will represent the portion applied as Realized Losses to the bonds.
(2)	Other Adjustments value will represent miscellaneous items that may impact the Scheduled Balance of the collateral.
**	A negative value for Certificate Other Adjustments represents the payback of prior Principal Shortfalls, if any.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 10 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Current Mortgage Loan and Property Stratification

Aggregate Pool

Scheduled Balance
Scheduled Balance	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Debt Service Coverage Ratio¹
Debt Service Coverage Ratio	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

(1)	Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In all cases the most current DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer, information from the offering document is used. The debt service coverage ratio information was provided to the Certificate Administrator by the Master Servicer and the Certificate Administrator has not independently confirmed the accuracy of such information.
(2)	Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the Anticipated Repayment Date, if applicable, and the Maturity Date.
(3)	Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut Off Date Balance of each property as disclosed in the offering document. The Scheduled Balance Totals reflect the aggregate balances of all pooled loans as reported in the CREFC Loan Periodic Update File. To the extent that the Scheduled Balance Total figure for the "State" and "Property" stratification tables is not equal to the sum of the scheduled balance figures for each state or property, the difference is explained by loans that have been modified into a split loan structure. The "State" and "Property" stratification tables do not include the balance of the subordinate note (sometimes called the B-piece or a "hope note") of a loan that has been modified into a split-loan structure. Rather, the scheduled balance for each state or property only reflects the balance of the senior note (sometimes called the A-piece) of a loan that has been modified into a split-loan structure.
(4)	Note: There are no Hyper-Amortization Loans included in the Mortgage Pool.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 11 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Current Mortgage Loan and Property Stratification

Aggregate Pool

State³
State	# Of Properties	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Property Type³
Property Type	# Of Properties	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Note: Please refer to footnotes on the next page of the report.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 12 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Current Mortgage Loan and Property Stratification

Aggregate Pool

Note Rate
Note Rate	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Seasoning
Seasoning	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

(1)	Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In all cases the most current DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer, information from the offering document is used. The debt service coverage ratio information was provided to the Certificate Administrator by the Master Servicer and the Certificate Administrator has not independently confirmed the accuracy of such information.
(2)	Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the Anticipated Repayment Date, if applicable, and the Maturity Date.
(3)	Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut Off Date Balance of each property as disclosed in the offering document. The Scheduled Balance Totals reflect the aggregate balances of all pooled loans as reported in the CREFC Loan Periodic Update File. To the extent that the Scheduled Balance Total figure for the "State" and "Property" stratification tables is not equal to the sum of the scheduled balance figures for each state or property, the difference is explained by loans that have been modified into a split loan structure. The "State" and "Property" stratification tables do not include the balance of the subordinate note (sometimes called the B-piece or a "hope note") of a loan that has been modified into a split-loan structure. Rather, the scheduled balance for each state or property only reflects the balance of the senior note (sometimes called the A-piece) of a loan that has been modified into a split-loan structure.
(4)	Note: There are no Hyper-Amortization Loans included in the Mortgage Pool.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 13 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Current Mortgage Loan and Property Stratification

Aggregate Pool

Anticipated Remaining Term (ARD and Balloon Loans)
Anticipated Remaining Term	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Remaining Amortization Term (ARD and Balloon Loans)
Remaining Amortization Term	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

(1)	Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In all cases the most current DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer, information from the offering document is used. The debt service coverage ratio information was provided to the Certificate Administrator by the Master Servicer and the Certificate Administrator has not independently confirmed the accuracy of such information.
(2)	Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the Anticipated Repayment Date, if applicable, and the Maturity Date.
(3)	Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut Off Date Balance of each property as disclosed in the offering document. The Scheduled Balance Totals reflect the aggregate balances of all pooled loans as reported in the CREFC Loan Periodic Update File. To the extent that the Scheduled Balance Total figure for the "State" and "Property" stratification tables is not equal to the sum of the scheduled balance figures for each state or property, the difference is explained by loans that have been modified into a split loan structure. The "State" and "Property" stratification tables do not include the balance of the subordinate note (sometimes called the B-piece or a "hope note") of a loan that has been modified into a split-loan structure. Rather, the scheduled balance for each state or property only reflects the balance of the senior note (sometimes called the A-piece) of a loan that has been modified into a split-loan structure.
(4)	Note: There are no Hyper-Amortization Loans included in the Mortgage Pool.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 14 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Current Mortgage Loan and Property Stratification

Aggregate Pool

Age of Most Recent NOI
Age of Most Recent NOI	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

Remaining Stated Term (Fully Amortizing Loans)
Age of Most Recent NOI	# Of Loans	Scheduled Balance	% Of Agg. Bal.	WAM²	WAC	Weighted Avg DSCR¹
Totals

(1)	Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In all cases the most current DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer, information from the offering document is used. The debt service coverage ratio information was provided to the Certificate Administrator by the Master Servicer and the Certificate Administrator has not independently confirmed the accuracy of such information.
(2)	Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the Anticipated Repayment Date, if applicable, and the Maturity Date.
(3)	Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut Off Date Balance of each property as disclosed in the offering document. The Scheduled Balance Totals reflect the aggregate balances of all pooled loans as reported in the CREFC Loan Periodic Update File. To the extent that the Scheduled Balance Total figure for the "State" and "Property" stratification tables is not equal to the sum of the scheduled balance figures for each state or property, the difference is explained by loans that have been modified into a split loan structure. The "State" and "Property" stratification tables do not include the balance of the subordinate note (sometimes called the B-piece or a "hope note") of a loan that has been modified into a split-loan structure. Rather, the scheduled balance for each state or property only reflects the balance of the senior note (sometimes called the A-piece) of a loan that has been modified into a split-loan structure.
(4)	Note: There are no Hyper-Amortization Loans included in the Mortgage Pool.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 15 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Mortgage Loan Detail (Part 1)

Pros ID

Loan ID

Loan Group

Prop Type (1)

City

State

Interest Accrual Type

Gross Rate

Scheduled Interest

Scheduled Principal

Principal Adjustments

Anticipated Repay Date

Original Maturity Date

Adjusted Maturity Date

Beginning Scheduled Balance

Ending Scheduled Balance

Paid Through Date

Totals

1 Property Type Codes
	HC - Health Care	MU - Mixed Use	WH - Warehouse	MF - Multi-Family
	SS - Self Storage	LO - Lodging	RT - Retail	SF - Single Family Rental
	98 - Other	IN - Industrial	OF - Office	MH - Mobile Home Park
	SE - Securities	CH - Cooperative Housing	ZZ - Missing Information/Undefined

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 16 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Mortgage Loan Detail (Part 2)

Pros ID

Loan Group

Most Recent Fiscal NOI

Most Recent NOI

Most Recent NOI Start Date

Most Recent NOI End Date

Appraisal Reduction Date

Appraisal Reduction Amount

Cumulative ASER

Current P&I Advances

Cumulative P&I Advances

Cumulative Servicer Advances

Current NRA/WODRA from Principal

Defease Status

Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 17 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Principal Prepayment Detail
			Unscheduled Principal		Prepayment Penalties
Pros ID	Loan Number	Loan Group	Amount	Prepayment / Liquidation Code	Prepayment Premium Amount	Yield Maintenance Amount
Totals

Note: Principal Prepayment Amount listed here may include Principal Adjustment Amounts on the loan in addition to the Unscheduled Principal Amount.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 18 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Historical Detail

Delinquencies¹

Prepayments

Rate and Maturities

30-59 Days

60-89 Days

90 Days or More

Foreclosure

REO

Modifications

Curtailments

Payoff

Next Weighted Avg.

Distribution Date

#

Balance

#

Balance

#

Balance

#

Balance

#

Balance

#

Balance

#

Amount

#

Amount

Coupon

Remit

WAM¹

(1) Foreclosure and REO Totals are included in the delinquencies aging categories.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 19 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Delinquency Loan Detail

Pros ID

Loan ID

Paid Through Date

Months Delinquent

Mortgage Loan Status¹

Current P&I Advances

Outstanding P&I Advances

Outstanding Servicer Advances

Actual Principal Balance

Servicing Transfer Date

Resolution Strategy Code²

Bankruptcy Date

Foreclosure Date

REO Date

Totals

1 Mortgage Loan Status
	A - Payment Not Received But Still in Grace Period	0 - Current	4 - Performing Matured Balloon
	B - Late Payment But Less Than 30 days  Delinquent	1 - 30-59 Days Delinquent	5 - Non Performing Matured Balloon
		2 - 60-89 Days Delinquent	6 - 121+ Days Delinquent
		3 - 90-120 Days Delinquent

2 Resolution Strategy Code
	1 - Modification	6 - DPO	10 - Deed in Lieu of Foreclosures
	2 - Foreclosure	7 - REO	11- Full Payoff
	3 - Bankruptcy	8 - Resolved	12 - Reps and Warranties
	4 - Extension	9 - Pending Return to Master Servicer	13 -  TBD
	5 - Note Sale	98 - Other

Note: Outstanding P & I Advances include the current period advance.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 20 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Collateral Stratification and Historical Detail

Maturity Dates and Loan Status¹

	Total	Performing	Non-Performing	REO/Foreclosure
13 - 24 Months	0	0	0	0
25 - 36 Months	0	0	0	0
37 - 48 Months	0	0	0	0
49 - 60 Months	0	0	0	0
> 60 Months	0	0	0	0
Past Maturity	0	0	0	0
0 - 6 Months	0	0	0	0
7 - 12 Months	0	0	0	0

Historical Delinquency Information

	Total	Current	30-59 Days	60-89 Days	90+ Days	REO/Foreclosure
Dec-21	0	0	0	0	0	0
Nov-21	0	0	0	0	0	0
Oct-21	0	0	0	0	0	0
Sep-21	0	0	0	0	0	0
Aug-21	0	0	0	0	0	0
Jul-21	0	0	0	0	0	0
Jun-21	0	0	0	0	0	0
May-21	0	0	0	0	0	0
Apr-21	0	0	0	0	0	0
Mar-21	0	0	0	0	0	0
Feb-21	0	0	0	0	0	0
Jan-21	0	0	0	0	0	0

(1) Maturity dates used in this chart are based on the dates provided by the Master Servicer in the Loan Periodic File.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 21 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Specially Serviced Loan Detail - Part 1
Pros ID	Loan ID	Ending Scheduled Balance	Actual Balance	Appraisal Value	Appraisal Date	Net Operating Income	DSCR	DSCR Date	Maturity Date	Remaining Amort Term
Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 22 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Specially Serviced Loan Detail - Part 2
Pros ID	Loan ID	Property Type¹	State	Servicing Transfer Date	Resolution Strategy Code²	Special Servicing Comments

1 Property Type Codes
	HC - Health Care	MU - Mixed Use	WH - Warehouse
	MF - Multi-Family	SS - Self Storage	LO - Lodging
	RT - Retail	SF - Single Family Rental	98 - Other
	IN - Industrial	OF - Office	MH - Mobile Home Park
	SE - Securities	CH - Cooperative Housing	ZZ - Missing Information/Undefined

2 Resolution Strategy Code
	1 - Modification	6 - DPO	10 - Deed in Lieu of Foreclosures
	2 - Foreclosure	7 - REO	11- Full Payoff
	3 - Bankruptcy	8 - Resolved	12 - Reps and Warranties
	4 - Extension	9 - Pending Return to Master Servicer	13 -  TBD
	5 - Note Sale	98 - Other

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 23 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Modified Loan Detail

		Pre-Modification		Post-Modification
Pros ID	Loan Number	Balance	Rate	Balance	Rate	Modification Code¹	Modification Booking Date	Modification Closing Date	Modification Effective Date
Totals

1 Modification Codes
	1 - Maturity Date Extension	5 - Temporary Rate Reduction	8 - Other
	2 - Amortization Change	6 - Capitalization on Interest	9 - Combination
	3 - Principal Write-Off	7 - Capitalization on Taxes	10 - Forbearance

Note: Please refer to Servicer Reports for modification comments.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 24 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Historical Liquidated Loan Detail

Pros ID¹

Loan Number

Dist.Date

Loan Beginning Scheduled Balance

Most Recent Appraised Value or BPO

Gross Sales Proceeds or Other Proceeds

Fees, Advances, and Expenses

Net Proceeds Received on Liquidation

Net Proceeds Available for Distribution

Realized Loss to Loan

Current Period Adjustment to Loan

Cumulative Adjustment to Loan

Loss to Loan with Cumulative Adjustment

Percent of Original Loan Balance

Current Period Totals

Cumulative Totals

Note: Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 25 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

		Historical Bond / Collateral Loss Reconciliation Detail
Pros ID	Loan Number	Distribution Date	Certificate Interest Paid from Collateral Principal Collections	Reimb of Prior Realized Losses from Collateral Interest Collections	Aggregate Realized Loss to Loan	Loss Covered by Credit Support/Deal Structure	Loss Applied to Certificate Interest Payment	Loss Applied to Certificate Balance	Non-Cash Principal Adjustment	Realized Losses from NRA/WODRA	Total Loss Applied to Certificate Balance
Current Period Totals
Cumulative Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 26 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Interest Shortfall Detail - Collateral Level

Pros ID

Interest Adjustments

Deferred Interest Collected

Special Servicing Fees

ASER

PPIS /  (PPIE)

Non- Recoverable Interest

Interest on Advances

Reimbursement of Advances from Interest

Other Shortfalls / (Refunds)

Modified Interest Reduction / (Excess)

Monthly

Liquidation

Work Out

Total

Note: Interest Adjustments listed for each loan do not include amounts that were used to adjust the Weighted Average Net Rate of the mortgage loans.

Collateral Shortfall Total

0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 27 of 28

Distribution Date:	01/18/22	BANK 2021-BNK38
Determination Date:	01/11/22
Next Distribution Date:	02/17/22	Commercial Mortgage Pass-Through Certificates
Record Date:	12/31/21	Series 2021-BNK38

Supplemental Notes

None

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 28 of 28

EXHIBIT H

 

FORM OF OMNIBUS ASSIGNMENT

 

[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR] (the “Assignor”) for good and valuable consideration, the receipt and sufficiency of which are acknowledged, hereby sells, transfers, assigns, delivers, sets over and conveys, without recourse, representation or warranty, express or implied, unto “Wilmington Trust, National Association, as Trustee for the registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38” (the “Assignee”), having an office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee BANK 2021-BNK38, its successors and assigns, all right, title and interest of the Assignor in and to:

 

That certain mortgage and security agreement, deed of trust and security agreement, deed to secure debt and security agreement, or similar security instrument (the “Security Instrument”), and that certain Promissory Note (the “Mortgage Note”), for each of the Mortgage Loans shown on the Mortgage Loan Schedule attached hereto as Exhibit B, and that certain assignment of leases and rents given in connection therewith and all of the Assignor’s right, title and interest in any claims, collateral, insurance policies, certificates of deposit, letters of credit, escrow accounts, performance bonds, demands, causes of action and any other collateral arising out of and/or executed and/or delivered in or to or with respect to the Security Instrument and the Mortgage Note, together with any other documents or instruments executed and/or delivered in connection with or otherwise related to the Security Instrument and the Mortgage Note.

 

IN WITNESS WHEREOF, the Assignor has executed this instrument under seal to be effective as of the [__] day of [_____________], 20[__].

 

	[NAME OF CURRENT ASSIGNOR]
	By:
		Name:
		Title:

 

Exhibit H-1

 

 

EXHIBIT I

 

Form of Transfer Certificate
for Rule 144A Book-Entry Certificate
to Temporary Regulation S Book-Entry Certificate
during Restricted Period

 

(Exchanges or transfers pursuant to
Section 5.03(c) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__]

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with the Depository in the name of [Euroclear] [Clearstream]^* (Common Code No. [______]).

 

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

 

 

^* Select appropriate depository.

 

Exhibit I-1

 

 

(1)       the offer of the Certificates was not made to a person in the United States;

 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

 

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]^**

 

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

 

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, each applicable Master Servicer, each applicable Special Servicer, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

Dated: _______

 

cc: Morgan Stanley Capital I Inc.

 

 

** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

 

Exhibit I-2

 

 

EXHIBIT J

 

Form of Transfer Certificate
for Rule 144A Book-Entry Certificate
to Regulation S Book-Entry Certificate after Restricted Period

 

(Exchange or transfers pursuant to
Section 5.03(d) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__]

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Regulation S Book-Entry Certificate of such Class (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

 

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

 

(1)       the offer of the Certificates was not made to a person in the United States,

 

Exhibit J-1

 

 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

 

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

 

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

 

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, each applicable Master Servicer, each applicable Special Servicer, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated: ________

 

cc: Morgan Stanley Capital I Inc.

 

 

* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

 

Exhibit J-2

 

 

EXHIBIT K

 

Form of Transfer Certificate
for Temporary Regulation S Book-Entry Certificate
to Rule 144A Book-Entry Certificate during Restricted Period

 

(Exchange or transfers pursuant to
Section 5.03(e) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__]

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

 

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and

 

 

* Select appropriate depository. 

 

Exhibit K-1

 

 

in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, each applicable Master Servicer, each applicable Special Servicer, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated: _______

 

cc: Morgan Stanley Capital I Inc.

 

Exhibit K-2

 

 

EXHIBIT L

 

Form of Transfer Certificate
for Temporary Regulation S Book-Entry Certificate
to Regulation S Book-Entry Certificate after Restricted Period

 

(Exchanges pursuant to
Section 5.03(f) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__]

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

[For purposes of acquiring a beneficial interest in a Regulation S Book-Entry Certificate of the Class specified above after the expiration of the Restricted Period,] [For purposes of receiving payments under a Temporary Regulation S Book-Entry Certificate of the Class specified above,]^* the undersigned holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate of the Class specified above issued under the Pooling and Servicing Agreement certifies that it is not a U.S. Person as defined by Regulation S under the Securities Act of 1933, as amended.

 

We undertake to advise you promptly by facsimile on or prior to the date on which you intend to submit your corresponding certification relating to the Certificates of the Class specified above held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

 

 

^* Select, as applicable.

 

Exhibit L-1

 

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

 

	Dated:______________
	By:
		as, or as agent for, the holder of a beneficial interest in the Certificates to which this certificate relates.

 

Exhibit L-2

 

 

EXHIBIT M

 

Form of Transfer Certificate
for Non-Book Entry Certificate
to Temporary Regulation S Book-Entry Certificate

 

(Exchanges or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__] 

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository.

 

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

 

(1)       the offer of the Certificates was not made to a person in the United States;

 

 

* Select appropriate depository.

 

Exhibit M-1

 

 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

 

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] ^**

 

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

 

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated: ________

 

cc: Morgan Stanley Capital I Inc.

 

 

** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

 

Exhibit M-2

 

 

EXHIBIT N

 

Form of Transfer Certificate
for Non-Book Entry Certificate
to Regulation S Book-Entry Certificate

 

(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__] 

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Regulation S Book-Entry Certificate (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

 

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

 

(1)       the offer of the Certificates was not made to a person in the United States,

 

Exhibit N-1

 

 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

 

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

 

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

 

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated: _______

 

cc: Morgan Stanley Capital I Inc.

 

 

^* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

 

Exhibit N-2

 

 

EXHIBIT O

 

Form of Transfer Certificate
for Non-Book Entry Certificate
to Rule 144A Book-Entry Certificate

 

(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

 

Computershare Trust Company, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK38

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__] 

 

Reference is hereby made to the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

 

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

 

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

 

Exhibit O-1

 

 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

 

	[Insert Name of Transferor]
	By:
		Name:
		Title:

 

Dated: _______

 

cc: Morgan Stanley Capital I Inc.

 

Exhibit O-2

 

 

EXHIBIT P-1A

 

FORM OF INVESTOR CERTIFICATION for Non-Borrower PartY AND/OR
THE RISK RETENTION CONSULTATION PARTY
(for Persons other than the DIRECTING CERTIFICATEHOLDER and/or
a Controlling Class Certificateholder)

 

[Date] 

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK38
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [_] Certificates

 

In accordance with the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

1.        The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates, a Companion Holder or the Risk Retention Consultation Party (or any investment advisor or manager or other representative of the foregoing).

 

2.        The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

 

3.        In the case that the undersigned is a Certificateholder, beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

 

4.        [FOR PARTIES OTHER THAN THE RISK RETENTION CONSULTATION PARTY: The undersigned is not a Borrower Party.]

 

5.        The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the

 

Exhibit P-1A-1

 

 

undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

 

6.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

7.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

 

8.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[_____]
	By:
		Name:
		Title:
Dated: _______
cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1A-2

 

 

EXHIBIT P-1B

 

FORM OF INVESTOR CERTIFICATION for Non-Borrower PartY
(for the DIRECTING CERTIFICATEHOLDER and/or a Controlling Class
Certificateholder)

 

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Computershare Trust Company, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK38	Computershare Trust Company, National Association 600 South 4th Street, 7th Floor Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38
Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously via email to: notices@pentalphasurveillance.com)	Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

 

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class Certificates

 

In accordance with the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a

 

Exhibit P-1B-1

 

 

Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

1.        The undersigned is the Directing Certificateholder or a Controlling Class Certificateholder.

 

2.        The undersigned has received a copy of the Prospectus.

 

3.        The undersigned is not a Borrower Party.

 

4.        The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and may from time to time request information from the Master Servicer or Special Servicer [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

 

5.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

6.        At any time the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned shall deliver the certification attached as Exhibit P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

 

Exhibit P-1B-2

 

 

7.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

 

8.        [For use with any party other than the initial Directing Certificateholder] The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

 

9.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

           BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[_____]
	By:
		Name:
		Title:
Dated: _______
cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1B-3

 

 

EXHIBIT P-1C

 

FORM OF INVESTOR CERTIFICATION for Borrower PartY
(for Persons other than the DIRECTING CERTIFICATEHOLDER, THE

RISK RETENTION CONSULTATION PARTY and/or a Controlling Class

Certificateholder)

 

[Date]

 

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK38
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

 

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
550 S. Tryon Street
MAC D1086-23A
23rd Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Email: commercial.servicing@wellsfargo.com

 

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number: (703) 647-3473
Email: kluzik@ncb.coop

 

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class Certificates

 

In accordance with the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

Exhibit P-1C-1

 

 

1.        The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates or a Companion Holder (or any investment advisor or manager or other representative of the foregoing).

 

2.        The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

 

3.        In the case that the undersigned is a Certificateholder, a beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

 

4.        The undersigned is a Borrower Party.

 

5.        The undersigned is requesting access to the Distribution Date Statement pursuant to the Pooling and Servicing Agreement. In consideration of the disclosure to the undersigned of the Distribution Date Statement, or the access thereto, the undersigned will keep the Distribution Date Statement confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Distribution Date Statement will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Distribution Date Statement confidential shall expire one year following the date that the undersigned receives such Distribution Date Statement (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Distribution Date Statement in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

 

6.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

7.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Distribution Date Statement on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

 

8.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

Exhibit P-1C-2

 

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[_____]
	By:
		Name:
		Title:
Dated: _______
cc: Morgan Stanley Capital I Inc.

 

 

Exhibit P-1C-3

 

 

EXHIBIT P-1D

 

FORM OF INVESTOR CERTIFICATION for Borrower PartY
(for the DIRECTING CERTIFICATEHOLDER and/or a Controlling Class
Certificateholder)

 

[Date]

 

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Computershare Trust Company, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021- BNK38	Computershare Trust Company, National Association 600 South 4th Street, 7th Floor Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38
Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously via email to: notices@pentalphasurveillance.com)	Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

 

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class Certificates

 

Exhibit P-1D-1

 

 

In accordance with the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

1. The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder].

 

2.        The undersigned is a Borrower Party with respect to the following [Excluded Loan][Excluded Controlling Class Loan](s):

 

[IDENTIFY [EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN](S)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”)

 

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

 

3.        The undersigned has received a copy of the Prospectus.

 

4.        Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

 

5.        The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s

 

Exhibit P-1D-2

 

 

Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

 

6.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

7.        To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

 

8.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

 

9.        The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

 

10.      Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[_____]
	By:
		Name:
		Title:
Dated: _______
cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1D-3

 

 

EXHIBIT P-1E

 

FORM OF NOTICE OF EXCLUDED CONTROLLING CLASS HOLDER

 

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Computershare Trust Company, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK38   Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously via email to: notices@pentalphasurveillance.com)	Computershare Trust Company, National Association 600 South 4th Street, 7th Floor Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38   Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

 

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class Certificates

 

THIS NOTICE IDENTIFIES AN “[EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN]” RELATING TO THE BANK 2021-BNK38, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK38, REQUIRING ACTION BY YOU AS THE RECIPIENT PURSUANT TO SECTION 3.13(b) OF THE POOLING AND SERVICING AGREEMENT.

 

Exhibit P-1E-1

 

 

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby certifies and agrees as follows:

 

1.        The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

 

2.        The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”):

 

Loan Number	ODCR	Loan Name	Borrower Name

[[If applicable] For the avoidance of doubt, [each] of the foregoing loans is both an Excluded Loan and an Excluded Controlling Class Loan.]

 

3.        As of the date above, the undersigned is the beneficial owner of the following certificates, and is providing the below information to the addressees hereto for purposes of their compliance with the Pooling and Servicing Agreement, including, among other things, the Certificate Administrator’s determination as to whether a Consultation Termination Event is in effect with respect to the Excluded Controlling Class Loans listed in paragraph 2 if any such mortgage loan is an Excluded Loan:

 

CUSIP	Class	Outstanding Certificate Balance	Initial Certificate Balance

 

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

 

4.        Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and

 

Exhibit P-1E-2

 

 

otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

 

5.        The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

 

6.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

7.        To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

 

8.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

 

9.        The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

 

Exhibit P-1E-3

 

 

10.      The undersigned is simultaneously providing notice to the Certificate Administrator in the form of Exhibit P-1F to the Pooling and Servicing Agreement, requesting termination of access to any Excluded Information. The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it has (i) delivered notice of the termination of the related Excluded Controlling Class Holder status and (ii) submitted a new investor certification in accordance with Section 3.13(b) of the Pooling and Servicing Agreement.

 

11.      The undersigned agrees to indemnify and hold harmless each party to the Pooling and Servicing Agreement, the Underwriters, the Initial Purchasers and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) listed in Paragraph 2 above.

 

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
	By:
		Name:
		Title:

 

Dated: _______

cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1E-4

 

 

EXHIBIT P-1F

 

FORM OF NOTICE OF [EXCLUDED LOAN] [EXCLUDED CONTROLLING CLASS HOLDER] TO CERTIFICATE ADMINISTRATOR

 

[Date]

 

Via: Email
Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK38
cts.cmbs.bond.admin@wellsfargo.com

trustadministrationgroup@wellsfargo.com

 

with a copy to:

 

Computershare Trust Company, National Association,

8480 Stagecoach Circle
Frederick, Maryland 21701-4747

Attention: BANK 2021-BNK38

 

Re:      BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby directs you as follows:

 

1.        The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

 

2.        The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”):

 

Loan Number	ODCR	Loan Name	Borrower Name

 

 

Exhibit P-1F-1

 

 

3.        The following USER IDs for CTSLink are affiliated with the undersigned and access to any information on the Certificate Administrator’s Website with respect to the BANK 2021-BNK38 securitization should be revoked as to such users: 

 

4.        The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information with respect to such [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it (i) is no longer an Excluded Controlling Class Holder with respect to such [Excluded Loan][Excluded Controlling Class Loan](s), (ii) has delivered notice of the termination of the related Excluded Controlling Class Holder status and (iii) has submitted an investor certification in the form of Exhibit P-1B to the Pooling and Servicing Agreement.

 

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
	By:
		Name:
		Title:

 

Dated: _______

 

cc: Morgan Stanley Capital I Inc.

 

The undersigned hereby acknowledges that
access to CTSLink has been revoked for
the users listed in Paragraph 3.

 

COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION,
Certificate Administrator

 

 

Name:
Title:

 

Exhibit P-1F-2

 

 

EXHIBIT P-1G

 

Form of Certification of the Directing Certificateholder

 

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Computershare Trust Company, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK38 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously via email to: notices@pentalphasurveillance.com)	Computershare Trust Company, National Association 600 South 4th Street, 7th Floor Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

 

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class [__] Certificates 

 

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

 

Exhibit P-1G-1

 

 

1.        The undersigned has been appointed to act as the Directing Certificateholder.

 

2.        The undersigned is not a Borrower Party.

 

3.        If the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned agrees to and shall deliver the certification attached as Exhibit P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

 

4.        [For use with any party other than the initial Directing Certificateholder]The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

 

5.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[Directing Certificateholder]
	By:
		Name:
		Title:

 

Dated: _______

cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1G-2

 

 

EXHIBIT P-1H

 

Form of Certification of the RISK RETENTION CONSULTATION PARTY

 

[Date]

 

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Computershare Trust Company, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK38   Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously via email to: notices@pentalphasurveillance.com)	Computershare Trust Company, National Association 600 South 4th Street, 7th Floor Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK38   Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

 

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, RR Interest

 

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

 

Exhibit P-1H-1

 

 

1.        The undersigned has been appointed to act as the Risk Retention Consultation Party.

 

[FOR ANY SUCCESSOR RISK RETENTION CONSULTATION PARTY][2. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.]

 

3.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

	[RISK RETENTION CONSULTATION PARTY]
	By:
		Name:
		Title:

 

Dated: _______

cc: Morgan Stanley Capital I Inc.

 

Exhibit P-1H-2

 

 

EXHIBIT P-2

 

FORM OF CERTIFICATION FOR NRSROs

 

[Date]

 

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

 

Attention:       BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

1. The undersigned is a Rating Agency hired by the Depositor to provide ratings on the Certificates; or  

2. The undersigned is a nationally recognized statistical rating organization and either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Agreement to certain information (the “Information”) on such 17g-5 website pursuant to the provisions of the Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y), if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement attached hereto as Annex A which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date.

 

The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website.

 

Exhibit P-2-1

 

 

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

Exhibit P-2-2

 

 

ANNEX A

 

CONFIDENTIALITY AGREEMENT

 

This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with Morgan Stanley Capital I Inc. (together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”) pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, Computershare Trust Company, National Association, as Certificate Administrator and as Custodian, and Wilmington Trust, National Association, as Trustee and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Computershare Trust Company, National Association, as 17g-5 Information Provider under the Pooling and Servicing Agreement, including the [section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Pooling and Servicing Agreement)]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.

 

Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y) any of the terms, conditions or other facts with respect to the transactions contemplated by the Pooling and Servicing Agreement, including the status thereof; provided, however, that the term Confidential Information shall not include information which:

 

was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;

 

was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or

 

is independently developed by the NRSRO without reference to any Confidential Information.

 

Information to Be Held in Confidence.

 

You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).

 

You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.

 

You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:

 

Exhibit P-2-3

 

 

 

 

disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;

 

solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5), post the Confidential Information to the NRSRO’s password protected website; and

 

use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.

 

Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, however, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.

 

Obligation to Return Evaluation Material. Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.

 

Violations of this Confidentiality Agreement.

 

The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.

 

You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.

 

Exhibit P-2-4

 

 

You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.

 

Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.

 

Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.

 

Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.

 

Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, however, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.

 

Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:

 

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention: Jane Lam

 

with a copy to:

 

Morgan Stanley Capital I Inc.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

 

and cmbs_notices@morganstanley.com

 

Exhibit P-2-5

 

 

EXHIBIT P-3

 

ONLINE MARKET DATA PROVIDER CERTIFICATION

 

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

 

Attention:                BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

 

This Certification has been prepared for provision of information to the market data providers listed in Paragraph 1 below pursuant to the direction of the Depositor. If you represent a Market Data Provider not listed herein and would like access to the information, please contact CTSLink at 866-846-4526, or at ctslink.customerservice@wellsfargo.com.

 

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

 

1.   The undersigned is an employee or agent of Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corp., Markit Group Limited, BlackRock Financial Management, Inc., CMBS.com, Inc., Moody’s Analytics, Morningstar Credit Information & Analytics, LLC, RealInsight, Thomson Reuters Corporation or KBRA Analytics, LLC, a market data provider that has been given access to the Statements to Certificateholders, CREFC^® Reports and supplemental notices on www.ctslink.com (“CTSLink”) by request of the Depositor.

 

2. The undersigned agrees that each time it accesses CTSLink, the undersigned is deemed to have recertified that the representation above remains true and correct.

 

3. The undersigned acknowledges and agrees that the provision to it of information and/or reports on CTSLink is for its own use only, and agrees that it will not disseminate or otherwise make such information available to any other person without the written consent of the Depositor.

 

4. The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the

 

Exhibit P-3-1

 

 

Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

 

5. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

 

Exhibit P-3-2

 

 

EXHIBIT Q

 

CUSTODIAN CERTIFICATION/EXCEPTION REPORT

 

[DATE]

 

To the Persons Listed on the attached Schedule A

 

Re:          BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38         

 

Ladies and Gentlemen:

 

In accordance with Section 2.02 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for which a Liquidation Event has occurred) the Custodian has, subject to Section 2.02(c) of the Pooling and Servicing Agreement, reviewed the documents delivered to it pursuant to Section 2.01 of the Pooling and Servicing Agreement and has determined that (i) subject to the first proviso of the definition of “Mortgage File”, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File,” as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Seller have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct.

 

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Pooling and Servicing Agreement.

 

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Custodian
	By:
		Name:
		Title:

 

 

Exhibit Q-1

 

 

SCHEDULE A

 

[APPLICABLE MORTGAGE LOAN SELLER’S NOTICE ADDRESS]

 

Morgan Stanley Capital I Inc.  

1585 Broadway

New York, New York 10036

Attention: Jane Lam

 

Morgan Stanley Capital I Inc.  

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

 

with a copy to

 

cmbs_notices@morganstanley.com

 

Kroll Bond Rating Agency, LLC

805 Third Avenue, 29th Floor

New York, New York 10022

Attention: CMBS Surveillance

Facsimile No.: (312) 332-3492

Email: cmbssurveillance@kbra.com

 

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

 

S&P Global Ratings

55 Water Street, 41st Floor

New York, New York 10041

Attention: Commercial Mortgage Surveillance Manager

E-mail: CMBS_Info_17g5@spglobal.com

 

Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700

Overland Park, Kansas 66210

Attention: Executive Vice President – Division Head

Facsimile number: (888) 706-3565

Email: NoticeAdmin@midlandls.com

 

Exhibit Q-2

 

 

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

 

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
550 S. Tryon Street

MAC D1086-23A

23rd Floor

Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Email: commercial.servicing@wellsfargo.com

 

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

 

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee BANK 2021-BNK38

 

KKR Real Estate Credit Opportunity Partners II L.P.
30 Hudson Yards, Suite 7500

New York, New York 10001

Facsimile number: (212) 750-0003

Attention: Matt Salem

Email: RESecurities@kkr.com

 

with a copy via email to:

 

Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, Pennsylvania 19104-2808

Facsimile number: (215) 655-2647

Attention: David Forti

Email: david.forti@dechert.com

 

Exhibit Q-3

 

 

EXHIBIT R-1

 

FORM OF POWER OF ATTORNEY – MASTER SERVICERS

 

RECORDING REQUESTED BY:

 

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
550 S. Tryon Street

MAC D1086-23A

23rd Floor

Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com]

 

[National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop]

 

 

SPACE ABOVE THIS LINE FOR RECORDER’S USE

 

LIMITED POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as trustee (the “Trustee”), pursuant to that Pooling and Servicing Agreement dated as of December 1, 2021 (the “Agreement”), between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer [(the “General Master Servicer”)], Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer [(in such capacity, the “NCB Master Servicer”)] and NCB special servicer, Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), the Trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer hereby constitutes and appoints the [General][NCB] Master Servicer, by and through the [General][NCB] Master Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Master Servicer and all properties (“Mortgaged Properties”) administered by the [General][NCB] Master Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the Mortgage Loans and Mortgaged Properties; provided, however, that the documents

 

Exhibit R-1-1

 

 

described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

 

1.            The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

 

2.            The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

 

3.            The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

 

4.            The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

 

5.            The completion of loan assumption agreements.

 

6.            The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

 

7.            The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the Mortgage Loan secured and evidenced thereby.

 

8.            The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

 

9.            The full enforcement of and preservation of the Trustee’s interests in the Mortgage Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

 

  a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

 

Exhibit R-1-2

 

 

  b. the preparation and issuance of statements of breach or non-performance;

 

  c. the preparation and filing of notices of default and/or notices of sale;

 

  d. the cancellation/rescission of notices of default and/or notices of sale;

 

  e. the taking of deed in lieu of foreclosure;

 

  f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

 

  g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

 

  h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and

 

  i. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

 

10.          With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

 

  a. listing agreements;

 

  b. purchase and sale agreements;

 

  c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

 

  d. escrow instructions; and

 

  e. any and all documents necessary to effect the transfer of property.

 

11.          The modification or amendment of escrow agreements established for repairs to the Mortgaged Property or reserves for replacement of personal property.

 

12.          The execution and delivery of the following:

 

  a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

 

  b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and

 

Exhibit R-1-3

 

 

  c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties or REO Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers), documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents.

 

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

 

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

 

Solely to the extent that the [General][NCB] Master Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Master Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Master Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Master Servicer.

 

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Master Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [General][NCB] Master Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [General][NCB] Master Servicer shall promptly forward a copy of same to the Trustee.

 

Exhibit R-1-4

 

 

This limited power of attorney is not intended to extend the powers granted to the [General][NCB] Master Servicer under the Agreement or to allow the [General][NCB] Master Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

 

The [General][NCB] Master Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

 

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

 

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

 

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK38 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

 

	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee for BANK 2021-BNK38
	By:
		Name:
		Title:
	Prepared by:
		Name:

 

Witness:

____________________

 

Exhibit R-1-5

 

 

Witness:

_____________________

 

STATE OF DELAWARE	)
	)  ss.:
COUNTY OF	)

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

	Notary Public
[SEAL]
My commission expires:

Exhibit R-1-6

EXHIBIT R-2

FORM OF POWER OF ATTORNEY – SPECIAL SERVICERS

RECORDING REQUESTED BY:

[Midland Loan Services, a Division of PNC Bank, National Association
10851 Mastin Street, Suite 700

Overland Park, Kansas 66210

Attention: Executive Vice President – Division Head

Facsimile number: (888) 706-3565

Email: NoticeAdmin@midlandls.com]

[National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop]

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement dated as of December 1, 2021 (the “Agreement”), between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer (in such capacity, the “NCB Special Servicer”), Computershare Trust Company, National Association, as certificate administrator, the Trustee and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, relating to the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, hereby constitutes and appoints the [General][NCB] Special Servicer, by and through the [General][NCB] Special Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Special Servicer and all properties (“REO Properties”) administered by the [General][NCB] Special Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 13 below with respect to the Mortgage Loans and REO Properties; provided, however, that the documents described below may only be executed and delivered by

Exhibit R-2-1

such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5. The completion of loan assumption agreements and transfers of interest in borrower entities.

6. The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7. The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the sale or repurchase of the Mortgage Loan secured and evidenced thereby.

8. The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9. The full enforcement of and preservation of the Trustee’s interests in any Mortgage or the related promissory note, and in the proceeds thereof, by way of, including but not limited to, taking title to any Mortgaged Property on behalf of the Trust, foreclosure, the taking of a deed-in-lieu of foreclosure, or the completion of judicial or non-judicial foreclosure and/or any related litigation, including without limitation, guaranty or receivership litigation, or litigation on the note, or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or

Exhibit R-2-2

proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, the initiation or defense of any litigation related to the ownership of any REO Property, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions;

i. the creation of a wholly-owned entity of the Trust for purposes of holding foreclosed property; and

j. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

Exhibit R-2-3

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property.

12. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee, solely in its capacity as Trustee, in litigation and to resolve such litigation, provided that such resolution shall not include any admission of fault or wrongdoing by the Trustee or, without the Trustee’s consent, subject the Trustee to any form of injunctive relief.

13. The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments;

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, management agreements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents; and

Exhibit R-2-4

d. any and all documents, instruments and certifications as are reasonably necessary to complete or accomplish the [General][NCB] Special Servicer’s duties and responsibilities under the Agreement.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [General][NCB] Special Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Special Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Special Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Special Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Special Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [General][NCB] Special Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [General][NCB] Special Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [General][NCB] Special Servicer under the Agreement or to allow the [General][NCB] Special Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [General][NCB] Special Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

Exhibit R-2-5

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK38, has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

Wilmington Trust, National Association,
as Trustee for BANK 2021-BNK38
By:
	Name:
	Title:

Witness:

____________________

Witness:

_____________________

Exhibit R-2-6

STATE OF DELAWARE                      )
                                                               )      ss.:
COUNTY OF                                        )

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

_________________________________

Notary signature

Exhibit R-2-7

EXHIBIT S

INITIAL SERVICED COMPANION NOTEHOLDERS

NONE.

Exhibit S-1

EXHIBIT T

FORM OF NOTICE RELATING TO THE NON-SERVICED MORTGAGE LOANS

[FOR THE ONE NORTH WACKER MORTGAGE LOAN:

Wells Fargo Bank, National Association

Commercial Mortgage Servicing

Three Wells Fargo

MAC D1050-084

401 South Tryon Street, 8th Floor

Charlotte, North Carolina 28202

Attention: BANK 2021-BNK36 Asset Manager

Email to: commercial.servicing@wellsfargo.com

with a copy to:

Wells Fargo Bank, National Association Legal Department

301 S. College St., TW 30

Charlotte, North Carolina 28202

Fax Number: (816) 412-9338

Attention: Commercial Mortgage Servicing Legal Support

Reference: BANK 2021-BNK36

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Facsimile Number: (704) 353-3190

Reference: BANK 2021-BNK36]

[FOR THE PARK AVENUE PLAZA MORTGAGE LOAN:

Wells Fargo Bank, National Association

Commercial Mortgage Servicing

Three Wells Fargo

MAC D1050-084

401 South Tryon Street, 8th Floor

Charlotte, North Carolina 28202

Attention: MSC 2021-PLZA Asset Manager

Email to: commercial.servicing@wellsfargo.com

with a copy to:

Exhibit T-1

Wells Fargo Bank, National Association

Legal Department

301 S. College St., TW 30

Charlotte, North Carolina 28202

Fax Number: (704) 383-0353

Attention: Commercial Mortgage Servicing Legal Support

Reference: MSC 2021-PLZA

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Facsimile Number: (704) 353-3190

Email: stacy.ackermann@klgates.com]

[FOR THE CX – 350 & 450 WATER STREET MORTGAGE LOAN:

KeyBank National Association

11501 Outlook Street, Suite 300

Overland Park, Kansas 66211

Attention: Michael A. Tilden

Email: Michael_a_tilden@keybank.com

with a copy to:

Polsinelli

900 West 48th Place, Suite 900

Kansas City, Missouri 64112

Attention: Kraig Kohring

Email: kkohring@polsinelli.com]

[FOR THE 1201 LAKE ROBBINS MORTGAGE LOAN:

Wells Fargo Bank, National Association

Commercial Mortgage Servicing

Three Wells Fargo

MAC D1050-084

401 South Tryon Street, 8th Floor

Charlotte, North Carolina 28202

Attention: BANK 2021-BNK37 Asset Manager

Email to: commercial.servicing@wellsfargo.com

with a copy to:

Exhibit T-2

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Facsimile Number: (704) 353-3190]

VIA [EMAIL]

Re:          BANK 2021-BNK38,
Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Ladies and Gentlemen:

As you know, [_____], acts as the master servicer (the “Lead Servicer”) for the whole loan secured by the [mortgaged property][portfolio of mortgaged properties] identified as [NON-SERVICED WHOLE LOAN] (the “Subject Whole Loan”) under the pooling and servicing agreement relating to the [_____] securitization trust (the “PSA”). This is to inform you that one or more of the promissory notes related to the Subject Whole Loan (the “Subject Mortgage Loan”) has been transferred to BANK 2021-BNK38 pursuant to that certain Pooling and Servicing Agreement, dated as of December 1, 2021 (the “2021-BNK38 Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (the “2021-BNK38 General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Computershare Trust Company, National Association, as certificate administrator (the “2021-BNK38 Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “2021-BNK38 Trustee”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, and that the 2021-BNK38 Trustee is the holder of the Subject Mortgage Loan.

The undersigned, as 2021-BNK38 Certificate Administrator, hereby directs you, in your capacity as the Lead Servicer of the Subject Whole Loan, to remit to the 2021-BNK38 General Master Servicer all amounts payable to, and forward, deliver or otherwise make available, as the case may be, to the 2021-BNK38 General Master Servicer all reports, statements, documents, communications, and other information that are to be forwarded, delivered or otherwise made available to, the holder of the Subject Mortgage Loan under the related Intercreditor Agreement (as such term is defined in the 2021-BNK38 Pooling and Servicing Agreement) and the PSA.

The Subject Mortgage Loan [is][is not] a Significant Obligor (as such term is defined in the 2021-BNK38 Pooling and Servicing Agreement) under the 2021-BNK38 Pooling and Servicing Agreement

Thank you for your attention to this matter.

Exhibit T-3

Date:       _________________________

Computershare Trust Company, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38
By:
	Name:
	Title:

Exhibit T-4

cc:

[FOR ONE NORTH WACKER:

[____]]

[FOR PARK AVENUE PLAZA:

[____]]

[FOR CX – 350 & 450 WATER STREET:

[____]]

[FOR 1201 LAKE ROBBINS:

[____]]

Exhibit T-5

EXHIBIT U

FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN

To:          Kroll Bond Rating Agency, LLC

805 Third Avenue, 29th Floor

New York, New York 10022

Attention: CMBS Surveillance

Email: cmbssurveillance@kbra.com

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

S&P Global Ratings

55 Water Street, 41st Floor

New York, New York 10041

Attention: Commercial Mortgage Surveillance Manager

E-mail: CMBS_Info_17g5@spglobal.com

[INSERT ADDRESS OF APPLICABLE MORTGAGE LOAN SELLER]

From:     [Wells Fargo Bank, National Association][National Cooperative Bank, N.A.], in its capacity as [General][NCB] Master Servicer under the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer.

Date:        _________, 20___

Exhibit U-1

Re:         BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Mortgage Loan (the “Mortgage Loan”) identified by loan number _____ [and loan number [_______]] on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and heretofore secured by the Mortgaged Properties identified on the Mortgage Loan Schedule by the following names:____________________
 ____________________

Reference is made to the Pooling and Servicing Agreement described above. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement.

As [General][NCB] Master Servicer under the Pooling and Servicing Agreement, we hereby:

(a)   Notify you that the Mortgagor has consummated a defeasance of the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked below:

____   a full defeasance of the entire principal balance of the Mortgage Loan; or

____   a partial defeasance of a portion of the principal balance of the Mortgage Loan that represents and, an allocated loan amount of $____________ or _______% of the entire principal balance of the Mortgage Loan;

(b)        Certify that each of the following is true, subject to those exceptions set forth with explanatory notes on Exhibit A hereto, which exceptions the [General][NCB] Master Servicer has determined, consistent with the Servicing Standards, will have no material adverse effect on the Mortgage Loan or the defeasance transaction:

(i)         The Mortgage Loan documents permit the defeasance, and the terms and conditions for defeasance specified therein were satisfied in all material respects in completing the defeasance.

(ii)        The defeasance was consummated on __________, 20__.

(iii)       The defeasance collateral consists of securities that (i) constitute “government securities” as defined in Section 2(a)(16) of the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are listed as “Qualified Investments for ‘AAA’ Financings” under Paragraphs 1, 2 or 3 of “Cash Flow Approach” in Standard & Poor’s Public Finance Criteria 2000, as amended to the date of the defeasance, (iii) if they include a principal obligation, the principal due at maturity cannot vary or change, and (iv) are not subject to prepayment, call or early redemption.

(iv)       The [General][NCB] Master Servicer received an opinion of counsel (from counsel approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard) that the defeasance will not result in an Adverse REMIC Event.

Exhibit U-2

(v)  The [General][NCB] Master Servicer determined that the defeasance collateral will be owned by an entity (the “Defeasance Obligor”) that is a Single-Purpose Entity (as defined in Standard & Poor’s Structured Finance Ratings Real Estate Finance Criteria, as amended to the date of the defeasance (the “S&P Criteria”)) or is subject to restrictions in its organizational documents substantially similar to those contained in the organization documents of the original Borrower with respect to bankruptcy remoteness and single purpose as of the date of the defeasance, and after the defeasance owns no assets other than the defeasance collateral and real property securing Mortgage Loans included in the pool.

(vi) The defeasance documents require the crediting of the defeasance collateral to an Eligible Account (as defined in the S&P Criteria) in the name of the Trustee on behalf of the Trust, which account is maintained as a securities account by a securities intermediary and has been pledged to the Trustee on behalf of the Trust.

(vii) The agreements executed in connection with the defeasance (i) grant control of the pledged securities account to Trustee on behalf of the Trust, (ii) require the securities intermediary to make the scheduled payments on the Mortgage Loan from the proceeds of the defeasance collateral directly to the [General][NCB] Master Servicer’s collection account in the amounts and on the dates specified in the Mortgage Loan documents or, in a partial defeasance, the portion of such scheduled payments attributed to the allocated loan amount for the real property defeased, increased by any defeasance premium specified in the Mortgage Loan documents (the “Scheduled Payments”), (iii) permit reinvestment of proceeds of the defeasance collateral only in Permitted Investments (as defined in the Pooling and Servicing Agreement or as defined in the documents evidencing the defeasance), (iv) permit release of surplus defeasance collateral and earnings on reinvestment from the pledged securities account only after the Mortgage Loan has been paid in full, if any such release is permitted, (v) prohibit transfers by the Defeasance Obligor of the defeasance collateral and subordinate liens against the defeasance collateral, and (vi) provide for payment from sources other than the defeasance collateral or other assets of the Defeasance Obligor of all fees and expenses of the securities intermediary for administering the defeasance and the securities account and all fees and expenses of maintaining the existence of the Defeasance Obligor.

(viii)  The [General][NCB] Master Servicer received written confirmation from a firm of independent certified public accountants, who were approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard stating that (i) revenues from the defeasance collateral (without taking into account any earnings on reinvestment of such revenues) will be sufficient to timely pay each of the Scheduled Payments after the defeasance including the payment in full of the Mortgage Loan (or the allocated portion thereof in connection with a partial defeasance) on its Maturity Date (or, in the case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues received in any month from the defeasance collateral will be applied to make Scheduled Payments within four (4) months after the date of receipt, and (iii) interest income from the defeasance collateral to the Defeasance Obligor in any calendar or fiscal year will not exceed such Defeasance Obligor’s interest expense for the Mortgage Loan (or the allocated portion thereof in a partial defeasance) for such year.

Exhibit U-3

(ix)       The Mortgage Loan is not among the ten (10) largest loans in the pool as of the date of the Current Report (as defined below). The entire principal balance of the Mortgage Loan as of the date of defeasance was less than both $[______] and five percent of pool balance, which is less than [__]% of the aggregate Certificate Balance of the Certificates as of the date of the most recent Distribution Date Statement received by us (the “Current Report”).

(x)        The [General][NCB] Master Servicer has received opinions of counsel stating that the Trustee on behalf of the Trust possesses a valid, perfected first priority security interest in the defeasance collateral and that the documents executed in connection with the defeasance are enforceable in accordance with their respective terms.

(c)       Certify that Exhibit B hereto is a list of the material agreements, instruments, organizational documents for the Defeasance Obligor, and opinions of counsel and independent accountants executed and delivered in connection with the defeasance.

(d)       Certify that the individual under whose hand the [General][NCB] Master Servicer has caused this Notice and Certification to be executed did constitute a Servicing Officer as of the date of the defeasance described above.

(e)       Certify that it has provided the required notices to, and obtained the required consents of, the related Mortgage Loan Seller in accordance with Section 3.18(i) of the Pooling and Servicing Agreement.

(f)        Agree to provide copies of all items listed in Exhibit B to you upon request.

Exhibit U-4

IN WITNESS WHEREOF, the [General][NCB] Master Servicer has caused this Notice and Certification to be executed as of the date captioned above.

[________________]
	as [General][NCB] Master Servicer
By:
	Name:
	Title:

Exhibit U-5

EXHIBIT V

FORM OF OPERATING ADVISOR ANNUAL REPORT¹

Report Date: This report will be delivered no later than [INSERT DATE], pursuant to the terms and conditions of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”).             
Transaction: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38            
Operating Advisor: Pentalpha Surveillance LLC
Special Servicer: [Midland Loan Services, a Division of PNC Bank, National Association][National Cooperative Bank, N.A.]
Directing Certificateholder: KKR Real Estate Credit Opportunity Partners II L.P.

I. Population of Mortgage Loans that Were Considered in Compiling this Report

1. The [General][NCB] Special Servicer has notified the Operating Advisor that [●] Specially Serviced Loans were transferred to special servicing in the prior calendar year [INSERT YEAR].

a. [ ● ] of those Specially Serviced Loans are still being analyzed by the [General][NCB] Special Servicer as part of the development of an Asset Status Report.

b. Asset Status Reports were issued with respect to [●] of such Specially Serviced Loans. This report is based only on the Specially Serviced Loans in respect of which an Asset Status Report has been issued. The Asset Status Reports may not yet be fully implemented.

II. Executive Summary

Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement, as well as the items listed below, the Operating Advisor (in accordance with the Operating Advisor’s analysis requirements outlined in the Pooling and Servicing Agreement) has undertaken a limited review of the Special Servicer’s reported actions on the loans identified in this report. Based solely on such limited review, and subject to the assumptions, limitations and qualifications set forth herein, the Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer [is/is not] operating in compliance with the Servicing Standard with respect to its performance of its duties under the Pooling and Servicing Agreement. [The Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer has failed to materially comply with the Servicing Standard as a result of the following material deviations.]

¹ This report is an indicative report and does not reflect the final form of annual report to be used in any particular year. The Operating Advisor will have the ability to modify or alter the organization and content of any particular report, subject to the compliance with the terms of the Pooling and Servicing Agreement, including, without limitation, provisions relating to Privileged Information.

Exhibit V-1

● [LIST OF MATERIAL DEVIATION ITEMS]

In addition, the Operating Advisor notes the following: [PROVIDE SUMMARY OF ANY ADDITIONAL MATERIAL INFORMATION].

● [ADD RECOMMENDATION OF REPLACEMENT OF SPECIAL SERVICER, IF APPLICABLE]

In connection with the assessment set forth in this report, the Operating Advisor:

1. Reviewed the Asset Status Reports, the Special Servicer’s assessment of compliance report, attestation report by a third party regarding the Special Servicer’s compliance with its obligations and net present value calculations and Appraisal Reduction Amount calculations and [LIST OTHER REVIEWED INFORMATION] for the following [●] Specially Serviced Loans: [List related mortgage loans]

2. Consulted with the Special Servicer as provided under the Pooling and Servicing Agreement. The Operating Advisor’s analysis of the Asset Status Reports (including related net present value calculations and Appraisal Reduction Amount calculations) related to the Specially Serviced Loans should be considered a limited investigation and not be considered a full or limited audit. For instance, we did not review each page of the Special Servicer’s policy and procedure manuals (including amendments and appendices), re-engineer the quantitative aspects of their net present value calculation, visit any property, visit the Special Servicer, visit the Directing Certificateholder or interact with any borrower. In addition, our review of the net present value calculations and Appraisal Reduction Amount calculations is limited to the mathematical accuracy of the calculations and the corresponding application of the non-discretionary portions of the applicable formulas, and as such, does not take into account the reasonableness of the discretionary portions of such formulas.

III. Specific Items of Review

1. The Operating Advisor reviewed the following items in connection with the generation of this report: [LIST MATERIAL ITEMS].

2. During the prior year, the Operating Advisor consulted with the Special Servicer regarding its strategy plan for a limited number of issues related to the following Specially Serviced Loans: [LIST]. The Operating Advisor participated in discussions and made strategic observations and recommended alternative courses of action to the extent it deemed such observations and recommendations appropriate.

3. Appraisal Reduction Amount calculations and net present value calculations:

4. The Operating Advisor [received/did not receive] information necessary to recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portions of the applicable

Exhibit V-2

               formulas required to be utilized in connection with any Appraisal Reduction Amount or net present value calculations used in the Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan prior to the utilization by the Special Servicer.

a. The Operating Advisor [agrees/does not agree] with the [mathematical calculations] [and/or] [the application of the applicable non-discretionary portions of the formula] required to be utilized for such calculation.

b. After consultation with the Special Servicer to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations, such inaccuracy [has been/ has not been] resolved.

5. The following is a general discussion of certain concerns raised by the Operating Advisor discussed in this report: [LIST CONCERNS].

6. In addition to the other information presented herein, the Operating Advisor notes the following additional items, if any: [LIST ADDITIONAL ITEMS].

IV. Assumptions, Qualifications and Disclaimers Related to the Work Product Undertaken and Opinions Related to this Report

1. As provided in the Pooling and Servicing Agreement, the Operating Advisor (i) is not required to report on instances of non-compliance with, or deviations from, the Servicing Standard or the Special Servicer’s obligations under the Pooling and Servicing Agreement that the Operating Advisor determines, in its sole discretion exercised in good faith, to be immaterial and (ii) will not be required in the ordinary course to provide or obtain a legal opinion, legal review or legal conclusion as part of that assessment.

2. In rendering our assessment herein, we have assumed that all executed factual statements, instruments, and other documents that we have relied upon in rendering this assessment have been executed by persons with legal capacity to execute such documents.

3. Except as may have been reflected in any Asset Status Report, the Operating Advisor did not participate in, or have access to, the Special Servicer’s and Directing Certificateholder’s discussion(s) regarding any Specially Serviced Loan. The Operating Advisor does not have authority to speak with the Directing Certificateholder or borrower directly. As such, the Operating Advisor relied upon the information delivered to it by the Special Servicer as well as its interaction with the Special Servicer, if any, in gathering the relevant information to generate this report. The services that we perform are not designed and cannot be relied upon to detect fraud or illegal acts should any exist.

4. The Special Servicer has the legal authority and responsibility to service any Specially Serviced Loans pursuant to the Pooling and Servicing Agreement. The

Exhibit V-3

               Operating Advisor has no responsibility or authority to alter the standards set forth therein or direct the actions of the Special Servicer.

5. Confidentiality and other contractual limitations limit the Operating Advisor’s ability to outline the details or substance of any communications held between it and the Special Servicer regarding any Specially Serviced Loans and certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Operating Advisor is given access to by the Special Servicer.

6. There are many tasks that the Special Servicer undertakes on an ongoing basis related to Specially Serviced Loans. These include, but are not limited to, assumptions, ownership changes, collateral substitutions, capital reserve changes, etc. The Operating Advisor does not participate in any discussions regarding such actions. As such, Operating Advisor has not assessed the Special Servicer’s operational compliance with respect to those types of actions.

7. The Operating Advisor is not empowered to speak with any investors directly. If the investors have questions regarding this report, they should address such questions to the Certificate Administrator through the Certificate Administrator’s website.

8. This report does not constitute recommendations to buy, sell or hold any security, nor does the Operating Advisor take into account market prices of securities or financial markets generally when performing its limited review of the Special Servicer as described above. The Operating Advisor does not have a fiduciary relationship with any Certificateholder or any other party or individual. Nothing is intended to or should be construed as creating a fiduciary relationship between the Operating Advisor and any Certificateholder, party or individual.

Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement.

Exhibit V-4

EXHIBIT W

Form of Notice from Operating Advisor Recommending

Replacement of A Special Servicer

Wilmington Trust, National Association
as Trustee
1100 North Market Street

Wilmington, Delaware 19890

Attention: CMBS Trustee BANK 2021-BNK38
Telecopy number: (302) 630-4140

Computershare Trust Company, National Association
as Certificate Administrator

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK38
Telecopy Number: (410) 715-2380

[Midland Loan Services, a Division of PNC Bank, National Association
as General Special Servicer
10851 Mastin Street, Suite 700

Overland Park, Kansas 66210

Attention: Executive Vice President – Division Head

Facsimile number: (888) 706-3565

Email: NoticeAdmin@midlandls.com]

[National Cooperative Bank, N.A.,

as NCB Special Servicer

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop]

Re:         BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38,
Recommendation of Replacement of [General][NCB] Special Servicer                                             

Ladies and Gentlemen:

This letter is delivered pursuant to Section 7.01(d) of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General

Exhibit W-1

Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”) regarding the replacement of the[General][NCB] Special Servicer. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

Based upon our review of the [General][NCB] Special Servicer’s operational practices conducted pursuant to and in accordance with Section 3.26 of the Pooling and Servicing Agreement, it is our assessment that [Midland Loan Services, a Division of PNC Bank, National Association][National Cooperative Bank, N.A.], in its current capacity as [General][NCB] Special Servicer, is not [performing its duties under the Pooling and Servicing Agreement][acting in accordance with the Servicing Standard]. The following factors support our assessment: [________].

Based upon such assessment, we further hereby recommend that [Midland Loan Services, a Division of PNC Bank, National Association][National Cooperative Bank, N.A.] be removed as [General][NCB] Special Servicer and that [________] be appointed its successor in such capacity.

	Very truly yours,
	[The Operating Advisor]
	By:
		Name:
		Title:
Dated:

Exhibit W-2

EXHIBIT X

Form of CONFIDENTIALITY Agreement

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
550 S. Tryon Street

MAC D1086-23A

23rd Floor

Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com]

[Midland Loan Services, a Division of PNC Bank, National Association
as General Special Servicer
10851 Mastin Street, Suite 700

Overland Park, Kansas 66210

Attention: Executive Vice President – Division Head

Facsimile number: (888) 706-3565

Email: NoticeAdmin@midlandls.com]

[National Cooperative Bank, N.A.,

as NCB Special Servicer

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop]

Re: Access to Certain Information Regarding BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Ladies and Gentlemen:

Reference is hereby made to that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), among the Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Defined terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.

Exhibit X-1

[_____] [__], 20[__]

Page 2

[Wells Fargo Bank, National Association (“Wells Fargo”)/Midland Loan Services, a Division of PNC Bank, National Association (“Midland”)/National Cooperative Bank, N.A. (“NCB”)] understands that [____] (the “Company”) is requesting certain confidential or non-public information relating to the Mortgage Loans to which the Company has continuing rights as a Certificateholder. The Company is requesting such information for the purpose of analyzing asset performance and evaluating any continuing rights the Company may have under the Trust (the “Permitted Purpose”). The Company agrees that the Permitted Purpose shall not include the use or disclosure of the Confidential Information (as defined below) in any manner that violates any applicable law, the Pooling and Servicing Agreement or the related mortgage loan documents.

[Wells Fargo/Midland/NCB] will provide the Company with certain confidential, non-public servicing information (the “Confidential Information”) pertaining to the Mortgage Loans and the related Mortgaged Properties and borrowers. The Company acknowledges that the Confidential Information (a) includes or may be based upon information provided to [Wells Fargo/Midland/NCB] by third parties, (b) may not have been verified by [Wells Fargo/Midland/NCB], and (c) may be incomplete or contain inaccuracies. The Company agrees that [Wells Fargo/Midland/NCB], the [“General Master Servicer”/”General Special Servicer”/ “NCB Master Servicer”/ “NCB Special Servicer”] (as defined in the Pooling and Servicing Agreement) and its respective Representatives (as defined below) shall not have any liability to the Company or its Representatives resulting from (x) any inaccuracies or omissions in the Confidential Information, (y) any use of the Confidential Information, or (z) [Wells Fargo/Midland/NCB]’s failure or inability to provide the Confidential Information to the Company for any reason. Notwithstanding the foregoing, the following will not constitute “Confidential Information” for purposes of this letter agreement: (a) information that was already in Company’s possession prior to its receipt from [Wells Fargo/Midland/NCB]; (b) information that is obtained by Company from a third person who, insofar as is known to Company, is not prohibited from transmitting the information to Company by a contractual, legal or fiduciary obligation to [Wells Fargo/Midland/NCB]; (c) information that is or becomes publicly available through no fault of Company; and (d) information that is independently developed by Company. The term “Representatives” with respect to any entity shall mean the officers, directors, general partners, employees, agents, affiliates, auditors and legal counsel (which may be internal counsel) of that entity.

The Company may have access to the Confidential Information through (at [Wells Fargo/Midland/NCB]’s election): (i) responses to reasonable written inquiries received from the Company, (ii) conference calls conducted on a reasonably scheduled basis with [Wells Fargo/Midland/NCB]’s surveillance group, or (iii) direct on-line access (read-only capacity) to the information available on the applicable [____] system or any successor or replacement system (“System”). [Wells Fargo/Midland/NCB] may cease or defer providing the Company with Confidential Information in the event that (a) the Company or its Representatives violate any provision hereof, or (b) [Wells Fargo/Midland/NCB] determines (in its sole discretion) that such termination is necessary for any reason, including its determination that such action is required pursuant to the terms of the Pooling and Servicing Agreement, the related Mortgage Loan documents, or any applicable law. [Wells Fargo/Midland/NCB] shall cease to provide the Company with Confidential Information if [Wells Fargo/Midland/NCB] has actual knowledge that the Company or its Representatives are affiliates of any borrower under the Mortgage Loan documents and [Wells Fargo/Midland/NCB] determines that the provision, notice or access to such

Exhibit X-2

[_____] [__], 20[__]

Page 3

Confidential Information would violate the accepted servicing practices or servicing standards as defined in the Pooling and Servicing Agreement. The Company’s obligations and the restrictions applicable to the protection of the Confidential Information hereunder shall survive the termination of the Company’s access to the Confidential Information. [Wells Fargo/Midland/NCB]’s remedies hereunder, at law or at equity, are cumulative and may be combined.

The Company agrees that it will not, and it shall not permit its Representatives, to disclose the Confidential Information in any manner whatsoever to any other person or entity, other than its Representatives (but only to the extent necessary to accomplish the Permitted Purpose) who have a need to know the information, or as otherwise required by applicable law, court order or any governmental agency or regulator. The Company acknowledges (i) its obligations under the U.S. federal securities laws, and (ii) that any disclosure of the Confidential Information by it or its Representatives for any purpose other than a Permitted Purpose, in addition to being a breach of this letter agreement, may constitute a violation of federal and state securities laws. The Company will take reasonable measures to ensure that each Representative is advised of this letter agreement and agrees to keep the Confidential Information confidential. The Company shall be liable for any breach of this letter agreement by its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the Company or any of its Representatives. Notwithstanding the foregoing, the Company may subsequently provide all or any part of such Confidential Information to any other person or entity that holds or is contemplating the purchase of any Certificate or interest therein, but only if such person or entity confirms such ownership interest or prospective ownership interest and provided that, prior to the delivery of such Confidential Information, such persons shall have executed and delivered to the Company an agreement that is substantially similar in form and substance to this agreement.

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York without the application of conflict of laws principles. Anything herein to the contrary notwithstanding, [Wells Fargo/Midland/NCB] intends at all times to comply with the terms and provisions of the Pooling and Servicing Agreement and nothing in this letter agreement should be construed to limit or qualify any of [Wells Fargo/Midland/NCB]’s rights or obligations under the Pooling and Servicing Agreement. This letter agreement may be executed in counterparts and by facsimile/Portable Document Format (PDF); each such counterpart shall be deemed to be an original instrument, and all such counterparts together shall constitute one agreement.

This agreement shall terminate with respect to the information received by the Company one year after the Company receives such information or ceases to be a Certificateholder. Company agrees that this letter agreement supersedes and replaces and survives any click-through agreement regarding confidentiality of Confidential Information agreed to in connection with accessing the System whether agreed to in accessing the System before or after signing this letter agreement.

Exhibit X-3

Please have an authorized signatory countersign in the space provided below to indicate the Company’s confirmation of, and agreement to, the matters set forth herein.

Very truly yours,
[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]
[MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, National Association
By:
	Name:
	Title:]
[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name:
	Title:]

CONFIRMED AND AGREED TO:
[COMPANY NAME]
By:
	Name:
	Title:

Exhibit X-4

EXHIBIT Y

FORM CERTIFICATION TO BE PROVIDED WITH FORM 10-K

CERTIFICATION

I, [identify the certifying individual], certify that:

1. I have reviewed this report on Form 10-K, and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of BANK 2021-BNK38 (the “Exchange Act periodic reports”);

2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;

4. Based on my knowledge and the servicer compliance statements required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreements in all material respects; and

5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K.

In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties:

[(A) Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer;

(B) [List other applicable reporting servicers]]

Exhibit Y-1

Date:

President

Morgan Stanley Capital I Inc.

(Senior officer in charge of the securitization of the depositor)

Exhibit Y-2

EXHIBIT Y-1

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY CERTIFICATE ADMINISTRATOR

BANK 2021-BNK38 (the “Trust”)

The undersigned, __________, a __________ of COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION on behalf of COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Certificate Administrator (the “Certificate Administrator”), under that certain Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, the Certificate Administrator, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [_______], the Depositor, each Other Depositor and each Other Certificate Administrator with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. I have reviewed the annual report on Form 10-K for the fiscal year 20[__] (the “Annual Report”), and all reports on Form 10-D and Form 8-K to be filed in respect of periods included in the year covered by the Annual Report (collectively with the Annual Report, the “Reports”);

2. To my knowledge, the Reports taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the Annual Report;

3. To my knowledge, the distribution information required to be provided by the Certificate Administrator under the Pooling and Servicing Agreement for inclusion in the Reports is included in the Reports;

4. I am responsible for reviewing the activities performed by the Certificate Administrator under the Pooling and Servicing Agreement and based on my knowledge and the compliance reviews conducted in preparing the Certificate Administrator compliance statements required for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB, and except as disclosed on any Reports, the Certificate Administrator has fulfilled its obligations in all material respects under the Pooling and Servicing Agreement; and

Exhibit Y-1-1

5. The report on assessment of compliance with servicing criteria applicable to the Certificate Administrator for asset-backed securities with respect to the Certificate Administrator or any Servicing Function Participant retained by the Certificate Administrator and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Depositor for disclosure in such annual report on Form 10-K.

In giving the certifications above, the Certificate Administrator has reasonably relied on information provided to it by the following unaffiliated persons: the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Depositor, the Trustee and/or the Custodian.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:               

[COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
By:
	Name:
	Title:]

Exhibit Y-1-2

Exhibit Y-2

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY MASTER SERVICER

BANK 2021-BNK38 (the “Trust”)

I, [identify the certifying individual], a [_______________] of [WELLS FARGO BANK, NATIONAL ASSOCIATION][NATIONAL COOPERATIVE BANK, N.A.[, as [General][NCB] Master Servicer under that certain Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Master Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), and assuming the accuracy of the statements required to be made by each Special Servicer in the special servicer backup certificate delivered by each Special Servicer relating to the Relevant Period, all servicing information and all reports (the “Servicer Reports”) required to be submitted by the [General][NCB] Master Servicer to the Certificate Administrator pursuant to Sections 3.12(b) and (d) of the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Master Servicer to the Certificate Administrator for inclusion in these reports;

2. Based on my knowledge, and assuming the accuracy of the statements required to be made by each Special Servicer in the special servicer backup certificate delivered by each Special Servicer relating to the Relevant Period, the master servicing information contained in the Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Master Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the annual compliance reviews

Exhibit Y-2-1

conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB with respect to the [General][NCB] Master Servicer, and except as disclosed in the compliance certificate delivered by the [General][NCB] Master Servicer under Section 11.09 of the Pooling and Servicing Agreement, the [General][NCB] Master Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Master Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Master Servicer’s assessment of compliance with the Relevant Servicing Criteria in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Master Servicer for asset-backed securities with respect to the [General][NCB] Master Servicer or any Servicing Function Participant retained by the [General][NCB] Master Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

[In giving the certification above, I have reasonably relied on and make no certification as to information provided to me by the following unaffiliated parties: [name(s) of third parties (including the [General][NCB] Special Servicer, but other than a Sub-Servicer, Additional Servicer or any other third party retained by the [General][NCB] Master Servicer that is not a Sub-Servicer appointed pursuant to Section 3.20 of the Pooling and Servicing Agreement) and, notwithstanding the foregoing certifications, neither I nor the [General][NCB] Master Servicer makes any certification under the foregoing clauses (2) and (3) with respect to the information in the Servicer Reports that is in turn dependent upon information provided by the [General][NCB] Special Servicer under the Pooling and Servicing Agreement. Solely with respect to the completeness of information and reports, I do not certify anything other than that all fields of information called for in written reports prepared by the [General][NCB] Master Servicer have been properly completed and that any fields that have been left blank on their face have been done so in accordance with the CREFC procedures for such report.]

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Exhibit Y-2-2

[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]
[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name:
	Title:]

Exhibit Y-2-3

Exhibit Y-3

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY SPECIAL SERVICER

BANK 2021-BNK38 (the “Trust”)

I, [identify the certifying individual], a [_______________] of [MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, National Association][national cooperative bank, n.a.], as [General][NCB] Special Servicer under that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Special Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all servicing information and all required reports (the “Special Servicer Reports”) required to be submitted by the [General][NCB] Special Servicer pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Special Servicer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the special servicing information contained in the Special Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Special Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion in the Form 10-K under Item 1123 of Regulation AB with respect to the [General][NCB] Special Servicer, and

Exhibit Y-3-1

except as disclosed in the compliance certificate delivered by the [General][NCB] Special Servicer under Section 11.09 of the Pooling and Servicing Agreement, the [General][NCB] Special Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Special Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Special Servicer assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Special Servicer for asset-backed securities with respect to the [General][NCB] Special Servicer or any Servicing Function Participant retained by the [General][NCB] Special Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:       

[General][NCB] Special Servicer
By:
	Name:
	Title:

Exhibit Y-3-2

Exhibit Y-4

Form of Certification to be Provided
to Depositor by Trustee

BANK 2021-BNK38 (The “Trust”)

The undersigned, __________, a __________ of WILMINGTON TRUST, NATIONAL ASSOCIATION, on behalf of WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee (the “Trustee”), under that certain Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), the Trustee, Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [______], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Trustee for asset-backed securities with respect to the Trustee or any Servicing Function Participant retained by the Trustee and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:       

WILMINGTON TRUST, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit Y-4-1

Exhibit Y-5

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY OPERATING ADVISOR

BANK 2021-BNK38 (the “Trust”)

I, [identify the certifying individual], a [_______________] of PENTALPHA SURVEILLANCE LLC (the “Operating Advisor”) as Operating Advisor under that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”) and Pentalpha Surveillance LLC, as Operating Advisor and as asset representations reviewer, on behalf of the Operating Advisor, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Operating Advisor, collectively, the “Operating Advisor Periodic Information”) have been submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the Operating Advisor Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

Exhibit Y-5-1

3. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the Operating Advisor with respect to the Trust’s fiscal year ________ have been provided all information relating to the Operating Advisor’s assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

4. The report on assessment of compliance with servicing criteria applicable to the Operating Advisor for asset-backed securities with respect to the Operating Advisor or any Servicing Function Participant retained by the Operating Advisor and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

PENTALPHA SURVEILLANCE LLC
By:
	Name:
	Title:

Exhibit Y-5-2

Exhibit Y-6

Form of Certification to be Provided
to Depositor by CUSTODIAN

BANK 2021-BNK38 (The “Trust”)

The undersigned, __________, a __________ of COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, on behalf of COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Custodian (the “Custodian”), under that certain Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [______], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Custodian for asset-backed securities with respect to the Custodian or any Servicing Function Participant retained by the Custodian and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit Y-6-1

Exhibit Y-7

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY ASSET REPRESENTATIONS REVIEWER

BANK 2021-BNK38 (the “Trust”)

I, [identify the certifying individual], a [_______________] of PENTALPHA SURVEILLANCE LLC (the “Asset Representations Reviewer”) as Asset Representations Reviewer under that certain Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, and Computershare Trust Company, National Association, as certificate administrator (the “Certificate Administrator”) and Pentalpha Surveillance LLC, as operating advisor and as Asset Representations Reviewer, on behalf of the Asset Representations Reviewer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Asset Representations Reviewer, collectively, the “Asset Representations Reviewer Periodic Information”) have been submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports; and

2. Based on my knowledge, the Asset Representations Reviewer Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports.

Exhibit Y-7-1

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

PENTALPHA SURVEILLANCE LLC
By:
	Name:
	Title:

Exhibit Y-7-2

EXHIBIT Z

Servicing Criteria
to be Addressed in Assessment of Compliance

The assessment of compliance to be delivered by the referenced party shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria” applicable to such party, as such criteria may be updated or limited by the Commission or its staff (including, without limitation, not requiring the delivery of certain of the items set forth on this Exhibit based on interpretive guidance provided by the Commission or its staff relating to Item 1122 of Regulation AB). In addition, this Exhibit Z shall not be construed to impose on any Person any servicing duty that is not otherwise imposed on such Person under the main body of the Pooling and Servicing Agreement of which this Exhibit Z forms a part or to require an assessment of a criterion that is not encompassed by the servicing duties of the applicable party that are set forth in the main body of such Pooling and Servicing Agreement. For the avoidance of doubt, for purposes of this Exhibit Z, other than with respect to Item 1122(d)(2)(iii), references to Servicer below shall include any Sub-Servicer engaged by the Master Servicer or the Special Servicer.

Applicable Servicing Criteria		applicable party(ies)
Reference	Criteria
	General Servicing Considerations
1122(d)(1)(i)	Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(ii)	If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(iii)	Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.	N/A
1122(d)(1)(iv)	A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer Custodian (as applicable)
1122(d)(1)(v)	Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
	Cash Collection and Administration
1122(d)(2)(i)	Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(ii)	Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.	Certificate Administrator

Exhibit Z-1

1122(d)(2)(iii)	Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.	Trustee (as applicable)1 General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(iv)	The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(v)	Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Exchange Act.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(vi)	Unissued checks are safeguarded so as to prevent unauthorized access.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(vii)	Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations (A) are mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
	Investor Remittances and Reporting
1122(d)(3)(i)	Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer.	Certificate Administrator Operating Advisor (with respect to A and B)
1122(d)(3)(ii)	Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.	Certificate Administrator
1122(d)(3)(iii)	Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.	Certificate Administrator
1122(d)(3)(iv)	Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.	Certificate Administrator
	Pool Asset Administration
1122(d)(4)(i)	Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.	Custodian General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(ii)	Mortgage loan and related documents are safeguarded as required by the transaction agreements	Custodian

¹ Only to the extent that the Trustee was required to make an Advance pursuant to the Pooling and Servicing Agreement during the applicable calendar year.

Exhibit Z-2

1122(d)(4)(iii)	Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(iv)	Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.	General Master Servicer NCB Master Servicer
1122(d)(4)(v)	The Reporting Servicer’s records regarding the mortgage loans agree with the Reporting Servicer’s records with respect to an obligor’s unpaid principal balance.	General Master Servicer NCB Master Servicer
1122(d)(4)(vi)	Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(vii)	Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.	General Special Servicer NCB Special Servicer Operating Advisor
1122(d)(4)(viii)	Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(ix)	Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.	General Master Servicer NCB Master Servicer
1122(d)(4)(x)	Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xi)	Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xii)	Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.	General Master Servicer NCB Master Servicer
1122(d)(4)(xiii)	Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xiv)	Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xv)	Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.	N/A

At all times that the Certificate Administrator and the Trustee are the same entity, the Trustee and Certificate Administrator may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit Z-3

At all times that the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer are the same entity, the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer, as applicable, may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit Z-4

EXHIBIT AA

ADDITIONAL FORM 10-D DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.04 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator (or the applicable Master Servicer to the extent specified in Section 11.04 of the Pooling and Servicing Agreement) any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-D that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK38 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-D	Party Responsible
Item 1A: Distribution and Pool Performance Information: ●     Item 1111(h) of Regulation AB  ●     Item 1125 of Regulation AB  ●     Item 1121(a)(13) of Regulation AB	●      Each Master Servicer ●     Certificate Administrator
Item 1B: Distribution and Pool Performance Information: ●     Item 1121(a)(14) of Regulation AB  ●     Item 1121(d) of Regulation AB  ●     Item 1121(e) of Regulation AB	●     Certificate Administrator ●     Depositor ●     Asset Representations Reviewer

Exhibit AA-1

Item 2: Legal Proceedings: ●     Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)	●     Each Master Servicer (as to itself) ●     Each Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Depositor (as to itself) ●     Operating Advisor (as to itself) ●     Any other Reporting Servicer (as to itself) ●     Trustee/Certificate Administrator/each Master Servicer/Depositor/each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●     Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB
Item 3: Sale of Securities and Use of Proceeds	●     Depositor
Item 4: Defaults Upon Senior Securities	●     Certificate Administrator
Item 5: Submission of Matters to a Vote of Security Holders	●     Certificate Administrator
Item 6: Significant Obligors of Pool Assets: ●     Item 1112(b) of Regulation AB provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or	●     Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Each Special Servicer (as to Specially Serviced Loans and REO Properties)

Exhibit AA-2

property (if any) identified as a “significant obligor” in the Prospectus; (b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable in the Form 10-D that relates to the Distribution Date that immediately follows the Collection Period in which the information was received or prepared by the “Party Responsible” as described in clause (b) above.
Item 7: Change in Sponsor Interest in the Securities: ●     Item 1124 of Regulation AB.	●     Each Mortgage Loan Seller (as to itself in its capacity as a sponsor as defined in Regulation AB)
Item 8: Significant Enhancement Provider Information: ●     Item 1114(b)(2) and Item 1115(b) of Regulation AB	●     Depositor
Item 9: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit CC, (b) such information is required to be reported as	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit CC.

Exhibit AA-3

“Additional Form 8-K Disclosure” during the period to which the Form 10-D relates, and (c) such information was not previously reported as “Additional Form 8-K Disclosure”.	●    Certificate Administrator (including the balances of the Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account as of the related Distribution Date and the preceding Distribution Date)  ●    Each Master Servicer (with respect to the balance of its Collection Account as of the related Distribution Date and the preceding Distribution Date)  ●    Each Special Servicer (with respect to the balance of each applicable REO Account as of the related Distribution Date and the preceding Distribution Date)  ●    Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders)
Item 10: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●     Depositor
Item 10: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Certificate Administrator  ●     Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement  provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party.
Item 10: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a

Exhibit AA-4

	subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust.
Item 10: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K), but only if the party that is the “Party Responsible” with respect to Item 5 above elects to publish a report containing the information required by such Item 5 above and also elects to report the information on Form 10-D by means of filing the published report and answering Item 5 by referencing the published report.	●     The applicable party that is the “Party Responsible” with respect to Item 5 as set forth above.
Item 10: Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●     Depositor
Item 10: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 10: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 10: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 10: Exhibits (By Operation of Item 8 Above), but only to the extent of any document that meets all the following conditions: (a) such document constitutes “Additional Form 8-K Disclosure” pursuant to Item 9.01(d) of Exhibit CC, (b) such	●    Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9(d) of Exhibit CC (it being acknowledged that no Master Servicer or Special Servicer constitutes a

Exhibit AA-5

document is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-D relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”. “Party Responsible” under Exhibit CC with respect to any exhibits to a Form 10-K); provided that, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party for this Item 10.

Exhibit AA-6

EXHIBIT BB

ADDITIONAL FORM 10-K DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.05 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK38 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-K	Party Responsible
Item 1B: Unresolved Staff Comments	●     Depositor

Exhibit BB-1

Item 9B: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit CC, (b) such information is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such information was not previously reported as “Additional Form 8-K Disclosure” or as “Additional Form 10-D Disclosure”	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit CC.
Item 15: Exhibits, Financial Statement Schedules (SEE BELOW)	SEE BELOW
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 1 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was required to have been set forth in the Prospectus, (ii) such information was not so set forth and (iii) the applicable Master Servicer has not previously reported such information as “Additional Form 10-D Information”.	●     The applicable Mortgage Loan Seller.
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 2 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was set forth in the Prospectus and (ii) the applicable Master Servicer has not previously reported such information or updated versions thereof as “Additional Form 10-D Information”.	●      Depositor

Exhibit BB-2

Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 3 of 3 Parts: ●     Item 1112(b) of Regulation AB; provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or property (if any) identified as a “significant obligor” in the Prospectus;	●     Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Each Special Servicer (as to Specially Serviced Loans and REO Properties)
(b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor described under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable only to the extent that is has not previously been reported as “Additional Form 10-D Information”.
Instruction J(2)(c) (Significant Enhancement Provider Information): ●     Items 1114(b)(2) and 1115(b) of Regulation AB	●      Depositor

Exhibit BB-3

Instruction J(2)(d) (Legal Proceedings): ●     Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)

●     Each Master Servicer (as to itself) ●     Each Special Servicer (as to itself) ●      Certificate Administrator (as to itself) ●      Trustee (as to itself) ●      Depositor (as to itself) ●     Trustee/Certificate Administrator/each Master Servicer/Depositor/each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●     Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●     Originators under Item 1110 of Regulation AB ●    Party under Item 1100(d)(1) of Regulation AB

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 1 of 2 Parts: 1119(a) of Regulation AB, but only the existence and (if existent) how there is (that is, the nature of) any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, (3) the Trust and (4) any other party listed under this item as a “Party Responsible”; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●    1119(b) of Regulation AB,

●     Each Master Servicer (as to itself) (only as to affiliations under Item 1119(a) with the Trustee, Certificate Administrator, each Special Servicer or a sub-servicer retained by it meeting any of the descriptions in Item 1108(a)(3)).  ●     Each Special Servicer  ●     Certificate Administrator  ●     Trustee  ●     Each party (other than a Mortgage Loan Seller), if any, that is identified in the Prospectus as an “originator” of one or more Mortgage Loans, if the Prospectus specifically states that the applicable Mortgage Loans were 10% or more of the assets of the Trust at the date of the Prospectus (provided that such a party shall no longer constitute a “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer

Exhibit BB-4

but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK38 transaction) between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(c) of Regulation AB, but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK38 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus constitutes an originator of 10% or more of the assets of the Trust).  ●     Each party (other than a Mortgage Loan Seller), if any, that is specifically identified as an “originator of 10% or more of the assets of the Trust for purposes of Regulation AB and the upcoming Form 10-K” in a written notice delivered to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than February 15 of the year in which the Form 10-K is due.  ●     Each party (if any) that is identified in the Prospectus as an “other material party to the securities or transaction” (or substantially similar phrasing); provided, however, that such a party shall no longer constitute a “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer constitutes a material party for purposes of Regulation AB.  ●     Each party (if any) that that is specifically identified as an “other material party to the securities or transaction for purposes of Regulation AB and the upcoming Form 10-K” (or substantially similar phrasing) in a written notice delivered by the Depositor to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than February 15 of the year in which the Form 10-K is due.

Exhibit BB-5

or if it was previously reported as “Additional Form 10-K Disclosure”.

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 2 of 2 Parts: 1119(a) of Regulation AB, But only the existence and (if existent) how there is any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●    1119(b) of Regulation AB, but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK38 transaction) between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was

●     Depositor  ●     Each Mortgage Loan Seller

Exhibit BB-6

previously reported as “Additional Form 10-K Disclosure”. and ●    1119(c) of Regulation AB, but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK38 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”.
Item 15: Exhibits (no. 2): Plan of acquisition, reorganization, arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)	●      Depositor
Item 15: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●      Depositor

Exhibit BB-7

Item 15: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Trustee  ●      Certificate Administrator  ●      Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party.
Item 15: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust.
Item 15: Exhibits (no. 11): Statement regarding computation of per share earnings (Exhibit No. 11 of Item 601 of Regulation S-K)	●      Not Applicable
Item 15: Exhibits (no. 12): Statement regarding computation of ratios (Exhibit No. 12 of Item 601 of Regulation S-K)	●      Not Applicable.
Item 15: Exhibits (no. 13): Annual report to security holders, Form 10-Q and Form 10-QSB, or quarterly report to security holders (Exhibit No. 13 of Item 601 of Regulation S-K)	●      Not Applicable
Item 15: Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K)	●      Not Applicable.

Exhibit BB-8

Item 15: Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●     Not Applicable
Item 15: Exhibits (no. 18): Letter re change in accounting principles (Exhibit No. 18 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 21): Subsidiaries of registrant (Exhibit No. 18 of Item 601 of Regulation S-K)	●     Depositor.
Item 15: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (no. 23) – Part 1 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where (a) the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement and (b) the consent is not the consent of a registered public accounting firm in connection with an attestation delivered pursuant to Section 11.13 of this Pooling and Servicing Agreement.	●     Depositor
Item 15: Exhibits (no. 23) – Part 2 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), but the required shall consist of a consent of the registered public accounting firm for purposes of any attestation report rendered with respect to the particular “Party Responsible” pursuant to Section 11.13 of this Pooling and Servicing Agreement.	●     Each Master Servicer  ●      Each Special Servicer  ●      Depositor  ●      Any other Servicing Function Participant provided, however, in each case, that such party shall have the duty to report or deliver, or cause the reporting or delivery, of such consent only to the extent that such party is required to deliver or cause the delivery of the related attestation report.

Exhibit BB-9

Item 15: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 15: Exhibits (no. 31(i)) Rule 13a-14(a)/15d-14(a) Certifications (Exhibit No. 31(i) of Item 601 of Regulation S-K).	●     Not Applicable
Item 15: Exhibits (no. 31(ii)) Rule 13a-14(d)/15d-14(d) Certifications (Exhibit No. 31(ii) of Item 601 of Regulation S-K).	●     Delivery of this exhibit (Sarbanes-Oxley certification and backup certifications) is governed by Section 11.08 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 32) Section 1350 Certifications (Exhibit No. 32 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (no. 33) Report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 33 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual compliance assessment) is governed by Section 11.10 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 34) Attestation report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 34 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual accountants’ attestation report) is governed by Section 11.11 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 35) Servicer compliance statement (Exhibit No. 35 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual servicer compliance statements) is governed by Section 11.09 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibit (no. 36) Certification For Shelf Offerings of Asset-Backed Securities (Exhibit No. 36 of Item 601 of Regulation S-K).	●     Depositor

Exhibit BB-10

Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (By Operation of Item 9B Above), but only to the extent of any document that meets all the following conditions: (a) such document constitutes “Additional Form 8-K Disclosure” pursuant to Item 9.01(d) of Exhibit CC, (b) such document is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”.	●     Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9(d) of Exhibit CC (it being acknowledged that no Master Servicer or Special Servicer constitutes a “Party Responsible” under Exhibit CC with respect to any exhibits to a Form 10-K).
Item 15: Exhibit (no. 101) Interactive Data File (Exhibit No. 101 of Item 601 of Regulation S-K).	Not Applicable
Item 15: Exhibit (no. 102) Asset Data File (Exhibit No. 102 of Item 601 of Regulation S-K).	[Certificate Administrator] [Depositor]
Item 15: Exhibit (no. 103) Asset Related Document (Exhibit No, 103 of Item 601 of Regulation S-K).	[Certificate Administrator]  [Depositor]

Exhibit BB-11

EXHIBIT CC

FORM 8-K DISCLOSURE INFORMATION

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.07 of the Pooling and Servicing Agreement to report to the Depositor and the Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 8-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK38 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 8-K

Party Responsible

Item 1.01: Entry into a Material Definitive Agreement

●    Depositor, except as described in the next bullet (it being acknowledged that Item 601 of Regulation S-K requires filing of material contracts to which the registrant or a subsidiary thereof is a party). ●    Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer (it being acknowledged that Instruction 3 to Item 1.01 of Form 8-K requires disclosure regarding the entry into or an amendment of a definitive agreement that is material to the asset-backed securities transaction, even if the registrant is not a party to

Exhibit CC-1

	such agreement), in each case to the extent of any amendment or definitive agreement that satisfies all the following conditions: (a) such amendment or definitive agreement relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such amendment or definitive agreement is an amendment or definitive agreement to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02: Termination of a Material Definitive Agreement– Part 1 of 2 Parts	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02: Termination of a Material Definitive Agreement– Part 2 of 2 Parts	●     Depositor, to the extent of any material agreement not covered in the prior item
Item 1.03: Bankruptcy or Receivership	●     Depositor

Exhibit CC-2

Item 2.04: Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement	●     Depositor  ●     Certificate Administrator
Item 3.03: Material Modification to Rights of Security Holders	●     Certificate Administrator
Item 5.03: Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year	●     Depositor
Item 6.01: ABS Informational and Computational Material	●     Depositor
Item 6.02 (Part 1 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a change in trustee	●    Trustee  ●     Depositor
Item 6.02 (Part 2 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a change in Master Servicer or Special Servicer	●     Certificate Administrator  ●     Each Master Servicer or Special Servicer, as the case may be (in each case, as to itself)
Item 6.02 (Part 3 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a servicer (other than a party to the Pooling and Servicing Agreement) appointed by the particular “Party Responsible”.	●    Each Master Servicer (as to a party appointed by such Master Servicer)  ●     Each Special Servicer  ●     Certificate Administrator  ●     Depositor
Item 6.03: Change in Credit Enhancement or External Support	●    Depositor  ●    Certificate Administrator
Item 6.04: Failure to Make a Required Distribution	●     Certificate Administrator
Item 6.05: Securities Act Updating Disclosure	●     Depositor
Item 7.01: Regulation FD Disclosure	●     Depositor
Item 8.01: Other Events	●     Depositor
Item 9.01(d): Exhibits (no. 1): Underwriting agreement (Exhibit No. 1 of Item 601 of Regulation S-K)	●     Not applicable
Item 9.01(d): Exhibits (no. 2): Plan of acquisition, reorganization, arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)	●     Depositor
Item 9.01(d): Exhibits (no. 3):	●     Depositor

Exhibit CC-3

Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)
Item 9.01(d): Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●      Certificate Administrator provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement
Item 9.01(d): Exhibits (no. 7): Correspondence from an independent accountant regarding non-reliance on a previously issued audit report or completed interim review. (Exhibit No. 7 of Item 601 of Regulation S-K)	●      Not Applicable
Item 9.01(d): Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K)	●      Not Applicable
Item 9.01(d): Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●      Not Applicable
Item 9.01(d): Exhibits (no. 17): Correspondence on departure of director (Exhibit No. 17 of Item 601 of Regulation S-K)	●      Not Applicable
Item 9.01(d): Exhibits (no. 20): Other documents or statements to security holders (Exhibit No. 20 of Item 601 of Regulation S-K)	●      Not Applicable
Item 9.01(d): Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●      Depositor
Item 9.01(d): Exhibits (no. 24)	●      Certificate Administrator

Exhibit CC-4

Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.
Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●      Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●      Not Applicable.

Exhibit CC-5

EXHIBIT DD

ADDITIONAL DISCLOSURE NOTIFICATION

**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO
cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Computershare Trust Company, National Association, as Certificate Administrator

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Corporate Trust Services (CMBS)

Morgan Stanley Capital I Inc., BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38—SEC REPORT PROCESSING

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section [11.04] [11.05] [11.07] of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [         ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [                      ], phone number: [        ]; email address: [                  ].

	[NAME OF PARTY],
	as [role]
	By:
		Name:
		Title:
cc: Depositor

Exhibit DD-1

EXHIBIT EE

INITIAL SUB-SERVICERS

1.	Grandbridge Real Estate Capital LLC
2.	NorthMarq Capital, LLC

3. MMI Servicing, Inc.

4. JLL Real Estate Capital, LLC

5. NRC Group, Inc.

Exhibit EE-1

EXHIBIT FF

SERVICING FUNCTION PARTICIPANTS

1.        KeyBank National Association

Exhibit FF-1

EXHIBIT GG

FORM OF ANNUAL COMPLIANCE STATEMENT

CERTIFICATION

BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38
(the “Trust”)

I, [identifying the certifying individual], on behalf of [Wells Fargo Bank, National Association, as General Master Servicer] [Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer] [National Cooperative Bank, N.A., as NCB Master Servicer] [National Cooperative Bank, N.A., as NCB Special Servicer] [Computershare Trust Company, National Association, as [Certificate Administrator][Custodian]] [Wilmington Trust, National Association, as Trustee] (the “Certifying Servicer”), certify to Morgan Stanley Capital I Inc. and its officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. I (or Servicing Officers under my supervision) have reviewed the Certifying Servicer’s activities [during the preceding calendar year] [between [__] and [__]] (the “Reporting Period”) and the Certifying Servicer’s performance under the Pooling and Servicing Agreement; and

2. To the best of my knowledge, based on such review, the Certifying Servicer has fulfilled all of its obligations under the Pooling and Servicing Agreement in all material respects during the Reporting Period. [To my knowledge, the Certifying Servicer has failed to fulfill the following obligations under the Pooling and Servicing Agreement: [SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS THEREOF]].

Date: ______________________________

[WELLS FARGO BANK, NATIONAL ASSOCIATION,

as General Master Servicer]

[MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, National Association,

as General Special Servicer]

[NATIONAL COOPERATIVE BANK, N.A.,

as NCB Master Servicer]

[NATIONAL COOPERATIVE BANK, N.A.,

Exhibit GG-1

as NCB Special Servicer]
[COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as [Certificate Administrator][Custodian]]
[WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee]
By:
	Name:
	Title:

Exhibit GG-2

EXHIBIT HH

FORM OF REPORT ON ASSESSMENT OF
COMPLIANCE with SERVICING CRITERIA

[Name of Reporting Servicer] (the “Reporting Servicer”) is responsible for assessing compliance with the servicing criteria applicable to it under paragraph (d) of Item 1122 of Regulation AB, as of and for the 12-month period ending December 31, 20[__] (the “Reporting Period”), as set forth in Exhibit Z to the Pooling and Servicing Agreement. The transactions covered by this report include asset-backed securities transactions for which the Reporting Servicer acted as [a master servicer, special servicer, trustee, certificate administrator] involving commercial mortgage loans [other than __________________¹] (the “Platform”);

The Reporting Servicer has engaged certain vendors, which are not servicers as defined in Item 1101(j) of Regulation AB (the “Vendors”) to perform specific, limited or scripted activities, and the Reporting Servicer elects to take responsibility for assessing compliance with the servicing criteria or portion of the servicing criteria applicable to such Vendors’ activities as set forth on Schedule A;

Except as set forth in paragraph 4 below, the Reporting Servicer used the criteria set forth in paragraph (d) of Item 1122 of Regulation AB to assess the compliance with the applicable servicing criteria;

The criteria listed in the column titled “Inapplicable Servicing Criteria” on Schedule A hereto are inapplicable to the Reporting Servicer based on the activities it performs, directly or through its Vendors, with respect to the Platform;

The Reporting Servicer has complied, in all material respects, with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified and is not aware of any material instance of noncompliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified any material deficiency in its policies and procedures to monitor the compliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto]; and

¹     Describe any permissible exclusions, including those permitted under telephone interpretation 17.04 (i.e., transactions registered prior to compliance with Regulation AB, transactions involving an offer and sale of asset-backed securities that were not required to be issued), if applicable.

Exhibit HH-1

[____], a registered public accounting firm, has issued an attestation report on the Reporting Servicer’s assessment of compliance with the applicable servicing criteria for the Reporting Period.

[Date of Certification]

[Name of Reporting Servicer]
By:
	Name:
	Title:

Exhibit HH-2

EXHIBIT II

CREFC^® PAYMENT INFORMATION

Payments shall be made to “CRE Finance Council” and sent to:

Commercial Real Estate Finance Council, Inc.

28 West 44th Street, Suite 815

New York, NY 10036

Attn: Executive Director

or by wire transfer to:

[wiring instructions are on file with each Master Servicer]

Exhibit II-1

EXHIBIT JJ

Form of Notice of ADDITIONAL

INDEBTEDNESS NOTIFICATION

VIA EMAIL:

To: Computershare Trust Company, National Association, as Certificate Administrator; cts.cmbs.bond.admin@wellsfargo.com, trustadministrationgroup@wellsfargo.com and cts.sec.notifications@wellsfargo.com

Ref: BANK 2021-BNK38, Additional Debt Notice for From 10-D

The following information is being furnished to you for inclusion on Form 10-D pursuant to Section 3.18(g) of the Pooling and Servicing Agreement

	Portfolio Name	Mortgage Loan	Position in Debt Stack	Additional Debt	OPB	OPB Date	Appraised Value	Appraised Value Date	Aggregate LTV	Aggregate NCF DSCR	Aggregate NCF DSCR Date	Primary Servicer	Master Servicer	Lead Servicer	Prospectus ID
1	BANK 2021-BNK38			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$
2	BANK 2021-BNK38			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$
3	BANK 2021-BNK38			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$

Exhibit JJ-1

EXHIBIT KK

[RESERVED]

Exhibit KK-1

EXHIBIT LL

ADDITIONAL DISCLOSURE NOTIFICATION (ACCOUNTS)

INSTRUCTIONS:

FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO:

           CTS.SEC.NOTIFICATIONS@WELLSFARGO.COM

FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Computershare Trust Company, National Association, as Certificate Administrator

9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38—SEC REPORT PROCESSING

Email: cts.sec.notifications@wellsfargo.com

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section 11.04 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [         ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

[With respect to the Collection Accounts and REO Account balance information:

Account Name	Beginning Balance as of MM/DD/YYYY	Ending Balance as of MM/DD/YYYY
General Master Servicer’s Collection Account
NCB Master Servicer’s Collection Account

Exhibit LL-1

REO Account

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [                      ], phone number: [        ]; email address: [                  ].

	[NAME OF PARTY],
	as [role]
	By:
		Name:
		Title:
cc: Depositor

Exhibit LL-2

EXHIBIT MM

Form of notice of purchase of
controlling class certificate

[Date]

Computershare Trust Company, National Association
as Certificate Administrator

9062 Old Annapolis Road
Columbia, Maryland 21045
Email: trustadministrationgroup@wellsfargo.com
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

Wells Fargo Bank, National Association
           as General Master Servicer

Commercial Mortgage Servicing
550 S. Tryon Street

MAC D1086-23A

23rd Floor

Charlotte, North Carolina 28202
Attention: BANK 2021-BNK38 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com

Midland Loan Services, a Division of PNC Bank, National Association
as General Special Servicer
10851 Mastin Street, Suite 700

Overland Park, Kansas 66210

Attention: Executive Vice President – Division Head

Facsimile number: (888) 706-3565

Email: NoticeAdmin@midlandls.com

National Cooperative Bank, N.A.
           as NCB Master Servicer and NCB Special Servicer
2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

Pentalpha Surveillance LLC
as Operating Advisor
375 N. French Road, Suite 100

Amherst, New York, 14228

Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent contemporaneously to notices@pentalphasurveillance.com)

Exhibit MM-1

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of December 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

This letter is delivered to you, pursuant to Section 3.23(a) of the Pooling and Servicing Agreement in connection with the transfer by ____________ (the “Transferor”) to us (the “Transferee”) of $__________________ original principal balance in the Class [__] Certificates, representing [_____]% of the Class [__] Certificates. The Certificates were issued pursuant to the Pooling and Servicing Agreement.

1. Our name and address is as follows:

 ____________________

 ____________________

 ____________________

Contact Info:  [Tel/Email]

2. [IF APPLICABLE]  We hereby certify, represent and warrant to you, as Certificate Administrator, that we are purchasing a majority interest in the Class [__] Certificates, and that we are not affiliated with the Transferor. To the extent that any Control Termination Event or Consultation Termination Event has occurred due to a waiver of a prior Class [__] Certificateholder of its rights under the Pooling and Servicing Agreement, we hereby request that you reinstate such rights and post a “special notice” on your website to the following effect:

“A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class to an unaffiliated third party which has terminated any waiver by the prior Holder.”

All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. 

Exhibit MM-2

Very truly yours,
(Transferee)
By:
	Name:
	Title:

Exhibit MM-3

EXHIBIT NN

FORM OF ASSET REVIEW REPORT BY THE
ASSET REPRESENTATIONS REVIEWER¹

To: [Addresses of Recipients]

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Ladies and Gentlemen:

           In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test] [evidence of [●] failed Test[s] as specifically detailed on the scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans. 

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this report to the persons listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹     This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit NN-1

PENTALPHA SURVEILLANCE LLC, as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit NN-2

Exhibit A

Detailed Scorecard
[Template Example Below]

Test failures
Loan #	Loan Name	R&W #	R&W Name	Test #	Test Description	Findings
[Insert Loan Number]	[Insert Loan Name]	[Insert R&W #]	[Insert R&W Name]		[Insert Test Description]	[Insert Test findings]
		[Insert R&W #]	[Insert R&W Name]

Exhibit NN-3

EXHIBIT OO

FORM OF ASSET REVIEW REPORT SUMMARY¹

To: [Addresses of Recipients]

Re:   BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Ladies and Gentlemen:

           In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report Summary.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test] [evidence of [●] failed Test[s] as identified on the summary scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans. 

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this Asset Review Report Summary to the parties listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report Summary.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹     This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit OO-1

PENTALPHA SURVEILLANCE LLC, as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit OO-2

Exhibit A

Summary Scorecard
[Template Example Below]

Test failures
Loan #	Loan Name	Representations and Warranty #	Representation and Warranty Name	Test #
[Insert Loan #]	[Insert Loan Name]	[Insert R&W #]	[Insert R&W Name]
		[Insert R&W #]	[Insert R&W Name]

Exhibit OO-3

EXHIBIT PP

ASSET REVIEW PROCEDURES

Pursuant to the terms and subject to the conditions set forth in the Pooling and Servicing Agreement (the “PSA”), the Asset Representations Reviewer (“Asset Representations Reviewer”) shall perform an Asset Review with respect to each representation and warranty made by the related Mortgage Loan Seller only with respect to each Delinquent Loan in accordance with the procedures set forth below (each such procedure, a “Test”); provided, however, the Asset Representations Reviewer may, but is under no obligation to, modify any Test and/or associated Review Materials described in this Exhibit PP if, and only to the extent, the Asset Representations Reviewer determines pursuant to the Asset Review Standard that it is necessary to modify such Test and/or such associated Review Materials in order to facilitate its Asset Review in accordance with the Asset Review Standard. Capitalized terms used herein but not defined herein have the meaning set forth in the PSA or, solely with respect to a representation and warranty, the meaning set forth in the related mortgage loan purchase agreement (the “Mortgage Loan Purchase Agreement”).  For the avoidance of doubt, in connection with the performance of the following Tests:

● With respect to any representation and warranty that includes a knowledge qualifier (e.g., to the Mortgage Loan Seller’s knowledge, etc.), the Asset Representations Reviewer shall not be responsible for any investigation or review beyond that set forth in the applicable Test related to such representation and warranty;

● With respect to any representation and warranty that includes the examination of an insurance policy or Title Policy, the Asset Representations Reviewer will be permitted to engage a qualified consultant to perform a review of the applicable policy, and will be allowed to rely upon the conclusions of the consultant when making a determination as to whether there is a Test pass.

● The Asset Representations Reviewer shall be under no duty to provide or obtain a legal opinion, legal review or legal conclusion;

● Unless otherwise provided in the Test, the “as of” date for the testing of a representation is as of the Closing Date;

● Unless otherwise provided in the Test, if there is more than one version of the same document with respect to a particular Mortgage Loan or Mortgaged Property, the document that will be used by the Asset Representations Reviewer in testing is the document that is dated as of the Closing Date or, if none, the document closest prior to the Closing Date;

● With respect to each representation and warranty and its related Test(s), the Asset Representations Reviewer shall take into account any exceptions to such representation and warranty described in the Mortgage Loan Purchase Agreement with respect to a Mortgage Loan, and a Test pass shall be deemed to have occurred

Exhibit PP-1

with respect to such Test if the sole reason for not satisfying the applicable Test is caused by such exception(s);

● Evidence of a failure of a Test could result from (i) an affirmative determination by the Asset Representations Reviewer that the Test failed to achieve a Test pass, or (ii) a determination by Asset Representations Reviewer that the documentation included in the Review Materials (after making such request for any missing documents in the manner provided for in the PSA) is not sufficient to perform the Test; and A determination by the Asset Representations Reviewer of a Test pass or a Test failure shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller.

The Asset Representations Reviewer will only be required to perform the Tests described in this Exhibit PP, and will not be obligated to perform additional procedures on any Delinquent Loan, even if a different set of procedures or Review Materials could produce a different outcome. Notwithstanding the required Tests, the Asset Representations Reviewer will not be required to review any information other than (1) Review Materials specified in the related Test and (2) if applicable, Unsolicited Information. The Asset Representations Reviewer may, but is under no obligation to, consider Unsolicited Information relevant to the Tests subject to the terms of the PSA. If the Asset Representations Reviewer considers Unsolicited Information, the Asset Representations Reviewer shall take into account such Unsolicited Information, in addition to the Review Materials referred to in the applicable Test(s) procedure when making a determination as to whether there is a Test pass.

Exhibit PP-2

Representations and Warranties		Test	Review Materials
1. Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan.  At the time of the sale, transfer and assignment to the Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Securitization Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement.  The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.	1a	Review the amounts listed on the original Mortgage Note and Mortgage for an indication that they match the amounts listed on the Mortgage Loan Schedule.  If the amounts are the same, then such Mortgage Loan would be considered a Whole Loan. If there is more than one property then the Mortgage for each Mortgaged Property would need to be aggregated. If identified as such, it will be a Test pass.	Mortgage; Mortgage Note; Loan agreement related to the Mortgage Loan (“Loan Agreement”); Mortgage Loan guaranty; Assignment of Leases; and Environmental Indemnity Agreement (collectively, the “Mortgage Loan Documents”); Mortgage Loan Schedule.
	1b	Review any notice previously delivered by the Master Servicer or the Special Servicer, as applicable, of any alleged defect or breach with respect to any Delinquent Loan (collectively, the “MS Servicer Notices”) for notation of any Mortgage Note or Mortgage that was subject to any assignment (other than assignments to the Mortgage Loan Seller or, with respect to any Non-Serviced Mortgage Loan, to the related Non-Serviced Trustee for the related Non-Serviced Securitization Trust), participation or pledge, or that the Mortgage Loan Seller did not have good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	1c	Review the MS Servicer Notices for notation of any claim or assertion regarding the Mortgage Loan Seller	MS Servicer Notices

Exhibit PP-3

Representations and Warranties		Test	Review Materials
		not having the full right and authority to sell, assign and transfer the Mortgage Loan. If such notation is not found, it will be a Test pass.
	1d	Review the MS Servicer Notices for notation of any claim or assertion regarding the assignment to the Depositor not constituting a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan. If such notation is not found, it will be a Test pass.	MS Servicer Notices
2. Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or Prepayment Premium/Yield Maintenance Charge) may be further limited or rendered unenforceable by applicable law, but (subject to the	2a	Review the opinion of Mortgagor’s counsel (“Mortgagor’s Counsel Opinion”) for an indication that it contains language that the related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as specified in representation and warranty 2. If such indication exists, it will be a Test pass.	Mortgagor’s Counsel Opinion
	2b	Review the MS Servicer Notices for notation of any valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan Documents,	MS Servicer Notices

Exhibit PP-4

Representations and Warranties		Test	Review Materials
limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”). Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.		including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by the Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee (as defined in the related Mortgage Loan Purchase Agreement) the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan Documents. If no such notation is found, it will be a Test pass.
3. Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.	3	Review the Mortgage Loan Documents and Mortgagor’s Counsel Opinion for an indication that the Mortgage Loan Documents contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications. If such indication exists, it will be a Test pass.	Mortgage Loan Documents; Mortgagor’s Counsel Opinion
4. Intentionally Omitted.	4	N/A	N/A
5. Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related	5a	Review the MS Servicer Notices and Mortgage Loan Documents for an indication that, except by written instruments set forth in the related Mortgage File or as

Exhibit PP-5

Representations and Warranties		Test	Review Materials
Mortgage Loan documents (a) (1) there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver, or modification relates to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan.  With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.		otherwise provided in the related Mortgage Loan documents (a)(1) there has been any forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver or modification related to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage. If no such indication is found, it will be a Test pass.
	5b	Review the MS Servicer Notices and Mortgage Loan Documents for an indication that a related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property except by written instruments set forth in the related Mortgage File. If no such indication is found, it will be a Test pass.	Mortgage Loan Documents; MS Servicer Notices
	5c	Review the MS Servicer Notices and Mortgage Loan Documents for an indication that a related Mortgaged Property or any portion thereof has been released from	MS Servicer Notices; Mortgage Loan Documents

Exhibit PP-6

Representations and Warranties		Test	Review Materials
		the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property except by written instruments set forth in the related Mortgage File. If no such indication is found, it will be a Test pass.
	5d	Review the MS Servicer Notices and Mortgage Loan Documents for notation that neither Mortgagor nor guarantor has been released from its material obligations under the Mortgage Loan except by written instruments set forth in the related Mortgage File. If no such notation is found, it will be a Test pass.	MS Servicer Notices; Mortgage Loan Documents
	5e	Review the MS Servicer Notices and Mortgage Loan Documents for notation of a modification, amendment or waiver that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices; Mortgage Loan Documents
6. Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its Affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable.  Each related Mortgage	6a	Review the MS Servicer Notices for a notation or other indication of any claim or assertion regarding any endorsement or assignment of Mortgage or Assignment of Leases not constituting a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable, subject to the Insolvency Qualifications. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-7

Representations and Warranties		Test	Review Materials
and Assignment of Leases is freely assignable without the consent of the related Mortgagor.  Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to representation and warranty 7 below (each such exception, a “Title Exception”), except as the enforcement thereof may be limited by the Standard Qualifications.  Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan),except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the	6b	Review the related Mortgage and the Assignment of Leases for each property for provisions to the effect that the related mortgage and Assignment of Leases is not freely assignable without the consent of the related Mortgagor. If no such provision is found, it will be a Test pass.	Mortgage; Assignment of Leases
	6c	Review the Title Policy (as defined in representation and warranty 7) to determine if the related Mortgage is a first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property.  Compare the amount of the Title Policy to the principal amount of the Mortgage Loan or allocated loan amount to determine whether they are equivalent. If each such determination is made, it will be a Test pass.	Title Policy; Mortgage; Mortgage Loan Schedule
	6d	Review the Title Policy to determine if the Mortgaged Property was free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (other than Permitted Encumbrances, Title Exceptions and those which are bonded over, escrowed for or insured against by the applicable Title Policy). If so determined, it will be a Test pass.	Title Policy
	6e	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that, as of the Cut-off Date, the Mortgage Loan Seller had knowledge that the Mortgaged Property was not free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the	MS Servicer Notices

Exhibit PP-8

Representations and Warranties		Test	Review Materials
filing of Uniform Commercial Code financing statements is required to effect such perfection.		related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan) (other than Permitted Encumbrances, Title Exceptions and those which are bonded over, escrowed for or insured against by the applicable Title Policy). If such a notation or other indication is not found, it will be a Test pass.
	6f	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that, subject to the rights of tenants, there are rights existing which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except for Permitted Encumbrances and those which are bonded over, escrowed for or insured against by the applicable Title Policy. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	6g	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that the Mortgage Loan Seller did not have legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold), interest in the Mortgaged Property or good and marketable title free and clear of any pledge, lien, encumbrance or security interest. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
7. Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued,	7a	Review the Title Policy to determine if it is an American Land Title Association loan title insurance policy or another comparable form of loan title insurance policy approved for use in the applicable jurisdiction. Review the Mortgage Loan Documents to	Title Policy; Mortgage Loan Documents

Exhibit PP-9

Representations and Warranties		Test	Review Materials
by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or principal use of the Mortgaged Property, the security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash		determine if the amount of the policy covers the amount of the Mortgage Loan, or for multiple properties, an amount equal to the allocated loan amount after all advances of principal. If so determined with respect to each part of this Test, it will be a Test pass.
	7b	Review the Title Policy to determine if the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan),  is subject only to Permitted Encumbrances, as defined in representation and warranty 7. If so determined, it will be a Test pass.	Title Policy
	7c	Review the Title Policy to determine if any Permitted Encumbrance is a mortgage lien that is senior to or coordinate and co-equal to the lien of the related Mortgage, other than as contemplated by item (f) in the definition of Permitted Encumbrances.  If not so determined, it will be a Test pass.	Title Policy
	7d	Review the Title Policy and MS Servicer Notices for a notation or other indication that the coverage is not in full force and effect, that all premiums thereon have not been paid or that claims have been made by the Mortgage Loan Seller. If no such notation or other indication is found, it will be a Test pass.	Title Policy; MS Servicer Notices
	7e	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller, or any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such policy. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-10

Representations and Warranties		Test	Review Materials
flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”).  For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.  Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage.  Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder.  Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.  Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.	7f	Review the Title Policy to determine if the Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), that (a) the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous. If so determined, it will be a Test pass.	Title Policy
8. Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another	8a	Review the Title Policy to determine if there is any subordinate mortgage or junior lien encumbering the related Mortgaged Property, except for any Mortgage Loan that is cross-collateralized and cross-defaulted	Title Policy

Exhibit PP-11

Representations and Warranties		Test	Review Materials
Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of representation and warranty 6 above), and equipment and other personal property financing.  The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1 to the applicable Mortgage Loan Purchase Agreement.		with another Mortgage Loan. If not so determined, it will be a Test pass.
	8b	Review the Title Policy to determine if, as of the Cut-off Date, there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens and equipment and other personal property financing. If so determined, it will be a Test pass.	Title Policy
	8c	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller had knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than those set forth on Exhibit C-32-1 to the applicable Mortgage Loan Purchase Agreement. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
9. Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage).  Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related assignment of leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications.  The	9a	Review the Mortgage File to determine if an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage) is in the Mortgage File. If so determined, it will be a Test pass.	Mortgage File; Assignment of Leases
	9b	Review the Title Policy to determine if the Mortgage, or any related Assignment of Leases, has been recorded, and creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform  certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications.	Title Policy; Mortgage; Assignment of Leases

Exhibit PP-12

Representations and Warranties		Test	Review Materials
related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.		If so determined with respect to each part of this Test, it will be a Test pass.
	9c	Review the Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage) to determine if the related Mortgage, or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee. If so determined, it will be a Test pass.	Assignment of Leases; Mortgage
10. Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC- 1 financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment.  Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3	10a	Review the MS Servicer Notices for a notation or other indication of inappropriately filed or nonexistent UCC-1 financing statements. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	10b	Review the MS Servicer Notices for notation or other indication that the UCC-1, UCC-2 and UCC-3 statements were not in suitable form for filing. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-13

Representations and Warranties		Test	Review Materials
assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed.  Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.
11. Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date. An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.	11a	Review the engineering report or property condition assessment in the Mortgage File to determine if it is dated within six months of the origination date, and within twelve months of the Cut-off Date. If so determined, it will be a Test pass.	Engineering report; Property condition assessment
	11b	Review the engineering report or property condition assessment in the Mortgage File to determine if it was dated no more than twelve months prior to the Cut-off Date.  Review the engineering report to confirm that each related Mortgaged Property is free of material damage. If so determined with respect to each part of the Test, it will be a Test pass.	Engineering report; Property condition assessment
	11c	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller had knowledge of issues with the physical condition of the Mortgaged Property that the Mortgage Loan Seller believed would have a material adverse effect on the value or use of the Mortgaged Property other than those disclosed in the most recently dated engineering report or Servicing File and those addressed in sub-clauses (i) and (ii) of representation and warranty 11.	MS Servicer Notices

Exhibit PP-14

Representations and Warranties		Test	Review Materials
		If such a notation or other indication is not found, it will be a Test pass.
12. Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon.  For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.	12	Review the MS Servicer Notices for a notation or other indication that all taxes, governmental assessments and other outstanding governmental charges  (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgage Property that became due and owing prior to the Cut-off Date with respect to the Mortgaged Property have not been paid, or if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges were not covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
13. Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.	13	Review the MS Servicer Notices for a notation or other indication of any proceeding pending or threatened for the total or partial condemnation of such Mortgaged Property as of the Cut-off date, or for a notation or other indication that the Mortgage Loan Seller had knowledge as of the Cut-off of any such proceeding that would have a material adverse effect on the value, use or operation of the Mortgaged Property. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-15

Representations and Warranties		Test	Review Materials
14. Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in representation and warranty 7), an engineering report or property condition assessment as described in representation and warranty 11, applicable local law compliance materials as described in representation and warranty 25, and the ESA (as defined in representation and warranty 42), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.	14a	Review the Mortgage Loan Documents, the Mortgagor’s Counsel Opinion and the MS Servicer Notices for an indication of pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property that existed on the origination date. If such an indication is not found, it will be a Test pass.	Mortgage Loan Documents; Mortgagor’s Counsel Opinion; MS Servicer Notices
	14b	Review the MS Servicer Notices to determine if an adverse outcome of any such  pending, filed or threatened action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgaged Property would reasonably be expected to adversely affect the matters set forth in clauses (a)-(f) of representation and warranty 14. If any such adverse outcome would not reasonably be expected to adversely affect the matters set forth in clauses (a)-(f) of representation and warranty 14, it will be a Test pass.	MS Servicer Notices
15. Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the depositor or its servicer (or, in the case of a Non-	15a	Review the MS Servicer Notices for a notation or other indication of any escrow deposits and escrow payments required to be escrowed with the Mortgagee pursuant to each Mortgage Loan not in the servicer’s possession or control. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	15b	Review the Diligence File and the MS Servicer Notices to determine if all escrows and deposits required pursuant to the Mortgage Loan have been conveyed by the Mortgage Loan Seller to the Depositor or its servicer (or, in the case of a Non-	Diligence File; MS Servicer Notices

Exhibit PP-16

Representations and Warranties		Test	Review Materials
Serviced Mortgage Loan, to the related depositor under the Non-Serviced PSA or the related Non-Serviced Master Servicer for the related Non-Serviced Securitization Trust).		Serviced Mortgage Loan, to the related depositor under the Non-Serviced PSA or Non-Serviced Master Servicer for the related Non-Serviced Securitization Trust). If so determined, it will be a Test pass.
16. No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).	16a	Review the Mortgage Loan Schedule, Loan Agreement, Mortgage Note and origination settlement statement to determine if the principal amount of the Mortgage Loan was fully disbursed as of the Closing Date. If so determined, it will be a Test pass.	Mortgage Loan Schedule; Loan Agreement; Mortgage Note; and Origination settlement statement
	16b	Review the Mortgage Loan Documents to determine if there is no requirement for future advances by the Mortgagee (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback). If so determined, it will be a Test pass.	Mortgage Loan Documents
17. Insurance. Each related Mortgaged Property is, and is required pursuant to the related mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the “Insurance Ratings Requirements” (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage	17a	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if it shows that the related Mortgaged Property is insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all-risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan Documents and the Insurance Ratings Requirements,	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)

Exhibit PP-17

Representations and Warranties		Test	Review Materials
Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property. “Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings, (“S&P”) or (2) the Syndicate  Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s.		in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of any Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the Mortgaged Property. If so determined, it will be a Test pass.
	17b	Review the Mortgage Loan Documents for provisions requiring the insurance coverage as stated in Test 17a above. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	17c	Review the Insurance Summary Report (or, solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if it shows that the related Mortgaged Property is insured for business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to a Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If such provisions are found, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	17d	Review the Mortgage Loan Documents for provisions requiring the insurance coverage as stated in Test 17c above. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-18

Representations and Warranties		Test	Review Materials
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property. If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original	17e	Review the Mortgage Loan Documents and/or the survey to determine if any material part of the improvements, exclusive of a parking lot, located on the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having “special flood hazards.” If so determined, review the Insurance Summary to determine whether the Mortgagor maintains insurance in an amount equal to the least of (A) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (B) the outstanding principal amount of the Mortgage Loan and (C) the insurable value of the Mortgaged Property. If so determined, it will be a Test pass.	Insurance Summary Report
	17f	If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, review the Insurance Summary Report to determine if the property is covered for windstorm and/or windstorm related perils and/or “named storms” by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture,	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance); Diligence File

Exhibit PP-19

Representations and Warranties		Test	Review Materials
principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements. The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate. An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake.  In such instance, the PML was based on a 475 year return period, an exposure period of 50 years and a 10% probability		furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements. If so determined with respect to each part of this Test, it will be a Test pass.
	17g	Review the Insurance Summary Report dated before the Cut-off Date (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) and Mortgage Loan Documents to determine if the Mortgage Property is covered, and required to be covered pursuant to the related Mortgage Loan Documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate. If so determined, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance); Mortgage Loan Documents
	17h	Review the property condition assessment to determine if the properties are located in a seismic zone 3 or 4. If so determined, review the seismic engineering study to determine if it has been	Property condition assessment; Seismic engineering study

Exhibit PP-20

Representations and Warranties		Test	Review Materials
of exceedance.  If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained from an insurer or insurers meeting the Insurance Ratings Requirements (provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”) in an amount not less than 100% of the PML. The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon. All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a Mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the trustee (or, in the case of a Non-Serviced Mortgage Loan, the		performed by an architectural or engineering consultant for the sole purpose of assessing the PML for the Mortgaged Property in the event of an earthquake and based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If so determined, it will be a Test pass.
	17i	Review the most recent seismic engineering study or Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the PML would exceed 20% of the amount of the replacement costs of the improvements, and if so, review to determine if earthquake insurance on such Mortgaged Property was obtained. If so determined, determine if the insurer or insurers are meeting the Insurance Ratings Requirements (as defined in representation and warranty 17, provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”). The insurance amount should be not less than 100% of the PML. If so determined with respect to each part of the Test, it will be a Test pass.	Seismic engineering study; Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	17j	Review the Mortgage Loan Documents for provisions requiring that insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the Mortgage Loan, the Mortgagee (or a trustee appointed by it)	Mortgage Loan Documents

Exhibit PP-21

Representations and Warranties		Test	Review Materials
applicable Non-Serviced Trustee).  Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums.  All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.		having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon. If such provisions are found, it will be a Test pass.
	17k	Review the MS Servicer Notices for a notation or other indication that insurance premiums are current as of the Cut-off Date. If such a notation or other indication is found, it will be a Test pass.	MS Servicer Notices
	17l	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance policies name the Mortgagee under any Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. If so determined, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	17m	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance will inure to the benefit of the trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). If so determined, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	17n	Review the Mortgage Loan Documents to determine if any Mortgage Loan obligates the Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain	Mortgage Loan Documents

Exhibit PP-22

Representations and Warranties		Test	Review Materials
		such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. If so determined, it will be a Test pass.
	17o	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium.  If so determined, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	17p	Review the MS Servicer Notices for a notation or other indication that any notice described in Test 17o may have been received by the Mortgage Loan Seller. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
18. Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in representation and warranty 7) and survey, if any, an engineering report or property condition assessment as described in representation and warranty 11, applicable local law compliance materials as described in representation and warranty 25, and the ESA (as defined in representation and warranty 42), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and	18a	Review the zoning report, Title Policy and survey, engineering report or property condition assessment, the Sponsor Diligence and the ESA to determine if each Mortgaged Property is located on or adjacent to a public road and has direct legal access to such road, or has permanent access easement or right of way permitting ingress and egress to/from a public road. If so determined, it will be a Test pass.	Zoning report; Title Policy; Survey; Engineering report or property condition assessment; Sponsor Diligence; ESA
	18b	Review the zoning report, Title Policy and survey, engineering report or property condition assessment,	Zoning report; Title Policy; Survey; Engineering report

Exhibit PP-23

Representations and Warranties		Test	Review Materials
egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created.		the Sponsor Diligence and the ESA to determine if each Mortgaged Property is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property. If so determined, it will be a Test pass.	or property condition assessment; Sponsor Diligence; ESA
	18c	Review the Title Policy and  survey to determine if each Mortgaged Property constitutes one or more separate tax parcels and do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the most recently dated  Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels, in which case any Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created. If so determined, it will be a Test pass.	Title Policy; Survey; Mortgage Loan Documents
19. No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property:  (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related	19a	Review the survey and Title Policy to determine if all material improvements that were included for the purpose of determining the appraised value of the Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured by applicable Title Policy. If so determined, it will be a Test pass.	Survey; Title Policy; Appraisal
	19b	Review the survey and Title Policy to determine if there exist material improvements on adjoining	Survey; Title Policy

Exhibit PP-24

Representations and Warranties		Test	Review Materials
Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.		parcels that encroach onto the Mortgaged Property which are not insured by applicable Title Policy. If not so determined, it will be a Test pass.
	19c	Review the survey and Title Policy to determine if there exist material improvements that encroach upon any easements except for encroachments that are insured against by the applicable Title Policy. If not so determined, it will be a Test pass.	Survey; Title Policy
20. No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.	20	Review the Mortgage Loan Documents for any shared appreciation feature or any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller. If no such feature is found with respect to each part of this Test, it will be a Test pass.	Mortgage Loan Documents
21. REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either:  (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the	21a	Review the origination settlement statement and Mortgage Note to determine if the proceeds advanced by the Mortgagee did not exceed the non-contingent principal amount of the Mortgage Loan. If so determined, it will be a Test pass.	Origination settlement statement; Mortgage Loan
	21b	Review the most recent appraisal and Mortgage Loan Documents to determine if (a) the Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air-conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than	Appraisal; Mortgage Loan Documents

Exhibit PP-25

Representations and Warranties		Test	Review Materials
production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)).  If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto.  For purposes of the preceding sentence, the Mortgage Loan will not be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered		consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the initial principal amount of any Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the outstanding principal amount of the  Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes of clauses (i) and (ii) above, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to such Mortgage Loan and (B) a proportionate amount of any lien that is in parity with such Mortgage Loan or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations  Section 1.860G-2(a)(1)(ii)). If so determined, it will be a Test pass.
	21c	Review the MS Servicer Notices for an indication or other notation that the Mortgage Loan was modified prior to the Closing Date, and if so,  if the modification was made as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(i) in	MS Servicer Notices

Exhibit PP-26

Representations and Warranties		Test	Review Materials
by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.).  Any Prepayment Premium and Yield Maintenance Charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2).  All terms used in this representation and warranty shall have the same meanings as set forth in the related Treasury Regulations.		the first sentence of representation and warranty 21 (substituting the date of the last such modification for the date any Mortgage Loan was originated) or sub-clause (B)(ii) in the first sentence of representation and warranty 21, including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.).If there were any such modifications, and such a notation or other indication is found, it will be a Test pass.
	21d	Review the MS Servicer Notices for a notation or other indication of any claim or assertion to the effect that the Prepayment Premium and Yield Maintenance Charges applicable to any Mortgage Loan do not constitute “customary prepayment penalties”. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-27

Representations and Warranties		Test	Review Materials
22. Compliance with Usury Laws. The mortgage rate (exclusive of any default interest, late charges, Yield Maintenance Charge, or Prepayment Premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.	22a	Review the MS Servicer Notices for a notation or other indication of any claim or assertion to the effect that the terms of the Mortgage Loan do not comply with applicable local, state, and federal laws in any material respect. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	22b	Review the MS Servicer Notices for a notation or other indication of any claim or assertion to the effect that any material requirements pertaining to the origination of any Mortgage Loan, including but not limited to, usury and any and all other material requirements of any federal, state or local law have not been complied with. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	22c	Review the Mortgage Loan Documents to determine if they provide that the Mortgage Loan complied with usury laws. If so determined, it will be a Test pass.	Mortgage Loan Documents
23. Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.	23	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that as of the date that the Mortgage Loan Seller or any prior Mortgagee held the Mortgage Note, each such holder of the Mortgage Note was not authorized to transact or do business in the jurisdiction in which each related Mortgaged Property is located. If such a notation or other indication is found, determine whether the failure to be so authorized could not materially and adversely affect the enforceability of such Mortgage Loan by the Trust. If so determined, it will be a Test pass.	MS Servicer Notices

Exhibit PP-28

Representations and Warranties		Test	Review Materials
24. Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.	24	Review the Mortgage Loan Documents to determine if a trustee is appointed.  If so determined, it will be a Test pass.	Mortgage Loan Documents
25. Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property.  In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the	25a	Review the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization to determine if the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable Zoning Regulations governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure. If so determined, it will be a Test pass.	Zoning report; Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement  to the related Title Policy; Survey; Other affirmative investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization
	25b	Review the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar	Zoning report; Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement  to the related Title Policy; Survey; Other affirmative investigation

Exhibit PP-29

Representations and Warranties		Test	Review Materials
Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-conforming use or structure, or (d) the inability to restore the Mortgaged Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.		commercial and multifamily mortgage loans intended for securitization to determine if any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use or operation of such Mortgaged Property. If so determined, review the Insurance Summary Report to determine if title insurance policy was obtained prior to the Closing Date with respect to any non-conforming use or structure. If so determined, it will be a Test pass.	conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; Insurance Summary Report
	25c	Review the Mortgage Loan Documents for provisions to the effect that, in the event of casualty or destruction, the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	25d	If the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization indicates that all or any part of the Mortgaged Property do not comply with zoning laws, review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if law and ordinance coverage was obtained prior to the	Zoning report; Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance); Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement  to the related Title Policy; Survey; Other affirmative investigation conducted by the Mortgage Loan Seller

Exhibit PP-30

Representations and Warranties		Test	Review Materials
		Closing Date that provides coverage for additional costs to rebuild and/or repair the property to current Zoning Regulations. If not so determined, review the Title Policy to determine if it insures over such nonconformity. If so determined, it will be a Test pass.	for similar commercial and multifamily mortgage loans intended for securitization
	25e	Review the Mortgage Loan Documents for provisions that require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
26. Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan.  The Mortgage Loan documents require the related Mortgagor to comply in all material	26a	Review the Mortgage Loan Documents to determine if the Mortgagor has covenanted to keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect. If so determined, it will be a Test pass.	Mortgage Loan Documents
	26b	Review the Mortgage Loan Documents and the MS Servicer Notices for a notation or other indication that (a) the Mortgage Loan Seller had knowledge that any licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property are not in effect, and (b) the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy  and applicable governmental approvals necessary could materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder or the related Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	Mortgage Loan Documents; MS Servicer Notices

Exhibit PP-31

Representations and Warranties		Test	Review Materials
respects with all applicable regulations, zoning and building laws.	26c	Review the Mortgage Loan Documents for provisions requiring the related Mortgagor and the Mortgaged Property to comply in all material respects with all applicable regulations, zoning and building laws. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
27. Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect):  (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated	27a	Review the Mortgage Loan Documents for provisions permitting full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be Affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in connection with the events or circumstances set forth in clauses (a)(i) through (a)(iii) of representation and warranty 27. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	27b	Review the Mortgage Loan Documents to determine if there exist provisions permitting recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be Affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the events or circumstances set forth in clauses (b)(i) through (b)(iv) of representation and warranty 27. If so determined, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-32

Representations and Warranties		Test	Review Materials
provisions of substantially similar effect):  (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii) breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).
28. Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial defeasance (as described in representation and warranty 33) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in representation and warranty 33 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation.  With respect to any partial release under the preceding clauses (a) or (d), either:  (x) such release of collateral (i) would not constitute a “significant modification”	28a	Review the Mortgage Loan Documents for provisions stating that, if the related Mortgage Loan Documents permit a property release, the only conditions under which a property may be released during the life of the Mortgage Loan are as set forth in clauses (a) through (e) of the first sentence of representation and warranty 28. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	28b	Review the Mortgage Loan Documents for provisions stating that with respect to any partial release described in clauses (a) or (d) of the first sentence of representation and warranty 28 either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G- 2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Loan Documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the	Mortgage Loan Documents

Exhibit PP-33

Representations and Warranties		Test	Review Materials
of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x).  For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be		immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. If such provisions are found, it will be a Test pass.
	28c	Review the Loan Documents for provisions stating that in the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property	Mortgage Loan Documents

Exhibit PP-34

Representations and Warranties		Test	Review Materials
required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans). No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.		(reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans). If such provisions are found, it will be a Test pass.
	28d	Review the Mortgage Loan Documents for provisions stating that no such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
29. Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.	29a	Review the Mortgage Loan Documents for provisions that require the Mortgagor to provide the owner or holder of the Mortgage Loan with quarterly (other than for single-tenant properties) and annual operating statements. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	29b	Review the Mortgage Loan Documents for provisions that require the Mortgagor to provide the owner or holder of the Mortgage Loan with quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by residential cooperative properties) for	Mortgage Loan Documents

Exhibit PP-35

Representations and Warranties		Test	Review Materials
		properties that have any individual ease which accounts for more than 5% of the in-place base rent and annual financial statements.  If such provisions are found, it will be a Test pass.
30. Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Ratings Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.  With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C to the applicable Mortgage Loan Purchase Agreement; provided that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related	30a	Review the Mortgage Loan Documents to determine if the original principal balance was greater than $20 million. If so, review the insurance coverage review document for an indication that the special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Rating Requirements) do not specifically exclude acts of terrorism, from coverage, or if they do, there exists a separate terrorism insurance policy related to the Mortgaged Property.  If such an indication is found, it will be a Test pass.	Mortgage Loan Documents; Insurance coverage review document
	30b	Review the Mortgage Loan Documents for provisions that do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA (as defined in representation and warranty 30), or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C to the applicable Mortgage Loan Purchase Agreement; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of	Mortgage Loan Documents

Exhibit PP-36

Representations and Warranties		Test	Review Materials
Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.		the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount. If such provisions are not found, it will be a Test pass.
31. Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal	31a	Review the Mortgage Loan Documents for “due-on-sale” or other such provisions for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan in the circumstances described in the first sentence of representation and warranty 31. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	31b	Review the Mortgage Loan Documents for provisions that require that if Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-37

Representations and Warranties	Test	Review Materials
incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor, (iv) Transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of representation and warranties 28 and 33 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1 to the applicable Mortgage Loan Purchase Agreement, or future permitted mezzanine debt  as set forth on Exhibit C-32-2 to the applicable Mortgage Loan Purchase Agreement or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 to the applicable Mortgage Loan Purchase Agreement or (iv) Permitted Encumbrances.  The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and

Exhibit PP-38

Representations and Warranties		Test	Review Materials
expenses incurred by the Mortgagee relative to such transfer or encumbrance.
32. Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding.  Each Mortgage Loan with a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor.  For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.	32a	Review the Mortgage Loan Documents for provisions that require that the Mortgagor to be a Single-Purpose Entity (as defined in representation and warranty 32) for at least as long as any Mortgage Loan is outstanding. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	32b	Review the Mortgage Loan Schedule for the Cut-off Date Balance of the Mortgage Loan. If the Mortgage Loan had a Cut-off Date Balance in excess of $10 million, review the related Mortgage Loan Documents and the Mortgagor’s organizational documents for provisions that require the Mortgagor to be a Single-Purpose Entity. If the provisions exist, it will be a Test pass.	Mortgage Loan Schedule; Mortgage Loan Documents; Mortgagor’s organizational documents
	32c	Review the Mortgage Loan Schedule for the Cut-off Date Balance of the Mortgage Loan. If the Mortgage Loan had a Cut-off Date Balance in excess of $30 million, review the Mortgagor’s Counsel Opinion regarding non-consolidation of the Mortgagor. If such an opinion is found, it will be a Test pass.	Mortgage Loan Schedule; Mortgagor’s Counsel Opinion

Exhibit PP-39

Representations and Warranties		Test	Review Materials
33. Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the	33	Review the Mortgage Loan Documents for provisions allowing the Mortgage Loan to be defeased, and if so, whether such Mortgage Loan Documents contain the provisions described in clauses (i) through (viii) of representation and warranty 33. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-40

Representations and Warranties		Test	Review Materials
defeasance collateral are required to be assumed by a Single-Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.
34. Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.	34	Review the Mortgage Loan Documents for an indication that the loan has a fixed interest rate that remains fixed throughout the term of such Mortgage Loan, except in the case of ARD Loans and situations where default interest is imposed. If such an indication is found, it will be a Test pass.	Mortgage Loan Documents
35. Ground Leases. For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related	35a	Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as defined in representation and warranty 35), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 35b through 35r.	Appraisal; Title Policy; Mortgage Loan Documents
	35b	Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass.	Title Policy; Mortgage Loan Documents

Exhibit PP-41

Representations and Warranties		Test	Review Materials
lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that: (a)     The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction.  The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage.  No material change in the terms of the Ground Lease has occurred since its recordation, except by any written instruments which are included in the related Mortgage File; (b)     The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;	35c	Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass.	Ground Lease and Related Documents
	35d	Review the MS Servicer Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a modification agreement or other such instrument is in the Mortgage File. If the modification agreement or instrument is in the Mortgage File, it will be a Test pass.	MS Servicer Notices; Mortgage File
	35e	Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease. If such a provision is found, it will be a Test pass.	Ground Lease and Related Documents
	35f	Review the Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee)	Ground Lease and Related Documents

Exhibit PP-42

Representations and Warranties		Test	Review Materials
(c)     The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes); (d)     The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject; (e)     Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if		that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially  amortizes). If such an indication is found, it will be a Test pass.
	35g	Review the Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions, or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject. If either indication is found, it will be a Test pass.	Title Policy; SNDA
	35h	Review the Ground Lease and Related Documents for an indication that the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass.	Ground Lease and Related Documents
	35i	Review the Ground Lease and Related Documents for an indication that in the event it is so assigned, it is	Ground Lease and Related Documents

Exhibit PP-43

Representations and Warranties		Test	Review Materials
such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid); (f)     The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease.  To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date; (g)     The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default, and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee; (h)     A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;		further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass.
	35j	Review the MS Servicer Notices for notation that the Mortgage Loan Seller has received any written notice of material default under or notice of termination of such Ground Lease. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	35k	Review the MS Servicer Notices for notation that to the Mortgage Loan Seller’s knowledge, there is a material default under such Ground Lease or condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	35l	Review the MS Servicer Notices for a notation that to the Mortgage Loan Seller’s knowledge, such Ground Lease was not in full force and effect as of the Closing Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	35m	Review the Ground Lease and Related Documents for provisions that the lessor is required to give to the Mortgagee written notice of any default, and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to	Ground Lease and Related Documents

Exhibit PP-44

Representations and Warranties		Test	Review Materials
(i)     The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization; (j)     Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; (k)     In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and		the Mortgagee. If such provisions are found, it will be a Test pass.
	35n	Review the Ground Lease and Related Documents for provisions that the Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease. If such provisions are found, it will be a Test pass.	Ground Lease and Related Documents
	35o	Review the Ground Lease for provisions that impose any commercially unreasonable restrictions on subletting in connection with the origination of similar commercial or multifamily loans intended for securitization. If no such provisions are found, it will be a Test pass.	Ground Lease
	35p	Review the Ground Lease and Related Documents and the Mortgage Loan Documents for an indication that any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (34k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the	Ground Lease and Related Documents; Mortgage Loan Documents

Exhibit PP-45

Representations and Warranties		Test	Review Materials
(l)     Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.		outstanding principal balance of the Mortgage Loan, together with any accrued interest. If such indications are found, it will be a Test pass.
	35q	Review the Ground Lease and Related Documents and the Mortgage Loan Documents for an indication that, in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest. If such an indication is found, it will be a Test pass.	Ground Lease and Related Documents; Mortgage Loan Documents
	35r	Review the Ground Lease and Related Documents for provisions that, provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If such provisions are found, it will be a Test pass.	Ground Lease and Related Documents
36. Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.	36	Review the MS Servicer Notices for a notation or other indication of any claims or assertions to the effect that the servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan was not in all material respects legal, or in accordance with customary industry standards	MS Servicer Notices

Exhibit PP-46

Representations and Warranties		Test	Review Materials
		for servicing of commercial loans for conduit loan programs. If such a notation or other indication is not found, it will be a Test pass.
37. Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in the related Mortgage Loan Purchase Agreement.	37	Review the MS Servicer Notices for notation to the effect that the origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have not been, in all material respects, legal and as of the date of its origination, such Mortgage Loan, or the origination thereof did not comply in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that representation and warranty 37 does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in the related Mortgage Loan Purchase Agreement. If no such notation is found, it will be a Test pass.	MS Servicer Notices;
38. Intentionally Omitted.	38	N/A	N/A
39. No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any	39a	Review the MS Servicer Notices for notation that (i) the Mortgage Loan has been more than 30 days delinquent, giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), or (ii) the Mortgage Loan was delinquent beyond any applicable grace or cure periods as of the Cut-off Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	39b	Review the MS Servicer Notices for notation of the Mortgage Loan Seller’s knowledge of (a) a material default, breach, violation or event of acceleration	MS Servicer Notices

Exhibit PP-47

Representations and Warranties		Test	Review Materials
grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in the applicable Mortgage Loan Purchase Agreement.  No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.		existing under the related Mortgage Loan, or (b) an event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property. If no such notation is found, it will be a Test pass.
40. Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.	40	Review the Lexis/Nexis (or comparable search) and the MS Servicer Notices for an indication that the Mortgaged Property (other than any tenants of such Mortgaged Property), or any portion thereof, was the subject of, or a Mortgagor, guarantor or tenant occupying a single-tenant property was a debtor in, a state or federal bankruptcy, insolvency or similar proceeding. If no such indication or notation is found, it will be a Test pass.	Lexis/Nexis (or comparable) search; MS Servicer Notices
41. Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico.	41a	Review the Diligence File to determine if it includes certified copies of the organizational documents of the Mortgagor indicating that the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. If such indication is found, it will be a Test pass.	Diligence File

Exhibit PP-48

Representations and Warranties		Test	Review Materials
Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4 to the related Mortgage Loan Purchase Agreement, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan.  An “Affiliate” for purposes of this representation and warranty 41 means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.	41b	Review the Diligence File for an indication that, except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4 to the related Mortgage Loan Purchase Agreement, no Mortgage Loan has a Mortgagor that is an affiliate of another Mortgagor under another Mortgage Loan. If such an indication is found, it will be a Test pass.	Diligence File
42. Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true:  (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the	42a	Review the Diligence File to determine if an ESA (as defined in representation and warranty 42) is included. If so, review the ESA for an indication that it was conducted within 12 months prior to the origination date of the Mortgage Loan. If such an indication is found, it will be a Test pass.	Diligence File; ESA
	42b	Review the ESA for an indication that it identified (i) the existence of a recognized environmental condition at the related Mortgaged Property or (ii) the need for further investigation. If no such indication is found, it will be a Test pass.	ESA
	42c	Review the ESA for an indication that it identified (i) the existence of a recognized environmental condition at the related Mortgaged Property or (ii) the need for further investigation. If such an indication is found, the following test procedures (subparts 42c-1 through 42c-6) will be performed. If any of the subparts indications are found, it will be a Test pass.	ESA; Escrow Statements; Loan Documents; Diligence File
		1.     Review escrow statements for an indication that an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance	Escrow statements

Exhibit PP-49

Representations and Warranties	Test	Review Materials
presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action.  To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.	with applicable environmental laws or the environmental condition has been escrowed by the Mortgagor and is held by the related Mortgagee.
	2.  Review the ESA for an indication that if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air or lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, and if so, a review of the Loan Documents indicates that an operations or maintenance plan has been required to be instituted by the related Mortgagor that, based on the ESA, can reasonably be expected to mitigate the identified risk.	ESA
	3. Review the Diligence File for an indication that any Environmental Condition identified in the ESA was remediated or abated in all material respects prior to the date hereof, as evidenced by a no further action or closure letter that was obtained from the applicable governmental regulatory authority, or a reputable environmental consultant has concluded that no further action is required.	Diligence File
	4. Review the insurance coverage review documents for an indication that an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than A- (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best Company.	Insurance coverage review documents
	5.  Review the Diligence File for an indication that a party not related to the Mortgagor was identified as the responsible party for such condition or	Diligence File

Exhibit PP-50

Representations and Warranties		Test	Review Materials
		circumstance and such responsible party has financial resources considered by the Mortgage Loan Seller to be adequate to address the situation.
		6. Review the Diligence File for an indication that a party related to the Mortgagor having financial resources estimated by the Mortgage Loan Seller to be adequate to address the situation is required to take action.	Diligence File
	42d	Review the MS Servicer Notices for notation of the Mortgage Loan Seller’s knowledge of any environmental condition at the Mortgaged Property other than any set forth in the ESA. If no such notation is found, it will be a Test pass.	MS Servicer Notices; ESA
43. Intentionally Omitted,	43	N/A	N/A
44. Appraisal. The servicing file contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date.  The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan.  Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.	44a	Review the appraisal to determine if it was dated within 6 months of the Mortgage Loan origination date and within 12 month of the Cut-off Date. If so determined, it will be a Test pass.	Appraisal
	44b	Review the appraisal to determine if it includes an appraiser’s certification or supplemental letter that indicates that the appraiser had no interest, direct or indirect, in the Mortgagor, the Mortgaged Property or any loan made on the security of the Mortgaged Property. If so determined, it will be a Test pass.	Appraisal
	44c	Review the appraisal to determine if it signed by an appraiser that is (A) a Member of the Appraisal Institute, or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, that the Mortgage Loan Seller had knowledge that the signing appraiser had no interest, direct or indirect, in	Appraisal

Exhibit PP-51

Representations and Warranties		Test	Review Materials
		the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and that the appraiser’s compensation is not affected by the approval or disapproval of the Mortgage Loan. If so determined, it will be a Test pass.
	44d	Review the appraisal to determine if it includes documentation in the appraisal or a letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. If so determined, it will be a Test pass.	Appraisal
45. Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to the related Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.	45a	Review the Mortgage Loan Schedule attached as an exhibit to the related Mortgage Loan Purchase Agreement and compare it to the corresponding information in (i) Annex A to the final prospectus (ii) Mortgage Loan Documents, (iii) Pooling and Servicing Agreement, and (iv) asset summary report to determine if there are discrepancies between the documents.  If there are no such discrepancies, it will be a Test pass.	Mortgage Loan Schedule; Annex A to final prospectus; Mortgage Loan Documents; Pooling and Servicing Agreement; Asset summary report
	45b	Compare the information in the Mortgage Loan Schedule to the requirements of the Pooling and Servicing Agreement to determine if they match. If there are no discrepancies, it will be a Test pass.	Mortgage Loan Schedule; Pooling and Servicing Agreement
46. Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.	46	Except with respect to a Mortgage Loan that is part of a Whole Loan, review the Mortgage Loan Documents to determine if the Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Mortgage Pool. If not so determined, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-52

Representations and Warranties		Test	Review Materials
47. Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan.  Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date.	47a	Review the MS Servicer Notices for a notation or other indication that an advancement of funds (other than loan proceeds advanced at the time of loan origination) had been made by the Mortgage Loan Seller to the related Mortgagor, or that funds have been received from any person other than the related Mortgagor or an Affiliate, directly, indirectly for, or on account of, payments due on the Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	47b	Review the Mortgage Loan Documents to determine if the Mortgage Loan Seller, or an Affiliate, has an obligation to make any capital contribution to the Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date. If not so determined, it will be a Test pass.	Mortgage Loan Documents
48. Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.	48	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that the Mortgage Loan Seller did not comply with its internal procedures with respect to all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 in connection with the origination of any Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-53

EXHIBIT QQ

FORM OF CERTIFICATION TO CERTIFICATE ADMINISTRATOR
REQUESTING ACCESS TO SECURE DATA ROOM

Computershare Trust Company, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK38

Email: trustadministrationgroup@wellsfargo.com

Attention: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

In accordance with the requirements for obtaining access to the Secure Data Room pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is an authorized representative of [the Asset Representations Reviewer][[_____], an entity designated by the Depositor to receive access to the secure Data Room].

2. The undersigned acknowledges and agrees that (a) access to the Secure Data Room is being granted to it solely for purposes of the undersigned carrying out its obligations under the Pooling and Servicing Agreement (b) it will not disseminate or otherwise make information contained on the Secure Data Room available to any other person except in accordance with the Pooling and Servicing Agreement or otherwise with the written consent of the Depositor and (c) it will only access information relating to the Mortgage Loans to which the Asset Review relates.

3. The undersigned agrees that each time it accesses the Secure Data Room, the undersigned is deemed to have recertified that the representations above remains true and correct.

Exhibit QQ-1

4. [The undersigned is not a Certificateholder, a beneficial owner or a prospective purchaser of any Certificate.]^*

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[NAME OF PARTY],
as [role]
By:
	Name:
	Title:

Dated: _______

[Morgan Stanley Capital I Inc.,
as Depositor]*
By:
	[Name]
	[Title]

*    Required to the extent that a party other than the Asset Representations Reviewer is identified by the Depositor as needing access to the Secure Data Room.

Exhibit QQ-2

EXHIBIT RR

FORM OF NOTICE OF [ADDITIONAL DELINQUENT LOAN][CESSATION OF
DELINQUENT LOAN][CESSATION OF ASSET REVIEW TRIGGER]

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing 550 S. Tryon Street MAC D1086-23A 23rd Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK38 Asset Manager Email: commercial.servicing@wellsfargo.com	Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York, 14228 Attention: BANK 2021-BNK38 Transaction Manager (with a copy sent via email to: notices@pentalphasurveillance.com)
Midland Loan Services, a Division of PNC Bank, National Association 10851 Mastin Street, Suite 700 Overland Park, Kansas 66210 Attention: Executive Vice President – Division Head Facsimile number: (888) 706-3565 Email: NoticeAdmin@midlandls.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Attention: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

In accordance with Section 12.01(a) of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the Certificate Administrator hereby notifies you that as of [RELATED DISTRIBUTION DATE]:

Exhibit RR-1

1. _____  An additional Mortgage Loan has become a Delinquent Loan.

2. _____  A Mortgage Loan has ceased to be a Delinquent Loan.

3. _____ An Asset Review Trigger has ceased to exist.

(check all that apply)

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

Computershare Trust Company, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38
By:
	[Name]
	[Title]

Exhibit RR-2

EXHIBIT SS

FORM OF INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT FOR NCB CO-OP MORTGAGE LOANS

THIS INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT (this “Agreement”) made as of this __ day of ____, 20__ between [_______], a [___________] having an office at [__________] in its capacity as senior lender (“Lender”), and [_________], a [_________] having an office at [__________] in its capacity as subordinated lender (“Subordinated Lender”).

W I T N E S S E T H:

WHEREAS, Lender is the holder of a certain loan (the “Loan”) to [_________] (“Borrower”) dated the date hereof in the amount of [_________] and 00/100 ($__________) Dollars, which Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded;

WHEREAS, Subordinated Lender is the holder of a certain loan (the “Subordinated Loan”) dated the date hereof to Borrower in the amount of [_________] and 00/100 ($_________) Dollars, which Subordinated Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded; and

WHEREAS, Lender and Subordinated Lender desire to enter into this Agreement for the purpose of establishing the priorities of their respective interests in the Project, and for the purpose of setting forth certain other agreements between them with respect to their agreements with Borrower;

NOW, THEREFORE, in consideration of the premises, the payment of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Subordinated Lender agree as follows:

Defined Terms. As used in this Agreement, the following terms shall have the meanings hereinafter set forth, unless the context shall otherwise require:

“Affiliate” – Shall mean, as to any particular Person, any Person directly or indirectly, through one or more intermediaries, controlling, Controlled by or under common control with the Person or Persons in question.

“Control” – Shall mean, (i) the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of such Person (or, with respect to the Transfer prohibition set forth in Section 9(e) hereof, the ownership, directly or indirectly, in the aggregate of more than twenty five percent (25%) of the beneficial ownership interests of such Person) or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise

Exhibit SS-1

voting power, by contract or otherwise. “Controlled by,” “controlling” and “under common control with” shall have the respective correlative meaning thereto.

“Certificates” – Shall mean any securities (including all classes thereof) representing beneficial ownership interests in the Loan or in a pool of mortgage loans including the Loan issued in connection with a securitization of the Loan.

“Crowdfunded Person” means a Person that is capitalized with debt and/or equity financing and/or raising monetary or other capital contributions from a number of persons or entities through the practice of syndication, advertising or general or broad solicitation, including, without limitation, (i) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (ii) via primarily internet-mediated registries, platforms, portals, mail-order subscriptions, benefit events and/or other similar methods.

“EB-5 Lender” means any Person that directly or indirectly used funds invested by an EB-5 Person through a program soliciting the issuance of visas for immigrant investors as a source for the making, acquisition, or funding of the Subordinated Loan.

“EB-5 Person” means a Person investing through a program soliciting the issuance of visas for immigrant investors, including through the Immigrant Investor Program established by the Immigration Act of 1990 (8 U.S.C. 1153(b)(5)), as amended from time to time, and the rules and regulations promulgated thereunder.

“Eligibility Requirements” – Shall mean, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $200,000,000.00 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of $60,000,000.00 and (ii) is regularly engaged in the business of making or owning commercial or multi-family real estate loans or operating commercial or multi-family mortgage properties.

“Event of Default” – Shall mean (i) with respect to the Loan and the Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period, and (ii) with respect to the Subordinated Loan and the Subordinated Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period.

“Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a first lien upon the Project and any other documents evidencing and securing the Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

“Permitted Fund Manager” – Shall mean any Person that on the date of determination is (i) a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a Proceeding.

Exhibit SS-2

“Person” – Shall mean any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint stock company, bank, trust, estate unincorporated organization, any federal, state, county or municipal government (or any agency or political subdivision thereof) endowment fund or any other form of entity.

“Proceeding” – Shall mean the commencement, whether voluntary or involuntary, of any case, proceeding or other action against Borrower under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors.

“Prohibited Entity” means any Person that (i) is a statutory trust or similar Person, (ii) owns a direct or indirect interest in the Subordinated Loan, Borrower or the Project through a tenancy-in-common or other similar form of ownership interest, (iii) is an EB-5 Lender and/or (iv) is itself a Crowdfunded Person, is under the direct or managerial control of any Crowdfunded Person and/or is more than 49% owned, directly or indirectly, by one or more Crowdfunded Persons (provided, that, notwithstanding the foregoing, any Person otherwise constituting a Prohibited Entity shall not be deemed a Prohibited Entity hereunder to the extent a Rating Agency Confirmation has been obtained with respect to such Person).

“Prohibited Person” means any Person:

(i)        listed in the annex to, or who is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”);

(ii)       that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii)      with whom a Person is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order;

(iv)      who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(v)       that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or at any replacement website or other replacement official publication of such list; or

(vi)      who is an Affiliate of a Person listed in clauses (i) through (v) above.

“Project” – Shall mean that certain real property owned by Borrower described on Exhibit A attached hereto and the improvements located or to be located thereon.

Exhibit SS-3

“Protective Advance” – Shall mean all sums advanced for the purpose of payment of real estate taxes (including special payments in lieu of real estate taxes), maintenance costs, insurance premiums or other items (including capital items) reasonably necessary to protect the Project or any portion thereof (including, but limited to, all reasonable attorneys’ fees, costs relating to the entry upon the Project or any portion thereof to make repairs and the payment, purchase, contest or compromise of any encumbrance, charge or lien which in the judgment of Lender appears to be prior or superior to the Loan Documents).

“Qualified Transferee” – Shall mean (i) Subordinated Lender or an Affiliate of Subordinated Lender or (ii) one or more of the following:

(A)       a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such Person referred to in this clause (A) satisfies the Eligibility Requirements;

(B)       an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (B) satisfies the Eligibility Requirements;

(C)       an institution substantially similar to any of the foregoing entities described in clauses (ii)(A) or (ii)(B) that satisfies the Eligibility Requirements;

(D)       any entity controlled by any of the entities described in clause (i) or clauses (ii)(A) or (ii)(C) above;

(E)       a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“CDO”) secured by or financing through an “owner trust” of, the Subordinated Loan (collectively, “Securitization Vehicles”) so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition; provided that the operative documents of the related Securitization Vehicle require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any of the relevant trustee, special servicer, or manager fails to meet the requirements of this clause (E), such Person must be replaced by a Person meeting the requirements of this clause (E) within thirty (30) days; or

(F)       an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of this definition acts as the general partner, managing member or fund manager and at least 50% of the equity interests

Exhibit SS-4

in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition.

Notwithstanding the foregoing, in no event shall a Prohibited Person or a Prohibited Entity be a Qualified Transferee.

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

“Rating Agencies” – Shall mean, prior to a securitization, each of DBRS Morningstar, Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc., and Fitch Ratings, Inc., or any other nationally-recognized statistical rating agency which has been designated by Lender and, after a securitization, shall mean any of the foregoing that have rated any of the Certificates.

“Rating Agency Confirmation” – Shall mean each of the Rating Agencies shall have confirmed in writing that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the Certificates then outstanding. In the event that no Certificates are outstanding or the Loan is not part of a securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of the Lender, which consent shall not be unreasonably withheld or delayed.

“Required Special Servicer Rating” – Shall mean (i) a rating of “CSS1” in the case of Fitch Ratings, (ii) on the S&P list of approved special servicers in the case of S&P, (iii) in the case of Moody’s, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, and (iv) in the case of DBRS Morningstar, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS Morningstar within the twelve (12) month period prior to the date of determination and is not a special servicer that has been cited by DBRS Morningstar as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

“Subordinated Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a second lien upon the Project and any other documents evidencing and securing the

Exhibit SS-5

Subordinated Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

“Transfer” – Shall mean any assignment, pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security interest, issuance of a participation interest, or other disposition, either directly or indirectly, by operation of law or otherwise.

1.          Approval of Loans and Loan Documents; Characterization of Subordinated Loan.

(a)       Subordinated Lender hereby acknowledges that (i) it has received and reviewed and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Loan Documents, (ii) the continued performance of the Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Subordinated Loan Documents, and (iii) any application or use of the proceeds of the Loan for purposes other than those provided in the Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Loan Documents.

(b)       Lender hereby acknowledges that (i) it has received and reviewed, and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the making of the Subordinated Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Subordinated Loan Documents, (ii) the execution, delivery and performance of the Subordinated Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Loan Documents, (iii) any application or use of the proceeds of the Subordinated Loan for purposes other than those provided in the Subordinated Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Subordinated Loan Documents.

2.          Representations and Warranties.

(a)        Subordinated Lender hereby represents and warrants as follows:

(i)        Subordinated Lender has heretofore provided Lender with true, complete and correct copies of the Subordinated Loan Documents. To Subordinated Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Subordinated Loan Documents.

(ii)        Subordinated Lender is the legal and beneficial owner of the entire Subordinated Loan free and clear of any lien, security interest, option or other charge or encumbrance.

(iii)       There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.

Exhibit SS-6

(iv)       Subordinated Lender has, independently and without reliance upon Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

(v)        Subordinated Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(vi)       All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Subordinated Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vii)      Subordinated Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Subordinated Lender enforceable against Subordinated Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws, and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(viii)     To Subordinated Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Subordinated Lender of this Agreement or consummation by Subordinated Lender of the transactions contemplated by this Agreement, other than those that have been obtained.

(ix)       None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Subordinated Lender, (b) to Subordinated Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Subordinated Lender is a party or to which any of its properties are subject, (c) to Subordinated Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Subordinated Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument, (d) violate any judgment, order, injunction, decree, or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Subordinated Lender has knowledge against, or binding upon, Subordinated Lender or upon any of the securities, properties, assets, or business of Subordinated Lender or (e) to Subordinated Lender’s knowledge, constitute a violation by Subordinated Lender of any statute, law or regulation that is applicable to Subordinated Lender.

(x)        The Subordinated Loan is not cross defaulted with any loan except the Loan.

Exhibit SS-7

(b)        Lender hereby represents and warrants as follows:

(i)        Lender has heretofore provided Subordinated Lender with true, complete and correct copies of the Loan Documents. To Lender’s actual knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Loan Documents.

(ii)       Lender is the legal and beneficial owner of the Loan free and clear of any lien, security interest, option or other charge or encumbrance.

(iii)      There are no conditions precedent to the effectiveness of this Agreement against Lender that have not been satisfied or waived.

(iv)      Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(v)       All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vi)      Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Lender enforceable against Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(vii)     To Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Lender of this Agreement or consummation by Lender of the transactions contemplated by this Agreement other than those that have been obtained.

(viii)    None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Lender, (b) to Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any material contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Lender is a party or to which any of its properties are subject, (c) to Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Lender pursuant to the terms of any such material contract, mortgage, lease, bond, indenture, agreement, franchise or other instrument, (d) violate any judgment, order, injunction, decree or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Lender has knowledge against, or binding upon, Lender or upon any of the securities, properties,

Exhibit SS-8

assets, or business of Lender or (e) to Lender’s knowledge, constitute a violation by Lender of any statute, law or regulation that is applicable to Lender.

(ix)      The Loan is not cross defaulted with any other loan, except for the Subordinated Loan.

3.         Subordination and Priority. Subordinated Lender hereby subordinates and makes junior the Subordinated Loan, the Subordinated Loan Documents (and any amendment, modification or extension thereof, and any future advance or increase respecting the Subordinated Loan, in each instance, whether or not made in violation of this Agreement), and the lien and security interests created thereby and all of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive any payment on account of the Subordinated Loan. All payments or distributions upon or with respect to the Subordinated Loan which are received by Subordinated Lender contrary to the provisions of this Agreement shall be received and held in trust by the Subordinated Lender for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Loan in accordance with the terms of the Loan Documents. Nothing contained herein shall prohibit the Subordinated Lender from making protective advances (and adding the amount thereof to the principal balance of the Subordinated Loan) notwithstanding the existence of a default under the Loan at such time.

4.          Modifications, Amendments, Etc.

(a)       Lender shall have the right without the consent of Subordinated Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Senior Loan Modification”) of the Loan or the Loan Documents provided that no such Senior Loan Modification shall (i) increase the interest rate or principal amount of the Loan, (ii) increase in any other material respect any monetary obligations of Borrower under the Loan Documents, (iii) extend or shorten the scheduled maturity date of the Loan (except that Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Loan Documents), (iv) convert or exchange the Loan into or for any other indebtedness or subordinate any of the Loan to any

Exhibit SS-9

indebtedness of Borrower, (v) amend or modify the provisions limiting transfers of interests in the Borrower or the Project, (vi) cross default the Loan with any other indebtedness, (vii) obtain any contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Project, (or other similar equity participation), or (viii) extend the period during which voluntary prepayments are prohibited or during which prepayments require the payment of a prepayment fee or premium or yield maintenance charge or increase the amount of any such prepayment fee, premium or yield maintenance charge; provided, however, in no event shall Lender be obligated to obtain Subordinated Lender’s consent to a Senior Loan Modification in the case of a work-out or other surrender, compromise, release, renewal, or indulgence relating to the Loan during the existence of an Event of Default (as defined in the Loan Documents) under the Loan, except that under no conditions shall clause (i) (with respect to increase principal amount only), or clause (viii) be modified without the written consent of Subordinated Lender. In addition and notwithstanding the foregoing provisions of this Section 2, any amounts funded by the Lender under the Loan Documents as a result of (A) the making of any protective advances or other advances by the Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 2.

(b)       Subordinated Lender shall have the right without the consent of Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Subordinated Loan Modification”) of the Subordinated Loan or the Subordinated Loan Documents provided that no such Subordinated Loan Modification shall (i) increase the interest rate or principal amount of the Subordinated Loan, (ii) increase in any other material respect any monetary obligations of under the Subordinated Loan Documents, (iii) extend or shorten the scheduled maturity date of the Subordinated Loan (except that Subordinated Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Subordinated Loan Documents), (iv) convert or exchange the Subordinated Loan into or for any other indebtedness or subordinate the Subordinated Loan to any indebtedness of Borrower, (v) provide for any additional contingent interest, additional interest or so called “kicker” measured on the basis of the cash flow or appreciation of the Project (or other similar equity participation), (vi) amend or modify the provisions of the Subordinated Loan Documents limiting transfers of direct or indirect interest in Borrower, (vii) modify or amend the terms and provision of any Subordinated Loan Document with respect to the manner, timing or method of the application of payments under the Subordinated Loan Documents, (vi) cross default the Subordinated Loan with any other indebtedness, or (vii) amend or modify the provisions limiting transfers of interests in the Borrower or the Project. Notwithstanding anything to the contrary contained herein, if an Event of Default exists under the Subordinated Loan Documents, Subordinated Lender shall be permitted to modify or amend the Subordinated Loan Documents in connection with a work out or other surrender, compromise, release, renewal or modification of the Subordinated Loan except that under no conditions shall clause (i), with respect to increases in principal amounts only, clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv) or clause (v) be modified without the written consent of the Lender. In addition and notwithstanding the foregoing provisions of this Section 6(b), any amounts funded by the Subordinated Lender under the Subordinated Loan Documents as a result of (A) the making of any Protective Advances or other advances by the Subordinated Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 6(b).

Exhibit SS-10

(c)       Lender shall deliver to Subordinated Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Lender) within a reasonable time after any of such applicable instruments have been executed by Lender.

(d)       Subordinated Lender shall deliver to Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Subordinated Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Subordinated Lender) within a reasonable time after any of such applicable instruments have been executed by Subordinated Lender.

5.          Default Notice.

(a)        Subordinated Lender shall give Lender notice of any default under the Subordinated Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Subordinated Loan on account of such default. Lender may, but shall not be obligated to, cure any such default, in which event Subordinated Lender shall accept such cure by Lender as and for the cure by Borrower.

(b)        Lender shall give Subordinated Lender notice of any default under the Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Loan on account of such default. Subordinated Lender may, but shall not be obligated to, cure any such default within the time period afforded to the Borrower pursuant to the Loan Documents, in which event Lender shall accept such cure by Subordinated Lender as and for the cure by Borrower.

6.         Casualty and Condemnation. In the event of a casualty to the buildings or improvements constructed on any portion of the Project or a condemnation or taking under a power of eminent domain of all or any portion of the Project, Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the “Award”). Subordinated Lender acknowledges and agrees that so long as the Loan is outstanding, it has no lien on or security interest in any Award, nor any rights with respect to any Award except as expressly provided in this Agreement, and Subordinated Lender assigns its rights to any Award to Lender up to an amount equal to the then outstanding amount of the Loan. Subordinated Lender agrees to promptly, upon request by Lender, execute and deliver to Lender and/or to any other party as so directed by Lender, a written confirmation of the terms set forth in the immediately preceding sentence and take sure other actions reasonably requested by Lender to further evidence the foregoing agreement (although failure of Subordinated Lender to do so shall not affect the foregoing agreement). If the amount of the Award is in excess of all amounts owed to Lender under the Loan Documents, however, and either the Loan has been paid in full or Borrower is entitled to a remittance of same under the Loan Documents other than to restore the Project, such excess Award or portion to be so remitted to Borrower shall, to the extent permitted in the Loan Documents and required by the Subordinated Loan Documents, be paid to or at the direction of Subordinated Lender, unless other Persons have claimed the right to such awards or proceeds, in which case Lender shall only be required to provide notice to Subordinated Lender of

Exhibit SS-11

such excess Award and of any other claims thereto. In the event of any competing claims for any such excess Award, Lender shall continue to hold such excess Award until Lender receives an agreement signed by all Persons making a claim to the excess Award or a final order of a court of competent jurisdiction directing Lender as to how and to which Person(s) the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Lender shall release the Award from any such event to the Borrower if and to the extent required by the terms and conditions of the Loan Documents in order to repair and restore the Project in accordance with the terms and provisions of the Loan Documents. Any portion of the Award made available to the Borrower for the repair or restoration of the Project shall not be subject to attachment by Subordinated Lender.

7.         Foreclosure of the Subordinated Mortgage: Subordinated Lender expressly agrees that, for so long as a Loan shall remain outstanding, (A) due notice of the commencement of any foreclosure of the Subordinated Loan Documents shall be given to Lender, and true copies of all papers served or entered in such action will be delivered to Lender, (B) no portion of the rents, issues and profits of the Project shall be collected in connection with the foreclosure of the Subordinated Loan Documents except through a receiver appointed by the court in which such foreclosure action is brought, after due notice for the appointment of such receiver shall have been given to Lender, (C) the rents, issues and profits collected by any such receiver shall be applied first to the payment of taxes, maintenance and operating charges and disbursements incurred in connection with the operation and maintenance of the Project and next to the payment of principal and interest (including, without limitation, default interest and late payment charges) due under the Loan Documents, and (D) if during the pendency of any such foreclosure action an action shall be brought for the foreclosure of the Loan Documents and an application shall be made for an extension of the receivership for the benefit of Lender, all such rents, issues and profits held by such receiver as of the date of such application shall be applied by the receiver solely for the benefit of Lender, and the Subordinated Lender shall not be entitled to any portion thereof until Lender has received all amounts then due to it. Without limiting the generality of the foregoing, Subordinated Lender consents to, and shall not object to, any action or proceeding at any time initiated by Lender for the appointment of a receiver and Subordinated Lender further agrees that it shall not institute any action or proceeding for the appointment of a receiver at any time during which a receiver shall have already been appointed for the benefit of Lender, and if Subordinated Lender shall have appointed or caused the appointment of a receiver prior to Lender’s initiation of proceedings to do so, Subordinated Lender agrees to take all action reasonably necessary to terminate such appointment in order to facilitate Lender’s appointment of same.

8.         Rights of Subrogation. No payment or distribution to Lender pursuant to the provisions of this Agreement and no Protective Advance by Subordinated Lender shall entitle Subordinated Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the Loan, and Subordinated Lender agrees that, except with respect to the enforcement of its remedies under the Subordinated Loan Documents permitted hereunder, prior to the satisfaction of all obligations under the Loan it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Project or any other collateral now securing the Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Loan Documents or the liens, rights, estates and interests created thereby.

Exhibit SS-12

9.         Transfer of Subordinated Loan or Loan. Subordinated Lender shall not Transfer more than 49% of its beneficial interest in the Subordinated Loan unless either (i) a Rating Agency Confirmation has been given with respect to such Transfer, in which case the related transferee shall thereafter be deemed to be a “Qualified Transferee” for all purposes of this Agreement, or (ii) such Transfer is to a Qualified Transferee. Any such transferee must assume in writing the obligations of Subordinated Lender hereunder and agree to be bound by the terms and provisions hereof. Such proposed transferee shall also remake each of the representations and warranties contained herein for the benefit of the Lender.

At least five (5) days prior to a transfer to a Qualified Transferee, the Subordinated Lender shall provide to Lender a certification that such transfer will be made in accordance with this Section 9, such certification to include the name and contact information of the Qualified Transferee, and a statement as to how it meets the definition of Qualified Transferee.

Subordinated Lender acknowledges that any Rating Agency Confirmation may be granted or denied by the Rating Agencies in their sole and absolute discretion and that such Rating Agencies may charge customary fees in connection with any such action, which fee, together with any and all other reasonable costs and expenses of Rating Agencies or Lender incurred in connection with the processing of same, including, without limitation, reasonable attorneys’ fees and costs, shall be paid by Subordinated Lender.

Lender may, from time to time, in its sole discretion Transfer all or any of the Loan or any interest therein, and notwithstanding any such Transfer or subsequent Transfer, the Loan and the Loan Documents shall be and remain a senior obligation in the respects set forth in this Agreement to the Subordinated Loan and the Subordinated Loan Documents in accordance with the terms and provisions of this Agreement.

Notwithstanding anything contained in this Agreement, Subordinated Lender agrees that it shall in no event Transfer all or any part of the Subordinated Loan to Borrower or to any Person which is an Affiliate of Borrower and any such Transfer shall be void ab initio.

10.      Notices. All notices required to be given hereunder shall be sent by first class, certified or registered mail, postage prepaid, return receipt requested, or delivered by hand, to either party at such party’s address first set forth above. Notices shall be deemed to have been given when received. Either party may change its address for notices hereunder by written notice to the other party.

11.      Obligations Hereunder Not Affected. All rights, interests, agreements and obligations of Lender and Subordinated Lender under this Agreement shall remain in full force and effect irrespective of:

(i)        any lack of validity or enforceability of the Loan Documents or the Subordinated Loan Documents or any other agreement or instrument relating thereto;

(ii)       any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from any guaranty, for all or any portion of the Loan or the Subordinated Loan;

Exhibit SS-13

(iii)      any manner of application of collateral, or proceeds thereof, to all or any portion of the Loan or the Subordinated Loan, or any manner of sale or other disposition of any collateral for all or any portion of the Loan or the Subordinated Loan or any other assets of Borrower or any other Affiliates of Borrower;

(iv)      any change, restructuring or termination of the corporate structure or existence of Borrower or any other Affiliates of Borrower; or

(v)       any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower or a subordinated creditor or a Lender subject to the terms hereof.

12.       Continued Effectiveness; Reinstatement. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Loan is rescinded or must otherwise be returned by Lender or Subordinated Lender upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.

13.        Estoppel.

(a).       Subordinated Lender shall, within ten (10) days following a request from Lender, provide Lender with a written statement setting forth the then current outstanding principal balance of the Subordinated Loan, the aggregate accrued and unpaid interest under the Subordinated Loan, and stating whether to Subordinated Lender’s knowledge any default or Event of Default exists under the Subordinated Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Lender and by any prospective purchaser of all or any interest in the Loan.

(b).       Lender shall, within ten (10) days following a request from Subordinated Lender, provide Subordinated Lender with a written statement setting forth the then current outstanding principal balance of the Loan, the aggregate accrued and unpaid interest under the Loan, and stating whether to Lender’s knowledge any default or Event of Default exists under the Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Subordinated Lender and by any prospective purchaser of all or any interest in the Subordinated Loan.

14.       No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, or any other Person other than the respective successors and permitted assignees of the parties hereto. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought.

15.       Counterpart Originals. This Agreement may be executed in counterpart originals, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.

16.       No Waiver; Remedies. No failure on the part of Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or

Exhibit SS-14

partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

17.       No Joint Venture. Nothing provided herein is intended to create a joint venture, partnership, tenancy in common or joint tenancy relationship between or among any of the parties hereto.

18.       Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

19.       Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Loan Documents or the Subordinated Loan Documents, the terms and conditions of this Agreement shall control.

20.       No Release. Nothing herein contained shall operate to release Borrower from (a) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Loan Documents or (b) any liability of Borrower under the Loan Documents or to release Borrower from (x) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Subordinated Loan Documents or (y) any liability of Borrower under the Subordinated Loan Documents.

21.       Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.

22.       Expenses.

(a)       Subordinated Lender agrees upon demand to pay to Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Lender against Subordinated Lender hereunder to the extent that Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Subordinated Lender to perform or observe any of the provisions hereof.

(b)       Lender agrees upon demand to pay to Subordinated Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Subordinated Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Subordinated Lender against Lender hereunder to the extent that Subordinated Lender is the prevailing

Exhibit SS-15

party in any dispute with respect thereto or (ii) failure by Lender to perform or observe any of the provisions hereof.

23.       Injunction. Lender and Subordinated Lender each acknowledge (and waive any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by either Lender or Subordinated Lender hereunder would cause irreparable harm to the other. Accordingly, Lender and Subordinated Lender agree that upon a breach of this Agreement by the other, the remedies of injunction, declaratory judgment and specific performance shall be available to such non breaching party.

24.       Each of Lender and Subordinated Lender acknowledges that the Loan, the Loan Documents, the Subordinated Loan and the Subordinated Loan Documents are distinct, separate transactions and loans, separate and apart from each other. Each of Lender and Subordinated Lender agrees that the other shall be treated as a separate lender with a distinct and separate loan.

25.      Waiver of Jury Trial. LENDER AND SUBORDINATED LENDER EACH EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY AND EVERY RIGHT IT MAY HAVE TO A TRIAL BY JURY.

26.       Successors and Assigns. This Agreement shall be binding upon and benefit both Lender and Subordinated Lender and their respective permitted successors and assigns. Lender shall have the right to record this Agreement.

27.       Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the State of New York.

28.       Amendments. No provision of this Agreement shall be waived, amended or supplemented except by written agreement of the party charges with such waiver, amendment or supplement.

29.        Continuing Agreement. This Agreement is a continuing agreement and shall remain in full force and effect until the earlier of (a) payment in full of the Loan, (b) transfer of the Project by foreclosure of the Loan Documents or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, (c) transfer of the Project by foreclosure of the Subordinated Loan Documents or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, or (d) payment in full of the Subordinated Loan; provided, however, any rights or remedies of either party hereto arising out of any breach of any provision herein occurring prior to such date of termination shall survive such termination.

Exhibit SS-16

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

LENDER:

[__________]

By:

SUBORDINATED LENDER:

[__________]

By:

Exhibit SS-17

STATE OF NEW YORK      )

                                              ) ss.:

COUNTY OF NEW YORK )

On the __ day of ________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual taking acknowledgment

STATE OF NEW YORK      )

                                              ) ss.:

COUNTY OF NEW YORK )

On the ___ day of _________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual taking acknowledgment

Exhibit SS-18

Exhibit TT

FORM OF EXCHANGE LETTER

[Certificateholder’s letterhead]

[Date]

Computershare Trust Company, National Association,
as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention:        Corporate Trust Services (CMBS)

BANK 2021-BNK38
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

In accordance with Section 5.11(d) of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Midland Loan Services, a Division of PNC Bank, National Association, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Computershare Trust Company, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, we hereby (i) certify that as of the above date, the undersigned is the beneficial owner of the Exchangeable Certificate set forth below under “Exchangeable Certificates to be Surrendered”, is duly authorized to deliver this notice to the Certificate Administrator and that such power has not been granted or assigned to any other Person and the Certificate Administrator may conclusively rely upon this notice and (ii) give notice of our intent to present and surrender the Exchangeable Certificates set forth below under “Exchangeable Certificates to be Surrendered” and all of our right, title and interest in and to such Exchangeable Certificates, including all payments of interest thereon received after [_____________], in exchange for the corresponding Exchangeable Certificates set forth below under “Exchangeable Certificates to be Received”. We propose an Exchange Date of [______].

We agree that upon such exchange, our interests in the portion(s) of the Exchangeable Certificates surrendered in exchange shall be reduced and our interest in the portion(s) of the Exchangeable Certificates received in such exchange shall be increased.

	Exchangeable Certificates to be Surrendered	Exchangeable Certificates to be Received
Class(es)	[_]	[_]

Exhibit TT-1

CUSIP(s)	[_]	[_]
Original Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]
Outstanding Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]

Exhibit TT-2

Our Depository participant number is [________].

Sincerely,

By:

Name:

Title:

[Medallion Stamp Guarantee]

Exhibit TT-3

Exhibit UU

FORM OF CERTIFICATE ADMINISTRATOR RECEIPT OF THE RR INTEREST

[Date]

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1633 Broadway, 29th Floor

New York, New York 10019

Attention:  Legal Compliance Division

with a copy to

cmbs_notices@morganstanley.com

Morgan Stanley Bank, N.A.

1585 Broadway

New York, New York 10036

Bank of America, National Association

One Bryant Park

New York, New York 10036

Wells Fargo Bank, National Association

301 South College St.

Charlotte, North Carolina 28202

Re: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

In accordance with Section 5.02 of the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), the Certificate Administrator hereby acknowledges receipt and possession of and further agrees that it will hereafter hold in the Retained Interest Safekeeping Account $[_____] of the RR Interest in the form of a [144A Global

Exhibit UU-1

Certificate][Definitive Certificate] (CUSIP No. [_]), which constitute the RR Interest as defined in the Pooling and Servicing Agreement, for the benefit of Morgan Stanley Bank, N.A., Wells Fargo Bank, National Association and Bank of America, National Association, each an initial Holder of the RR Interest, as the registered holders thereof. A copy of such RR Interest is attached as Exhibit A-1. Payments on the RR Interest will be made to each registered holder thereof in accordance with the Pooling and Servicing Agreement.

Exhibit UU-2

Capitalized terms used but not defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.

Computershare Trust Company, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38
By:
	[Name]
	[Title]

Exhibit UU-3

EXHIBIT A-1

Exhibit UU-4

SCHEDULE 1

Mortgage Loans with Additional Debt

1.        One North Wacker

2.        Park Avenue Plaza

3.        CX – 350 & 450 Water Street

4.        1201 Lake Robbins

5.        Forest Hills South Owners, Inc.

6.        Tova Realty Corp.

7.        Park East Apartments, Inc.

8.        Regency Park Owners Corp.

9.        Lincoln Gardens Owners, Inc.

10.      1136 Tenant’s Corporation

11.      East Hampton Mews Tenants Corp.

12.      86-10 Owners Corp.

13.      Vermont Owners Corp.

14.      Tanglewood Gardens Owners Corp.

15.      67 Owners Ltd.

16.      55 East 66th Street Corporation

17.      76 Remsen Street, Inc.

18.      510 West 123rd Street Owners Corp.

19.      4-10 Bogardus Corp.

20.      21-23 Bleecker Street Owners Corp.

21.      Broad Hollow Owners, Inc.

22.      Baldwin Pointe Owners, Corp.

23.      77 East Owners Corp.

Schedule 1-1

SCHEDULE 2

CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE

Distribution Date	Class A-SB Planned Principal Balance ($)	Distribution Date	Class A-SB Planned Principal Balance ($)
January 2022	8,200,000.00	July 2026	8,200,000.00
February 2022	8,200,000.00	August 2026	8,200,000.00
March 2022	8,200,000.00	September 2026	8,200,000.00
April 2022	8,200,000.00	October 2026	8,200,000.00
May 2022	8,200,000.00	November 2026	8,200,000.00
June 2022	8,200,000.00	December 2026	8,121,761.07
July 2022	8,200,000.00	January 2027	7,990,623.28
August 2022	8,200,000.00	February 2027	7,859,120.30
September 2022	8,200,000.00	March 2027	7,707,948.38
October 2022	8,200,000.00	April 2027	7,575,656.31
November 2022	8,200,000.00	May 2027	7,436,587.07
December 2022	8,200,000.00	June 2027	7,303,538.58
January 2023	8,200,000.00	July 2027	7,163,735.25
February 2023	8,200,000.00	August 2027	7,029,926.12
March 2023	8,200,000.00	September 2027	6,895,744.24
April 2023	8,200,000.00	October 2027	6,754,840.97
May 2023	8,200,000.00	November 2027	6,619,892.13
June 2023	8,200,000.00	December 2027	6,478,244.54
July 2023	8,200,000.00	January 2028	6,342,524.46
August 2023	8,200,000.00	February 2028	6,206,426.22
September 2023	8,200,000.00	March 2028	6,057,377.58
October 2023	8,200,000.00	April 2028	5,920,483.58
November 2023	8,200,000.00	May 2028	5,776,948.25
December 2023	8,200,000.00	June 2028	5,639,272.16
January 2024	8,200,000.00	July 2028	5,494,977.83
February 2024	8,200,000.00	August 2028	5,356,515.28
March 2024	8,200,000.00	September 2028	5,217,666.81
April 2024	8,200,000.00	October 2028	5,072,234.70
May 2024	8,200,000.00	November 2028	4,932,593.24
June 2024	8,200,000.00	December 2028	4,786,391.55
July 2024	8,200,000.00	January 2029	4,645,952.66
August 2024	8,200,000.00	February 2029	4,505,122.26
September 2024	8,200,000.00	March 2029	4,345,501.72
October 2024	8,200,000.00	April 2029	4,203,831.90
November 2024	8,200,000.00	May 2029	4,055,661.72
December 2024	8,200,000.00	June 2029	3,913,183.16
January 2025	8,200,000.00	July 2029	3,764,228.11
February 2025	8,200,000.00	August 2029	3,620,936.29
March 2025	8,200,000.00	September 2029	3,477,244.87
April 2025	8,200,000.00	October 2029	3,327,112.76
May 2025	8,200,000.00	November 2029	3,182,601.31
June 2025	8,200,000.00	December 2029	3,031,673.38
July 2025	8,200,000.00	January 2030	2,886,337.32
August 2025	8,200,000.00	February 2030	2,740,595.87
September 2025	8,200,000.00	March 2030	2,576,526.98
October 2025	8,200,000.00	April 2030	2,429,919.59
November 2025	8,200,000.00	May 2030	2,276,957.58
December 2025	8,200,000.00	June 2030	2,129,513.88
January 2026	8,200,000.00	July 2030	1,975,740.24
February 2026	8,200,000.00	August 2030	1,827,455.56
March 2026	8,200,000.00	September 2030	1,678,757.12
April 2026	8,200,000.00	October 2030	1,523,765.78
May 2026	8,200,000.00	November 2030	1,374,219.35
June 2026	8,200,000.00	December 2030	1,218,405.04

Schedule 2-1

Distribution Date	Class A-SB Planned Principal Balance ($)	Distribution Date	Class A-SB Planned Principal Balance ($)
January 2031	1,068,005.88	May 2031	438,890.47
February 2031	917,186.97	June 2031	286,313.35
March 2031	748,518.98	July 2031 and thereafter	0.00
April 2031	596,806.70

Schedule 2-2

SCHEDULE 3

DESIGNATED ESCROWS AND RESERVES (OTHER THAN WITH RESPECT TO ncb co-op lOANS)

None.

Schedule 3-1

EX-4.2

Exhibit 4.2

EXECUTED VERSION 

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

Wells Fargo Bank, National Association,
as General Master Servicer

Rialto Capital Advisors, LLC,
as General Special Servicer

National Cooperative Bank, n.a.,
as NCB Master Servicer and as NCB Special Servicer

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee

and

PENTALPHA SURVEILLANCE LLC,
as Operating Advisor and as Asset Representations Reviewer

POOLING AND SERVICING AGREEMENT

Dated as of October 1, 2021

Commercial Mortgage Pass-Through Certificates
Series 2021-BNK36

TABLE OF CONTENTS

		Page
ARTICLE I
DEFINITIONS		6
Section 1.01	Defined Terms	6
Section 1.02	Certain Calculations	142
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES		144
Section 2.01	Conveyance of Mortgage Loans	144
Section 2.02	Acceptance by Trustee	151
Section 2.03	Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties	156
Section 2.04	Execution of Certificates; Issuance of Lower-Tier Regular Interests	172
Section 2.05	Creation of the Grantor Trust	173
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND		173
Section 3.01	Master Servicers to Act as Master Servicers; Special Servicers to Act as Special Servicers; Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties	173
Section 3.02	Collection of Mortgage Loan Payments	182
Section 3.03	Collection of Taxes, Assessments and Similar Items; Servicing Accounts	188
Section 3.04	The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account	193
Section 3.05	Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account	200
Section 3.06	Investment of Funds in Collection Accounts, REO Accounts and Loss of Value Reserve Fund	211
Section 3.07	Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage	213
Section 3.08	Enforcement of Due-on-Sale Clauses; Assumption Agreements	219

-i-

Section 3.09	Realization Upon Defaulted Loans and Companion Loans	225
Section 3.10	Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files	229
Section 3.11	Servicing Compensation	230
Section 3.12	Inspections; Collection of Financial Statements	238
Section 3.13	Access to Certain Information	245
Section 3.14	Title to REO Property; REO Account	258
Section 3.15	Management of REO Property	260
Section 3.16	Sale of Defaulted Loans and REO Properties	262
Section 3.17	Additional Obligations of Master Servicers and Special Servicers	269
Section 3.18	Modifications, Waivers, Amendments and Consents	272
Section 3.19	Transfer of Servicing Between Master Servicers and Special Servicers; Recordkeeping; Asset Status Report	286
Section 3.20	Sub-Servicing Agreements	294
Section 3.21	Interest Reserve Account	297
Section 3.22	Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers	298
Section 3.23	Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party	298
Section 3.24	Intercreditor Agreements	303
Section 3.25	Rating Agency Confirmation	307
Section 3.26	The Operating Advisor	308
Section 3.27	Companion Paying Agent	317
Section 3.28	Serviced Companion Noteholder Register	317
Section 3.29	Certain Matters Relating to the Non-Serviced Mortgage Loans and the Serviced Pari Passu Companion Loans	318
Section 3.30	Certain Matters with Respect to Joint Mortgage Loans	320
Section 3.31	[RESERVED]	325
Section 3.32	Litigation Control	325
Section 3.33	Delivery of Excluded Information to the Certificate Administrator	328
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS		329
Section 4.01	Distributions	329
Section 4.02	Distribution Date Statements; CREFC® Investor Reporting Packages; Grant of Power of Attorney	344
Section 4.03	P&I Advances	350
Section 4.04	Allocation of Realized Losses	354
Section 4.05	Appraisal Reduction Amounts; Collateral Deficiency Amounts	355
Section 4.06	Grantor Trust Reporting	360
Section 4.07	Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool	361
Section 4.08	Secure Data Room	364

-ii-

ARTICLE V
THE CERTIFICATES		366
Section 5.01	The Certificates	366
Section 5.02	Form and Registration	366
Section 5.03	Registration of Transfer and Exchange of Certificates	369
Section 5.04	Mutilated, Destroyed, Lost or Stolen Certificates	378
Section 5.05	Persons Deemed Owners	378
Section 5.06	Access to List of Certificateholders’ Names and Addresses; Special Notices	379
Section 5.07	Maintenance of Office or Agency	380
Section 5.08	Appointment of Certificate Administrator	380
Section 5.09	[RESERVED]	381
Section 5.10	Voting Procedures	381
Section 5.11	Exchangeable Certificates	382
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE DIRECTING CERTIFICATEHOLDER AND THE RISK RETENTION CONSULTATION PARTY		384
Section 6.01	Representations, Warranties and Covenants of each Applicable Master Servicer, each Applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer	384
Section 6.02	Liability of the Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer	390
Section 6.03	Merger, Consolidation or Conversion of the Depositor, a Master Servicer, the Operating Advisor, a Special Servicer or the Asset Representations Reviewer	390
Section 6.04	Limitation on Liability of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others.	392
Section 6.05	Depositor, Master Servicers and Special Servicers Not to Resign	398
Section 6.06	Rights of the Depositor in Respect of each applicable Master Servicer and Special Servicer	399
Section 6.07	Master Servicers and Special Servicers as Certificate Owners	399
Section 6.08	The Directing Certificateholder and the Risk Retention Consultation Party	400
Section 6.09	Knowledge of Wells Fargo Bank, National Association	408

-iii-

ARTICLE VII
SERVICER TERMINATION EVENTS		408
Section 7.01	Servicer Termination Events; Master Servicers and Special Servicers Termination	408
Section 7.02	Trustee to Act; Appointment of Successor	417
Section 7.03	Notification to Certificateholders	419
Section 7.04	Waiver of Servicer Termination Events	419
Section 7.05	Trustee as Maker of Advances	419
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR		420
Section 8.01	Duties of the Trustee and the Certificate Administrator	420
Section 8.02	Certain Matters Affecting the Trustee and the Certificate Administrator	421
Section 8.03	Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans	423
Section 8.04	Trustee or Certificate Administrator May Own Certificates	424
Section 8.05	Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator	424
Section 8.06	Eligibility Requirements for Trustee and Certificate Administrator	426
Section 8.07	Resignation and Removal of the Trustee and Certificate Administrator	426
Section 8.08	Successor Trustee or Certificate Administrator	429
Section 8.09	Merger or Consolidation of Trustee or Certificate Administrator	429
Section 8.10	Appointment of Co-Trustee or Separate Trustee	429
Section 8.11	Appointment of Custodians	430
Section 8.12	Representations and Warranties of the Trustee	431
Section 8.13	Provision of Information to Certificate Administrator, Master Servicers and Special Servicers	432
Section 8.14	Representations and Warranties of the Certificate Administrator	432
Section 8.15	Compliance with the PATRIOT Act	433
ARTICLE IX
TERMINATION		434
Section 9.01	Termination upon Repurchase or Liquidation of All Mortgage Loans	434
Section 9.02	Additional Termination Requirements	438
ARTICLE X
ADDITIONAL REMIC PROVISIONS		439
Section 10.01	REMIC Administration	439

-iv-

Section 10.02	Use of Agents	443
Section 10.03	Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator	443
Section 10.04	Appointment of REMIC Administrators	444
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE		445
Section 11.01	Intent of the Parties; Reasonableness	445
Section 11.02	Succession; Subcontractors	445
Section 11.03	Filing Obligations	448
Section 11.04	Form 10-D and Form ABS-EE Filings	448
Section 11.05	Form 10-K Filings	452
Section 11.06	Sarbanes-Oxley Certification	455
Section 11.07	Form 8-K Filings	457
Section 11.08	Form 15 Filing	459
Section 11.09	Annual Compliance Statements	459
Section 11.10	Annual Reports on Assessment of Compliance with Servicing Criteria	461
Section 11.11	Annual Independent Public Accountants’ Attestation Report	463
Section 11.12	Indemnification	464
Section 11.13	Amendments	467
Section 11.14	Regulation AB Notices	467
Section 11.15	Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans	467
Section 11.16	Certain Matters Regarding Significant Obligors	473
Section 11.17	Impact of Cure Period	473
ARTICLE XII
THE ASSET REPRESENTATIONS REVIEWER		473
Section 12.01	Asset Review	473
Section 12.02	Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability	479
Section 12.03	Resignation of the Asset Representations Reviewer	480
Section 12.04	Restrictions of the Asset Representations Reviewer	481
Section 12.05	Termination of the Asset Representations Reviewer	481
ARTICLE XIII
MISCELLANEOUS PROVISIONS		484
Section 13.01	Amendment	484
Section 13.02	Recordation of Agreement; Counterparts	489
Section 13.03	Limitation on Rights of Certificateholders	490

-v-

Section 13.04	Governing Law; Submission to Jurisdiction; Waiver of Jury Trial	491
Section 13.05	Notices	491
Section 13.06	Severability of Provisions	500
Section 13.07	Grant of a Security Interest	500
Section 13.08	Successors and Assigns; Third Party Beneficiaries	500
Section 13.09	Article and Section Headings	501
Section 13.10	Notices to the Rating Agencies	501
Section 13.11	Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements	503

-vi-

EXHIBITS
EXHIBIT A-1	Form of Certificate (Other than Class R and Class V Certificates)
EXHIBIT A-2	Form of Class R Certificate
EXHIBIT A-3	Form of Class V Certificate
EXHIBIT A-4	Form of RR Interest
EXHIBIT B	Mortgage Loan Schedule
EXHIBIT C	Form of Investment Representation Letter
EXHIBIT D-1	Form of Transferee Affidavit for Transfers of Class R Certificates
EXHIBIT D-2	Form of Transferor Letter for Transfers of Class R Certificates
EXHIBIT D-3	Form of Transferee Certificate for Transfers of RR Interest
EXHIBIT D-4	Form of Transferor Certificate for Transfers of RR Interest
EXHIBIT E	Form of Request for Release
EXHIBIT F-1	Form of ERISA Representation Letter Regarding ERISA Restricted Certificates
EXHIBIT F-2	Form of ERISA Representation Letter Regarding Class R Certificates and Class V Certificates
EXHIBIT G	Form of Distribution Date Statement
EXHIBIT H	Form of Omnibus Assignment
EXHIBIT I	Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate During Restricted Period
EXHIBIT J	Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period
EXHIBIT K	Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate During Restricted Period
EXHIBIT L	Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate After Restricted Period
EXHIBIT M	Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Book-Entry Certificate
EXHIBIT N	Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Book-Entry Certificate
EXHIBIT O	Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Book-Entry Certificate
EXHIBIT P-1A	Form of Investor Certification for Non-Borrower Party and/or the Risk Retention Consultation Party (for Persons Other than the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1B	Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1C	Form of Investor Certification for Borrower Party (for Persons Other than the Directing Certificateholder, the Risk Retention Consultation Party and/or a Controlling Class Certificateholder)
EXHIBIT P-1D	Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1E	Form of Notice of Excluded Controlling Class Holder
EXHIBIT P-1F	Form of Notice of [Excluded Loan] [Excluded Controlling Class Holder] to Certificate Administrator
EXHIBIT P-1G	Form of Certification of the Directing Certificateholder

-vii-

EXHIBIT P-1H	Form of Certification of the Risk Retention Consultation Party
EXHIBIT P-2	Form of Certification for NRSROs
EXHIBIT P-3	Online Market Data Provider Certification
EXHIBIT Q	Custodian Certification/Exception Report
EXHIBIT R-1	Form of Power of Attorney – Master Servicers
EXHIBIT R-2	Form of Power of Attorney – Special Servicers
EXHIBIT S	Initial Serviced Companion Noteholders
EXHIBIT T	Form of Notice Relating to the Non-Serviced Mortgage Loan
EXHIBIT U	Form of Notice and Certification Regarding Defeasance of Mortgage Loan
EXHIBIT V	Form of Operating Advisor Annual Report
EXHIBIT W	Form of Notice from Operating Advisor Recommending Replacement of a Special Servicer
EXHIBIT X	Form of Confidentiality Agreement
EXHIBIT Y	Form Certification to be Provided with Form 10-K
EXHIBIT Y-1	Form of Certification to be Provided to Depositor by Certificate Administrator
EXHIBIT Y-2	Form of Certification to be Provided to Depositor by Master Servicer
EXHIBIT Y-3	Form of Certification to be Provided to Depositor by Special Servicer
EXHIBIT Y-4	Form of Certification to be Provided to Depositor by Trustee
EXHIBIT Y-5	Form of Certification to be Provided to Depositor by Operating Advisor
EXHIBIT Y-6	Form of Certification to be Provided to Depositor by Custodian
EXHIBIT Y-7	Form of Certification to be Provided to Depositor by Asset Representations Reviewer
EXHIBIT Z	Servicing Criteria to be Addressed in Assessment of Compliance
EXHIBIT AA	Additional Form 10-D Disclosure
EXHIBIT BB	Additional Form 10-K Disclosure
EXHIBIT CC	Form 8-K Disclosure Information
EXHIBIT DD	Additional Disclosure Notification
EXHIBIT EE	Initial Sub-Servicers
EXHIBIT FF	Servicing Function Participants
EXHIBIT GG	Form of Annual Compliance Statement
EXHIBIT HH	Form of Report on Assessment of Compliance with Servicing Criteria
EXHIBIT II	CREFC® Payment Information
EXHIBIT JJ	Form of Notice of Additional Indebtedness Notification
EXHIBIT KK	[Reserved]
EXHIBIT LL	Additional Disclosure Notification (Accounts)
EXHIBIT MM	Form of Notice of Purchase of Controlling Class Certificate
EXHIBIT NN	Form of Asset Review Report by the Asset Representations Reviewer
EXHIBIT OO	Form of Asset Review Report Summary
EXHIBIT PP	Asset Review Procedures
EXHIBIT QQ	Form of Certification to Certificate Administrator Requesting Access to Secure Data Room
EXHIBIT RR	Form of Notice of [Additional Delinquent Loan][Cessation of Delinquent Loan][Cessation of Asset Review Trigger]
EXHIBIT SS	Form of Intercreditor Agreement and Subordination Agreement for NCB Co-op Mortgage Loans

-viii-

EXHIBIT TT	Form of Exchange Letter
EXHIBIT UU	Form of Certificate Administrator Receipt of the RR Interest
SCHEDULES
SCHEDULE 1	Mortgage Loans With Additional Debt
SCHEDULE 2	Class A-SB Planned Principal Balance Schedule
SCHEDULE 3	Mortgage Loans (Other than NCB Co-op Mortgage Loans) With Escrows or Reserves Exceeding 10% of the Initial Principal Balance of the Mortgage Loan or (if applicable) Whole Loan

-ix-

This Pooling and Servicing Agreement is dated and effective as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer.

PRELIMINARY STATEMENT

The Depositor intends to sell commercial mortgage pass-through certificates (collectively, the “Certificates”), to be issued hereunder in multiple classes, which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust (exclusive of the Excess Interest and the proceeds thereof in the Excess Interest Distribution Account) for federal income tax purposes as two (2) separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC”, and each a “Trust REMIC” as described herein).

In addition, the parties intend that the portion of the Trust Fund consisting of the Grantor Trust Designated Portions shall be classified as an “investment trust” under section 301.7701-4(c) of the Treasury Regulations and that the holders of the Exchangeable Certificates, the Class V Certificates and the RR Interest shall be treated as holding undivided beneficial ownership interests in the corresponding Grantor Trust Designated Portion, under subpart E, part I of subchapter J of the Code (such arrangement, the “Grantor Trust”). The Certificate Administrator shall take all actions expressly required hereunder to ensure that the Grantor Trust remains classified as a trust and that the holders of the Exchangeable Certificates, the Class V Certificates and the RR Interest continue to be the owners of their Grantor Trust Designated Portions for federal income tax purposes. The Grantor Trust shall not be treated as part of either Trust REMIC.

The Depositor intends to sell the Certificates to the Underwriters and the Initial Purchasers.

LOWER-TIER REMIC

The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of Excess Interest) and will issue the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG and Class LH and LRR Uncertificated Interests (the “Lower-Tier Regular Interests”), which will be the “regular interests” in the Lower-Tier REMIC. The Lower-Tier REMIC will also issue the uncertificated Class LR Interest, which is the sole Class of “residual interests” in the Lower-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

The following table sets forth the Class designation, the Original Lower-Tier Principal Amounts and per annum rates of interest for the Lower-Tier Regular Interests and the Class LR Interest:

Class Designation	Interest Rate	Original Lower-Tier Principal Amount
Class LA1	(1)	$                27,581,000
Class LA2	(1)	$              157,181,000
Class LA3	(1)	$                10,640,000
Class LASB	(1)	$                27,535,000
Class LA4	(1)	$              200,000,000
Class LA5	(1)	$              425,638,000
Class LAS	(1)	$              107,588,000
Class LB	(1)	$                53,036,000
Class LC	(1)	$                51,520,000
Class LD	(1)	$                34,853,000
Class LE	(1)	$                30,306,000
Class LF	(1)	$                28,791,000
Class LG	(1)	$                12,122,000
Class LH	(1)	$                45,460,314
Class LR	None(2)	None
LRR	(1)	$                63,802,700.76

(1)

The interest rate for each Class of Lower-Tier Regular Interests on any Distribution Date will be the Weighted Average Net Mortgage Rate for such Distribution Date.

(2)

The Class LR Interest (evidenced by the Class R Certificates) will not have a Certificate Balance or Notional Amount, will not bear interest and will not be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Lower-Tier REMIC Distribution Account after distributing the Lower-Tier Distribution Amount will be deemed distributed to the Class LR Interest and shall be payable to the Holders of the Class R Certificates.

UPPER-TIER REMIC

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and will issue the Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G and Class H Certificates, the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1, Class A-5-X2, Class A-S, Class A-S-X1, Class A-S-X2, Class B, Class B-X1, Class B-X2, Class C, Class C-X1 and Class C-X2 Upper-Tier Regular Interests, and the regular interest component of the RR Interest (the Excess Interest component of the RR Interest will be held through the Grantor Trust), each of which will represent a “regular interest” in the Upper-Tier REMIC (the “Upper-Tier Regular Interests”). Each of the Upper-Tier Regular Interests designated Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G and Class H will be represented by a Class of Regular Certificates with the same alphanumeric designation and Pass-Through Rate, Certificate Balance or Notional Amount and entitlements as such Class of Regular Certificates.

-10-

The Upper-Tier REMIC will also issue the uncertificated Class UR Interest, which will be the sole Class of “residual interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates. The Class R Certificates will not have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Upper Tier REMIC Distribution Account, after all required distributions under this Agreement have been made to each Class of Regular Certificates and Exchangeable Upper-Tier Regular Interests will be deemed distributed to the Class UR Interest and shall be payable to the Holders of the Class R Certificates.

THE UPPER-TIER REGULAR INTERESTS

The following table (and related paragraphs) sets forth the designation, the initial Pass-Through Rate and the aggregate initial principal amount (the “Original Certificate Balance”) or Notional Amount (the “Original Notional Amount”), as applicable, for each Class of Upper-Tier Regular Interests:

Designation of Upper-Tier Regular Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class A-1	0.80100%	$              27,581,000
Class A-2	2.13100%	$            157,181,000
Class A-3	1.89500%	$              10,640,000
Class A-SB	2.28300%	$              27,535,000
Class A-4	1.21800%	$            200,000,000
Class A-4-X1	0.50000%	$            200,000,000(2)
Class A-4-X2	0.50000%	$            200,000,000(2)
Class A-5	1.47000%	$            425,638,000
Class A-5-X1	0.50000%	$            425,638,000(2)
Class A-5-X2	0.50000%	$            425,638,000(2)
Class X-A	1.02731%(1)	$            848,575,000(2)
Class X-B	0.55581%(1)	$            160,624,000(2)
Class X-D	0.80760%(1)	$              65,159,000(2)
Class X-F	0.80760%(1)	$              28,791,000(2)
Class X-G	0.80760%(1)	$              12,122,000(2)
Class X-H	0.80760%(1)	$              45,460,314(2)
Class A-S	1.69500%	$            107,588,000
Class A-S-X1	0.50000%	$            107,588,000(2)
Class A-S-X2	0.50000%	$            107,588,000(2)
Class B	1.86700%	$              53,036,000
Class B-X1	0.50000%	$              53,036,000(2)
Class B-X2	0.50000%	$              53,036,000(2)
Class C	2.30760%	$              51,520,000
Class C-X1	0.50000%	$              51,520,000(2)
Class C-X2	0.50000%	$              51,520,000(2)
Class D	2.50000%	$              34,853,000
Class E	2.50000%	$              30,306,000
Class F	2.50000%	$              28,791,000
Class G	2.50000%	$              12,122,000

-11-

Designation of Upper-Tier Regular Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class H	2.50000%	$        45,460,314
RR Interest	None(3)	$        63,802,700.76

(1)

The Pass-Through Rates for the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates will be calculated in accordance with the definition of “Class X-A Pass-Through Rate”, “Class X-B Pass-Through Rate”, “Class X-D Pass-Through Rate”, “Class X-F Pass-Through Rate”, “Class X-G Pass-Through Rate” and “Class X-H Pass-Through Rate”, respectively.

(2)

None of the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G or Class X-H Certificates or the Class A-4-X1, Class A-4-X2, Class A-5-X1, Class A-5-X2, Class A-S-X1, Class A-S-X2, Class B-X1, Class B-X2, Class C-X1 or Class C-X2 Upper-Tier Regular Interests will have a Certificate Balance or be entitled to distributions of principal; rather, such Classes will accrue interest as provided herein on the Notional Amount thereof.

⁽³⁾ The RR Interest will be entitled to interest on any Distribution Date equal to the Retained Certificate Interest Distribution Amount. It will also be entitled to amounts described below under the caption “The Grantor Trust”.

The foregoing structure is intended to cause all of the cash from the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on the Upper-Tier Regular Interests, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interests. To the extent that the structure is believed to diverge from such intention, the parties identifying such ambiguity shall notify the other parties hereto and the parties involved will resolve such ambiguities to accomplish the intended result and will to the extent necessary rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of counsel) to accomplish such intention, including, to the extent necessary, making any amendments in accordance with Section 13.01 of this Agreement.

THE GRANTOR TRUST

The following table sets forth each Class of Certificates that represents an undivided beneficial interest in the corresponding portion of the Grantor Trust (each such portion, a “Grantor Trust Designated Portion”).

Class of Certificates	Corresponding Grantor Trust Designated Portion
Each Class of Exchangeable Certificates	The related Exchangeable Class Specific Grantor Trust Assets
Class V Certificates	Class V Specific Grantor Trust Assets
RR Interest	RR Interest Specific Grantor Trust Assets

As provided herein, the Certificate Administrator shall not take any actions that would (i) cause the Grantor Trust not to be classified as a grantor trust for U.S. federal income tax purposes, (ii) cause the holders of such Classes of Certificates not to be the owners of their Grantor Trust Designated Portions or (iii) cause the Grantor Trust to be treated as part of any Trust REMIC.

-12-

The Class V Certificates will not have a Certificate Balance or a Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges.

As of the close of business on the Cut-off Date, the Mortgage Loans had an aggregate principal balance, after application of all payments of principal due on or before such date, whether or not received, equal to $1,276,054,015.

WHOLE LOANS

Whole Loan	Type	Non-Serviced PSA	Mortgage Loan	Companion Loan(s)
One North Wacker	Serviced	N/A	One North Wacker Mortgage Loan	One North Wacker Pari Passu Companion Loans
Arizona Mills	Serviced	N/A	Arizona Mills Mortgage Loan	Arizona Mills Pari Passu Companion Loans
Suarez Puerto Rico Industrial Portfolio	Serviced	N/A	Suarez Puerto Rico Industrial Portfolio Mortgage Loan	Suarez Puerto Rico Industrial Portfolio Subordinate Companion Loan
Raymour & Flanigan Campus	Servicing Shift	N/A(1)	Raymour & Flanigan Campus Mortgage Loan	Raymour & Flanigan Campus Pari Passu Companion Loan
Newport Pavilion	Non-Serviced	BANK 2021-BNK35 Pooling and Servicing Agreement	Newport Pavilion Mortgage Loan	Newport Pavilion Pari Passu Companion Loan
Metro Crossing	Non-Serviced	WFCM 2021-C60 Pooling and Servicing Agreement	Metro Crossing Mortgage Loan	Metro Crossing Pari Passu Companion Loan
McDonald’s Global HQ	Non-Serviced	BANK 2020-BNK30 Pooling and Servicing Agreement	McDonald’s Global HQ Mortgage Loan	McDonald’s Global HQ Pari Passu Companion Loans and McDonald’s Global HQ Subordinate Companion Loans
Velocity Industrial Portfolio	Non-Serviced	WFCM 2021-C60 Pooling and Servicing Agreement	Velocity Industrial Portfolio Mortgage Loan	Velocity Industrial Portfolio Pari Passu Companion Loans

⁽¹⁾ On and after the related Servicing Shift Securitization Date, the Servicing Shift Whole Loan will be serviced pursuant to the related Non-Serviced PSA.

Each of the Whole Loans listed above consists of the corresponding Mortgage Loan and Companion Loan(s) listed next to such Whole Loan. With respect to any Whole Loan, each of the Mortgage Loan and any related Pari Passu Companion Loan(s) are pari passu with each other to the extent provided in the related Intercreditor Agreement, and any related AB Subordinate

-13-

Companion Loan(s) are generally subordinate to the related Mortgage Loan and any Pari Passu Companion Loan(s) to the extent provided in the related Intercreditor Agreement. Each Serviced Whole Loan will be serviced and administered in accordance with this Agreement and the related Intercreditor Agreement. Each Non-Serviced Whole Loan will be serviced and administered in accordance with the related Non-Serviced PSA and the related Intercreditor Agreement.

The Companion Loans are not part of the Trust Fund, but are each secured by the applicable Mortgage that secures the related Mortgage Loan that is part of the Trust Fund. Amounts attributable to any Companion Loan will not be part of the Trust Fund, and (except to the extent that such amounts are payable or reimbursable to any party to this Agreement) will be owned by the related Companion Holders.

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

Article I

DEFINITIONS

Section 1.01   Defined Terms. Whenever used in this Agreement, including in the Preliminary Statement, the following capitalized terms, unless the context otherwise requires, shall have the meanings specified in this Article.

“10-K Filing Deadline”: As defined in Section 11.05(a).

 “15Ga-1 Notice”: As defined in Section 2.02(g).

“15Ga-1 Repurchase Request”: As defined in Section 2.02(g).

“17g-5 Information Provider”: The Certificate Administrator.

“17g-5 Information Provider’s Website”: The 17g-5 Information Provider’s Internet website, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “NRSRO” tab on the page relating to this transaction.

 “AB Control Appraisal Period”: With respect to a Serviced AB Whole Loan, a “Control Appraisal Period” or equivalent term under the related AB Intercreditor Agreement.

“AB Intercreditor Agreement”: Any Intercreditor Agreement by and among the holder(s) of one or more Subordinate Companion Loan(s) and the holder of the related Mortgage Loan and the holders of any related Pari Passu Companion Loans, relating to the relative rights of such holders of the related AB Whole Loan, as the same may be further amended in accordance with the terms thereof. As of the Closing Date, each of the Suarez Puerto Rico Industrial Portfolio Intercreditor Agreement and the McDonald’s Global HQ Intercreditor Agreement is an AB Intercreditor Agreement.

“AB Major Decision” With respect to a Serviced AB Whole Loan, a “major decision” or equivalent term under the related AB Intercreditor Agreement.

-14-

“AB Modified Loan”: Any Corrected Loan (1) that became a Corrected Loan (which includes for purposes of this definition any Non-Serviced Mortgage Loan that became a “corrected loan” (or any term substantially similar thereto) pursuant to the related Non-Serviced PSA) due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Mortgage Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

“AB Mortgage Loan”: One or more senior “A notes” that is part of an AB Whole Loan and which is a Mortgage Loan that is part of the Trust Fund. As of the Closing Date, each of the Suarez Puerto Rico Industrial Portfolio Mortgage Loan and the McDonald’s Global HQ Mortgage Loan.

“AB Mortgaged Property”: The Mortgaged Property that secures the related AB Whole Loan. As of the Closing Date, each of the Suarez Puerto Rico Industrial Portfolio Mortgaged Property and the McDonald’s Global HQ Mortgage Property is an AB Mortgaged Property.

“AB Subordinate Companion Loan”: With respect to any AB Whole Loan, any related companion loan evidenced by the related promissory note made by the related Mortgagor and secured by the Mortgage on the related AB Mortgaged Property, which is not included in the Trust and which is subordinate in right of payment to the related AB Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the related AB Intercreditor Agreement. As of the Closing Date, each of the Suarez Puerto Rico Industrial Portfolio Subordinate Companion Loan and the McDonald’s Global HQ Subordinate Companion Loans is an AB Subordinate Companion Loan.

“AB Whole Loan”: A Whole Loan that consists of a Mortgage Loan, any related companion loan that is pari passu in right of payment with such Mortgage Loan and one or more related AB Subordinate Companion Loans. As of the Closing Date, each of the Suarez Puerto Rico Industrial Portfolio Whole Loan and the McDonald’s Global HQ Whole Loan is an AB Whole Loan.

“AB Whole Loan Controlling Holder”: With respect to a Serviced AB Whole Loan, the “Controlling Holder”, “Controlling Noteholder” or similarly defined party identified in the related AB Intercreditor Agreement that is not the holder of the related Serviced Mortgage Loan.

“Accelerated Mezzanine Loan Lender”: A mezzanine lender under a mezzanine loan that has been accelerated or as to which foreclosure or enforcement proceedings have been commenced against the equity collateral pledged to secure such mezzanine loan.

“Acceptable Insurance Default”: With respect to any Serviced Mortgage Loan or Serviced Whole Loan, a default under the related Mortgage Loan documents arising by reason of (i) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property specific insurance coverage with respect to, or an all-risk casualty insurance policy that does not specifically exclude, terrorist or similar acts, and/or (ii) any failure on the part

-15-

of the related Mortgagor to maintain with respect to the related Mortgaged Property insurance coverage with respect to damages or casualties caused by terrorist or similar acts upon terms not materially less favorable than those in place as of the Closing Date, in each case as to which default the applicable Master Servicer and the applicable Special Servicer may forbear taking any enforcement action, provided that the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan), as applicable, has determined, in its reasonable judgment, based on inquiry consistent with the Servicing Standard (and (i) unless a Control Termination Event has occurred and is continuing, with the consent of the Directing Certificateholder and (ii) with respect to a Specially Serviced Loan, after non-binding consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in either case, other than with respect to any Mortgage Loan that is an Excluded Loan as to such party)) (and after a Control Termination Event has occurred and is continuing, but prior to the occurrence and continuance of a Consultation Termination Event, after non-binding consultation with the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, with the consent of the related AB Whole Loan Controlling Holder to the extent required under the related Intercreditor Agreement) as provided in Section 6.08) (other than with respect to any Mortgage Loan that is an Excluded Loan as to such party), that either (a) such insurance is not available at commercially reasonable rates and that such hazards are not at the time commonly insured against for properties similar to the related Mortgaged Property and located in or around the region in which such related Mortgaged Property is located, or (b) such insurance is not available at any rate; provided, however, that the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, the AB Whole Loan Controlling Holder if an AB Control Appraisal Period is not in effect to the extent required under the related Intercreditor Agreement) and the Risk Retention Consultation Party (if it has the right to consult pursuant to Section 6.08) will not have more than thirty (30) Business Days to respond to the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, request for such consent or consultation, as applicable; provided, further, that upon the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, determination, consistent with the Servicing Standard, that exigent circumstances do not allow the applicable Master Servicer or the applicable Special Servicer, as applicable, to consult with the Directing Certificateholder, the Risk Retention Consultation Party or any applicable AB Whole Loan Controlling Holder, as applicable, such Master Servicer or such Special Servicer, as applicable, is not required to do so. The applicable Master Servicer (at its own expense) and the applicable Special Servicer (at the expense of the Trust Fund) shall be entitled to rely on insurance consultants in making the determinations described above.

“Act”: The Securities Act of 1933, as it may be amended from time to time.

“Actual/360 Basis”: Interest accrual on the basis of the actual number of days in a month assuming a 360-day year.

“Actual/360 Mortgage Loans”: The Mortgage Loans that accrue interest on an Actual/360 Basis; provided, that a Mortgage Loan that accrues interest for a portion of the Mortgage Loan term on an Actual/360 Basis shall be an Actual/360 Mortgage Loan solely for such portion of the Mortgage Loan term.

-16-

“Additional Debt”: With respect to any Mortgage Loan, any debt owed by the related Mortgagor to a party other than the lender under such Mortgage Loan that is secured by the related Mortgaged Property as of the Closing Date as set forth on Schedule 1 hereto, as increased or decreased from time to time pursuant to the terms of the related subordinate or pari passu loan documents (including any Intercreditor Agreement or subordination agreement).

“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto as Exhibit DD.

“Additional Exclusions”: Exclusions in addition to those customarily found in the insurance policies for mortgaged properties similar to the Mortgaged Properties on or prior to September 11, 2001.

“Additional Form 10-D Disclosure”: As defined in Section 11.04(a).

“Additional Form 10-K Disclosure”: As defined in Section 11.05(a).

“Additional Servicer”: Each Affiliate of any Master Servicer, any Special Servicer or any Mortgage Loan Seller that services any of the Mortgage Loans and each Person who is not an Affiliate of any Master Servicer, other than any Special Servicer, who services 10% or more of the Mortgage Loans by unpaid principal balance as of any date of determination pursuant to Article XI.

“Administrative Cost Rate”: As of any date of determination and with respect to each Mortgage Loan, a per annum rate equal to the sum of the Servicing Fee Rate, the Certificate Administrator Fee Rate (which fee rate accounts for the Trustee Fee), the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and, in the case of each Non-Serviced Mortgage Loan, the related Non-Serviced Primary Servicing Fee Rate.

“Advance”: Any P&I Advance or Servicing Advance.

“Adverse REMIC Event”: As defined in Section 10.01(f).

“Affected Party”: As defined in Section 7.01(b).

“Affected Reporting Party”: As defined in Section 11.12.

“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Affirmative Asset Review Vote”: As defined in Section 12.01(a).

-17-

“Aggregate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (without duplication):

(a)           the aggregate amount of all cash received on the Mortgage Loans (in the case of a Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced PSA and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into each applicable Collection Account pursuant to Section 3.05(g) of this Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by each applicable Master Servicer pursuant to Section 3.17(a)) on deposit in each applicable Collection Account (in each case, exclusive of any amount on deposit in or credited to any portion of a Collection Account that is held for the benefit of the Serviced Companion Noteholders) as of the close of business on the related P&I Advance Date, exclusive of (without duplication):

(i)      all Periodic Payments paid by the Mortgagors of a Mortgage Loan that are due on a Due Date following the end of the related Collection Period, excluding interest relating to payments prior to, but due after, the Cut-off Date;

(ii)     all unscheduled Principal Prepayments (together with any related payments of interest allocable to the period following the related Due Date for the related Mortgage Loan), Liquidation Proceeds, Insurance and Condemnation Proceeds and other unscheduled recoveries, in each case, received subsequent to the related Determination Date (or, with respect to voluntary Principal Prepayments for each Mortgage Loan with a Due Date occurring after the related Determination Date, subsequent to the related Due Date) allocable to the Mortgage Loans;

(iii)    (A) all amounts payable or reimbursable to any Person from each applicable Collection Account pursuant to clauses (ii) through (xviii), inclusive, and (xxii) of Section 3.05(a); (B) all amounts payable or reimbursable to any Person from the Lower-Tier REMIC Distribution Account pursuant to clauses (ii) through (vii), inclusive, of Section 3.05(b); and (C) any Net Investment Earnings contained therein;

(iv)    with respect to the Actual/360 Mortgage Loans and any Distribution Date occurring in (1) each February or (2) any January in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), an amount equal to one (1) day of interest on the Stated Principal Balance of such Mortgage Loan as of the Distribution Date in the month preceding the month in which the P&I Advance Date occurs at the related Mortgage Rate to the extent such amounts are Withheld Amounts;

(v)     all Excess Interest allocable to the Mortgage Loans (which is separately distributed to the Excess Interest Certificates and the RR Interest, as described in Section 4.01(j));

-18-

(vi)    all Prepayment Premiums and Yield Maintenance Charges allocable to the Mortgage Loans;

(vii)   all amounts deposited in a Collection Account in error; and

(viii)  any Penalty Charges allocable to the Mortgage Loans;

(b)           if and to the extent not already included in clause (a) hereof, the aggregate amount transferred from the REO Accounts allocable to the Mortgage Loans to the applicable Collection Account for such Distribution Date pursuant to Section 3.14(c);

(c)           the aggregate amount of any Compensating Interest Payments made by each applicable Master Servicer in respect of the Mortgage Loans with respect to such Distribution Date and P&I Advances made by each applicable Master Servicer or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator Fee, Operating Advisor Fee, Asset Representations Reviewer Fee and CREFC^® Intellectual Property Royalty License Fee with respect to the Mortgage Loans for which such P&I Advances are made) pursuant to Section 4.03 or Section 7.05; and

(d)           with respect to each Actual/360 Mortgage Loan and any Distribution Date occurring in each March (or February, if the related Distribution Date is the final Distribution Date), the Withheld Amounts remitted to the Lower-Tier REMIC Distribution Account pursuant to Section 3.21(b).

Notwithstanding the investment of funds held in each applicable Collection Account pursuant to Section 3.06, for purposes of calculating the Aggregate Available Funds, the amounts so invested shall be deemed to remain on deposit in such accounts.

“Aggregate Excess Prepayment Interest Shortfall”: The aggregate of any Prepayment Interest Shortfalls resulting from any Principal Prepayments made on the Mortgage Loans to be included in the Aggregate Available Funds for any Distribution Date that are not covered by each applicable Master Servicer’s Compensating Interest Payment for the related Distribution Date and the portion of the compensating interest payments allocable to any Non-Serviced Mortgage Loan to the extent received from the related Non-Serviced Master Servicer.

“Aggregate Gain-on-Sale Entitlement Amount”: For each Distribution Date, the aggregate amount of (i) the sum of (a)(x) the aggregate portion of the Interest Distribution Amount for each Class of Non-Retained Certificates that would remain unpaid as of the close of business on the Distribution Date, divided by (y) the Non-Retained Percentage, and (b)(x) the amount by which the Principal Distribution Amount exceeds the aggregate amount that would actually be distributed on the Distribution Date in respect of such Principal Distribution Amount, divided by (y) the Non-Retained Percentage, and (ii) any outstanding Realized Losses and Retained Certificate Realized Losses outstanding immediately after such Distribution Date, in each case, to the extent such amounts would occur on such Distribution Date or would be outstanding immediately after such Distribution Date, as applicable, without the inclusion of the Gain-on-Sale

-19-

Remittance Amount as part of the definition of Available Funds and the Retained Certificate Gain-on-Sale Remittance Amount as part of the definition of Retained Certificate Available Funds.

“Aggregate Principal Distribution Amount”: With respect to any Distribution Date, an amount equal to the sum of the following amounts: (a) the Scheduled Principal Distribution Amount for such Distribution Date and (b) the Unscheduled Principal Distribution Amount for such Distribution Date; provided that the Aggregate Principal Distribution Amount for any Distribution Date shall be reduced, to not less than zero, by the amount of any reimbursements of (A) Nonrecoverable Advances (including any servicing advance with respect to the Non-Serviced Mortgage Loan under the related Non-Serviced PSA reimbursed out of general collections on the Mortgage Loans), with interest on such Nonrecoverable Advances at the Reimbursement Rate that are paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date and (B) Workout-Delayed Reimbursement Amounts paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date (provided that, in the case of clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including REO Loans (but excluding any related Companion Loan)) are subsequently recovered on the related Mortgage Loan (or REO Loan (but excluding any related Companion Loan)), such recovery will increase the Aggregate Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs).

“Agreement”: This Pooling and Servicing Agreement and all amendments hereof and supplements hereto.

“Allocated Appraisal Reduction Amount”: With respect to any Appraisal Reduction Amount, an amount equal to the Non-Retained Percentage of such Appraisal Reduction Amount.

“Allocated Collateral Deficiency Amount”: With respect to any Collateral Deficiency Amount, the Non-Retained Percentage of such Collateral Deficiency Amount.

“Allocated Cumulative Appraisal Reduction Amount”: With respect to any Cumulative Appraisal Reduction Amount, the Non-Retained Percentage of such Cumulative Appraisal Reduction Amount.

“Anticipated Repayment Date”: With respect to any ARD Loan, the date upon which such ARD Loan commences accruing interest at the Revised Rate.

“Applicable Fitch Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “F1” by Fitch or the long-term debt obligations of which are rated at least “A” by Fitch, and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch or the long-term obligations of which are rated at least “AA-” by Fitch.

-20-

“Applicable KBRA Permitted Investment Rating”: (A) in the case of such investments with maturities of 90 days or less, the short-term debt obligations of which are rated of at least “K3” or the long-term obligations of which are rated at least “BBB-” and (B) in the case of such investments with maturities greater than 90 days but not more than one year, the short-term debt obligations of which are rated of at least “K1” or the long-term obligations of which are rated at least “A-” (in each case, if then rated by KBRA).

“Applicable Laws”: As defined in Section 8.15.

“Applicable S&P Permitted Investment Rating”: (A) in the case of such investments with maturities of sixty (60) days or less, the short term obligations of which are rated at least “A-1” by S&P, and (B) in the case of such investments with maturities of more than sixty (60) days, the short term obligations of which are rated “A-1+” by S&P (or at least “A-1” by S&P, if the long term obligations of which are rated at least “AA-” by S&P).

 “Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York; and (b) such other state or local tax laws whose applicability shall have been brought to the attention of the Trustee and the Certificate Administrator by either (i) an Opinion of Counsel delivered to it, or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

“Appraisal”: An appraisal prepared by an appraiser who is licensed or certified to prepare appraisals in the state where the Mortgaged Property is located and which satisfies the Interagency Appraisal and Evaluation Guidelines jointly issued by The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) relating to real estate appraisals and evaluations used to support real estate-related financial transactions, as amended from time to time. Any Appraisal ordered by the applicable Master Servicer or applicable Special Servicer shall be performed by an Independent MAI-designated appraiser.

“Appraisal Reduction Amount”: For any Distribution Date and for any Serviced Mortgage Loan or Serviced Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the applicable Special Servicer (prior to the occurrence and continuance of a Consultation Termination Event, in consultation with the Directing Certificateholder (except in the case of an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), and, after the occurrence and during the continuance of a Control Termination Event, in consultation with the Directing Certificateholder (except with respect to any such Excluded Loan) and the Operating Advisor and, after the occurrence and during the continuance of a Consultation Termination Event, in consultation with the Operating Advisor), as of the first Determination Date that is at least ten (10) Business Days following the date on which the applicable Special Servicer receives the related Appraisal (together with information requested by the applicable Special Servicer from the applicable Master Servicer in accordance with Section 4.05 of this Agreement that is in the possession of the applicable Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount), or conducts a valuation as described below, equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan or the Stated Principal Balance of the applicable

-21-

Serviced Whole Loan over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property as determined (1) by one or more Appraisals obtained by the applicable Special Servicer with respect to that Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be paid by the applicable Master Servicer as an Advance) or (2) by an internal valuation performed by the applicable Special Servicer (or at the applicable Special Servicer’s election, by one or more MAI appraisals obtained by such Special Servicer) with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the applicable Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisals and any other information it deems relevant; provided that, in the case of an NCB Co-op Mortgage Loan, such Appraised Value shall be determined (i) except as provided in clause (iii) below, in the case of each Mortgaged Property other than the Waldo Gardens, Inc. Mortgaged Property, assuming such Mortgaged Property is operated as a residential cooperative with such value, in general, to equal the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent-regulated, rent-stabilized or rent-controlled units and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property, (ii) in the case of the Waldo Gardens, Inc. Mortgaged Property, assuming such Mortgaged Property is operated as a multifamily rental property and (iii) if the applicable Special Servicer determines, in accordance with the Servicing Standard, that there is no reasonable expectation that the related Mortgaged Property will be operated as a residential cooperative following any work-out or liquidation of the related Mortgage Loan, assuming such Mortgaged Property is operated as a multifamily rental property; and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the applicable Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or Serviced Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to any Serviced AB Whole Loan, any accrued and unpaid interest on the related AB Subordinate Companion Loan, as applicable), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan or Serviced Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan or Serviced Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, and (C) all currently due and unpaid real estate taxes, assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid (including any capitalized interest whether or not then due and payable) with respect to such Mortgage Loan or Serviced Whole Loan, as the case may be (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable); provided, however, that without limiting the applicable Special Servicer’s obligation to order and obtain such Appraisal or perform such valuation, if the applicable Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with

-22-

respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred twenty (120) days (in the case of clause (i)) or ninety (90) days or one hundred twenty (120) days, as applicable (in case of clause (vi)) after the initial delinquency for the related Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, until such time as such appraisal or valuation referred to above is received (together with information requested by the applicable Special Servicer from the applicable Master Servicer in accordance with Section 4.05 of this Agreement that is in possession of the applicable Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount) or performed by the applicable Special Servicer and the Appraisal Reduction Amount is calculated by the applicable Special Servicer as of the first Determination Date that is at least ten (10) Business Days after the applicable Special Servicer’s receipt of such Appraisal or the completion of the valuation. Within sixty (60) days after the Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive an Appraisal (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the one hundred twenty (120) day period set forth in such clause (i), and with respect to an Appraisal Reduction Event as set forth in clause (vi) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the ninety (90) day period or one hundred twenty (120) day period, as applicable, set forth in such clause (vi); provided, further, however, that in no event shall the applicable Special Servicer be required to obtain any such Appraisal prior to the conclusion of such sixty (60), ninety (90) or one hundred twenty (120) day period, as applicable, and in each case, the related Appraisal shall be promptly delivered in electronic format by the applicable Special Servicer to the applicable Master Servicer and the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder), the Certificate Administrator and the Trustee. In connection with any Appraisal Reduction Amount, the applicable Master Servicer shall provide the applicable Special Servicer with the information as set forth in Section 4.05(c) within four (4) Business Days of its receipt of any such request. No Master Servicer shall calculate Appraisal Reduction Amounts.

With respect to any Appraisal Reduction Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with clause (b)(i)(A)(1) or clause (b)(i)(A)(2) of the first paragraph of this definition shall be determined on an “as-is” basis.

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to a Mortgage Loan or the related REO Property will be reduced to zero as of the date on which Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust or as otherwise set forth in Section 4.05(d).

Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan and allocable to the related Non-Serviced Mortgage Loan shall be calculated by the applicable party

-23-

under, and in accordance with and pursuant to the terms of, the applicable Non-Serviced PSA and shall constitute an “Appraisal Reduction Amount” under the terms of this Agreement with respect to such Non-Serviced Mortgage Loan and the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator are entitled to conclusively rely on such calculation.

“Appraisal Reduction Event”: With respect to any Serviced Mortgage Loan, Serviced Companion Loan and Serviced Whole Loan, the earliest of (i) one hundred twenty (120) days after an uncured delinquency (without regard to the application of any Grace Period), other than any uncured delinquency in respect of a Balloon Payment, occurs in respect of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, (ii) the date on which a reduction in the amount of Periodic Payments on such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, or a change in any other material economic term of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, by the applicable Special Servicer, (iii) thirty (30) days after the date on which a receiver has been appointed for the Mortgaged Property, (iv) thirty (30) days after the date on which a Mortgagor or the tenant at a single tenant property declares bankruptcy (and the bankruptcy petition is not otherwise dismissed within such time), (v) sixty (60) days after the date on which an involuntary petition of bankruptcy is filed with respect to a Mortgagor if not dismissed within such time, (vi) ninety (90) days after an uncured delinquency occurs in respect of a Balloon Payment with respect to such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, except where a refinancing or sale is anticipated within one hundred twenty (120) days after the Maturity Date of the Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, in which case one hundred twenty (120) days after such uncured delinquency, and (vii) immediately after such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, becomes an REO Loan; provided that the thirty (30) day period referenced in clause (iii) and clause (iv) shall not apply if the related Mortgage Loan is a Specially Serviced Loan; provided, further, however, that an Appraisal Reduction Event shall not occur at any time when the aggregate Certificate Balances of all Classes of Subordinate Certificates have been reduced to zero. The applicable Special Servicer shall notify the applicable Master Servicer, the Directing Certificateholder and the Operating Advisor and the Other Servicer and the Other Trustee, if applicable, or the applicable Master Servicer shall notify the applicable Special Servicer and the Operating Advisor and the Other Servicer and the Other Trustee, as applicable, promptly upon such Person having notice or knowledge of the occurrence of any of the foregoing events. The obligation to obtain an Appraisal following the occurrence of an Appraisal Reduction Event shall be subject to the provisions of Section 4.05.

For the avoidance of doubt, with respect to clauses (i) and (ii) above, neither (i) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (ii) any default or delinquency that would have existed but for such Payment Accommodation shall constitute an Appraisal Reduction Event, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

“Appraisal Review Period”: As defined in Section 4.05(b)(ii).

-24-

“Appraised Value”: (i) With respect to any Mortgaged Property (other than a Non-Serviced Mortgaged Property and a Mortgaged Property securing an NCB Co-op Mortgage Loan), the appraised value thereof as determined by the most recent Appraisal of the Mortgaged Property securing the related Mortgage Loan, Serviced Whole Loan, or Serviced AB Whole Loan, as applicable, (ii) with respect to each Mortgaged Property securing an NCB Co-op Mortgage Loan, the Appraised Value thereof based upon the most recent Appraisal obtained or conducted, as appropriate, pursuant to this Agreement and determined as if such property were operated as a residential cooperative (such “Appraised Value” generally equals the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent-regulated, rent-stabilized or rent-controlled units and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property) and (iii) with respect to a Non-Serviced Mortgaged Property, the appraised value allocable thereto, as determined pursuant to the applicable Non-Serviced PSA.

“Appraised-Out Class”: As defined in Section 4.05(b)(i).

“Arbitration Rules”: As defined in Section 2.03(n)(i).

“Arbitration Services Provider”: As defined in Section 2.03(n)(i).

“ARD Loan”: Any Mortgage Loan that is identified on the Mortgage Loan Schedule as having an Anticipated Repayment Date and Revised Rate. As of the Closing Date, there are no ARD Loans related to the Trust.

“Arizona Mills Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the Arizona Mills Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Arizona Mills Mortgage Loan”: With respect to the Arizona Mills Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-1, A-2 and A-3-2.

“Arizona Mills Mortgaged Property”: The Mortgaged Property that secures the Arizona Mills Whole Loan.

“Arizona Mills Pari Passu Companion Loans”: With respect to the Arizona Mills Whole Loan, the Companion Loans evidenced by the related promissory notes A-3-1 and A-4 and made by the related Mortgagor and secured by the Mortgage on the Arizona Mills Mortgaged Property.

“Arizona Mills Whole Loan”: The Arizona Mills Mortgage Loan, together with the Arizona Mills Pari Passu Companion Loans, each of which is secured by the same Mortgage on the Arizona Mills Mortgaged Property. References herein to the Arizona Mills Whole Loan shall be construed to refer to the aggregate indebtedness under the Arizona Mills Mortgage Loan and the Arizona Mills Pari Passu Companion Loans.

-25-

“Asset Representations Reviewer”: Pentalpha Surveillance LLC, a Delaware limited liability company, and its successors-in-interest.

“Asset Representations Reviewer Asset Review Fee”: As defined in Section 12.02(b).

“Asset Representations Reviewer Fee”: As defined in Section 12.02(a).

“Asset Representations Reviewer Fee Rate”: As defined in Section 12.02(a).

“Asset Representations Reviewer Termination Event”: As defined in Section 12.05(a).

“Asset Review”: A review of the compliance of each Delinquent Loan with certain representations and warranties of the applicable Mortgage Loan Seller, in accordance with the Asset Review Standard and the procedures set forth on Exhibit PP hereto.

“Asset Review Notice”: As defined in Section 12.01(a).

“Asset Review Quorum”: In connection with any solicitation of votes to authorize an Asset Review as described in Section 12.01(a), the Certificateholders (other than the Holders of the RR Interest) evidencing at least 5% of the aggregate Voting Rights represented by all of the Certificates that have Voting Rights.

“Asset Review Report”: As defined in Section 12.01(b)(viii), a report setting forth the findings and conclusions of an Asset Review substantially in the form attached hereto as Exhibit NN.

“Asset Review Report Summary”: As defined in Section 12.01(b)(viii), a summary report setting forth the conclusions of an Asset Review Report substantially in the form attached hereto as Exhibit OO.

“Asset Review Standard”: The performance by the Asset Representations Reviewer of its duties under this Agreement in good faith subject to the express terms of this Agreement. All determinations or assumptions made by the Asset Representations Reviewer in connection with an Asset Review shall be made in the Asset Representations Reviewer’s good faith discretion and judgment based on the facts and circumstances known to it at the time of such determination or assumption.

“Asset Review Trigger”: Any time when either (1) Mortgage Loans with an aggregate outstanding principal balance of 25.0% or more of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the end of the applicable Collection Period are Delinquent Loans or (2)(A) prior to and including the second anniversary of the Closing Date, at least 10 Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 15.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the

-26-

end of the applicable Collection Period, or (B) after the second anniversary of the Closing Date, at least fifteen (15) Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 20.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (but excluding any related Companion Loan)) held by the Trust as of the end of the applicable Collection Period.

“Asset Review Vote Election”: As defined in Section 12.01(a).

“Asset Status Report”: As defined in Section 3.19(d).

“Assignment” and “Assignments”: Each as defined in Section 2.01(c).

“Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar instrument executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of such Mortgaged Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.

“Assignment of Mortgage”: With respect to any Mortgaged Property, an assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect of record the assignment of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

“Assumed Scheduled Payment”: For any Collection Period and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) that is delinquent in respect of its Balloon Payment or any REO Loan (excluding, for purposes of determining or making P&I Advances, the portion allocable to any related Companion Loan), an amount equal to the sum of (a) the principal portion of the Periodic Payment that would have been due on such Mortgage Loan or REO Loan on the related Due Date based on the constant payment required by the related Mortgage Note or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate), if applicable, assuming such Balloon Payment has not become due, after giving effect to any reduction in the principal balance thereof occurring in connection with a modification of such Mortgage Loan in connection with a default or bankruptcy (or similar proceeding), and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (excluding, for purposes of determining P&I Advances, the portion allocable to any related Companion Loan) at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate and the related Non-Serviced Primary Servicing Fee Rate, if applicable).

“Authenticating Agent”: The Certificate Administrator or any agent of the Certificate Administrator appointed to act as Authenticating Agent pursuant to Section 5.02(a), in each case in its capacity as authenticating agent, or if any successor authenticating agent is appointed pursuant to Section 5.02(a), such successor authenticating agent.

-27-

“Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Non-Retained Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Gain-on-Sale Remittance Amount.

“Balloon Mortgage Loan”: Any Mortgage Loan or Companion Loan that by its original terms or by virtue of any modification entered into as of the Closing Date provides for an amortization schedule for such Mortgage Loan or Companion Loan extending beyond its Maturity Date.

“Balloon Payment”: With respect to any Balloon Mortgage Loan, as of any date of determination, the Periodic Payment payable on the Maturity Date of such Balloon Mortgage Loan.

“BANK 2020-BNK30 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated and effective as of December 1, 2020 (as from time to time amended, supplemented or modified), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Greystone Servicing Company LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, as from time to time amended, supplemented or modified.

“BANK 2021-BNK35 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated and effective as of August 1, 2021 (as from time to time amended, supplemented or modified), between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, KeyBank National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer.

 “Bankruptcy Code”: The federal Bankruptcy Code, as amended from time to time (Title 11 of the United States Code).

“Base Interest Fraction”: As defined in Section 4.01(e).

“Book-Entry Certificate”: Any Certificate registered in the name of the Depository or its nominee.

“Borrower-Related Party”: As defined in Section 3.32.

“Borrower Party”: A borrower, a Mortgagor, a manager of a Mortgaged Property, an Accelerated Mezzanine Loan Lender, or any Borrower Party Affiliate. For the avoidance of doubt, with respect to a Mortgage Loan secured by a residential cooperative property, a person shall not be considered a “Borrower Party” solely by reason of such person holding one or more cooperative unit loans that are secured by direct equity interests in the related borrower or owning one or more residential cooperative units comprising the related Mortgaged Property as a result of

-28-

any foreclosure, transfer in lieu of foreclosure or other exercise of remedies with respect to any such unit loan(s).

“Borrower Party Affiliate”: With respect to a borrower, a Mortgagor, a manager of a Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Breach”: With respect to any Mortgage Loan, a breach of any representation or warranty with respect to such Mortgage Loan set forth in Section 4(b) of the related Mortgage Loan Purchase Agreement.

“Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in California, Kansas, New York, North Carolina, Pennsylvania or the city and state in which the Corporate Trust Office of the Trustee or the Certificate Administrator, or the principal place of business or principal commercial mortgage loan servicing office of any Master Servicer or Special Servicer is located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

“CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

“Certificate”: Any one of the Depositor’s Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent. For the avoidance of doubt, the RR Interest shall be a Certificate.

“Certificate Administrator”: Wells Fargo Bank, National Association, in its capacity as certificate administrator, or if any successor certificate administrator is appointed thereto pursuant to Section 5.08 or any successor certificate administrator appointed hereunder. Wells Fargo Bank, National Association shall perform the certificate administrator role through its Corporate Trust Services division, including, as applicable, any agents or affiliates utilized thereby.

“Certificate Administrator Fee”: The fee to be paid to the Certificate Administrator as compensation for the Certificate Administrator’s activities under this Agreement; provided that the Certificate Administrator Fee includes the Trustee Fee, and the Certificate Administrator shall pay the Trustee Fee to the Trustee.

“Certificate Administrator Fee Rate”: The Certificate Administrator Fee shall be equal to the product of the rate equal to 0.00603% per annum and the Stated Principal Balance of the related Mortgage Loan (calculated in the same manner as interest is calculated on the related

-29-

Mortgage Loan) or REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of the preceding Distribution Date. The Certificate Administrator Fee includes the Trustee Fee.

“Certificate Administrator’s Website”: The Certificate Administrator’s Internet website, which shall initially be located at “www.ctslink.com”.

“Certificate Balance”: With respect to any Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest, (i) on or prior to the first Distribution Date, an amount equal to the Original Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest and (ii) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)). Each Class of Class A-4 Exchangeable Certificates, Class A-5 Exchangeable Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates shall have a Certificate Balance or Notional Amount equal to its Class Percentage Interest multiplied by the Certificate Balance of the Class A-4 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-S Upper-Tier Regular Interest, Class B Upper-Tier Regular Interest or Class C Upper-Tier Regular Interest, respectively.

“Certificate Factor”: With respect to any Class of Certificates (other than the Class R and Class V Certificates), as of any date of determination, a fraction, expressed as a decimal carried to at least eight (8) places, the numerator of which is the then-related Certificate Balance or Notional Amount, and the denominator of which is the related Original Certificate Balance.

“Certificate Owner”: With respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.

“Certificate Register” and “Certificate Registrar”: The register maintained and registrar appointed pursuant to Section 5.03(a).

“Certificateholder” or “Holder”: The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that solely for the purposes of giving any consent, approval, waiver or taking any action pursuant to this Agreement, any Certificate registered in the name of or beneficially owned by any Master Servicer, any Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller, a Mortgagor, a Borrower Party or any Affiliate of any of such Persons shall be deemed not to be outstanding (provided that notwithstanding the foregoing, any Controlling Class Certificates owned by an Excluded Controlling Class Holder shall be deemed not to be outstanding as to such Excluded Controlling Class Holder solely with respect to any related Excluded Controlling Class Loan; and provided, further, that any Controlling Class Certificates owned by a Special Servicer or an Affiliate thereof shall be deemed not to be outstanding as to such Special Servicer or such

-30-

Affiliate solely with respect to any related Excluded Special Servicer Loan), and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, approval, waiver or take any such action has been obtained; provided, however, that the foregoing restrictions shall not apply in the case of any Master Servicer, any Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate of any of such Persons unless such consent, approval or waiver sought from such party would in any way increase its compensation or limit its obligations in the named capacities hereunder or waive a Servicer Termination Event or trigger an Asset Review (with respect to an Asset Review and any Mortgage Loan Seller, solely with respect to any related Mortgage Loan subject to the Asset Review); provided, further, that so long as there is no Servicer Termination Event with respect to a Master Servicer or a Special Servicer, as applicable, such Master Servicer and such Special Servicer or any such Affiliate thereof shall be entitled to exercise such Voting Rights with respect to any issue which could reasonably be believed to adversely affect such party’s compensation or increase its obligations or liabilities hereunder; and provided, further, that such restrictions shall not apply to (i) the exercise of any Special Servicer’s, any Master Servicer’s or any Mortgage Loan Seller’s rights, if any, or any of their Affiliates as a member of the Controlling Class or (ii) any Affiliate of the Depositor, any Master Servicer, any Special Servicer, the Trustee or the Certificate Administrator that has provided an Investor Certification in which it has certified as to the existence of certain policies and procedures restricting the flow of information between it and the Depositor, such Master Servicer, such Special Servicer, the Trustee or the Certificate Administrator, as applicable. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of any Master Servicer, any Special Servicer or the Depositor in determining whether a Certificate is registered in the name of an Affiliate of such Person. All references herein to “Holders” or “Certificateholders” shall reflect the rights of Certificate Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a “Holder” or “Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register. The Trustee shall be the Holder of the Lower-Tier Regular Interests for the benefit of the Certificateholders.

“Certificateholder Quorum”: The Holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of Realized Losses and, other than with respect to the termination of the Asset Representations Reviewer, the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates (other than the RR Interest) on an aggregate basis.

“Certificateholder Repurchase Request”: As defined in Section 2.03(k)(i).

“Certification Parties”: As defined in Section 11.06.

“Certification Party”: Any one of the Certification Parties.

“Certifying Person”: As defined in Section 11.06.

“Certifying Servicer”: As defined in Section 11.09.

-31-

 “Class”: With respect to any Certificates, all of the Certificates bearing the same alphanumeric Class designation. Each designated Lower-Tier Regular Interest shall be a Class. Each Exchangeable Upper-Tier Regular Interest shall be a Class. For the avoidance of doubt, the RR Interest shall be a Class of Certificates.

“Class A Certificate”: Any Class A-1, Class A-2, Class A-3 or Class A-SB Certificate, Class A-4 Exchangeable Certificate or Class A-5 Exchangeable Certificate.

“Class A-1 Certificate”: A Certificate designated as “Class A-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class A-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.80100%.

“Class A-2 Certificate”: A Certificate designated as “Class A-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class A-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.13100%.

 “Class A-3 Certificate”: A Certificate designated as “Class A-3” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class A-3 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.89500%.

“Class A-4 Certificate”: A Certificate designated as “Class A-4” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-4 Exchangeable Certificate”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-4-X1 and Class A-4-X2 Certificates.

“Class A-4 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.21800%.

“Class A-4 Upper-Tier Regular Interest”, “Class A-4-X1 Upper-Tier Regular Interest” and “Class A-4-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

“Class A-4 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.21800%.

-32-

“Class A-4-1 Certificate”: A Certificate designated as “Class A-4-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-4-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.71800%.

“Class A-4-2 Certificate”: A Certificate designated as “Class A-4-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-4-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.21800%.

“Class A-4-X1 Certificate”: A Certificate designated as “Class A-4-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-4-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-1 Certificates.

“Class A-4-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-4-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

“Class A-4-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-4-X2 Certificate”: A Certificate designated as “Class A-4-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-4-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-2 Certificates.

“Class A-4-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

“Class A-4-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

“Class A-4-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

-33-

“Class A-5 Certificate”: A Certificate designated as “Class A-5” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-5 Exchangeable Certificate”: Any of the Class A-5, Class A-5-1, Class A-5-2, Class A-5-X1 and Class A-5-X2 Certificates.

“Class A-5 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.47000%.

“Class A-5 Upper-Tier Regular Interest”, “Class A-5-X1 Upper-Tier Regular Interest” and “Class A-5-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

“Class A-5 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.47000%.

“Class A-5-1 Certificate”: A Certificate designated as “Class A-5-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-5-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.97000%.

“Class A-5-2 Certificate”: A Certificate designated as “Class A-5-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-5-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.47000%.

“Class A-5-X1 Certificate”: A Certificate designated as “Class A-5-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-5-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-1 Certificates.

“Class A-5-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-5-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

-34-

“Class A-5-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-5-X2 Certificate”: A Certificate designated as “Class A-5-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-5-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-2 Certificates.

“Class A-5-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

“Class A-5-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

 “Class A-5-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-S Certificate”: A Certificate designated as “Class A-S” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-S Exchangeable Certificate”: Any of the Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1 and Class A-S-X2 Certificates.

“Class A-S Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.69500%.

“Class A-S Upper-Tier Regular Interest”, “Class A-S-X1 Upper-Tier Regular Interest” and “Class A-S-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

“Class A-S UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000% and (ii) 1.69500%.

“Class A-S-1 Certificate”: A Certificate designated as “Class A-S-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-S-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 0.5000% and (ii) 2.19500%.

-35-

“Class A-S-2 Certificate”: A Certificate designated as “Class A-S-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-S-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000% and (ii) 1.69500%.

“Class A-S-X1 Certificate”: A Certificate designated as “Class A-S-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-S-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-1 Certificates.

“Class A-S-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-S-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

“Class A-S-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-S-X2 Certificate”: A Certificate designated as “Class A-S-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class A-S-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-2 Certificates.

“Class A-S-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

“Class A-S-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

“Class A-S-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class A-SB Certificate”: A Certificate designated as “Class A-SB” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class A-SB Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.28300%.

-36-

“Class A-SB Planned Principal Balance”: With respect to any Distribution Date, the planned principal amount for such Distribution Date specified in Schedule 2 hereto relating to the Class A-SB Certificates.

“Class B Certificate”: A Certificate designated as “Class B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class B Exchangeable Certificate”: Any of the Class B, Class B-1, Class B-2, Class B-X1 and Class B-X2 Certificates.

“Class B Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.86700%.

“Class B Upper-Tier Regular Interest”, “Class B-X1 Upper-Tier Regular Interest” and “Class B-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

“Class B UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000% and (ii) 1.86700%.

“Class B-1 Certificate”: A Certificate designated as “Class B-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class B-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 0.5000% and (ii) 2.36700%.

“Class B-2 Certificate”: A Certificate designated as “Class B-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class B-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000% and (ii) 1.86700%.

“Class B-X1 Certificate”: A Certificate designated as “Class B-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class B-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-1 Certificates.

-37-

“Class B-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class B-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

“Class B-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class B-X2 Certificate”: A Certificate designated as “Class B-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class B-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-2 Certificates.

“Class B-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

“Class B-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

“Class B-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class C Certificate”: A Certificate designated as “Class C” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class C Exchangeable Certificate”: Any of the Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates.

“Class C Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

“Class C Upper-Tier Regular Interest”, “Class C-X1 Upper-Tier Regular Interest” and “Class C-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

“Class C UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000%.

“Class C-1 Certificate”: A Certificate designated as “Class C-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

-38-

“Class C-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 0.5000%.

“Class C-2 Certificate”: A Certificate designated as “Class C-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class C-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000%.

“Class C-X1 Certificate”: A Certificate designated as “Class C-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class C-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-1 Certificates.

“Class C-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class C-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

“Class C-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class C-X2 Certificate”: A Certificate designated as “Class C-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

“Class C-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-2 Certificates.

“Class C-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

“Class C-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

“Class C-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

“Class D Certificate”: A Certificate designated as “Class D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

-39-

“Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.50000%.

“Class E Certificate”: A Certificate designated as “Class E” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class E Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.50000%.

“Class F Certificate”: A Certificate designated as “Class F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions. 

“Class F Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.50000%.

“Class G Certificate”: A Certificate designated as “Class G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class G Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.50000%.

“Class H Certificate”: A Certificate designated as “Class H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class H Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.50000%.

“Class LA1 Uncertificated Interest”, “Class LA2 Uncertificated Interest”, “Class LA3 Uncertificated Interest”, “Class LASB Uncertificated Interest”, “Class LA4 Uncertificated Interest”, “Class LA5 Uncertificated Interest”, “Class LAS Uncertificated Interest”, “Class LB Uncertificated Interest”, “Class LC Uncertificated Interest”, “Class LD Uncertificated Interest”, “Class LE Uncertificated Interest”, “Class LF Uncertificated Interest”, “Class LG Uncertificated Interest” and “Class LH Uncertificated Interest”: Each, an uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

“Class LR Interest”: The uncertificated residual interest in the Lower-Tier REMIC, represented by the Class R Certificates.

-40-

“Class Percentage Interest”: With respect to each Class of Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class A-4 Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has an “A-4” designation), the Certificate Balance of the Class A-5 Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has an “A-5” designation), the Certificate Balance of the Class A-S Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has an “A-S” designation), the Certificate Balance of the Class B Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has a “B” designation) or the Certificate Balance of the Class C Upper-Tier Regular Interest (if such Class of Exchangeable Certificates has a “C” designation).

The initial Class Percentage Interest of each Class of Exchangeable Certificates in each of the Corresponding Exchangeable Upper-Tier Regular Interests is set forth below:

Class of Exchangeable Certificates	Class Percentage Interest in the Class A-4 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-4-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-4-X2 Upper-Tier Regular Interest
Class A-4 Certificates	100%	100%	100%
Class A-4-1 Certificates	0%	N/A	0%
Class A-4-2 Certificates	0%	N/A	N/A
Class A-4-X1 Certificates	N/A	0%	N/A
Class A-4-X2 Certificates	N/A	0%	0%
Class of Exchangeable Certificates	Class Percentage Interest in the Class A-5 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-5-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-5-X2 Upper-Tier Regular Interest
Class A-5 Certificates	100%	100%	100%
Class A-5-1 Certificates	0%	N/A	0%
Class A-5-2 Certificates	0%	N/A	N/A
Class A-5-X1 Certificates	N/A	0%	N/A
Class A-5-X2 Certificates	N/A	0%	0%
Class of Exchangeable Certificates	Class Percentage Interest in the Class A-S Upper-Tier Regular Interest	Class Percentage Interest in the Class A-S-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class A-S-X2 Upper-Tier Regular Interest
Class A-S Certificates	100%	100%	100%
Class A-S-1 Certificates	0%	N/A	0%
Class A-S-2 Certificates	0%	N/A	N/A
Class A-S-X1 Certificates	N/A	0%	N/A
Class A-S-X2 Certificates	N/A	0%	0%

-41-

Class of Exchangeable Certificates	Class Percentage Interest in the Class B Upper-Tier Regular Interest	Class Percentage Interest in the Class B-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class B-X2 Upper-Tier Regular Interest
Class B Certificates	100%	100%	100%
Class B-1 Certificates	0%	N/A	0%
Class B-2 Certificates	0%	N/A	N/A
Class B-X1 Certificates	N/A	0%	N/A
Class B-X2 Certificates	N/A	0%	0%
Class of Exchangeable Certificates	Class Percentage Interest in the Class C Upper-Tier Regular Interest	Class Percentage Interest in the Class C-X1 Upper-Tier Regular Interest	Class Percentage Interest in the Class C-X2 Upper-Tier Regular Interest
Class C Certificates	100%	100%	100%
Class C-1 Certificates	0%	N/A	0%
Class C-2 Certificates	0%	N/A	N/A
Class C-X1 Certificates	N/A	0%	N/A
Class C-X2 Certificates	N/A	0%	0%

“Class R Certificate”: A Certificate designated as “Class R” on the face thereof in the form of Exhibit A-2 hereto, and evidencing the sole class of “residual interests” in each Trust REMIC for purposes of the REMIC Provisions.

“Class UR Interest”: The uncertificated residual interest in the Upper-Tier REMIC, represented by the Class R Certificates.

“Class V Certificate”: A Certificate designated as “Class V” on the face thereof in substantially the form set forth in Exhibit A-3 and designated as a Class V Certificate, and evidencing undivided beneficial ownership of the Class V Specific Grantor Trust Assets.

“Class V Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of a portion of any Excess Interest equal to the product of (A) the Non-Retained Percentage and (B) the aggregate amount of Excess Interest received on or prior to the related Determination Date, related amounts in the Excess Interest Distribution Account and the proceeds thereof, beneficial ownership of which is represented by the Class V Certificates.

“Class X Certificates”: The Class X-A, Class X-B, Class X-D, Class X-F, Class X-G or Class X-H Certificates, as the context may require.

“Class X-A Certificate”: A Certificate designated as “Class X-A” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

-42-

“Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests.

“Class X-A Pass-Through Rate”: The Pass-Through Rate for the Class X-A Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates on the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1 and Class A-5-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional Amounts of any Exchangeable Upper-Tier IO Regular Interests from the denominator of such weighted average calculation). The Pass-Through Rate applicable to the Class X-A Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

“Class X-B Certificate”: A Certificate designated as “Class X-B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class X-B Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-S Upper-Tier Regular Interest, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest.

“Class X-B Pass-Through Rate”: The Pass-Through Rate for the Class X-B Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class A-S, Class A-S-X1, Class A-S-X2, Class B, Class B-X1 and Class B-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional Amounts of any Exchangeable Upper-Tier IO Regular Interests in the denominator of such weighted average calculation). The Pass-Through Rate applicable to the Class X-B Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

“Class X-D Certificate”: A Certificate designated as “Class X-D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class X-D Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class D and Class E Certificates.

“Class X-D Pass-Through Rate”: The Pass-Through Rate for Class X-D Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class D and Class E Certificates for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances immediately prior to the Distribution Date.

-43-

The Pass-Through Rate applicable to the Class X-D Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

“Class X-F Certificate”: A Certificate designated as “Class X-F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class X-F Notional Amount”: As of any date of determination, the Certificate Balance of the Class F Certificates. 

“Class X-F Pass-Through Rate”: The Pass-Through Rate for Class X-F Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class F Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-F Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

“Class X-G Certificate”: A Certificate designated as “Class X-G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class X-G Notional Amount”: As of any date of determination, the Certificate Balance of the Class G Certificates. 

“Class X-G Pass-Through Rate”: The Pass-Through Rate for Class X-G Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class G Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-G Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

“Class X-H Certificate”: A Certificate designated as “Class X-H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“Class X-H Notional Amount”: As of any date of determination, the Certificate Balance of the Class H Certificates. 

“Class X-H Pass-Through Rate”: The Pass-Through Rate for Class X-H Certificates for any Distribution Date will equal the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class H Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-H Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 “Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be DTC.

“Clearstream”: Clearstream Banking, Luxembourg or any successor thereto.

“Closing Date”: October 7, 2021.

“CMBS”: Commercial mortgage-backed securities.

“Code”: The Internal Revenue Code of 1986, as amended from time to time, and applicable final or temporary regulations of the U.S. Department of the Treasury issued pursuant thereto.

“Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, shall be an amount, calculated by the applicable Special Servicer, equal to

-44-

the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein), over (ii) the sum of (in the case of a Whole Loan, solely to the extent allocable to the subject Mortgage Loan) (x) the most recent Appraised Value for the related Mortgaged Property or Mortgaged Properties, plus (y) solely to the extent not reflected or taken into account in such Appraised Value (or in the calculation of any related Appraisal Reduction Amount) and to the extent on deposit with, or otherwise under the control of, the lender as of the date of such determination, any capital or additional collateral contributed by the related Mortgagor at the time the Mortgage Loan became (and as part of the modification related thereto) such AB Modified Loan for the benefit of the related Mortgaged Property or Mortgaged Properties (provided that in the case of a Non-Serviced Mortgage Loan, the amounts set forth in this clause (y) will be taken into account solely to the extent relevant information is received by the applicable Special Servicer), plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y) and solely to the extent not reflected or taken into account in the calculation of any related Appraisal Reduction Amount) held by the lender in respect of such AB Modified Loan as of the date of such determination, which such excess, for the avoidance of doubt, will be determined separately from and exclude any related Appraisal Reduction Amounts. The Certificate Administrator, the Operating Advisor (unless a Control Termination Event has occurred and is continuing and the applicable Special Servicer has calculated any such Collateral Deficiency Amount) and the applicable Master Servicer shall be entitled to conclusively rely on the Special Servicer’s calculation or determination of any Collateral Deficiency Amount.

With respect to any Collateral Deficiency Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with this definition shall be determined on an “as-is” basis. The Master Servicer shall not calculate any Collateral Deficiency Amount.

“Collection Account”: A segregated custodial account or accounts created and maintained by each Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the benefit of the Certificateholders, which, with respect to the Master Servicer, shall be entitled “Wells Fargo Bank, National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Collection Account” and, with respect to the NCB Master Servicer, shall be entitled “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Collection Account”. Any such account or accounts shall be an Eligible Account. Subject to the related Intercreditor Agreement and taking into account that each Companion Loan is subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan to the extent set forth in the related Intercreditor Agreement, the subaccount described in the second paragraph of Section 3.04(b) that is part of the applicable Collection Account shall be for the benefit of the related Serviced Companion Noteholders, to the extent funds on deposit in such subaccount are attributed to such Companion Loans and shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust.

-45-

“Collection Period”: With respect to any Distribution Date and any Mortgage Loan (including any Companion Loan), the period beginning with the day after the Determination Date in the month preceding the month in which such Distribution Date occurs (or, in the case of the first Distribution Date, commencing immediately following the Cut-off Date) and ending with the Determination Date occurring in the month in which such Distribution Date occurs.

“Commission”: The Securities and Exchange Commission.

“Companion Distribution Account”: With respect to any Serviced Companion Loan, the separate account created and maintained by the Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the Serviced Companion Noteholders, which shall be entitled “Wells Fargo Bank, National Association, as Companion Paying Agent, for the benefit of the Serviced Companion Noteholders of the Serviced Companion Loans, relating to the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Companion Distribution Account”. The Companion Distribution Account shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Serviced Companion Noteholders. Any such account shall be an Eligible Account. Notwithstanding the foregoing, if the General Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

“Companion Holders”: Each of the holders of record of any Companion Loan.

“Companion Loan(s)”: With respect to any Mortgage Loan, any other mortgage loan that is not included in the Trust but is secured by the same Mortgage(s) encumbering the same Mortgaged Property or portfolio of Mortgaged Properties as such Mortgage Loan. With respect to each Whole Loan, the Pari Passu Companion Loan(s) and the Subordinate Companion Loan(s) (if any) are listed opposite such Whole Loan, set forth in the chart entitled “Whole Loans” in the Preliminary Statement.

“Companion Loan Rating Agency”: Any NRSRO rating any class of Serviced Pari Passu Companion Loan Securities.

“Companion Paying Agent”: With respect to the Serviced Companion Loans, if any, the General Master Servicer in its role as Companion Paying Agent appointed pursuant to Section 3.27.

“Compensating Interest Payments”: With respect to each Master Servicer, an aggregate amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments received in respect of the Mortgage Loans (other than Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer and any related Serviced Pari Passu Companion Loans (in each case other than any Specially Serviced Loan or any Mortgage Loan or related Serviced Pari Passu Companion Loan on which the applicable Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of such Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Serviced Mortgage Loan, Serviced Pari Passu Companion Loan

-46-

and REO Loan (excluding any portion thereof related to a Subordinate Companion Loan) for which such Master Servicer is acting as Master Servicer for which Servicing Fees are being paid to such Master Servicer in such Collection Period, calculated at a rate of 0.0025% per annum, (B) all Prepayment Interest Excesses received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) (and, so long as a Serviced Whole Loan is serviced hereunder, any related Serviced Pari Passu Companion Loan) for which such Master Servicer is acting as Master Servicer subject to such prepayment and (C) to the extent earned on voluntary principal prepayments, net investment earnings payable to such Master Servicer for such Collection Period received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment. In no event will the rights of the Certificateholders to the offset of the aggregate Prepayment Interest Shortfalls be cumulative. However, if a Prepayment Interest Shortfall occurs with respect to a Mortgage Loan as a result of the applicable Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) a Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan is a Specially Serviced Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the applicable Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y)(i) at the request or with the consent of the applicable Special Servicer or, (ii) for so long as no Control Termination Event has occurred and is continuing and, other than with respect to an Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, at the request or with the consent of the Directing Certificateholder, or (Z) in connection with the payment of any Insurance and Condemnation Proceeds), then for purposes of calculating the Compensating Interest Payment for the related Distribution Date, such Master Servicer shall pay, without regard to clause (ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments. No Master Servicer shall be required to make any Compensating Interest Payment as a result of any prepayments on Mortgage Loans or Companion Loans for which it does not act as Master Servicer or on any AB Subordinate Companion Loan.

For the avoidance of doubt, Compensating Interest Payments attributable to a Serviced Whole Loan shall be allocated among the related Mortgage Loan and the related Serviced Pari Passu Companion Loan(s), pro rata, in accordance with their respective principal balances.

“Consultation Termination Event”: At any date at which (i) no Class of Control Eligible Certificates exists where such Class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that Class, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts; or (ii) a Holder of the Class G Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant Section 3.23(l); provided that no Consultation Termination Event resulting solely from the operation of clause (ii) shall be deemed to have existed or be in continuance with respect to a successor Holder of the Class G Certificates that has not irrevocably waived its right to exercise any of the rights of the Controlling

-47-

Class Certificateholder; provided, further, that no Consultation Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Consultation Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Consultation Termination Event shall be deemed not continuing in the event that the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans.

“Consumer Price Index for All Urban Consumers”: The “Consumer Price Index for All Urban Consumers” as published by the U.S. Department of Labor.

“Control Eligible Certificates”: Any of the Class G or Class H Certificates.

“Control Termination Event”: The occurrence of (i) the Certificate Balance of the Class G Certificates (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class in accordance with Section 4.05(a)) being reduced to less than 25% of the Original Certificate Balance of such Class or (ii) a Holder of the Class G Certificates is the majority Controlling Class Certificateholder and has irrevocably waived its right, in writing, to exercise any of the rights of the Controlling Class Certificateholder and such rights have not been reinstated to a successor controlling class certificateholder pursuant to Section 3.23(l); provided, that no Control Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Control Termination Event shall be deemed not continuing in the event that the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans.

“Controlling Class”: As of any date of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has an aggregate Certificate Balance as notionally reduced by any Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a), at least equal to 25% of the Original Certificate Balance of that Class; provided, that if at any time the Certificate Balances of the Principal Balance Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans, then the Controlling Class shall be the most subordinate Class among the Control Eligible Certificates that has a Certificate Balance greater than zero without regard to any Cumulative Appraisal Reduction Amounts. The Controlling Class as of the Closing Date will be the Class H Certificates. The Control Eligible Certificates shall not include the RR Interest and the RR Interest shall not be permitted to be a Controlling Class.

“Controlling Class Certificateholders”: Each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto. The Depositor, the Trustee, any Master Servicer, any Special Servicer or the Operating Advisor may from time to time request (the cost of which being an expense of the Trust) that the Certificate Administrator provide a list of the

-48-

Holders (or Certificate Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Depositor, Trustee, Master Servicer, Operating Advisor or Special Servicer, as applicable. The Trustee, each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor shall be entitled to rely on any such list so provided.

“Conveyed Property”: As defined in Section 2.01(a).

“Corporate Trust Office”: The principal corporate trust office of the Trustee and the Certificate Administrator at which at any particular time its corporate trust business with respect to this Agreement shall be administered, which office at the date of the execution of this Agreement is located (i) with respect to Certificate transfers and surrenders, at 600 South 4th Street, 7th Floor, Minneapolis, Minnesota 55415; (ii) with respect to the Trustee at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee BANK 2021-BNK36; and (iii) for all other purposes, to the Certificate Administrator at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS), BANK 2021-BNK36.

“Corrected Loan”: Any Specially Serviced Loan that has become current and remained current for three (3) consecutive Periodic Payments (for such purposes taking into account any modification or amendment of the related Mortgage Loan or Companion Loan, as applicable, whether by a consensual modification or in connection with a bankruptcy, insolvency or similar proceeding involving the Mortgagor), and (provided that no other Servicing Transfer Event has occurred with respect to such Mortgage Loan or Companion Loan during such preceding three (3) months, no additional event of default is foreseeable in the reasonable judgment of the applicable Special Servicer and no other event or circumstance exists that causes such Mortgage Loan or Companion Loan, as applicable, to otherwise constitute a Specially Serviced Loan) the servicing of which the applicable Special Servicer has returned to the applicable Master Servicer pursuant to Section 3.19(a).

“Corresponding Exchangeable Upper-Tier Regular Interests”: With respect to each Class of Exchangeable Certificates, the Exchangeable Upper-Tier Regular Interests set forth next to it in the table below.

-49-

Class of Exchangeable Certificates	Corresponding Exchangeable Upper-Tier Regular Interests
Class A-4	Class A-4, Class A-4-X1, Class A-4-X2
Class A-4-1	Class A-4, Class A-4-X2
Class A-4-2	Class A-4
Class A-4-X1	Class A-4-X1
Class A-4-X2	Class A-4-X1, Class A-4-X2
Class A-5	Class A-5, Class A-5-X1, Class A-5-X2
Class A-5-1	Class A-5, Class A-5-X2
Class A-5-2	Class A-5
Class A-5-X1	Class A-5-X1
Class A-5-X2	Class A-5-X1, Class A-5-X2
Class A-S	Class A-S, Class A-S-X1, Class A-S-X2
Class A-S-1	Class A-S, Class A-S-X2
Class A-S-2	Class A-S
Class A-S-X1	Class A-S-X1
Class A-S-X2	Class A-S-X1, Class A-S-X2
Class B	Class B, Class B-X1, Class B-X2
Class B-1	Class B, Class B-X2
Class B-2	Class B
Class B-X1	Class B-X1
Class B-X2	Class B-X1, Class B-X2
Class C	Class C, Class C-X1, Class C-X2
Class C-1	Class C, Class C-X2
Class C-2	Class C
Class C-X1	Class C-X1
Class C-X2	Class C-X1, Class C-X2

“COVID Forbearance Fees”: As defined in Section 3.18(a).

“CREFC^®”: The Commercial Real Estate Finance Council^®, or any successor organization reasonably acceptable to the Certificate Administrator, each Master Servicer, each Special Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

“CREFC^® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

-50-

“CREFC^® Bond Level File”: The data file in the “CREFC^® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Collateral Summary File”: The data file in the “CREFC^® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Delinquent Loan Status Report”: The monthly report in the “Delinquent Loan Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Financial File”: The data file in the “CREFC^® Financial File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan) and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the CREFC^® Intellectual Property Royalty License Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO Loan as of the close of business on the Distribution Date in such

-51-

Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan or REO Loan is computed and shall be prorated for partial periods. For the avoidance of doubt, the CREFC^® Intellectual Property Royalty License Fee shall be deemed payable by each applicable Master Servicer from the Lower-Tier REMIC.

“CREFC^® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and REO Loan (but excluding any related Companion Loan), a rate equal to 0.00050% per annum.

“CREFC^® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Investor Reporting Package”: The collection of reports specified by the CREFC^® from time to time as the “CREFC^® Investor Reporting Package.” As of the Closing Date, the CREFC^® Investor Reporting Package contains eight (8) electronic files ((1) CREFC^® Loan Setup File, (2) CREFC^® Loan Periodic Update File, (3) CREFC^® Property File, (4) CREFC^® Bond Level File, (5) CREFC^® Collateral Summary File, (6) CREFC^® Financial File, (7) CREFC^® Special Servicer Loan File and (8) CREFC^® Schedule AL File (with respect to the General Master Servicer)) and eleven (11) surveillance reports ((1) CREFC^® Servicer Watch List, (2) CREFC^® Delinquent Loan Status Report, (3) CREFC^® REO Status Report, (4) CREFC^® Comparative Financial Status Report, (5) CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (6) CREFC^® Operating Statement Analysis Report, (7) CREFC^® Servicer Remittance to Certificate Administrator, (8) CREFC^® Significant Insurance Event Report, (9) CREFC^® NOI Adjustment Worksheet, (10) CREFC^® Loan Level Reserve/LOC Report and (11) with respect to Mortgage Loans that have a Companion Loan, as applicable, the CREFC^® Total Loan Report). In addition, the CREFC^® Investor Reporting Package shall include the CREFC^® Advance Recovery Report. In addition, the CREFC^® Investor Reporting Package shall include the following nine (9) templates: (1) CREFC^® Appraisal Reduction Template, (2) CREFC^® Servicer Realized Loss Template, (3) CREFC^® Reconciliation of Funds Template, (4) CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template, (5) CREFC^® Historical Liquidation Loss Template, (6) CREFC^® Interest Shortfall Reconciliation Template, (7) CREFC^® Loan Modification Report, (8) CREFC^® Loan Liquidation Report and (9) CREFC^® REO Liquidation Report. The CREFC^® Investor Reporting Package shall be substantially in the form of, and containing the information called for in, the downloadable forms of the “CREFC^® IRP” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information or reports as may from time to time be approved by the CREFC^® for CMBS transactions generally. For the purposes of the production of the CREFC^® Comparative Financial Status Report by the applicable Master Servicer or the applicable Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by any Master Servicer, by the applicable Special Servicer (if other than such Master Servicer or an Affiliate thereof) and (y) in the case of

-52-

such a report produced by any Special Servicer, by the applicable Master Servicer (if other than such Special Servicer or an Affiliate thereof).

“CREFC^® License Agreement”: The License Agreement, in the form set forth on the website of CREFC^® on the Closing Date, relating to the use of the CREFC^® trademarks and trade names.

“CREFC^® Loan Level Reserve/LOC Report”: The monthly report in the “CREFC^® Loan Level Reserve/LOC Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Loan Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Loan Modification Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Loan Periodic Update File”: The data file in the “CREFC^® Loan Periodic Update File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Loan Setup File”: The data file in the “CREFC^® Loan Setup File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® NOI Adjustment Worksheet”: The worksheet in the “NOI Adjustment Worksheet” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Operating Statement Analysis Report”: The report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

-53-

“CREFC^® Property File”: The data file in the “CREFC^® Property File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® REO Status Report”: The monthly report in the “REO Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Schedule AL File”: The data file in the “Schedule AL File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally; provided that the Depositor has confirmed in writing to each Master Servicer and the Certificate Administrator that any change to such “Schedule AL File” format complies with the requirements of Item 1125 of Regulation AB.

“CREFC^® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Servicer Remittance to Certificate Administrator”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Remittance to Certificate Administrator” available and effective from time to time on the CREFC^® Website.

“CREFC^® Servicer Watch List”: A monthly report, as of each Determination Date, including and identifying each Non-Specially Serviced Loan satisfying the “CREFC^® Portfolio Review Guidelines” approved from time to time by the CREFC^® in the “CREFC^® Servicer Watch List” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

-54-

“CREFC^® Significant Insurance Event Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Significant Insurance Event Report” available and effective from time to time on the CREFC^® Website.

“CREFC^® Special Servicer Loan File”: The data file in the “CREFC^® Special Servicer Loan File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® Total Loan Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC^® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be adopted by the CREFC^® for CMBS transactions and is reasonably acceptable to each applicable Master Servicer.

“CREFC^® Website”: The CREFC^® Website located at “www.crefc.org” or such other primary website as the CREFC^® may establish for dissemination of its report forms.

“Cross-Over Date”: The Distribution Date on which the Certificate Balances of the Subordinate Certificates (other than the Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates) and the Class A-S Upper-Tier Regular Interest, Class B Upper-Tier Regular Interest and Class C Upper-Tier Regular Interest have all previously been reduced to zero as a result of the allocation of Realized Losses to such Certificates.

“Crossed Mortgage Loan Group”: With respect to (i) any mortgage loan that consists of more than one commercial mortgage loan, the underlying group of loans that are cross-collateralized and cross-defaulted with each other and (ii) any two (2) or more individual mortgage loans that are cross-collateralized and cross-defaulted with each other, such cross-collateralized and cross-defaulted mortgage loans. There is no Crossed Mortgage Loan Group related to the Trust.

“Crossed Underlying Loan”: With respect to any Crossed Mortgage Loan Group, a mortgage loan that is cross-collateralized and cross-defaulted with one or more other mortgage loans within such Crossed Mortgage Loan Group. There is no Crossed Underlying Loan related to the Trust.

“Crossed Underlying Loan Repurchase Criteria”: With respect to any Crossed Mortgage Loan Group as to which one or more (but not all) of the Crossed Underlying Loans therein are affected by a Material Defect (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Material Defect, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the debt service coverage ratio for all the remaining Crossed Underlying Loans for the four (4) most recently reported calendar quarters preceding the repurchase or substitution shall not be less

-55-

than the least of (a) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) for the four (4) preceding calendar quarters preceding the repurchase or replacement and (c) 1.25x, (ii) the loan-to-value ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the applicable Special Servicer at the expense of the related Mortgage Loan Seller shall not be greater than the greatest of (a) the loan-to-value ratio, expressed as a whole number percentage (taken to one (1) decimal place), for the entire Crossed Mortgage Loan Group, (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the loan-to-value ratio, expressed as a whole number percentage (taken to one (1) decimal place), for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s) at the time of repurchase or substitution, and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, shall have furnished the Trustee and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Underlying Loan to become not cross-collateralized and cross-defaulted with the remaining related Crossed Underlying Loans prior to such repurchase or substitution or otherwise forbears from exercising enforcement rights against the Primary Collateral for any Crossed Underlying Loan(s) remaining in the Trust (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust) and (v) (other than with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder shall have consented to the repurchase or substitution of the affected Crossed Underlying Loan, which consent shall not be unreasonably withheld, conditioned or delayed.

“Cumulative Appraisal Reduction Amount”: As of any date of determination for any Mortgage Loan, the sum of (i) all Appraisal Reduction Amounts then in effect, and (ii) with respect to any AB Modified Loan, any Collateral Deficiency Amount then in effect. The applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount with respect to a Serviced Mortgage Loan. With respect to a Non-Serviced Mortgage Loan the applicable Special Servicer, the applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Non-Serviced Special Servicer’s calculation or determination of any Appraisal Reduction Amount with respect to such Non-Serviced Mortgage Loan.

“Cure/Contest Period”: As defined in Section 12.01(b)(vii).

“Custodial Exception Report”: As defined in Section 2.02(b).

“Custodian”: A Person who is at any time appointed by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files, which Person shall not be the Depositor, any of the Mortgage Loan Sellers or (except to the extent Wells Fargo Bank, National Association is the Custodian) an Affiliate of any of them. The Certificate Administrator shall be the initial Custodian. Wells Fargo Bank, National Association will perform its duties as Custodian

-56-

hereunder through its Document Custody division, including, as applicable, any agents or affiliates utilized thereby.

“Cut-off Date”: With respect to each Mortgage Loan, the related Due Date of such Mortgage Loan in October 2021, or with respect to any Mortgage Loan that has its first Due Date after October 2021, the date that would have otherwise been the related Due Date in October 2021.

“Cut-off Date Balance”: With respect to any Mortgage Loan, the outstanding principal balance of such Mortgage Loan, as of the Cut-off Date, after application of all payments of principal due on or before such date, whether or not received.

“DBRS Morningstar”: DBRS, Inc., and its successors in interest. If neither DBRS Morningstar nor any successor remains in existence, “DBRS Morningstar” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each applicable Master Servicer, the Directing Certificateholder and each applicable Special Servicer and specific ratings of DBRS Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Default Interest”: With respect to any Mortgage Loan or Companion Loan and any Collection Period, all interest accrued in respect of such Mortgage Loan or Companion Loan during such Collection Period provided for in the related Mortgage Note or Mortgage as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate accrued on the unpaid principal balance of such Mortgage Loan or Companion Loan outstanding from time to time.

“Defaulted Loan”: A Serviced Mortgage Loan or a Serviced Whole Loan (other than a Serviced Mortgage Loan or Serviced Whole Loan that is subject to a Payment Accommodation, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation) and (i) that is delinquent at least sixty (60) days in respect of its Periodic Payments (other than a Balloon Payment) or in respect of its Balloon Payment, if any; provided that in respect of a Balloon Payment, such period will be one hundred-twenty (120) days if the related Mortgagor has provided the applicable Special Servicer with a written and fully executed commitment for refinancing of the related Mortgage Loan from an acceptable lender reasonably satisfactory in form and substance to the applicable Special Servicer; and such delinquency is to be determined without giving effect to any Grace Period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which the applicable Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Loan”.

“Defeasance Accounts”: As defined in Section 3.18(j).

“Defect”: As defined in Section 2.02(f).

“Deficient Exchange Act Deliverable”: With respect to a Master Servicer, a Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the

-57-

Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than an Initial Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

“Deficient Valuation”: With respect to any Mortgage Loan or Serviced Whole Loan, as applicable, a valuation by a court of competent jurisdiction of the related Mortgaged Property in an amount less than the then-outstanding principal balance of such Mortgage Loan or Serviced Whole Loan which valuation results from a proceeding initiated under the Bankruptcy Code.

“Definitive Certificate”: Any Certificate in definitive, fully registered form without interest coupons. Initially, the Class R Certificates, the Class V Certificates, the RR Interest and any Certificate issued pursuant to Section 5.02(c) and Section 5.02(d) shall be Definitive Certificates. For the avoidance of doubt, any RR Interest shall at all times during the RR Interest Transfer Restriction Period be a Definitive Certificate.

“Delinquent Loan”: A Mortgage Loan that is delinquent at least sixty (60) days in respect of its Periodic Payments or Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any Grace Period. For the avoidance of doubt, a delinquency that would have existed but for a Payment Accommodation shall not constitute a delinquency for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

“Denomination”: With respect to any Certificate or any beneficial interest in a Certificate the amount (i) (a) set forth on the face thereof or set forth on a schedule attached thereto (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) or (b) in the case of any beneficial interest in a Book-Entry Certificate, the interest of the related Certificate Owner in the applicable Class of Certificates as reflected on the books and records of the Depository or related Depository Participant, as applicable, (ii) expressed in terms of initial Certificate Balance or initial Notional Amount, as applicable, and (iii) in an authorized denomination, as set forth in Section 5.01(a).

“Depositor”: Banc of America Merrill Lynch Commercial Mortgage Inc., a Delaware corporation, or its successor in interest.

“Depository”: DTC, or any successor Depository hereafter named. The nominee of the initial Depository for purposes of registering those Certificates that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the UCC of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.

“Depository Participant”: A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

-58-

“Designated Site”: The website to which Diligence Files are uploaded as designated by the Depositor to the Mortgage Loan Sellers.

“Determination Date”: With respect to any Distribution Date, the eleventh (11^th) day of each calendar month (or, if the eleventh (11^th) calendar day of that month is not a Business Day, then the next Business Day), commencing in November 2021.

“Diligence File”: With respect to each Mortgage Loan or Companion Loan, if applicable, collectively the following documents in electronic format:

(a)           A copy of each of the following documents:

(i)        the Mortgage Note, endorsed on its face or by allonge attached to the Mortgage Note, without recourse, to the order of the Trustee or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

(ii)       the Mortgage, together with a copy of any intervening Assignments of Mortgage, in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

(iii)      any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

(iv)      all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

(v)       the policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

(vi)      any UCC financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

-59-

(vii)     any Intercreditor Agreement relating to permitted debt of the Mortgagor, including any Intercreditor Agreement relating to a Serviced Whole Loan;

(viii)    any loan agreement, escrow agreement, security agreement or letter of credit relating to a Mortgage Loan or a Serviced Whole Loan;

(ix)      any ground lease, related ground lessor estoppel, indemnity or guaranty relating to a Mortgage Loan or a Serviced Whole Loan;

(x)       other than with respect to the Mortgage Loans secured by residential cooperative properties, any property management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

(xi)      any franchise agreements and comfort letters or similar agreements relating to a Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of a Mortgage Loan or Serviced Whole Loan;

(xii)     any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

(xiii)    any related mezzanine intercreditor agreement;

(xiv)    all related environmental reports; and

(xv)     all related environmental insurance policies;

(b)           a copy of any engineering reports or property condition reports;

(c)           other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property) or a residential cooperative property, copies of a rent roll;

(d)           for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller;

(e)           a copy of all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller or an Affiliate thereof, and its counsel that are privileged communications or constitute legal or other due diligence analyses), if any, delivered in connection with the closing of the related Mortgage Loan;

(f)            a copy of all Mortgagor’s certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies (to the extent not previously included as part of this definition), if any, delivered in connection with the closing of the related Mortgage Loan;

-60-

(g)           a copy of the appraisal for the related Mortgaged Property or Mortgaged Properties;

(h)           for any Mortgage Loan that the related Mortgaged Property or Mortgaged Properties is leased to a single tenant, a copy of the lease;

(i)            a copy of the applicable Mortgage Loan Seller’s asset summary;

(j)            a copy of all surveys for the related Mortgaged Property or Mortgaged Properties;

(k)           a copy of all zoning reports;

(l)            a copy of financial statements of the related Mortgagor;

(m)          a copy of operating statements for the related Mortgaged Property or Mortgaged Properties;

(n)           a copy of all UCC searches;

(o)           a copy of all litigation searches;

(p)           a copy of all bankruptcy searches;

(q)           a copy of any origination settlement statement;

(r)            a copy of the Insurance Summary Report;

(s)           a copy of the organizational documents of the related Mortgagor and any guarantor;

(t)            a copy of all escrow statements related to the escrow account balances as of the Mortgage Loan origination date;

(u)           a copy of all related environmental reports that were received by the applicable Mortgage Loan Seller;

(v)           a copy of any closure letter (environmental); and

(w)          a copy of any environmental remediation agreement for the related Mortgaged Property or Mortgaged Properties;

in each case, to the extent that the related originator received such documents in connection with the origination of such Mortgage Loan. In the event any of the items identified above were not included in connection with the origination of such Mortgage Loan (other than documents that would not be included in connection with the origination of the Mortgage Loan because such document is inapplicable to the origination of a Mortgage Loan of that structure or type), the Diligence File shall include a statement to that effect. No information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal

-61-

communications shall constitute part of the Diligence File. It is generally not required to include any of the same items identified above again if such items have already been included under another clause of the definition of Diligence File, and the Diligence File shall include a statement to that effect. The Mortgage Loan Seller may, without any obligation to do so, include such other documents as part of the Diligence File that such Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform the Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified.

“Directing Certificateholder”: (A) With respect to a Servicing Shift Mortgage Loan, the Directing Certificateholder shall be any related Loan-Specific Directing Certificateholder, and (B) with respect to each Mortgage Loan (other than a Servicing Shift Mortgage Loan that has a related Loan-Specific Directing Certificateholder), the initial Directing Certificateholder shall be RREF IV Debt AIV, LP, a Delaware limited partnership. Thereafter, with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition, the Directing Certificateholder shall be the Controlling Class Certificateholder (or a representative thereof) selected by more than 50% of the Controlling Class Certificateholders (by Certificate Balance, as determined by the Certificate Registrar) from time to time; provided, that (i) absent that selection, or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt of a notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Directing Certificateholder is no longer designated, the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) will be the Directing Certificateholder; provided, that, in the case of this clause (iii), in the event that no one Holder owns the largest aggregate Certificate Balance of the Controlling Class, then there will be no Directing Certificateholder until appointed in accordance with the terms of this Agreement. After the occurrence and during the continuance of a Control Termination Event, the Directing Certificateholder with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition shall only retain its consultation rights to the extent specifically provided for herein. After the occurrence of a Consultation Termination Event, there will be no Directing Certificateholder with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition. The Depositor shall promptly provide the name and contact information for the initial Directing Certificateholder upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Directing Certificateholder has not changed until such parties receive written notice of a replacement of the Directing Certificateholder from a party holding the requisite interest in the Controlling Class (as confirmed by the Certificate Registrar), or the resignation of the then-current Directing Certificateholder. As used herein, the term “Directing Certificateholder,” unless used in relation to a Servicing Shift Mortgage Loan, means the entity determined pursuant to clause (B) of the first sentence of this definition.

“Directly Operate”: With respect to any REO Property (except with respect to a Non-Serviced Mortgaged Property), the furnishing or rendering of services to the tenants thereof, that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for sale to customers, the use of such REO Property in a trade or business conducted by the Trust or on behalf of a Companion Holder or the performance of any construction work on the REO Property other than

-62-

through an Independent Contractor; provided, however, that an REO Property shall not be considered to be Directly Operated solely because the Trustee (or the applicable Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

“Disclosable Special Servicer Fees”: With respect to any Serviced Mortgage Loan and any related Serviced Companion Loan (including any related REO Property), any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the applicable Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Mortgagor, any manager, any guarantor or indemnitor in respect of a Mortgage Loan or Serviced Companion Loan and any purchaser of any such Mortgage Loan or Serviced Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of such Mortgage Loan or Serviced Companion Loan, the management or disposition of any REO Property, and the performance by the applicable Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the applicable Special Servicer is entitled pursuant to this Agreement or any Non-Serviced PSA.

“Disclosure Parties”: As defined in Section 3.13(f).

“Discount Rate”: As defined in Section 4.01(e).

“Dispute Resolution Consultation”: As defined in Section 2.03(l)(iii).

“Dispute Resolution Cut-off Date”: As defined in Section 2.03(l)(i).

“Disqualified Non-U.S. Tax Person”: With respect to the Class R Certificates, any Non-U.S. Tax Person or its agent other than (a) a Non-U.S. Tax Person that holds the Class R Certificates in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or (b) a Non-U.S. Tax Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificates to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificates will not be disregarded for federal income tax purposes.

“Disqualified Organization”: Any of (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Freddie Mac, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of

-63-

the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

“Distribution Accounts”: Collectively, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account and the Excess Interest Distribution Account (and in each case any subaccount thereof), all of which may be subaccounts of a single Eligible Account.

“Distribution Date”: The fourth (4th) Business Day following each Determination Date, beginning in November 2021. The initial Distribution Date shall be November 18, 2021.

“Distribution Date Statement”: As defined in Section 4.02(a).

“Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Article XI of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction. For the avoidance of doubt, as of the Closing Date, no parties appear on the Do Not Hire List.

“Dodd-Frank Act”: The Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended from time to time.

“DTC”: The Depository Trust Company, a New York corporation.

“Due Date”: With respect to (i) any Mortgage Loan or Companion Loan, as applicable, on or prior to its Maturity Date, the day of the month set forth in the related Mortgage Note on which each Periodic Payment thereon is scheduled to be first due, (ii) any Mortgage Loan or Companion Loan, as applicable, after the Maturity Date therefor, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on such Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due, and (iii) any REO Loan, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on the related Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due.

“EDGAR”: As defined in Section 11.03.

-64-

“EDGAR-Compatible Format”: With respect to (a) the CREFC^® Schedule AL File and the Schedule AL Additional File, XML format or such other format as mutually agreed to between the Depositor, Certificate Administrator and each applicable Master Servicer and (b) any report, file or document other than those listed in clause (a) above, any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.

“Eligible Account”: Any of the following: (i)a segregated account or accounts maintained with a federal or state chartered depository institution or trust company (including the Trustee or the Certificate Administrator), (A)the long-term deposit rating or long-term unsecured debt obligations or deposits of which are rated at least “A-” by S&P, if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “A-1” from S&P, if the deposits are to be held in such account for less than thirty (30) days and (B)the long-term unsecured debt obligations or deposits of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days; (ii)an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long-term unsecured debt rating shall be at least “BBB” from S&P and “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt rating shall be at least “A-1” from S&P (or “A-2” by S&P so long as the long-term unsecured debt obligations of such depository institution or trust company are rated no less than “BBB” by S&P) and “F1” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less); (iii) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clause (i) or (ii) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, any Master Servicer or any Special Servicer; (iv) any other account or accounts not listed in clauses (i)-(iii) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), which account may be an account maintained by or with the Certificate Administrator, the Trustee, any Master Servicer or any Special Servicer; (v) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company that (A) has a long-term unsecured debt rating of at least “A-” from S&P (if the deposits are to be held in the account for more than thirty (30) days) or a short-term unsecured debt rating of at least “A-1” from S&P (if the deposits are to be held in the account for thirty (30) days or less) and (B) has a long-term unsecured debt rating of at least “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) or a short-term unsecured debt rating of at least “F1” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less) and that, in each case, has corporate trust powers, acting in its fiduciary capacity, provided that any state

-65-

chartered depository institution or trust company is subject to regulation regarding fiduciary funds substantially similar to 12 C.F.R. § 9.10(b); or (vi) in the case of Servicing Accounts or reserve accounts with respect to NCB Mortgage Loans with respect to amounts posted with the lender for Escrow Payments, repairs, replacements, capital improvements and/or environmental testing and remediation with respect to the related Mortgaged Property, for ongoing or threatened litigation or for any unit maintenance or rent receivables or negative carry, any account maintained with NCB (provided that, if such account is not otherwise an Eligible Account, NCB has a combined capital and surplus of at least $40,000,000). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

“Eligible Asset Representations Reviewer”: An entity that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of DBRS Morningstar, Fitch, KBRA, Moody’s or S&P and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which any of DBRS Morningstar, Fitch, KBRA, Moody’s or S&P has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with such Special Servicer, operating advisor or asset representations reviewer, as applicable, as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 6.01(d), (c) is not (and is not affiliated with) a Sponsor, a Mortgage Loan Seller, an originator, any Master Servicer, any Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder, the Risk Retention Consultation Party or any of their respective Affiliates, (d) has not performed (and is not affiliated with any party hired to perform) any due diligence, loan underwriting, brokerage, borrower advisory or similar services with respect to any Mortgage Loan or any related Companion Loan prior to the Closing Date for or on behalf of any Sponsor, any Mortgage Loan Seller, any Underwriter, any party to this Agreement, the Directing Certificateholder, the Risk Retention Consultation Party or any of their respective Affiliates, or have been paid any fees, compensation or other remuneration by any of them in connection with any such services, and (e) does not directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, any Mortgage Loans, any Companion Loan or any securities backed by a Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable).

“Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a CMBS transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been a special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 6.01(c) of this Agreement; (c) that is not (and is not affiliated with) the Depositor, the Trustee, the Certificate Administrator, a Master Servicer, a Special Servicer, a Mortgage Loan Seller, the Directing Certificateholder, the Risk Retention Consultation Party or a depositor, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of a Companion Loan, or any of their respective Affiliates; (d) that has not been paid by any Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the

-66-

appointment or recommendation for replacement of a successor special servicer to become a special servicer under this Agreement; and (e) that (i) has been regularly engaged in the business of analyzing and advising clients in CMBS matters and has at least five (5) years of experience in collateral analysis and loss projections and (ii) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets.

“Enforcing Party”: The person obligated to or that elects pursuant to Section 2.03 to enforce the rights of the Trust against the related Mortgage Loan Seller with respect to the Repurchase Request.

“Enforcing Servicer”: The applicable Special Servicer.

“Environmental Assessment”: An “environmental site assessment” as such term is defined in, and meeting the criteria of, the American Society of Testing Materials Standard Section E 1527-00, or any successor thereto.

“Environmental Indemnity Agreement”: With respect to any Mortgage Loan, any agreement between the Mortgagor (or a guarantor thereof) and the originator of such Mortgage Loan relating to the Mortgagor’s obligation to remediate or monitor or indemnify for any environmental problems relating to the related Mortgaged Property.

“ERISA”: The Employee Retirement Income Security Act of 1974, as amended.

“ERISA Plan”: As defined in Section 5.03(r).

“ERISA Restricted Certificate”: Any Certificate (other than a Class R or Class V Certificate) that does not meet the requirements of Prohibited Transaction Exemption 96-22 (as such exemption may be amended from time to time) as of the date of the acquisition of such Certificate by a Plan. As of the Closing Date, each of the Class X-F, Class X-G, Class X-H, Class F, Class G and Class H Certificates and the RR Interest is an ERISA Restricted Certificate.

“Escrow Payment”: Any payment received by the applicable Master Servicer or the applicable Special Servicer for the account of any Mortgagor for application toward the payment of real estate taxes, assessments, insurance premiums, ground lease rents and similar items in respect of the related Mortgaged Property, including amounts for deposit to any reserve account.

“Euroclear”: The Euroclear System or any successor thereto.

“Excess Interest”: With respect to each ARD Loan, interest accrued on such ARD Loan after the Anticipated Repayment Date allocable to the Excess Rate, including all interest accrued thereon to the extent permitted by applicable law and the related Mortgage Loan documents. The Excess Interest shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust.

-67-

“Excess Interest Certificates”: Any Class of commercial mortgage pass-through certificates issued under this Agreement that are designated as evidencing an interest in the Excess Interest Grantor Trust Assets. The Class V Certificates shall be Excess Interest Certificates.

“Excess Interest Distribution Account”: The trust account or accounts created and maintained as a separate account or accounts (or as a subaccount of the Distribution Account) by the Certificate Administrator pursuant to Section 3.04(c), which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class V Certificates and the RR Interest, Excess Interest Distribution Account”, and which must be an Eligible Account (or a subaccount of an Eligible Account). The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the RR Interest and the Excess Interest Certificates. The Excess Interest Distribution Account shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust.

“Excess Interest Grantor Trust Assets”: The portion of the Trust Fund consisting of the Excess Interest, the Excess Interest Distribution Account and the proceeds thereof.

“Excess Modification Fee Amount”: With respect to either the applicable Master Servicer or the applicable Special Servicer, any Corrected Loan and any particular modification, waiver, extension or amendment with respect to such Corrected Loan that gives rise to the payment of a Workout Fee, an amount equal to the aggregate of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan (including the related Serviced Companion Loan, if applicable, unless prohibited under the related Intercreditor Agreement) and received and retained by such Master Servicer or such Special Servicer, as applicable, as compensation within the prior twelve (12) months of such modification, waiver, extension or amendment, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee.

“Excess Modification Fees”: With respect to any Serviced Mortgage Loan or Serviced Whole Loan, the sum of (A) the excess, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of such Mortgage Loan or Serviced Whole Loan, as applicable, over (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and interest on Advances to the extent not otherwise paid or reimbursed by the Mortgagor but excluding Special Servicing Fees, Workout Fees and Liquidation Fees) outstanding or previously incurred on behalf of the Trust with respect to the related Mortgage Loan or Serviced Whole Loan, as applicable, and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. With respect to each Master Servicer and Special Servicer, the Excess Modification Fees collected and earned by such Person from the related Mortgagor (taken in the aggregate with any other Excess Modification Fees collected and earned by such Person from the related Mortgagor within the prior twelve (12) months of the collection of the current Excess Modification Fees) will be subject to a cap of 1.0% of the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, on the closing date of the related modification, extension, waiver or amendment (after giving effect to

-60- 

such modification, extension, waiver or amendment) with respect to any Mortgage Loan or Serviced Whole Loan, as applicable.

“Excess Prepayment Interest Shortfall”: For any Distribution Date, the Non-Retained Percentage of the Aggregate Excess Prepayment Interest Shortfall for such Distribution Date.

“Excess Rate”: With respect to each ARD Loan, the excess of (i) the applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan Schedule.

“Exchange Act”: The Securities Exchange Act of 1934, as amended from time to time and the rules and regulations of the Commission thereunder.

“Exchange Date”: As defined in Section 5.11(e).

“Exchangeable Certificate”: Any of the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

“Exchangeable Class Specific Grantor Trust Assets”: With respect to any Class of Exchangeable Certificates, its Class Percentage Interest in each Corresponding Exchangeable Upper-Tier Regular Interest.

“Exchangeable P&I Certificates”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1 and Class C-2 Certificates.

“Exchangeable Upper-Tier IO Regular Interest”: Each of the Class A-4-X1 Upper-Tier Regular Interest, the Class A-4-X2 Upper-Tier Regular Interest, the Class A-5-X1 Upper-Tier Regular Interest, the Class A-5-X2 Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest, the Class A-S-X2 Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest, the Class B-X2 Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest.

“Exchangeable Upper-Tier P&I Regular Interest”: Each of the Class A-4 Upper-Tier Regular Interest, the Class A-5 Upper-Tier Regular Interest, the Class A-S Upper-Tier Regular Interest, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest.

“Exchangeable Upper-Tier Regular Interest”: Each of the Exchangeable Upper-Tier P&I Regular Interests and the Exchangeable Upper-Tier IO Regular Interests.

“Excluded Controlling Class Holder”: With respect to any Excluded Controlling Class Loan, the Directing Certificateholder or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Loan. Promptly upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, the Directing

-61- 

Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E hereto to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which notice shall be physically delivered in accordance with Section 13.05 of this Agreement and shall specifically identify the Excluded Controlling Class Holder and the subject Excluded Controlling Class Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit P-1F hereto, which notice shall provide each of the CTSLink User ID associated with such Excluded Controlling Class Holder, and which notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. As of the Closing Date, there are no Excluded Controlling Class Holders related to the Trust.

“Excluded Controlling Class Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Directing Certificateholder or any Controlling Class Certificateholder is a Borrower Party. For the avoidance of doubt, if a Mortgage Loan or Whole Loan is not an Excluded Controlling Class Loan, such Mortgage Loan or Whole Loan is also not an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. As of the Closing Date, there are no Excluded Controlling Class Loans related to the Trust.

“Excluded Information”: With respect to any Excluded Controlling Class Loan, any information solely related to such Excluded Controlling Class Loan, which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans prepared by the applicable Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding a Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, the applicable Master Servicer or the applicable Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Information by the applicable Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, but in each case other than information with respect to such Excluded Controlling Class Loan that is aggregated with information of other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Controlling Class Loan) and any Schedule AL Additional File shall not be considered “Excluded Information”. Each applicable Master Servicer, Special Servicer and the Operating Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance with Section 3.33. For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under the “Excluded Information” tab on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 3.33.

“Excluded Loan”: With respect to (a) the Directing Certificateholder or the Holder of the majority of the Controlling Class, any Mortgage Loan or Whole Loan if, as of any date of determination, the Directing Certificateholder or the Holder of the majority of the Controlling

-62- 

Class is a Borrower Party, or (b) the Risk Retention Consultation Party or the Holder of the majority of the RR Interest, any Mortgage Loan or Whole Loan if, as of any date of determination, the Risk Retention Consultation Party or the Holder of the majority of the RR Interest is a Borrower Party. For the avoidance of doubt, any Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class is also an Excluded Controlling Class Loan. As of the Closing Date, there are no Excluded Loans related to the Trust.

“Excluded Special Servicer”: With respect to any Excluded Special Servicer Loan, a replacement special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to a Special Servicer set forth in Section 7.01(g). As of the Closing Date, there are no Excluded Special Servicers related to the Trust.

“Excluded Special Servicer Information”: With respect to any Excluded Special Servicer Loan, any information solely related to such Excluded Special Servicer Loan and/or the related Mortgaged Properties, which shall include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any Operating Advisor reports delivered to the Certificate Administrator regarding an Excluded Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the applicable Master Servicer or the applicable Excluded Special Servicer supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Special Servicer Information by the applicable Excluded Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, in each case, other than information with respect to such Excluded Special Servicer Loan(s) that is aggregated with information with respect to the other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Special Servicer Loan) and any Schedule AL Additional File shall not be considered “Excluded Special Servicer Information”.

“Excluded Special Servicer Loan”: Any Mortgage Loan or Serviced Whole Loan with respect to which, as of any date of determination, the applicable Special Servicer obtains knowledge that it has become a Borrower Party. As of the Closing Date, there are no Excluded Special Servicer Loans related to the Trust.

“Extended Cure Period”: As defined in Section 2.03(b).

“Fannie Mae”: Federal National Mortgage Association or any successor thereto.

“FDIC”: Federal Deposit Insurance Corporation or any successor thereto.

“Final Asset Status Report”: With respect to any Specially Serviced Loan, each related Asset Status Report, together with such other data or supporting information provided by the applicable Special Servicer to the Directing Certificateholder or the Risk Retention Consultation Party which does not include any communication (other than the related Asset Status Report) between the applicable Special Servicer and Directing Certificateholder or the Risk Retention Consultation Party with respect to such Specially Serviced Loan; provided that, with respect to any Mortgage Loan other than an Excluded Loan as to the Directing Certificateholder

-63- 

or the Holder of the majority of the Controlling Class, so long as no Control Termination Event has occurred and is continuing, no Asset Status Report shall be considered to be a Final Asset Status Report unless the Directing Certificateholder has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to Section 3.19, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the applicable Special Servicer in accordance with this Agreement. In addition, after the occurrence and during the continuance of a Control Termination Event, no Asset Status Report shall be a Final Asset Status Report unless and until the Operating Advisor is consulted with on a non-binding basis or deemed to have been consulted with pursuant to this Agreement. No such consultation shall be required prior to a Control Termination Event and, during such period, the Operating Advisor is only required to review Final Asset Status Reports delivered to it by a Special Servicer; provided, that the Operating Advisor shall be required to request delivery of a Final Asset Status Report to the extent it has actual knowledge of such Final Asset Status Report.

“Final Dispute Resolution Election Notice”: As defined in Section 2.03(l)(iii).

“Final Recovery Determination”: A reasonable determination by the applicable Special Servicer, in consultation with the Directing Certificateholder (if related to a Mortgage Loan other than an Excluded Loan as to such party and made prior to the occurrence and continuance of a Consultation Termination Event), with respect to any Defaulted Loan (and, if applicable, any defaulted Companion Loan) or Corrected Loan or REO Property (other than a Mortgage Loan or REO Property, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, (ii) the applicable Special Servicer or other person pursuant to Section 3.16(b), any Companion Holder, any mezzanine lender, in each case pursuant to Section 3.16 or (iii) the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the applicable Special Servicer’s judgment, which judgment was exercised without regard to any obligation of such Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable. With respect to all Mortgage Loans that are not Excluded Loans with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder shall have ten (10) Business Days to review and approve each such recovery determination by the applicable Special Servicer; provided, however, that if the Directing Certificateholder fails to approve or disapprove any recovery determination within ten (10) Business Days of receipt of the initial recovery determination, such consent shall be deemed given.

“Fitch”: Fitch Ratings, Inc., and its successors in interest. If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

-64- 

“Form 8-K Disclosure Information”: As defined in Section 11.07.

“Form 15 Suspension Notification”: As defined in Section 11.08.

“Freddie Mac”: Federal Home Loan Mortgage Corporation or any successor thereto.

“Gain-on-Sale Proceeds”: With respect to any Serviced Mortgage Loan, the excess of (i) Liquidation Proceeds net of any related Liquidation Expenses (or the portion of such net Liquidation Proceeds payable to the related Mortgage Loan pursuant to the related Intercreditor Agreement) over (ii) the Purchase Price for such Mortgage Loan on the date on which Liquidation Proceeds were received; provided, that for purposes of calculating Gain-on-Sale Proceeds, Liquidation Proceeds shall exclude any amounts allocated as a Yield Maintenance Charge, Prepayment Premium, recovery of any late payment charges and default interest or recovery of any assumption fees and Modification Fees pursuant to Sections 3.02(a) – (c).

“Gain-on-Sale Remittance Amount”: For each Distribution Date, the lesser of (i) the amount on deposit in the Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Non-Retained Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

“Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Certificateholders (other than the Holders of the RR Interest), which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

“General Master Servicer”: Wells Fargo Bank, National Association, and its successors in interest and assigns, or any successor thereto (as General Master Servicer) appointed as provided herein.

“General Special Servicer”: (i) Rialto Capital Advisors, LLC, a Delaware limited liability company, and its successors in interest and assigns, or any successor special servicer appointed as provided herein, and (ii) with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

“Grace Period”: The number of days before a payment default is an event of default under the related Mortgage Loan.

“Grantor Trust”: A segregated asset pool within the Trust Fund treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement hereto.

“Grantor Trust Designated Portion”: As defined in the Preliminary Statement hereto.

-65- 

“Ground Lease”: The ground lease pursuant to which any Mortgagor holds a leasehold interest in the related Mortgaged Property and any estoppels or other agreements executed and delivered by the ground lessor in favor of the lender under the Mortgage Loan.

“Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes or substances, including, without limitation, those so identified pursuant to CERCLA or any other federal, state or local environmental related laws and regulations, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

“Independent”: When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, any applicable Master Servicer, any applicable Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any Class of securities issued by the Trustee, the Certificate Administrator, the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof, as the case may be, so long as such ownership constitutes less than 1% of the total assets of such Person. For the avoidance of doubt, the exception in the proviso above for ownership of 1% or less of any Class of Certificates shall not apply with respect to the Operating Advisor or the Asset Representations Reviewer.

“Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates as is set forth in an Opinion

-66- 

of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, any Master Servicer, any Companion Holder or the Trust, delivered to the Trustee, any Companion Holder, the Certificate Administrator and any Master Servicer), so long as the Trust does not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that no Master Servicer or Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including a Master Servicer or a Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Operating Advisor and each applicable Master Servicer of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, such Master Servicer, the Operating Advisor or the Trust, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

“Initial Cure Period”: As defined in Section 2.03(b).

“Initial Purchasers”: BofA Securities, Inc., Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC.

“Initial Requesting Certificateholder”: The first Certificateholder or Certificate Owner (in either case, other than a Holder of the RR Interest) to deliver a Certificateholder Repurchase Request as described in Section 2.03(k) with respect to a Mortgage Loan. For the avoidance of doubt, there may not be more than one Initial Requesting Certificateholder with respect to any Mortgage Loan. A Holder of an RR Interest may not be an Initial Requesting Certificateholder.

“Initial Schedule AL Additional File”: The data file prepared by or on behalf of the Depositor containing additional information or schedules regarding data points in the Initial Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act and filed as Exhibit 103 to the Form ABS-EE incorporated by reference into the Prospectus.

“Initial Schedule AL File”: The data file prepared by or on behalf of the Depositor containing the information required by Item 1111(h)(3) or Item 1125 of Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act and filed as Exhibit 102 to the Form ABS-EE incorporated by reference into the Prospectus.

“Initial Sub-Servicer”: With respect to each Mortgage Loan that is subject to a Sub-Servicing Agreement with any Master Servicer as of the Closing Date, the Sub-Servicer under any such Sub-Servicing Agreement. As of the Closing Date, each entity listed on Exhibit EE is an Initial Sub-Servicer.

“Initial Sub-Servicing Agreement”: Any Sub-Servicing Agreement in effect as of the Closing Date.

-67- 

“Inquiry” and “Inquiries”: As each is defined in Section 4.07(a).

“Institutional Accredited Investor”: An institutional investor which is an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Act or any entity in which all of the equity owners come within such paragraphs.

“Insurance and Condemnation Proceeds”: All proceeds paid under any Insurance Policy or in connection with the full or partial condemnation of a Mortgaged Property, in either case, to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor or any tenants or ground lessors, in either case, in accordance with the Servicing Standard (and in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the applicable Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement) and the REMIC Provisions.

“Insurance Policy”: With respect to any Mortgage Loan, any hazard insurance policy, flood insurance policy, title policy or other insurance policy that is maintained from time to time in respect of such Mortgage Loan or the related Mortgaged Property.

“Insurance Summary Report”: With respect to each Mortgage Loan, a report or other summary prepared either by the related Mortgage Loan Seller or a third party insurance consultant on behalf of the related Mortgage Loan Seller that provides a summary of all insurance policies covering the related Mortgaged Property(ies), identifying the insurance provider, applicable ratings of each such provider and the amount of coverage and any applicable deductible.

“Intercreditor Agreement”: (a) Each of the One North Wacker Intercreditor Agreement, the Arizona Mills Intercreditor Agreement, the Suarez Puerto Rico Industrial Portfolio Intercreditor Agreement, the Newport Pavilion Intercreditor Agreement, the Metro Crossing Intercreditor Agreement, the McDonald’s Global HQ Intercreditor Agreement and the Velocity Industrial Portfolio Intercreditor Agreement, (b) any intercreditor agreement entered into in connection with the issuance to the direct or indirect equity holders in the Mortgagor of any existing mezzanine indebtedness or any future mezzanine indebtedness permitted under the related Mortgage Loan documents and (c) solely with respect to a Joint Mortgage Loan treated as a Serviced Whole Loan in accordance with Section 3.30 hereof (to the extent there is no related Intercreditor Agreement governing the relationship of the promissory notes comprising such Joint Mortgage Loan), the applicable Mortgage Loan documents together with the provisions of Section 3.30 hereof.

“Interest Accrual Amount”: With respect to any Distribution Date and any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest, the amount of interest for the related Interest Accrual Period accrued at the Pass-Through Rate for such Class of Certificates or Exchangeable Upper-Tier Regular Interest on the Certificate Balance or Notional Amount, as applicable, for such Class of Certificates or Exchangeable Upper-Tier Regular Interest immediately prior to that Distribution Date. Calculations of interest for each Interest Accrual Period will be made on 30/360 basis.

-68- 

“Interest Accrual Period”: For each Distribution Date, the calendar month prior to the month in which that Distribution Date occurs.

“Interest Distribution Amount”: With respect to any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest for any Distribution Date, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class of Certificates on such Distribution Date.

For purposes of clause (B) above, the Excess Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Non-Retained Certificates (other than the Exchangeable Certificates) and the Exchangeable Upper-Tier Regular Interests in an amount equal to the product of (i) the amount of such Excess Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Interest Accrual Amount for such Class for such Distribution Date and the denominator of which is the aggregate Interest Accrual Amounts for all Classes of Regular Certificates and the Exchangeable Upper-Tier Regular Interests for such Distribution Date. For any Distribution Date, any portion of the Excess Prepayment Interest Shortfall allocated to an Exchangeable Upper-Tier Regular Interest, shall be allocated among the Classes of Exchangeable Certificates representing an interest therein, pro rata, in accordance with their respective Class Percentage Interests therein.

“Interest Reserve Account”: The trust account or subaccount of the Distribution Account created and maintained by the Certificate Administrator pursuant to Section 3.04(b) initially in the name of “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Interest Reserve Account”, into which the amounts set forth in Section 3.21 shall be deposited directly and which must be an Eligible Account or subaccount of an Eligible Account.

“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interest, the sum of (a) the portion of the Interest Distribution Amount for such Class or Exchangeable Upper-Tier Regular Interest remaining unpaid as of the close of business on the preceding Distribution Date, and (b) to the extent permitted by applicable law, (i) other than in the case of Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one month’s interest on that amount remaining unpaid at the Pass-Through Rate applicable to such Class or Exchangeable Upper-Tier Regular Interest for the current Distribution Date and (ii) in the case of the Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one month’s interest on that amount remaining unpaid at the Weighted Average Net Mortgage Rate for such Distribution Date.

“Interested Person”: As of the date of any determination, the Depositor, any Master Servicer, any Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator, the Trustee, the Directing Certificateholder, the Risk Retention Consultation Party, any Sponsor, any Borrower Party, any Independent Contractor engaged by a Special Servicer, the trustee for the securitization of a Companion Loan (with respect to a Whole

-69- 

Loan if it is a Defaulted Loan), any related Companion Holder or its representative, any holder of a related mezzanine loan or any known Affiliate of any such party described above.

“Investment Account”: As defined in Section 3.06(a).

“Investment Representation Letter”: As defined in Section 5.03(e), a form of which is attached hereto as Exhibit C.

“Investor-Based Exemption”: Any of PTCE 84-14 (for transactions by independent “qualified professional asset managers”), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 90-1 (for transactions by insurance company pooled separate accounts), PTCE 95-60 (for transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”) or a similar exemption under Similar Law.

“Investor Certification”: A certificate (which may be in electronic form) substantially in the form of Exhibit P-1A, Exhibit P-1B, Exhibit P-1C or Exhibit P-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation), representing (i) that such Person executing the certificate is a Certificateholder, the Directing Certificateholder or the Risk Retention Consultation Party, a beneficial owner of a Certificate, a prospective purchaser of a Certificate or a Companion Holder (or any investment advisor, manager or other representative of the foregoing), (ii) that either (a) such Person is the Risk Retention Consultation Party or is a Person who is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (b) such Person is a Borrower Party in which case (1) if such Person is the Directing Certificateholder or a Controlling Class Certificateholder, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder other than any Excluded Information as set forth herein or (2) if such Person is not the Directing Certificateholder or a Controlling Class Certificateholder, such Person shall only receive access to the Statements to Certificateholders prepared by the Certificate Administrator, (iii) (other than with respect to a Companion Holder) that such Person has received a copy of the final Prospectus and (iv) such Person agrees to keep any Privileged Information confidential and will not violate any securities laws; provided, however, that any Excluded Controlling Class Holder (i) shall be permitted to reasonably request and obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information) and (ii) shall be considered a Privileged Person for all other purposes, except with respect to its ability to obtain information with respect to any related Excluded Controlling Class Loan. The Certificate Administrator may require that Investor Certifications be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to any mezzanine lender upon notice from any party to this Agreement that such mezzanine lender has become an Accelerated Mezzanine Loan Lender.

“Investor Q&A Forum”: As defined in Section 4.07(a).

-70- 

“Investor Registry”: As defined in Section 4.07(b).

“Joint Mortgage Loan”: Any Mortgage Loan for which one or more promissory notes will be contributed to this securitization by more than one Mortgage Loan Seller. As of the Closing Date, the Arizona Mills Mortgage Loan is a Joint Mortgage Loan related to the Trust.

“KBRA”: Kroll Bond Rating Agency, LLC, and its successors in interest. If neither KBRA nor any successor remains in existence, “KBRA” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Late Collections”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due thereunder by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. With respect to any REO Loan, all amounts received in connection with the related REO Property prior to the related Determination Date, whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late collections of principal or interest due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due under the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable, by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges. With respect to any Whole Loan, as used in this Agreement, Late Collections shall refer to such portion of Late Collections to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

“Liquidation Event”: With respect to any Mortgage Loan or with respect to any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is purchased by any Special Servicer, or by any Companion Holder, any mezzanine lender (as applicable), in each case pursuant to Section 3.16 (and the related Intercreditor Agreement); (v) such Mortgage Loan is purchased by any Special Servicer, any Master Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates pursuant to Section 9.01 or acquired by the Sole Certificateholder in exchange for its Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan is sold by any Special Servicer pursuant to the terms of this Agreement.

“Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by any Special Servicer in connection with a liquidation of any

-71- 

Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.16 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

“Liquidation Fee”: A fee payable to the applicable Special Servicer with respect to (a) each Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which such Special Servicer receives (i) a full, partial or discounted payoff from the related Mortgagor or (ii) any Liquidation Proceeds or Insurance and Condemnation Proceeds (including with respect to the related Companion Loan, if applicable), or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), equal to the product of the Liquidation Fee Rate and the proceeds of such full, partial or discounted payoff or other partial payment or the Liquidation Proceeds or Insurance and Condemnation Proceeds (net of the related costs and expenses associated with the related liquidation) related to such liquidated Specially Serviced Loan or REO Property, as the case may be or (b) any Loss of Value Payment or Purchase Price paid by a Mortgage Loan Seller with respect to any Mortgage Loan (except if such Mortgage Loan Seller makes such Loss of Value Payment in connection with a breach or document defect within the 90-day initial cure period or, if applicable, within the subsequent 90-day extended cure period); provided, however, that no Liquidation Fee shall be payable with respect to (a) the purchase of any Specially Serviced Loan by any Special Servicer or any Affiliate thereof (except if such Affiliate purchaser is the Directing Certificateholder or any Affiliate thereof; provided, however, that prior to a Control Termination Event, if the Directing Certificateholder or an Affiliate thereof purchases any Specially Serviced Loan within ninety (90) days after the applicable Special Servicer delivers to the Directing Certificateholder for its approval the initial Asset Status Report with respect to such Specially Serviced Loan, such Special Servicer will not be entitled to a Liquidation Fee in connection with such purchase by the Directing Certificateholder or its Affiliates), (b) any event described in clause (iv) of the definition of “Liquidation Proceeds” (or any substitution in lieu of a repurchase) so long as such repurchase or substitution occurs prior to the termination of the Extended Cure Period, (c) any event described in clauses (v) and (vi) of the definition of “Liquidation Proceeds”, as long as, with respect to a purchase pursuant to clause (vi) of the definition of “Liquidation Proceeds”, a purchase occurs within ninety (90) days of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Loan pursuant to the related Intercreditor Agreement, (d) a Serviced Companion Loan, (x) a repurchase of such Serviced Companion Loan by the applicable Mortgage Loan Seller for a breach of a representation or warranty or for a defective or deficient mortgage loan documentation under an Other Pooling and Servicing Agreement within the time period (or extension thereof, if applicable) provided for such repurchase or such repurchase occurs prior to the termination of such time period (or extension of such time period, if applicable) or (y) a purchase of such Serviced Companion Loan by any applicable party to the Other Pooling and Servicing Agreement pursuant to a clean-up call or similar liquidation of the Other Securitization; or (e) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within ninety (90) days following the related Maturity Date as a result of such Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (but, in the event that a Liquidation Fee is not payable due to the application of any of clauses (a) through (e) above, each Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided

-72- 

that the Liquidation Fee with respect to any Specially Serviced Loan will be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan and any related Companion Loan, as applicable, or REO Property and received by the applicable Special Servicer as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee shall be payable in connection with a Loss of Value Payment by a Mortgage Loan Seller, if the applicable Mortgage Loan Seller makes such Loss of Value Payment within ninety (90) days of receipt of notice of a breach (and giving effect to an extension period of ninety (90) days).

“Liquidation Fee Rate”: A rate equal to 1.00% (or, with respect to the One North Wacker Mortgage Loan, 0.5%) with respect to any Mortgage Loan, any Specially Serviced Loan (and each related Serviced Companion Loan) or REO Property, in each case as described in Section 3.11(c); provided that if such rate would result in an aggregate Liquidation Fee less than $25,000, then the Liquidation Fee Rate will be equal to the lesser of (i) 3.0% and (ii) such lower rate as would result in an aggregate Liquidation Fee equal to $25,000.

“Liquidation Proceeds”: Cash amounts received by or paid to any Master Servicer or any Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Loan or defaulted Companion Loan, if applicable, through a trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Mortgagor in accordance with applicable law and the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Mortgagor; (iii) any sale of (A) a Specially Serviced Loan pursuant to Section 3.16(a) or (B) any REO Property pursuant to Section 3.16(b); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Specially Serviced Loan or REO Property by the Holder of the majority of the Controlling Class, any Special Servicer, any Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; (vi) the purchase of a Mortgage Loan or an REO Property by (a) the applicable Subordinate Companion Holder, or (b) the related mezzanine lender, in each case pursuant to Section 3.16 and the related Intercreditor Agreement; or (vii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the applicable Collection Account in accordance with Section 3.05(g) of this Agreement (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the applicable Special Servicer in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan Seller). With respect to any Whole Loan, as used in this Agreement, Liquidation Proceeds shall refer to such portion of Liquidation Proceeds to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

“Loan-Specific Directing Certificateholder”: With respect to a Servicing Shift Mortgage Loan, prior to the related Servicing Shift Securitization Date, the Loan-Specific Directing Certificateholder with respect to a Servicing Shift Mortgage Loan will be the holder of the related “Controlling Note” or other analogous term under the related Intercreditor Agreement.

-73- 

With respect to a Servicing Shift Mortgage Loan, on and after the related Servicing Shift Securitization Date, there will be no Loan-Specific Directing Certificateholder with respect to such Servicing Shift Whole Loan.

“Loss of Value Payment”: As defined in Section 2.03(b) of this Agreement.

“Loss of Value Reserve Fund”: The “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant to Section 3.04(i) of this Agreement. The Loss of Value Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust or any Trust REMIC.

“Lower-Tier Distribution Amount”: As defined in Section 4.01(c).

“Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Preliminary Statement hereto, and (ii) as of any date of determination after the first Distribution Date, an amount equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)), and as set forth in Section 4.01(c).

“Lower-Tier Regular Interests”: Any of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and LRR Uncertificated Interests.

“Lower-Tier REMIC”: One of two (2) separate REMICs comprising a portion of the Trust Fund, which consist of the Mortgage Loans (exclusive of Excess Interest) and the proceeds thereof, any REO Property with respect thereto (or an allocable portion thereof, in the case of any Serviced Mortgage Loan), or the Trust’s beneficial interest in the REO Property with respect to a Non-Serviced Whole Loan, such amounts as shall from time to time be held in the applicable Collection Account (other than with respect to any Companion Loan), the related portion of the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Lower-Tier REMIC Distribution Account, and all other properties included in the Trust Fund that are not in the other Trust REMIC or the Grantor Trust, except for the Loss of Value Reserve Fund.

“Lower-Tier REMIC Distribution Account”: The segregated account, accounts or sub-accounts created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Lower-Tier REMIC Distribution Account”. Any such account, accounts or sub-accounts shall be an Eligible Account.

“LRR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

-74- 

“LTV Ratio”: With respect to any Mortgage Loan, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the scheduled principal balance of such Mortgage Loan, as of such date (assuming no defaults or prepayments on such Mortgage Loan prior to that date), and the denominator of which is the Appraised Value of the related Mortgaged Property.

“MAI”: Member of the Appraisal Institute.

“Major Decision”: As defined in Section 6.08(a).

“Master Servicer”: With respect to (a) any Mortgage Loan (other than an NCB Mortgage Loan) and any related Serviced Companion Loan, any REO Property acquired by the Trust with respect to a Mortgage Loan (other than an NCB Mortgage Loan) and any matters relating to the foregoing, the General Master Servicer and (b) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to an NCB Mortgage Loan and any matters relating to the foregoing, the NCB Master Servicer.

“Master Servicer Decision”: As defined in Section 3.18(m).

“Material Defect”: With respect to any Mortgage Loan, a Defect in any Mortgage File or a Breach, which Defect or Breach, as the case may be, materially and adversely affects the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or any Certificateholder therein or causes such Mortgage Loan to be other than a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a “qualified mortgage”.

“Maturity Date”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Note, after taking into account all Principal Prepayments received prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Whole Loan or Companion Loan by reason of default thereunder or (ii) any Grace Period permitted by the related Mortgage Note.

“McDonald’s Global HQ Intercreditor Agreement”: The Agreement Between Note Holders, dated as of October 29, 2020, by and between the holders of the respective promissory notes evidencing the McDonald’s Global HQ Whole Loan, setting forth the relative rights of such holders, as the same may be amended in accordance with the terms thereof.

“McDonald’s Global HQ Mortgage Loan”: With respect to the McDonald’s Global HQ Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 23 on the Mortgage Loan Schedule), which is evidenced by promissory note A-4-1.

“McDonald’s Global HQ Mortgaged Property”: The Mortgaged Property that secures the McDonald’s Global HQ Whole Loan.

“McDonald’s Global HQ Pari Passu Companion Loans”: With respect to the McDonald’s Global HQ Whole Loan, the Companion Loans evidenced by the related promissory

-75- 

notes A-1, A-2, A-3, A-4-2, A-5 and A-6 and made by the related Mortgagor and secured by the Mortgage on the McDonald’s Global HQ Mortgaged Property.

“McDonald’s Global HQ Subordinate Companion Loan”: With respect to the McDonald’s Global HQ Whole Loan, the Companion Loan evidenced by the related promissory note B and made by the related Mortgagor and secured by the Mortgage on the McDonald’s Global HQ Mortgaged Property.

“McDonald’s Global HQ Whole Loan”: The McDonald’s Global HQ Mortgage Loan together with the McDonald’s Global HQ Pari Passu Companion Loans and McDonald’s Global HQ Subordinate Companion Loan, each of which is secured by the same Mortgage on the McDonald’s Global HQ Mortgaged Property. References herein to the McDonald’s Global HQ Whole Loan shall be construed to refer to the aggregate indebtedness under the McDonald’s Global HQ Mortgage Loan, the McDonald’s Global HQ Pari Passu Companion Loans and the McDonald’s Global HQ Subordinate Companion Loan.

“Mediation Rules”: As defined in Section 2.03(m)(i).

“Mediation Services Provider”: As defined in Section 2.03(m)(i).

“Merger Notice”: As defined in Section 6.03(b).

“Metro Crossing Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of July 29, 2021, by and between the holders of the respective promissory notes evidencing the Metro Crossing Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Metro Crossing Mortgage Loan”: With respect to the Metro Crossing Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 22 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2.

“Metro Crossing Mortgaged Property”: The Mortgaged Property that secures the Metro Crossing Whole Loan.

“Metro Crossing Pari Passu Companion Loan”: With respect to the Metro Crossing Whole Loan, the Companion Loan evidenced by the related promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the Metro Crossing Mortgaged Property.

“Metro Crossing Whole Loan”: The Metro Crossing Mortgage Loan, together with the Metro Crossing Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Metro Crossing Mortgaged Property. References herein to the Metro Crossing Whole Loan shall be construed to refer to the aggregate indebtedness under the Metro Crossing Mortgage Loan and the Metro Crossing Pari Passu Companion Loan.

 “Modification Fees”: With respect to any Serviced Mortgage Loan or Serviced Whole Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan documents and/or related Serviced Whole Loan documents (as evidenced by a signed writing) agreed to by the applicable

-76- 

Master Servicer or the applicable Special Servicer, as applicable (other than all assumption fees, assumption application fees, consent fees, defeasance fees, Special Servicing Fees, Liquidation Fees or Workout Fees).

“Moody’s”: Moody’s Investors Service, Inc., and its successors in interest. If neither Moody’s nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Mortgage”: With respect to any Mortgage Loan or Companion Loan, the mortgage(s), deed(s) of trust or other instrument(s) securing the related Mortgage Note and creating a first mortgage lien on the fee and/or leasehold interest in the related Mortgaged Property.

“Mortgage File”: With respect to each Mortgage Loan or Companion Loan, if applicable, but subject to Section 2.01, collectively the following documents:

(i)        the original Mortgage Note, endorsed on its face or by allonge to the Mortgage Note, without recourse, to “Pay to the order of Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, without recourse, representation or warranty” or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

(ii)       the original or a copy of the Mortgage, together with an original or copy of any intervening Assignments of Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording (or a copy provided by the applicable recording office if a certified copy cannot be provided by such office, provided that the Custodian is not required to investigate whether the recording office cannot provide a certified copy);

(iii)     an original Assignment of Mortgage in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment of Mortgage, a copy thereof certified to be the copy of such Assignment of Mortgage submitted or to be submitted for recording);

-77- 

(iv)      the original or a copy of any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), with evidence of recording indicated thereon or certified to have been submitted for recording (or a copy provided by the applicable recording office if a certified copy cannot be provided by such office, provided that the Custodian is not required to investigate whether the recording office cannot provide a certified copy);

(v)       an original or copy of each Assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage) in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

(vi)      the original assignment of all unrecorded documents relating to the Mortgage Loan or a Serviced Whole Loan, if not already assigned pursuant to clause (iii) or clause (v) above;

(vii)    originals or copies of all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

(viii)    the original or a copy of the policy or certificate of lender’s title insurance (which may be in electronic form) issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

(ix)       any filed copies (bearing evidence of filing) or evidence of filing of any Uniform Commercial Code financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

(x)        an original Assignment in favor of the Trustee of any financing statement executed and filed in favor of the applicable Mortgage Loan Seller or an affiliate thereof in the relevant jurisdiction (or, if the related Mortgage Loan Seller

-78- 

is responsible for the filing of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

(xi)       the original or a copy of any intercreditor agreement relating to existing debt of the borrower, including any Intercreditor Agreement relating to a Serviced Whole Loan, if applicable;

(xii)      the original or copies of any loan agreement, escrow agreement, security agreement relating to such Mortgage Loan or Serviced Whole Loan, as well as the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which letter of credit shall either (A)(x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, name as beneficiary “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” or (y) in the case of the NCB Mortgage Loans, name as beneficiary “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” or (B) be accompanied by all documentation necessary in order to transfer all rights of the named beneficiary in such letter of credit to the applicable Master Servicer on behalf of the Trustee and to receive, after presentment by the applicable Master Servicer (in accordance with Section 3.01(f)) to the bank issuing such letter of credit, a reissued letter of credit in the name of the applicable Master Servicer on behalf of the Trustee;

(xiii)     the original or a copy of any ground lease, ground lessor estoppel, environmental insurance policy, environmental indemnity or guaranty relating to such Mortgage Loan or Serviced Whole Loan;

(xiv)     other than with respect to the Mortgage Loans secured by residential cooperative properties, the original or a copy of any property management agreement relating to such Mortgage Loan or Serviced Whole Loan;

(xv) the original or a copy of any franchise agreements and comfort letters or similar agreements relating to such Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of such Mortgage Loan or Serviced Whole Loan and/or request for the issuance of a new comfort letter in favor of the Trustee, in each case, as applicable;

(xvi)     the original or a copy of any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

(xvii)    the original or a copy of any related mezzanine intercreditor agreement; and

(xviii)   the original or a copy of all related environmental insurance policies;

-79- 

provided, however, that (a) whenever the term “Mortgage File” is used to refer to documents held by the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually received by the Custodian, (b) if there exists with respect to any Crossed Mortgage Loan Group only one original or certified copy of any document referred to in the definition of “Mortgage File” covering all of the Mortgage Loans in such Crossed Mortgage Loan Group, then the inclusion of such original or certified copy in the Mortgage File for any of the Mortgage Loans constituting such Crossed Mortgage Loan Group shall be deemed the inclusion of such original or certified copy in the Mortgage File for each such Mortgage Loan, (c) to the extent that this Agreement refers to a “Mortgage File” for a Companion Loan, such “Mortgage File” shall be construed to mean the Mortgage File for the related Mortgage Loan (except that references to the Mortgage Note for a Companion Loan otherwise described above shall be construed to instead refer to a photocopy of such Mortgage Note), (d) with respect to any Mortgage Loan that has a Serviced Companion Loan, the execution and/or recordation of any Assignment in the name of the Trustee shall not be construed to limit the beneficial interest of the related Companion Holder(s) in such instrument and the benefits intended to be provided to them by such instrument, it being acknowledged that (I) the Trustee shall hold such record title for the benefit of the Trust as the holder of the related Mortgage Loan and the related Companion Holder(s) collectively and (II) any efforts undertaken by the Trustee, the applicable Master Servicer, or the applicable Special Servicer on its behalf to enforce or obtain the benefits of such instrument shall be construed to be so undertaken by the Trustee, the applicable Master Servicer or the applicable Special Servicer for the benefit of the Trust as the holder of the applicable Mortgage Loan and the related Companion Holder(s) collectively, (e) in connection with any Non-Serviced Mortgage Loan, the preceding document delivery requirements will be met by the delivery by the applicable Mortgage Loan Seller of copies of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan, with respect to which the original shall be required or the requirements of clause (i) of the definition of “Mortgage File” shall otherwise be satisfied) including a copy of the Mortgage securing the applicable Mortgage Loan and any assignments or other transfer documents referred to in clauses (iii), (v), (vi), (vii), (ix) and (x) above as being in favor of the Trustee shall instead be in favor of the applicable Non-Serviced Trustee and need only be in such form as was delivered to the applicable Non-Serviced Trustee or a custodian on its behalf, (f) the documents referred to in clauses (iii), (iv) and (v) above shall not be required for Mortgage Loan Number 5 on the Mortgage Loan Schedule, and (g) so long as the Custodian is also the Non-Serviced Custodian, in connection with any Non-Serviced Mortgage Loan, any and all document delivery requirements with respect to the related Mortgage File (or any portion thereof) set forth herein or in the related Mortgage Loan Purchase Agreement will be satisfied by the delivery, in compliance with the terms of the related Non-Serviced PSA, by the applicable Mortgage Loan Seller of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan or shall otherwise satisfy the requirements of clause (i) of the definition of “Mortgage File”) to the custodian under the related Non-Serviced PSA (in such form as was delivered to the custodian under the related Non-Serviced PSA); provided that (a) the Custodian shall perform its duties under this Agreement (including, without limitation, Article II), and be liable to the other parties hereto, with respect to such Non-Serviced Mortgage Loan as if such documents were required to be delivered and included in the Mortgage File and as if the Non-Serviced Custodian’s receipt of the documents contained in the related “mortgage file” delivered under the related Non-Serviced PSA constituted delivery of those same documents to the Custodian under this

-80- 

Agreement, (b) the Custodian shall not resign as the related Non-Serviced Custodian without giving at least thirty (30) days’ advance written notice of resignation to each other party hereto, and (c) if for any reason the Custodian shall resign as Custodian hereunder or resign as the related Non-Serviced Custodian or shall otherwise no longer act as Custodian hereunder or as the related Non-Serviced Custodian or shall otherwise be required to surrender possession of the related “mortgage file” delivered under the related Non-Serviced PSA (including by reason of the Non-Serviced Companion Loan being removed from the related securitization trust), the Custodian shall include the documents contemplated by clauses (ii) through (xviii) above in the Mortgage File for such Non-Serviced Whole Loan (to the extent such documents were delivered in connection with the related Other Securitization) that shall be maintained by it or any successor custodian hereunder.

Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File (other than with respect to the original Mortgage Note and the other documents referenced in clause (i) of the definition of “Mortgage File” held by or from the related Mortgage Loan Seller) by either of the applicable Mortgage Loan Sellers shall satisfy the delivery requirements for both of the applicable Mortgage Loan Sellers.

“Mortgage Loan”: Each of the mortgage loans (which, for the avoidance of doubt, includes each Crossed Mortgage Loan Group, each of which, for the purposes of this Agreement, shall be treated as one Mortgage Loan, provided that each individual Crossed Underlying Loan within any such Crossed Mortgage Loan Group shall not be included in this definition of Mortgage Loan) transferred and assigned to the Trustee pursuant to Section 2.01 and to be held by the Trust. As used herein, the term “Mortgage Loan” includes the related Mortgage Note, Mortgage and other documents contained in the related Mortgage File and any related agreements. The term “Mortgage Loan” shall, as of any date of determination, include any Qualified Substitute Mortgage Loan that has replaced a Mortgage Loan pursuant to Section 2.03 and exclude any such replaced Mortgage Loan.

“Mortgage Loan Purchase Agreement”: Each agreement between the Depositor and each Mortgage Loan Seller, relating to the transfer of all of such Mortgage Loan Seller’s right, title and interest in and to the related Mortgage Loans.

“Mortgage Loan Schedule”: The list of Mortgage Loans transferred on the Closing Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B, as any such schedule may be amended from time to time in connection with a substitution under Section 2.03 and in accordance with the relevant Mortgage Loan Purchase Agreement, and which list sets forth the following information with respect to each Mortgage Loan so transferred:

(i)        the loan identification number;

(ii)       the name of the related Mortgage Loan Seller;

(iii)      the name of the related Mortgaged Property;

(iv)      the Cut-off Date Balance;

(v)       the street address, city and state of the related Mortgaged Property;

-81- 

(vi)      the date of the related Mortgage Note;

(vii)     the Maturity Date or Anticipated Repayment Date;

(viii)    the Mortgage Rate;

(ix)      the original term to stated maturity or anticipated repayment date;

(x)       the remaining term to stated maturity or anticipated repayment date;

(xi)      the original amortization term;

(xii)     whether the Mortgage Loan is an ARD Loan;

(xiii)    the applicable primary servicing fee rate; and

(xiv)    the applicable Non-Serviced Primary Servicing Fee Rate (if any).

“Mortgage Loan Seller”: Each of (i) Bank of America, National Association, a national banking association, or its successor in interest, (ii) Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company, or its successor in interest, (iii) Wells Fargo Bank, National Association, a national banking association, or its successor in interest, and (iv) National Cooperative Bank, N.A., a national banking association, or its successor in interest.

“Mortgage Loan Seller Percentage Interest”: With respect to a Joint Mortgage Loan and each applicable Mortgage Loan Seller with respect thereto, a fraction, expressed as a percentage, the numerator of which is equal to the aggregate Cut-off Date principal balance of the promissory notes contributed by such Mortgage Loan Seller to this securitization, and the denominator of which is equal to the Cut-off Date principal balance of such Joint Mortgage Loan.

“Mortgage Note”: The original executed promissory note(s) evidencing the indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, as the case may be, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement thereof.

“Mortgage Rate”: With respect to: (i) any Mortgage Loan (including the Non-Serviced Mortgage Loans) or related Companion Loan on or prior to its Maturity Date, the annual rate at which interest is scheduled (in the absence of a default) to accrue on such Mortgage Loan or related Companion Loan from time to time in accordance with the related Mortgage Note and applicable law, without giving effect to any default rate or Revised Rate; or (ii) any Mortgage Loan or related Companion Loan after its Maturity Date, the annual rate described in clause (i) above determined without regard to the passage of such Maturity Date. For the avoidance of doubt, the Mortgage Rate of any ARD Loan shall not be construed to include the related Excess Rate.

“Mortgaged Property”: The real property subject to the lien of a Mortgage.

“Mortgagor”: The obligor or obligors on a Mortgage Note, including without limitation, any Person that has acquired the related Mortgaged Property and assumed the

-82- 

obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

“NCB”: National Cooperative Bank, N.A., a national banking association, or its successor in interest.

“NCB Co-op Mortgage Loan”: Any NCB Mortgage Loan.

“NCB CREFC^® Schedule AL File”: Any CREFC^® Schedule AL File prepared by NCB with respect to the NCB Mortgage Loans.

“NCB Master Servicer”: NCB, and its successors in interest and assigns, or any successor thereto (as NCB Master Servicer) appointed as provided herein.

“NCB Mortgage Loans”: Those Mortgage Loans sold to the Depositor pursuant to the related Mortgage Loan Purchase Agreement by NCB and indicated as an NCB Mortgage Loan on the Mortgage Loan Schedule.

“NCB Schedule AL Additional File”: Any Schedule AL Additional File prepared by NCB with respect to the NCB Mortgage Loans.

“NCB Special Servicer”: NCB, and its successors in interest and assigns, or any successor special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require) (as NCB Special Servicer).

“NCB Subordinate Debt Conditions”: With respect to an NCB Co-op Mortgage Loan and any encumbrance of the related Mortgaged Property with a subordinate mortgage, the following conditions: (i) each of the subordinate mortgage loans, or the sole subordinate mortgage loan, to be secured by such subordinate mortgage is made by NCB or any Affiliate thereof (ii) such subordinate mortgage is expressly made in compliance with the underwriting standards which NCB customarily employs in connection with making subordinate mortgages for its own mortgage loan portfolio, (iii) the aggregate outstanding principal balance of the NCB Co-op Mortgage Loan, any other existing loans secured by a mortgage then encumbering the related Mortgaged Property and the proposed new subordinate mortgage loan shall not exceed 40% of the Appraised Value of the related Mortgaged Property, (iv) NCB or any Affiliate thereof that originates the subordinate mortgage loan, executes and delivers to the Trustee for inclusion in the Mortgage File an intercreditor agreement and subordination agreement with respect to such subordinate mortgage in substantially the form of Exhibit SS hereto or in such other form as shall be acceptable to the NCB Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (other than with respect to an Excluded Loan as to such party) (provided that the Trustee shall have no responsibility for determining the sufficiency or validity thereof), (v) if the subordinate mortgage loan will not be a fully amortizing loan, the stated maturity date of the subordinate mortgage loan shall be no earlier than the maturity date of the related NCB Co-op Mortgage Loan, (vi) the subordinate mortgage loan is made principally for the purpose of

-83- 

funding capital expenditures, major repairs or reserves at or with respect to the Mortgaged Property in question, (vii) NCB or any Affiliate thereof that originates the subordinate mortgage loan receives borrower legal opinions as to authority and enforceability customarily required of borrowers in connection with the origination of similar mortgage loans; and (viii) the aggregate amount of subordinate debt encumbering the Mortgaged Property in question (including the proposed new subordinate mortgage debt and any other existing loans secured by a mortgage then encumbering the related Mortgaged Property, but excluding the Mortgage Loan in question) does not exceed $7,500,000.

“Net Investment Earnings”: With respect to each applicable Collection Account, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount, if any, by which the aggregate of all interest and other income realized during such period on funds relating to the Trust held in such account, exceeds the aggregate of all losses, if any, incurred during such period in connection with the investment of such funds in accordance with Section 3.06.

“Net Investment Loss”: With respect to each applicable Collection Account, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount by which the aggregate of all losses, if any, incurred during such period in connection with the investment of funds relating to the Trust held in such account in accordance with Section 3.06, exceeds the aggregate of all interest and other income realized during such period on such funds.

“Net Mortgage Rate”: With respect to each Mortgage Loan (including a Non-Serviced Mortgage Loan) and any REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of any date of determination, a rate per annum equal to the related Mortgage Rate then in effect (without regard to any increase in the interest rate of any ARD Loan after its respective Anticipated Repayment Date), minus the related Administrative Cost Rate; provided, however, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any Mortgage Loan will be determined without regard to any modification, waiver or amendment of the terms of the related Mortgage Loan, whether agreed to by the applicable Master Servicer, the applicable Special Servicer, a related Non-Serviced Master Servicer or a related Non-Serviced Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the related Mortgagor; provided, further, that for any Mortgage Loan that does not accrue interest on the basis of a 360-day year consisting of twelve (12) 30-day months, then, solely for purposes of calculating Pass-Through Rates and the Weighted Average Net Mortgage Rate, the Net Mortgage Rate of such Mortgage Loan or for any one month period preceding a related Due Date will be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan on the basis of a 360-day year consisting of twelve (12) 30-day months in order to produce the aggregate amount of interest actually accrued in respect of such Mortgage Loan during such one month period at the related Net Mortgage Rate; provided, further, that, with respect to each Actual/360 Mortgage Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates that occur in January and February in any year which is not a leap year or preceding the Due Date that occurs in February in any year which is a leap year (in either case, unless the related Distribution Date is the final Distribution Date), will be determined exclusive of any Withheld Amounts, and (B) preceding the Due Date in March (or February, if the related

-84- 

Distribution Date is the final Distribution Date), will be determined inclusive of the amounts withheld in the immediately preceding January and February, if applicable. With respect to any REO Loan (but excluding any related Companion Loan), the Net Mortgage Rate shall be calculated as described above, determined as if the predecessor Mortgage Loan had remained outstanding.

“Net Operating Income”: With respect to any Mortgaged Property, for any Mortgagor’s fiscal year end, Net Operating Income will be calculated in accordance with the standard definition of “Net Operating Income” approved from time to time endorsed and put forth by the CREFC^®.

“New Lease”: Any lease of REO Property entered into at the direction of the applicable Special Servicer on behalf of the Trust, including any lease renewed, modified or extended on behalf of the Trust, if the Trust has the right to renegotiate the terms of such lease.

“Newport Pavilion Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of August 11, 2021, by and between the holders of the respective promissory notes evidencing the Newport Pavilion Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Newport Pavilion Mortgage Loan”: With respect to the Newport Pavilion Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 16 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2.

“Newport Pavilion Mortgaged Property”: The Mortgaged Property that secures the Newport Pavilion Whole Loan.

“Newport Pavilion Pari Passu Companion Loan”: With respect to the Newport Pavilion Whole Loan, the Companion Loan evidenced by the related promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the Newport Pavilion Mortgaged Property.

“Newport Pavilion Whole Loan”: The Newport Pavilion Mortgage Loan, together with the Newport Pavilion Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Newport Pavilion Mortgaged Property. References herein to the Newport Pavilion Whole Loan shall be construed to refer to the aggregate indebtedness under the Newport Pavilion Mortgage Loan and the Newport Pavilion Pari Passu Companion Loan.

“Non-Book Entry Certificates”: As defined in Section 5.02(c).

“Nonrecoverable Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. For the avoidance of doubt, Workout-Delayed Reimbursement Amounts shall constitute Nonrecoverable Advances only when the Person making such determination in accordance with the procedures specified herein, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from Late Collections, Default Interest, Insurance and Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors), or (b) has

-85- 

determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties.

“Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan) which the Trustee determines in its good faith business judgment or the applicable Master Servicer or the applicable Special Servicer determines in accordance with the Servicing Standard, will not be ultimately recoverable, together with any accrued and unpaid interest thereon at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan or REO Loan (but excluding any related Companion Loan); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer, and with respect to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer and Non-Serviced Special Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be conclusive and binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a P&I Advance would be a Nonrecoverable Advance), provided, however, that such Special Servicer shall have no such obligation to make an affirmative determination that any P&I Advance is or would be recoverable and in the absence of a determination by such Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the applicable Master Servicer or Trustee, as applicable. If a Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the applicable Master Servicer and the Trustee shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance. With respect to any Non-Serviced Whole Loan, if any Non-Serviced Master Servicer, Non-Serviced Trustee or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a principal and interest advance with respect to the related Non-Serviced Companion Loan, if made, would be nonrecoverable, such determination shall not be binding on the applicable Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer and related Non-Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan (unless the related Non-Serviced PSA provides otherwise). In making such recoverability determination, the applicable

-86- 

Master Servicer, the applicable Special Servicer or the Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator and the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and, in the case of a Serviced Mortgage Loan, any Other Servicer). The

-87- 

Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan or the related Mortgaged Property). The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable, and each Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan.

“Nonrecoverable Servicing Advance”: Any Servicing Advance previously made or proposed to be made in respect of a Serviced Mortgage Loan, Serviced Whole Loan or REO Property which the Trustee determines in its reasonable business judgment, or the applicable Master Servicer or applicable Special Servicer determines in accordance with the Servicing Standard, as the case may be, will not be ultimately recoverable, together with any accrued and unpaid interest thereon, at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan, Serviced Whole Loan or REO Property. In making such recoverability determination, such Person will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Servicing Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed

-88- 

Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any Servicing Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable Servicing Advance has been made or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a Servicing Advance would be a Nonrecoverable Advance), provided, however, that the applicable Special Servicer shall have no such obligation to make an affirmative determination that any Servicing Advance is or would be recoverable and in the absence of a determination by the applicable Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the applicable Master Servicer or the Trustee, as applicable. If the applicable Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the applicable Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to residential cooperative

-89- 

properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal with respect to the related Mortgage Loan, Serviced Companion Loan or related Mortgaged Property). The applicable Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making recoverability determinations. The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable, and the applicable Master Servicer shall be entitled to conclusively rely on the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable. Notwithstanding anything herein to the contrary, if the applicable Special Servicer requests that the applicable Master Servicer make a Servicing Advance, such Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing Advance; provided, however, that such Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan. The determination as to the recoverability of any servicing advance or property protection advance previously made or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced Trustee, as the case may be, pursuant to the related Non-Serviced PSA.

“Non-Registered Certificate”: Unless and until registered under the Securities Act, any Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G, Class H, Class V or Class R Certificate or the RR Interest.

“Non-Retained Certificate”: Any Senior Certificate or Subordinate Certificate.

“Non-Retained Percentage”: An amount expressed as a percentage equal to 100% less the Required Credit Risk Retention Percentage. For the avoidance of doubt, at all times, the sum of the Required Credit Risk Retention Percentage and the Non-Retained Percentage shall equal 100%.

“Non-Serviced Certificate Administrator”: The “Certificate Administrator” under a Non-Serviced PSA.

“Non-Serviced Companion Loan”: Each of (i) the Pari Passu Companion Loans and Subordinate Companion Loans, if any, identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Pari Passu Companion Loans and Subordinate Companion Loan, if any, identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

-90- 

“Non-Serviced Custodian”: With respect to each Non-Serviced Whole Loan, the “Custodian” under the related Non-Serviced PSA.

“Non-Serviced Depositor”: The “Depositor” under a Non-Serviced PSA.

“Non-Serviced Gain-on-Sale Proceeds”: Any “gain-on-sale proceeds” received in respect of a Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA.

“Non-Serviced Indemnified Parties”: As defined in Section 6.04(i).

“Non-Serviced Intercreditor Agreement”: Each Intercreditor Agreement related to a Non-Serviced Whole Loan.

“Non-Serviced Master Servicer”: The “Master Servicer” or “Servicer” under a Non-Serviced PSA.

“Non-Serviced Mortgage Loan”: Each of (i) the Mortgage Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Mortgage Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

“Non-Serviced Mortgaged Property”: With respect to each Non-Serviced Mortgage Loan, Non-Serviced Companion Loan and Non-Serviced Whole Loan, the related Mortgaged Property that secures such Non-Serviced Mortgage Loan, Non-Serviced Companion Loan and Non-Serviced Whole Loan.

“Non-Serviced Operating Advisor”: The “Operating Advisor” (or analogous term) (if any) under a Non-Serviced PSA.

“Non-Serviced Pari Passu Companion Loan”: Each of (i) the Pari Passu Companion Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Pari Passu Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

“Non-Serviced Paying Agent”: The “Paying Agent” (or analogous term) under a Non-Serviced PSA.

“Non-Serviced Primary Servicing Fee”: With respect to each Non-Serviced Mortgage Loan, the fee payable to the Non-Serviced Master Servicer pursuant to the related Non-Serviced PSA.

“Non-Serviced Primary Servicing Fee Rate”: With respect to (i) the Newport Pavilion Mortgage Loan, 0.00500% per annum, (ii) the Metro Crossing Mortgage Loan, 0.00250% per annum, (iii) the McDonald’s Global HQ Mortgage Loan, 0.00250% per annum, (iv) the Velocity Industrial Portfolio Mortgage Loan, 0.00250% per annum and (v) any Servicing Shift Mortgage Loan, on and after the related Servicing Shift Securitization Date, 0.00250% per annum.

-91- 

“Non-Serviced PSA”: With respect to (i) the Raymour & Flanigan Campus Whole Loan, on and after the related Servicing Shift Securitization Date, the Raymour & Flanigan Campus Pooling and Servicing Agreement, (ii) the Newport Pavilion Whole Loan, the BANK 2021-BNK35 Pooling and Servicing Agreement, (iii) the Metro Crossing Whole Loan and the Velocity Industrial Portfolio Whole Loan, the WFCM 2021-C60 Pooling and Servicing Agreement and (iv) the McDonald’s Global HQ Whole Loan, the BANK 2020-BNK30 Pooling and Servicing Agreement.

“Non-Serviced Special Servicer”: The applicable “Special Servicer” of a Non-Serviced Whole Loan under a Non-Serviced PSA.

“Non-Serviced Trust”: The “Trust” formed under a Non-Serviced PSA.

“Non-Serviced Trustee”: The “Trustee” under a Non-Serviced PSA.

“Non-Serviced Whole Loan”: Each of (i) the Whole Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

“Non-Serviced Whole Loan Controlling Holder”: The “directing holder” or similarly defined party under a Non-Serviced PSA.

“Non-Specially Serviced Loan”: Any Serviced Mortgage Loan or Serviced Companion Loan that is not a Specially Serviced Loan.

“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.03(f).

“Non-U.S. Tax Person”: Any person other than a U.S. Tax Person.

“Non-Waiving Successor”: As defined in Section 3.23(l).

“Notional Amount”: With respect to each of the following Classes of Certificates or Upper-Tier Regular Interests, the amount set forth next to it in the table below:

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Notional Amount
Class A-4-X1 Certificates	Class A-4-X1 Notional Amount
Class A-4-X2 Certificates	Class A-4-X2 Notional Amount
Class A-4-X1 Upper-Tier Regular Interest	Class A-4-X1 UT Notional Amount
Class A-4-X2 Upper-Tier Regular Interest	Class A-4-X2 UT Notional Amount
Class A-5-X1 Certificates	Class A-5-X1 Notional Amount
Class A-5-X2 Certificates	Class A-5-X2 Notional Amount
Class A-5-X1 Upper-Tier Regular Interest	Class A-5-X1 UT Notional Amount
Class A-5-X2 Upper-Tier Regular Interest	Class A-5-X2 UT Notional Amount
Class X-A Certificates	Class X-A Notional Amount
Class X-B Certificates	Class X-B Notional Amount
Class X-D Certificates	Class X-D Notional Amount

-92- 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Notional Amount
Class X-F Certificates	Class X-F Notional Amount
Class X-G Certificates	Class X-G Notional Amount
Class X-H Certificates	Class X-H Notional Amount
Class A-S-X1 Certificates	Class A-S-X1 Notional Amount
Class A-S-X2 Certificates	Class A-S-X2 Notional Amount
Class A-S-X1 Upper-Tier Regular Interest	Class A-S-X1 UT Notional Amount
Class A-S-X2 Upper-Tier Regular Interest	Class A-S-X2 UT Notional Amount
Class B-X1 Certificates	Class B-X1 Notional Amount
Class B-X2 Certificates	Class B-X2 Notional Amount
Class B-X1 Upper-Tier Regular Interest	Class B-X1 UT Notional Amount
Class B-X2 Upper-Tier Regular Interest	Class B-X2 UT Notional Amount
Class C-X1 Certificates	Class C-X1 Notional Amount
Class C-X2 Certificates	Class C-X2 Notional Amount
Class C-X1 Upper-Tier Regular Interest	Class C-X1 UT Notional Amount
Class C-X2 Upper-Tier Regular Interest	Class C-X2 UT Notional Amount

“NRSRO”: Any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act, including the Rating Agencies.

“NRSRO Certification”: A certification (a) substantially in the form of Exhibit P-2 executed by a NRSRO or (b) provided electronically and executed by such NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website, in either case in favor of the 17g-5 Information Provider that states that such NRSRO is a Rating Agency under this Agreement or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, that such NRSRO has access to the Depositor’s 17g-5 website and that such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public. Each NRSRO shall be deemed to recertify to the foregoing each time it accesses the Certificate Administrator’s Website.

“OCC”: Office of the Comptroller of the Currency.

“Officer’s Certificate”: A certificate signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer or any Additional Servicer, as the case may be, or a Responsible Officer of the Trustee or Certificate Administrator, as the case may be.

“Offshore Transaction”: Any “offshore transaction” as defined in Rule 902(h) of Regulation S.

“One North Wacker Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the One North Wacker Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

-93- 

“One North Wacker Mortgage Loan”: With respect to the One North Wacker Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-1 and A-7.

“One North Wacker Mortgaged Property”: The Mortgaged Property that secures the One North Wacker Whole Loan.

“One North Wacker Pari Passu Companion Loans”: With respect to the One North Wacker Whole Loan, the Companion Loans evidenced by the related promissory notes A-2, A-3, A-4, A-5, A-6 and A-7 and made by the related Mortgagor and secured by the Mortgage on the One North Wacker Mortgaged Property.

“One North Wacker Whole Loan”: The One North Wacker Mortgage Loan, together with the One North Wacker Pari Passu Companion Loans, each of which is secured by the same Mortgage on the One North Wacker Mortgaged Property. References herein to the One North Wacker Whole Loan shall be construed to refer to the aggregate indebtedness under the One North Wacker Mortgage Loan and the One North Wacker Pari Passu Companion Loans.

“Operating Advisor”: Pentalpha Surveillance LLC, a Delaware limited liability company, and its successors-in-interest and assigns, or any successor operating advisor appointed as herein provided.

“Operating Advisor Annual Report”: As defined in Section 3.26(c)(i).

“Operating Advisor Consulting Fee”: A fee for each Major Decision on which the Operating Advisor has consulting obligations and performed its duties with respect to such Major Decision equal to $10,000 (or such lesser amount as the related Mortgagor actually pays) with respect to any Serviced Mortgage Loan (other than any Servicing Shift Mortgage Loan), payable pursuant to Section 3.05 of this Agreement; provided, however, that no such fee shall be payable unless specifically paid by the related Mortgagor as a separately identifiable fee; provided, further, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision; provided, further, however, that to the extent such fee is incurred after the outstanding Certificate Balances of the Control Eligible Certificates and the corresponding portion of the RR Interest have been reduced to zero as a result of the allocation of Realized Losses to such Certificates, such fee shall be payable in full to the Operating Advisor as an expense of the Trust; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the applicable Master Servicer or the applicable Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction).

“Operating Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or additional trust fund expenses payable to the Operating Advisor pursuant to this Agreement (other than the Operating Advisor Fee and the Operating Advisor Consulting Fee).

-94- 

“Operating Advisor Fee”: With respect to each Mortgage Loan and REO Loan (but excluding any related Companion Loan), the fee payable to the Operating Advisor pursuant to Section 3.26(i).

“Operating Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of 0.00110%.

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders and, with respect to any Serviced Whole Loan for the benefit of the holders of the related Companion Loan (as a collective whole as if such Certificateholders and Companion Holders constituted a single lender), and not to any particular Class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with any of the underlying Mortgagors, any Sponsor, any Mortgage Loan Seller, the Depositor, each Master Servicer, each Special Servicer, the Asset Representations Reviewer, the Directing Certificateholder, any Certificateholders, the Risk Retention Consultation Party or any of their Affiliates.

“Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

(a)       any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the Holders of Certificates (other than the RR Interest) having greater than 25% of the aggregate Voting Rights, provided that any such failure which is not curable within such thirty (30) day period, the Operating Advisor will have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

(b)       any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

(c)       any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

-95- 

(d)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the operating advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

(e)       the Operating Advisor consents to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the operating advisor or of or relating to all or substantially all of its property; or

(f)        the Operating Advisor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations.

“Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, acceptable in form and delivered to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) the qualification of any Trust REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c) the qualification of the Grantor Trust as a grantor trust, or (d) the resignation of any Master Servicer, any Special Servicer or the Depositor pursuant to Section 6.05, must be an opinion of counsel who is in fact Independent of the Depositor, such Master Servicer, such Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

“Original Certificate Balance”: As defined in the Preliminary Statement.

“Original Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interest, the initial principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement.

“Original Notional Amount”: As defined in the Preliminary Statement.

“Other Asset Representations Reviewer”: Any asset representations reviewer under an Other Pooling and Servicing Agreement.

“Other Certificate Administrator”: Any certificate administrator under an Other Pooling and Servicing Agreement.

“Other Depositor”: Any depositor under an Other Pooling and Servicing Agreement.

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the Other Servicer, Other

-96- 

Trustee, Other Certificate Administrator or Other Depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D, Form ABS-EE and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

“Other Pooling and Servicing Agreement”: Any trust and servicing agreement or pooling and servicing agreement that creates a trust whose assets include any Serviced Companion Loan.

“Other Securitization”: As defined in Section 11.06.

“Other Servicer”: Any master servicer or special servicer, as applicable, under an Other Pooling and Servicing Agreement.

“Other Trustee”: Any trustee under an Other Pooling and Servicing Agreement.

“Ownership Interest”: As to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

“P&I Advance”: As to any Mortgage Loan or REO Loan (but not any related Companion Loan), any advance made by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

“P&I Advance Date”: The Business Day immediately prior to each Distribution Date.

“P&I Advance Determination Date”: With respect to any Distribution Date, the close of business on the related Determination Date.

“Pari Passu Companion Loans”: Collectively, the Serviced Pari Passu Companion Loans and the Non-Serviced Pari Passu Companion Loans.

“Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan.

“Pass-Through Rate”: With respect to each Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest, the rate set forth next to it in the table below:

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Pass-Through Rate
Class A-1 Certificates	Class A-1 Pass-Through Rate
Class A-2 Certificates	Class A-2 Pass-Through Rate
Class A-3 Certificates	Class A-3 Pass-Through Rate

-97- 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Pass-Through Rate
Class A-SB Certificates	Class A-SB Pass-Through Rate
Class A-4 Certificates	Class A-4 Pass-Through Rate
Class A-4-1 Certificates	Class A-4-1 Pass-Through Rate
Class A-4-2 Certificates	Class A-4-2 Pass-Through Rate
Class A-4-X1 Certificates	Class A-4-X1 Pass-Through Rate
Class A-4-X2 Certificates	Class A-4-X2 Pass-Through Rate
Class A-4 Upper-Tier Regular Interest	Class A-4 UT Pass-Through Rate
Class A-4-X1 Upper-Tier Regular Interest	Class A-4-X1 UT Pass-Through Rate
Class A-4-X2 Upper-Tier Regular Interest	Class A-4-X2 UT Pass-Through Rate
Class A-5 Certificates	Class A-5 Pass-Through Rate
Class A-5-1 Certificates	Class A-5-1 Pass-Through Rate
Class A-5-2 Certificates	Class A-5-2 Pass-Through Rate
Class A-5-X1 Certificates	Class A-5-X1 Pass-Through Rate
Class A-5-X2 Certificates	Class A-5-X2 Pass-Through Rate
Class A-5 Upper-Tier Regular Interest	Class A-5 UT Pass-Through Rate
Class A-5-X1 Upper-Tier Regular Interest	Class A-5-X1 UT Pass-Through Rate
Class A-5-X2 Upper-Tier Regular Interest	Class A-5-X2 UT Pass-Through Rate
Class X-A Certificates	Class X-A Pass-Through Rate
Class X-B Certificates	Class X-B Pass-Through Rate
Class X-D Certificates	Class X-D Pass-Through Rate
Class X-F Certificates	Class X-F Pass-Through Rate
Class X-G Certificates	Class X-G Pass-Through Rate
Class X-H Certificates	Class X-H Pass-Through Rate
Class A-S Certificates	Class A-S Pass-Through Rate
Class A-S-1 Certificates	Class A-S-1 Pass-Through Rate
Class A-S-2 Certificates	Class A-S-2 Pass-Through Rate
Class A-S-X1 Certificates	Class A-S-X1 Pass-Through Rate
Class A-S-X2 Certificates	Class A-S-X2 Pass-Through Rate
Class A-S Upper-Tier Regular Interest	Class A-S UT Pass-Through Rate
Class A-S-X1 Upper-Tier Regular Interest	Class A-S-X1 UT Pass-Through Rate
Class A-S-X2 Upper-Tier Regular Interest	Class A-S-X2 UT Pass-Through Rate
Class B Certificates	Class B Pass-Through Rate
Class B-1 Certificates	Class B-1 Pass-Through Rate
Class B-2 Certificates	Class B-2 Pass-Through Rate
Class B-X1 Certificates	Class B-X1 Pass-Through Rate
Class B-X2 Certificates	Class B-X2 Pass-Through Rate
Class B Upper-Tier Regular Interest	Class B UT Pass-Through Rate
Class B-X1 Upper-Tier Regular Interest	Class B-X1 UT Pass-Through Rate
Class B-X2 Upper-Tier Regular Interest	Class B-X2 UT Pass-Through Rate
Class C Certificates	Class C Pass-Through Rate
Class C-1 Certificates	Class C-1 Pass-Through Rate
Class C-2 Certificates	Class C-2 Pass-Through Rate
Class C-X1 Certificates	Class C-X1 Pass-Through Rate
Class C-X2 Certificates	Class C-X2 Pass-Through Rate
Class C Upper-Tier Regular Interest	Class C UT Pass-Through Rate
Class C-X1 Upper-Tier Regular Interest	Class C-X1 UT Pass-Through Rate
Class C-X2 Upper-Tier Regular Interest	Class C-X2 UT Pass-Through Rate

-98- 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest	Pass-Through Rate
Class D Certificates	Class D Pass-Through Rate
Class E Certificates	Class E Pass-Through Rate
Class F Certificates	Class F Pass-Through Rate
Class G Certificates	Class G Pass-Through Rate
Class H Certificates	Class H Pass-Through Rate

“Payment Accommodation”: For any Mortgage Loan or Serviced Whole Loan, the entering into of any temporary forbearance agreement as a result of the COVID-19 emergency (and qualification as a COVID-19 emergency forbearance shall be determined by the Special Servicer in its sole and absolute discretion in accordance with the Servicing Standard) relating to payment obligations or operating covenants under the related Mortgage Loan documents or the use of funds on deposit in any reserve account or escrow account for any purpose other than the explicit purpose described in the related Mortgage Loan documents, that in each case (i) is entered into by September 30, 2021, (ii) defers no greater than three (3) monthly debt service payments (but no greater than nine (9) monthly debt service payments in the aggregate with any other Payment Accommodations) and (iii) requires full repayment of deferred payments, reserves and escrows by the date that is twelve (12) months following the date of the first Payment Accommodation for such Mortgage Loan or Serviced Whole Loan. For the avoidance of doubt, a Payment Accommodation shall only be entered into by the applicable Special Servicer on behalf of the Trust in its sole and absolute discretion in accordance with the Servicing Standard and the Master Servicer shall have no processing, consent or other rights with respect thereto. No Payment Accommodation shall be granted if the Mortgage Loan or Serviced Whole Loan is in default with respect to any loan provision other than the provision(s) subject to the forbearance request.

“PCAOB”: The Public Company Accounting Oversight Board.

“Penalty Charges”: With respect to any Serviced Mortgage Loan or Serviced Companion Loan (or any successor REO Loan), any amounts actually collected thereon (or, in the case of a Serviced Companion Loan (or any successor REO Loan thereto) that is part of a Serviced Whole Loan, actually collected on such Serviced Whole Loan, and allocated and paid on such Serviced Companion Loan (or any successor REO Loan), as applicable, in accordance with the related Intercreditor Agreement) that represent late payment charges or Default Interest, other than a Prepayment Premium, a Yield Maintenance Charge or any Excess Interest.

“Percentage Interest”: As to any Certificate (other than the Class R and Class V Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (other than the Class R and Class V Certificates), the percentage interest is equal to the Denomination as of the Closing Date of such Certificate (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) divided by the Original Certificate Balance or Original Notional Amount, as applicable, of such Class of Certificates as of the Closing Date (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate). With respect to a Class R or a Class V Certificate, the Percentage Interest is set forth on the face thereof.

-99- 

“Performance Certification”: As defined in Section 11.06.

“Performing Party”: As defined in Section 11.12.

“Periodic Payment”: With respect to any Mortgage Loan or any related Companion Loan, the scheduled monthly payment of principal and/or interest (other than Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable (as the terms of the applicable Mortgage Loan or Companion Loan may be changed or modified in connection with a bankruptcy or similar proceedings involving the related Mortgagor or by reason of a modification, extension, waiver or amendment granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to time under the related Mortgage Note and applicable law, without regard to any acceleration of principal of such Mortgage Loan or Companion Loan by reason of default thereunder and without regard to any Excess Interest.

“Permitted Investments”: Any one or more of the following obligations or securities (including obligations or securities of the Certificate Administrator, or managed by the Certificate Administrator or any Affiliate of the Certificate Administrator, if otherwise qualifying hereunder), regardless of whether issued by the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, or any of their respective Affiliates and having the required ratings, if any, provided for in this definition and which shall not be subject to liquidation prior to maturity:

(i)           direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, any agency or instrumentality of the United States of America, shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Certificate (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that are then rated by such Rating Agency, such class of securities) as evidenced in writing other than (a) unsecured senior debt obligations of the U.S. Treasury (direct or fully funded obligations), U.S. Department of Housing and Urban Development public housing agency bonds, Federal Housing Administration debentures, Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, RefCorp debt obligations and SBA-guaranteed participation certificates and guaranteed pool certificates and (b) Farm Credit System consolidated systemwide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations rated at least “A-1” by S&P, if such obligations mature in sixty (60) days or less, or rated at least “AA-”, “A-1+” or “AAAm” by S&P, if such obligations mature in 365 days or less;

(ii)          time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in one (1) year or less after the date of issuance and are

-100-

issued or held by any depository institution or trust company (including the Trustee) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable S&P Permitted Investment Rating; or, in each case, such other rating as would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Class of Certificates (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that is then rated by such rating agency, such class of securities) as evidenced in writing;

(iii)         repurchase agreements or obligations with respect to any security described in clause (i) above where such security has a remaining maturity of one year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) described in clause (ii) above;

(iv)        debt obligations bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which mature in one (1) year or less from the date of acquisition that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable S&P Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency in addition to a Rating Agency Confirmation from each Rating Agency not rating such debt obligations); provided, however, that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then outstanding principal amount of securities issued by such corporation and held in the accounts established hereunder to exceed 10% of the sum of the aggregate principal balance and the aggregate principal amount of all Permitted Investments in such accounts;

(v)         commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable S&P Permitted Investment Rating (or such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency relating to the Certificates and any Serviced Companion Loan Securities in addition to a Rating Agency Confirmation from each Rating Agency not rating such commercial paper);

(vi)        money market funds (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep, the Wells Fargo Money Market Funds or the Wells Fargo Advantage Government Money Market Fund), which seek to maintain a constant net asset value per share, so long as any

-101-

such fund is rated “AAAm” by S&P and in the highest short term unsecured debt ratings category by each of Fitch and KBRA (or, if not rated by KBRA, an equivalent rating (or higher) by at least two (2) NRSROs (which must include S&P and may include any of the other Rating Agencies) or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a Rating Agency Confirmation in addition to a Rating Agency Confirmation from each Rating Agency not rating such money market funds) relating to the Certificates and any Serviced Companion Loan Securities;

(vii)       any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, obligation, security or investment and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); and

(viii)     any other demand, money market or time deposit, obligation, security or investment not listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency;

provided, however, that with respect to any Permitted Investment for which a rating by S&P is required as set forth above, such rating must be an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators, such as the “(sf)” subscript, and unsolicited ratings; provided, further, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index, (c) any such investment must not be subject to liquidation prior to maturity, and (d) any such investment must not be purchased at a premium over par; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations or (b) if such instrument may be redeemed at a price below the purchase price; and provided, further, however, that no amount beneficially owned by any Trust REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the applicable Master Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of any Trust REMIC. Permitted Investments may not be interest-only securities. All investments shall mature or be

-102-

redeemable upon the option of the holder thereof on or prior to the Business Day preceding the day before the date such amounts are required to be applied hereunder.

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, title insurance (or title agency fees) and/or other fees, insurance commissions or fees received or retained by the applicable Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Mortgage Loan and Serviced Companion Loan (including any related REO Property) in accordance with this Agreement.

“Permitted Transferee”: Any Person or any agent thereof other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an Ownership Interest in any Class R Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S. Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.

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

“Plan”: As defined in Section 5.03(n).

“Plan Fiduciary”: As defined in Section 5.03(r).

“Pre-Close Information”: As defined in Section 3.13(c).

“Preliminary Dispute Resolution Election Notice”: As defined in Section 2.03(l)(i).

“Prepayment Assumption”: A “constant prepayment rate” of 0% used for determining the accrual of original issue discount and market discount, if any, and the amortization premium, if any, on the Certificates for federal income tax purposes; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.

“Prepayment Interest Excess”: For any Distribution Date and with respect to any Serviced Mortgage Loan or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Due Date and prior to the following Determination Date, the amount of interest (net of the related Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest), to the extent collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any

-103-

such Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment from such Due Date to, but not including, the date of such prepayment (or any later date through which interest accrues). Prepayment Interest Excesses (to the extent not offset by Prepayment Interest Shortfalls or required to be paid as Compensating Interest Payments) collected on the Serviced Mortgage Loans and any Serviced Companion Loan, will be retained by the applicable Master Servicer as additional servicing compensation.

“Prepayment Interest Shortfall”: For any Distribution Date and with respect to any Serviced Mortgage Loan or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Determination Date (or, with respect to each such Mortgage Loan or Serviced Whole Loan, as applicable, with a Due Date occurring after the related Determination Date, the related Due Date) and prior to the following Due Date, the amount of interest (net of the related Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest), to the extent not collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees, Non-Serviced Primary Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment during the period commencing on the date as of which such Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, and ending on such following Due Date. With respect to any Serviced AB Whole Loan, any Prepayment Interest Shortfall for any Distribution Date shall be allocated first to the related AB Subordinate Companion Loan, and then to the related Mortgage Loan and any related Serviced Pari Passu Companion Loan, on a pro rata basis.

“Prepayment Premium”: With respect to any Mortgage Loan, any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, that Mortgage Loan or any successor REO Loan (but excluding any related Companion Loan) with respect thereto (including any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject Mortgagor if and as set forth in the related Intercreditor Agreement).

“Primary Collateral”: With respect to any Crossed Underlying Loan, that portion of the Mortgaged Property designated as directly securing such Crossed Underlying Loan and excluding any Mortgaged Property as to which the related lien may only be foreclosed upon by exercise of the cross-collateralization provisions of such Crossed Underlying Loan.

“Primary Servicing Fee”: The monthly fee payable by the applicable Master Servicer solely from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues at

-104-

the rate per annum specified as such in the Sub-Servicing Agreement with such Initial Sub-Servicer.

“Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of the New York City edition of The Wall Street Journal (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time.

“Principal Balance Certificates”: Each of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates, the Exchangeable P&I Certificates and the RR Interest.

“Principal Distribution Amount”: With respect to any Distribution Date and the Principal Balance Certificates (other than the RR Interest), an amount equal to the sum of (a) the Principal Shortfall for such Distribution Date and (b) the Non-Retained Percentage of the Aggregate Principal Distribution Amount for such Distribution Date.

“Principal Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan or Serviced Whole Loan that is received in advance of its scheduled Due Date as a result of such prepayment.

“Principal Shortfall”: For any Distribution Date after the initial Distribution Date with respect to the Mortgage Loans, the amount, if any, by which (a) the related Principal Distribution Amount for the preceding Distribution Date, exceeds (b) the aggregate amount actually distributed on the preceding Distribution Date in respect of such Principal Distribution Amount. The Principal Shortfall for the initial Distribution Date will be zero.

“Privileged Communications”: Any correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer referred to in clause (i) of the definition of “Privileged Information”.

“Privileged Information”: Any (i) correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer related to any Specially Serviced Loan (other than with respect to any Excluded Loan as to such party) or the exercise of the Directing Certificateholder’s consent or consultation rights or the Risk Retention Consultation Party’s consultation rights under this Agreement, (ii) strategically sensitive information that the applicable Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, (iii) information subject to attorney-client privilege and (iv) any Asset Status Report or Final Asset Status Report. Each Master Servicer, each Special Servicer, the Operating Advisor and the Asset Representations Reviewer shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such

-105-

Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is (in the case of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee, as evidenced by an Officer’s Certificate (which, in the case of the Master Servicer or the Special Servicer, shall be from a Servicing Officer and, in the case of the Trustee or the Certificate Administrator, shall be from a Responsible Officer) certifying that such party has determined that it is required by law, rule, regulation, order, judgment or decree to disclose such information and delivered to each of the Master Servicer, the Special Servicer, the Directing Certificateholder, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator and the Trustee) required by law, rule, regulation, order, judgment or decree to disclose such information.

“Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Underwriters, the Mortgage Loan Sellers, each Master Servicer, each Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by a Master Servicer or a Special Servicer, the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Companion Holder who provides an Investor Certification, any Non-Serviced Master Servicer, any master servicer under an Other Pooling and Servicing Agreement, any Person (including the Directing Certificateholder or Risk Retention Consultation Party) who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with an NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided, however, that in no event may a Borrower Party (other than a Borrower Party that is the Risk Retention Consultation Party or a Special Servicer) be entitled to receive (i) if such party is the Directing Certificateholder or any Controlling Class Certificateholder, any Excluded Information via the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)), and (ii) if such party is not the Directing Certificateholder or any Controlling Class Certificateholder, any information other than the Distribution Date Statement. In determining whether any Person is an Additional Servicer or an Affiliate of the Operating Advisor, the Certificate Administrator may rely on direction by any Master Servicer, any Special Servicer, any Mortgage Loan Seller or the Operating Advisor, as the case may be.

Notwithstanding anything to the contrary in this Agreement, if a Special Servicer obtains knowledge that it has become a Borrower Party, such Special Servicer shall nevertheless be a Privileged Person; provided that such Special Servicer (i) shall not directly or indirectly provide any information related to the related Excluded Special Servicer Loan to (A) the related Borrower Party, (B) any of such Special Servicer’s employees or personnel or any of its Affiliate involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party and (ii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above; provided, further, that nothing in this Agreement shall be construed as an

-106-

obligation of any Master Servicer or the Certificate Administrator to restrict access by a Special Servicer or any Excluded Special Servicer to any information related to any Excluded Special Servicer Loan and in no case shall any Master Servicer or the Certificate Administrator be held liable if a Special Servicer accesses any Excluded Special Servicer Information relating to the Excluded Special Servicer Loan; provided, further, that (a) the applicable Master Servicer shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan and (b) the Certificate Administrator shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan; and provided, further, however, that any Excluded Controlling Class Holder shall be permitted to reasonably request and to obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information).

“Prohibited Party”: Any proposed Servicing Function Participant that is listed on the Depositor’s Do Not Hire List.

“Prohibited Prepayment”: As defined in the definition of Compensating Interest Payments.

“Proposed Course of Action”: As defined in Section 2.03(l)(i).

“Proposed Course of Action Notice”: As defined in Section 2.03(l)(i).

“Prospectus”: The Prospectus, dated September 27, 2021, relating to the Registered Certificates.

“PSA Party Repurchase Request”: As defined in Section 2.03(k)(ii).

“PTCE”: Prohibited Transaction Class Exemption.

“Purchase Price”: With respect to any Mortgage Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 5 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.16, or (C) Section 9.01, a price, without duplication, equal to:

(i)           the outstanding principal balance of such Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) as of the date of purchase; plus

(ii)          all accrued and unpaid interest on the Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), at the related Mortgage Rate in effect from time to time (excluding any portion of such interest that represents

-107-

Default Interest or Excess Interest on any ARD Loan), to, but not including, the Due Date therefor immediately preceding or coinciding with the Determination Date for the Collection Period of purchase; plus

(iii)         all related unreimbursed Servicing Advances plus accrued and unpaid interest on all related Advances at the Reimbursement Rate, Special Servicing Fees (whether paid or unpaid) and any other additional trust fund expenses (except for Liquidation Fees) in respect of such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), if any; plus

(iv)         if such Mortgage Loan (or related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Certificate Administrator or the Trustee in respect of the omission, breach or defect giving rise to the repurchase or substitution obligation, including any expenses arising out of the enforcement of the repurchase or substitution obligation, including, without limitation, legal fees and expenses and any additional trust fund expenses relating to such Mortgage Loan (or related REO Loan); provided, however, that such out-of-pocket expenses shall not include expenses incurred by Certificateholders or Certificate Owners in instituting an Asset Review Vote Election, in taking part in an Asset Review vote or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(l);

(v)          Liquidation Fees, if any, payable with respect to such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) (which will not include any Liquidation Fees if such repurchase occurs or a Loss of Value Payment is received during the Initial Cure Period or, if applicable, prior to the expiration of the Extended Cure Period); plus

(vi)         solely in the case of a repurchase or substitution by the related Mortgage Loan Seller, any Asset Representations Reviewer Asset Review Fee for such Mortgage Loan, to the extent not previously paid by the related Mortgage Loan Seller.

Solely with respect to any Serviced Whole Loan to be sold pursuant to Section 3.16(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan, as applicable. With respect to any REO Property to be sold pursuant to Section 3.16(b), “Purchase Price” shall mean the amount calculated in accordance with the second preceding sentence in respect of the related REO Loan (including any related Companion Loan). With respect to any sale pursuant to Section 3.16(a)(ii) or Section 3.16(e) or for purposes of calculating any Gain-on-Sale Proceeds, the “Purchase Price” shall be allocated between the related Mortgage Loan and Companion Loan, as applicable, in

-108-

accordance with, and shall be equal to the amount provided pursuant to, the provisions of the related Intercreditor Agreement. With respect to any Joint Mortgage Loan, the Purchase Price that would be payable by each of the applicable Mortgage Loan Sellers for its related Mortgage Note shall be its respective Mortgage Loan Seller Percentage Interest as of the Closing Date of the total Purchase Price for such Mortgage Loan. Notwithstanding the foregoing, with respect to any repurchase pursuant to sub-clause (A) and sub-clause (C) hereof, the “Purchase Price” shall not include any amounts payable in respect of any related Companion Loan.

“Qualified Institutional Buyer”: A “qualified institutional buyer” as defined in Rule 144A under the Act.

“Qualified Insurer”: (i) With respect to any Mortgage Loan, REO Loan or REO Property, an insurance company or security or bonding company qualified to write the related Insurance Policy in the relevant jurisdiction with an insurance financial strength rating of at least: (a) “A-” by S&P (or, if not rated by S&P, at least an equivalent rating by one NRSRO (which may include Fitch or KBRA)) and (b) “A” by Fitch (or, if not rated by Fitch, at least an equivalent rating by one other NRSRO (which may include S&P or KBRA)), and (ii) with respect to the fidelity bond and errors and omissions insurance policy required to be maintained pursuant to Section 3.07(c), except as otherwise permitted by Section 3.07(c), an insurance company that has a claims paying ability (or the obligations which are guaranteed or backed by a company having such claims paying ability) rated by at least one (1) of the following rating agencies of at least (a) “A3” by Moody’s, (b) “A-” by S&P, (c) “A-” by Fitch, (d) “A-:X” by A.M. Best Company, Inc., or (e) “A(low)” by DBRS Morningstar, or, in the case of clauses (i) or (ii), any other insurer acceptable to the Rating Agencies, as evidenced by a Rating Agency Confirmation and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

“Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the applicable Special Servicer contained in this Agreement, (ii) is not the Operating Advisor, the Asset Representations Reviewer or an Affiliate of the Operating Advisor or the Asset Representations Reviewer, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, (vi) currently has a special servicer rating of at least “CSS3” from Fitch, (vii) is listed on S&P’s Select Servicer List as a “U.S. Commercial Mortgage Special Servicer”, and (viii) is currently acting as a special servicer in a transaction rated by KBRA and has not been publicly cited by KBRA as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in

-109-

contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

“Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution will be permitted) replacing a removed Mortgage Loan that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the removed Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a fixed Mortgage Rate not less than the Mortgage Rate of the removed Mortgage Loan, determined without regard to any prior modification, waiver or amendment of the terms of the removed Mortgage Loan; (iii) have the same Due Date as and Grace Period no longer than that of the removed Mortgage Loan; (iv) accrue interest on the same basis as the removed Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve (12) 30-day months); (v) have a remaining term to stated maturity not greater than, and not more than five (5) years less than, the remaining term to stated maturity of the removed Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of the loan-to-value ratio for the removed Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal to (A) with respect to any Mortgage Loan other than an NCB Co-op Mortgage Loan, the greater of (i) the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date and (ii) 1.25x; or (B) in the case of an NCB Co-op Mortgage Loan, the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date; (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date five (5) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the removed Mortgage Loan; (xiii) not be substituted for a removed Mortgage Loan unless the Trustee and the Certificate Administrator have received Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved, so long as a Control Termination Event has not occurred and is not continuing and the affected Mortgage Loan is not an Excluded Loan with respect to either the Directing Certificateholder or the Holder of the majority of the Controlling Class, by the Directing Certificateholder; (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a removed Mortgage Loan if it would result in an Adverse REMIC Event other than the imposition of a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel at the cost of the related Mortgage Loan Seller; (xvii) have an engineering report that indicates no material adverse property condition or deferred maintenance with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. In the event that more than one mortgage loan is substituted for a removed Mortgage Loan, then the amounts described in clause (i) shall be determined on the

-110-

basis of aggregate Stated Principal Balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through (xviii); provided that the rates described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Rate (net of the Servicing Fee Rate, any Non-Serviced Primary Servicing Fee Rate, the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on, or subject to a cap equal to, the Weighted Average Net Mortgage Rate) of any Class of Principal Balance Certificates having a Certificate Balance then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Qualified Substitute Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee, the Certificate Administrator and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder.

“RAC No-Response Scenario”: As defined in Section 3.25(a).

“RAC Requesting Party”: As defined in Section 3.25(a).

“Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in September 2064.

“Rating Agency”: Each of Fitch, KBRA and S&P or their successors in interest. If no such rating agency nor any successor thereof remains in existence, “Rating Agency” shall be deemed to refer to such NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each applicable Special Servicer and each applicable Master Servicer, and specific ratings of Fitch, KBRA and S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter.

“Rating Agency Inquiry”: As defined in Section 4.07(c).

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.07(c).

“Raymour & Flanigan Campus Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective

-111-

promissory notes evidencing the Raymour & Flanigan Campus Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Raymour & Flanigan Campus Mortgage Loan”: With respect to the Raymour & Flanigan Campus Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 12 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2.

“Raymour & Flanigan Campus Mortgaged Property”: The Mortgaged Property that secures the Raymour & Flanigan Campus Whole Loan.

“Raymour & Flanigan Campus Pari Passu Companion Loan”: With respect to the Raymour & Flanigan Campus Whole Loan, the Companion Loan evidenced by the related promissory note A-1 and made by the related Mortgagor and secured by the Mortgage on the Raymour & Flanigan Campus Mortgaged Property.

“Raymour & Flanigan Campus Pooling and Servicing Agreement”: The pooling and servicing agreement that creates a trust whose assets include the Raymour & Flanigan Campus promissory note A-1.

“Raymour & Flanigan Campus Whole Loan”: The Raymour & Flanigan Campus Mortgage Loan, together with the Raymour & Flanigan Campus Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Raymour & Flanigan Campus Mortgaged Property. References herein to the Raymour & Flanigan Campus Whole Loan shall be construed to refer to the aggregate indebtedness under the Raymour & Flanigan Campus Mortgage Loan and the Raymour & Flanigan Campus Pari Passu Companion Loan.

“Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Non-Retained Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any REO Loans (excluding any portion allocable to any related Companion Loan, if applicable) expected to be outstanding immediately following such Distribution Date, is less than (ii) the then-aggregate Certificate Balance of the Principal Balance Certificates (other than the RR Interest) after giving effect to distributions of principal on such Distribution Date.

“Received Classes”: As defined in Section 5.11(c).

“Record Date”: With respect to any Distribution Date, the last Business Day of the month immediately preceding the month in which that Distribution Date occurs.

“Registered Certificates”: The Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A and Class X-B Certificates, the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

-112-

“Regular Certificates”: Any of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G, Class H, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates and the RR Interest.

“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

“Regulation AB Companion Loan Securitization”: As defined in Section 11.15(a).

“Regulation AB Servicing Officer”: Any officer or employee of any Master Servicer or any Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans or Companion Loans, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee and/or the Certificate Administrator by the applicable Master Servicer or the applicable Special Servicer, as applicable, as such list may from time to time be amended.

“Regulation D”: Regulation D under the Act.

“Regulation S”: Regulation S under the Act.

“Regulation S Book-Entry Certificates”: The Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S and represented by one or more Book-Entry Non-Registered Certificates deposited with the Certificate Administrator as custodian for the Depository.

“Reimbursement Rate”: The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate per annum shall equal the Prime Rate.

“Related Certificates,” “Related Exchangeable Upper-Tier Regular Interest” and “Related Lower-Tier Regular Interests”: For each of the following Classes of Certificates and Exchangeable Upper-Tier Regular Interests, the related Class of Lower-Tier Regular Interests; and for each of the following Classes of Lower-Tier Regular Interests, the related Class of Certificates or Exchangeable Upper-Tier Regular Interest set forth below:

Related Certificates or Related Exchangeable Upper-Tier Regular Interest	Related Lower-Tier Regular Interest
Class A-1 Certificates	Class LA1 Uncertificated Interest
Class A-2 Certificates	Class LA2 Uncertificated Interest
Class A-3 Certificates	Class LA3 Uncertificated Interest
Class A-SB Certificates	Class LASB Uncertificated Interest
Class A-4 Upper-Tier Regular Interest	Class LA4 Uncertificated Interest

-113-

Related Certificates or Related Exchangeable Upper-Tier Regular Interest	Related Lower-Tier Regular Interest
Class A-5 Upper-Tier Regular Interest	Class LA5 Uncertificated Interest
Class A-S Upper-Tier Regular Interest	Class LAS Uncertificated Interest
Class B Upper-Tier Regular Interest	Class LB Uncertificated Interest
Class C Upper-Tier Regular Interest	Class LC Uncertificated Interest
Class D Certificates	Class LD Uncertificated Interest
Class E Certificates	Class LE Uncertificated Interest
Class F Certificates	Class LF Uncertificated Interest
Class G Certificates	Class LG Uncertificated Interest
Class H Certificates	Class LH Uncertificated Interest
RR Interest	LRR Uncertificated Interest

“Relevant Servicing Criteria”: The Servicing Criteria applicable to a specific party, as set forth on Exhibit Z attached hereto. For clarification purposes, multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function Participant engaged by the Trustee, the Certificate Administrator, a Master Servicer or a Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to such Master Servicer, such Special Servicer, the Trustee and/or the Certificate Administrator.

“REMIC”: A “real estate mortgage investment conduit” as defined in Section 860D of the Code (or any successor thereto).

“REMIC Administrator”: The Certificate Administrator or any REMIC administrator appointed pursuant to Section 10.04.

“REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and temporary and final Treasury Regulations (or proposed regulations that would apply by reason of their proposed effective date to the extent not inconsistent with temporary or final regulations) and any rulings or announcements promulgated thereunder, as the foregoing may be in effect from time to time.

“Remittance Date”: The Business Day immediately preceding each Distribution Date.

“Rents from Real Property”: With respect to any REO Property, gross income of the character described in Section 856(d) of the Code.

“REO Account”: A segregated custodial account or accounts created and maintained by (a) with respect to each of the Mortgage Loans other than the NCB Co-op Mortgage Loans, the General Special Servicer pursuant to Section 3.14(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan, for the benefit of the related Serviced Companion Noteholder, which shall initially be entitled “Rialto Capital Advisors, LLC, as General Special Servicer, on behalf of Wilmington Trust, National Association,

-114-

as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, REO Account” and (b) with respect to the NCB Co-op Mortgage Loans, the NCB Special Servicer, pursuant to and for the benefit of the Persons specified in Section 3.14(b), which shall be titled “National Cooperative Bank, N.A., as NCB Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36”. Any such account or accounts shall be an Eligible Account.

“REO Acquisition”: The acquisition for federal income tax purposes of any REO Property pursuant to Section 3.09.

“REO Disposition”: The sale or other disposition of the REO Property pursuant to Section 3.16.

“REO Extension”: As defined in Section 3.14(a).

“REO Loan”: Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan, the related Companion Loan, as applicable), deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Loan shall be deemed to be outstanding for so long as the applicable portion of the related REO Property (or beneficial interest therein, in the case of a Non-Serviced Mortgage Loan) remains part of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same terms and conditions as its predecessor Mortgage Loan or Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on such predecessor Mortgage Loan or Companion Loan, if applicable). Each REO Loan shall be deemed to have an initial outstanding principal balance and Stated Principal Balance equal to the outstanding principal balance and Stated Principal Balance, respectively, of its predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition. All amounts due and owing in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest, shall continue to be due and owing in respect of an REO Loan. All amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional trust fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances with respect to such REO Loan, in each case, that were paid from collections on the related Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Aggregate Principal Distribution Amount” shall be deemed outstanding until recovered. Notwithstanding anything to the contrary, with respect to each Serviced Whole Loan, no amounts

-115-

relating to the related REO Property or REO Loan allocable to the related Serviced Pari Passu Companion Loan, as applicable, will be available for amounts due to the Certificateholders or to reimburse the Trust, other than in the limited circumstances related to Servicing Advances, indemnification payments, Special Servicing Fees and other reimbursable expenses related to such Serviced Whole Loan incurred with respect to such Serviced Whole Loan, in accordance with Section 3.05(a), or with respect to an AB Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

“REO Property”: A Mortgaged Property acquired by the applicable Special Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for the benefit of the Certificateholders (and the related Companion Holder, subject to the related Intercreditor Agreement, with respect to a Mortgaged Property securing a Serviced Whole Loan) to the extent set forth herein and the Trustee (as holder of the Lower-Tier Regular Interests) (and also including, if applicable, the Trust’s beneficial interest in a Non-Serviced Mortgaged Property acquired by the applicable Non-Serviced Special Servicer on behalf of, and in the name of, the applicable Non-Serviced Trustee or a nominee thereof for the benefit of the certificateholders under the applicable Non-Serviced Trust) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of a Mortgage Loan. References herein to a Special Servicer acquiring, maintaining, managing, inspecting, insuring, selling or reporting or to Appraisal Reduction Amounts and Final Recovery Determinations with respect to an “REO Property”, shall not include the Trust’s beneficial interest in a Non-Serviced Mortgaged Property. For the avoidance of doubt, REO Property, to the extent allocable to a Companion Loan, shall not be an asset of the Trust Fund, any Trust REMIC or the Grantor Trust.

“REO Revenues”: All income, rents and profits derived from the ownership, operation or leasing of any REO Property.

“Reportable Event”: As defined in Section 11.07.

“Reporting Requirements”: As defined in Section 11.12.

“Reporting Servicer”: Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant engaged by such parties, as the case may be.

“Repurchase Request”: A Certificateholder Repurchase Request or a PSA Party Repurchase Request.

“Repurchase Request Recipient”: As defined in Section 2.02(g).

“Repurchased Note”: As defined in Section 3.30(a).

“Repurchasing Mortgage Loan Seller”: As defined in Section 3.30(a).

“Request for Release”: A release signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as applicable, in the form of Exhibit E attached hereto.

-116-

“Requesting Certificateholder”: As defined in Section 2.03(l)(iii).

“Requesting Holders”: As defined in Section 4.05(b).

“Required Credit Risk Retention Percentage”: 5%.

“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.

“Resolution Failure”: As defined in Section 2.03(k)(iii).

“Resolved”: With respect to a Repurchase Request, (i) that the related Material Defect has been cured, (ii) the related Mortgage Loan has been repurchased in accordance with the related Mortgage Loan Purchase Agreement, (iii) a mortgage loan has been substituted for the related Mortgage Loan in accordance with the related Mortgage Loan Purchase Agreement, (iv) the applicable Mortgage Loan Seller has made a Loss of Value Payment, (v) a contractually binding agreement has been entered into between the Enforcing Servicer, on behalf of the Trust, and the related Mortgage Loan Seller that settles the related Mortgage Loan Seller’s obligations under the related Mortgage Loan Purchase Agreement, or (vi) the related Mortgage Loan is no longer property of the Trust as a result of a sale or other disposition in accordance with this Agreement.

“Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject.

“Restricted Period”: The forty (40) day period prescribed by Regulation S commencing on the later of (a) the date upon which Certificates are first offered to Persons other than the Initial Purchasers or Underwriters and any other distributor (as such term is defined in Regulation S) of the Certificates and (b) the Closing Date.

“Retained Certificate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Required Credit Risk Retention Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Retained Certificate Gain-on-Sale Remittance Amount.

“Retained Certificate Gain-on-Sale Remittance Amount”: For each Distribution Date, the lesser of (i) the amount on deposit in the Retained Certificate Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Required Credit Risk Retention Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

“Retained Certificate Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate

-117-

Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Holders of the RR Interest, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Retained Certificate Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

“Retained Certificate Interest Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of interest distributed to the Holders of the Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(i), (iv), (vii), (x), (xiii), (xvi), (xix), (xxii) and (xxv) on such Distribution Date.

“Retained Certificate Principal Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of principal distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii) and (xxvi) on such Distribution Date.

“Retained Certificate Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any successor REO Loans (but excluding any related Companion Loans) expected to be outstanding immediately following such Distribution Date, is less than (ii) the Certificate Balance of the RR Interest after giving effect to distributions of principal on such Distribution Date.

“Retained Certificate Realized Loss Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of reimbursed Realized Losses and interest thereon distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(iii), (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv) and (xxvii) on such Distribution Date.

“Retained Defeasance Rights and Obligations”: Any of the rights and obligations of the Mortgage Loan Sellers defined in Section 3.18(i).

“Retained Fee Rate”: A rate equal to (A) 0.0100% per annum with respect to each NCB Mortgage Loan, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans) a rate that causes the Transferable Servicing Interest to equal zero.

-118-

“Retained Interest Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be deemed to be owned by the Holders of the RR Interest in proportions equal to their respective Percentage Interests.

“Retaining Parties”: Each of Bank of America, National Association, Wells Fargo Bank, National Association and Morgan Stanley Bank, N.A., acting as Holder of the RR Interest, and any successor Holder of all or part of the RR Interest.

“Retaining Sponsor”: Bank of America, National Association, acting as retaining sponsor as such term is defined in Risk Retention Rules.

“Reverse Sequential Order”: With respect to any distribution or allocation relating to principal in respect of the Principal Balance Certificates (other than any Exchangeable Certificates and the RR Interest) and the Exchangeable Upper-Tier Regular Interests:

first, to the Class H Certificates;

second, to the Class G Certificates;

third, to the Class F Certificates;

fourth, to the Class E Certificates;

fifth, to the Class D Certificates;

sixth, to the Class C Upper-Tier Regular Interest (and, correspondingly, to the Class C, Class C-1 and Class C-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class C Upper-Tier Regular Interest);

seventh, to the Class B Upper-Tier Regular Interest (and, correspondingly, to the Class B, Class B-1 and Class B-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class B Upper-Tier Regular Interest);

eighth, to the Class A-S Upper-Tier Regular Interest (and, correspondingly, to the Class A-S, Class A-S-1 and Class A-S-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-S Upper-Tier Regular Interest); and

ninth, pro rata (based on their respective Certificate Balances), to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable),

in each case until the remaining Certificate Balances of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests have been reduced to zero.

“Review Materials”: As defined in Section 12.01(b)(i).

-119-

“Review Package”: A Rating Agency Confirmation request and any supporting documentation delivered therewith.

“Revised Rate”: With respect to any ARD Loan, the increased interest rate after the related Anticipated Repayment Date (in the absence of a default) for each applicable Mortgage Loan, as calculated and as set forth in the related Mortgage Loan.

“Risk Retention Allocation Percentage”: A percentage equal to the Required Credit Risk Retention Percentage divided by the Non-Retained Percentage.

“Risk Retention Consultation Party”: The Risk Retention Consultation Party shall be the party selected by the Holders of more than 50% of the RR Interest (by Certificate Balance, as determined by the Certificate Registrar) from time to time. The Depositor shall promptly provide the name and contact information for the initial Risk Retention Consultation Party upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Risk Retention Consultation Party has not changed until such parties receive written notice of the identity and contact information of a replacement of the Risk Retention Consultation Party from a party holding the requisite interest in the RR Interest (as confirmed by the Certificate Registrar). The initial Risk Retention Consultation Party shall be Bank of America, National Association, a national banking association.

“Risk Retention Requirements”: The credit risk retention requirements of Section 15G of the Exchange Act (15 U.S.C. §78o-11), as added by Section 941 of the Dodd-Frank Act.

“Risk Retention Rules”: The joint final rule that was promulgated to implement the Risk Retention Requirements (which such joint final rule has been codified, inter alia, at 17 C.F.R. § 246), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development in the adopting release (79 Fed. Reg. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective, from time to time, as of the applicable compliance date specified therein. Any reference to a Section of the Risk Retention Rules shall mean the subsection of the Risk Retention Rules identified with the same corresponding number as the referenced “Section”. For example, “Section 7 of the Risk Retention Rules” means 17 C.F.R. § 246.7.

“RR Interest”: A Certificate (or all Certificates, as the context may require) designated as “RR Interest” on the face thereof, in the form of Exhibit A-4 hereto, and evidencing (i) a beneficial interest in a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions and (ii) beneficial ownership of the RR Interest Specific Grantor Trust Assets.

“RR Interest Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of a portion of any Excess Interest equal to the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate amount of Excess Interest received on or prior to the

-120-

related Determination Date, related amounts in the Excess Interest Distribution Account and the proceeds thereof, beneficial ownership of which is represented by the RR Interest.

“RR Interest Transfer Restriction Period”: The period from the Closing Date to the earlier of: (a) the latest of (i) the date on which the aggregate unpaid principal balance of all outstanding Mortgage Loans has been reduced to 33.0% of the aggregate Cut-off Date Balance of the Mortgage Loans; (ii) the date on which the aggregate outstanding principal balance of the Principal Balance Certificates has been reduced to 33.0% of the aggregate outstanding principal balance of the Principal Balance Certificates as of the Closing Date; and (iii) two years after the Closing Date; and (b) the date on which the Risk Retention Rules have been effectively abolished or amended or officially determined by the OCC, the Board of Governors of the Federal Reserve System, the FDIC, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development to be no longer applicable to the Trust.

“Rule 144A”: Rule 144A under the Act.

“Rule 144A Book-Entry Certificate”: With respect to the Non-Registered Certificates offered and sold in reliance on Rule 144A, a single, permanent Book-Entry Certificate, in definitive, fully registered form without interest coupons.

“Rules”: As defined in Section 2.03(n)(iv).

“S&P”: S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, and its successors in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Sarbanes-Oxley Act”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

“Sarbanes-Oxley Certification”: As defined in Section 11.05(a)(iv).

“Schedule AL Additional File”: The data file containing additional information or schedules regarding data points in the CREFC^® Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act.

“Scheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the principal portions of the following: (a) all Periodic Payments (excluding Balloon Payments) due in respect of such Mortgage Loans during or, if and to the extent not previously received or advanced pursuant to Section 4.03 in respect of a preceding Distribution Date (and not previously distributed to Certificateholders), prior to, the related Collection Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Collection Period, in each case to the extent either (i) paid by the Mortgagor as of the related Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or

-121-

a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date) or (ii) advanced by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments with respect to the Mortgage Loans to the extent received on or prior to the related Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above.

“Secure Data Room”: The webpage, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “Secure Data Room” tab on the page relating to this transaction.

“Securities Act”: The Securities Act of 1933, as it may be amended from time to time.

“Security Agreement”: With respect to any Mortgage Loan, any security agreement or equivalent instrument, whether contained in the related Mortgage or executed separately, creating in favor of the holder of such Mortgage a security interest in the personal property constituting security for repayment of such Mortgage Loan.

“Senior Certificate”: Any Class A Certificate (other than a Class A-S Exchangeable Certificate) or Class X Certificate.

“Serviced AB Mortgage Loan”: Any AB Mortgage Loan serviced pursuant to this Agreement. Each of the following is a Serviced AB Mortgage Loan: (a) the Suarez Puerto Rico Industrial Portfolio Mortgage Loan and (b) the Raymour & Flanigan Campus Mortgage Loan (prior to the related Servicing Shift Securitization Date).

“Serviced AB Whole Loan”: Any AB Whole Loan serviced pursuant to this Agreement. Each of the following is a Serviced AB Whole Loan: (a) the Suarez Puerto Rico Industrial Portfolio Whole Loan and (b) the Raymour & Flanigan Campus Whole Loan (prior to the related Servicing Shift Securitization Date).

“Serviced Companion Loan”: Each of (i) the Pari Passu Companion Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, (ii) prior to the related Servicing Shift Securitization Date, the Pari Passu Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (iii) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

“Serviced Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities backed, wholly or partially, by any Serviced Companion Loan.

-122-

“Serviced Companion Noteholder”: A holder of (i) a Serviced Pari Passu Companion Loan or (ii) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

“Serviced Companion Noteholder Register”: The register maintained by the Companion Paying Agent pursuant to Section 3.28.

“Serviced Mortgage Loan”: A Mortgage Loan serviced and administered under this Agreement.

“Serviced Pari Passu Companion Loan”: Each of (a) the One North Wacker Pari Passu Companion Loans, (b) the Arizona Mills Pari Passu Companion Loans and (c) the Raymour & Flanigan Campus Pari Passu Companion Loan (prior to the related Servicing Shift Securitization Date).

“Serviced Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan.

“Serviced Pari Passu Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities issued by another securitization and backed by a Serviced Pari Passu Companion Loan.

“Serviced Pari Passu Mortgage Loan”: Any Mortgage Loan serviced pursuant to this Agreement that is part of a Serviced Pari Passu Whole Loan. Each of the following is a Serviced Pari Passu Mortgage Loan: (a) the One North Wacker Mortgage Loan, (b) the Arizona Mills Mortgage Loan and (c) each Servicing Shift Mortgage Loan (prior to the related Servicing Shift Securitization Date).

“Serviced Pari Passu Whole Loan”: Any Whole Loan serviced pursuant to this Agreement comprised of a Serviced Mortgage Loan and one or more Serviced Pari Passu Companion Loans. Each of the following is a Serviced Pari Passu Whole Loan: (a) the One North Wacker Whole Loan, (b) the Arizona Mills Whole Loan and (c) each Servicing Shift Whole Loan (prior to the related Servicing Shift Securitization Date.

“Serviced REO Loan”: Any REO Loan that is serviced by a Special Servicer pursuant to this Agreement.

“Serviced REO Property”: Any REO Property that is serviced by a Special Servicer pursuant to this Agreement.

“Serviced Securitized Companion Loan”: Any Companion Loan that is a component of a Serviced Whole Loan, if and for so long as each such Companion Loan is included in a Regulation AB Companion Loan Securitization.

“Serviced Whole Loan”: Each of the Serviced Pari Passu Whole Loans, any Serviced AB Whole Loan and each Servicing Shift Whole Loan (prior to the related Servicing Shift Securitization Date).

-123-

“Serviced Whole Loan Controlling Holder”: The “Controlling Noteholder” or similar term identified in the Intercreditor Agreement related to a Serviced Whole Loan.

“Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan: (i) the date specified as the applicable remittance date (or equivalent concept) in the related Intercreditor Agreement or (ii) if no such applicable remittance date (or equivalent concept) is so specified in the related Intercreditor Agreement, then the earlier of (A) the Remittance Date and (B) one (1) Business Day after the “determination date” (or any term substantially similar thereto) as defined in the related Other Pooling and Servicing Agreement, in each case, as long as the date on which the remittance is required is at least one (1) Business Day after the Due Date.

“Servicer Termination Event”: One or more of the events described in Section 7.01(a).

“Servicing Account”: The account or accounts created and maintained pursuant to Section 3.03(a).

“Servicing Advances”: All customary, reasonable and necessary “out of pocket” costs and expenses (including attorneys’ fees and expenses and fees of real estate brokers) incurred by the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and in the case of a Serviced Mortgage Loan, the related Serviced Companion Loan, as applicable), other than a Non-Serviced Mortgage Loan, in respect of which a default, delinquency or other unanticipated event has occurred or as to which a default is reasonably foreseeable or (b) a Mortgaged Property securing a Serviced Mortgage Loan or an REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the applicable Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property and the priority of a Mortgage, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i) – (vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management, maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the applicable Master Servicer or the applicable Special Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of a Mortgage Loan or REO Property. Each applicable Master Servicer, each applicable Special Servicer and the Trustee shall not make any Servicing Advance in connection with the exercise of any cure rights or purchase rights granted to the holder of a Companion Loan under the related Intercreditor Agreement or this Agreement.

“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time and which as of the Closing Date are listed on Exhibit Z hereto.

-124-

“Servicing Fee”: With respect to each Mortgage Loan (including each Non-Serviced Mortgage Loan), Serviced Companion Loan, and any REO Loan, the fee payable to the applicable Master Servicer pursuant to the first paragraph of Section 3.11(a).

“Servicing Fee Rate”: With respect to each Mortgage Loan (including any Non-Serviced Mortgage Loan) and REO Loan, a per annum rate equal to 0.00250% (or, with respect to NCB Mortgage Loans, a per annum rate equal to 0.08000%) plus the rate set forth on the Mortgage Loan Schedule for such Mortgage Loan under the heading “Primary Servicing Fee Rate”, which rate includes, in each such case, the rate at which applicable master, primary (other than any Non-Serviced Primary Servicing Fee Rate, which is not included under such heading) and sub-servicing fees accrue, in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan or REO Loan in the same manner in which interest is calculated in respect of such loans; provided, that with respect to the Servicing Shift Mortgage Loan, prior to the Servicing Shift Securitization Date, the Servicing Fee Rate shall be a per annum rate equal to 0.00250% plus the rate set forth on the Mortgage Loan Schedule for such Mortgage Loan under the heading “Primary Servicing Fee Rate”, and on and after the related Servicing Shift Securitization Date, the “Primary Servicing Fee Rate” for such Servicing Shift Mortgage Loan shall be a rate equal to a 0% per annum. With respect to each Serviced Companion Loan, the Servicing Fee Rate shall equal the per annum rate set forth on the Mortgage Loan Schedule for the related Mortgage Loan under the heading “Primary Servicing Fee Rate”.

“Servicing File”: A photocopy or electronic copy of all items required to be included in the Mortgage File, together with each of the following, (a) to the extent such items were actually delivered to the related Mortgage Loan Seller, with respect to a Mortgage Loan and (to the extent that the identified documents existed on or before the Closing Date and the applicable reference to Servicing File relates to any period after the Closing Date) delivered by the related Mortgage Loan Seller, to the applicable Master Servicer: (i) a copy of any engineering reports or property condition reports; (ii) other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property), copies of a rent roll (or, with respect to residential cooperative properties, maintenance schedules) and, for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller; (iii) copies of related financial statements or operating statements; (iv) all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller, and its counsel that are privileged communications or constitute legal or other due diligence analyses), Mortgagor’s certificates and certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies, if any, delivered in connection with the closing of the related Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the documents that were delivered by or on behalf of the Mortgagor, which documents were required to be delivered in connection with the closing of the related Mortgage Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease; and (viii) a copy of all environmental reports that were received by the applicable Mortgage Loan Seller relating to the relevant Mortgaged Property and (b) copies of all modifications, extensions and amendments related to the above, any Appraisals and any other document necessary to service the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and any Serviced Companion Loan, in each case, that are created or prepared after the Closing Date.

-125-

“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator, that is performing activities that address the Servicing Criteria, unless (i) such Person’s activities relate only to 5% or less of the Mortgage Loans by unpaid principal balance as of any date of determination in accordance with Article XI or (ii) the Depositor reasonably determines that a Master Servicer or a Special Servicer may, for the purposes of the Exchange Act reporting requirements pursuant to applicable Commission guidance, take responsibility for the assessment of compliance with the Servicing Criteria of such Person. The Servicing Function Participants as of the Closing Date are listed on Exhibit FF hereto. Exhibit FF shall be updated and provided to the Depositor and the Certificate Administrator in accordance with Section 11.10(c).

“Servicing Officer”: Any officer and/or employee of a Master Servicer, a Special Servicer or any Additional Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans or Serviced Companion Loans, whose name and specimen signature appear on a list of servicing officers furnished by such Master Servicer, such Special Servicer or any Additional Servicer to the Certificate Administrator, the Trustee, the Operating Advisor and the Depositor on the Closing Date as such list may be amended from time to time thereafter.

“Servicing Shift Lead Note”: With respect to any Servicing Shift Whole Loan, as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Servicing Shift Whole Loan including any amendments or modifications, or any renewal or substitution notes, as of such date, the sale of which to the related Non-Serviced Trust will cause servicing to shift from this Agreement to the related Non-Serviced PSA pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. As of the Closing Date, the Raymour & Flanigan Campus promissory note A-1 will be a Servicing Shift Lead Note related to the Trust.

“Servicing Shift Mortgage Loan” With respect to any Servicing Shift Whole Loan, a Mortgage Loan included in the Trust Fund that will be serviced under this Agreement as of the Closing Date, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on and after the applicable Servicing Shift Securitization Date. As of the Closing Date, the Raymour & Flanigan Campus Mortgage Loan will be a Servicing Shift Mortgage Loan related to the Trust.

“Servicing Shift Securitization Date”: With respect to any Servicing Shift Whole Loan, the date on which the related Servicing Shift Lead Note is included in a Non-Serviced Trust; provided that the holder of such Servicing Shift Lead Note provides each of the parties to this Agreement (in each case only to the extent such party will not also be a party to the related Non-Serviced PSA) with notice in accordance with the terms of the related Intercreditor Agreement that such Servicing Shift Lead Note is to be included in such Non-Serviced Trust which notice shall include contact information for the related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator and Non-Serviced Trustee. The date on which the Raymour & Flanigan Campus promissory note A-1 is included in a securitization trust is a

-126-

Servicing Shift Securitization Date related to the Trust (subject to the proviso in the immediately preceding sentence).

“Servicing Shift Whole Loan”: Any Whole Loan serviced under this Agreement as of the Closing Date that includes a related Servicing Shift Mortgage Loan included in the Trust Fund and one or more Companion Loans not included in the Trust Fund, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on or after the applicable Servicing Shift Securitization Date. As of the Closing Date, the Raymour & Flanigan Campus Whole Loan will be a Servicing Shift Whole Loan related to the Trust.

“Servicing Standard”: As defined in Section 3.01(a).

“Servicing Transfer Event”: With respect to any Serviced Mortgage Loan, or related Serviced Companion Loan, the occurrence of any of the following events:

(i)         the related Mortgagor has failed to make when due any Balloon Payment, and the Mortgagor has not delivered to the applicable Master Servicer or applicable Special Servicer, on or before the due date of such Balloon Payment, a written and fully executed (subject only to customary final closing conditions) refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, as applicable (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such commitment to the Special Servicer or the Master Servicer, as applicable) which provides that such refinancing will occur within one hundred-twenty (120) days after the date on which such Balloon Payment will become due (provided that if either (x) such refinancing does not occur before the expiration of the time period for refinancing specified in such refinancing commitment or (y) the applicable Master Servicer is required to make a P&I Advance in respect of such Mortgage Loan (or, in the case of any Serviced Whole Loan, in respect of the Mortgage Loan included in the same Serviced Whole Loan) at any time prior to such refinancing, a Servicing Transfer Event will occur immediately); or

(ii)       the related Mortgagor has failed to make when due any Periodic Payment (other than a Balloon Payment) or any other payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage, which failure has continued unremedied for sixty (60) days; or

(iii)      the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole

-127-

Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect)), that a default in making any Periodic Payment (other than a Balloon Payment) or any other material payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which the subject payment will become due; or the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the holder of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect), that a default in making a Balloon Payment is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which such Balloon Payment will become due (or, if the Mortgagor has delivered a written and fully executed (subject only to customary final closing conditions) refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to the applicable Special Servicer or applicable Master Servicer, as applicable) which provides that a refinancing will occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due, the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to

-128-

such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan prior to the occurrence of a Control Appraisal Period)), that (A) the Mortgagor is likely not to make one or more Assumed Scheduled Payments prior to such a refinancing or (B) such refinancing is not likely to occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due); or

(iv)         there shall have occurred a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the related Mortgage Loan documents, other than as described in clause (i) or (ii) above, that may, in the good faith and reasonable judgment of the applicable Master Servicer or the applicable Special Servicer (and, in the case of the applicable Special Servicer (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement) or (B) following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing))), materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially and adversely affect the interests of Certificateholders (or, in the case of any Serviced Whole Loan, the interests of any related Serviced Companion Noteholder), which default has continued unremedied for the applicable cure period under the terms of such Mortgage Loan or Serviced Whole Loan (or, if no cure period is specified, sixty (60) days); or

(v)         a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the related Mortgagor and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or

(vi)        the related Mortgagor shall have consented to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property; or

-129-

(vii)        the related Mortgagor shall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspended payment of its obligations; or

(viii)        the applicable Master Servicer or the applicable Special Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the corresponding Mortgaged Property;

(ix)          the applicable Master Servicer or the applicable Special Servicer (and in the case of the applicable Special Servicer, with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement))) determines that (i) a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the Mortgage Loan documents (other than as described in clause (iii) above) is imminent or reasonably foreseeable, (ii) such default will materially impair the value of the corresponding Mortgaged Property as security for the Mortgage Loan or Serviced Pari Passu Companion Loan (if any) or otherwise materially and adversely affect the interests of Certificateholders (or the related Serviced Pari Passu Companion Loan Holder) and (iii) the default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan documents, or, if no cure period is specified and the default is capable of being cured, for sixty (60) days; or

(x)           a default occurs beyond any applicable grace period or cure period under a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan, as determined by the applicable Special Servicer in its sole and absolute discretion in accordance with the Servicing Standard.

provided that any Mortgage Loan (excluding any Non-Serviced Mortgage Loan) that is cross-collateralized with a Specially Serviced Loan shall be a Specially Serviced Loan so long as such Mortgage Loan is cross-collateralized with a Specially Serviced Loan. If any Serviced Companion Loan becomes a Specially Serviced Loan, the related Serviced Mortgage Loan shall also become a Specially Serviced Loan. If any Serviced Mortgage Loan becomes a Specially Serviced Loan, any related Serviced Companion Loan shall also become a Specially Serviced Loan. With respect to a Non-Serviced Mortgage Loan, the occurrence of a “Servicing Transfer Event” shall be as defined in the Non-Serviced PSA.

For the avoidance of doubt, with respect to clauses (ii), (iii), (iv), (vii) and (ix) above, neither (i) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (ii) any default or delinquency that would have existed but for such Payment

-130-

Accommodation will constitute a Servicing Transfer Event, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation.

“Significant Obligor”: As defined in Section 11.16.

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth (4th) calendar quarter of any calendar year), the date that is fifteen (15) days after the Distribution Date occurring on or immediately following the date on which financial statements for such calendar quarter are required to be delivered to the related lender under the related Mortgage Loan documents.

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the ninetieth (90th) day after the end of such calendar year.

“Similar Law”: As defined in Section 5.03(n).

“Sole Certificateholder”: Any Certificate Owner, or Certificate Owners acting in unanimity, of a Book-Entry Certificate or a Holder of a Definitive Certificate holding 100% of the then-outstanding Class X-F, Class X-G, Class X-H, Class F, Class G and Class H Certificates; provided, that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests have been reduced to zero.

“Special Notice”: As defined in Section 5.06.

“Special Servicer”: With respect to (i) each of the Mortgage Loans (other than any NCB Mortgage Loan, any Non-Serviced Mortgage Loan and any Excluded Special Servicer Loan), the Serviced Companion Loans, any REO Property acquired by the Trust with respect to any such Mortgage Loan and any matters relating to the foregoing, the General Special Servicer, and its successors in interest and assigns, or any successor special servicer appointed as provided herein, (ii) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to any such NCB Mortgage Loan and any matters relating to the foregoing, the NCB Special Servicer and (iii) any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

“Special Servicer Decision”: With respect to any Mortgage Loan:

(i)           other than with respect to residential cooperative mortgage loans secured by a residential cooperative property, approval of any waiver regarding the receipt of financial statements (other than immaterial timing waivers including late financial statements);

(ii)          subject to the proviso at the end of this definition, consent to actions and releases related to condemnation of parcels of a Mortgaged Property;

(iii)         other than with respect to a Non-Specially Serviced Loan secured by a residential cooperative property, any requests for the funding or disbursement

-131-

of amounts from any escrow accounts, reserve funds or letters of credit held as “performance”, “earn-out”, “holdback” or similar escrows or reserves, including the funding or disbursement of any such amounts with respect to any Mortgage Loan, but excluding, as to Mortgage Loans that are not Specially Serviced Loans, any routine and/or customary escrow and reserve fundings or disbursements for which the satisfaction of performance-related criteria or lender discretion is not required or permitted pursuant to the terms of the related Mortgage Loan documents (for the avoidance of doubt, any request with respect to a Mortgage Loan that is not a Specially Serviced Loan for Routine Disbursements or any other funding or disbursement as mutually agreed upon by the applicable Master Servicer and the applicable Special Servicer, will not constitute a Special Servicer Decision; provided, that in the case of any such Mortgage Loan (other than with respect to a Non-Specially Serviced Loan that is an NCB Co-op Mortgage Loan) whose escrows, reserves, holdbacks and related letters of credit exceed, in the aggregate, at the related origination date, 10% of the initial principal balance of such Mortgage Loan including any related Companion Loans (which Mortgage Loans are identified on Schedule 3 hereto), no such funding or disbursement of such escrows, reserves, holdbacks or letters of credit shall be deemed to constitute a Routine Disbursement, and shall instead constitute Special Servicer Decisions, except for the routine funding of tax payments and insurance premiums when due and payable and except for any such funding or disbursement as to which the related Mortgage Loan documents do not provide for lender discretion);

(iv)        other than any request with respect to a residential cooperative property that constitutes a Master Servicer Decision pursuant to clause (xiv) of the definition of “Master Servicer Decision”, requests to incur additional debt in accordance with the terms of the Mortgage Loan documents;

(v)         subject to the proviso at the end of this definition, any approval or consent to grants of easements or rights of way (including, without limitation, for utilities, access, parking, public improvements or another purpose) or subordination of the lien of the Mortgage Loan to easements, that materially affect the use or value of a Mortgaged Property or a Mortgagor’s ability to make payments with respect to the related Mortgage Loan or any related Companion Loan;

(vi)        determining whether to cure any default by a Mortgagor under a Ground Lease or permit any Ground Lease modification, amendment or subordination, nondisturbance and attornment agreement or entry into a new Ground Lease; and

(vii)       other than with respect to a Ground Lease, any modification, waiver or amendment of any lease, the execution of a new lease or the granting of a subordination, non-disturbance and attornment agreement in connection with any lease at a Mortgaged Property or REO Property if the lease affects an area greater than the lesser of (1) 30% of the net rentable area of the improvements at the Mortgaged Property and (2) 30,000 square feet of the improvements at the Mortgaged Property; provided that the applicable Special Servicer shall reach a

-132-

decision on any such Special Servicer Decision within twenty (20) Business Days of its receipt from the Mortgagor of all information reasonably requested by the applicable Special Servicer in order to process the Special Servicer Decision (such twenty (20) Business Days being inclusive of the five (5) Business Day period within which the Directing Certificateholder is required to grant or withhold its consent);

provided that, with respect to a Non-Specially Serviced Loan, if the applicable Special Servicer determines (a) with respect to clause (ii) above, that a condemnation is not with respect to a material parcel or a material income producing parcel and that such condemnation does not materially affect the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or Companion Loan when due, or (b) with respect to clause (v) above that an easement or right of way will not materially affect the use or value of a Mortgaged Property or a Mortgagor’s ability to make payments with respect to the related Mortgage Loan or any related Companion Loan, it shall provide written notice of such determination to the Master Servicer, in which case, the Master Servicer shall process such decision and such decision shall be deemed a Master Servicer Decision not a Special Servicer Decision; provided, further, that the applicable Special Servicer shall make any such determination and provide any such notice within two (2) Business Days of its receipt of a request related to any such decision.

“Special Servicing Fee”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee payable to the related Special Servicer pursuant to Section 3.11(b).

“Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and each REO Loan (other than a Non-Serviced Mortgage Loan) on a loan by loan basis, (a) other than with respect to the NCB Special Servicer, the greater of 0.2500% and the per annum rate that would result in a Special Servicing Fee for the related month of $5,000, and (b) with respect to the NCB Special Servicer, the greater of 0.2500% and the per annum rate that would result in a Special Servicing Fee of $1,000 for the related month.

“Specially Serviced Loan”: As defined in Section 3.01(a).

“Sponsors”: The Mortgage Loan Sellers.

“Startup Day”: The day designated as such in Section 10.01(b).

“Stated Principal Balance”: With respect to any Mortgage Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage Loan, as of the date it is added to the Trust, the unpaid principal balance of such Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received) minus (y) the sum of:

(i)           the principal portion of each Periodic Payment due on such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute

-133-

Mortgage Loan, due after the Due Date in the related month of substitution), to the extent received from the Mortgagor or advanced by the applicable Master Servicer;

(ii)          all Principal Prepayments received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution);

(iii)         the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on such Mortgage Loan) and Liquidation Proceeds received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution); and

(iv)        any reduction in the outstanding principal balance of such Mortgage Loan resulting from a Deficient Valuation or a modification of such Mortgage Loan pursuant to the terms and provisions of this Agreement that occurred prior to the end of the Collection Period for the most recent Distribution Date.

With respect to any REO Loan that is a successor to a Mortgage Loan (but excluding any related Companion Loan), as of any date of determination, the Stated Principal Balance shall be an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan as of the date of the related REO Acquisition, minus (y) the sum of:

(i)           the principal portion of any P&I Advance made with respect to such REO Loan; and

(ii)         the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on the related Mortgage Loan), Liquidation Proceeds and REO Revenues received with respect to such REO Loan (but excluding any related Companion Loan).

A Mortgage Loan or an REO Loan that is a successor to a Mortgage Loan (but excluding any related Companion Loan) shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which the payments or other proceeds, if any, received in connection with a Liquidation Event in respect thereof are to be (or, if no such payments or other proceeds are received in connection with such Liquidation Event, would have been) distributed to Certificateholders.

With respect to each Companion Loan on any date of determination, the Stated Principal Balance shall equal the unpaid principal balance of such Companion Loan as of such date. On any date of determination, the Stated Principal Balance of each Whole Loan shall equal the sum of the Stated Principal Balances of the related Mortgage Loan and the related Companion Loan(s), as applicable, on such date.

With respect to any REO Loan that is a successor to a Companion Loan as of any date of determination, the Stated Principal Balance shall equal (x) the Stated Principal Balance of the predecessor Companion Loan as of the date of the related REO Acquisition, minus (y) the

-134-

principal portion of any amounts allocable to the related Companion Loan in accordance with the related Intercreditor Agreement.

With respect to any Mortgage Loan or REO Loan that is paid in full or any Mortgage Loan or REO Loan (or REO Property) liquidated, as of the first Distribution Date that follows the end of the Collection Period during which payments or other proceeds are received in connection with a Liquidation Event with respect to such Mortgage Loan or REO Loan (or REO Property), as applicable, notwithstanding that a loss may occur in connection with such Liquidation Event, the Stated Principal Balance of the Mortgage Loan or REO Loan shall be zero.

“Suarez Puerto Rico Industrial Portfolio Intercreditor Agreement”: That certain Intercreditor Agreement, dated as of August 24, 2021, by and between the holders of the respective promissory notes evidencing the Suarez Puerto Rico Industrial Portfolio Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Suarez Puerto Rico Industrial Portfolio Mortgage Loan”: With respect to the Suarez Puerto Rico Industrial Portfolio Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 5 on the Mortgage Loan Schedule), which is evidenced by promissory note A.

“Suarez Puerto Rico Industrial Portfolio Mortgaged Property”: The portfolio of Mortgaged Properties that collectively secure the Suarez Puerto Rico Industrial Portfolio Whole Loan.

“Suarez Puerto Rico Industrial Portfolio Subordinate Companion Loan”: With respect to the Suarez Puerto Rico Industrial Portfolio Whole Loan, the Companion Loan evidenced by the related promissory note B and made by the related Mortgagor and secured by the Mortgages on the Suarez Puerto Rico Industrial Portfolio Mortgaged Property.

“Suarez Puerto Rico Industrial Portfolio Whole Loan”: The Suarez Puerto Rico Industrial Portfolio Mortgage Loan, together with the Suarez Puerto Rico Industrial Portfolio Subordinate Companion Loan, each of which is secured by the same Mortgages on the Suarez Puerto Rico Industrial Portfolio Mortgaged Property. References herein to the Suarez Puerto Rico Industrial Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the Suarez Puerto Rico Industrial Portfolio Mortgage Loan and the Suarez Puerto Rico Industrial Portfolio Subordinate Companion Loan.

“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the CMBS market) of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of a Master Servicer, a Special Servicer, the Operating Advisor, an Additional Servicer or a Sub-Servicer.

“Subject Loan”: As defined in Section 12.02(b).

-135-

“Subordinate Certificate”: Any Class A-S Exchangeable Certificate, Class B Exchangeable Certificate, Class C Exchangeable Certificate, Class D, Class E, Class F, Class G or Class H Certificate.

“Subordinate Companion Holder”: The holder of any AB Subordinate Companion Loan.

“Subordinate Companion Loan”: A Companion Loan that is subordinate in right of payment to the related Mortgage Loan.

“Sub-Servicer”: Any Person that services Mortgage Loans on behalf of a Master Servicer, a Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by such Master Servicer, such Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans that are identified in Item 1122(d) of Regulation AB.

“Sub-Servicing Agreement”: The written contract between a Master Servicer or a Special Servicer, as the case may be, and any Sub-Servicer relating to servicing and administration of Mortgage Loans as provided in Section 3.20.

“Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(b), an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. In the event that one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more removed Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan(s) being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loan(s).

“Surrendered Classes”: As defined in Section 5.11(c).

“Surviving Entity”: As defined in Section 6.03(b).

“Tax Returns”: The federal income tax returns on (i) Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC due to its respective classification as a REMIC under the REMIC Provisions and (ii) Internal Revenue Service Form 1041 or Internal Revenue Service Form 1099, as applicable, or any successor forms to be filed on behalf of the Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal tax law or Applicable State and Local Tax Law.

“Temporary Regulation S Book-Entry Certificate”: As defined in Section 5.02(a).

-136-

“Termination Purchase Amount”: The sum of (1) the aggregate Purchase Price of all the Mortgage Loans (exclusive of REO Loans) then included in the Trust, (2) the appraised value of the Trust’s portion of all REO Properties then included in the Trust (which fair market value for any REO Property may be less than the Purchase Price for the corresponding REO Loan), as determined by an appraiser selected by the applicable Special Servicer and approved by the applicable Master Servicer and the Controlling Class and (3) if the Mortgaged Property secures a Non-Serviced Mortgage Loan and is an REO Property under the terms of the related Non-Serviced PSA, the pro rata portion of the fair market value of the related property, as determined by the related Non-Serviced Master Servicer in accordance with clause (2) above.

“Test”: As defined in Section 12.01(b)(iv).

“Transaction Parties”: As defined in Section 5.03(r).

“Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

“Transferable Servicing Interest”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Loan with respect thereto), the amount by which the related Servicing Fee otherwise payable to the applicable Master Servicer hereunder exceeds the sum of (i) the fee payable to the applicable Master Servicer as the portion of the Servicing Fee attributable to primary servicing and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which Transferable Servicing Interest is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement. The Transferable Servicing Interest with respect to each Mortgage Loan is (A) with respect to each NCB Mortgage Loan, six (6) basis points, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans), zero.

“Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

“Transferee Affidavit”: As defined in Section 5.03(o)(ii).

“Transferor”: Any Person who is disposing by Transfer any Ownership Interest in a Certificate.

“Transferor Letter”: As defined in Section 5.03(o)(ii).

“Trust”: The trust created hereby and to be administered hereunder. The Trust shall be named: “BANK 2021-BNK36”.

“Trust Fund”: The corpus of the Trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a removed Mortgage Loan), together with the Mortgage Files relating thereto (subject to, in the case of a Serviced Whole Loan, the interests of the related Serviced Companion Noteholder in the related Mortgage File); (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (to the extent of the Trust’s interest therein) or

-137-

the Trust’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (iv) all revenues received in respect of any REO Property (to the extent of the Trust’s interest therein); (v) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust’s interest therein); (vi) any Assignment of Leases and any security agreements (to the extent of the Trust’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Trust’s interest therein); (viii) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Trust’s interest therein), amounts on deposit in each applicable Collection Account (to the extent of the Trust’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Trust’s interest in such REO Account), including any reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the Trust’s interest therein); (x) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent transferred to the Trustee); (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor). For the avoidance of doubt, no Retained Defeasance Rights and Obligations will be an asset of the Trust.

“Trust-Related Litigation”: As defined in Section 3.32.

“Trust REMIC”: As defined in the Preliminary Statement.

“Trustee”: Wilmington Trust, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided.

“Trustee Fee”: The fee to be paid to the Trustee as compensation for the Trustee’s activities under this Agreement, which fee is included as part of the Certificate Administrator Fee. No portion of the Trustee Fee shall be calculated by reference to any Companion Loan or the Stated Principal Balance of any Companion Loan. The Trustee Fee shall be equal to $290 per month and shall be paid as a portion of the Certificate Administrator Fee.

“UCC”: The Uniform Commercial Code, as enacted in each applicable state.

“UCC Financing Statement”: A financing statement prepared and filed pursuant to the UCC, as in effect in the relevant jurisdiction.

“Uncovered Amount”: With respect to any Master Servicer’s Collection Account, any additional trust fund expense, Nonrecoverable Advance or other item that would be payable or reimbursable out of general funds (as opposed to a specific source of funds) in such Collection

-138-

Account pursuant to this Agreement, but which cannot be so paid or reimbursed because such general funds are insufficient to cover such payment or reimbursement; provided, that any such additional trust fund expense, Nonrecoverable Advance or other item shall be an Uncovered Amount only to the extent that such general funds are insufficient to cover the payment or reimbursement thereof.

 “Underwriters”: BofA Securities, Inc., Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC, Academy Securities, Inc. and Drexel Hamilton, LLC.

“Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies or flood insurance policies required to be maintained pursuant to Section 3.07.

“United States Securities Person”: Any “U.S. person” as defined in Rule 902(k) of Regulation S.

“Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the related Mortgage Loan or REO Property in respect of which the Advance was made.

“Unscheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the following: (a) all Principal Prepayments received on such Mortgage Loan on or prior to the Determination Date and (b) the principal portions of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued interest on Advances and other additional expenses of the Trust incurred in connection with the related Mortgage Loan) and, if applicable, REO Revenues received with respect to such Mortgage Loan and any REO Loans (but excluding any related Companion Loans) on or prior to the related Determination Date, but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date.

“Unsolicited Information”: As defined in Section 12.01(b)(iii).

“Upper-Tier Regular Interests”: As defined in the Preliminary Statement.

“Upper-Tier REMIC”: One of the REMICs comprising the Trust, the assets of which consist of the Lower-Tier Regular Interests and such amounts as shall from time to time be held in the Upper-Tier REMIC Distribution Account.

“Upper-Tier REMIC Distribution Account”: The segregated account or accounts (or a subaccount of the Distribution Account) created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through

-139-

Certificates, Series 2021-BNK36, Upper-Tier REMIC Distribution Account”. Any such account or accounts shall be an Eligible Account.

“U.S. Dollars” or “$”: Lawful money of the United States of America.

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

“Velocity Industrial Portfolio Intercreditor Agreement”: That certain Agreement Between Note Holders, dated as of July 29, 2021, by and between the holders of the respective promissory notes evidencing the Velocity Industrial Portfolio Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

“Velocity Industrial Portfolio Mortgage Loan”: With respect to the Velocity Industrial Portfolio Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 33 on the Mortgage Loan Schedule), which is evidenced by promissory note A-2.

“Velocity Industrial Portfolio Mortgaged Property”: The portfolio of Mortgaged Properties that collectively secure the Velocity Industrial Portfolio Whole Loan.

“Velocity Industrial Portfolio Pari Passu Companion Loans”: With respect to the Velocity Industrial Portfolio Whole Loan, the Companion Loans evidenced by the related promissory notes A-1 and A-3 and made by the related Mortgagor and secured by the Mortgage on the Velocity Industrial Portfolio Mortgaged Property.

“Velocity Industrial Portfolio Whole Loan”: The Velocity Industrial Portfolio Mortgage Loan, together with the Velocity Industrial Portfolio Pari Passu Companion Loans, each of which is secured by the same Mortgage on the Velocity Industrial Portfolio Mortgaged Property. References herein to the Velocity Industrial Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness under the Velocity Industrial Portfolio Mortgage Loan and the Velocity Industrial Portfolio Pari Passu Companion Loans.

“Voting Rights”: The portion of the voting rights of all of the Certificates which is allocated to any Certificate. At all times during the term of this Agreement, the Voting Rights shall be allocated among the various Classes of Certificateholders as follows: (i) 2% in the case of the Class X Certificates (allocated pro rata, based upon their respective Notional Amounts as of the date of determination) and (ii) in the case of the Principal Balance Certificates (other than the RR Interest), a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the

-140-

Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of such Class, in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Cumulative Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of the Principal Balance Certificates (other than the RR Interest), determined as of the Distribution Date immediately preceding such time. None of the Class R or Class V Certificates or RR Interest will be entitled to any Voting Rights.

“Weighted Average Net Mortgage Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans (including any Non-Serviced Mortgage Loans) as of the first day of the related Collection Period, weighted on the basis of their respective Stated Principal Balances immediately following the preceding Distribution Date (or, in the case of the initial Distribution Date, as of the Closing Date).

“WFCM 2021-C60 Pooling and Servicing Agreement”: The pooling and servicing agreement, dated and effective as of July 1, 2021 (as from time to time amended, supplemented or modified), between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer.

“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.

“WHFIT Regulations”: Treasury Regulations Section 1.671-5, as amended or successor provisions.

“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.

“Whole Loan”: With respect to any Mortgage Loan with a related Companion Loan, such Mortgage Loan and its related Companion Loan(s), collectively, as identified in the “Whole Loan” chart in the Preliminary Statement. With respect to each Whole Loan, references herein to each such Whole Loan shall be construed to refer to the aggregate indebtedness under the related Mortgage Loan and the related Companion Loan(s).

“Withheld Amounts”: As defined in Section 3.21(a).

“Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan, the amount of any Advances made with respect to such Mortgage Loan on or before the date such Mortgage Loan becomes (or, but for the making of three (3) Periodic Payments under its modified terms, would then constitute) a Corrected Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid

-141-

interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

“Workout Fee”: The fee paid to the applicable Special Servicer with respect to each Corrected Loan in accordance with Section 3.11(c).

“Workout Fee Rate”: With respect to each Corrected Loan and in accordance with Section 3.11(c), a fee of 1.00% (or, with respect to the One North Wacker Mortgage Loan, 0.5%) of each collection (other than Penalty Charges and Excess Interest) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Periodic Payments, (ii) Balloon Payments, (iii) Principal Prepayments and (iv) payments (other than those included in clause (i) or (ii) of this definition) at maturity or on the Anticipated Repayment Date, received on each Corrected Loan for so long as it remains a Corrected Loan.

“XML”: Extensible Markup Language.

“Yield Maintenance Charge”: With respect to any Mortgage Loan, any premium, fee or other additional amount paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, a Mortgage Loan, calculated, in whole or in part, pursuant to a yield maintenance formula or otherwise pursuant to a formula that reflects the lost interest, including any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.

Section 1.02    Certain Calculations.

 Unless otherwise specified herein, for purposes of determining amounts with respect to the Certificates and the rights and obligations of the parties hereto, the following provisions shall apply:

(i)          All calculations of interest (other than as provided in the related Mortgage Loan documents) provided for herein shall be made on the basis of a three hundred-sixty (360) day year consisting of twelve (12) 30-day months.

(ii)         Any Mortgage Loan or Companion Loan payment is deemed to be received on the date such payment is actually received by the applicable Master Servicer or the applicable Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with the Servicing Standard consistent with the terms of the related Mortgage Note and Mortgage to reduce the outstanding principal balance of such Mortgage Loan, on which interest accrues.

(iii)       Any reference to the Certificate Balance of any Class of Principal Balance Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates on such Distribution Date after giving effect to

-142-

(a) any distributions made on such Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable, and Section 4.01(c), (b) any Realized Losses or Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates on that Distribution Date pursuant to Section 4.04, and (c) any recoveries on the related Mortgage Loans of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount or the Retained Certificate Principal Distribution Amount, as applicable, which recoveries are allocated to such Class of Principal Balance Certificates, and added to the Certificate Balance pursuant to Section 4.04(a).

(iv)        Unless otherwise specifically provided for herein, all net present value calculations and determinations made with respect to a Mortgage Loan, Serviced Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made, in the event the Mortgage Loan documents are silent, using a discount rate (a) for principal and interest payments on a Mortgage Loan, Serviced Companion Loan, as applicable, or sale by the applicable Special Servicer of a Defaulted Loan, the highest of (x) the rate determined by the applicable Master Servicer or the applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of such Mortgagor as of such date of determination, (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Companion Loan based on its outstanding principal balance and (z) the yield on 10-year U.S. treasuries as of such date of determination, and (b) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.

(v)      Any reference to “expense of the trust” or “additional trust fund expense” or words of similar import shall be construed to mean, for any Serviced Mortgage Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust fund expenses or such Intercreditor Agreement does not prohibit the following application of trust fund expenses (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loans in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loans or (ii) with respect to any Serviced AB Whole Loan, first, to the related AB Subordinate Companion Loan and then, pro rata and pari passu, to the Trust and Serviced Pari Passu Companion Loans in accordance with the respective outstanding principal balances of the related Serviced AB Mortgage Loan and Serviced Pari Passu Companion Loans.

[End of Article I]

-143-

Article II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

Section 2.01   Conveyance of Mortgage Loans.   (a) The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests) all the right, title and interest of the Depositor, whether now owned or existing or hereafter acquired or arising, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4 (other than Section 4(c), (d), (e) and (g)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements; (iii) the Intercreditor Agreements; (iv) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (v) any REO Property (to the extent of the Depositor’s interest therein) or the Depositor’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (vi) all revenues received in respect of any REO Property (to the extent of the Depositor’s interest therein); (vii) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Depositor’s interest therein); (viii) any Assignment of Leases and any security agreements (to the extent of the Depositor’s interest therein); (ix) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Depositor’s interest therein); (x) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Depositor’s interest therein), amounts on deposit in each applicable Collection Account (to the extent of the Depositor’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Depositor’s interest in such REO Account), including any reinvestment income, as applicable; (xi) any Environmental Indemnity Agreements (to the extent of the Depositor’s interest therein); (xii) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent not covered by clause (ii) above); (xiii) the Lower-Tier Regular Interests; (xiv) with respect to the Exchangeable Certificates, each of the Exchangeable Upper-Tier Regular Interests; and (xv) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor, and any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans) (collectively, the “Conveyed Property”). Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; and (iii) with respect to those Mortgage Loans

-144-

that were closed in October 2021 but have their first Due Date after October 2021, any interest amounts relating to the period prior to the Cut-off Date). The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 13.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of Sections 2, 3, 4 (other than Section 4(c), (d) and (f)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get the benefit of Sections 10, 13 and 15 thereof in connection with any exercise of rights under the assigned Sections, and the Depositor shall use its best efforts to make available to the Trustee the benefits of Sections 10, 13 and 15 in connection therewith.

(b)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver and deposit with, or cause to be delivered to and deposited with, the Custodian, (A) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (B) on or before the date that is 45 days following the Closing Date, the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is a Non-Serviced Whole Loan as of the Closing Date, any other items required to be delivered or deposited by the Mortgage Loan Seller pursuant to this Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the applicable Master Servicer) for each Mortgage Loan. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied upon such Mortgage Loan Seller’s delivery of a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and indemnifying the Trustee and the Trust. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) and (ix) of the definition of “Mortgage File” (or, if applicable, a copy thereof) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered, or will be delivered within ten (10) Business Days of the Closing Date, for filing or recordation, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a provisional basis as of the Closing Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted or to be submitted for filing or recording) is delivered to the Custodian on or before the date set forth herein, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company, in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, to be a true and complete copy of the original

-145-

thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy). If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii), and (ix) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon (if intended to be recorded or filed), for any other reason, including, without limitation, that such non-delivered document or instrument has been lost or destroyed, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the date set forth herein. Neither the Trustee nor any Custodian shall in any way be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, subject to the next sentence, the applicable Mortgage Loan Seller is required to, but cannot, deliver (in complete and recordable form or form suitable for filing or recording, if applicable) any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File” solely because of the unavailability of filing or recording information as to any existing document or instrument, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering with respect to such Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) and clause (f) of the first proviso to the definition of “Mortgage File” herein. As to any Mortgage Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File”, and such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian

-146-

with respect to such Mortgage Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c) of this Agreement. Notwithstanding anything herein to the contrary, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the applicable Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary’s interest from such Mortgage Loan Seller to the applicable Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the applicable Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the applicable Master Servicer on behalf of the Trust. Regardless of the manner of delivery, the related Mortgage Loan Seller is required pursuant to the related Mortgage Loan Purchase Agreement to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of such Mortgage Loan Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit.

(c)       Except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper form for filing or recording, as applicable, and to submit such Assignments for filing or recording, as the case may be, in the applicable public filing or recording office. On the Closing Date, the Mortgage Loan Sellers may deliver one (1) omnibus assignment for all such Mortgage Loans substantially in the form of Exhibit H hereto to the Custodian as provided in Section 2.01(b). Except under the circumstances provided for in the last sentence of this Section 2.01(c) and except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan Seller’s expense will, promptly (and in any event within one hundred-twenty (120) days after the later of the Closing Date and the related Mortgage Loan Seller’s actual receipt of the related documents and the necessary recording and filing information) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC Financing Statements, as appropriate, each Assignment. Each such Assignment submitted for recording shall reflect that it (or a file copy thereof in the case of a UCC Assignment) should be returned by the public recording office to the Custodian or its designee following recording or filing (or to the related Mortgage Loan Seller or its agent who will then be responsible for delivery of the same to the Custodian or its

-147-

designee). Any such Assignment received by the Custodian shall be promptly included in the related Mortgage File and be deemed a part thereof, and any such Assignment received by the related Mortgage Loan Seller or its agent shall be required to be delivered to the Custodian to be included as part of the related Mortgage File within thirty (30) days after receipt. If any such document or instrument is determined to be incomplete or not to meet the recording or filing requirements of the jurisdiction in which it is to be recorded or filed, or is lost by the public office or returned unrecorded or unfiled, as the case may be, because of a defect therein, on or about one hundred-eighty (180) days after the Closing Date, the related Mortgage Loan Seller or its designee shall prepare, at its own expense, a substitute therefor or cure such defect, as the case may be, and thereafter the related Mortgage Loan Seller or its designee shall, at the expense of such Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or filed, as appropriate. If, by the first anniversary of the Closing Date, the Custodian has not received confirmation of the recording or filing as the case may be, of any such Assignment, it shall so advise the related Mortgage Loan Seller who may then pursue such confirmation itself or request that the Custodian pursue such confirmation at the related Mortgage Loan Seller’s expense, and upon such a request and provision for payment of such expenses satisfactory to the Custodian, the Custodian, at the expense of the applicable Mortgage Loan Seller, shall cause a search of the land records of each applicable jurisdiction and of the records of the offices of the applicable Secretary of State for confirmation that the Assignment appears in such records and retain a copy of such confirmation in the related Mortgage File. In the event that confirmation of the recording or filing of an Assignment cannot be obtained, the Custodian or the related Mortgage Loan Seller, as applicable, shall promptly inform the other and the Custodian shall provide such Mortgage Loan Seller with a copy of the Assignment and request the preparation of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for the preparation of replacement Assignments for any Assignments which, having been properly submitted for filing or recording to the appropriate governmental office by the Custodian, fail to appear of record and must be resubmitted. Notwithstanding the foregoing, there shall be no requirement to record any assignment to the Trustee referred to in clause (iii) or (v) of the definition of “Mortgage File,” or to file any UCC-3 to the Trustee referred to in clause (ix) of the definition of “Mortgage File,” in those jurisdictions where, in the written opinion of local counsel (which opinion shall be an expense of the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such recordation and/or filing is not required to protect the Trustee’s interest in the related Mortgage Loan against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the applicable Master Servicer, the applicable Special Servicer, any Sub-Servicer or the Depositor.

(d)      All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans (including, in the case of such Mortgage Loan Seller, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, but in any case excluding the applicable Mortgage Loan Seller’s internal communications (including such communications between such Mortgage Loan Seller and its Affiliates) and underwriting analysis (including documents prepared by the applicable Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents, attorney-client communications that are privileged communications or constitute legal or other due diligence analyses and credit underwriting or due

-148-

diligence analyses or data) that (i) are not required to be a part of a Mortgage File in accordance with the definition thereof and (ii) are reasonably necessary for the servicing of each such Mortgage Loan, together with copies of all documents in each Mortgage File, shall be delivered by the Depositor or the applicable Mortgage Loan Seller to the applicable Master Servicer within five (5) Business Days after the Closing Date and shall be held by such Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders (and as Holder of the Lower-Tier Regular Interests) and, if applicable, on behalf of the related Companion Holder; provided, that with respect to the Mortgage File, if any document required to be contained therein is not available on the date that is five (5) Business Days after the Closing Date, such document shall be delivered to the applicable Master Servicer on or before the date such document is required to be delivered to the Custodian pursuant to Section 2.01(b). Such documents and records shall be any documents and records (with the exception of any items excluded under the immediately preceding sentence) that would otherwise be a part of the Servicing File.

(e)      In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall deliver to the Trustee and the applicable Master Servicer, on or before two (2) Business Days after the Closing Date, a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, as in full force and effect, without amendment or modification, on the Closing Date.

(f)       The Depositor shall use its reasonable best efforts to require that, promptly after the Closing Date, but in all events within three (3) Business Days after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds on deposit in escrow accounts maintained with respect to the Serviced Mortgage Loans transferred by such Mortgage Loan Seller, whether such accounts are held in the name of the applicable Mortgage Loan Seller or any other name to be transferred to the applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.

(g)      [Reserved]

(h)      Each Mortgage Loan Purchase Agreement shall provide that within sixty (60) days after the Closing Date, each Mortgage Loan Seller shall deliver or cause to be delivered the Diligence Files for each of its Mortgage Loans to the Depositor by uploading such Diligence Files to the Designated Site. Promptly upon completion of such delivery of the Diligence Files (but in no event later than sixty (60) days after the Closing Date), the applicable Mortgage Loan Seller shall provide the Depositor a certificate (with a copy (which may be sent by e-mail) to each of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Directing Certificateholder, the Asset Representations Reviewer and the Operating Advisor) certifying that the electronic copies of the documents and information uploaded to the Designated Site constitute all documents and information required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the applicable Mortgage Loan Seller (the “Diligence File Certification”).

(i)        Notwithstanding anything to the contrary contained herein, (i) with respect to a Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to deliver a Mortgage Note (and any related allonge or assignment) to the Custodian shall be limited

-149-

to delivery of only the Mortgage Note (and any related allonge or assignment) held by such party to the Custodian. With respect to a Joint Mortgage Loan that is serviced under this Agreement, the obligations of the applicable Mortgage Loan Sellers to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the applicable Mortgage Loan Sellers may deliver one Mortgage File or one of any other document required to be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each of the applicable Mortgage Loan Sellers.

(j)       Within five (5) Business Days of the Closing Date, the Depositor shall deliver in EDGAR-Compatible Format and Excel format to each Master Servicer via email to ssreports@wellsfargo.com (in the case of the General Master Servicer) and investorreporting@ncb.coop (in the case of the NCB Master Servicer) the Initial Schedule AL File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer), the Initial Schedule AL Additional File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer) and the Annex A-1 to the Prospectus.

(k)       Notwithstanding anything to the contrary contained in this Section 2.01 or in Section 2.02, in connection with each Servicing Shift Whole Loan, (1) instruments of assignment to the Trustee may be in blank and need not be recorded pursuant to this Agreement (other than the endorsements to the note(s) evidencing the related Servicing Shift Mortgage Loan) until the earlier of (i) the Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date and (iii) 180 days after the Closing Date, in which case assignments and recordations shall be effected in accordance with this Section 2.01 until the occurrence, if any, of the Servicing Shift Securitization Date, (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earliest of (i) the Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date in which case such amendment shall be effected in accordance with the terms of this Section 2.01 and (iii) the earlier of (A) 180 days after the Closing Date and (B) any such time as any such letter of credit is required to be drawn upon by the applicable Master Servicer in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (3) on and following the Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Non-Serviced Depositor, at its own expense, shall be (a) entitled to direct in writing, which may be conclusively relied upon by the Custodian, the Custodian to deliver the originals of all the Mortgage Loan documents relating to the Servicing Shift Whole Loan in its possession (other than the original note(s) evidencing the Servicing Shift Mortgage Loan) to the related Non-Serviced Trustee or the related Non-Serviced Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Mortgage Loan documents related to the Servicing Shift Whole Loan so delivered to such Non-Serviced Trustee or such Non-Serviced Custodian, (c) entitled to cause the completion (or, in the event of a recordation as contemplated by clause (1)(ii) of this paragraph, the preparation, execution and delivery) and recordation of instruments of assignment in the name of the related Non-Serviced Trustee or related Non-Serviced Custodian, (d) if the right under

-150-

clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded, and (e) entitled to require the applicable Master Servicer to transfer, and to cooperate with all reasonable requests in connection with the transfer of, the Servicing File, and any Escrow Payments, reserve funds and items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the Servicing Shift Whole Loan to the related Non-Serviced Master Servicer.

Section 2.02   Acceptance by Trustee.   (a) The Trustee, by the execution and delivery of this Agreement (1) acknowledges receipt by it or the Custodian on its behalf, subject to the provisions of Section 2.01, in good faith and without notice of any adverse claim, of the applicable documents specified in clause (i) of the definition of “Mortgage File” with respect to each Mortgage Loan and of all other assets included in the Trust Fund and (2) declares (a) that it or the Custodian on its behalf holds and will hold such documents and the other documents delivered or caused to be delivered by the Mortgage Loan Sellers that constitute the Mortgage Files in the name of the Trust for the benefit of all present and future Certificateholders and Serviced Companion Noteholders, as applicable, and (b) that it holds and will hold such other assets included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders (and for the benefit of the Trustee as holder of the Lower-Tier Regular Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a copy of such Mortgage Note, together with a signed lost note affidavit and appropriate indemnity and shall thereby be deemed to have satisfied the document delivery requirements of Section 2.01 and of this Section 2.02.

(b)       Within sixty (60) days after the Closing Date (or with respect to a Qualified Substitute Mortgage Loan within sixty (60) days after the Due Date in the month of substitution), the Custodian, shall review the Mortgage Loan documents delivered or caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and, promptly following such review (but in no event later than sixty (60) days after the Closing Date), the Custodian shall, in the form attached as Exhibit Q, certify in writing to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Directing Certificateholder (so long as no Consultation Termination Event shall have occurred and be continuing and only with respect to Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Operating Advisor and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full)) that, except as specifically identified in any exception report annexed to such writing (the “Custodial Exception Report”), (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct. With respect to each Mortgage Loan listed on the Custodial Exception Report, the Custodian shall specifically identify such Mortgage Loan together with the nature of such exception (in the form reasonably acceptable to the Custodian and the related Mortgage Loan Seller and separating items

-151-

required to be in the Mortgage File but never delivered from items which were delivered by the related Mortgage Loan Seller but are out for filing or recording and have not been returned by the filing office or the recorder’s office).

(c)       The Custodian shall review the Mortgage Loan documents received subsequent to the Closing Date; and, on or about the first anniversary of the Closing Date, the Custodian shall, in the form attached as Exhibit Q, certify in writing to each of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any related Mortgage Loan as to which a Liquidation Event has occurred) or any related Mortgage Loan specifically identified in any exception report annexed to such writing) that, (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and relate to such Mortgage Loan, if applicable, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct.

(d)      Notwithstanding anything contained in this Section 2.02 and Section 2.03(b) to the contrary, in the case of a Material Defect in any of the documents specified in clauses (ii) through (v), (vii), (viii) and (ix) in the definition of “Mortgage File”, which Material Defect results solely from a delay in the return of the related documents from the applicable filing or recording office and gives rise to a repurchase or substitution obligation on the part of the related Mortgage Loan Seller with respect to the subject Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the Directing Certificateholder, in its sole judgment, may (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class and, with respect to any other Mortgage Loan, only prior to the occurrence and continuance of a Control Termination Event), and the applicable Special Servicer may, in accordance with the Servicing Standard, after the occurrence and during the continuance of a Control Termination Event, permit the related Mortgage Loan Seller in lieu of repurchasing or substituting for the related Mortgage Loan, to deposit with the applicable Master Servicer an amount, to be held in trust in a segregated Eligible Account (which may be a sub-account of the Collection Account), equal to 25% of the Stated Principal Balance of the related Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver to the applicable Master Servicer a letter of credit in such amount, with a copy to the Custodian). Such funds or letter of credit, as applicable, shall be held by the applicable Master Servicer (i) until the date on which the Custodian determines and notifies such Master Servicer that such Material Defect has been cured or the related Mortgage Loan is no longer part of the Trust Fund, at which time such Master Servicer shall return such funds (or letter of credit) to the related Mortgage Loan Seller, or (ii) until same are applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable) as set forth below in this Section 2.02(d) in the event of a repurchase or substitution by the related Mortgage Loan Seller. Notwithstanding the two (2) immediately preceding sentences, if the applicable Master Servicer or the applicable Special Servicer certifies to the Trustee, the Certificate Administrator and the Custodian that it has determined in the exercise of its reasonable

-152-

judgment that the document with respect to which such Material Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on collateral securing the related Mortgage Loan or for any immediate significant servicing obligation, the related Mortgage Loan Seller shall be required to repurchase or substitute for the related Mortgage Loan in accordance with, and to the extent required by, the terms and conditions of Section 2.03(b) and Section 5 of the related Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall not be required to repurchase the Mortgage Loan for a period of ninety (90) days after receipt of a notice to repurchase (together with any applicable extension period) if it is attempting to recover the document from the applicable filing or recording office and provides an officer’s certificate setting forth what actions such Mortgage Loan Seller is pursuing in connection with such recovery. In the event of a repurchase or substitution, upon the date of such repurchase or substitution, and in the event that the related Mortgage Loan Seller has delivered a letter of credit to the applicable Master Servicer in accordance with this Section 2.02(d), such Master Servicer shall, to the extent necessary, draw on the letter of credit and deposit the proceeds of such draw, into its Collection Account to be applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable, in which event, the amount of such funds or proceeds that exceed the Substitution Shortfall Amount shall be returned to the related Mortgage Loan Seller) in accordance with Section 2.03(b). All such funds deposited in a Collection Account shall be invested in Permitted Investments, at the direction and for the benefit of the related Mortgage Loan Seller. Such funds shall be treated as an “outside reserve fund” under the REMIC Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller for federal income tax purposes, which Mortgage Loan Seller shall remain liable for any taxes payable on income or gain with respect thereto.

(e)       It is herein acknowledged that neither the Trustee nor any Custodian is under any duty or obligation (i) to determine whether any of the documents specified in clauses (vi), (vii) and (xii) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Depositor, the Mortgage Loan Sellers or any other Person or (ii) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loans delivered to it to determine that the same are genuine, enforceable, duly authorized, sufficient to perfect and maintain the perfection of a security interest or appropriate for the represented purpose or that they are other than what they purport to be on their face and, with respect to the documents specified in clause (viii) of the definition of the “Mortgage File”, whether the insurance is effective as of the date of the recordation, whether all endorsements or riders issued are included in the file or if the policy has not been issued whether any acceptable replacement document has been dated the date of the related Mortgage Loan funding. Further, with respect to the UCC Financing Statements referenced in the Mortgage File, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Custodian as part of the Mortgage File indicating otherwise, the Custodian may assume, for the purposes of the filings and the certification to be delivered in accordance with this Section 2.02 that the related Mortgage File should include one (1) state level UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two (2) or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing), or if the Custodian has received notice that a particular UCC Financing Statement was filed as a fixture filing, that the related Mortgage File should include

-153-

only a local UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two (2) or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing). The assignments of the UCC Financing Statements to be assigned to the Trust will be delivered on the national forms (or on such other form as may be acceptable for filing or recording in the applicable jurisdiction) and in a format suitable for filing or recording, as applicable, and will be filed or recorded in the jurisdiction(s) where such UCC Financing Statements were originally filed or recorded, as indicated in the documents provided, and in accordance with then-current laws.

(f)       If, in the process of reviewing the Mortgage Files or at any time thereafter, the Custodian finds any document or documents constituting a part of a Mortgage File and required to be delivered or caused to be delivered by the applicable Mortgage Loan Seller (1) not to have been properly executed, (2) subject to the timing requirements of Sections 2.01(b) and 2.01(c), not to have been delivered, (3) to contain information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule or (4) to be defective on its face (each, a “Defect” in the related Mortgage File), the Custodian shall promptly so notify the Depositor, the Trustee, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Directing Certificateholder, the applicable Mortgage Loan Seller (and in no event later than ninety (90) days after the Closing Date and every calendar quarter thereafter until all Defects are corrected) by providing a Custodial Exception Report setting forth for each affected Mortgage Loan, with particularity, the nature of such Defect (in a form reasonably acceptable to the Custodian and such Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by such Mortgage Loan Seller but are out for recording or filing and have not been returned by the recorder’s office or filing office).

(g)       If a Master Servicer or a Special Servicer (i) receives a Repurchase Request or any other request or demand from any Person for a Mortgage Loan Seller to repurchase or replace a Mortgage Loan because of an alleged Defect or Breach (together with a Repurchase Request, a “15Ga-1 Repurchase Request”) (such Master Servicer or such Special Servicer, as applicable, to the extent it receives such 15Ga-1 Repurchase Request, the “Repurchase Request Recipient” with respect to such 15Ga-1 Repurchase Request); or (ii) receives any withdrawal of a 15Ga-1 Repurchase Request by the Person making such 15Ga-1 Repurchase Request or any rejection of a 15Ga-1 Repurchase Request (or such 15Ga-1 Repurchase Request is forwarded to the applicable Master Servicer or the applicable Special Servicer by another party hereto), then the Repurchase Request Recipient shall deliver notice (which may be by electronic format so long as a “backup” hard copy of such notice is also delivered on or prior to the next Business Day) of such 15Ga-1 Repurchase Request or withdrawal or rejection of a 15Ga-1 Repurchase Request (each, a “15Ga-1 Notice”) to the applicable Mortgage Loan Seller (other than in the case of a rejection by such Mortgage Loan Seller) and the Depositor, in each case within ten (10) Business Days from such Repurchase Request Recipient’s receipt thereof.

Each 15Ga-1 Notice shall include (i) the identity of the related Mortgage Loan, (ii) the date the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient or the date any withdrawal of the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient, as applicable, (iii) if known, the basis for the 15Ga-1 Repurchase Request (as asserted in the 15Ga-1 Repurchase Request), (iv) the identity of the Person making such 15Ga-1

-154-

Repurchase Request, and (v) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such 15Ga-1 Repurchase Request.

A Repurchase Request Recipient shall not be required to provide any information in a 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. The Mortgage Loan Purchase Agreements will provide that (i) any 15Ga-1 Notice provided pursuant to this Section 2.02(g) is so provided only to assist the Mortgage Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.02(g) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any 15Ga-1 Repurchase Request that is the subject of a 15Ga-1 Notice.

In the event that the Depositor, the Trustee, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives a 15Ga-1 Repurchase Request, such party shall promptly forward or otherwise provide written notice of such 15Ga-1 Repurchase Request to the applicable Master Servicer, if relating to a Non-Specially Serviced Loan, or to the applicable Special Servicer, if relating to a Specially Serviced Loan or REO Property, and include the following statement in the related correspondence: “This is a ‘15Ga-1 Repurchase Request’ under Section 2.02 of the Pooling and Servicing Agreement relating to BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 requiring action by you as the ‘Repurchase Request Recipient’ thereunder.” Upon receipt of such 15Ga-1 Repurchase Request by the applicable Master Servicer or the applicable Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient in respect of such 15Ga-1 Repurchase Request, and such party shall comply with the procedures set forth in this Section 2.02(g) with respect to such 15Ga-1 Repurchase Request. In no event shall the Custodian, by virtue of this provision, be required to provide any notice other than as set forth in Section 2.02 of this Agreement in connection with its review of the Mortgage File.

If the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives notice or has knowledge of a withdrawal or a rejection of a 15Ga-1 Repurchase Request of which notice has been previously received or given, and such notice was not received from or copied to the applicable Master Servicer or the applicable Special Servicer, then such party shall give notice of such withdrawal or rejection to such Master Servicer or such Special Servicer, as applicable. Any such notice received by the Trustee, the Certificate Administrator, the Certificate Registrar, Operating Advisor, Asset Representations Reviewer or the Custodian shall also be provided to the Depositor and, in the case of a withdrawal notice, to the applicable Mortgage Loan Seller.

In the event that a Mortgage Loan is repurchased or replaced pursuant to Section 2.03 of this Agreement, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) shall promptly notify the Depositor of such repurchase or replacement.

-155-

(h)       The parties hereto acknowledge the obligation of each Mortgage Loan Seller pursuant to Section 2(c) of the related Mortgage Loan Purchase Agreement to deliver, on or prior to the fifth (5th) Business Day after the Closing Date, at its expense, to the Custodian five (5) originals of limited powers of attorney substantially in the form attached as Exhibit F thereto in favor of the Custodian (on behalf of the Trustee) and the applicable Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the applicable Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the related Mortgage Loan Seller, any mortgage loan documents required to be recorded as described in Section 2.01 of this Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)); provided, that if the Mortgage Loan Seller fails to promptly pay the applicable Special Servicer or Custodian the expenses associated with recording documents as provided in this sentence, then such expenses shall be payable out of the Trust (it being understood for the avoidance of doubt that the applicable Mortgage Loan Seller will nonetheless remain responsible for reimbursing the Trust for such expenses). Neither the applicable Special Servicer nor the Custodian shall be liable for any failure of such third party in connection with the foregoing, so long as the third party was chosen with due care (in the case of the Custodian) or in accordance with the Servicing Standard (in the case of the applicable Special Servicer). Each Mortgage Loan Seller has agreed to reasonably cooperate with the Custodian, the Trustee and the applicable Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Loan. The Custodian or the applicable Special Servicer, as applicable, shall submit such documents for recording, at the related Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the applicable Special Servicer, as applicable, shall not submit such assignments for recording if the related Mortgage Loan Seller produces evidence that it or a third-party on its behalf has sent any such assignment for recording and certifies that such Mortgage Loan Seller is awaiting its return from the applicable recording office.

Section 2.03   Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties. (a) The Depositor hereby represents and warrants that:

(i)     The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and

-156-

authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;

(ii)     Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(iii)    The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor’s assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;

(iv)    There is no action, suit or proceeding pending or, to the Depositor’s knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and

(v)    The Depositor is the lawful owner of the Mortgage Loans with the full right to transfer the Mortgage Loans to the Trust, and the Mortgage Loans have been validly transferred to the Trust.

(b)     After receipt of a Repurchase Request, the Enforcing Servicer shall request in writing that the applicable Mortgage Loan Seller, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the applicable Mortgage Loan Seller’s receipt of such notice of such Repurchase Request or, if earlier, such Mortgage Loan Seller’s discovery of such Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) discovery by the related Mortgage Loan Seller or any party to this Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to this Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at such Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to this Agreement, (B) repurchase the affected Mortgage Loan

-157-

or successor REO Loan (but excluding any related Companion Loan) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof), at the applicable Purchase Price and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into the applicable Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the applicable Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or successor REO Loan (but excluding any related Companion Loan) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an officer’s certificate to the Trustee, the Certificate Administrator (who shall promptly deliver a copy of such officer’s certificate to the 17g-5 Information Provider), the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the applicable Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the related Mortgage Loan Seller to have received the recorded document, then such Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date for so long as such Mortgage Loan Seller certifies to the Trustee, the applicable Master Servicer, the applicable Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that such Material Defect is still in effect solely because of its failure to have received the recorded document and that such Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan

-158-

to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the applicable Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the applicable Mortgage Loan Seller are to be remitted by wire transfer to the applicable Master Servicer for deposit into the applicable Collection Account. In the event the Special Servicer is required to enforce the Repurchase Request related to a Non-Specially Serviced Loan under this Section 2.03(b), within five (5) days of request by the Special Servicer, the Master Servicer shall deliver to the Special Servicer a copy of the Servicing File with respect to any such Non-Specially Serviced Loan.

If a Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, makes a cash payment pursuant to an agreement or a settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, for so long as no Control Termination Event has occurred and is continuing and in respect of any Mortgage Loan that is not an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, in either case, with the consent of the Directing Certificateholder or the Holder of the majority of the Controlling Class, the consent of the Directing Certificateholder) (each such payment, a “Loss of Value Payment”) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be deposited into the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g) of this Agreement. In connection with any Loss of Value Payment with respect to any Non-Specially Serviced Loan, the applicable Master Servicer shall promptly provide the applicable Special Servicer, but in any event within the time frames and in the manner provided in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event), with the Servicing File and all information, documents and records relating to such Non-Specially Serviced Loan and any related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise reasonably available to the applicable Master Servicer, and reasonably required by the applicable Special Servicer to permit the applicable Special Servicer to calculate the Loss of Value Payment, to the extent set forth in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event). The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the applicable Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust, provided that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in the related Mortgage Loan Purchase Agreement or this Section 2.03 (excluding this paragraph) (including any right to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) such Mortgage Loan), (ii) such

-159-

Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) may not be cured by a Loss of Value Payment.

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the related Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable by the related Mortgage Loan Seller to the Asset Representations Reviewer to the extent not previously paid by such Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided that if the Breach relates to a Joint Mortgage Loan, each Mortgage Loan Seller shall only be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note sold by such Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the related Mortgage Loan Seller shall remit the amount of such costs and expenses to the Enforcing Servicer for disbursement to the applicable Persons and, upon its making such remittance, the related Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the related Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the related Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the related Mortgage Loan Seller. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-off Date and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust on or prior to the related date of repurchase or substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by such Master Servicer (or by such Special Servicer to the applicable Master Servicer who shall remit such funds) to the applicable Mortgage Loan Seller effecting the related repurchase or substitution promptly following receipt. Notwithstanding anything contained in this Agreement or the related Mortgage Loan Purchase Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the applicable Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan if (i) the related Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by a party to the applicable Mortgage Loan Purchase Agreement, or this Agreement, to provide prompt notice as required by the terms of the applicable Mortgage Loan

-160-

Purchase Agreement, or this Agreement, after such party has actual knowledge of such Material Defect (knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File) (iii) such delay precludes such Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable and (iv) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage. Notwithstanding the foregoing, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a borrower), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a borrower), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan shall not be a Material Defect.

Pursuant to each Mortgage Loan Purchase Agreement, if there is a Material Defect with respect to one or more Mortgaged Properties with respect to a Mortgage Loan, the related Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the related Mortgage Loan Seller provides an opinion of counsel to the effect that such release in lieu of repurchase would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Trust and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

(c)       Subject to the applicable Mortgage Loan Seller’s right to cure as contemplated above in this Section 2.03, and further subject to Section 2.01(b) and Section 2.01(c), any of the following shall cause a document in the Mortgage File to be deemed to have a Material Defect: (i) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity with a copy of the Mortgage Note that appears to be regular on its face; (ii) the absence from the Mortgage File of the original signed Mortgage that appears to be regular on its face, unless there is included in the Mortgage File either a copy of the Mortgage with evidence of recording thereon or a copy of the Mortgage and a certificate from the related Mortgage Loan Seller stating that the original signed Mortgage was sent for recordation; (iii) the absence from the Mortgage File of the item called for by clause (viii) of the definition of “Mortgage File”; (iv) the absence from the Mortgage File of any intervening assignments required to create a complete chain of assignments to the Trustee on behalf of the Trust, unless there is included in the Mortgage File either a copy of the assignment with evidence of recording thereon or a copy of the intervening assignment and a certificate from the related Mortgage Loan Seller stating that the original intervening assignments were sent for filing or recordation, as applicable; (v) the absence from the Mortgage File of any required letter of credit; or (vi) with respect to any related leasehold Mortgage Loan, the absence from the related Mortgage File of a copy (or an original, if available) of the related Ground Lease; provided, however, that no Defect (except the Defects previously described in sub-clauses (i) through (vi) of this Section 2.03(c)) shall be considered to materially and adversely affect the value of the related Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the document with respect to which the Defect exists is

-161-

required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligation; provided, further, that no Defect relating to any Non-Serviced Mortgage Loan previously described in sub-clauses (ii) through (vi) of this Section 2.03(c) shall be considered to materially and adversely affect the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the related Mortgage Loan Seller, after receipt of notice of such Defect, is unable to produce a copy of the document with respect to which the Defect exists within a reasonable period after receiving such notice or otherwise establish that the original or copy, as applicable, of such document has been delivered, in compliance with the terms of the related Non-Serviced PSA, to the custodian under the related Non-Serviced PSA. Notwithstanding the foregoing, the delivery of executed escrow instructions or a binding commitment to issue a lender’s title insurance policy, as provided in clause (viii) of the definition of “Mortgage File” herein, in lieu of the delivery of the actual policy of lender’s title insurance, shall not be considered a Material Defect with respect to any Mortgage File if such actual policy is delivered to the Custodian not later than eighteen (18) months following the Closing Date. Notwithstanding the foregoing, to the extent a Mortgage Loan Seller has otherwise complied with its document delivery requirements under this Agreement and the related Mortgage Loan Purchase Agreement, in the event that the Custodian has acknowledged receipt pursuant to Section 2.02 above of a document that is part of the Mortgage File or a Mortgage Loan Seller can otherwise prove delivery of the document, and the Custodian subsequently loses a document, the fact that such document is lost may not be utilized as the basis for a claim of a Material Defect against a Mortgage Loan Seller pursuant to Section 5(a) of the related Mortgage Loan Purchase Agreement and/or this Section 2.03 and the Custodian shall be liable for any such loss to the extent provided for in Section 8.01.

(d)      In connection with any repurchase of, or substitution of a Qualified Substitute Mortgage Loan for a Mortgage Loan contemplated by this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer of a trust receipt executed by the applicable Mortgage Loan Seller evidencing such repurchase or substitution, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer (other than attorney-client communications that are privileged communications), and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned, as the case may be to the applicable Mortgage Loan Seller in the same manner as provided in Section 5 of the related Mortgage Loan Purchase Agreement and, if applicable, the definition of “Mortgage File” herein, so as to vest in such Mortgage Loan Seller the legal and beneficial ownership of such repurchased or substituted Mortgage Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents.

(e)      Section 5 of each of the Mortgage Loan Purchase Agreements and the provisions of this Section 2.03 provide the sole remedy available to the Certificateholders (subject

-162-

to the limitations on the rights of the Certificateholders under this Agreement), or the Trustee on behalf of the Certificateholders, the applicable Master Servicer or the applicable Special Servicer, with respect to any Material Defect.

(f)      The Enforcing Servicer shall, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests), enforce the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, if any, shall be carried out in the best interest of the Certificateholders in accordance with the Servicing Standard. Any costs incurred by an applicable Master Servicer or applicable Special Servicer with respect to the enforcement of the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement shall, to the extent not recovered from the applicable Mortgage Loan Seller, be deemed to be Servicing Advances to the extent not otherwise provided for herein. The applicable Master Servicer or the applicable Special Servicer, as applicable, shall be reimbursed for the reasonable costs of such enforcement: first, from a specific recovery, if any, of costs, expenses or attorneys’ fees against the applicable Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to Section 3.05(a)(vii) herein out of general collections on the Mortgage Loans on deposit in the related Collection Account. Any costs, expenses or attorneys’ fees related to a repurchase of a Companion Loan shall be paid pursuant to the related Intercreditor Agreement or pursuant to the documents related to an Other Securitization, if applicable.

(g)      If a Mortgage Loan Seller incurs any expense in connection with the curing of a Breach that constitutes a Material Defect, which also constitutes a default under the related Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall have a right, and shall be subrogated to the rights of the Trustee and the Trust under the Mortgage Loan to recover the amount of such expenses from the related Mortgagor; provided, however, that such Mortgage Loan Seller’s rights pursuant to this Section 2.03(g) shall be junior, subject and subordinate to the rights of the Trustee, the Certificate Administrator, the Trust, each applicable Master Servicer and each applicable Special Servicer to recover amounts owed by the related Mortgagor under the terms of such Mortgage Loan including, without limitation, the rights to recover unreimbursed Advances, accrued and unpaid interest on Advances at the Reimbursement Rate, fees owed to each applicable Master Servicer or each applicable Special Servicer, and unpaid or unreimbursed expenses of the Trustee, the Certificate Administrator, the Trust, each applicable Master Servicer or each applicable Special Servicer allocable to such Mortgage Loan. The Enforcing Servicer shall use reasonable efforts to recover such expenses for such Mortgage Loan Seller to the extent consistent with the Servicing Standard, but taking into account the subordinate nature of the reimbursement to the related Mortgage Loan Seller; provided, however, that the Enforcing Servicer determines in the exercise of its sole discretion consistent with the Servicing Standard that such actions by it will not impair the Enforcing Servicer’s collection or recovery of principal, interest and other sums due with respect to the related Mortgage Loan that would otherwise be payable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator and the Certificateholders pursuant to the terms of this Agreement; provided, further, that such Special Servicer may waive the collection of amounts due on behalf of such Mortgage Loan Seller in its sole discretion in accordance with the Servicing Standard.

-163-

(h)       If (i) any Crossed Underlying Loan is required to be repurchased or substituted for in the manner described in this Section 2.03 and (ii) the applicable Material Defect does not constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group (without regard to this paragraph), then the applicable Material Defect shall be deemed to constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group for purposes of this paragraph, and the related Mortgage Loan Seller shall repurchase or substitute for such other Crossed Underlying Loan(s) in the related Crossed Mortgage Loan Group as provided in Section 2.03(b) unless such other Crossed Underlying Loans satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans in such Crossed Mortgage Loan Group satisfy the Crossed Underlying Loan Repurchase Criteria, the applicable Mortgage Loan Seller may elect either to repurchase or substitute for only the affected Crossed Underlying Loan(s) as to which the related Material Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group. Any reserve or other cash collateral or letters of credit securing the Crossed Underlying Loans shall be allocated among the related Crossed Underlying Loans in accordance with the related Mortgage Loan documents or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Except as provided in this Section 2.03(h) and Section 2.03(i), all other terms of the related Mortgage Loans shall remain in full force and effect without any modification thereof.

(i)        Notwithstanding the foregoing, if the related Mortgage provides for the partial release of one or more of the Crossed Underlying Loans, the Depositor may cause the related Mortgage Loan Seller to repurchase only that Crossed Underlying Loan required to be repurchased pursuant to this Section 2.03, pursuant to the partial release provisions of the related Mortgage; provided, however, that (i) the remaining related Crossed Underlying Loan(s) fully comply with the terms and conditions of the related Mortgage, this Agreement and the related Mortgage Loan Purchase Agreement, including the Crossed Underlying Loan Repurchase Criteria, (ii) in connection with such partial release, the related Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan Seller’s expense) to the effect that the contemplated action will not cause an Adverse REMIC Event and (iii) in connection with such partial release, the related Mortgage Loan Seller delivers or causes to be delivered to the Custodian original modifications to the Mortgage prepared and executed in connection with such partial release.

(j)        With respect to any Crossed Underlying Loan, to the extent that the applicable Mortgage Loan Seller is required to repurchase or substitute for such Crossed Underlying Loan in the manner prescribed in Section 2.03(h) or Section 2.03(i) while the Trustee continues to hold any other Crossed Underlying Loans in the related Crossed Mortgage Loan Group, the applicable Mortgage Loan Seller and the Enforcing Servicer, on behalf of the Trustee, as assignee of the Depositor, will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies against the other’s Primary Collateral but each will be permitted to exercise remedies against the Primary Collateral securing its respective related Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of the remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Underlying Loans held by such party, then both parties have agreed in the related Mortgage Loan Purchase Agreement to

-164-

forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Mortgage Loan can be modified in a manner that complies with the related Mortgage Loan Purchase Agreement to remove the threat of material impairment as a result of the exercise of remedies.

(k)       (i) In the event an Initial Requesting Certificateholder delivers a written request to a party to this Agreement that a Mortgage Loan be repurchased by the applicable Mortgage Loan Seller alleging the existence of a Material Defect with respect to such Mortgage Loan and setting forth the basis for such allegation (a “Certificateholder Repurchase Request”), such party shall promptly forward that Certificateholder Repurchase Request to the applicable Master Servicer and the applicable Special Servicer, and the Enforcing Servicer shall promptly forward the Certificateholder Repurchase Request to the related Mortgage Loan Seller and each other party to this Agreement. Subject to Section 2.03(l), the Enforcing Servicer shall be the Enforcing Party with respect to a Certificateholder Repurchase Request.

(ii)       In the event that the Depositor, a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (solely in its capacity as operating advisor) or the Directing Certificateholder identifies a Material Defect with respect to a Mortgage Loan (without implying any duty of such person to make, or to attempt to make, such a discovery), that party shall deliver prompt written notice of such Material Defect to each other party to this Agreement, the Directing Certificateholder and the related Mortgage Loan Seller identifying the applicable Mortgage Loan and setting forth the basis for such allegation (a “PSA Party Repurchase Request” and each of a Certificateholder Repurchase Request or a PSA Party Repurchase Request, the “Repurchase Request”). The Enforcing Servicer shall act as the Enforcing Party and enforce the rights of the Trust against the related Mortgage Loan Seller with respect to a PSA Party Repurchase Request.

(iii)       In the event the Repurchase Request is not Resolved within one hundred-eighty (180) days after the Mortgage Loan Seller receives the Repurchase Request (a “Resolution Failure”), then the provisions described in Section 2.03(l) below shall apply. Receipt of the Repurchase Request shall be deemed to occur two (2) Business Days after the Repurchase Request is sent to the related Mortgage Loan Seller. A Resolved Repurchase Request shall not preclude the applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) from exercising any of their respective rights related to a Material Defect in the manner and timing otherwise set forth in this Agreement, in the related Mortgage Loan Purchase Agreement or as provided by law.

(l)       (i) After a Resolution Failure occurs with respect to a Repurchase Request regarding a Mortgage Loan (whether the Repurchase Request was initiated by an Initial Requesting Certificateholder, a party to this Agreement or the Directing Certificateholder), the Enforcing Servicer shall send a notice (a “Proposed Course of Action Notice”) to the Initial Requesting Certificateholder, if any, to the address specified in the Initial Requesting Certificateholder’s Repurchase Request, and to the Certificate Administrator (which shall be delivered via electronic mail to trustadministrationgroup@wellsfargo.com). The Certificate Administrator shall make the Proposed Course of Action Notice available to all other Certificateholders and Certificate Owners

-165-

by posting such notice on the Certificate Administrator’s Website indicating the Enforcing Servicer’s intended course of action with respect to the Repurchase Request (a “Proposed Course of Action”). The Proposed Course of Action Notice shall include (a) a request to Certificateholders to indicate their agreement with or dissent from such Proposed Course of Action by clearly marking “agree” or “disagree” to the Proposed Course of Action on such notice within thirty (30) days after the date of such notice and a disclaimer that responses received after such thirty (30)-day period will not be taken into consideration, (b) a statement that in the event any Certificateholder disagrees with the Proposed Course of Action, the Enforcing Servicer (either as the Enforcing Party or as the Enforcing Servicer in circumstances where a Certificateholder is acting as the Enforcing Party) shall be compelled to follow the course of action agreed to and/or proposed by the majority of the responding Certificateholders that involves referring the matter to mediation or arbitration, as the case may be, (c) a statement that responding Certificateholders will be required to certify their holdings in connection with such response, (d) a statement that only responses clearly marked “agree” or “disagree” with such Proposed Course of Action will be taken into consideration and (e) instructions for responding Certificateholders to send their responses to the Enforcing Servicer and the Certificate Administrator. The Certificate Administrator shall, within three (3) Business Days after the expiration of the 30-day response period, tabulate the responses received from the Certificateholders and share the results with the Enforcing Servicer. The Certificate Administrator shall only count responses timely received that clearly indicate agreement or dissent with the related Proposed Course of Action and additional verbiage or qualifying language shall not be taken into consideration for purposes of determining whether the related Certificateholder agrees or disagrees with the Proposed Course of Action. The Certificate Administrator shall be under no obligation to answer any questions from Certificateholders regarding such Proposed Course of Action. For the avoidance of doubt, the Certificate Administrator’s obligations in connection with this Section 2.03(l) shall be limited solely to tabulating Certificateholder responses of “agree” or “disagree” to the Proposed Course of Action, and such obligation shall not be construed to impose any enforcement obligation on the Certificate Administrator. The Enforcing Servicer may conclusively rely (without investigation) on the Certificate Administrator’s tabulation of the responses of the responding Certificateholders. If (a) the Enforcing Servicer’s intended course of action with respect to the Repurchase Request does not involve pursuing further action to exercise rights against the related Mortgage Loan Seller with respect to the Repurchase Request and the Initial Requesting Certificateholder, if any, or any other Certificateholder or Certificate Owner wishes to exercise its right to refer the matter to mediation (including nonbinding arbitration) or arbitration, or (b) the Enforcing Servicer’s intended course of action is to pursue further action to exercise rights against the applicable Mortgage Loan Seller with respect to the Repurchase Request but the Initial Requesting Certificateholder, if any, or any other Certificateholder (other than the holder of the RR Interest) or Certificate Owner does not agree with the dispute resolution method selected by the Enforcing Servicer, then the Initial Requesting Certificateholder, if any, or such other Certificateholder or Certificate Owner may deliver to the Enforcing Servicer a written notice (a “Preliminary Dispute Resolution Election Notice”) within thirty (30) days from the date the Proposed Course of Action Notice is posted on the Certificate Administrator’s Website (the “Dispute Resolution Cut-off Date”) indicating its intent to exercise its right to refer the matter to either mediation or arbitration. In the event any Certificateholder or Certificate Owner entitled to do so delivers a Preliminary Dispute Resolution Election Notice, and the Enforcing Servicer has also received responses from other Certificateholders or Certificate Owners supporting the Enforcing Servicer’s initial Proposed

-166-

Course of Action, such responses will be considered Preliminary Dispute Resolution Election Notices supporting the Proposed Course of Action.

(ii)        If neither the Initial Requesting Certificateholder, if any, nor any other Certificateholder or Certificate Owner entitled to do so delivers a Preliminary Dispute Resolution Election Notice prior to the Dispute Resolution Cut-off Date, no Certificateholder or Certificate Owner otherwise entitled to do so shall have the right to refer the Repurchase Request to mediation or arbitration, and the Enforcing Servicer shall be the sole party entitled to determine a course of action, including, but not limited to, enforcing the Trust’s rights against the related Mortgage Loan Seller, subject to any consent or consultation rights of the Directing Certificateholder pursuant to Section 6.08.

(iii)        Promptly and in any event within ten (10) Business Days following receipt of a Preliminary Dispute Resolution Election Notice from (a) the Initial Requesting Certificateholder, if any, or (b) any other Certificateholder (other than of the RR Interest) or Certificate Owner (each of clauses (a) and (b), a “Requesting Certificateholder”), the Enforcing Servicer shall consult with each Requesting Certificateholder regarding such Requesting Certificateholder’s intention to elect either mediation (including nonbinding arbitration) or arbitration as the dispute resolution method with respect to the Repurchase Request (the “Dispute Resolution Consultation”) so that such Requesting Certificateholder may consider the views of the Enforcing Servicer as to the claims underlying the Repurchase Request and possible dispute resolution methods, such discussions to occur and be completed no later than ten (10) Business Days following the Dispute Resolution Cut-off Date. The Enforcing Servicer shall be entitled to establish procedures the Enforcing Servicer deems in good faith to be appropriate relating to the timing and extent of such consultations. No later than five (5) Business Days after completion of the Dispute Resolution Consultation, a Requesting Certificateholder may provide a final notice to the Enforcing Servicer indicating its decision to exercise its right to refer the matter to either mediation or arbitration (“Final Dispute Resolution Election Notice”).

(iv)       If, following the Dispute Resolution Consultation, no Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then the Enforcing Servicer will continue to act as the Enforcing Party and will remain obligated under this Agreement to determine a course of action including, but not limited to, enforcing the rights of the Trust with respect to the Repurchase Request and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration.

(v)         If a Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then such Requesting Certificateholder shall become the Enforcing Party and must promptly submit the matter to mediation (including nonbinding arbitration) or arbitration. If more than one Requesting Certificateholder timely deliver a Final Dispute Resolution Election Notice, then such Requesting Certificateholders shall collectively become the Enforcing Party, and the holder or holders of a majority of the Voting Rights among such Requesting Certificateholders shall be entitled to make all decisions relating to such mediation or arbitration. If, however, no Requesting Certificateholder commences arbitration or mediation pursuant to the terms of

-167-

this Agreement within thirty (30) days after delivery of its Final Dispute Resolution Election Notice to the Enforcing Servicer, then (A) the rights of a Requesting Certificateholder to act as the Enforcing Party shall terminate and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration, (B) if the Proposed Course of Action Notice indicated that the Enforcing Servicer shall take no further action with respect to the Repurchase Request, then the related Material Defect shall be deemed waived for all purposes under this Agreement and the related Mortgage Loan Purchase Agreement; provided, however, that such Material Defect shall not be deemed waived with respect to a Requesting Certificateholder, any other Certificateholder or Certificate Owner or the Enforcing Servicer to the extent there is a material change in the facts and circumstances known to such party at the time when the Proposed Course of Action Notice is posted on the Certificate Administrator’s Website, and (C) if the Proposed Course of Action Notice had indicated a course of action other than the course of action under clause (B), then the Enforcing Servicer shall again become the Enforcing Party and, as such, shall be the sole party entitled to enforce the Trust’s rights against the related Mortgage Loan Seller.

(vi)      Notwithstanding the foregoing, the dispute resolution provisions described above under this Section 2.03(l) shall not apply, and the Enforcing Servicer shall remain the Enforcing Party, if the Enforcing Servicer has commenced litigation with respect to the Repurchase Request, or determines in accordance with the Servicing Standard that it is in the best interest of Certificateholders to commence litigation with respect to the Repurchase Request to avoid the running of any applicable statute of limitations.

(vii)    In the event a Requesting Certificateholder becomes the Enforcing Party, the Enforcing Servicer, on behalf of the Trust, shall remain a party to any proceedings against the related Mortgage Loan Seller as further described herein.

(viii)   For the avoidance of doubt, none of the Depositor, any Mortgage Loan Seller nor any of their respective affiliates shall be entitled to be an Initial Requesting Certificateholder or a Requesting Certificateholder.

(ix)     The Requesting Certificateholder is entitled to elect either mediation or arbitration in its sole discretion; however, the Requesting Certificateholder shall not be entitled to then utilize the alternative method in the event that the initial method is unsuccessful.

(m)      If the Enforcing Party selects mediation (including nonbinding arbitration), the following provisions shall apply:

(i)       The mediation shall be administered by a nationally recognized mediation services provider selected by the related Mortgage Loan Seller within sixty (60) days of receipt of written notice of the Enforcing Party’s selection of mediation (such provider, the “Mediation Services Provider”) in accordance with published mediation procedures (the “Mediation Rules”) promulgated by the Mediation Services Provider.

-168-

(ii)    The mediator shall be impartial, an attorney admitted to practice in the state of New York and have at least fifteen (15) years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Mediation Services Provider. Upon being supplied a list of at least ten (10) potential qualified mediators by the Mediation Services Provider each party will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential mediators in order of preference. The Mediation Services Provider shall select the mediator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

(iii)    Prior to accepting an appointment, the mediator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

(iv)   The parties shall use commercially reasonable efforts to conduct an organizational conference to begin the mediation within ten (10) Business Days of the selection of the mediator and to conclude the mediation within sixty (60) days thereafter.

(v)     The expenses of any mediation shall be allocated among the parties to the mediation including, if applicable, between the Enforcing Party and the Enforcing Servicer, as mutually agreed by the parties as part of the mediation.

(vi)    Out of pocket costs and expenses of the applicable Special Servicer for mediation or arbitration, to the extent not agreed to be paid by the Enforcing Party or another party (in the case of mediation) or allocated to the Enforcing Party or another party (in the case of arbitration) shall be reimbursable as a Servicing Advance.

(n)     If the Enforcing Party selects third-party arbitration, the following provisions will apply:

(i)     The arbitration shall be administered by a nationally recognized arbitration services provider selected by the related Mortgage Loan Seller (such provider, the “Arbitration Services Provider”) in accordance with published arbitration procedures (the “Arbitration Rules”) promulgated by the Arbitration Services Provider.

(ii)    The arbitrator shall be impartial, an attorney admitted to practice in the State of New York and have at least fifteen (15) years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Arbitration Services Provider. Upon being supplied a list of at least ten (10) potential arbitrators by the Arbitration Services Provider each party will have the right to exercise two (2) peremptory challenges within fourteen (14) days and to rank the remaining potential arbitrators in order of preference. The Arbitration Services Provider will select the arbitrator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

-169-

(iii)      Prior to accepting an appointment, the arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

(iv)      After consulting with the parties at an organizational conference held not later than ten (10) Business Days after its appointment, the arbitrator shall devise procedures and deadlines for the arbitration, to the extent not already agreed to by the parties, with the goal of expediting the proceeding and completing the arbitration within 120 days. The arbitrator shall have the authority to schedule, hear, and determine any and all motions, including dispositive and discovery motions, in accordance with the Federal Rules of Civil Procedure for non-jury matters (the “Rules”) (including summary judgment and other prehearing and post hearing motions), and will do so by reasoned decision on the motion of any party to the arbitration.

(v)       Notwithstanding whatever other discovery may be available under the Rules, unless otherwise agreed by the parties, each party to the arbitration will be presumptively limited to the following discovery in the arbitration: (A) the parties shall reasonably and in good faith voluntarily produce to all other parties all documents upon which they intend to rely and all documents they reasonably and in good faith believe to be relevant to the claims or defenses asserted by any of the parties, (B) party witness depositions (excluding Rule 30b-6 witnesses), and (C) expert witness depositions, provided that the arbitrator shall have the ability to grant the parties, or either of them, additional discovery to the extent that the arbitrator determines good cause is shown that such additional discovery is reasonable and necessary.

(vi)      The arbitrator shall make its final determination no later than thirty (30) days after the conclusion of the hearings and submission of any post-hearing submissions. The arbitrator shall resolve the dispute in accordance with the terms of the related Mortgage Loan Purchase Agreement and this Agreement, and may not modify or change those agreements in any way or award remedies not consistent with those agreements. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by them. Interest on any monetary award shall bear interest from the date of the Final Dispute Resolution Election Notice at the Prime Rate. In its final determination, the arbitrator shall determine and award the costs of the arbitration (including the fees of the arbitrator, cost of any record or transcript of the arbitration, and administrative fees) and shall award reasonable attorneys’ fees to the parties to the arbitration as determined by the arbitrator in its reasonable discretion. The determination of the arbitrator shall be by a reasoned decision in writing and counterpart copies will be promptly delivered to the parties. The final determination of the arbitrator shall be final and non-appealable, except for actions to confirm or vacate the determination permitted under federal or state law, and may be enforced in any court of competent jurisdiction.

(vii)     By selecting arbitration, the selecting party is giving up the right to sue in court, including the right to a trial by jury.

(viii)    No person may bring a putative or certificated class action to arbitration.

-170-

(o)       The following provisions will apply to both mediation and third-party arbitration:

(i)        Any mediation or arbitration will be held in New York, New York unless another location is agreed by all parties;

(ii)       If the dispute involves a matter that cannot effectively be remedied by the payment of damages, or if there be any dispute relating to arbitration or the arbitrators that cannot be resolved promptly by the arbitrators or the Arbitration Services Provider, then any party in such instance may during the pendency of the arbitration proceedings seek temporary equitable remedies, pending the final decision of the arbitration panel, solely by application in the Southern District of New York if such court shall have subject matter jurisdiction, or if the Southern District of New York has no jurisdiction, then the Supreme Court of the State of New York for the County of New York. The arbitration proceedings shall not be stayed unless so ordered by the court.

(iii)      The details and/or existence of any Repurchase Request, any informal meetings, mediations or arbitration proceedings conducted under this Section 2.03, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties’ attempt to informally resolve any Repurchase Request, will be confidential, privileged and inadmissible for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding (including any proceeding under this Section 2.03). Such information will be kept strictly confidential and shall not be disclosed or shared with any third party (other than a party’s attorneys, experts, accountants and other agents and representatives, as reasonably required in connection with any resolution procedure under this Section 2.03), except as otherwise required by law, regulatory requirement or court order. If any party to a resolution procedure receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for such confidential information, the recipient shall promptly notify the other party to the resolution procedure and shall provide the other party with a reasonable opportunity to object to the production of its confidential information.

(iv)      In the event a Requesting Certificateholder is the Enforcing Party, the agreement with the arbitrator or mediator, as the case may be, shall be required to contain an acknowledgment that the Trust, or the Enforcing Servicer on its behalf, shall be a party to any arbitration or mediation proceedings solely for the purpose of being the beneficiary of any award in favor of the Enforcing Party; provided that the degree and extent to which the Enforcing Servicer actively prepares for and participates in such proceeding shall be determined by such Enforcing Servicer in consultation with the Directing Certificateholder (provided that a Consultation Termination Event has not occurred and is not continuing) and in accordance with the Servicing Standard. All amounts recovered by the Enforcing Party shall be paid to the Trust, or the Enforcing Servicer on its behalf, and deposited in the applicable Collection Account. The agreement with the arbitrator or mediator, as the case may be, shall provide that in the event a Requesting Certificateholder is allocated any related costs and expenses pursuant to the terms of the arbitrator’s decision or the agreement reached in mediation, neither the Trust nor the Enforcing Servicer acting on its

-171-

behalf shall be responsible for any such costs and expenses allocated to the Requesting Certificateholder.

(v)       In the event a Requesting Certificateholder is the Enforcing Party, the Requesting Certificateholder is required to pay any expenses allocated to the Enforcing Party in the arbitration proceedings or any expenses that the Enforcing Party agrees to bear in the mediation proceedings.

(vi)      The Trust (or the Trustee or the Enforcing Servicer, acting on its behalf), the Depositor or any Mortgage Loan Seller shall be permitted to redact any personally identifiable customer information included in any information provided for purposes of any mediation or arbitration. Each party to the proceedings shall be required to agree to keep confidential the details related to the Repurchase Request and the dispute resolution identified in connection with such procedures; provided, however, that (A) the Certificateholders shall be permitted to communicate prior to the commencement of any such proceedings to the extent provided in Section 5.06 and (B) the Enforcing Servicer shall be permitted to include such information in any 15Ga-1 Notice as it is required pursuant to Section 2.02(g).

(vii)     For the avoidance of doubt, in no event shall the exercise of any right of a Requesting Certificateholder to refer a Repurchase Request to mediation or arbitration or participation in such mediation or arbitration affect in any manner the ability of the Enforcing Servicer to perform its obligations with respect to a Mortgage Loan (including without limitation, a liquidation, foreclosure, negotiation of a loan modification or workout, acceptance of a discounted pay off or deed in lieu, or bankruptcy or other litigation) or the exercise of any rights of a Directing Certificateholder.

(viii)    In the event that the method of dispute resolution selected is unsuccessful, the Requesting Certificateholder may not elect to then utilize the alternative method.

(ix)       Any out-of-pocket expenses required to be borne by or allocated to the Enforcing Servicer in a mediation or arbitration or related responsibilities pursuant to this Agreement shall be reimbursable as additional Trust Fund expenses.

(p)       Notwithstanding anything to the contrary herein, with respect to any Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to repurchase with respect to a Material Defect with respect to the related Mortgage Loan shall be limited to a repurchase with respect to the Mortgage Note it sold to the Depositor in accordance with the related Mortgage Loan Purchase Agreement. With respect to any Joint Mortgage Loan, any cure by either of the applicable Mortgage Loan Sellers with respect to the Mortgage Note sold by it to the Depositor in accordance with the related Mortgage Loan Purchase Agreement that also cures the Material Defect with respect to the entire related Joint Mortgage Loan shall satisfy the cure obligations of both Mortgage Loan Sellers with respect to such Joint Mortgage Loan.

Section 2.04   Execution of Certificates; Issuance of Lower-Tier Regular Interests. The Trustee hereby acknowledges the assignment to it of the Mortgage Loans and, subject to Section 2.01 and Section 2.02, the delivery to the Custodian of the Mortgage Files and a fully

-172-

executed original counterpart of each of the Mortgage Loan Purchase Agreements, together with the assignment to it of all of the other assets included in the Lower-Tier REMIC and the Grantor Trust. Concurrently with such assignment and delivery, (i) in exchange for the Mortgage Loans (other than Excess Interest) and the other assets comprising the Lower-Tier REMIC, receipt of which is hereby acknowledged, the Trustee acknowledges the issuance of the Lower-Tier Regular Interests and the Class LR Interest to the Depositor; (ii) the Trustee acknowledges the creation of the Grantor Trust (as described in Section 2.05 below); (iii) the Trustee acknowledges the contribution by the Depositor of the Lower-Tier Regular Interests to the Upper-Tier REMIC; (iv) immediately thereafter, in exchange for the Lower-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class UR Interest and the Exchangeable Upper-Tier Regular Interests and has caused the Certificate Registrar to execute and caused the Authenticating Agent to authenticate and to deliver to or upon the order of the Depositor, the Regular Certificates and the Class R Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing, together with the Exchangeable Upper-Tier Regular Interests, the entire beneficial ownership of the Upper-Tier REMIC (and in the case of the Class R Certificates, the Class LR Interest and the Class UR Interest); (v) the Trustee acknowledges the contribution by the Depositor of the Exchangeable Upper-Tier Regular Interests to the Grantor Trust; (vi) the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class V Certificates and has caused the Certificate Registrar to execute and cause the Authenticating Agent to deliver to or upon the order of the Depositor such Certificates, and the Depositor hereby acknowledges the receipt by it, or its designees, of such Certificates in authorized denominations, evidencing beneficial ownership of their respective portions of the Grantor Trust; and (vii) immediately thereafter, in exchange for the Exchangeable Upper-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Exchangeable Certificates and has caused the Certificate Administrator to execute and caused the Authentication Agent to authenticate and to deliver to or upon the order of the Depositor, the Exchangeable Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing beneficial ownership of their respective portions of the Grantor Trust.

Section 2.05   Creation of the Grantor Trust.  Each Class of Exchangeable Certificates, the Class V Certificates and the RR Interest are hereby designated as undivided beneficial interests in their corresponding Grantor Trust Designation Portions, which portions shall be treated as a grantor trust within the meaning of subpart E, part I of subchapter J of the Code.

[End of Article II]

Article III

ADMINISTRATION AND SERVICING OF THE TRUST FUND

Section 3.01   Master Servicers to Act as Master Servicers; Special Servicers to Act as Special Servicers; Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties.  (a) Each applicable Master Servicer and each applicable Special Servicer shall diligently service and administer the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan), any related Serviced Companion Loans and the applicable REO

-173-

Properties (other than any REO Property related to a Non-Serviced Mortgage Loan) it is obligated (as provided below) to service in accordance with applicable law, this Agreement and the Mortgage Loan documents and, in the case of a Serviced Whole Loan, the related Intercreditor Agreement on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders and, in the case of the Serviced Companion Loans, the Companion Holders and the Trustee (as Holder of the Lower-Tier Regular Interests), as a collective whole, taking into account the subordinate or pari passu nature of such Companion Loans (as determined by the applicable Master Servicer or the applicable Special Servicer, as the case may be, in its reasonable judgment), in accordance with applicable law, the terms of this Agreement (and, with respect to each Serviced Whole Loan or any Mortgage Loan with related mezzanine debt, the related Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if applicable, the related Companion Loan, taking into account the subordinate or pari passu nature of the Companion Loan. With respect to each Serviced Whole Loan, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement shall control; provided that in no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such Master Servicer or such Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions. The General Master Servicer shall be the Master Servicer with respect to all Mortgage Loans (other than the NCB Mortgage Loans), any related Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Master Servicer hereunder and under any related Intercreditor Agreement. The General Special Servicer shall be the Special Servicer with respect to all the Mortgage Loans (other than the NCB Mortgage Loans), any Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Special Servicer hereunder and under any related Intercreditor Agreement. The NCB Master Servicer shall be the Master Servicer with respect to the NCB Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Mortgage Loans and such other assets as shall be required of the applicable Master Servicer hereunder. The NCB Special Servicer shall be the Special Servicer with respect to the NCB Co-op Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Co-op Mortgage Loans and such other assets as shall be required of the applicable Special Servicer hereunder. For purposes of this Agreement and any references to the duties and obligations of a Master Servicer or Special Servicer, any references to Mortgage Loans in the context of such duties and/or obligations shall be deemed to refer solely to the Mortgage Loans serviced by the applicable Master Servicer or the applicable Special Servicer and no other Mortgage Loan, Serviced Companion Loan or other related asset in the Trust serviced hereunder, unless specifically indicated otherwise. To the extent consistent with the foregoing, each Master Servicer and each Special Servicer shall service the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan) and the related Serviced Companion Loans in accordance with the higher of the following standards of care: (1) in the same manner in which, and with the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans for other third party portfolios and (2) the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans owned by

-174-

such Master Servicer or such Special Servicer, as the case may be, with a view to the (A) the timely recovery of all payments of principal and interest under the Mortgage Loans or Serviced Whole Loans or (B) in the case of a Specially Serviced Loan or an REO Property, maximization of recovery of principal and interest on a net present value basis on such Mortgage Loans and any related Serviced Companion Loans, and the best interests of the Trust and the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (and in the case of any Whole Loan, the best interests of the Trust, the Certificateholders and any related Companion Holder (as a collective whole as if such Certificateholders and the holder or holders of the related Companion Loans constituted a single lender), taking into account the subordinate or pari passu, as applicable, nature of the related Companion Loans), as determined by the applicable Master Servicer or the applicable Special Servicer, as the case may be, in its reasonable judgment, in either case giving due consideration to the customary and usual standards of practice of prudent institutional commercial, multifamily and manufactured housing community mortgage loan servicers, but without regard to any conflict of interest arising from: (i) any relationship that the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer may have with any Mortgagor, any Mortgage Loan Seller, any other parties to this Agreement, any Sponsor, any originator of a Mortgage Loan or any Affiliate of any of the foregoing; (ii) the ownership of any Certificate, Companion Loan, mezzanine loan, or subordinate debt relating to a Mortgage Loan by the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer, as applicable; (iii) the obligation, if any, of the applicable Master Servicer to make Advances; (iv) the right of the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates to receive compensation for its services and reimbursement for its costs hereunder or with respect to any particular transaction; (v) the ownership, servicing or management for others of (a) a Non-Serviced Mortgage Loan and a Non-Serviced Companion Loan or (b) any other mortgage loans, subordinate debt, mezzanine loans or properties not covered by this Agreement or held by the Trust by the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates; (vi) any debt that the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, has extended to any Mortgagor or an Affiliate of any Mortgagor (including, without limitation, any mezzanine financing); (vii) any option to purchase any Mortgage Loan or a related Companion Loan the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, may have; and (viii) any obligation of the applicable Master Servicer or the applicable Special Servicer, or any of their respective Affiliates, to repurchase or substitute for a Mortgage Loan as a Mortgage Loan Seller (if such Master Servicer or such Special Servicer or any of their respective Affiliates is a Mortgage Loan Seller) (the foregoing, collectively referred to as the “Servicing Standard”).

The applicable Master Servicer and the applicable Special Servicer shall act in accordance with the Servicing Standard with respect to any action required to be taken regarding the Non-Serviced Mortgage Loans pursuant to their obligations under this Agreement.

Without limiting the foregoing, subject to Section 3.19, the applicable Special Servicer shall be obligated to service and administer (i) any Mortgage Loans (other than the Non-Serviced Mortgage Loans) and any related Serviced Companion Loans as to which a Servicing Transfer Event has occurred and is continuing (each, a “Specially Serviced Loan”) or as otherwise provided herein with respect to Non-Specially Serviced Loans in connection with any

-175-

Major Decision or Special Servicer Decision and (ii) any REO Properties (other than the Non-Serviced Mortgaged Properties); provided that the applicable Master Servicer shall continue to receive payments and make all calculations, and prepare, or cause to be prepared, all reports, required hereunder with respect to the Specially Serviced Loans, except for the reports specified herein as prepared by the applicable Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans) as if no REO Acquisition had occurred, and to render such services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for herein; provided, further, however, that the applicable Master Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by such Special Servicer to otherwise comply with its obligations hereunder. No Master Servicer or Special Servicer, in its capacity as a Master Servicer or Special Servicer, as applicable, shall have any responsibility for the performance by any other Master Servicer or Special Servicer, in its capacity as a Master Servicer or Special Servicer, as applicable, of such other Master Servicer’s or Special Servicer’s duties under this Agreement. Each Mortgage Loan or any related Serviced Companion Loan that becomes a Specially Serviced Loan shall continue as such until satisfaction of the conditions specified in Section 3.19(a). Without limiting the foregoing, subject to Section 3.19 and in accordance with the terms of this Agreement, the applicable Master Servicer shall be obligated to service and administer any Non-Specially Serviced Loan or any related Serviced Companion Loan. The applicable Special Servicer shall make the property inspections, use its reasonable efforts to collect the financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and forward to the applicable Master Servicer the reports in respect of the related Mortgaged Properties with respect to Specially Serviced Loans in accordance with Section 3.12. After notification to the applicable Master Servicer, the applicable Special Servicer may contact the Mortgagor of any Non-Specially Serviced Loan if efforts by such Master Servicer to collect required financial information have been unsuccessful or any other issues remain unresolved. Such contact shall be coordinated through and with the cooperation of the applicable Master Servicer. No provision herein contained shall be construed as an express or implied guarantee by the applicable Master Servicer or the applicable Special Servicer of the collectability or recoverability of payments on the Mortgage Loans or any related Serviced Companion Loan or be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or such Special Servicer (including with respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed for Advances and interest accrued thereon). Any provision in this Agreement for any Advance by the applicable Master Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans or any related Serviced Companion Loans. No provision hereof shall be construed to impose liability on any Master Servicer or Special Servicer for the reason that any recovery to the Certificateholders in respect of a Mortgage Loan at any time after a determination of present value recovery is less than the amount reflected in such determination.

(b)       Subject only to the Servicing Standard and the terms of this Agreement (including, without limitation, Section 6.08) and of the respective Mortgage Loans, any related Serviced Companion Loans and any related Intercreditor Agreement, if applicable, and applicable law, each applicable Master Servicer and each applicable Special Servicer shall have full power

-176-

and authority, acting alone or, subject to Section 3.20, through one or more Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration for which it is responsible which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the applicable Master Servicer and the applicable Special Servicer, in its own name (or in the name of the Trustee and, if applicable, the related Serviced Companion Noteholder), is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders (and, with respect to a Serviced Companion Loan, the related Serviced Companion Noteholder) and the Trustee or any of them, with respect to each Mortgage Loan and any related Serviced Companion Loan it is obligated to service under this Agreement: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral, and shall, from time to time, execute and/or deliver such financing statements, continuation statements and other documents or instruments as necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) subject to Sections 3.08, 3.18 and 6.08, any and all modifications, waivers, amendments or consents to, under or with respect to any documents contained in the related Mortgage File; (iii) any and all instruments of satisfaction or cancellation, pledge agreements and other documents in connection with a defeasance, or of partial or full release or discharge, and all other comparable instruments; and (iv) any or all complaints or other pleadings to initiate and/or to terminate any action, suit or proceeding on behalf of the Trust (in their representative capacities (except as set forth below in this paragraph)). The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall provide to the Mortgagor related to such Mortgage Loans that it is servicing any reports required to be provided to them pursuant to the related Mortgage Loan documents. Subject to Section 3.10, the Trustee shall (i) on the Closing Date, furnish to the applicable Master Servicer and the applicable Special Servicer original powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and (ii) upon request, furnish, or cause to be furnished, to the applicable Master Servicer or the applicable Special Servicer any powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and other documents necessary or appropriate to enable the applicable Master Servicer or the applicable Special Servicer, as the case may be, to carry out its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held responsible or liable for any acts of the applicable Master Servicer or the applicable Special Servicer, or for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer. Notwithstanding anything contained herein to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating such Master Servicer’s or such Special Servicer’s, as the case may be, representative capacity (unless prohibited by any requirement of the applicable jurisdiction in which any such action, suit or proceeding is brought and if so prohibited, in the manner required by such jurisdiction (provided that such Master Servicer or such Special Servicer, as applicable, shall then provide five (5) Business Days’ written notice to the Trustee of the initiation of such action, suit or proceeding (or such shorter time period as is reasonably required

-177-

in the judgment of such Master Servicer or such Special Servicer, as applicable, made in accordance with the Servicing Standard) prior to filing such action, suit or proceeding, and shall not be required to obtain the Trustee’s consent or indicate such Master Servicer’s or such Special Servicer’s, as applicable, representative capacity)) or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be required to be registered to do business in any state.

(c)       To the extent the applicable Master Servicer is permitted pursuant to the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) to exercise its discretion with respect to any action that requires Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall require the costs of such Rating Agency Confirmation to be borne by the related Mortgagor. To the extent the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) require the Mortgagor to bear the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall not waive the requirement that such costs and expenses be borne by the related Mortgagor. To the extent that the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) are silent as to who bears the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall use reasonable efforts to have the Mortgagor bear such costs and expenses. The applicable Master Servicer shall not be responsible for the payment of such costs and expenses out of pocket other than as a Servicing Advance.

(d)       The relationship of each applicable Master Servicer and each applicable Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent.

(e)       Each Master Servicer shall, to the extent permitted by the related Mortgage Loan documents or any related Companion Loan documents, and consistent with the Servicing Standard, permit Escrow Payments to be invested only in Permitted Investments.

(f)       Within sixty (60) days (or such shorter time period as is required by the terms of the applicable Mortgage Loan documents) after the later of (i) the receipt thereof by the applicable Master Servicer and (ii) the Closing Date, the applicable Master Servicer shall notify each lessor under a Ground Lease for each Mortgage Loan identified as subject to a leasehold

-178-

interest on the Mortgage Loan Schedule, that the Trust is the leasehold mortgagee and that the applicable Master Servicer or the applicable Special Servicer shall service the related Mortgage Loan for the benefit of the Certificateholders. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor.

With respect to letters of credit delivered in accordance with sub-clause (B) of clause (xii) of the definition of “Mortgage File”, (a) within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the related Mortgage Loan Seller shall notify the bank issuing the letter of credit that the applicable Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit, and (b) within sixty (60) days of the Closing Date, the applicable Master Servicer shall present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller in accordance with such sub-clause of the definition of “Mortgage File” to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of (x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” or (y) in the case of the NCB Mortgage Loans, “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36”. The applicable Master Servicer shall otherwise use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The related Mortgage Loan Seller shall provide such reasonable cooperation as requested by the applicable Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

If a letter of credit is required to be drawn upon earlier than the date that the letter of credit has been revised as contemplated in the preceding paragraph, such Mortgage Loan Seller shall cooperate with the reasonable requests of the applicable Master Servicer or the applicable Special Servicer in connection with making a draw under such letter of credit. If the Mortgage Loan documents do not require the related Mortgagor to pay any costs and expenses relating to any modifications to or assignment of the related letter of credit, then the applicable Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. If the Mortgage Loan documents require the related Mortgagor to pay any costs and expenses relating to any modifications to the related letter of credit, and such Mortgagor fails to pay such costs and expenses after the applicable Master Servicer has exercised reasonable efforts to collect such costs and expenses from such Mortgagor, then such Master Servicer shall give the applicable Mortgage Loan Seller notice of such failure and the amount of costs and expenses, and such Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor. Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement.

-179-

Each Master Servicer acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if such Master Servicer sells its rights to service the applicable Mortgage Loan, such Master Servicer shall assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Loan) at the direction of the applicable Special Servicer to such party as such Special Servicer may instruct, in each case at the expense of the applicable Master Servicer. Each Master Servicer shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment.

(g)       Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer (or the Trustee, as applicable) make an Advance with respect to any Companion Loan to the extent the related Serviced Mortgage Loan has been paid in full or is no longer included in the Trust Fund.

(h)       Servicing and administration of each Serviced Companion Loan shall continue hereunder and in accordance with the related Intercreditor Agreement for so long as the corresponding Serviced Mortgage Loan or any related REO Property is part of the Trust Fund or for such longer period as is contemplated by the related Intercreditor Agreement and, to the extent consistent with the related Intercreditor Agreement, as any amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

(i)       The applicable Special Servicer agrees that upon the occurrence of a Servicing Transfer Event with respect to any Mortgage Loan or Serviced Whole Loan that is subject to or becomes subject to an Intercreditor Agreement in the future, it shall, subject to Section 3.19, use commercially reasonable efforts to enforce, on behalf of the Trust, subject to the Servicing Standard and to the extent such Special Servicer determines such action is in the best interests of the Trust, all rights conveyed to the Trustee pursuant to any such Intercreditor Agreement. The costs and expenses incurred by such Special Servicer in connection with such enforcement shall be paid as a Trust Fund expense or, subject to the terms of the applicable Intercreditor Agreement, (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, by the Trust and Serviced Pari Passu Companion Loan Holder(s), in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) or (ii) with respect to any Serviced AB Whole Loan, first, by the related AB Subordinate Companion Loan(s) and then, pro rata and pari passu, by the Trust and any Serviced Pari Passu Companion Loan(s), in accordance with the respective outstanding principal balances of the related Serviced AB Mortgage Loan and Serviced Pari Passu Companion Loan(s).

(j)       Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that, to the extent required under the related Intercreditor Agreement, the servicing and administration of a Serviced Whole Loan shall continue hereunder (but not with respect to making Advances) even if the related Serviced Mortgage Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with the related Intercreditor Agreement (it being acknowledged that no Master Servicer or Special Servicer shall be obligated under a separate agreement to which it is not a party); provided that, other than pursuant to Section 6.04 (and, with respect to Section 6.04, solely with respect to claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any

-180-

other costs, liabilities, fees and expenses (including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred in connection with a legal claim or action resulting from an action or inaction taken or not taken while the related Serviced Mortgage Loan was part of the Trust Fund), no costs, expenses, losses or fees accruing with respect to such Serviced Whole Loan on and after the date the related Serviced Mortgage Loan is no longer part of the Trust Fund shall be payable out of the Trust Fund and the applicable Master Servicer shall have no obligation to make any Advance on or after the date such Serviced Mortgage Loan ceases to be part of the Trust Fund; provided, however, that if, in the case of any Serviced Whole Loan, the related Serviced Companion Loan continues to be included in an Other Securitization, then for so long as a separate servicing agreement (pursuant to the related Intercreditor Agreement) has not been entered into, the applicable Master Servicer shall inform the related Other Servicer of any need to make Servicing Advances with respect to a Serviced Whole Loan within three (3) Business Days of determining that such an Advance is necessary or being notified that such an Advance is necessary, or in the case of a Servicing Advance that needs to be made on an emergency or urgent basis, within one (1) Business Day. With respect to Servicing Advances made by any Other Servicer as contemplated in the second proviso to the preceding sentence, the applicable Master Servicer shall, from collections on the related Serviced Whole Loan (but never out of general collections on the Mortgage Loans and REO Properties) received by such Master Servicer, reimburse the Other Servicer for such Servicing Advances in the same manner and on the same level of priority as if such Servicing Advances had been made by such Master Servicer hereunder.

(k)       Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Non-Serviced Mortgage Loan are limited by and subject to the terms of the related Non-Serviced Intercreditor Agreement and the rights of the related Non-Serviced Master Servicer and Non-Serviced Special Servicer with respect thereto under the related Non-Serviced PSA. The applicable Master Servicer (or, with respect to any Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standards to enforce the rights of the Trustee (as holder of a Non-Serviced Mortgage Loan) under the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA.

(l)        The parties hereto acknowledge that each Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Non-Serviced Intercreditor Agreement and further acknowledge that, pursuant to the related Non-Serviced Intercreditor Agreement, (i) the related Non-Serviced Mortgage Loan is to be serviced and administered by the related Non-Serviced Master Servicer and Non-Serviced Special Servicer in accordance with the related Non-Serviced PSA, and (ii) in the event that (A) the related Non-Serviced Companion Loan is no longer part of the trust fund created by the related Non-Serviced PSA and (B) the related Non-Serviced Mortgage Loan is included in the Trust Fund, then, as set forth in the related Non-Serviced Intercreditor Agreement, the related Non-Serviced Whole Loan shall continue to be serviced in accordance with the related Non-Serviced PSA, until such time as a new servicing agreement has been agreed to by the parties to the related Non-Serviced Intercreditor Agreement in accordance with the provisions of such agreement and confirmation has been obtained from the Rating Agencies that such new servicing agreement would not result in a downgrade, qualification or withdrawal of the then-current ratings of any Class of Certificates then outstanding.

-181-

(m)      Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Serviced Whole Loan are limited by, and subject to, the terms of the related Intercreditor Agreement. The applicable Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standard to obtain the benefits of the rights of the Trust (as holder of the related Serviced Mortgage Loan) under the related Intercreditor Agreement. In the event of any conflict between this Agreement and the related Intercreditor Agreement, the provisions of the related Intercreditor Agreement shall control.

(n)        [RESERVED].

(o)      For the avoidance of doubt, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee have no obligation or authority to (a) supervise any related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator or Non-Serviced Trustee or (b) make Servicing Advances with respect to any Non-Serviced Whole Loan. The obligation of the applicable Master Servicer to provide information and collections and make P&I Advances to the Certificate Administrator for the benefit of the Certificateholders with respect to each Non-Serviced Mortgage Loan is dependent on its receipt of the corresponding information and/or collections from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer.

(p)       Nothing contained in this Agreement shall limit the ability of the applicable Master Servicer or the applicable Special Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property, except, in the case of an NCB Co-op Mortgage Loan, any such indebtedness as to which the NCB Subordinate Debt Conditions have been satisfied, which indebtedness may be secured by a lien on the related Mortgaged Property), accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though the applicable Master Servicer or the applicable Special Servicer was not a party to this Agreement or to the transactions contemplated hereby; provided that this sentence shall not be construed to modify or supersede the Servicing Standard.

Section 3.02   Collection of Mortgage Loan Payments. (a) Each of the applicable Master Servicer and the applicable Special Servicer shall each make reasonable efforts to collect all payments called for under the terms and provisions of the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Serviced Companion Loans it is obligated to service hereunder, and shall follow such collection procedures as are consistent with this Agreement (including, without limitation, the Servicing Standard); provided that with respect to each Mortgage Loan that has an Anticipated Repayment Date, for so long as the related Mortgagor is in compliance with each provision of the related Mortgage Loan documents, the applicable Master Servicer and the applicable Special Servicer shall be permitted to take any enforcement action with respect to the failure of the related Mortgagor to make any payment of Excess Interest to the extent permitted under the related Mortgage Loan documents; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as the case may be, may take action to enforce the Trust’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents. The applicable Master Servicer or the applicable Special Servicer, as applicable, may

-182-

in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan that it is obligated to service hereunder three (3) times during any period of twenty-four (24) consecutive months with respect to any Mortgage Loan or Serviced Companion Loan; provided that such Master Servicer or such Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan one additional time in such 24-month period so long as with respect to any of the foregoing waivers, no Advance or additional expense of the Trust has been incurred and remains unreimbursed to the Trust with respect to such Mortgage Loan or Serviced Companion Loan. Any additional waivers during such 24-month period with respect to such Mortgage Loan may be made, subject to the Servicing Standard, only after the applicable Master Servicer or the applicable Special Servicer, as the case may be, has, prior to the occurrence and continuance of a Consultation Termination Event, given notice of a proposed waiver to the Directing Certificateholder and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder has consented to such additional waiver (provided that if such Master Servicer or such Special Servicer, as applicable, fails to receive a response to such notice from the Directing Certificateholder in writing within five (5) days of giving such notice, then the Directing Certificateholder shall be deemed to have consented to such proposed waiver); provided, further, that after the occurrence and during the continuance of a Control Termination Event, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may waive any Penalty Charge in accordance with the Servicing Standard without the consent of the Directing Certificateholder; provided, further, that the Directing Certificateholder shall not have any consent or consultation rights with respect to any Mortgage Loan that is an Excluded Loan as to such party with respect to the foregoing waivers.

(b)       (i) All amounts collected by or on behalf of the Trust in respect of a Mortgage Loan shall be applied to amounts due and owing under the Mortgage Loan documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan documents (including any related Intercreditor Agreement); provided, however, that absent express provisions in the related Mortgage Loan documents (including any related Intercreditor Agreement) or to the extent otherwise agreed to by the related Mortgagor in connection with a workout of a Mortgage Loan, all amounts collected by or on behalf of the Trust in respect of a Mortgage Loan in the form of payments from the related Mortgagor, Liquidation Proceeds or Insurance and Condemnation Proceeds under the Mortgage Loan (in the case of each Serviced Whole Loan, exclusive of amounts payable to any applicable Companion Loan pursuant to the terms of the related Intercreditor Agreement) shall be applied in the following order of priority:

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to such Mortgage Loan and unpaid interest at the Reimbursement Rate on such Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust Fund from general collections);

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on such Mortgage Loan (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

-183-

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, constitutes the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance, and (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of such accrued and unpaid interest pursuant to this clause fifth on earlier dates);

sixth, as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to such Mortgage Loan;

seventh, as a recovery of any other reserves to the extent then required to be held in escrow with respect to such Mortgage Loan;

eighth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

-184-

ninth, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

tenth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

eleventh, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees);

twelfth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and

thirteenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

provided that to the extent required under the REMIC Provisions, payments or proceeds received (or receivable by exercise of the lender’s rights under the related Mortgage Loan documents) with respect to any partial release of a Mortgaged Property (including in connection with a condemnation) at a time when the loan to value ratio of the related Mortgage Loan or Serviced Whole Loan, as applicable, exceeds 125%, or would exceed 125% following any partial release (based solely on the value of real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC Provisions as evidenced by an Opinion of Counsel to the Trustee) must be collected and allocated to reduce the principal balance of the Mortgage Loan or Serviced Whole Loan in the manner required by the REMIC Provisions; provided, further, that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan become REO Loans, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

(ii)       Collections by or on behalf of the Trust in respect of any REO Property (exclusive of the amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of each Serviced Whole Loan, exclusive of any amounts payable to the holder of the related Companion Loan(s), as applicable, pursuant to the related Intercreditor Agreement) shall be applied in the following order of priority:

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to the related Mortgage Loan and interest at the Reimbursement Rate on all Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and

-185-

Workout Fees previously paid by the Trust Fund from general collections) with respect to such Mortgage Loan;

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below or clause fifth of the prior paragraph on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, constitutes the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan to the extent of its entire unpaid principal balance;

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance and (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause fifth or clause fifth of the prior paragraph on earlier dates);

sixth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

-186-

seventh, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

eighth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

tenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

provided that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan becomes an REO Loan, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

(iii)      Notwithstanding clauses (i) and (ii) above, such provisions shall not be deemed to affect the priority of distributions of payments pursuant to the provisions of this Agreement. To the extent that such amounts are paid by a party other than a Mortgagor, such amounts shall be deemed to have been paid in respect of a purchase of all or part of the Mortgaged Property (in the case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or Companion Loan, as applicable, or in accordance with Section 3.02(b)(ii) above.

(c)       To the extent consistent with the terms of the Mortgage Loans (and, with respect to each Serviced Whole Loan, the related Serviced Companion Loan, as applicable, and the related Intercreditor Agreement) and applicable law, the applicable Master Servicer shall apply all Insurance and Condemnation Proceeds it receives on a day other than the Due Date to amounts due and owing under the related Mortgage Loan or Companion Loan as if such Insurance and Condemnation Proceeds were received on the Due Date immediately succeeding the month in which Insurance and Condemnation Proceeds were received and otherwise in accordance with Section 3.02(b)(ii) above.

(d)       In the event that the applicable Master Servicer or the applicable Special Servicer receives Excess Interest prior to the Determination Date for any Collection Period, or receives notice from the related Mortgagor that such Master Servicer or such Special Servicer will be receiving Excess Interest prior to the Determination Date for any Collection Period, such Master Servicer or such Special Servicer, as the case may be, shall notify the Trustee and Certificate Administrator two (2) Business Days prior to the related Distribution Date. None of the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee shall

-187-

be responsible for any failure of the related Mortgagor to pay any such Excess Interest or prepayment penalty. The preceding statements shall not, however, be construed to limit the provisions of Section 3.02(a).

(e)       In connection with the Mortgage Loans or any Serviced Pari Passu Companion Loan for which the related Mortgagor was required to escrow funds or to post a letter of credit related to obtaining performance objectives, such as targeted debt service coverage levels or leasing criteria with respect to the Mortgaged Property as a whole or particular portions thereof, if the mortgagee has the discretion under the applicable Mortgage Loan documents to retain the cash or letter of credit (or the proceeds of such letters of credit) as additional collateral if the relevant conditions to release are not satisfied, then the related Master Servicer may continue to hold such escrows or letters of credit (or the proceeds of such letters of credit) as additional collateral or use such funds to reduce the principal balance of the related Mortgage Loan or Serviced Pari Passu Companion Loan (to the extent the related Mortgage Loan documents allow such action), unless holding or application of such funds would otherwise be inconsistent with the Mortgage Loan documents or the Servicing Standard.

(f)       Promptly following the Closing Date, in the case of any Non-Serviced Whole Loan and, with respect to any Servicing Shift Mortgage Loan, promptly following receipt of notice in connection with the Servicing Shift Securitization Date, the Certificate Administrator shall send written notice (in the form attached hereto as Exhibit T) to the related Non-Serviced Master Servicer (with a copy to any other applicable party set forth on the schedule of addresses to Exhibit T) stating that, as of such date, the Trustee is the holder of the related Non-Serviced Mortgage Loan and directing such Non-Serviced Master Servicer to remit to the applicable Master Servicer all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to the applicable Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of such Non-Serviced Mortgage Loan under the related Non-Serviced Intercreditor Agreement and the related Non-Serviced PSA. The applicable Master Servicer shall, within two (2) Business Days of receipt of properly identified funds, deposit into the applicable Collection Account all amounts received with respect to the related Non-Serviced Mortgage Loan, the related Non-Serviced Mortgaged Property or any related REO Property.

Section 3.03   Collection of Taxes, Assessments and Similar Items; Servicing Accounts. (a) Each Master Servicer shall establish and maintain one or more accounts (the “Servicing Accounts”), into which all Escrow Payments received by it shall be deposited and retained, and shall administer such Servicing Accounts in accordance with the related Mortgage Loan documents and, if applicable, the Companion Loan documents. Any Servicing Account related to a Serviced Whole Loan shall be held for the benefit of the Certificateholders and the related Serviced Companion Noteholder(s) collectively, but this shall not be construed to modify the respective interests of any noteholder therein as set forth in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts may only be invested in accordance with the terms of the related Mortgage Loan documents and Companion Loan documents, or in Permitted Investments in accordance with the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent permitted by the terms of the related Mortgage Loan documents. Withdrawals of amounts so deposited from a Servicing Account may be made only to: (i) effect payment of items for which Escrow Payments were collected and comparable items; (ii) reimburse

-188-

the Trustee and then the applicable Master Servicer, if applicable, for any Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to be overages; (iv) pay interest to Mortgagors on balances in the Servicing Account, if required by applicable law or the terms of the related Mortgage Loan or Companion Loan and as described below or, if not so required, to the applicable Master Servicer; (v) after the occurrence of an event of default under the related Mortgage Loan or Companion Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage Loan documents; or (viii) clear and terminate the Servicing Account at the termination of this Agreement in accordance with Section 9.01. As part of its servicing duties, the applicable Master Servicer shall pay or cause to be paid to the related Mortgagors interest on funds in Servicing Accounts, to the extent required by law or the terms of the related Mortgage Loan or Companion Loan; provided, however, that in no event shall the applicable Master Servicer be required to remit to any Mortgagor any amounts in excess of actual net investment income or funds in the related Servicing Account. If allowed by the related Mortgage Loan documents and applicable law, the applicable Master Servicer may charge the related Mortgagor an administrative fee for maintenance of the Servicing Accounts.

(b)       The applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Serviced Mortgage Loans and each related Serviced Companion Loan, shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of real estate taxes, assessments and other similar items that are or may become a lien thereon and the status of insurance premiums and any ground rents payable in respect thereof. The applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Serviced Mortgage Loans and each related Serviced Companion Loan, shall use reasonable efforts consistent with the Servicing Standard to obtain, from time to time, all bills for the payment of such items (including renewal premiums) and shall effect payment thereof from the REO Account or by the applicable Master Servicer as Servicing Advances prior to the applicable penalty or termination date and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items, employing for such purpose Escrow Payments (which shall be so applied by the applicable Master Servicer at the written direction of the applicable Special Servicer in the case of REO Loans) as allowed under the terms of the related Serviced Mortgage Loan and Companion Loan. Other than with respect to any Non-Serviced Mortgage Loan, the applicable Master Servicer shall service and administer any reserve accounts (including monitoring, maintaining or changing the amounts of required escrows) in accordance with the terms of such Mortgage Loan and the related Serviced Companion Loan, as applicable, and the Servicing Standard. To the extent that a Serviced Mortgage Loan and any related Companion Loan, as applicable, does not require a Mortgagor to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the applicable Special Servicer, in the case of REO Loans, and the applicable Master Servicer, in the case of all other such Mortgage Loans or Companion Loan, as applicable, that it is responsible for servicing hereunder, shall use reasonable efforts consistent with the Servicing Standard to cause the Mortgagor to comply with its obligation to make payments in respect of such items at the time they first become due and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items.

-189-

(c)       In accordance with the Servicing Standard and for each Serviced Mortgage Loan and each Serviced Whole Loan, as applicable, the applicable Master Servicer shall advance all such funds as are necessary for the purpose of effecting the payment of (i) real estate taxes, assessments and other similar items that are or may become a lien thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance Policies, in each instance if and to the extent Escrow Payments collected from the related Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such item when due and the related Mortgagor has failed to pay such item on a timely basis, and provided, however, that the particular advance would not, if made, constitute a Nonrecoverable Servicing Advance and provided, further, however, that with respect to the payment of taxes and assessments, the applicable Master Servicer shall not be required to make such advance until the later of (i) five (5) Business Days after such Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, has received confirmation that such item has not been paid and (ii) the date prior to the date after which any penalty or interest would accrue in respect of such taxes or assessments. The applicable Special Servicer shall give the applicable Master Servicer and the Trustee no less than five (5) Business Days’ written (facsimile or electronic) notice before the date on which such Master Servicer is requested to make any Servicing Advance with respect to a given Specially Serviced Loan or REO Property; provided, however, that only two (2) Business Days’ written (facsimile or electronic) notice shall be required in respect of Servicing Advances required to be made on an emergency or urgent basis provided, further, that the applicable Special Servicer shall not be entitled to make such a request (other than for Servicing Advances required to be made on an urgent or emergency basis) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The applicable Master Servicer may pay the aggregate amount of such Servicing Advances listed on a monthly request to the applicable Special Servicer, in which case such Special Servicer shall remit such Servicing Advances to the ultimate payees. The applicable Special Servicer shall have no obligation to make any Servicing Advances; provided that in an urgent or emergency situation requiring the making of a Servicing Advance, such Special Servicer may make a Servicing Advance in its sole discretion. Within five (5) Business Days of making such a Servicing Advance, such Special Servicer shall deliver to the applicable Master Servicer a request for reimbursement for such Servicing Advance, along with all information and documentation in such Special Servicer’s possession regarding the subject Servicing Advance as such Master Servicer may reasonably request, and such Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse such Special Servicer for any unreimbursed Servicing Advances (other than Nonrecoverable Servicing Advances) made by such Special Servicer pursuant to the terms hereof, together with interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by such Special Servicer. Upon the applicable Master Servicer’s reimbursement to the applicable Special Servicer of any Servicing Advance and payment to such Special Servicer of interest thereon, all in accordance with this Section 3.03, such Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as such Special Servicer actually made such Servicing Advance, and accordingly, such Master Servicer shall be entitled to be reimbursed for such Servicing Advance, together with interest thereon at the Reimbursement Rate, at the same time, in the same manner and to the same extent as such Master Servicer would otherwise have been entitled if it had actually

-190-

made such Servicing Advance at the time such Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.03(c), the applicable Master Servicer shall not be required to reimburse the applicable Special Servicer out of its own funds for, or to make at the direction of such Special Servicer, any Servicing Advance if such Master Servicer determines in its reasonable judgment that such Servicing Advance, although not characterized by such Special Servicer as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance. The applicable Master Servicer shall notify such Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Servicing Advance shall instead be reimbursed to such Special Servicer pursuant to Section 3.05 of this Agreement.

Any request by a Special Servicer that the applicable Master Servicer make a Servicing Advance shall be deemed to be a determination by such Special Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing Advance, and such Master Servicer and the Trustee shall be entitled to conclusively rely on such determination; provided that the determination shall not be binding on such Master Servicer or Trustee. On the first Business Day after the Determination Date for the related Distribution Date, the applicable Special Servicer shall report to the applicable Master Servicer if such Special Servicer determines any Servicing Advance previously made by such Master Servicer with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable Servicing Advance. Such Master Servicer shall be entitled to conclusively rely on such a determination, and such determination shall be binding upon such Master Servicer, and shall in no way limit the ability of such Master Servicer in the absence of such determination to make its own determination that any Advance is a Nonrecoverable Advance. If the applicable Special Servicer makes a determination that only a portion of, and not all of, any previously made or proposed Servicing Advance is a Nonrecoverable Advance, the applicable Master Servicer shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Advance. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed Servicing Advance with respect to a Serviced Whole Loan, if made, or any outstanding Servicing Advance with respect to a Serviced Whole Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. Any such determination by the applicable Special Servicer that a Servicing Advance is or would be a Nonrecoverable Servicing Advance shall be binding on the applicable Master Servicer and the Trustee. All such Advances shall be reimbursable in the first instance from related collections from the Mortgagors and further as provided in Section 3.05(a). No costs incurred by a Master Servicer or a Special Servicer in effecting the payment of real estate taxes, assessments and, if applicable, ground rents on or in respect of the Mortgaged Properties shall, for purposes hereof, including, without limitation, the Certificate Administrator’s calculation of monthly distributions to Certificateholders, be added to the unpaid principal balances of the related Mortgage Loans, any related Serviced Companion Loan, if applicable, notwithstanding that the terms of such Mortgage Loans, related Serviced Companion Loan, if applicable, so permit. If the applicable Master Servicer fails to make any required Servicing Advance as and when due (including any applicable cure periods), to the extent the Trustee has actual knowledge of such failure, the Trustee shall make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no Servicing Advance shall be required hereunder if such Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance. In addition, each applicable Master

-191-

Servicer shall consider Unliquidated Advances in respect of prior Servicing Advances for purposes of nonrecoverability determinations. No Special Servicer shall have an obligation to make any Servicing Advances or recoverability determination with respect to any Servicing Advance under this Agreement.

Notwithstanding anything to the contrary contained in this Section 3.03(c), the applicable Master Servicer may in its good faith judgment elect (but shall not be required unless directed by the applicable Special Servicer with respect to Specially Serviced Loans and REO Loans) to make a payment from amounts on deposit in the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by a Companion Paying Agent, if applicable) (which shall be deemed first made from amounts distributable as principal and then from all other amounts comprising general collections) to pay for certain expenses set forth below notwithstanding that the applicable Master Servicer (or the applicable Special Servicer, as the case may be) has determined that a Servicing Advance with respect to such expenditure would be a Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced Loans or REO Loans, the applicable Special Servicer has notified the applicable Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan or Serviced Companion Loan; provided that in each instance, the applicable Master Servicer or the applicable Special Servicer, as the case may be, determines in accordance with the Servicing Standard (as evidenced by an Officer’s Certificate delivered to the Trustee) that making such expenditure is in the best interest of the Certificateholders (and, if applicable, the Companion Holders), all as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans). The applicable Master Servicer or the Trustee may elect to obtain reimbursement of Nonrecoverable Servicing Advances from the Trust pursuant to the terms of Section 3.17(c). The parties acknowledge that pursuant to the applicable Non-Serviced PSA, the applicable Non-Serviced Master Servicer is obligated to make servicing advances with respect to the related Non-Serviced Whole Loan. The applicable Non-Serviced Master Servicer shall be entitled to reimbursement for nonrecoverable servicing advances with respect to such Non-Serviced Whole Loan (with, in each case, any accrued and unpaid interest thereon provided for under the applicable Non-Serviced PSA) in the manner set forth in the applicable Non-Serviced PSA and the applicable Non-Serviced Intercreditor Agreement.

(d)      In connection with its recovery of any Servicing Advance out of the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) pursuant to Section 3.05(a), the Trustee, the applicable Special Servicer and then the applicable Master Servicer, as the case may be and in that order, shall be entitled to receive, out of any amounts then on deposit in the applicable Collection Account interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such Servicing Advance from the date made to, but not including, the date of reimbursement. Subject to Section 3.17(c), the applicable Master Servicer shall reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any outstanding Servicing Advance as soon as practically possible after funds available for such purpose are deposited in the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) subject to the applicable Master Servicer’s or the Trustee’s options and rights to defer recovery of such amounts

-192-

as provided herein; provided, however, that such Master Servicer’s or Trustee’s options and rights to defer recovery of such amounts shall not alter such Master Servicer’s obligation to reimburse such Special Servicer for any outstanding Servicing Advance as provided for in this sentence. To the extent amounts on deposit in the Companion Distribution Account with respect to the related Companion Loan are insufficient for any such reimbursement, the applicable Master Servicer shall use efforts in accordance with the Servicing Standard to enforce the rights of the holder of the related Mortgage Loan under the related Intercreditor Agreement to obtain any reimbursement available from the holder of the related Companion Loan.

(e)       To the extent an operations and maintenance plan is required to be established and executed pursuant to the terms of a Serviced Mortgage Loan, the applicable Master Servicer shall request from the Mortgagor written confirmation thereof within a reasonable time after the later of the Closing Date and the date as of which plan is required to be established or completed. To the extent any repairs, capital improvements, actions or remediations are required to have been taken or completed pursuant to the terms of the Serviced Mortgage Loan, the applicable Master Servicer shall request from the Mortgagor written confirmation of such actions and remediations within a reasonable time after the later of the Closing Date and the date as of which action or remediations are required to be or to have been taken or completed. To the extent a Mortgagor shall fail to promptly respond to any inquiry described in this Section 3.03(e), the applicable Master Servicer shall report any such failure to the applicable Special Servicer within a reasonable time after the date as of which actions or remediations are required to be or to have been taken or completed.

Section 3.04   The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account. (a) Each Master Servicer shall establish and maintain, or cause to be established and maintained, a Collection Account in which such Master Servicer shall deposit or cause to be deposited on a daily basis and in no event later than the second (2^nd) Business Day following receipt of available and properly identified funds (in the case of payments by Mortgagors or other collections on the Mortgage Loans or Companion Loans), except as otherwise specifically provided herein, the following payments and collections received or made by or on behalf of it subsequent to the Cut-off Date (other than in respect of principal and interest on the Mortgage Loans or Companion Loans due and payable on or before the Cut-off Date, which payments shall be delivered promptly to the appropriate Mortgage Loan Seller or its respective designee and other than any amounts received from Mortgagors which are received in connection with the purchase of defeasance collateral), or payments (other than Principal Prepayments) received by it on or prior to the Cut-off Date but allocable to a period subsequent thereto, in each case, with respect to the Mortgage Loans for which it acts as Master Servicer:

(i)        all payments on account of principal, including Principal Prepayments on the Mortgage Loans or principal prepayments on Serviced Companion Loans;

(ii)       all payments on account of interest on the Mortgage Loans or the Serviced Companion Loans, including Excess Interest, Prepayment Premiums, Yield Maintenance Charges and Default Interest;

-193-

(iii)          late payment charges and other Penalty Charges to the extent required to offset interest on Advances and additional expenses of the Trust (other than Special Servicing Fees, Workout Fees or Liquidation Fees) as required by Section 3.11(d);

(iv)         all Insurance and Condemnation Proceeds and Liquidation Proceeds (other than Gain-on-Sale Proceeds or Non-Serviced Gain-on-Sale Proceeds) received in respect of any Mortgage Loan, Serviced Companion Loan or REO Property (other than (A) Liquidation Proceeds that are received in connection with the purchase by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class, or the Holders of the Class R Certificates of all the Mortgage Loans and any REO Properties in the Trust Fund and that are to be deposited in the Lower-Tier REMIC Distribution Account pursuant to Section 9.01 and (B) any proceeds that are received in connection with the purchase, if any, of a Serviced Pari Passu Companion Loan from a securitization by the related mortgage loan seller, which shall be paid directly to the servicer of such securitization) together with any recovery of Unliquidated Advances in respect of the related Mortgage Loans;

(v)          any amounts required to be transferred from the applicable REO Account pursuant to Section 3.14(c);

(vi)         any amounts required to be deposited by any Master Servicer pursuant to Section 3.06 in connection with losses incurred with respect to Permitted Investments of funds held in its Collection Account; and

(vii)        any amounts required to be deposited by any Master Servicer or any Special Servicer pursuant to Section 3.07(b) in connection with losses resulting from a deductible clause in a blanket hazard or master single interest policy.

Notwithstanding the foregoing requirements, a Master Servicer need not deposit into its Collection Account any amount that such Master Servicer would be authorized to withdraw immediately from such account in accordance with the terms of Section 3.05 and shall be entitled to instead immediately pay such amount directly to the Person(s) entitled thereto; provided that such amounts shall be applied in accordance with the terms hereof and shall be reported as if deposited in such Collection Account and then withdrawn.

The foregoing requirements for deposit in each applicable Collection Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, actual payments from Mortgagors in the nature of Escrow Payments, charges for beneficiary statements or demands, assumption fees, modification fees, extension fees, defeasance fees, amounts collected for Mortgagor checks returned for insufficient funds or other amounts any Master Servicer or any Special Servicer would be entitled to retain as additional servicing compensation need not be deposited by such Master Servicer in its Collection Account. If any Master Servicer shall deposit in its Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from its Collection Account, any provision herein to the contrary notwithstanding. Assumption, extension and modification fees actually received from Mortgagors on Specially Serviced Loans shall be promptly delivered to the applicable Special Servicer as additional servicing compensation.

 -194-

Upon receipt of any of the foregoing amounts in clauses (i) through (iv) above with respect to any Specially Serviced Loans, the applicable Special Servicer shall remit within one (1) Business Day such amounts to the applicable Master Servicer for deposit into the applicable Collection Account, in accordance with this Section 3.04(a), provided that to the extent any of the foregoing amounts are received after 2:00 p.m. (Eastern Time) on any given Business Day, the applicable Special Servicer shall use commercially reasonable efforts to remit such amounts within one (1) Business Day of receipt of such amount, but, in any event, the applicable Special Servicer shall remit such amounts to the applicable Master Servicer within two (2) Business Days of receipt of such amounts; Any such amounts received by the applicable Special Servicer with respect to an REO Property shall be deposited by such Special Servicer into its REO Account and remitted to the applicable Master Servicer for deposit into its Collection Account, pursuant to Section 3.14(c). With respect to any such amounts paid by check to the order of the applicable Special Servicer, such Special Servicer shall endorse without recourse or warranty such check to the order of the applicable Master Servicer and shall promptly deliver any such check to such Master Servicer by overnight courier. Funds in each applicable Collection Accounts may only be invested in Permitted Investments in accordance with the provisions of Section 3.06. As of the Closing Date, the Collection Account for the General Master Servicer shall be located at the offices of Wells Fargo Bank, National Association. As of the Closing Date, the Collection Account for the NCB Master Servicer shall be located at the offices of Wells Fargo Bank, National Association. Each Master Servicer shall give written notice to the Trustee, each applicable Special Servicer, the Certificate Administrator and the Depositor of the new location of its Collection Account prior to any change thereof.

(b)          The Certificate Administrator, on behalf of the Trustee, shall establish and maintain (i) the Lower-Tier REMIC Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders (other than the Holders of the Excess Interest Certificates), (ii) the Upper-Tier REMIC Distribution Account in trust for the benefit of the Certificateholders (other than the Holders of the Excess Interest Certificates) and (iii) the Excess Interest Distribution Account in trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest. Each Master Servicer shall deliver to the Certificate Administrator each month on or before the P&I Advance Date therein, for deposit (x) in the Lower-Tier REMIC Distribution Account, that portion of the Aggregate Available Funds attributable to the Mortgage Loans for which it acts as Master Servicer (in each case, calculated without regard to clauses (a)(iii)(B), (a)(iv), (c) and (d) of the definition of Aggregate Available Funds) for the related Distribution Date and (y) in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the applicable Collection Account maintained by the applicable Master Servicer after giving effect to withdrawals of funds pursuant to Section 3.05(a)(ii). For the avoidance of doubt, so long as Wells Fargo Bank, National Association is the Certificate Administrator, all funds held in the Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account shall remain uninvested.

The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j) of this Agreement.

 -195-

With respect to each Serviced Companion Loan, the Companion Paying Agent shall establish and maintain the Companion Distribution Account, which may be a subaccount of the related Collection Account, for distributions to each Serviced Companion Noteholder. Funds in the Companion Distribution Account shall be held for the benefit of the related Serviced Companion Noteholders. The Companion Paying Agent shall separately track for each Serviced Companion Loan all amounts deposited in the Companion Distribution Account with respect to such Serviced Companion Loan.

On each Serviced Whole Loan Remittance Date, (1) first, the applicable Master Servicer shall withdraw from its Collection Account (or applicable portion thereof) an aggregate amount equal to all payments and/or collections actually received on, and payable in respect of, the Serviced Companion Loans prior to such date and deposit such amount in the Companion Distribution Account; provided, however, that in no event shall the applicable Master Servicer be required to transfer to the Companion Distribution Account any portion thereof that is payable or reimbursable to or at the direction of any party to this Agreement under the other provisions of this Agreement and/or the related Intercreditor Agreement; and (2) then, the Companion Paying Agent shall make the payments and remittance described in Section 4.01(k). With respect to any Serviced Whole Loan, in the event the applicable Master Servicer has received written notice that an Other Servicer or Other Trustee has made an advance of a monthly debt service payment on a related Serviced Pari Passu Companion Loan and such Master Servicer subsequently receives Late Collections in respect of such advanced payment, such Master Servicer shall remit to the applicable Other Servicer or Other Trustee, within two (2) Business Days following receipt of such Late Collections in properly identified funds, the amount allocable to such Serviced Pari Passu Companion Loan in accordance with the terms of this Agreement and the related Intercreditor Agreement.

The Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account and the Interest Reserve Account, may be subaccounts of a single Eligible Account, which shall be maintained as a segregated account separate from other accounts.

In addition to the amounts required to be deposited in the Lower-Tier REMIC Distribution Account pursuant to this Section 3.04, each Master Servicer shall, as and when required hereunder, deliver to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account:

(i)            any amounts required to be deposited by such Master Servicer pursuant to Section 3.17(a) as Compensating Interest Payments (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) in connection with Prepayment Interest Shortfalls;

(ii)           any P&I Advances required to be made by such Master Servicer in accordance with Section 4.03;

(iii)          any Liquidation Proceeds paid by such Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R

 -196-

Certificates in connection with the purchase of all of the Mortgage Loans and any REO Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof required to be deposited in the related Collection Account pursuant to Section 9.01);

(iv)         any Prepayment Premiums and Yield Maintenance Charges with respect to the Mortgage Loans actually collected; and

(v)          any other amounts required to be so delivered for deposit in the Lower-Tier REMIC Distribution Account pursuant to any provision of this Agreement.

If, as of the close of business (New York City time) on any P&I Advance Date or on such other date as any amount referred to in the foregoing clauses (i) through (v) or any Excess Interest are required to be delivered hereunder, the applicable Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, the amounts required to be deposited therein pursuant to the provisions of this Agreement (including any P&I Advance with respect to the Mortgage Loans, pursuant to Section 4.03(a)), the applicable Master Servicer shall pay the Certificate Administrator interest on such late payment at the Prime Rate from and including the date such payment was required to be made (without regard to any Grace Period set forth in Section 7.01(a)(i)) until (but not including) the date such late payment is received by the Certificate Administrator.

The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, any and all amounts received by the Certificate Administrator that are required by the terms of this Agreement to be deposited therein.

Promptly on each Distribution Date, the Certificate Administrator shall be deemed to withdraw from the Lower-Tier REMIC Distribution Account and deposit in the Upper-Tier REMIC Distribution Account an aggregate amount of immediately available funds equal to the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges for such Distribution Date allocated in payment of the Lower-Tier Regular Interests as specified in Section 4.01(c) and Section 4.01(e), respectively.

Funds on deposit in the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account or the Lower-Tier REMIC Distribution Account shall not be invested for so long as Wells Fargo Bank, National Association is the Certificate Administrator; provided, however, that such funds may be invested and, if invested, shall be invested by, and at the risk of, the Certificate Administrator (but only if the Certificate Administrator is not Wells Fargo Bank, National Association) in Permitted Investments selected by the party hereunder that maintains such account which shall mature, unless payable on demand, not later than such time on the Distribution Date which will allow the Certificate Administrator to make withdrawals from the Distribution Account, and any such Permitted Investment shall not be sold or disposed of prior to its maturity unless payable on demand. All such Permitted Investments to be administered by the Certificate Administrator, shall be made in the name of “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust,

 -197-

National Association, as Trustee for the Holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 as their interests may appear”, or in the name of any successor trustee, as Trustee for the Holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 as their interests may appear. None of the Trust, the Depositor, the Mortgagors, any Master Servicer or any Special Servicer shall be liable for any loss incurred on such Permitted Investments.

An amount equal to all income and gain realized from any such investment shall be paid to the Certificate Administrator as additional compensation and shall be subject to its withdrawal at any time from time to time. The amount of any losses incurred in respect of any such investments shall be for the account of the Certificate Administrator which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Distribution Accounts, as the case may be, out of its own funds immediately as realized. If the Certificate Administrator deposits in or transfers to the Distribution Accounts, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Distribution Accounts, as the case may be, any provision herein to the contrary notwithstanding.

As of the Closing Date, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account and the Lower-Tier REMIC Distribution Account shall be located at the offices of the Certificate Administrator. The Certificate Administrator shall give notice to the Trustee, each applicable Master Servicer, and the Depositor of the proposed location of the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account, and, if established, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account prior to any change thereof.

For the avoidance of doubt, the applicable Collection Account (other than (i) any portion holding Excess Interest and (ii) the Companion Distribution Account, if it is a sub-account of the applicable Collection Account), the Lower-Tier REMIC Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, any Servicing Account, the REO Account and the Interest Reserve Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC; the Excess Interest Distribution Account (and any portion of the applicable Collection Account holding Excess Interest) (including interest, if any, earned on the investment of funds in such account) will be owned by the Grantor Trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest; the Companion Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Companion Holders; and the Upper-Tier REMIC Distribution Account (including interest, if any, earned on the investment of funds such account) will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

(c)          Prior to any Determination Date for the first Collection Period during which Excess Interest is received on any Mortgage Loan, and upon notification from a Master Servicer or a Special Servicer pursuant to Section 3.02(d), the Certificate Administrator, on behalf of the Certificateholders, shall establish and maintain the Excess Interest Distribution Account in its own name on behalf of the Trustee in trust for the benefit of the Holders of the Excess Interest Certificates and the RR Interest. The Excess Interest Distribution Account shall be established

 -198-

and maintained as an Eligible Account (or as a subaccount of an Eligible Account). Prior to the applicable Distribution Date, the applicable Master Servicer shall remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account an amount equal to the Excess Interest received by such Master Servicer prior to the Determination Date for the applicable Collection Period.

(d)          Following the distribution of the applicable portions of Excess Interest to Holders of the Excess Interest Certificates and the RR Interest, as applicable, on the first Distribution Date after which there are no longer any Mortgage Loans outstanding which pursuant to their terms could pay Excess Interest, the Certificate Administrator shall terminate the Excess Interest Distribution Account.

(e)          The Certificate Administrator shall establish (upon notice from the applicable Special Servicer of an event occurring that generates Gain-on-Sale Proceeds) and maintain (i) the Gain-on-Sale Reserve Account for the benefit of the Certificateholders (other than the Holders of the RR Interest) and (ii) the Retained Certificate Gain-on-Sale Reserve Account for the benefit of the Holders of the RR Interest. Each of the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account shall be maintained as an Eligible Account (or as a subaccount of an Eligible Account), separate and apart from trust funds for mortgage pass-through certificates of other series administered by the Certificate Administrator.

Upon the disposition of any REO Property, in accordance with Section 3.09 or Section 3.16, the applicable Special Servicer will calculate the Gain-on-Sale Proceeds, if any, realized that are allocable to the Mortgage Loan and any gain that is allocable to any related Serviced Companion Loan in connection with such sale and remit such funds to the applicable Master Servicer on the later of (x) the related Determination Date or (y) the date that is two (2) Business Days after such amounts are received and properly identified and determined to be available, along with a notation of the amount of Gain-on-Sale Proceeds in the CREFC^® REO Liquidation Report. On the related Remittance Date, the applicable Master Servicer shall remit such funds that are allocable to the Mortgage Loan to the Certificate Administrator, who shall deposit (i) the Non-Retained Percentage of such funds into the Gain-on-Sale Reserve Account and (ii) the Required Credit Risk Retention Percentage of such funds into the Retained Certificate Gain-on-Sale Reserve Account. Any gain on such disposition that is allocable to any related Companion Loan in accordance with the terms of the related Intercreditor Agreement shall be remitted to the Companion Paying Agent for deposit into the Companion Distribution Account.

(f)          Any Non-Serviced Gain-on-Sale Proceeds received with respect to any Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA shall be remitted to the Certificate Administrator as follows: (i) the Non-Retained Percentage of such funds for deposit into the Gain-on-Sale Reserve Account and (ii) the Required Credit Risk Retention Percentage of such funds for deposit into the Retained Certificate Gain-on-Sale Reserve Account.

(g)          [RESERVED].

(h)          [RESERVED].

 -199-

(i)           If any Loss of Value Payments are received in connection with a Material Defect pursuant to or as contemplated by Section 3.05(g) of this Agreement, the applicable Special Servicer shall establish and maintain one or more non-interest bearing accounts (collectively, the “Loss of Value Reserve Fund”) to be held for the benefit of the Certificateholders, for purposes of holding such Loss of Value Payments. Each account that constitutes the Loss of Value Reserve Fund shall be an Eligible Account or a sub-account of an Eligible Account. The applicable Special Servicer shall, within two (2) Business Days of receipt of properly identified and available Loss of Value Payments, deposit in the Loss of Value Reserve Fund all Loss of Value Payments received by it. The Certificate Administrator shall account for the Loss of Value Reserve Fund as an outside reserve fund within the meaning of Treasury Regulations Section 1.860G-2(h) and not an asset of any Trust REMIC or the Grantor Trust. Furthermore, for all federal tax purposes, the Certificate Administrator shall (i) treat amounts paid out of the Loss of Value Reserve Fund through the applicable Collection Account to the Certificateholders as paid to and distributed by the Trust REMICs and (ii) treat any amounts paid out of the Loss of Value Reserve Fund through the applicable Collection Account to a Mortgage Loan Seller as distributions by the Trust to such Mortgage Loan Seller as beneficial owner of the Loss of Value Reserve Fund. The applicable Mortgage Loan Seller will be the beneficial owner of the Loss of Value Reserve Fund for all federal income tax purposes, and shall be taxable on all income earned thereon.

Section 3.05      Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account. (a) Each Master Servicer may, from time to time, make withdrawals from its Collection Account (or the applicable subaccount of the applicable Collection Account exclusive of the Companion Distribution Account) for any of the following purposes (the following not being an order of priority and without duplication of the same payment or reimbursement):

(i)           (A)  no later than 4:00 p.m., New York City time, on each P&I Advance Date, to remit to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account and the Excess Interest Distribution Account the amounts required to be remitted by such Master Servicer pursuant to the first paragraph of Section 3.04(b) or that may be applied to make P&I Advances pursuant to Section 4.03(a); and (B) pursuant to the second paragraph of Section 3.04(b), to remit to the Companion Paying Agent for deposit in the Companion Distribution Account the amounts required to be so deposited with respect to the Companion Loans;

(ii)          (A)  to pay itself (or, with respect to any Transferable Servicing Interest, to pay Wells Fargo Bank, National Association if Wells Fargo Bank, National Association is no longer the General Master Servicer or NCB if NCB is no longer the NCB Master Servicer, any such interest pursuant to Section 3.11(a)) unpaid Servicing Fees in respect of each Mortgage Loan, Serviced Companion Loan, Specially Serviced Loan, and REO Loan, as applicable, the applicable Master Servicer’s rights to payment of Servicing Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan, related Serviced Companion Loan, Specially Serviced Loan or REO Loan, as applicable, being limited to amounts received on or in respect of such Mortgage Loan or related Serviced Companion Loan (whether in the form of payments, Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as

 -200-

recovery of interest thereon, (B) to pay the applicable Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of each Specially Serviced Loan or REO Loan or Corrected Loan, as applicable, and any expense incurred by such Special Servicer in connection with performing any inspections pursuant to Section 3.12(a), remaining unpaid first, out of related REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds and collections in respect of the related Specially Serviced Loan (provided that, in the case of such payment relating to a Serviced Whole Loan, such payment shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s), in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis) and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, (C) to pay the Operating Advisor (or the applicable Master Servicer, if applicable) any unpaid Operating Advisor Fees or Operating Advisor Consulting Fees in respect of each Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, the Operating Advisor’s right to payment of the Operating Advisor Fee or Operating Advisor Consulting Fee pursuant to this clause (ii)(C) with respect to any Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, being limited to amounts received on or in respect of such Mortgage Loan (whether in the form of payments, P&I Advances (solely with respect to the Operating Advisor Fee), Liquidation Proceeds or Insurance and Condemnation Proceeds), such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, and (D) to pay the Asset Representations Reviewer, any unpaid Asset Representations Reviewer Fee and (subject to Section 12.02(b)) Asset Representations Reviewer Asset Review Fee, if any, payable in connection with any Asset Review performed as a result of an Affirmative Asset Review Vote;

(iii)         to reimburse the Trustee and itself, as applicable (in that order), for unreimbursed P&I Advances, the applicable Master Servicer’s or the Trustee’s right to reimbursement pursuant to this clause (iii) being limited to amounts received which represent Late Collections of interest (net of the related Servicing Fee) on and principal of the particular Mortgage Loans and REO Loans with respect to which P&I Advances were made; provided that with respect to each Serviced Whole Loan, reimbursement of P&I Advances shall be made only from amounts collected with respect to the related Serviced Mortgage Loan and not from any amounts collected with respect to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans) prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account; provided, further, that if such P&I Advance with respect to a Mortgage Loan becomes a Workout-Delayed Reimbursement Amount, then the maker of such P&I

 -201-

Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such P&I Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties serviced by such Master Servicer on deposit in such Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (v) below; and provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

(iv)         to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order), for unreimbursed Servicing Advances, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s respective rights to receive payment pursuant to this clause (iv) with respect to any Serviced Mortgage Loan or any related Companion Loan or any REO Property being limited to, as applicable, related payments, Liquidation Proceeds, Insurance and Condemnation Proceeds and REO Revenues (provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursements shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account related to any Mortgage Loan); provided, however, that if such Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then the maker of such Servicing Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such Servicing Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties serviced by such Master Servicer on deposit in such Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (v) below; provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

(v)          to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order) (1) for Nonrecoverable Advances first, out of REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds, if any, received on the related Mortgage Loan and any related Companion Loan (with respect to such Companion Loan, only for Nonrecoverable Servicing Advances made with respect thereto), then, out of the principal portion of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, then, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any exercise of the sole option to defer reimbursement thereof pursuant to Section 3.17(c), out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer,

 -202-

(2) for Workout-Delayed Reimbursement Amounts, out of the principal portion of the general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer net of such amounts being reimbursed pursuant to (1) above; (provided that, in the case of such reimbursement of a Nonrecoverable Servicing Advance relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis and provided, further, that, in the case of such reimbursement with respect to Nonrecoverable Servicing Advances relating to a Serviced Whole Loan, such reimbursement shall be made as described above in this clause (v)(1) and (v)(2), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account; provided, further, that with respect to a Serviced Mortgage Loan, reimbursement of Nonrecoverable P&I Advances from funds collected from the related Serviced Whole Loan shall be made only from amounts collected with respect to such Serviced Mortgage Loan (and not from any amounts collected with respect to the related Serviced Companion Loan), in accordance with the terms of the related Intercreditor Agreement (provided that, with respect to any Serviced Companion Loan, the foregoing with respect to Nonrecoverable Servicing Advances and Nonrecoverable P&I Advances shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and AB Subordinate Companion Loan), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in such Collection Account related to any Mortgage Loan) or (3) to pay itself, with respect to any Mortgage Loan, any related Companion Loan, if applicable, or REO Property any related earned Servicing Fee that remained unpaid in accordance with clause (ii) above following a Final Recovery Determination made with respect to such Mortgage Loan or REO Property and the deposit into such Collection Account of all amounts received in connection therewith;

(vi)         at such time as it reimburses the Trustee and itself, as applicable (in that order) or any Other Trustee or Other Servicer for a related securitization trust in respect of any Serviced Pari Passu Companion Loan for (a) any unreimbursed P&I Advance (including any such P&I Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iii) or clause (v) above, to pay itself and/or the Trustee or such other servicing party, as applicable, any interest accrued and payable thereon in accordance with Sections 4.03(d) and 3.11(d), (b) any unreimbursed Servicing Advances (including any such Servicing Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) or clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon in accordance with Section 3.03(d) and Section 3.11(d) or (c) any Nonrecoverable Advances pursuant to clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon; provided that in all events, subject to the related Intercreditor

 -203-

Agreement, interest on P&I Advances on any Serviced Mortgage Loan shall not be paid from funds actually distributable to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and AB Subordinate Companion Loans);

(vii)          to reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Material Defect giving rise to a repurchase or substitution obligation of a Mortgage Loan Seller or any other obligation of such Mortgage Loan Seller under Section 4 of the applicable Mortgage Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase or substitution obligation or any other obligation of such Mortgage Loan Seller, each such Person’s right to reimbursement pursuant to this clause (vii) with respect to any Mortgage Loan being limited to that portion of the Purchase Price, the Loss of Value Payment or Substitution Shortfall Amount paid with respect to such Mortgage Loan, that represents such expense in accordance with clause (iv) of the definition of Purchase Price;

(viii)         in accordance with Section 2.03(f), to reimburse itself or the applicable Special Servicer, as the case may be, first, out of Liquidation Proceeds, Insurance and Condemnation Proceeds, if any, with respect to the related Mortgage Loan or REO Loan, and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, for any unreimbursed expense reasonably incurred by such Person in connection with the enforcement of a Mortgage Loan Seller’s obligations under Section 4 of the applicable Mortgage Loan Purchase Agreement, but only to the extent that such expenses are not reimbursable pursuant to clause (vii) above or otherwise; provided that, in the case of such reimbursement out of Liquidation Proceeds, and Insurance and Condemnation Proceeds described above relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

(ix)          to pay for costs and expenses incurred by the Trust pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds with respect to the related Mortgage Loan, Serviced Companion

 -204-

Loan or REO Loan and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer; provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loan;

(x)         to pay itself, as additional servicing compensation in accordance with Section 3.11(a), (a) (1) interest and investment income earned in respect of amounts relating to the Trust Fund held in such Collection Account and the Companion Distribution Account as provided in Section 3.06(b) (but only to the extent of the Net Investment Earnings with respect to such Collection Account and the Companion Distribution Account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to such Distribution Date) and (2) Penalty Charges (other than Penalty Charges collected while the related Mortgage Loan and any related Serviced Companion Loan is a Specially Serviced Loan), but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Mortgage Loan and any related Serviced Companion Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d); and (b) to pay the applicable Special Servicer, as additional servicing compensation in accordance with Section 3.11(c), Penalty Charges collected on Specially Serviced Loans (but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Specially Serviced Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d));

(xi)          to recoup any amounts deposited in such Collection Account in error;

(xii)         to pay itself, the applicable Special Servicer, the Depositor, the Operating Advisor, the Asset Representations Reviewer or any of their respective directors, officers, members, managers, employees and agents, or CREFC^®, as the case may be, out of general collections, any amounts payable to any such Person pursuant to Section 3.11(g), Section 6.04(a) or Section 6.04(b); provided that, in the case of such reimbursement (other than a reimbursement of any amounts payable to CREFC^®) relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu,

 -205-

from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

(xiii)        to pay for (a) the cost of the Opinions of Counsel contemplated by Sections 3.09(b), 3.14(a), 3.15(b), 3.18(b), 3.18(d), 3.18(i), 10.01(f) and Section 13.02(a) to the extent payable out of the Trust Fund, (b) the cost of any Opinion of Counsel contemplated by Sections 13.01(a) or Section 13.01(c) in connection with an amendment to this Agreement requested by the Trustee or the applicable Master Servicer, which amendment is in furtherance of the rights and interests of Certificateholders and (c) the cost of obtaining the REO Extension contemplated by Section 3.14(a); provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to the related Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan(s)), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

(xiv)       to pay out of general collections on the Mortgage Loans and the REO Properties serviced by such Master Servicer any and all federal, state and local taxes imposed on any Trust REMIC, or any of their assets or transactions, together with all incidental costs and expenses, to the extent that none of the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee is liable therefor pursuant to Section 10.01(g);

(xv)        to reimburse the Certificate Administrator out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer for expenses incurred by and reimbursable to it by the Trust pursuant to Section 10.01(c);

(xvi)       to pay the applicable Mortgage Loan Seller or any other Person, with respect to each Mortgage Loan, if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the date of purchase relating to

 -206-

periods after the date of purchase; or, in the case of the substitution for a Mortgage Loan by a Mortgage Loan Seller as contemplated by Section 2.03(b), to pay such Mortgage Loan Seller with respect to the replaced Mortgage Loan all amounts received thereon subsequent to the date of substitution, and with respect to the related Qualified Substitute Mortgage Loan(s), all Periodic Payments due thereon during or prior to the month of substitution, in accordance with Section 2.03(b);

(xvii)      to remit to the Certificate Administrator for deposit in the Interest Reserve Account the amounts required to be deposited in the Interest Reserve Account pursuant to Section 3.21;

(xviii)     so long as such Master Servicer has received notice of the applicable Uncovered Amount on or before the related Determination Date, to pay or reimburse the applicable Person for any Uncovered Amount in respect of the other Master Servicer’s Collection Account, any such Person’s right to payment or reimbursement for any such Uncovered Amount being limited to any general funds in the subject Master Servicer’s Collection Account that are not otherwise to be applied to make any of the payments or reimbursements contemplated to be made out of the subject Master Servicer’s Collection Account pursuant to any of clauses (i) – (xvii) above;

(xix)        to reimburse the Operating Advisor for any Operating Advisor Expenses incurred by and reimbursable to it by the Trust pursuant to Section 3.26(i);

(xx)         to remit to the Companion Paying Agent for deposit into the Companion Distribution Account the amounts required to be deposited pursuant to Section 3.04(b) without duplication of amounts remitted to the Companion Paying Agent pursuant to clause (i) above;

(xxi)        [Reserved];

(xxii)       to clear and terminate such Collection Account at the termination of this Agreement pursuant to Section 9.01; and

(xxiii)      to pay for any expenditures to be borne by the Trust pursuant to the third paragraph of Section 3.03(c).

Each Master Servicer shall also be entitled to make withdrawals from time to time, from its Collection Account of amounts necessary for the payments or reimbursement of amounts required to be paid to the applicable Non-Serviced Trust, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer, the applicable Non-Serviced Trustee, the applicable Non-Serviced Paying Agent or any other applicable party to the applicable Non-Serviced PSA by the holder of a Non-Serviced Mortgage Loan pursuant to the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA.

Each Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and property by property basis when appropriate, for the purpose of justifying any withdrawal from its Collection Account.

 -207-

Each Master Servicer shall pay to the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer from its Collection Account amounts permitted to be paid to it therefrom monthly upon receipt of a certificate of a Servicing Officer of such Special Servicer, or an officer of the Operating Advisor or the Asset Representations Reviewer or a Responsible Officer of the Trustee or the Certificate Administrator describing the item and amount to which such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer is entitled. The applicable Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein. The applicable Special Servicer shall keep and maintain separate accounting for each Specially Serviced Loan and REO Loan, on a loan-by-loan basis (or when appropriate, property-by-property basis), for the purpose of justifying any request for withdrawal from the applicable Collection Account. Notwithstanding the above, no written certificate is required for a payment of Special Servicing Fees and/or Workout Fees arising from collections other than the initial collection on a Corrected Loan.

Notwithstanding anything to the contrary in this Section 3.05 or elsewhere in this Agreement, no amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer out of general collections that do not specifically relate to a Serviced Whole Loan may be reimbursable from amounts that would otherwise be payable to the related Companion Loan, as applicable.

(b)         The Certificate Administrator may, from time to time, make withdrawals from the Lower-Tier REMIC Distribution Account for any of the following purposes (the following not being an order of priority):

(i)           to be deemed to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.01(c) and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant to Section 4.01(e) in the Upper-Tier REMIC Distribution Account, and to make distributions on the Class R Certificates in respect of the Class LR Interest pursuant to Section 4.01(c);

(ii)          to pay to the Trustee and the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person with respect to the Mortgage Loans pursuant to Section 8.05(b);

(iii)         to pay the Certificate Administrator and the Trustee, the Certificate Administrator Fee and the Trustee Fee, as applicable, as contemplated by Section 8.05(a) with respect to the Mortgage Loans;

(iv)         to pay for the cost (without duplication) of the Opinions of Counsel sought by (A) the Trustee or the Certificate Administrator as provided in clause (vi) of the definition of “Disqualified Organization,” (B) the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer as contemplated by Section 3.18(d), (C) the Trustee or the Certificate Administrator as contemplated by Section 5.08(c) or Section 8.02 to the extent payable out of the Trust Fund, (D) the Trustee, the Certificate Administrator,

 -208-

any Master Servicer or any Special Servicer as contemplated by Section 10.01(f) or Section 10.01(l) to the extent payable out of the Trust Fund, or (E) the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer as contemplated by Section 13.01(a) or Section 13.01(c) in connection with any amendment to this Agreement requested by the Trustee or the Certificate Administrator, which amendment is in furtherance of the rights and interests of Certificateholders, in each case, to the extent not paid pursuant to Section 13.01(g);

(v)          to pay any and all federal, state and local taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC or on the assets or transactions of any such REMIC, together with all incidental costs and expenses, to the extent none of the Trustee, the Certificate Administrator, the REMIC Administrator, any Master Servicer or any Special Servicer is liable therefor pursuant to Section 10.01(g);

(vi)         to pay the REMIC Administrator any amounts reimbursable to it pursuant to Section 10.01(c) with respect to the Lower-Tier REMIC or the Upper-Tier REMIC;

(vii)        to pay to the applicable Master Servicer any amounts deposited by such Master Servicer in the Distribution Accounts not required to be deposited therein;

(viii)       to clear and terminate the Lower-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01; and

(ix)          termination of this Agreement pursuant to Section 9.01.

(c)          The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j).

(d)          The Certificate Administrator shall make, or be deemed to make, withdrawals from the Upper-Tier REMIC Distribution Account for any of the following purposes:

(i)           to make distributions to the Holders of the Regular Certificates and the Exchangeable Certificates (and to the Holders of the Class R Certificates in respect of the Class UR Interest) on each Distribution Date pursuant to Section 4.01 or Section 9.01, as applicable; and

(ii)          to clear and terminate the Upper-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01.

(e)          [RESERVED].

(f)           Notwithstanding anything herein to the contrary, with respect to any Mortgage Loan, (i) if amounts on deposit in each applicable Collection Account and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of the Servicing Fee listed in Section 3.05(a)(ii), the Operating Advisor Fee listed in Section 3.05(a)(ii) and the Certificate Administrator Fee listed in Section 3.05(b)(iii), then the Certificate Administrator Fee shall be paid in full prior to the payment of any Servicing Fees payable under Section 3.05(a)(ii)

 -209-

and then, after payment of Servicing Fees, the Operating Advisor Fees payable under Section 3.05(a)(ii) and in the event that amounts on deposit in each applicable Collection Account and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of such Certificate Administrator Fee, the Certificate Administrator shall be paid based on the amount of such fees and (ii) if amounts on deposit in each applicable Collection Account are not sufficient to reimburse the full amount of Advances and interest thereon listed in Sections 3.05(a)(ii), (a)(iii), (a)(iv), (a)(v), and (a)(vi) then reimbursements shall be paid first to the Certificate Administrator and to the Trustee, pro rata, second to the applicable Special Servicer, third to the applicable Master Servicer and then to the Operating Advisor.

(g)          If any Loss of Value Payments are deposited into the Loss of Value Reserve Fund with respect to any Mortgage Loan or any related Serviced REO Property, then the applicable Special Servicer shall promptly upon written direction from the applicable Master Servicer (provided that, (1) with respect to clause (iv) below, such Special Servicer shall have provided notice to the applicable Master Servicer of the occurrence of such Liquidation Event and (2) with respect to clause (v) below, the Certificate Administrator shall have provided the applicable Master Servicer and such Special Servicer with five (5) Business Days’ prior notice of such final Distribution Date) transfer such Loss of Value Payments (up to the remaining portion thereof) from the Loss of Value Reserve Fund to the applicable Master Servicer for deposit into the applicable Collection Account for the following purposes:

(i)           to reimburse the applicable Master Servicer, the applicable Special Servicer or the Trustee, in accordance with Section 3.05(a) of this Agreement, for any Nonrecoverable Advance made by such party with respect to such Mortgage Loan or any related Serviced REO Property (together with any interest on such Advances);

(ii)          to pay, in accordance with Section 3.05(a) of this Agreement, or to reimburse the Trust for the prior payment of, any expense or Liquidation Fee relating to such Mortgage Loan or any related Serviced REO Property that constitutes or, if not paid out of such Loss of Value Payments, would constitute an additional expense of the Trust;

(iii)         to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be (as calculated without regard to the application of such Loss of Value Payments), incurred with respect to such Mortgage Loan or any related successor REO Loan;

(iv)         following the occurrence of a Liquidation Event with respect to such Mortgage Loan or any related Serviced REO Property and any related transfers from the Loss of Value Reserve Fund with respect to the items contemplated by the immediately preceding clauses (i)-(iii) as to such Mortgage Loan, to cover the items contemplated by the immediately preceding clauses (i)-(iii) in respect of any other Mortgage Loan or Serviced REO Loan; and

(v)          On the final Distribution Date after all distributions have been made as set forth in clauses (i)-(iv) above, to each Mortgage Loan Seller, its pro rata share, based on the amount that it contributed, net of any amount contributed by such Mortgage Loan Seller

 -210-

that was used pursuant to clauses (i)-(iii) to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be, additional trust fund expenses or any Nonrecoverable Advances incurred with respect to the Mortgage Loan related to such contribution.

(h)          Any Loss of Value Payments transferred to a Collection Account pursuant to clauses (i)-(iii) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or any successor REO Loan (but excluding any related Companion Loan) with respect thereto for which such Loss of Value Payments were received; and any Loss of Value Payments transferred to a Collection Account pursuant to clause (iv) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or REO Loan (but excluding any related Companion Loan) for which such Loss of Value Payments are being transferred to such Collection Account to cover an item contemplated by clauses (i)-(iv) of the prior paragraph.

(i)           The Companion Paying Agent may, from time to time, make withdrawals from the Companion Distribution Account to make distributions pursuant to Section 4.01(k).

Section 3.06     Investment of Funds in Collection Accounts, REO Accounts and Loss of Value Reserve Fund. (a) Each Master Servicer may direct any depository institution maintaining its Collection Account, the Companion Distribution Account (with respect to the General Master Servicer) or any Servicing Account (for purposes of this Section 3.06, an “Investment Account”), each Special Servicer may direct any depository institution maintaining its REO Account or Loss of Value Reserve Fund (also for purposes of this Section 3.06, an “Investment Account”) to invest or if it is such depository institution, may itself invest, the funds held therein, only in one or more Permitted Investments bearing interest or sold at a discount, and maturing, unless payable on demand, (i) no later than the Business Day immediately preceding the next succeeding date on which funds are required to be withdrawn from such account pursuant to this Agreement, if a Person other than the depository institution maintaining such account is the obligor thereon and (ii) no later than the date on which funds are required to be withdrawn from such account pursuant to this Agreement, if the depository institution maintaining such account is the obligor thereon. All such Permitted Investments shall be held to maturity, unless payable on demand. Any funds held in an Investment Account shall be held in the name of the applicable Master Servicer or the applicable Special Servicer, as the case may be, on behalf of the Trustee (in its capacity as such) for the benefit of the Certificateholders. Each Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), each Special Servicer (in the case of the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) on behalf of the Trustee, shall maintain continuous physical possession of any Permitted Investment of amounts in such Collection Account, such Companion Distribution Account, such Servicing Accounts, such Loss of Value Reserve Fund or such REO Account, as applicable, that is either (i) a “certificated security,” as such term is defined in the UCC (such that the Trustee shall have control pursuant to Section 8-106 of the UCC) or (ii) other property in which a secured party may perfect its security interest by physical possession under the UCC or any other applicable law. In the case of any Permitted Investment held in the form of a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC), each Master Servicer or each Special Servicer, as

 -211-

the case may be, shall take or cause to be taken such action as the Trustee deems reasonably necessary to cause the Trustee to have control over such security entitlement. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the applicable Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer) or the applicable Special Servicer (in the case of the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall:

(i)           consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (a) all amounts then payable thereunder and (b) the amount required to be withdrawn on such date; and

(ii)          demand payment of all amounts due thereunder promptly upon determination by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the Investment Account.

(b)          Interest and investment income realized on funds deposited in the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for the applicable Master Servicer to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date, shall be for the sole and exclusive benefit of the applicable Master Servicer to the extent (with respect to Servicing Accounts) not required to be paid to the related Mortgagor and shall be subject to its withdrawal, or withdrawal at its direction, in accordance with Section 3.03 or Section 3.05(a), as the case may be. Interest and investment income realized on funds deposited in the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for the applicable Special Servicer, to the extent of the Net Investment Earnings, if any, with respect to such account for each period from and including any Distribution Date to and including the immediately succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the applicable Special Servicer and shall be subject to its withdrawal in accordance with Section 3.14(c). In the event that any loss shall be incurred in respect of any Permitted Investment (as to which the applicable Master Servicer or applicable Special Servicer, as the case may be, would have been entitled to any Net Investment Earnings hereunder) directed to be made by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and on deposit in any of the applicable Collection Account, the Companion Distribution Account, the Servicing Account, Loss of Value Reserve Fund or the REO Account, the applicable Master Servicer (in the case of the applicable Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), the applicable Special Servicer (in the case of the REO Account, the Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall deposit therein, no later than the P&I Advance Date, without right of reimbursement, the amount of Net Investment Loss, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date; provided that neither the applicable Master Servicer nor the applicable Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is

 -212-

incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company satisfied the qualifications set forth in the definition of Eligible Account at the time such investment was made (and such federal or state chartered depository institution or trust company is not an Affiliate of such Master Servicer or such Special Servicer, as applicable, unless such depository institution or trust company satisfied the qualification set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) thirty (30) days prior to such insolvency).

(c)          Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the applicable Master Servicer may and, upon the request of Holders of Certificates entitled to more than 50% of the Voting Rights allocated to any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings.

Section 3.07        Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage. (a) Each Master Servicer (with respect to the applicable Serviced Mortgage Loans and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and each Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the applicable Master Servicer or the applicable Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, each Master Servicer (with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan) or each Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer or such Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates. Any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made with the consent of the Directing Certificateholder (prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder) (or, with respect to any Serviced AB Whole Loan, if the Directing Certificateholder’s consent is required and an AB Control Appraisal Period is not in effect, with the consent of the holder of the related AB Subordinate Companion Loan) and, after consultation by the applicable Special Servicer with the Risk Retention Consultation Party (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party). Such determination shall be made by each Master Servicer (with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan) or each Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default

 -213-

as determined by such Master Servicer (with respect to a Non-Specially Serviced Loan) or such Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, such Master Servicer or, with respect to REO Property, such Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, a Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) with the consent of the Directing Certificateholder (unless a Control Termination Event has occurred and is continuing) or, with respect to any Serviced AB Whole Loan, the Subordinate Companion Holder (if an AB Control Appraisal Period is not in effect) and after consultation by the applicable Special Servicer with the Risk Retention Consultation Party (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) pursuant to Section 6.08(a) (in each case, other than with respect to any Excluded Loan as to such party)) and only in the event the Trustee has an insurable interest therein and such insurance is available to the applicable Master Servicer or the applicable Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. Each Master Servicer and each Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a) and the costs of such insurance being reimbursed or paid to the applicable Special Servicer as provided in the third-to-last sentence of this paragraph, such Special Servicer shall maintain for each REO Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless such Special Servicer determines with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and after consultation by the applicable Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case other than with respect to a Mortgage Loan that is an Excluded Loan as to such party) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the applicable Master Servicer shall be entitled to conclusively rely on such Special Servicer’s determination. All Insurance Policies maintained by a Master Servicer or a Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the applicable Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such

 -214-

endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by a Master Servicer or a Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the applicable Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by a Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by such Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by a Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, no Master Servicer shall be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Serviced Mortgage Loan and is currently available at commercially reasonable rates.

Notwithstanding the foregoing, with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, each Master Servicer shall, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that each Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) if the related Mortgage Loan is a Specially Serviced Loan, notify the applicable Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon such Master Servicer’s compliance with the immediately preceding

 -215-

clauses (A) and (B) above) that any Mortgagor under a Specially Serviced Loan fails to purchase the insurance requested to be purchased by the applicable Master Servicer pursuant to clause (B) above. In addition, upon the request of the Risk Retention Consultation Party with respect to any individual triggering event, the applicable Special Servicer shall consult on a non-binding basis pursuant to Section 6.08(a) with the Risk Retention Consultation Party (only with respect to a Specially Serviced Loan and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) within the same time period as it would obtain consent of, or consult with, the Directing Certificateholder in connection with any such determination by the applicable Special Servicer of an Acceptable Insurance Default. If the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, such Special Servicer (with regard to such determination made by the applicable Special Servicer) shall notify the applicable Master Servicer, and the applicable Master Servicer (in the case of a Specially Serviced Loan, after notice from the applicable Special Servicer) shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. Each Master Servicer and each Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. Each Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining whether Additional Exclusions exist. Furthermore, each Master Servicer or each Special Servicer, as applicable, shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that a Master Servicer or a Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or any Companion Holder or, with respect to any Serviced AB Whole Loan, the related Subordinate Companion Holder, and/or with respect (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party pursuant to Section 6.08(a), neither such Master Servicer nor such Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

(b)          (i) If any Master Servicer or any Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including any related Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan) or REO Properties (other than with respect to a Non-Serviced Mortgaged Property), as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the applicable Master Servicer or the applicable Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more

 -216-

losses which would have been covered by such Insurance Policy, promptly deposit into its Collection Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan (including any related Serviced Companion Loan), or in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans or any Serviced Companion Loans, the applicable Master Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. Each Special Servicer, to the extent consistent with the Servicing Standard, may maintain, earthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance.

(ii)          If any Master Servicer or any Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming such Master Servicer or such Special Servicer on behalf of the Trustee as the loss payee, then to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties and REO Properties. In the event any Master Servicer or any Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid by such Master Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case such Master Servicer or such Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the applicable Collection Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including any related Serviced Companion Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard.

(c)          Each Master Servicer and each Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s misappropriation of funds or errors or omissions. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standard. Coverage of the applicable Master Servicer or the applicable Special Servicer under a policy or bond obtained by an Affiliate of such Master Servicer or such Special

 -217-

Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). Each Special Servicer and each Master Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions insurance policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect.

(d)          At the time the applicable Master Servicer determines in accordance with the Servicing Standard that any Mortgaged Property (other than a Non-Serviced Mortgaged Property) is in a federally designated special flood hazard area (and such flood insurance has been made available), such Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan and related Serviced Companion Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent such insurance is available at commercially reasonable rates (as determined by such Master Servicer in accordance with the Servicing Standard and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Serviced Mortgage Loan or related Serviced Companion Loan permits the mortgagee to require such coverage and the maintenance of such coverage is consistent with the Servicing Standard. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan (and any related Serviced Companion Loan, if applicable), and (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount consistent with the Servicing Standard. If the cost of any insurance described above is not borne by the Mortgagor, such Master Servicer shall promptly make a Servicing Advance for such costs.

(e)          During all such times as any REO Property (other than with respect to a Non-Serviced Mortgaged Property) shall be located in a federally designated special flood hazard area, the applicable Special Servicer will cause to be maintained, to the extent available at commercially reasonable rates (as determined by such Special Servicer (with the consent of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) and in consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in either such case, other than with respect to any Mortgage Loan that is an Excluded Loan as to such party and any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect)) in accordance with the Servicing Standard), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount consistent with the Servicing Standard. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, paid by the applicable Master Servicer as a Servicing Advance.

(f)          Notwithstanding the foregoing, so long as the long-term debt obligations or the deposit account or claims-paying ability of the applicable Master Servicer (or its immediate or remote parent) or the applicable Special Servicer (or its immediate or remote parent), as applicable, is rated at least “A-” by S&P or “A” by Fitch (if rated by Fitch), such Master Servicer (or its public

 -218-

parent) or such Special Servicer (or its public parent), as applicable, shall be allowed to provide self-insurance with respect to any of its obligations under this Section 3.07.

(g)          Each of the Operating Advisor and Asset Representations Reviewer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement an “errors and omissions” insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s errors or omissions.

(h)          With respect to the One North Wacker Mortgage Loan, notwithstanding that the lender has discretion to require a Rating Agency Confirmation with respect to a “Non-Conforming Policy” (as defined under the related mortgage loan agreement) under the related mortgage loan agreement, the applicable Master Servicer and the applicable Special Servicer shall require a Rating Agency Confirmation from each Rating Agency with respect to any such Non-Conforming Policy.

(i)           With respect to the Plaza at Imperial Valley Mortgage Loan, notwithstanding that the lender has discretion to require excess liability insurance, the applicable Master Servicer and applicable Special Servicer shall require that the related borrower obtains and maintains, or causes to obtain and maintain, excess liability insurance in an amount consistent with the commercial general liability insurance required under Section 8.1(a)(ii) in the related mortgage loan agreement or otherwise obtain a Rating Agency Confirmation from each Rating Agency.

Section 3.08        Enforcement of Due-on-Sale Clauses; Assumption Agreements. (a) As to each Serviced Mortgage Loan and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-sale” clause, which by its terms:

(i)           provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

(ii)          provides that such Mortgage Loan and any related Companion Loan may not be assumed without the consent of the mortgagee in connection with any such sale or other transfer;

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, other than with respect to an action that constitutes a Master Servicer Decision pursuant to clause (xiii), (xiv) or (xvi) of the definition thereof, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right it may have with respect to such Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to any sale or transfer, consistent with the Servicing Standard or (b) waive any right to exercise such rights, provided that if such matter is a Major Decision, (i) (A) prior to the occurrence and continuance of a Control Termination Event and other than with respect to an Excluded Loan with respect to the Directing Certificateholder, or the holder of the majority of the Controlling Class, has obtained the prior written consent (or deemed consent) of the Directing Certificateholder to the extent required by, and pursuant to the process described under, Section 6.08(a), or if such Mortgage Loan is not an Excluded Loan with respect to the

 -219-

Directing Certificateholder or the holder of the majority of the Controlling Class, a Control Termination Event shall have occurred and be continuing and no Consultation Termination Event shall have occurred and be continuing, the Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a), (B) if such Mortgage Loan is not an Excluded Loan with respect to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) and (C) with respect to a Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, the prior consent of the related Subordinate Companion Holder shall have been obtained, to the extent required by the terms of the related Intercreditor Agreement, and pursuant to the process described in this Agreement (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days after the receipt of the applicable Special Servicer’s written recommendation and analysis with respect to such waiver and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation), and (ii) with respect to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal to $35,000,000, (y) with a Stated Principal Balance greater than or equal to 5% of the aggregated Stated Principal Balance of the Mortgage Loans then outstanding or (z) together with all other Mortgage Loans with which it is cross-collateralized or cross-defaulted or together with all other Mortgage Loans with the same Mortgagor (or an Affiliate thereof), that is one of the ten (10) largest Mortgage Loans outstanding (by Stated Principal Balance), the applicable Special Servicer, prior to consenting to any action, shall obtain, a Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), provided, however, that with respect to sub-clauses (y) and (z) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

With respect to any “due-on-sale” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans,

 -220-

within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(a), the applicable Special Servicer shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

If any Serviced Mortgage Loan or related Serviced Companion Loan provides that such Mortgage Loan or related Serviced Companion Loan may be assumed or transferred without the consent of the mortgagee, provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine in accordance with the Servicing Standard whether such conditions have been satisfied.

(b)          As to each Serviced Mortgage Loan and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-encumbrance” clause that by its terms:

(i)           provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

(ii)          requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor;

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement (and other than with respect to an action that constitutes a Master Servicer Decision pursuant to clause (xiii), clause (xiv) or clause (xvi) of the definition thereof with respect to such “due-on-encumbrance” clause), the applicable Special Servicer, on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right it may have with respect to such Serviced Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to the creation of any additional lien or other encumbrance, consistent with the Servicing Standard or (b) waive its right to exercise such rights, provided that, if such matter is a Major Decision, (i) (A) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, no Control Termination Event shall have occurred and be continuing and the matter involves a Major Decision, the prior written consent (or deemed consent) of the Directing Certificateholder shall have been obtained by the applicable Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a), (B) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, a Control Termination Event shall have

 -221-

occurred and be continuing, and no Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a), (C) if such Mortgage Loan is not an Excluded Loan with respect to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) and (D) with respect to any Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, the prior consent of the related Subordinate Companion Holder shall have been obtained by the applicable Special Servicer, to the extent required by the terms of the related Intercreditor Agreement (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation) (or after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to an Excluded Loan as to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Special Servicer has consulted with the Directing Certificateholder), and (ii) the applicable Special Servicer has obtained Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) if such Mortgage Loan (A) has an outstanding principal balance that is greater than or equal to 2% of the Stated Principal Balance of the outstanding Mortgage Loans or (B) has an LTV Ratio greater than 85% (including any existing and proposed debt) or (C) has a debt service coverage ratio less than 1.20x (in each case, determined based upon the aggregate of the Stated Principal Balance of the Mortgage Loan and related Companion Loan, if any, and the principal amount of the proposed additional lien) or (D) is one of the ten largest Mortgage Loans (by Stated Principal Balance) or (E) has a Stated Principal Balance greater than $35,000,000; provided, however, that with respect to sub-clauses (A), (B), (C) and (D) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

With respect to any “due-on-encumbrance” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding

 -222-

basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(b), the applicable Special Servicer shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

To the extent permitted by the related Mortgage Loan documents, the Rating Agency Confirmation described in the immediately preceding paragraph or in Section 3.08(a) shall be an expense of the related Mortgagor; provided that if the Mortgage Loan documents are silent as to who bears the costs of obtaining any such Rating Agency Confirmation, the applicable Special Servicer shall use reasonable efforts to make the related Mortgagor bear such costs and expenses. Unless determined to be a Nonrecoverable Advance such costs not collected from the related Mortgagor shall be advanced as a Servicing Advance.

If any Mortgage Loan or related Companion Loan provides that such Mortgage Loan or related Companion Loan may be further encumbered without the consent of the mortgagee provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine whether such conditions have been satisfied.

After receiving a request for any matter described in Section 3.08(a) or this Section 3.08(b) that constitutes a consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan that is a Non-Specially Serviced Loan and other than any transfers provided for in clause (xiii) of the definition of “Master Servicer Decision” and other than any waiver of a “due-on-encumbrance” clause which waiver constitutes a Master Servicer Decision pursuant to clause (xiii), (xiv) or (xvi) of the definition thereof, the applicable Master Servicer shall promptly forward such request to the applicable Special Servicer and such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and except as provided in the next sentence, the Master Servicer shall have no further obligation with respect to such request or due-on-sale or due-on-encumbrance. The applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in such Master Servicer’s possession to the applicable Special Servicer requested by such Special Servicer relating to such consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause. The applicable Master Servicer will not be permitted to process any request relating to such consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause (other than any transfers provided for in clause (xiii) of the definition of “Master Servicer Decision” and other than any waiver of a “due-on-encumbrance”

 -223-

clause which waiver constitutes a Master Servicer Decision pursuant to clause (xiii), (xiv) or (xvi) of the definition thereof) and will not be permitted to process any Major Decision or Special Servicer Decision or be required to interface with the Mortgagor or provide a written recommendation and analysis with respect to any Major Decision or Special Servicer Decision.

(c)          Nothing in this Section 3.08 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any additional lien or other encumbrance with respect to such Mortgaged Property.

(d)          Except as otherwise permitted by Section 3.08(a) and (b) and/or Section 3.18, no Master Servicer or Special Servicer shall agree to modify, waive or amend any term of any Mortgage Loan and related Serviced Companion Loan, as applicable, in connection with the taking of, or the failure to take, any action pursuant to this Section 3.08. The applicable Master Servicer and the applicable Special Servicer, as the case may be, shall provide copies of any final waivers (except with respect to provision of any such waivers to the 17g-5 Information Provider, exclusive of any Privileged Information) it effects pursuant to Section 3.08(a) or (b) to each other and to the 17g-5 Information Provider with respect to each Mortgage Loan, and shall notify the Trustee, the Certificate Administrator, each other and, subject to the terms of this Agreement, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website in accordance with Section 3.25) and, with respect to a Whole Loan, the related Serviced Companion Noteholder, of any assumption or substitution agreement executed pursuant to Section 3.08(a) or (b) and shall forward thereto a copy of such agreement.

(e)          [Reserved].

(f)          For the avoidance of doubt, no Master Servicer or Special Servicer may waive its rights or grant its consent under any “due-on-sale” or “due-on-encumbrance” clause other than in compliance with the provisions of Section 3.08(a) through (d) hereof or, with respect to an NCB Co-op Mortgage Loan, in compliance with the provisions of the following paragraph. In the case of a Special Servicer, no such waiver or consent that constitutes a Major Decision shall be made without (x) (i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan, with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained if and to the extent required by, and pursuant to the process described under Section 6.08(a) or (y) (i) after the occurrence and during the continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, but prior to the occurrence and continuance of a Consultation Termination Event, after having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a).

(g)          Notwithstanding the foregoing, and regardless of whether a particular NCB Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval of, or to consult with, the Directing Certificateholder hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Mortgagor to incur subordinate debt if the NCB Subordinate

 -224-

Debt Conditions have been met; provided that, subject to the related Mortgage Loan documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.

(h)          Notwithstanding the foregoing provisions of this Section 3.08, if any Master Servicer or any Special Servicer, as applicable, makes a determination under Section 3.08(a) or 3.08(b) that the applicable conditions in the related Mortgage Loan or Companion Loan documents, as applicable, with respect to assumptions or encumbrances permitted without the consent of the mortgagee have been satisfied, the applicable assumptions and transfers may be subject to an assumption or other fee, unless such fees are otherwise prohibited pursuant to the Mortgage Loan documents; provided that any such fee not provided for in the Mortgage Loan documents does not constitute a “significant” change in yield pursuant to Treasury Regulations Section 1.1001-3(e)(2).

Section 3.09      Realization Upon Defaulted Loans and Companion Loans. (a) Upon an event of default under the Mortgage Loan documents related to a Serviced Whole Loan or a Mortgage Loan with mezzanine debt, the applicable Master Servicer shall promptly provide written notice to the related Companion Holder or mezzanine lender, as applicable, with a copy of such notice to the applicable Special Servicer. If such Serviced Mortgage Loan or Serviced Whole Loan is a Defaulted Loan, the applicable Special Servicer shall, subject to subsections (b) through (d) of this Section 3.09 and Section 3.24, subject to the Directing Certificateholder’s and the Risk Retention Consultation Party’s respective rights pursuant to Section 6.08, and any Companion Holder or mezzanine lender’s rights under the related Intercreditor Agreement (in the case of a Serviced Whole Loan, on behalf of the holders of the beneficial interest of the related Companion Loan) or this Agreement, exercise reasonable efforts, consistent with the Servicing Standard, to foreclose upon or otherwise comparably convert (which may include an REO Acquisition) the ownership of property securing any such Serviced Mortgage Loan and related Companion Loan, if any, as come into and continue in default as to which no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments, and which are not released from the Trust Fund pursuant to any other provision hereof. The foregoing is subject to the provision that, in any case in which a Mortgaged Property shall have suffered damage from an Uninsured Cause, the applicable Master Servicer or the applicable Special Servicer shall not be required to make a Servicing Advance and expend funds toward the restoration of such property unless such Special Servicer has determined in its reasonable discretion that such restoration will increase the net proceeds of liquidation of such Mortgaged Property to Certificateholders after reimbursement to such Master Servicer or such Special Servicer, as applicable, for such Servicing Advance, and such Master Servicer or such Special Servicer has not determined that such Servicing Advance together with accrued and unpaid interest thereon would constitute a Nonrecoverable Advance. The costs and expenses incurred by the applicable Special Servicer in any such proceedings shall be advanced by the applicable Master Servicer; provided that, in each case, such cost or expense would not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall be construed so as to require a Master Servicer or a Special Servicer, on behalf of the Trust, to make an offer on any Mortgaged Property at a foreclosure sale or similar proceeding that is in excess of the fair market value of such property, as determined by the applicable Master Servicer or the applicable Special Servicer in its reasonable

 -225-

judgment taking into account the factors described in Section 3.16(b) and the results of any Appraisal obtained pursuant to the following sentence, all such offers to be made in a manner consistent with the Servicing Standard. If and when the applicable Special Servicer or the applicable Master Servicer deems it necessary and prudent for purposes of establishing the fair market value of any Mortgaged Property securing a Defaulted Loan or any related defaulted Companion Loan, whether for purposes of making an offer at foreclosure or otherwise, the applicable Special Servicer or the applicable Master Servicer, as the case may be, is authorized to have an Appraisal performed with respect to such property by an Independent MAI-designated appraiser the cost of which shall be paid by such Master Servicer as a Servicing Advance.

(b)          No Special Servicer shall acquire any personal property pursuant to this Section 3.09 unless either:

(i)           such personal property is incident to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by such Special Servicer; or

(ii)          such Special Servicer shall have obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that the holding of such personal property by the Trust (to the extent not allocable to the related Companion Loan) will not cause an Adverse REMIC Event.

(c)          Notwithstanding the foregoing provisions of this Section 3.09 and Section 3.24, neither the applicable Master Servicer nor the applicable Special Servicer shall, on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or take any other action with respect to any Mortgaged Property, if, as a result of any such action, the Trustee, on behalf of the Certificateholders and/or any related Companion Holder, would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged Property within the meaning of CERCLA or any comparable law, unless (as evidenced by an Officer’s Certificate to such effect delivered to the Trustee) the applicable Special Servicer has previously determined in accordance with the Servicing Standard, based on an Environmental Assessment of such Mortgaged Property performed by an Independent Person who regularly conducts Environmental Assessments and performed within six (6) months prior to any such acquisition of title or other action, that:

(i)           such Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Certificateholders (and with respect to any Serviced Whole Loan, the related Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance with such laws, and

(ii)          there are no circumstances present at such Mortgaged Property relating to the use, management or disposal of any hazardous materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such hazardous materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the

 -226-

Certificateholders (and with respect to any Serviced Whole Loan, the Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions with respect to the affected Mortgaged Property.

The cost of any such Environmental Assessment shall be paid by the applicable Master Servicer as a Servicing Advance and the cost of any remedial, corrective or other further action contemplated by clause (i) and/or clause (ii) of the preceding sentence shall be paid by the applicable Master Servicer as a Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which case it shall be an expense of the Trust and, in the case of a Serviced Whole Loan, shall be withdrawn in accordance with the related Intercreditor Agreement by the applicable Master Servicer from its Collection Account, including from the Companion Distribution Account (such withdrawal to be made from amounts on deposit therein that are otherwise payable on or allocable to such Serviced Whole Loan)); and if any such Environmental Assessment so warrants, the applicable Special Servicer shall, except with respect to any Companion Loan and any Environmental Assessment ordered after such Mortgage Loan has been paid in full, perform such additional environmental testing at the expense of the Trust as it deems necessary and prudent to determine whether the conditions described in clauses (i) and (ii) of the preceding sentence have been satisfied. With respect to Non-Specially Serviced Loans, the applicable Master Servicer and, with respect to Specially Serviced Loans, the applicable Special Servicer (other than any Non-Serviced Mortgage Loan) shall review and be familiar with the terms and conditions relating to enforcing claims and shall monitor the dates by which any claim or action must be taken (including delivering any notices to the insurer and using reasonable efforts to perform any actions required under such policy) under each environmental insurance policy in effect and obtained on behalf of the mortgagee to receive the maximum proceeds available under such policy for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests).

(d)          If (i) the environmental testing contemplated by subsection (c) above establishes that either of the conditions set forth in clauses (i) and (ii) of subsection (c) above of the first sentence thereof has not been satisfied with respect to any Mortgaged Property securing a Defaulted Loan and, in the case of a Serviced Mortgage Loan, any related Companion Loan, and (ii) there has been no breach of any of the representations and warranties set forth in or required to be made pursuant to Section 4 of each of the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan Seller could be required to repurchase such Defaulted Loan pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, then the applicable Special Servicer shall take such action as it deems to be in the best economic interest of the Trust (other than proceeding to acquire title to the Mortgaged Property) and is hereby authorized, with the consent of the Directing Certificateholder and after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, (A) prior to the occurrence and continuance of a Control Termination Event (or with respect to any AB Mortgage Loan, if an AB Control Appraisal Period is not in effect, but prior to the occurrence and continuance of a Control Termination Event) and (B) other than with respect to any Excluded Loan as to such party) at such time as it deems appropriate to release such Mortgaged Property from the lien of the related Mortgage, provided that, if such Mortgage Loan has a then-outstanding principal balance of greater than $1,000,000, then prior to the release of the related Mortgaged Property from the lien of the related Mortgage, (i) the applicable Special Servicer shall have notified the Rating Agencies, the Trustee, the Certificate Administrator, the applicable Master Servicer, the Directing

 -227-

Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event, and in the case of the Directing Certificateholder or the Risk Retention Consultation Party other than with respect to any Excluded Loan as to such party), in writing of its intention to so release such Mortgaged Property and the bases for such intention, (ii) the Certificate Administrator shall have posted such notice of the applicable Special Servicer’s intention to so release such Mortgaged Property to the Certificate Administrator’s Website pursuant to Section 3.13(b) and (iii) in addition to the prior written consent of the Directing Certificateholder as required above, the Holders of Certificates entitled to more than 50% of the Voting Rights shall have consented or have been deemed to have consented to such release within thirty (30) days of the Certificate Administrator’s posting such notice to the Certificate Administrator’s Website (failure to respond by the end of such 30-day period being deemed consent of the Holders of the Certificates). To the extent any fee charged by any Rating Agency in connection with rendering such written confirmation is not paid by the related Mortgagor, such fee is to be an expense of the Trust; provided that the applicable Special Servicer shall use commercially reasonable efforts to collect such fee from the Mortgagor to the extent permitted under the related Mortgage Loan documents.

(e)          Each Special Servicer shall provide written reports and a copy of any Environmental Assessments in electronic format to the Directing Certificateholder and the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party), each applicable Master Servicer and the 17g-5 Information Provider monthly regarding any actions taken by such Special Servicer with respect to any Mortgaged Property securing a Defaulted Loan, or defaulted Companion Loan as to which the environmental testing contemplated in subsection (c) above has revealed that either of the conditions set forth in clauses (i) and (ii) of the first sentence thereof has not been satisfied, in each case until the earlier to occur of satisfaction of both such conditions, repurchase of the related Mortgage Loan by the applicable Mortgage Loan Seller or release of the lien of the related Mortgage on such Mortgaged Property.

(f)          Each Special Servicer shall notify the applicable Master Servicer of any abandoned and/or foreclosed properties which require reporting to the Internal Revenue Service and shall provide such Master Servicer with all information regarding forgiveness of indebtedness and required to be reported with respect to any Mortgage Loan or related Companion Loan that is abandoned or foreclosed and such Master Servicer shall report to the Internal Revenue Service and the related Mortgagor, in the manner required by applicable law, such information and such Master Servicer shall report, via Form 1099A or Form 1099C (or any successor form), all forgiveness of indebtedness and abandonment and foreclosure to the extent such information has been provided to such Master Servicer by such Special Servicer. Upon request, the applicable Master Servicer shall deliver a copy of any such report to the Trustee and the Certificate Administrator.

(g)          Each Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of the maintenance of an action to obtain a deficiency judgment if the state in which the Mortgaged Property is located and the terms of the Mortgage Loan (and if applicable, the related Companion Loan) permit such an action.

(h)          Each Special Servicer shall maintain accurate records, prepared by one of its Servicing Officers, of each Final Recovery Determination in respect of a Defaulted Loan (other

 -228-

than with respect to a Non-Serviced Mortgage Loan) or defaulted Companion Loan or any REO Property (other than any Non-Serviced Mortgaged Property) and the basis thereof. Each Final Recovery Determination shall be evidenced by an Officer’s Certificate promptly delivered to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Risk Retention Consultation Party (but in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party) and the applicable Master Servicer and in no event later than the next succeeding P&I Advance Determination Date.

Section 3.10        Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files. (a) Upon the payment in full of any Serviced Mortgage Loan, or the receipt by the applicable Master Servicer or the applicable Special Servicer, as the case may be, of a notification that payment in full shall be escrowed in a manner customary for such purposes, the applicable Master Servicer or the applicable Special Servicer, as the case may be, will promptly notify the Trustee and the Custodian and request delivery of the related Mortgage File. Any such notice and request shall be in the form of a Request for Release signed by a Servicing Officer and shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the applicable Collection Account pursuant to Section 3.04(a) or remitted to the applicable Master Servicer to enable such deposit, have been or will be so deposited. Within seven (7) Business Days (or within such shorter period as release can reasonably be accomplished if the applicable Master Servicer or the applicable Special Servicer notifies the Custodian of an exigency) of receipt of such notice and request, the Custodian shall release the related Mortgage File to the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that in the case of the payment in full of a Serviced Companion Loan or its related Mortgage Loan, the related Mortgage File shall not be released by the Custodian unless the related Serviced Whole Loan is paid in full. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to a Collection Account.

(b)          From time to time as is appropriate for servicing or foreclosure of any Serviced Mortgage Loan (and any related Companion Loan), the applicable Master Servicer or the applicable Special Servicer shall deliver to the Custodian a Request for Release signed by a Servicing Officer. Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File or any document therein to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be. Upon return of such Mortgage File or such document to the Custodian, or the delivery to the Trustee and the Custodian of a certificate of a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as the case may be, stating that such Mortgage Loan (and, in the case of a Serviced Whole Loan, the related Companion Loan), was liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the applicable Collection Account (including amounts related to the related Companion Loan, if applicable) pursuant to Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan has become an REO Property, a copy of the Request for Release shall be released by the Custodian to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be, with the original being released upon termination of the Trust.

 -229-

(c)          Within seven (7) Business Days (or within such shorter period as delivery can reasonably be accomplished if the applicable Special Servicer notifies the Trustee of an exigency) of receipt thereof, the Trustee shall execute and deliver to the applicable Special Servicer any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal action brought to obtain judgment against any Mortgagor on the Mortgage Note (including any note evidencing a related Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity. The applicable Special Servicer shall be responsible for the preparation of all such documents and pleadings. When submitted to the Trustee for signature, such documents or pleadings shall be accompanied by a certificate of a Servicing Officer requesting that such pleadings or documents be executed by the Trustee and certifying as to the reason such documents or pleadings are required and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the Mortgage, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale. The Trustee shall not be required to review such documents for their sufficiency or enforceability.

(d)          If, from time to time, pursuant to the terms of the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA, and as appropriate for enforcing the terms of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer requests delivery to it of the original Mortgage Note for a Non-Serviced Mortgage Loan, then the Custodian shall release or cause the release of such original Mortgage Note to such Non-Serviced Master Servicer or its designee.

Section 3.11     Servicing Compensation. (a) As compensation for its activities hereunder, the applicable Master Servicer shall be entitled to receive the Servicing Fee with respect to each Mortgage Loan, Serviced Companion Loan and REO Loan (other than the portion of any REO Loan related to any Non-Serviced Companion Loan) (including Specially Serviced Loans and any Non-Serviced Mortgage Loan constituting a “specially serviced loan” under any related Non-Serviced PSA). As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Mortgage Loan or Companion Loan or deemed to be due on such REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan, except that if such Mortgage Loan is part of a Serviced Whole Loan and such Serviced Whole Loan continues to be serviced and administered under this Agreement notwithstanding such Liquidation Event, then the applicable Servicing Fee shall continue to accrue and be payable as if such Liquidation Event did not occur. The Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise provided by Section 3.05(a). Each Master Servicer shall be entitled to recover unpaid Servicing Fees in respect of any applicable Mortgage Loan, Companion Loan or REO Loan out of that portion of related payments, Insurance and Condemnation Proceeds,

 -230-

Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as recoveries of interest, to the extent permitted by Section 3.05(a).

Except as set forth in the following sentence, the fourth (4th) paragraph of this Section 3.11(a), Section 6.03, Section 6.05 and Section 7.01(c), the right to receive the Servicing Fee may not be transferred in whole or in part (except in connection with a transfer of all of the applicable Master Servicer’s duties and obligations hereunder to a successor servicer in accordance with the terms hereof). With respect to each Serviced Companion Loan, the Servicing Fee shall be payable to the applicable Master Servicer from amounts payable in respect of such Serviced Companion Loan, subject to the terms of the related Intercreditor Agreement.

Each Master Servicer shall be entitled to retain, and shall not be required to deposit in its Collection Account pursuant to Section 3.04(a), additional servicing compensation (other than with respect to a Non-Serviced Mortgage Loan) in the form of the following amounts to the extent collected from the related Mortgagor relating to a Mortgage Loan and any related Serviced Companion Loan for which it acts as Master Servicer:

(i)           100% of Excess Modification Fees related to any modifications, waivers, extensions or amendments of any Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) that are Master Servicer Decisions; and for any matter for a Mortgage Loan (including any related Companion Loan) that is not a Specially Serviced Loan which matter involves a Major Decision or a Special Servicer Decision (other than with respect to a Payment Accommodation), then such Master Servicer shall be entitled to 50% of such Excess Modification Fees; provided, that no Master Servicer shall be entitled to any COVID Forbearance Fees with respect to a Payment Accommodation;

(ii)          100% of all assumption application fees and other similar items received on any Serviced Mortgage Loans that are Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) to the extent such Master Servicer is processing the underlying transaction and 100% of all defeasance fees (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees in connection with a defeasance that the applicable Special Servicer is entitled to under this Agreement); and

(iii)         100% of assumption, waiver, consent and earnout fees, and other similar fees (other than assumption application fees and defeasance fees) pursuant to Section 3.08 and Section 3.18 or other actions performed in connection with this Agreement on the Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) relating to Master Servicer Decisions; and for any matter for a Mortgage Loan (including any related Companion Loan) that is not a Specially Serviced Loan which matter involves a Major Decision or a Special Servicer Decision (other than with respect to a Payment Accommodation), then the applicable Master Servicer shall be entitled to 50% of such assumption, waiver, consent and earnout fees and other similar fees.

 -231-

In addition, the applicable Master Servicer shall be entitled to charge and retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) any charges for beneficiary statements and demands to the extent such beneficiary statements or demands are prepared by the applicable Master Servicer and other customary charges, amounts collected for checks returned for insufficient funds (relating to the accounts held by such applicable Master Servicer) and reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, in each case only to the extent actually paid by or on behalf of the related Mortgagor and shall not be required to deposit such amounts in its Collection Account or the Companion Distribution Account pursuant to Section 3.04(a) or Section 3.04(b), respectively. Subject to Section 3.11(d), the applicable Master Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest or other income earned on deposits relating to the Trust Fund in its Collection Account or the Companion Distribution Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date), (iii) interest or other income earned on deposits in its Servicing Accounts which are not required by applicable law or the related Mortgage Loan to be paid to the Mortgagor, and (iv) the difference, if positive, between Prepayment Interest Excesses and Prepayment Interest Shortfalls collected on the Mortgage Loans and any Serviced Pari Passu Companion Loan for which it acts as Master Servicer, during the related Collection Period to the extent not required to be paid as Compensating Interest Payments. The applicable Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not payable directly out of its Collection Account and the applicable Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

Notwithstanding anything to the contrary, if either the Master Servicer or the Special Servicer has partially waived any Penalty Charge (part of which accrued when the related Mortgage Loan was not a Specially Serviced Loan and part of which accrued when the related Mortgage Loan was a Specially Serviced Loan), any collections in respect of such Penalty Charge will be shared pro rata by the applicable Master Servicer and the applicable Special Servicer based on the respective portions of such Penalty Charge to which each would otherwise have been entitled.

With respect to any of the preceding fees (other than Penalty Charges) as to which both the applicable Master Servicer and the applicable Special Servicer are entitled to receive a portion thereof, the applicable Master Servicer and the applicable Special Servicer shall each have the right in its sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or elect not to charge the portion of any such fee due to the other and (B) to the extent either of the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any such fee, the party that reduced or elected not to charge its respective portion of such fee will not have any right to share in any part of the other party’s portion of such fee. If the applicable Master Servicer

 -232-

decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Special Servicer would have been entitled if such Master Servicer had charged a fee and such Master Servicer will not be entitled to any of such fee charged by such Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Master Servicer would have been entitled if such Special Servicer had charged a fee and such Special Servicer shall not be entitled to any portion of such fee charged by such Master Servicer.

Notwithstanding anything herein to the contrary, each of Wells Fargo Bank, National Association and National Cooperative Bank, N.A. may, at its option, assign or pledge to any third party or retain for itself the Transferable Servicing Interest with respect to any Mortgage Loan and any Serviced Pari Passu Companion Loan (and any successor REO Loan) for which it acts as Master Servicer; provided, however, that in the event of any resignation or termination of such Master Servicer, all or any portion of the Transferable Servicing Interest may be reduced by the Trustee to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to obtain a qualified successor master servicer that meets the requirements of Section 6.05 and who requires market-rate servicing compensation that accrues at a per annum rate in excess of the Retained Fee Rate, and any such assignment of the Transferable Servicing Interest shall, by its terms be expressly subject to the terms of this Agreement and such reduction. The applicable Master Servicer shall pay the Transferable Servicing Interest to the holder of the Transferable Servicing Interest at such time and to the extent such Master Servicer is entitled to receive payment of its Servicing Fees hereunder, notwithstanding any resignation or termination of Wells Fargo Bank, National Association, as General Master Servicer, or National Cooperative Bank, N.A. as NCB Master Servicer, as applicable, hereunder (subject to reduction pursuant to the preceding sentence).

(b)          As compensation for its activities hereunder, each Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan and any REO Loan relating to a Non-Serviced Mortgaged Property). As to each Specially Serviced Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Specially Serviced Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the Specially Serviced Loans or REO Loans, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Specially Serviced Loan or deemed to be due on such REO Loan is computed. The Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan. The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in accordance with the provisions of Section 3.05(a). The right to receive the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the applicable Special Servicer’s responsibilities and obligations under this Agreement. No Special Servicer shall be entitled to any Special Servicing Fees with respect to a Non-Serviced Mortgage Loan.

(c)          Each Special Servicer shall be entitled to additional servicing compensation in the form of:

 -233-

(i)          100% of Excess Modification Fees related to modifications, waivers, extensions or amendments of any Specially Serviced Loans and 100% of COVID Forbearance Fees related to any Payment Accommodation,

(ii)         100% of assumption application fees and other similar items received with respect to Specially Serviced Loans and 100% of all assumption application fees and other similar items received with respect to Mortgage Loans (other than Non-Serviced Mortgage Loans) and Serviced Companion Loans that are Non-Specially Serviced Loans to the extent the applicable Special Servicer processes the underlying transaction,

(iii)        100% of waiver, consent and earnout fees and fees in respect of other actions performed in connection with this Agreement on the Specially Serviced Loans or certain other similar fees paid by the related Mortgagor on Specially Serviced Loans,

(iv)        100% of assumption fees and other similar fees received with respect to Specially Serviced Loans,

(v)         50% of all Excess Modification Fees and assumption, waiver, consent and earnout fees and other similar fees (other than assumption application fees and defeasance fees) received with respect to any Serviced Mortgage Loans or Serviced Companion Loan(s) that are Non-Specially Serviced Loans to the extent that the matter involves a Major Decision or a Special Servicer Decision (other than with respect to a Payment Accommodation), and

(vi)        100% of charges for beneficiary statements and demand charges actually paid by the Mortgagors to the extent such beneficiary statements or demand charges are prepared by such Special Servicer.

and shall be promptly paid to each Special Servicer by the applicable Master Servicer (or directly from the related Mortgagor) to the extent such fees are paid by the Mortgagor and shall not be required to be deposited in the applicable Collection Account pursuant to Section 3.04(a). Subject to Section 3.11(d), each Special Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d) and (ii) interest or other income earned on deposits relating to the Trust Fund in the REO Account and Loss of Value Reserve Fund in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to such Distribution Date). In addition, each Special Servicer shall be entitled to retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, and only to the extent actually paid by or on behalf of the related Mortgagor. Each Special Servicer shall also be entitled to additional servicing compensation in the form of a Workout Fee with respect to each Corrected Loan at the Workout Fee Rate on such Corrected Loan for so long as it remains a Corrected Loan; provided, that after receipt by the applicable Special Servicer of Workout Fees with respect to such Corrected Loan in an amount equal to $25,000, any Workout Fees in excess of such amount shall be reduced by the Excess Modification Fee Amount received by the applicable Special Servicer; provided, further, that in

 -234-

the event the Workout Fee collected over the course of such workout calculated at the Workout Fee Rate is less than $25,000, then the applicable Special Servicer shall be entitled to an amount from the final payment on the related Corrected Loan (including any related Serviced Companion Loan) that would result in the total Workout Fees payable to the applicable Special Servicer in respect of that Corrected Loan (including any related Serviced Companion Loan) being equal to $25,000. Notwithstanding the foregoing, with respect to the One North Wacker Mortgage Loan, no Liquidation Fee shall be payable to the extent the related borrower is not required to pay a Liquidation Fee in connection with a “Borrower Workout Request” as defined under Section 17.7 of the related mortgage loan agreement. The Workout Fee shall be reduced (but not below zero) with respect to each collection on such Corrected Loan from which fee would otherwise be payable until an amount equal to the Excess Modification Fee Amount has been deducted in full. The Workout Fee with respect to any Corrected Loan will cease to be payable if such loan again becomes a Specially Serviced Loan; provided that a new Workout Fee will become payable if and when such Specially Serviced Loan again becomes a Corrected Loan. Notwithstanding the foregoing, with respect to the One North Wacker Mortgage Loan, no Workout Fee shall be payable to the extent the related borrower is not required to pay a Workout Fee in connection with a “Borrower Workout Request” as defined under Section 17.7 of the related mortgage loan agreement. No Special Servicer shall be entitled to any Workout Fee with respect to a Non-Serviced Mortgage Loan. If a Special Servicer is terminated (other than for cause) or resigns, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans or any related Companion Loan that became Corrected Loans prior to the time of that termination or resignation except the Workout Fees will no longer be payable if the Corrected Loan subsequently becomes a Specially Serviced Loan. If a Special Servicer resigns or is terminated (other than for cause), it will receive any Workout Fees payable on Specially Serviced Loans for which the resigning or terminated Special Servicer had determined to grant a forbearance or cured the event of default through a modification, restructuring or workout negotiated by the applicable Special Servicer and evidenced by a signed writing, but which had not as of the time the applicable Special Servicer resigned or was terminated become a Corrected Loan solely because the Mortgagor had not had sufficient time to make three (3) consecutive timely Periodic Payments and which subsequently becomes a Corrected Loan as a result of the Mortgagor making such three (3) consecutive timely Periodic Payments. The successor special servicer will not be entitled to any portion of such Workout Fees. No Special Servicer will be entitled to receive any Workout Fees after termination of such Special Servicer for cause. A Liquidation Fee will be payable to the Special Servicer with respect to (a) each Specially Serviced Loan (other than a Non-Serviced Mortgage Loan) or REO Property (other than a Non-Serviced Mortgaged Property) as to which the applicable Special Servicer receives any Liquidation Proceeds or Insurance and Condemnation Proceeds and (b) each Mortgage Loan repurchased by a Mortgage Loan Seller or for which a Loss of Value Payment was paid, in each case, subject to the exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation Proceeds, Insurance and Condemnation Proceeds). If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds are received with respect to any Corrected Loan and the applicable Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable based on and out of the portion of such Liquidation Proceeds and Insurance and Condemnation Proceeds that constitute principal and/or interest on such Mortgage Loan. Notwithstanding anything herein to the contrary, each Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect

 -235-

to any Companion Loan, the Liquidation Fee, Workout Fee and Special Servicing Fees, if any, will be computed as provided in the related Intercreditor Agreement or to the extent such Intercreditor Agreement is silent or refers to this Agreement or indicates such fees are paid in accordance with this Agreement, as provided herein as though such Companion Loan were a Mortgage Loan. Subject to Section 3.11(d), each Special Servicer will also be entitled to additional fees in the form of Penalty Charges. Each Special Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts, other than management fees in respect of REO Properties, due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not expressly payable directly out of the applicable Collection Account or the REO Account, and the applicable Special Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

Notwithstanding anything to the contrary, if either the Master Servicer or the Special Servicer has partially waived any Penalty Charge (part of which accrued when the related Mortgage Loan was a Specially Serviced Loan and part of which accrued when the related Mortgage Loan was not a Specially Serviced Loan), any collections in respect of such Penalty Charge will be shared pro rata by the Master Servicer and the Special Servicer based on the respective portions of such Penalty Charge to which each would otherwise have been entitled.

With respect to any of the preceding fees (other than Penalty Charges) as to which both the Master Servicer and the Special Servicer are entitled to receive a portion thereof, the applicable Master Servicer and the applicable Special Servicer shall each have the right in its sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, however, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or elect not to charge the portion of any fee due to the other and (B) to the extent either of the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any fee, the party that reduced or elected not to charge such fee will not have any right to share in any part of the other party’s portion of such fee. If the applicable Master Servicer decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Special Servicer would have been entitled if the applicable Master Servicer had charged a fee and the applicable Master Servicer will not be entitled to any of such fee charged by the applicable Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Master Servicer would have been entitled if the applicable Special Servicer had charged a fee and the applicable Special Servicer shall not be entitled to any portion of such fee charged by the applicable Master Servicer.

(d)          In determining the compensation of each applicable Master Servicer or each applicable Special Servicer, as applicable, with respect to Penalty Charges, on any Distribution Date, the aggregate Penalty Charges collected on any Serviced Mortgage Loan and any related Companion Loan since the prior Distribution Date shall be applied (in such order) to reimburse (i) the applicable Master Servicer, the applicable Special Servicer or the Trustee for interest on Advances on such Mortgage Loan or related Companion Loan, if applicable (and, in connection

 -236-

with a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the applicable Non-Serviced Trustee for interest on the servicing advances made by any such party with respect to a Non-Serviced Whole Loan pursuant to the applicable Non-Serviced PSA, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) due on such Distribution Date, (ii) the Trust for all interest on Advances previously paid to the applicable Master Servicer or the Trustee pursuant to Section 3.05(a)(vi) (and, in connection with a Non-Serviced Mortgage Loan, the related trust for all interest on servicing advances reimbursed by such trust to any party under the applicable Non-Serviced PSA, which resulted in an additional expense for the Trust, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) with respect to such Mortgage Loan or related Companion Loan, if applicable and (iii) the Trust for all additional expenses of the Trust (including Special Servicing Fees, Workout Fees and Liquidation Fees), including without limitation, inspections by the applicable Special Servicer and all unpaid Advances incurred since the Closing Date with respect to such Mortgage Loan. Penalty Charges (other than with respect to a Non-Serviced Mortgage Loan, which shall be payable as additional servicing compensation under the related Non-Serviced PSA) remaining thereafter shall be distributed to the applicable Master Servicer, if and to the extent accrued while such Mortgage Loan and any related Companion Loan was a Non-Specially Serviced Loan, and to the applicable Special Servicer, if and to the extent accrued on such Mortgage Loan during the period such Mortgage Loan was a Specially Serviced Loan or REO Loan. Any Penalty Charges paid or payable as additional servicing compensation to each applicable Master Servicer and each applicable Special Servicer shall be distributed between the applicable Master Servicer and the applicable Special Servicer, on a pro rata basis, based on such Master Servicer’s and such Special Servicer’s respective entitlements to such compensation described in the previous sentence. Notwithstanding the foregoing or anything else herein to the contrary, Penalty Charges with respect to any Companion Loan will be allocated pursuant to the applicable Intercreditor Agreement after payment of all related Advances and interest thereon and additional expenses of the Trust in accordance with this Section 3.11(d).

If a Servicing Shift Whole Loan becomes a Specially Serviced Loan prior to the applicable Servicing Shift Securitization Date, the applicable Special Servicer shall service and administer such Servicing Shift Whole Loan and any related REO Property in the same manner as any other Specially Serviced Loan or Serviced REO Property and shall be entitled to all rights and compensation earned with respect to such Serviced Whole Loan as the applicable Special Servicer of such Serviced Whole Loan. With respect to a Servicing Shift Mortgage Loan, prior to the applicable Servicing Shift Securitization Date, no other special servicer will be entitled to any such compensation or have such rights and obligations. If a Servicing Shift Whole Loan is still a Specially Serviced Loan on the applicable Servicing Shift Securitization Date, the Non-Serviced Special Servicer and the applicable Special Servicer shall be entitled to compensation with respect to such Servicing Shift Whole Loan as if such Special Servicer were being terminated (other than for cause) as the Special Servicer with respect to such Servicing Shift Whole Loan and the Non-Serviced Special Servicer were replacing such Special Servicer as the successor Special Servicer with respect to such Servicing Shift Whole Loan.

(e)          With respect to each Distribution Date, each Special Servicer shall deliver or cause to be delivered to the applicable Master Servicer within two (2) Business Days following the Determination Date, and such Master Servicer shall deliver, to the extent it has received, to the Certificate Administrator, without charge and on the related Remittance Date, an electronic report

 -237-

(which may include HTML, Word or Excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator and the applicable Special Servicer) that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, if any, with respect to such Distribution Date; provided that no such report shall be due in any month during which no Disclosable Special Servicer Fees were received.

(f)          Each Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Mortgagor, any property manager, any guarantor or indemnitor in respect of a Mortgage Loan and any purchaser of any Mortgage Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan or Serviced Companion Loan, the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.11; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees.

(g)          Pursuant to the CREFC^® License Agreement, CREFC^® shall be paid (according to the payment instructions set forth on Exhibit II hereto or such other payment instructions as CREFC^® may provide to each applicable Master Servicer in writing at least two (2) Business Days prior to the Remittance Date) the CREFC^® Intellectual Property Royalty License Fee on a monthly basis. Each Master Servicer shall withdraw from its Collection Account and, to the extent sufficient funds are on deposit therein, pay the CREFC^® Intellectual Property Royalty License Fee to CREFC^® in accordance with Section 3.05(a)(xii) on a monthly basis, from funds on deposit in its Collection Account.

Section 3.12        Inspections; Collection of Financial Statements. (a) Each Master Servicer shall perform (at its own expense), or shall cause to be performed (at its own expense), a physical inspection of each Mortgaged Property relating to a Mortgage Loan (other than a Non-Serviced Mortgage Loan or a Specially Serviced Loan or an REO Loan) for which it acts as Master Servicer with a Stated Principal Balance of (i) $2,000,000 or more at least once every twelve (12) months and (ii) less than $2,000,000 at least once every twenty-four (24) months, in each case, commencing in the calendar year 2023 (and each Mortgaged Property shall be inspected on or prior to December 31, 2024); provided, however, that if a physical inspection has been performed by the applicable Special Servicer in the previous twelve (12) months, such Master Servicer will not be required to perform, or cause to be performed, such physical inspection; provided, further, that if any scheduled payment becomes more than sixty (60) days delinquent on the related Mortgage Loan (excluding a delinquency that would have existed but for a Payment Accommodation, for so long as the related Mortgagor is complying with the terms of such Payment Accommodation), the applicable Special Servicer shall inspect or cause to be inspected the related Mortgaged Property as soon as practicable after such Mortgage Loan becomes a Specially Serviced Loan and annually thereafter for so long as such Mortgage Loan remains a Specially Serviced Loan. The cost of such inspection by a Special Servicer pursuant to the second proviso of the immediately preceding sentence shall be an expense of the Trust, and, to the extent not paid by the related Mortgagor, reimbursed first from Penalty Charges actually received from the related Mortgagor and then from the applicable Collection Account pursuant to Section 3.05(a)(ii),

 -238-

provided that, with respect to a Serviced Whole Loan, such cost shall be payable, subject to the terms of the related Intercreditor Agreement (i) with respect to a Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan, in accordance with their respective outstanding principal balances, or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan(s) and then, from the Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loans), in each case, prior to being payable out of general collections. With respect to any Serviced AB Whole Loan, the costs will be allocated, first, as an expense of the related Subordinate Companion Holder and, second, as an expense of the holder of the related Mortgage Loan to the extent provided in the related Intercreditor Agreement. The applicable Special Servicer or the applicable Master Servicer, as applicable, shall prepare or cause to be prepared a written report of each such inspection detailing the condition of and any damage to the Mortgaged Property to the extent evident from the inspection and specifying the existence of (i) any vacancy at the Mortgaged Property that the preparer of such report has knowledge of and the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (ii) any sale, transfer or abandonment of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, (iii) any adverse change in the condition of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, and that the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (iv) any visible material waste committed on the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection and (v) photographs of each inspected Mortgaged Property. The applicable Special Servicer and the applicable Master Servicer shall promptly following preparation deliver or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, respectively, to the other party, to the Directing Certificateholder ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan (as to such party) that is a Specially Serviced Loan). Within five (5) Business Days after request for copies of such reports by the Rating Agencies, the applicable Special Servicer or the applicable Master Servicer, as applicable, shall deliver or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, as applicable, to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for review by NRSROs (including the Rating Agencies) that are Privileged Persons. The applicable Master Servicer shall deliver or make available a copy of each such report to the Directing Certificateholder and upon request to each Controlling Class Certificateholder (which request may state that such items may be delivered until further notice) (except, after the occurrence and during the continuance of a Consultation Termination Event or with respect to any Specially Serviced Loan that is an Excluded Loan as to such party).

(b)          Each Special Servicer, in the case of any Specially Serviced Loan, and each Master Servicer, in the case of any Non-Specially Serviced Loan shall make reasonable efforts to collect promptly and review from each related Mortgagor under the Mortgage Loans for which it acts as Master Servicer or Special Servicer, as applicable, quarterly and annual (or, in the case of Mortgage Loans secured by residential cooperative properties, annual only) operating statements,

 -239-

financial statements, budgets and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) of the related Mortgaged Property, and the quarterly and annual financial statements of such Mortgagor commencing with the calendar quarter ending on March 31, 2022 and the calendar year ending on December 31, 2022, whether or not delivery of such items is required pursuant to the terms of the related Mortgage Loan documents and any other reports or documents required to be delivered under the terms of the Mortgage Loans (and each Serviced Companion Loan), if delivery of such items is required pursuant to the terms of the related Mortgage Loan documents. The applicable Master Servicer and the applicable Special Servicer shall not be required to request such operating statements or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) more than once if the related Mortgagor is not required to deliver such statements pursuant to the terms of the Mortgage Loan documents. In addition, the applicable Special Servicer shall cause quarterly and annual operating statements, budgets and rent rolls to be regularly prepared in respect of each REO Property and shall collect all such items promptly following their preparation. The applicable Special Servicer shall deliver all such items to the applicable Master Servicer within five (5) Business Days of receipt, and such Master Servicer and such Special Servicer, as applicable, shall deliver or make available copies of all the foregoing items so collected to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Depositor, in electronic format, in each case within sixty (60) days of its receipt thereof, but in no event, in the case of annual statements, later than June 30 of each year commencing in 2022. Upon the request of any Privileged Person (other than the NRSROs) to receive copies of such items, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall deliver or make available electronic copies of such items to the Certificate Administrator to be posted on the Certificate Administrator’s Website. Upon the request of any NRSRO, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall deliver or make available copies of all or any portion of the foregoing items so collected thereby to the 17g-5 Information Provider pursuant to Section 3.13(c).

In addition, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties), as applicable, shall prepare with respect to each Mortgaged Property securing a Serviced Mortgage Loan and REO Property for which it acts as Master Servicer or Special Servicer, as applicable:

(i)          Within forty-five (45) days after receipt of a quarterly operating statement, if any, commencing within forty-five (45) days of receipt of such quarterly operating statement for the quarter ending March 31, 2022, a CREFC^® Operating Statement Analysis Report (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information) for such Mortgaged Property or REO Property as of the end of that calendar quarter and provides sufficient information to report pursuant to CREFC^® guidelines, provided, however, that any analysis or report with respect to the first calendar quarter of each year will not be required to the extent provided in the then-current applicable CREFC^® guidelines (it being understood that as of the Closing Date, the applicable CREFC^® guidelines provide that such analysis or report with respect to the first calendar quarter (in each year) is not required for a Mortgaged Property or REO Property

 -240-

unless such Mortgaged Property or REO Property is analyzed on a trailing twelve (12) month basis, or if the related Serviced Mortgage Loan is on the CREFC^® Servicer Watch List). The applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties that do not relate to Non-Serviced Mortgage Loans), as applicable, shall deliver or make available copies (in electronic format) of each CREFC^® Operating Statement Analysis Report and, upon request, the related operating statements (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder and the related Companion Holder (with respect to any Serviced Companion Loan).

(ii)          Within forty-five (45) days after receipt by the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties) or the applicable Master Servicer (with respect to Non-Specially Serviced Loans) of an annual operating statement or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) (if and to the extent any such information is in the form of normalized year-end financial statements that have been based on a minimum number of months of operating results as recommended by CREFC^® in the instructions to the CREFC^® guidelines) for each calendar year commencing within forty-five (45) days of receipt of such annual operating statement for the calendar year ending December 31, 2022, a CREFC^® NOI Adjustment Worksheet (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information), presenting the computation to “normalize” the full year net operating income and debt service coverage numbers used by the applicable Master Servicer in preparing the CREFC^® Comparative Financial Status Report. The applicable Master Servicer (with respect to all Serviced Mortgage Loans) or the applicable Special Servicer (with respect to REO Properties that do not relate to Non-Serviced Mortgage Loans), as applicable, shall deliver or make available copies (in electronic format) of each CREFC® NOI Adjustment Worksheet and, upon request, the related operating statements or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder, the related Companion Holder (with respect to any Serviced Companion Loan) and, upon request, the 17g-5 Information Provider, and the 17g-5 Information Provider shall post all such items to the 17g-5 Information Provider’s Website.

(c)          At or before 2:00 p.m. (New York City time) on each Determination Date, each Special Servicer shall prepare and deliver or cause to be delivered to the applicable Master Servicer and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, the CREFC^® Special Servicer Loan File and any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports with respect to the Specially Serviced Loans (excluding, for the Directing Certificateholder, any Excluded Loans as to such party) and any REO Properties (other than a Non-Serviced Mortgaged Property), providing the information required of the applicable Special Servicer in an electronic format, reasonably acceptable to the applicable Master Servicer as of the Business Day preceding such Determination Date, which CREFC^® Special Servicer Loan File shall include data, to enable the applicable Master Servicer to produce the following supplemental

 -241-

CREFC^® reports: (i) a CREFC^® Delinquent Loan Status Report, (ii) a CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iii) a CREFC^® REO Status Report, (iv) a CREFC^® Comparative Financial Status Report and (v) a CREFC^® NOI Adjustment Worksheet and a CREFC^® Operating Statement Analysis Report, in each case with the supporting financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) submitted by the Mortgagor.

(d)          Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning November 2021, each Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the Certificate Administrator the following reports and data files with respect to the Mortgage Loans for which it acts as Master Servicer: (A) to the extent such Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report and the CREFC^® REO Status Report, (B) CREFC^® Loan Setup File (only with respect to the first Distribution Date), (C) the most recent CREFC^® Property File, and CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the applicable Special Servicer and the applicable Master Servicer), (D) a CREFC^® Servicer Watch List with information that is current as of such Determination Date, (E) CREFC^® Financial File, (F) CREFC^® Loan Level Reserve/LOC Report, (G) the CREFC^® Advance Recovery Report, (H) CREFC^® Total Loan Report and (I) the report on Disclosable Special Servicer Fees delivered pursuant to Section 3.11(e) to the extent received from the applicable Special Servicer, if any. Additionally, not later than 5:00 p.m. (New York City time) on the P&I Advance Date beginning November 2021, the applicable Master Servicer shall deliver or cause to be delivered in electronic format to the Certificate Administrator any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports received from the applicable Special Servicer. Not later than 2:00 p.m. (New York City time) two (2) Business Days prior to the Distribution Date beginning November 2021, the applicable Master Servicer shall deliver or cause to be delivered to the Certificate Administrator via electronic format the CREFC^® Loan Periodic Update File and, to the extent received by such Master Servicer, the CREFC^® Appraisal Reduction Template. In no event shall any report described in this subsection be required to reflect information that has not been collected by or delivered to the applicable Master Servicer, or any payments or collections not received by the applicable Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due.

Not later than two (2) Business Days prior to each P&I Advance Date, the NCB Master Servicer shall deliver to the General Master Servicer an NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File in both EDGAR-Compatible Format and Excel format; provided, however, that the NCB Master Servicer shall have no obligation to prepare or deliver such NCB CREFC^® Schedule AL File unless the NCB Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(j). If the General Master Servicer does not receive such NCB CREFC^® Schedule AL File from the NCB Master Servicer by two (2) Business Days prior to the related P&I Advance Date, it shall immediately request such NCB CREFC^® Schedule AL File from the NCB Master Servicer via email at BANK2021BNK36@ncb.com and send a copy of such request to the Depositor via email at leland.f.bunch@bofa.com, todd.stillerman@bofa.com and cmbsnotices@bofa.com. In preparing

 -242-

the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the NCB Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial Schedule AL File and Annex A-1 to the Prospectus. The NCB CREFC^® Schedule AL File and the NCB Schedule AL Additional File delivered by the NCB Master Servicer shall each be a single file.

Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning November 2021, the General Master Servicer shall deliver to the Certificate Administrator a CREFC^® Schedule AL File and may deliver to the Certificate Administrator a Schedule AL Additional File, each covering all of the Mortgage Loans (which CREFC^® Schedule AL File and Schedule AL Additional File shall include the information contained in the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File, respectively, delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph), and each in both EDGAR-Compatible Format and Excel format; provided, however, that the General Master Servicer shall have no obligation to prepare or deliver the CREFC^® Schedule AL File for any given Distribution Date unless the General Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(j) and the NCB CREFC^® Schedule AL File for such Distribution Date pursuant to the immediately preceding paragraph. If the Certificate Administrator does not receive the CREFC^® Schedule AL File from the General Master Servicer by 5:00 p.m. (New York City time) on the P&I Advance Date, it shall request the CREFC^® Schedule AL File from the General Master Servicer via email at ssreports@wellsfargo.com and send a copy of such request to the Depositor via email at leland.f.bunch@bofa.com, todd.stillerman@bofa.com and cmbsnotices@bofa.com. In preparing the CREFC^® Schedule AL File and any Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the General Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial Schedule AL File and Annex A-1 to the Prospectus and the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph. The CREFC^® Schedule AL File and the Schedule AL Additional File delivered by the General Master Servicer shall each be a single file. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files provided or prepared by or on behalf of any applicable Master Servicer. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File.

In the absence of manifest error, each Master Servicer shall be entitled to conclusively rely upon, without investigation or inquiry, any information and reports delivered to it by any third party, and the Certificate Administrator shall be entitled to conclusively rely upon each Master Servicer’s reports and each Special Servicer’s reports and any information provided by the Trustee, without any duty or obligation to recompute, verify or recalculate any of the amounts and other information stated therein.

(e)          Each Special Servicer shall deliver to the applicable Master Servicer the reports and information required of such Special Servicer pursuant to Section 3.12(b) and

 -243-

Section 3.12(c), and such Master Servicer shall deliver or make available to the Certificate Administrator the reports and data files set forth in Section 3.12(d). Such Master Servicer may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Certificate Administrator may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Master Servicer pursuant to Section 3.12(d). In the case of information or reports to be furnished by the applicable Master Servicer to the Certificate Administrator pursuant to Section 3.12(d), to the extent that such information or reports are, in turn, based on information or reports to be provided by the applicable Special Servicer pursuant to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to be prepared and delivered by the applicable Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the applicable Master Servicer shall have no obligation to provide such information or reports to the Certificate Administrator until it has received the requisite information or reports from the applicable Special Servicer, and the applicable Master Servicer shall not be in default hereunder due to a delay in providing the reports required by Section 3.12(d) caused by the applicable Special Servicer’s failure to timely provide any information or report required under Section 3.12(b) or Section 3.12(c) of this Agreement.

(f)          Notwithstanding the foregoing, however, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by this Section 3.12 shall not constitute a breach of this Section 3.12 to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Mortgaged Properties. A Master Servicer and a Special Servicer may disclose any such information or any additional information to any Person so long as such disclosure is consistent with applicable law and the Servicing Standard. A Master Servicer or a Special Servicer may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

(g)          Unless otherwise specifically stated herein, if a Master Servicer or a Special Servicer is required to deliver or make available any statement, report or information under any provisions of this Agreement, such Master Servicer or such Special Servicer, as the case may be, may satisfy such obligation by (x) physically delivering a paper copy of such statement, report or information, (y) delivering such statement, report or information in a commonly used electronic format or (z) making such statement, report or information available on such Master Servicer’s website (with respect to items delivered by such Master Servicer (except with respect to items delivered by such Master Servicer to the Certificate Administrator)) or the Certificate Administrator’s Website, unless this Agreement expressly specifies a particular method of delivery.

Notwithstanding anything to the contrary in the foregoing, each Master Servicer and each Special Servicer shall deliver any required statements, reports or other information to the Certificate Administrator in an electronic format mutually agreeable to the Certificate Administrator and the applicable Master Servicer or the applicable Special Servicer, as the case may be. The applicable Master Servicer or the applicable Special Servicer may physically deliver a paper copy of any such statement, report or information as a temporary measure due to system

 -244-

problems, however, copies in electronic format shall follow upon the correction of such system problems.

Section 3.13      Access to Certain Information. (a) Each Master Servicer and Special Servicer shall provide or cause to be provided to the Certificate Administrator, and the Certificate Administrator shall afford access to any Mortgage Loan Seller and to any Certificateholder that is a federally insured financial institution, the OCC, the FDIC, the Board of Governors of the Federal Reserve System of the United States of America and the supervisory agents and examiners of such boards and such corporations, and any other federal or state banking or insurance regulatory authority that may exercise authority over any such Certificateholder, and to each Holder of a Non-Registered Certificate, access to any documentation or information regarding the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and, in the case of a Mortgage Loan that is a portion of a Serviced Whole Loan, the related Companion Loan, and the Trust within its control which may be required by applicable law. At the election of the applicable Master Servicer, the applicable Special Servicer or the Certificate Administrator, such access may be afforded to such Person identified above by the delivery of copies of information as requested by such Person and such Master Servicer, such Special Servicer or the Certificate Administrator shall be permitted to require payment (other than from the Directing Certificateholder and the Trustee and the Certificate Administrator on its own behalf or on behalf of the Certificateholders, as applicable) of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it in making such copies. Such access shall (except as described in the preceding sentence) be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.

The failure of a Master Servicer or a Special Servicer to provide access as provided in this Section 3.13 as a result of a confidentiality obligation shall not constitute a breach of this Section 3.13. In connection with providing information pursuant to this Section 3.13, each applicable Master Servicer and each applicable Special Servicer may each (i) affix a reasonable disclaimer to any information provided by it for which it is not the original source (without suggesting liability on the part of any other party hereto); (ii) affix to any information provided by it a reasonable statement regarding securities law restrictions on such information and/or condition access to information on (x) the execution of a confidentiality agreement substantially in the form of Exhibit X, or (y) execution of a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s or the applicable Special Servicer’s website; (iii) withhold access to confidential information or any intellectual property; and/or (iv) withhold access to items of information contained in the Servicing File for any Mortgage Loan if the disclosure of such items is prohibited by applicable law or the provisions of any related Mortgage Loan documents or would constitute a waiver of the attorney-client privilege. Notwithstanding any provision of this Agreement to the contrary, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement to the extent that such Master Servicer or such Special Servicer, as the case may be, determines, in its reasonable good faith judgment consistent with the applicable Servicing Standard, that such disclosure would violate applicable law or any provision of a Mortgage Loan or Companion Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Companion Loans or the Mortgaged Properties, constitute a waiver of the attorney-client privilege on behalf of the Trust or otherwise materially harm the Trust. Without limiting the generality of the foregoing, a Master

 -245-

Servicer or a Special Servicer may refrain from disclosing information that it reasonably determines would prejudice the interest of the Certificateholders with respect to a workout or exercise of remedies as to any particular Mortgage Loan.

Notwithstanding the limitation set forth in the next succeeding paragraph, but subject to the last sentence of the immediately preceding paragraph, upon the reasonable request of any Certificateholder (or with respect to any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, the holder of such AB Subordinate Companion Loan) that has delivered an Investor Certification to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, may provide (or make available electronically) or make available at the expense of such Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, copies of any appraisals, operating statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and financial statements (in each case, solely relating to the related Serviced Whole Loan or Serviced AB Whole Loan, if requested by the holder of an AB Subordinate Companion Loan, as the case may be) obtained by the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that, in connection with such request, such Master Servicer or such Special Servicer, as applicable, may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, generally to the effect that such Person will keep such information confidential and shall use such information only for the purpose of analyzing asset performance and evaluating any continuing rights the Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, may have under this Agreement.

Notwithstanding anything to the contrary herein (other than as permitted in the preceding paragraph with respect to any Certificateholder or as specifically provided for herein with respect to the Directing Certificateholder), unless required by applicable law or court order, no Certificateholder (except, with respect to a Mortgage Loan Seller, to the extent necessary for such party to comply with its obligations under the related Mortgage Loan Purchase Agreement, and except for each applicable Master Servicer and the Certificate Administrator, acting in such capacities) or beneficial owner shall be given access to, or be provided copies of, the Mortgage Files or Diligence Files.

(b)          The Certificate Administrator shall make available to Privileged Persons (provided that the Prospectus, Distribution Date Statements, Mortgage Loan Purchase Agreements, this Agreement and the Commission EDGAR filings referred to below will be available to the general public) via the Certificate Administrator’s Website, the following items, in each case, to the extent such items were prepared by or delivered to the Certificate Administrator in electronic format:

(i)           The following documents, which will initially be made available under a tab or heading designated “deal documents”:

(A)         the Prospectus and any other disclosure document relating to the Registered Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;

 -246-

(B)          this Agreement and any amendments and exhibits hereto;

(C)          any Sub-Servicing Agreements delivered to the Certificate Administrator on or after the Closing Date;

(D)          the Mortgage Loan Purchase Agreements and any amendments and exhibits thereto; and

(E)          the CREFC^® Loan Setup File provided by the applicable Master Servicer to the Certificate Administrator;

(ii)           the following documents, which will initially be made available under a tab or heading designated “SEC EDGAR filings”;

(A)         any reports on Forms 10-D, ABS-EE, 10-K and 8-K that have been filed by the Certificate Administrator with respect to the Trust through the EDGAR system;

(iii)          The following documents, which will initially be made available under a tab or heading designated “periodic reports”:

(A)           all Distribution Date Statements prepared by the Certificate Administrator pursuant to Section 4.02;

(B)          the CREFC^® Loan Periodic Update File, the CREFC^® Bond Level File, the CREFC^® Collateral Summary File, the CREFC^® Property File, the CREFC^® Financial File, each of the “surveillance reports” identified as such in the definition of “CREFC^® Investor Reporting Package” (including, without limitation, the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheets), the CREFC^® Advance Recovery Report to the extent delivered by the applicable Master Servicer pursuant to this Agreement from time to time; and

(C)         all Operating Advisor Annual Reports provided by the Operating Advisor to the Certificate Administrator;

(iv)          The following documents, which will initially be made available under a tab or heading designated “additional documents”:

(A)         summaries of Final Asset Status Reports or, if an AB Control Appraisal Period is not in effect, summaries of Asset Status Reports approved by the holder of the related Companion Loan, and related information delivered to the Certificate Administrator pursuant to Section 3.19(d);

(B)          all property inspection reports and environmental reports delivered to the Certificate Administrator pursuant to Section 3.12(a);

 -247-

(C)          any Appraisals delivered to the Certificate Administrator pursuant to Section 3.19; and

(D)          CREFC^® Appraisal Reduction Template;

(v)          The following documents, which will initially be made available under a tab or heading designated “special notices”:

(A)          any notice with respect to a release pursuant to Section 3.09(d);

(B)          any notice regarding a waiver, modification or amendment of the terms of any Mortgage Loan pursuant to Section 3.18(g);

(C)          any notice of final payment on the Certificates delivered to the Certificate Administrator pursuant to Section 4.01(h);

(D)          any notice of the occurrence of any Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

(E)          any notice of the Certificate Administrator’s determination that an Asset Review Trigger has occurred and any other notice required to be delivered to the Certificateholders pursuant to Section 12.01;

(F)           any Asset Review Report Summary received by the Certificate Administrator;

(G)          any notice of the termination of the Sub-Servicer delivered pursuant to Section 3.20(g);

(H)          any notice of resignation of the Trustee or the Certificate Administrator, and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

(I)            any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

(J)           any notice of resignation or termination of a Master Servicer or a Special Servicer pursuant to Section 7.03;

(K)          any notice of termination pursuant to Section 9.01;

(L)          any notice of resignation or termination of the Operating Advisor or the Asset Representations Reviewer and any notice of the acceptance of appointment by the successor operating advisor or the successor asset representations reviewer pursuant to Section 3.26 or Section 12.03, respectively;

 -248-

(M)         any notice of any request by requisite percentage of Certificateholders for a vote to terminate a Special Servicer pursuant to Section 7.01(d), the Operating Advisor pursuant to Section 3.26(j) or the Asset Representations Reviewer pursuant to Section 12.05(b);

(N)          any notice of recommendation of termination of a Special Servicer by the Operating Advisor and the related report prepared by the Operating Advisor in connection with such recommendation;

(O)          any notice that a Control Termination Event has occurred or is terminated or that a Consultation Termination Event has occurred or is terminated;

(P)          any notice of the occurrence of an Operating Advisor Termination Event;

(Q)          any notice of the occurrence of an Asset Representations Reviewer Termination Event;

(R)          any assessments of compliance delivered to the Certificate Administrator;

(S)          any attestation reports delivered to the Certificate Administrator;

(T)          any “special notices” required by a Certificateholder to be posted on the Certificate Administrator’s website pursuant to Section 5.06;

(U)          any notice or documents provided to the Certificate Administrator by the Depositor or a Master Servicer directing the Certificate Administrator to post to the “special notices” tab; and

(V)          any Proposed Course of Action Notice;

(vi)         the “Investor Q&A Forum” pursuant to Section 4.07(a);

(vii)       solely to Certificateholders and Certificate Owners that are Privileged Persons, the “Investor Registry” pursuant to Section 4.07(b); and

(viii)       the “U.S. Risk Retention Special Notices” tab, which shall contain any notices provided by the Retaining Sponsor relating to ongoing compliance by each Retaining Party with the Risk Retention Rules;

provided, that with respect to a Control Termination Event or Consultation Termination Event that is deemed to exist due solely to the existence of an Excluded Loan, the Certificate Administrator will only be required to provide notice of the occurrence and continuance of such event if it has been notified of or has knowledge of the existence of such Excluded Loan.

The Certificate Administrator shall post on the Certificate Administrator’s Website the items and reports identified in clauses (iii)(A) and (B) above on each Distribution Date. In

 -249-

addition, if the Depositor so directs the Certificate Administrator, and on terms acceptable to the Certificate Administrator, the Certificate Administrator shall make certain other information and reports related to the Mortgage Loans available through its Internet website.

The Certificate Administrator shall, in addition to posting the applicable notices on the “U.S. Risk Retention Special Notices” tab described in clause (viii) above, provide email notification to any Privileged Person (other than the financial market information providers listed in Section 3.13(e)) that has registered to receive access to the Certificate Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab.

Notwithstanding the foregoing, all Excluded Information shall be made available under a separate tab or heading designated “Excluded Information” on the Certificate Administrator’s Website (and not under any of the tabs or headings described in items (i) through (viii) above) and made available to Privileged Persons other than any Excluded Controlling Class Holder that is a Borrower Party (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)).

Any Person that is a Borrower Party shall only be entitled to access (a) the Distribution Date Statements, and the following items made available to the general public: the Prospectus, this Agreement, the Mortgage Loan Purchase Agreements and the Commission filings on the Certificate Administrator’s Website, and (b) in the case of the Directing Certificateholder or a Controlling Class Certificateholder, if any such Person becomes an Excluded Controlling Class Holder, upon delivery to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) of an investor certification substantially in the form of Exhibit P-1D and upon delivery to the Certificate Administrator in physical form of an investor certification substantially in the form of Exhibit P-1F, which shall include each of the CTSLink User ID associated with such Excluded Controlling Class Holder, all information (other than the Excluded Information with respect to any Excluded Controlling Class Loans (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans)) available on the Certificate Administrator’s Website.

In the case of the Directing Certificateholder or a Controlling Class Certificateholder that is not an Excluded Controlling Class Holder, upon delivery of an investor certification substantially in the form of Exhibit P-1B hereto, the Directing Certificateholder or Controlling Class Certificateholder shall be entitled to access all information on the Certificate Administrator’s Website. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee may each rely on (i) an investor certification in the form of Exhibit P-1B hereto from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is not an Excluded Controlling Class Holder and (ii) an investor certification in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is an Excluded Controlling Class Holder with respect to one or more Excluded Controlling Class Loan(s). In the event the Directing Certificateholder or a Controlling Class Certificateholder

 -250-

becomes an Excluded Controlling Class Holder, such party shall promptly notify each of the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in writing substantially in the form of Exhibit P-1E that such party has become an Excluded Controlling Class Holder with respect to the Excluded Controlling Class Loan(s) listed in such notice and shall also provide the Certificate Administrator a notice substantially in the form of Exhibit P-1F listing each of the CTSLink User ID associated with such Excluded Controlling Class Holder and directing the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. Upon confirmation from the Certificate Administrator that such access has been restricted, such Excluded Controlling Class Holder shall submit a new investor certification substantially in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) to access the information on the Certificate Administrator’s Website, except that such Excluded Controlling Class Holder shall not be entitled to access any Excluded Information related to any Excluded Controlling Class Loan(s) (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)) made available on the Certificate Administrator’s Website. With respect to any Excluded Information sent for posting on the Certificate Administrator’s Website, each of the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor shall mark or label such information as “Excluded Information” prior to delivery to the Certificate Administrator, and the Certificate Administrator shall segregate on the Certificate Administrator’s Website such Excluded Information (and, if possible at a later time, on loan-by-loan basis) from information relating to other Mortgage Loans or Whole Loans, as applicable.

Notwithstanding anything herein to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively assume that the Directing Certificateholder and all beneficial owners of the Certificates of the Controlling Class are not Excluded Controlling Class Holders except to the extent that the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, has received a notice substantially in the form of Exhibit P-1E from the Directing Certificateholder or a Controlling Class Certificateholder that it has become an Excluded Controlling Class Holder. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall not be liable for any communication to the Directing Certificateholder or a Controlling Class Certificateholder that is an Excluded Controlling Class Holder or disclosure of any information relating to an Excluded Controlling Class Loan (including any related Excluded Information delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website) if the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, did not receive prior written notice that the related Mortgage Loan is an Excluded Controlling Class Loan and/or, with respect to any related Excluded Information posted on the Certificate Administrator’s Website, such information was not delivered to the Certificate Administrator in accordance with Section 3.33.

Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder of an investor certification substantially in the form of Exhibit P-1B that it is not or is no longer an Excluded Controlling

 -251-

Class Holder. To the extent the Directing Certificateholder or a Controlling Class Certificateholder receives access pursuant to this Agreement to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the Directing Certificateholder or Controlling Class Certificateholder shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the Directing Certificateholder or Controlling Class Certificateholder or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

To the extent the Risk Retention Consultation Party or a Holder of an RR Interest receives access pursuant to this Agreement to any information solely related to a Mortgage Loan with respect to which such party is a Borrower Party (which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans conducted by a Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding such Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, a Master Servicer or a Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, but in each case other than information with respect to such Mortgage Loan that is aggregated with information of other Mortgage Loans at a pool level), on the Certificate Administrator’s Website or otherwise receives access to such information, such Risk Retention Consultation Party or Holder of an RR Interest shall be deemed to have agreed that it (i) will not directly or indirectly provide any such information to (A) the related Borrower Party, (B) any employees or personnel of such Risk Retention Consultation Party or Holder of an RR Interest or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any such Excluded Loan) shall be considered information that is aggregated with information of other Mortgage Loans at a pool level. For avoidance of doubt, the covenants and restrictions in this paragraph are not applicable to Wells Fargo Bank, National Association, acting in its capacity as Master Servicer or as Certificate Administrator.

The Certificate Administrator makes no representation or warranty as to the accuracy or completeness of any report, document or other information made available on its Internet website and assumes no responsibility therefor, other than with respect to such reports, documents or other information prepared by the Certificate Administrator. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by it for which it is not the original source. Notwithstanding anything herein to the contrary, the Certificate Administrator shall not be liable for any disclosure of information relating to any Excluded

 -252-

Controlling Class Loan to the extent such information was included in any Asset Status Report or Final Asset Status Report inadvertently delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website and not properly identified as relating to any Excluded Controlling Class Loan.

In connection with providing access to the Certificate Administrator’s Website (other than with respect to access provided to the general public in accordance with Section 3.13(b)), the Certificate Administrator may require registration and the acceptance of a disclaimer. The Certificate Administrator shall not be liable for the dissemination of information in accordance herewith. Questions regarding the Certificate Administrator’s Website can be directed to the Certificate Administrator’s CMBS customer service desk at (866) 846-4526.

(c)          The 17g-5 Information Provider shall make available solely to the Depositor and the NRSROs the following items to the extent such items are delivered to it (in the form of an electronic document suitable for posting) via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK36” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:

(i)           any notices of waivers under Section 3.08(d);

(ii)          any Asset Status Report delivered by the applicable Special Servicer under Section 3.19(d);

(iii)         any notice of final payment on the Certificates;

(iv)         any environmental reports delivered by the applicable Special Servicer under Section 3.09(c);

(v)          any Appraisals delivered to the 17g-5 Information Provider pursuant to Section 3.19;

(vi)         any annual statements as to compliance and related Officer’s Certificates delivered under Section 11.09 or 11.10;

(vii)        any annual independent public accountants’ attestation reports delivered pursuant to Section 11.11;

(viii)       any notice to the Rating Agencies relating to the applicable Special Servicer’s determination to take action without receiving Rating Agency Confirmation from any Rating Agency as set forth in Section 3.25(a);

(ix)          copies of requests or questions that were submitted by the Rating Agencies relating to a request for Rating Agency Confirmation;

 -253-

(x)            any requests for Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.25(a);

(xi)           any notice of resignation of the Trustee or the Certificate Administrator and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

(xii)         any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

(xiii)        any notice of a Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

(xiv)        any notice of the merger or consolidation of the Certificate Administrator or the Trustee pursuant to Section 8.09;

(xv)          any notice of any amendment that modifies the procedures herein relating to Rule 17g-5 of the Exchange Act pursuant to Section 13.01(a)(ix);

(xvi)         any Operating Advisor Annual Report pursuant to Section 3.26;

(xvii)        any summary of oral communication with the Rating Agencies or any written question or request from the Rating Agencies directed toward the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee regarding any of the information delivered to the 17g-5 Information Provider pursuant to this Section 3.13(c) or regarding any request for a Rating Agency Confirmation or regarding any of the Mortgage Loan documents or any matter related to the Certificates, Mortgage Loans, any related Companion Loan, the related Mortgaged Properties, the related Mortgagors or any other matters related to this Agreement or any applicable Intercreditor Agreement; provided that the summary of such oral communication shall not identify the Rating Agency with whom the communication was held pursuant to Section 3.13(g);

(xviii)      any other information delivered to the 17g-5 Information Provider pursuant to this Agreement including, without limitation, Section 2.03(b), Section 3.07(a), Section 3.12, Section 3.17, Section 3.18(g); Section 11.09 or Section 11.10; and

(xix)         any other information delivered to the Rating Agencies pursuant to this Agreement including, without limitation, Section 13.10.

The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website. Information will be posted on the same Business Day of receipt unless such information is received after 2:00 p.m., New York City time, on such Business Day, in which case, it shall be posted by 12:00 p.m., New York City time, on the next Business Day; provided, however, that any information delivered pursuant to Section 3.13(d) shall be posted in accordance with Section 3.13(d). The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other

 -254-

than what it purports to be. In the event that any information is delivered or posted in error, each of the Certificate Administrator and the 17g-5 Information Provider may remove such information from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information merely by posting such information to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website or merely by filing such information pursuant to this Agreement via EDGAR or otherwise to the extent such information was not produced by the Certificate Administrator or the 17g-5 Information Provider, as applicable. Access will be provided by the 17g-5 Information Provider to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit P-2 hereto (which certification may be submitted electronically via the 17g-5 Information Provider’s Website). Questions regarding delivery of information to the 17g-5 Information Provider may be directed to (866) 846-4526 or 17g5informationprovider@wellsfargo.com (specifically referencing “BANK 2021-BNK36” in the subject line).

Upon delivery by the Depositor to the 17g-5 Information Provider of information designated by the Depositor as pre-closing information from the Depositor’s 17g-5 Website (the “Pre-Close Information”), the 17g-5 Information Provider shall make such information available only to the Depositor and to NRSROs via the 17g-5 Information Provider’s Website pursuant to this Section 3.13(c). Such information shall be provided to the 17g-5 Information Provider via electronic media and delivered to the 17g-5 Information Provider as mutually agreed. The Depositor shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-Close Information or any other information on the 17g-5 Information Provider’s Website to any designee or third party.

Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 3.13. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website the Rating Agency that requested such additional information.

The 17g-5 Information Provider shall notify any party that delivers any information, report, notice or document to the 17g-5 Information Provider under this Agreement that such information, report, notice or document was received and that it has been posted. Each applicable Master Servicer and each applicable Special Servicer may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider. The 17g-5 Information Provider shall notify each Person that has signed-up for access to the 17g-5 Information Provider’s Website in respect of the transaction governed by this Agreement each time an additional document is posted to the 17g-5 Information Provider’s Website and such notice shall specifically identify such document in the subject line or otherwise in the body of the email notice. The 17g-5 Information Provider shall send such notice to such Person’s email address provided by and used by such Person for the purpose of accessing the 17g-5 Information Provider’s Website, including a general email address

 -255-

if such general email address has been provided to the 17g-5 Information Provider in connection with a completed NRSRO Certification in the form of Exhibit P-2 hereto.

Any information required to be delivered or made available to the 17g-5 Information Provider by any party under this Agreement shall be delivered to it via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK36” and an identification of the type of information being provided in the body of such electronic mail, or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider.

(d)          The applicable Master Servicer or the applicable Special Servicer, as applicable, may, but shall not be obligated to, provide bulk information that relates to two or more transactions to the 17g-5 Information Provider. Any such information shall be posted by the 17g-5 Information Provider and the 17g-5 Information Provider may, but shall not be obligated to post such information in accordance with the timeframe provided in Section 3.13(c) above, provided, however, that if the 17g-5 Information Provider is not able to post such information in accordance with the timeframe in Section 3.13(c), then it shall post such information within a reasonable time.

(e)          Certain information concerning the Mortgage Loans and the Certificates (including the Distribution Date Statements, CREFC^® reports and supplemental notices with respect to such Distribution Date Statements and CREFC^® reports) shall be provided by the Certificate Administrator at the direction of the Depositor to third parties (including Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corp., Markit Group Limited, BlackRock Financial Management, Inc., CMBS.com, Inc., KBRA Analytics, LLC, Moody’s Analytics, RealInsight and Thomson Reuters Corporation) with the consent of the Depositor, and providing such information shall not constitute a breach of this Agreement by the Certificate Administrator. Such information will be made available to such third parties upon receipt of a certificate in the form of Exhibit P-3 hereto, which certification may be submitted electronically via the Certificate Administrator’s Website.

(f)          Each Master Servicer and each Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also deliver, produce or otherwise make available through its website or otherwise, any additional information relating to the Mortgage Loans (other than any Non-Serviced Mortgage Loan), any related Serviced Companion Loan, the Mortgaged Properties (other than any Non-Serviced Mortgaged Property), or the related Mortgagors, for review by the Depositor, the Underwriters and any other Persons who deliver an Investor Certification in accordance with this Section 3.13 and the Rating Agencies (collectively, the “Disclosure Parties”) (in the case of deliveries to a Rating Agency, only to the extent such additional information is simultaneously delivered to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)), in each case, except to the extent doing so is prohibited by this Agreement (including without limitation, any prohibitions on dissemination of any confidential information, including, without limitation, any Privileged Information), applicable law or by the related Mortgage Loan documents. Each Master Servicer and each Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor and the Rating Agencies, enter into (x) an Investor Certification, (y) a confidentiality agreement

 -256-

substantially in the form of Exhibit X or (z) a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s or Special Servicer’s website, and (B) acknowledge that such Master Servicer or such Special Servicer may contemporaneously provide such information to any other Disclosure Party. In addition, to the extent access to such information is provided via the applicable Master Servicer’s or Special Servicer’s website, such Master Servicer or Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the information described in this Section 3.13(f) to current or prospective Certificateholders, the form of confidentiality agreement used by the applicable Master Servicer or the applicable Special Servicer, as applicable, shall be: (i) in the case of a Certificateholder, an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (ii) in the case of a prospective purchaser of Certificates or interests therein or an investment advisor related thereto, an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein or an investment advisor related thereto and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential with no further dissemination (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators). In the case of a licensed or registered investment advisor acting on behalf of a current or prospective Certificateholder, the Investor Certification shall be executed and delivered by both the investment advisor and such current or prospective Certificateholder.

No Master Servicer or Special Servicer shall be liable for its dissemination of information in accordance with this Agreement or by others in violation of the terms of this Agreement. No Master Servicer or Special Servicer shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 3.13 unless such information was produced by the applicable Master Servicer or the applicable Special Servicer, as the case may be.

(g)          Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee shall be permitted (but not obligated) to orally communicate with the Rating Agencies regarding any of the Mortgage Loan documents and any other matter related to the Mortgage Loans, the related Mortgaged Properties, the related Mortgagors or any other matters relating to this Agreement or related Intercreditor Agreement; provided that such party summarizes the information provided to the Rating Agencies in such communication in writing and provides the 17g-5 Information Provider with such written summary in accordance with the procedures set forth in Section 3.13(c) the same day such communication takes place; provided, further that the summary of such oral communications shall not identify which Rating Agency the communication was with. The 17g-5 Information Provider shall post such written summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 3.13(c).

 -257-

(h)          Each applicable Special Servicer, subject to the limitations on delivery of Privileged Communications, shall deliver to the Operating Advisor such reports and other information produced or otherwise available to the Directing Certificateholder or the Risk Retention Consultation Party (in each case, other than, prior to the occurrence and continuance of a Control Termination Event, any Asset Status Reports that are not Final Asset Status Reports), or Certificateholders generally, requested by the Operating Advisor in support of the performance of its obligations under this Agreement in electronic format.

(i)           None of the foregoing restrictions in this Section 3.13 or otherwise in this Agreement shall prohibit or restrict oral or written communications, or providing information, between the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, on the one hand, and any Rating Agency or NRSRO, on the other hand, with regard to (i) such Rating Agency’s or NRSRO’s review of the ratings it assigns to the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as the case may be, (ii) such Rating Agency’s or NRSRO’s approval of the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer, or (iii) such Rating Agency’s or NRSRO’s evaluation of the applicable Master Servicer’s, the Operating Advisor, the Asset Representations Reviewer’s or the applicable Special Servicer’s, as the case may be, servicing operations in general; provided that such Master Servicer, the Operating Advisor, the Asset Representations Reviewer or such Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans, to any Rating Agency or NRSRO in connection with such review and evaluation by such Rating Agency or NRSRO unless (x) Mortgagor, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on to the 17g-5 Information Provider’s Website or (z) the Rating Agency confirms that it does not intend to use such information in undertaking credit rating surveillance with respect to the Certificates; provided, however, that the Rating Agencies may use information delivered under this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement) or comprised of information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that they have access to) other than pursuant to this Section 3.13(i).

(j)           The costs and expenses of compliance with this Section 3.13 by the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and any other party hereto shall not be additional expenses of the Trust, but shall be borne by the applicable party hereto.

Section 3.14        Title to REO Property; REO Account. (a) If title to any Mortgaged Property is acquired (directly or through a single member limited liability company established for that purpose) and thus becomes REO Property, the deed or certificate of sale shall be issued in the name of the Trust where permitted by applicable law or regulation and consistent with customary servicing procedures, and otherwise, in the name of the Trustee or its nominee on behalf of the Certificateholders and, if applicable, on behalf of the related Companion Holders, in the case of a Serviced Companion Loan. REO Property with respect to a Non-Serviced Mortgage Loan is

 -258-

excluded for all purposes of this Section 3.14. Each Special Servicer, on behalf of the Trust and, if applicable, the related Serviced Companion Noteholder, shall sell any REO Property prior to the close of the third calendar year following the year in which the Trust acquires ownership of such REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless such Special Servicer either (i) applies for a qualifying extension of time no later than sixty (60) days prior to the close of the third calendar year in which it acquired ownership (or the period provided in the then-applicable REMIC Provisions) and such extension is granted or is not denied (an “REO Extension”) by the Internal Revenue Service to sell such REO Property or (ii) obtains for the Trustee and the Certificate Administrator an Opinion of Counsel, addressed to the Trustee and the Certificate Administrator, to the effect that the holding by the Trust of such REO Property subsequent to the close of the third calendar year following the year in which acquisition occurred will not cause an Adverse REMIC Event. If the applicable Special Servicer is granted or not denied the REO Extension contemplated by clause (i) of the immediately preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the immediately preceding sentence, such Special Servicer shall sell such REO Property within such longer period as is permitted by such REO Extension or such Opinion of Counsel, as the case may be. Any expense incurred by such Special Servicer in connection with its being granted the REO Extension contemplated by clause (i) of the second preceding sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of the second preceding sentence, shall be an expense of the Trust payable out of the applicable Collection Account pursuant to Section 3.05(a).

(b)          Each Special Servicer shall segregate and hold all funds collected and received in connection with any REO Property separate and apart from its own funds and general assets. If an REO Acquisition shall occur, the applicable Special Servicer shall establish and maintain one or more REO Accounts, held on behalf of the Trustee for the benefit of the Certificateholders and, if applicable, on behalf of any related Companion Holder(s), as applicable, as their interest shall appear, and the Trustee (as holder of the Lower-Tier Regular Interests), for the retention of revenues and other proceeds derived from each REO Property. The REO Account shall be an Eligible Account. The applicable Special Servicer shall deposit, or cause to be deposited, in the REO Account, on the later of the date that is (i) on or prior to each Determination Date or (ii) two (2) Business Days after receipt of properly identified funds, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds received and properly identified in respect of an REO Property. Funds in the REO Account may be invested in Permitted Investments in accordance with Section 3.06. The applicable Special Servicer shall give notice to the Trustee, the Certificate Administrator, and the applicable Master Servicer of the location of the REO Account when first established and of the new location of the REO Account prior to any change thereof.

(c)          The applicable Special Servicer shall withdraw from the REO Account funds necessary for the proper operation, management, insuring, leasing, maintenance and disposition of any REO Property, but only to the extent of amounts on deposit in the REO Account relating to such REO Property. On the later of the date that is (x) on or prior to each Determination Date or (y) two (2) Business Days after such amounts are received and properly identified and determined to be available (or, with respect to a Serviced Companion Loan, on the Business Day preceding each Serviced Whole Loan Remittance Date), the applicable Special Servicer shall withdraw from the REO Account and remit to the applicable Master Servicer, which shall deposit into the applicable Collection Account (or the Companion Distribution Account, as applicable),

 -259-

the aggregate of all amounts received in respect of each REO Property during the most recently ended Collection Period, net of (i) any withdrawals made out of such amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on amounts on deposit in the REO Account; provided, however, that the applicable Special Servicer may retain in such REO Account, in accordance with the Servicing Standard, such portion of such balance as may be necessary to maintain a reasonable reserve for repairs, replacements, leasing, management and tenant improvements and other related expenses for the related REO Property. In addition, on or prior to the day the applicable Special Servicer remits funds as provided in this Section 3.14, the applicable Special Servicer shall provide the applicable Master Servicer with a written accounting of amounts remitted to such Master Servicer for deposit in the applicable Collection Account, as applicable, on such date. Such Master Servicer shall apply all such amounts as instructed by such Special Servicer on the Determination Date (or with respect to a Serviced Companion Loan, on each Serviced Whole Loan Remittance Date) for the related Distribution Date.

(d)          The applicable Special Servicer shall keep and maintain separate records, on a property-by-property basis, for the purpose of accounting for all deposits to, and withdrawals from, the REO Account pursuant to Section 3.14(b) or Section 3.14(c).

Section 3.15      Management of REO Property. (a) If title to any REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect, operate and lease such REO Property (other than any Non-Serviced Mortgaged Property) for the benefit of the Certificateholders and the related Companion Holders and the Trustee (as holder of the Lower-Tier Regular Interests) solely for the purpose of its timely disposition and sale in a manner that does not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust or any Serviced Companion Noteholder of any “income from non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith as are in the best interests of and for the benefit of the Certificateholders (and, in the case of each Serviced Whole Loan, the related Companion Holder(s)) and the Trustee (as holder of the Lower-Tier Regular Interests) all as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loan, as the case may be) (as determined by the applicable Special Servicer in its reasonable judgment in accordance with the Servicing Standard). Notwithstanding anything to the contrary herein, REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.15. Subject to this Section 3.15, the applicable Special Servicer may allow the Trust or any commercial mortgage securitization that holds any Serviced Companion Loan to earn “net income from foreclosure property” within the meaning of Section 860G(d) of the Code if it determines that earning such income is in the best interests of Certificateholders and, if applicable, any related Companion Holder(s) on a net after-tax basis as compared with net leasing such REO Property or operating such REO Property on a different basis. In connection therewith, the applicable Special Servicer shall deposit or cause to be deposited on a daily basis (and in no event later than two (2) Business Days following receipt of such properly identified funds) in the applicable REO Account all revenues received by it with respect to each REO Property and the related REO Loan, and shall withdraw from the REO Account, to the extent of amounts on deposit therein with respect to such REO Property, funds necessary for the proper operation, management, leasing and maintenance of such REO Property, including, without limitation:

 -260-

(i)           all insurance premiums due and payable in respect of such REO Property;

(ii)          all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;

(iii)         any ground rents in respect of such REO Property, if applicable; and

(iv)         all costs and expenses necessary to maintain and lease such REO Property.

To the extent that amounts on deposit in the REO Account in respect of any REO Property are insufficient for the purposes set forth in clauses (i) through (iv) above with respect to such REO Property, the applicable Master Servicer (subject to receiving notice from the applicable Special Servicer in accordance with the procedures set forth elsewhere in this Agreement) shall advance from its own funds such amount as is necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee, the applicable Special Servicer, the Depositor, the Certificate Administrator and the Directing Certificateholder (with respect to the Directing Certificateholder, in respect of any Mortgage Loan other than an Excluded Loan as to such party, and prior to the occurrence and continuance of a Consultation Termination Event)) such advances would, if made, constitute Nonrecoverable Servicing Advances.

(b)          Without limiting the generality of the foregoing, no Special Servicer shall:

(i)           permit the Trust to enter into, renew or extend any New Lease with respect to any REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;

(ii)          permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;

(iii)         authorize or permit any construction on any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

(iv)         Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate, any REO Property on any date more than ninety (90) days after its acquisition date;

unless, in any such case, the applicable Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code at any time that it is held for the benefit of the Trust, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel.

 -261-

(c)          Each Special Servicer shall contract with any Independent Contractor for the operation and management of any REO Property within ninety (90) days of the acquisition date thereof, provided that:

(i)           the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;

(ii)          the fees of such Independent Contractor (which shall be an expense of the Trust) shall be reasonable and customary in light of the nature and locality of the Mortgaged Property;

(iii)         any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in subsection (a) hereof, and (B) remit all related revenues collected (net of its fees and such costs and expenses) to the applicable Special Servicer upon receipt;

(iv)         none of the provisions of this Section 3.15(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and

(v)          each Special Servicer shall be obligated to manage and supervise such Independent Contractor in accordance with the Servicing Standard.

Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the applicable Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.

(d)          When and as necessary, each Special Servicer shall send to the Trustee, the Certificate Administrator and the applicable Master Servicer a statement prepared by such Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Sections 3.15(a) and 3.15(b).

Section 3.16        Sale of Defaulted Loans and REO Properties. (a) (i) Within thirty (30) days after a Defaulted Loan has become a Specially Serviced Loan, the applicable Special Servicer shall order (but shall not be required to have received) an Appraisal and within thirty (30) days of receipt of the Appraisal shall determine the fair value of such Defaulted Loan in accordance with the Servicing Standard; provided, however, that if the applicable Special Servicer is then in the process of obtaining an Appraisal with respect to the related Mortgaged Property, such Special Servicer shall make its fair value determination as soon as reasonably practicable (but in any event within thirty (30) days) after its receipt of such an Appraisal. The applicable Special Servicer may, from time to time, adjust its fair value determination based upon changed circumstances, new information and other relevant factors, in each instance in accordance with a review of such

 -262-

circumstances and new information in accordance with the Servicing Standard including, without limitation, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy; provided that the applicable Special Servicer shall promptly notify the applicable Master Servicer in writing of the initial fair value determination and any adjustment to its fair value determination.

(ii)          If any Mortgage Loan or Serviced Companion Loan subject to an Intercreditor Agreement is a Specially Serviced Loan or to the extent otherwise required pursuant to the terms of the related Intercreditor Agreement, then the applicable Special Servicer (with respect to a Specially Serviced Loan) or the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) shall promptly notify in writing the other, any related Companion Holder and any related mezzanine lender, as applicable, of any events requiring notice under the Intercreditor Agreement in accordance with the terms thereof. Thereafter, any related Companion Holder and related mezzanine lender, as applicable, will, notwithstanding anything in this Section 3.16 to the contrary, have the option to purchase the related Mortgage Loan and cure defaults relating thereto as and to the extent set forth in the related Intercreditor Agreement.

(iii)         If any Mortgage Loan not subject to an Intercreditor Agreement becomes a Specially Serviced Loan, or if the related Companion Holder or related mezzanine lender, as applicable, for any such Mortgage Loan subject to an Intercreditor Agreement has not previously exercised the option to purchase the Mortgage Loan pursuant to the previous paragraph, the applicable Special Servicer shall use reasonable efforts to solicit offers for each Defaulted Loan on behalf of the Certificateholders and the holder of any related Serviced Companion Loan in such manner as will be reasonably likely to maximize the value of the Defaulted Loan on a net present value basis, if and when the applicable Special Servicer determines, consistent with the Servicing Standard, that no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and, if applicable, the related Companion Holder. In the case of a Non-Serviced Mortgage Loan, to the extent permitted under the related Intercreditor Agreement, and such Non-Serviced Mortgage Loan is not sold together with the Non-Serviced Companion Loan by the Non-Serviced Special Servicer, the applicable Special Servicer will be entitled to sell ((i) with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing and (ii) after consulting with the Risk Retention Consultation Party pursuant to Section 6.08(a), in each case, provided such Non-Serviced Mortgage Loan is not an Excluded Loan as to such party) such Non-Serviced Mortgage Loan if it determines in accordance with the Servicing Standard that such action would be in the best interests of the Certificateholders and, subject to the terms of the related Intercreditor Agreement, the applicable Special Servicer shall be entitled to the liquidation fee that the related Non-Serviced Special Servicer would have otherwise been entitled to in connection with the sale of such Non-Serviced Mortgage Loan. Each Special Servicer is required to give the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor and the Directing Certificateholder (but only prior to the occurrence and continuance of a Consultation Termination Event), the Subordinate Companion Holder with respect to any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, and the Risk Retention Consultation Party (in the case of

 -263-

the Directing Certificateholder and the Risk Retention Consultation Party, other than in respect of any Excluded Loan as to such party) not less than ten (10) days’ prior written notice of its intention to sell any Defaulted Loan. In the absence of a cash offer at least equal to the Purchase Price, the applicable Special Servicer may purchase the Defaulted Loan for the Purchase Price or may accept the first cash offer received from any Person that constitutes a fair price for the Defaulted Loan.

(iv)         (A) In the case of a Specially Serviced Loan as to which a default has occurred and is continuing, in the absence of any offer at least equal to the Purchase Price pursuant to clause (iii) above (or purchase by the applicable Special Servicer for such price), the applicable Special Servicer shall solicit offers and, subject to sub-clause (B) below, accept the highest offer received from any Person that is determined by such Special Servicer to be a fair price for such Specially Serviced Loan, if the offeror is a Person other than an Interested Person. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any Defaulted Loan, the applicable Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), among other factors, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. If the offeror is an Interested Person (provided that the Trustee may not be an offeror), the Trustee shall determine whether the offer constitutes a fair price unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (x) it is the highest offer received and (y) at least two (2) other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for any such Defaulted Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the applicable Master Servicer.

Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee shall (at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan or Serviced Whole Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan or Serviced Whole Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable by, the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. The applicable Special Servicer shall use efforts consistent with the Servicing Standard to

 -264-

collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Specially Serviced Loan.

(B)          The applicable Special Servicer will not be obligated to accept the highest offer if such Special Servicer determines (in consultation with the Directing Certificateholder (unless a Consultation Termination Event has occurred and is continuing) and the Risk Retention Consultation Party subject, in each case, to the limitations on consultation set forth in and in accordance with Section 6.08(a) and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) and, in the case of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder, in accordance with the Servicing Standard (and subject to the requirements of any related Intercreditor Agreement), that the rejection of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender (and, with respect to any Serviced AB Whole Loan, taking into account the subordinate nature of the related AB Subordinate Companion Loan)). In addition, the applicable Special Servicer may accept a lower offer from any Person other than an Affiliate of such Special Servicer if it determines, in accordance with the Servicing Standard, that the acceptance of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender (and, with respect to any Serviced AB Whole Loan, taking into account the subordinate nature of the related AB Subordinate Companion Loan)) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer. The applicable Special Servicer shall use reasonable efforts to sell all Defaulted Loans prior to the Rated Final Distribution Date. For the avoidance of doubt, the Trustee shall have no obligation to make any fair value determination, to the extent required to do so pursuant to this Section 3.16, on the basis of anything other than the related Appraisal.

(C)          In connection with any such sale involving a Serviced AB Whole Loan, the applicable Special Servicer shall have the right (if permitted by the related Intercreditor Agreement), but not the obligation, to sell the related AB Subordinate Companion Loan if such Special Servicer determines that such sale is in accordance

 -265-

with the Servicing Standard (taking into account the subordinate nature of the applicable AB Subordinate Companion Loan).

(v)          Unless and until any Specially Serviced Loan is sold pursuant to this Section 3.16(a), the applicable Special Servicer shall pursue such other resolution strategies with respect to such Specially Serviced Loan, including, without limitation, workout and foreclosure, as the applicable Special Servicer may deem appropriate, consistent with the Asset Status Report and the Servicing Standard and the REMIC Provisions.

(b)          (i)The applicable Special Servicer may purchase any REO Property at the Purchase Price therefor (in the case of a Serviced Whole Loan, such purchase shall be a purchase of the entire REO Property, including the portion relating to the related Companion Loan). The applicable Special Servicer may also offer to sell to any Person any REO Property (in the case of a Serviced Whole Loan, such sale shall be a sale of the entire REO Property, including the portion relating to the related Companion Loan), if and when the applicable Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interest of the Trust and the related Companion Holders. Each Special Servicer shall give the Trustee, the applicable Master Servicer, each Companion Holder, the Certificate Administrator and the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, in respect of any Mortgage Loan other than an Excluded Loan as to such party and prior to the occurrence and continuance of a Consultation Termination Event) not less than ten (10) days’ prior written notice of its intention to (x) purchase any REO Property at the Purchase Price therefor or (y) sell any REO Property, in which case such Special Servicer shall accept the highest offer received from any Person for any REO Property in an amount at least equal to the Purchase Price therefor. To the extent permitted by applicable law, and subject to the Servicing Standard, the applicable Master Servicer, an Affiliate of the applicable Master Servicer, the applicable Special Servicer or an Affiliate of such Special Servicer, or an employee of either of them may act as broker in connection with the sale of any REO Property and may retain from the proceeds of such sale a brokerage commission that does not exceed the commission that would have been earned by an independent broker pursuant to a brokerage agreement entered into at arm’s length.

(A)         In the absence of any such offer as set forth in clause (i) above, the applicable Special Servicer shall, subject to sub-clause (C) below, accept the highest offer for such REO Property received from any Person that is determined to be a fair price (1) by such Special Servicer, if the highest offeror is a Person other than an Interested Person, or (2) by the Trustee, if the highest offeror is an Interested Person unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received; provided, however, that absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (A) it is the highest offer received and (B) at least two (2) other offers are received from independent third parties. Notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any REO Property pursuant hereto.

 -266-

(B)          No Special Servicer shall be obligated by either of the foregoing paragraphs or otherwise to accept the highest offer if such Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the subordinate or pari passu nature of any Serviced Companion Loans). In addition, such Special Servicer may accept a lower offer if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the subordinate or pari passu nature of any Serviced Companion Loans) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer.

(C)          In determining whether any offer received from an Interested Person represents a fair price for any REO Property, the Trustee shall obtain and may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee in connection with making such determination. The reasonable cost of such Independent appraiser or other Independent expert shall be an expense of the offering Interested Person purchaser. The reasonable fees and costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. In determining whether any offer constitutes a fair price for any REO Property, the applicable Special Servicer or the Trustee (or, if applicable, such appraiser) shall take into account, and any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the physical condition of such REO Property, the state of the local economy and the Trust’s obligation to comply with REMIC Provisions.

(ii)          Subject to the Servicing Standard, the applicable Special Servicer shall act on behalf of the Trust and the related Companion Holders in negotiating and taking any other action necessary or appropriate in connection with the sale of any REO Property, including the collection of all amounts payable in connection therewith. A sale of any REO Property shall be without recourse to, or representation or warranty by, the Trustee, the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Operating Advisor or the Trust (except that any contract of sale and assignment and conveyance documents may contain customary warranties of title, so long

 -267-

as the only recourse for breach thereof is to the Trust) and, if consummated in accordance with the terms of this Agreement, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Certificate Administrator, the Operating Advisor and the Trustee shall have no liability to the Trust or any Certificateholder or related Companion Holder (if applicable) with respect to the purchase price therefor accepted by the applicable Special Servicer or the Trustee.

(c)          Any sale of a Defaulted Loan or any REO Property shall be for cash only (unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration).

(d)          With respect to each Serviced Whole Loan, pursuant to the terms of the related Intercreditor Agreement and this Agreement, if the related Serviced Whole Loan becomes a Defaulted Loan, and if the applicable Special Servicer determines to sell the related Mortgage Loan that has become a Defaulted Loan in accordance with this Section 3.16, then the applicable Special Servicer shall sell the related Serviced Pari Passu Companion Loans (and, to the extent permitted by the related Intercreditor Agreement, the related AB Subordinate Companion Loans) together with such Mortgage Loan as one whole loan and shall require that all offers be submitted to such Special Servicer in writing. To the extent a determination is required to be made hereunder as to whether any cash offer constitutes a fair price for a Serviced Whole Loan, such determination shall be made by the applicable Special Servicer unless the offeror is an Interested Person and by the Trustee if the offeror is an Interested Person and the offer is less than the Purchase Price. Notwithstanding the foregoing, the applicable Special Servicer will not be permitted to sell the related Mortgage Loan together with the related Serviced Pari Passu Companion Loan(s) if it becomes a defaulted Whole Loan without the written consent of the holder of the related Serviced Pari Passu Companion Loan (provided that such consent is not required if the holder of the Serviced Pari Passu Companion Loan is the Mortgagor or an Affiliate of the Mortgagor) unless the applicable Special Servicer has delivered to the holder of the related Serviced Pari Passu Companion Loan: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell such Serviced Whole Loan; (b) at least ten (10) days prior to the permitted sale date, a copy of each bid package (together with any amendments to such bid packages) received by the applicable Special Servicer in connection with any such proposed sale; (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for such Serviced Whole Loan, and any documents in the servicing file reasonably requested by the holder of the related Serviced Pari Passu Companion Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Directing Certificateholder and the Risk Retention Consultation Party) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the applicable Master Servicer or the applicable Special Servicer in connection with the proposed sale. In connection with any such sale involving any Serviced AB Whole Loan, the applicable Special Servicer will also have the right (subject to the related Intercreditor Agreement), but not the obligation, to sell the related Subordinate Companion Loan if such Special Servicer determines that such sale is in accordance with the Servicing Standard (taking into account the subordinate nature of the applicable Subordinate Companion Loan). The holder of the related Serviced Pari Passu Companion Loan (or its representative) will be permitted to submit an offer at any sale of such Whole Loan; however, the related Mortgagor and its agents and Affiliates shall not be permitted to submit an offer at such sale. Notwithstanding the foregoing, with respect to each

 -268-

Serviced Whole Loan, the holder of the related Companion Loan may waive any of the delivery or timing requirements set forth in this paragraph with respect to the related Whole Loan. If the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. The Trustee shall act in a commercially reasonable manner in making such determination. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person.

(e)          (i) Notwithstanding anything in this Section 3.16 to the contrary, pursuant to the terms of the related Intercreditor Agreement, the holder of the related AB Subordinate Companion Loan for each applicable Serviced AB Whole Loan will have the right to purchase the related Mortgage Loan or related REO Property, as applicable. Such right of the holder of the AB Subordinate Companion Loan shall be given priority over any provision described in this Section 3.16 as and to the extent set forth in the related Intercreditor Agreement. If the related Mortgage Loan or related REO Property is purchased by the holder of such AB Subordinate Companion Loan, repurchased by the applicable Mortgage Loan Seller or otherwise ceases to be subject to this Agreement, the related AB Subordinate Companion Loan will no longer be subject to this Agreement.

(ii)          Notwithstanding anything in this Section 3.16 to the contrary, any mezzanine lender will have the right to purchase the related Mortgage Loan or REO Property, as applicable, and cure defaults relating thereto, as and to the extent set forth in the related Intercreditor Agreement.

(f)            Unless otherwise provided in an Intercreditor Agreement the sale of any Mortgage Loan pursuant to this Section 3.16 will be on a servicing released basis.

(g)          In the event the applicable Master Servicer or the applicable Special Servicer has the right to purchase any Companion Loan on behalf of the Trust pursuant to the related Intercreditor Agreement, neither such Master Servicer nor such Special Servicer shall exercise such right.

Section 3.17     Additional Obligations of Master Servicers and Special Servicers. (a) Each Master Servicer shall deliver all Compensating Interest Payments with respect to the Mortgage Loans for which it acts as Master Servicer (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) to the Certificate

 -269-

Administrator for deposit in the Lower-Tier REMIC Distribution Account on each P&I Advance Date, without any right of reimbursement therefor. Each Master Servicer shall deliver the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan to the Companion Paying Agent for deposit in the Companion Distribution Account on each P&I Advance Date, without any right of reimbursement therefor.

(b)          Each Master Servicer or each Special Servicer, as applicable, shall provide to each Companion Holder any reports or notices required to be delivered to such Companion Holder pursuant to the related Intercreditor Agreement.

(c)          Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Mortgage Loans deposited in the applicable Collection Account and available for distribution on the next Distribution Date, the applicable Master Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the one month collection period ending on the then-current Determination Date, for successive one month periods for a total period not to exceed twelve (12) months (provided that, other than in the case of an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, any such deferral exceeding six (6) months shall require, prior to the occurrence and continuance of any Control Termination Event, the consent of the Directing Certificateholder), and any election to so defer or not to defer shall be deemed to be in accordance with the Servicing Standard. If the applicable Master Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent collection period (subject, again, to the same sole option to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from principal collections as described above prior to payment from other collections). In connection with a potential election by the applicable Master Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the applicable Master Servicer or the Trustee shall further be authorized to wait for principal collections on the Mortgage Loans serviced by such Master Servicer to be received until the end of such Collection Period before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof; provided, however, that if, at any time the applicable Master Servicer or the Trustee, as applicable, elects, in its sole discretion, not to refrain from obtaining such reimbursement or otherwise determines that the reimbursement of a Nonrecoverable Advance during a Collection Period will exceed the full amount of the principal portion of general collections on or in respect of Mortgage Loans deposited in the applicable Collection Account for such Distribution Date, then the applicable Master Servicer or the Trustee, as applicable, shall use its reasonable efforts to give the 17g-5 Information Provider fifteen (15) days’ notice of such determination for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), unless extraordinary circumstances make such notice impractical, which shall mean that (i) the applicable Master Servicer or the Trustee, as the case may be,

 -270-

determines in its sole discretion that waiting fifteen (15) days after such a notice could jeopardize its ability to recover such Nonrecoverable Advance, (ii) changed circumstances or new or different information becomes known to the applicable Master Servicer or the Trustee, as the case may be, that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance or whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (i) above, or (iii) in the case of the applicable Master Servicer, it has not timely received from the Trustee information required by the applicable Master Servicer to determine whether to defer reimbursement for a Nonrecoverable Advance. If any of the circumstances described in clause (i), (ii) or (iii) of the foregoing sentence apply, the applicable Master Servicer or Trustee, as applicable, shall give the 17g-5 Information Provider a notice for posting of the anticipated reimbursement as soon as reasonably practicable. Notwithstanding the foregoing, failure to give notice as required by the preceding or second preceding sentence shall in no way affect the applicable Master Servicer’s or the Trustee’s election whether to refrain from obtaining such reimbursement or right to obtain such reimbursement as described in this Section 3.17(c). Nothing herein shall give the applicable Master Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable Advance to the extent of any principal collections then available in the applicable Collection Account pursuant to Section 3.05(a)(v). The applicable Master Servicer or the Trustee, as the case may be, shall have no liability for any loss, liability or expenses resulting from any notice provided to the Rating Agencies contemplated by this Section 3.17(c).

The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this Section 3.17 or to comply with the terms of this Section 3.17 and the other provisions of this Agreement that apply once such an election, if any, has been made; provided, however, that the fact that a decision to recover such Nonrecoverable Advances over time, or not to do so, benefits some classes of Certificateholders to the detriment of other classes shall not, with respect to the applicable Master Servicer or the applicable Special Servicer, as applicable, constitute a violation of the Servicing Standard and/or with respect to the Trustee (solely in its capacity as Trustee), constitute a violation of any fiduciary duty to Certificateholders or any contractual obligation hereunder. If the applicable Master Servicer or the Trustee, as the case may be, determines, in its sole discretion, to fully recover the Nonrecoverable Advances immediately instead of deferring such reimbursement, then such Master Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Reimbursement Rate from all amounts in the applicable Collection Account for such Distribution Date (deemed first from principal and then from interest). Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more collection periods shall not limit the accrual of interest at the Reimbursement Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The applicable Master Servicer’s or the Trustee’s, as the case may be, agreement to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and shall not be construed as an obligation on the part of such Master Servicer or the Trustee, as applicable, or a right of the Certificateholders. Nothing herein shall be deemed to create in the Certificateholders a right to prior payment of distributions over such Master Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise) and accrued interest thereon. In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be in accordance with the

 -271-

Servicing Standard and none of the applicable Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any of the Companion Holders for any such election that such party makes as contemplated by this Section 3.17 or for any losses, damages or other adverse economic or other effects that may arise from such an election, nor shall such election constitute a violation of the Servicing Standard or any duty under this Agreement. Neither the applicable Master Servicer nor the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this Section 3.17(c).

No determination by a Master Servicer (or the Trustee, as applicable) to exercise its sole option to defer the reimbursement of Advances and/or interest thereon under this section shall be construed as an agreement by the applicable Master Servicer (or the Trustee, as applicable) to subordinate (in respect of realizing losses), to any Class of Certificates, such party’s right to such reimbursement during such period of deferral.

With respect to any modification or amendment of any Intercreditor Agreement related to a Serviced Whole Loan (to the extent received), the applicable Master Servicer or the applicable Special Servicer, as applicable, shall provide to the 17g-5 Information Provider a copy of any such modification or amendment, which the 17g-5 Information Provider shall promptly post on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

(d)          With respect to any Mortgage Loan (or Serviced Whole Loan), if the related loan documents permit the lender to (but do not require the lender to), at its option, prior to an event of default under the related Mortgage Loan (or Serviced Whole Loan), apply amounts held in any reserve account as a prepayment or hold such amounts in a reserve account, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may not apply such amounts as a prepayment, and will instead continue to hold such amounts in the applicable reserve account, unless not applying those amounts as a prepayment would be a violation of the Servicing Standard. Such amount may be used, if permitted under the loan documents, to defease the loan, or may be used to prepay the Mortgage Loan (or Serviced Whole Loan), or for other purpose consistent with the Servicing Standard and the loan documents, upon a subsequent default.

(e)          Within one (1) Business Day after the execution of any amendment or modification of any Intercreditor Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall provide to the Certificate Administrator a copy of any such modification or amendment of any Intercreditor Agreement, and such amendment or modification shall be a Reportable Event.

Section 3.18     Modifications, Waivers, Amendments and Consents.(a)  The applicable Master Servicer shall process waivers, modifications, amendments and consents that are not Major Decisions or Special Servicer Decisions with respect to any Serviced Mortgage Loan and any related Serviced Companion Loan that, in either case, is not a Specially Serviced Loan, without the consent or approval of the Directing Certificateholder (except as specified in the definition of “Master Servicer Decision”) or the consent or approval of the applicable Special Servicer. The applicable Special Servicer shall process waivers, modifications, amendments and consents with respect to Specially Serviced Loans and shall also process waivers, modifications, amendments and consents that are Major Decisions or Special Servicer Decisions with respect to

 -272-

any Serviced Mortgage Loan and any related Serviced Companion Loan. Except as set forth in Section 3.08(a), Section 3.08(b), this Section 3.18(a), Section 3.18(d), Section 3.18(h), Section 3.18(i), Section 3.18(m) and Section 6.08, but subject to any other conditions set forth thereunder and, with respect to any Serviced Mortgage Loan or any Serviced Whole Loan (and with respect to any Serviced Whole Loan, subject to the rights of the related Companion Holder, as applicable, to advise or consult with the applicable Special Servicer with respect to, or to consent to, a modification, waiver or amendment, in each case, pursuant to the terms of the related Intercreditor Agreement), the applicable Special Servicer shall not modify, waive or amend the terms of a Mortgage Loan and/or related Companion Loan (or consent to any such modification, waiver or amendment) that would constitute a Major Decision without (x) (i) prior to the occurrence of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained by the applicable Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a) or (y) (i) after the occurrence and during the continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, but prior to the occurrence and continuance of a Consultation Termination Event, the applicable Special Servicer having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a); and provided, further, that no extension entered into pursuant to this Section 3.18(a) shall extend the Maturity Date beyond the date provided for in the last paragraph of Section 3.18(b). If such extension would extend the Maturity Date of such Mortgage Loan and/or related Companion Loan for more than twelve (12) months from and after the original Maturity Date of such Mortgage Loan and/or related Companion Loan and such Mortgage Loan and/or related Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, prior to any such extension, (1) the applicable Special Servicer shall provide the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor, the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party), with an Opinion of Counsel (at the expense of the related Mortgagor to the extent permitted under the Mortgage Loan documents and, if not required or permitted to be paid by the Mortgagor, to be paid as an expense of the Trust in accordance with Section 3.11(d)) that such extension would not constitute a “significant modification” of the Mortgage Loan and/or Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (2) subject to the Servicing Standard, (x) prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the applicable Special Servicer shall obtain the consent (or deemed consent) of the Directing Certificateholder, (y) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, consult with the Directing Certificateholder and (z) (i) prior to the occurrence and continuance of a Consultation Termination Event, with respect to any Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party and (ii) after the occurrence and during the continuance of a Consultation Termination Event, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, consult

 -273-

with the Risk Retention Consultation Party, in each case, pursuant to the process described in Section 6.08(a).

Except as otherwise described in this Agreement, prior to the occurrence and continuance of a Control Termination Event, the applicable Special Servicer will only be permitted to take any of the Special Servicer Decisions in clauses (iv), (v), (vi) and (vii) of the definition of “Special Servicer Decision” as to which the Directing Certificateholder has consented in writing within ten (10) Business Days (or, with respect to clause (vii) of the definition of “Special Servicer Decision”, five (5) Business Days) after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to the applicable Special Servicer in order to grant or withhold such consent (provided that if such written consent has not been received by the applicable Special Servicer within such ten (10) Business Day (or five (5) Business Day) period, the Directing Certificateholder shall be deemed to have approved such action); provided, that after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the Special Servicer shall consult with the Directing Certificateholder with respect to any such Special Servicer Decision.

Notwithstanding the foregoing, subject to the rights of the related Companion Holder to advise the applicable Master Servicer with respect to, or consent to, such modification, waiver or amendment pursuant to the terms of the related Intercreditor Agreement, the applicable Master Servicer, with respect to Non-Specially Serviced Loans, without the consent of the applicable Special Servicer or the Directing Certificateholder, may modify or amend the terms of any Non-Specially Serviced Loan and/or related Serviced Companion Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error; provided that, if the Serviced Mortgage Loan and/or related Serviced Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, such modification or amendment would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

Any fees or other charges charged by the applicable Special Servicer in connection with processing any Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan (in the aggregate with each other such Payment Accommodation with respect to such Mortgage Loan or Serviced Whole Loan), in each case as a result of the COVID-19 emergency, may not exceed an amount equal to 0.30% of the Stated Principal Balance of such Mortgage Loan or Serviced Whole Loan (“COVID Forbearance Fees”) (excluding attorneys’ fees and third party expenses) and may only be borne by the Mortgagor, not the Trust Fund. To the extent that a Mortgagor with respect to any Mortgage Loan or Serviced Whole Loan defaults under a Payment Accommodation, all caps and limitations on fees, as described in the preceding sentence, shall no longer be applicable and the applicable Special Servicer shall be entitled to all other fees that would otherwise be payable to such Special Servicer from the Trust Fund or otherwise, including Special Servicing Fees, Workout Fees, Liquidation Fees, default interest and all other Mortgagor-paid fees.

Subject to Section 6.08, applicable law and the Mortgage Loan and/or related Serviced Companion Loan documents, neither the applicable Master Servicer nor the applicable

 -274-

Special Servicer shall permit the substitution of any Mortgaged Property (or any portion thereof) for one or more other parcels of real property at any time the Mortgage Loan and/or related Serviced Companion Loan is not in default pursuant to the terms of the related Mortgage Loan and/or related Serviced Companion Loan documents or default with respect thereto is not reasonably foreseeable unless (i) the applicable Master Servicer or the applicable Special Servicer, as the case may be, obtains Rating Agency Confirmation from each Rating Agency (and delivers such Rating Agency Confirmation to the Directing Certificateholder and the Risk Retention Consultation Party, if permitted by the applicable Rating Agency) and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (ii) such substitution would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event (and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may obtain and rely upon an Opinion of Counsel (at the expense of the related Mortgagor if not prohibited by the terms of the related Mortgage Loan documents, and if so prohibited, at the expense of the Trust) with respect thereto).

Upon receiving a request for any matter described in this Section 3.18(a) that constitutes a Major Decision or Special Servicer Decision with respect to a Serviced Mortgage Loan that is not a Specially Serviced Loan, the applicable Master Servicer shall promptly forward such request to the applicable Special Servicer and such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and, except as provided in the next sentence, such Master Servicer shall have no further obligation with respect to such request or such Major Decision or Special Servicer Decision. The applicable Master Servicer shall cooperate with reasonable requests of the applicable Special Servicer by delivering to the applicable Special Servicer any additional information in such Master Servicer’s possession requested by such Special Servicer relating to such Major Decision or Special Servicer Decision. The applicable Master Servicer shall not be permitted to process any Major Decision or Special Servicer Decision and shall not be required to interface with the Mortgagor or provide a written recommendation and/or analysis with respect to any Major Decision or Special Servicer Decision.

No Master Servicer or Special Servicer shall enter into, or structure (including, without limitation, by way of the application of credits, discounts, forgiveness or otherwise), any modification, waiver, amendment, work-out, consent or approval with respect to a Mortgage Loan in a manner that would have the effect of placing amounts payable as compensation, or otherwise reimbursable, to such Master Servicer or Special Servicer in a higher priority than the allocation and payment priorities set forth in Section 3.02(b) or in the related Intercreditor Agreement.

(b)          If the applicable Special Servicer determines that a modification, waiver or amendment (including, without limitation, the forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the Serviced Mortgage Loan and/or related Serviced Companion Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Specially Serviced Loan with respect to which a payment default or other material default has occurred or a payment default or other material default is, in the

 -275-

applicable Special Servicer’s judgment, reasonably foreseeable (as evidenced by an Officer’s Certificate of such Special Servicer), is reasonably likely to produce a greater (or equivalent) recovery on a net present value basis (the relevant discounting to be performed at the related Mortgage Rate) to the Trust and, if applicable, the Companion Holders, as the holders of the related Serviced Companion Loan, than liquidation of such Specially Serviced Loan, then the applicable Special Servicer may agree to a modification, waiver or amendment of such Specially Serviced Loan, subject to (w) the provisions of this Section 3.18(b) and Section 3.18(c), (x)(a) with respect to any Major Decision, with respect to any Mortgage Loan other than any Excluded Loan as to the Directing Certificateholder or the holder of the majority of the Controlling Class, the approval of the Directing Certificateholder (prior to the occurrence and continuance of a Control Termination Event) or upon consultation with the Directing Certificateholder (after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event) as provided in Section 6.08, and (b) with respect to any Major Decision in respect of a Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, upon consultation with the Risk Retention Consultation Party as provided in Section 6.08, (y) with respect to any Serviced AB Whole Loan, any rights of the related Subordinate Companion Holder to consent to such modification, waiver or amendment and (z) additionally, with respect to a Serviced Whole Loan, the rights of the related Serviced Companion Noteholder or with respect to a Serviced Mortgage Loan with mezzanine debt, the rights of the related mezzanine lender, to advise or consult with the applicable Special Servicer with respect to, or consent to, such modification, waiver or amendment, in each case, pursuant to the terms of the related Intercreditor Agreement or mezzanine intercreditor agreement, as applicable; provided that with respect to any Serviced AB Whole Loan, if an AB Control Appraisal Period is not in effect, the consent of, or consultation with, the related AB Whole Loan Controlling Holder will be required to the extent set forth in the related Intercreditor Agreement and the Directing Certificateholder shall have no consent or consultation rights, and the Risk Retention Consultation Party shall have no consultation rights, regarding the matter; provided, further, that in the case of any release or substitution of collateral (other than a defeasance), the applicable Special Servicer shall have obtained an Opinion of Counsel that such release or substitution would not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

In connection with (i) the release of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property from the lien of the related Mortgage or (ii) the taking of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property by exercise of the power of eminent domain or condemnation, if the related Mortgage Loan documents require the applicable Master Servicer or the applicable Special Servicer, as the case may be, to calculate (or to approve the calculation of the related Mortgagor of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of

 -276-

the related Mortgage Loan, then such calculation shall, unless then permitted by the REMIC Provisions, exclude the value of personal property and going concern value, if any, as determined by an appropriate third party.

If, following any such release or taking, the loan-to-value ratio as calculated is greater than 125%, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall require payment of principal by a “qualified amount” as determined under Revenue Procedure 2010-30 or successor provisions, unless the related Mortgagor provides an Opinion of Counsel that if such amount is not paid, the related Mortgage Loan will not fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code.

The applicable Special Servicer shall use its reasonable efforts to the extent possible to cause each Specially Serviced Loan to fully amortize prior to the Rated Final Distribution Date and shall not agree to a modification, waiver or amendment of any term of any Specially Serviced Loan for which it is acting as Special Servicer if such modification, waiver or amendment would (1) extend the maturity date of any such Specially Serviced Loan to a date occurring later than the earlier of (a) five (5) years prior to the Rated Final Distribution Date and (b) if such Specially Serviced Loan is secured solely or primarily by a leasehold estate and not also the related fee interest, the date occurring twenty (20) years or, to the extent consistent with the Servicing Standard giving due consideration to the remaining term of the ground lease and (A) prior to the occurrence and continuance of a Control Termination Event, with the consent of the Directing Certificateholder and (B) to the extent such modification, waiver or amendment constitutes a Major Decision, after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a), (in each case, other than with respect to a Mortgage Loan that is an Excluded Loan as to such party), ten (10) years prior to the expiration of such leasehold estate (including any options to extend such leasehold estate exercisable unilaterally by the related Mortgagor), or (2) provide for the deferral of interest unless interest accrues on the related Mortgage Loan, or Serviced Whole Loan generally at the related Mortgage Rate.

(c)          Any provision of this Section 3.18 to the contrary notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default or default with respect thereto is reasonably foreseeable, no fee described in this Section 3.18 shall be collected by any Master Servicer or any Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan or Companion Loan, as applicable (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).

(d)          To the extent consistent with this Agreement (including, without limitation, the first sentence of Section 3.18(a), and Section 6.08), the applicable Master Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18 if such matter constitutes a Master Servicer Decision) or the applicable Special Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18(a) if any such waiver, modification or amendment constitutes a Major Decision or a Special Servicer Decision or relates to a Specially Serviced Loan) may, consistent with the Servicing Standard, agree to any waiver, modification or amendment of a Mortgage Loan and/or Serviced Companion Loan that is not in default or as to which default is not reasonably foreseeable

 -277-

only if the contemplated waiver, modification or amendment (i) will not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not cause an Adverse REMIC Event. In making this determination, the applicable Master Servicer or the applicable Special Servicer may obtain and rely upon (and shall provide to the Trustee and the Certificate Administrator if obtained) an Opinion of Counsel (at the expense of the related Mortgagor or such other Person requesting such modification or, if such expense cannot be collected from the related Mortgagor or such other Person, to be paid out of the applicable Collection Account pursuant to Section 3.05(a); provided that the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use its reasonable efforts to collect such fee from the Mortgagor or such other Person to the extent permitted under the related Mortgage Loan documents). Notwithstanding the foregoing, neither the applicable Master Servicer nor the applicable Special Servicer may waive the payment of any Prepayment Premium or Yield Maintenance Charge or the requirement that any prepayment of a Mortgage Loan be made on a Due Date, or if not made on a Due Date, be accompanied by all interest that would be due on the next Due Date with respect to any Mortgage Loan or Serviced Companion Loan that is not a Specially Serviced Loan.

(e)          Subject to Section 3.18(c), the applicable Master Servicer and the applicable Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification (including extensions), waiver or indulgence or any other matter or thing, the granting of which is within such Master Servicer’s or such Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan or Companion Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to such Master Servicer or such Special Servicer, as the case may be, as additional servicing compensation, a reasonable or customary fee, for the additional services performed in connection with such request; provided that the charging of such fee is not a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

(f)          All modifications (including extensions), waivers and amendments of the Mortgage Loans and/or Companion Loans entered into pursuant to this Section 3.18 shall be in writing, signed by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and the related Mortgagor (and by any guarantor of the related Mortgage Loan, if such guarantor’s signature is required by the applicable Special Servicer in accordance with the Servicing Standard).

(g)          With respect to any modification, waiver or amendment for which it is responsible for processing pursuant to Section 3.18, after completion, the applicable Special Servicer, shall deliver written notice thereof to the applicable Master Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder, other than following the occurrence and continuance of a Consultation Termination Event, and in the case of the Directing Certificateholder or the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party), the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in a securitization transaction, to the master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB

 -278-

Subordinate Companion Loan, an AB Control Appraisal Period is in effect, if applicable), the related Mortgage Loan Seller (if such Mortgage Loan Seller is not the applicable Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or the Risk Retention Consultation Party) and the 17g-5 Information Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) in writing of any modification, waiver or amendment (in each case, after it is finalized and executed) of any term of any Mortgage Loan or Companion Loan that is modified, waived or amended and the date thereof. With respect to any modification, waiver or amendment (in each case, after it is finalized and executed) for which it is responsible for processing pursuant to Section 3.18, after completion, the applicable Master Servicer, shall deliver written notice of any such modification, waiver or amendment to the Trustee, the Certificate Administrator, the applicable Special Servicer (and such Special Servicer shall forward such notice to the Directing Certificateholder (only prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to an Excluded Loan as to such party) and the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in a securitization transaction, to the master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB Subordinate Companion Loan, an AB Control Appraisal Period is in effect, if applicable)), the Risk Retention Consultation Party (other than with respect to an Excluded Loan as to such party) and the related Mortgage Loan Seller (so long as such Mortgage Loan Seller is not the applicable Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or Risk Retention Consultation Party) and the 17g-5 Information Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). The party responsible for delivering notice shall deliver to the Custodian with a copy to the applicable Master Servicer (if such notice is being delivered by the applicable Special Servicer) for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and in any event within ten (10) Business Days) following the execution thereof, with a copy to the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in a securitization transaction, to the master servicer under the related Other Pooling and Servicing Agreement),, if any. Following receipt of the applicable Master Servicer’s or the applicable Special Servicer’s, as the case may be, delivery of the aforesaid modification, waiver or amendment to the Certificate Administrator, the Certificate Administrator shall forward a copy thereof to each Holder of a Certificate (other than the Class R or Class V Certificates). With respect to any modification, waiver or consent that is a Master Servicer Decision pursuant to clause (iv) of the definition of “Master Servicer Decision”, if the related lease affects an area greater than or equal to 10% of the net rentable area of the related Mortgaged Property and less than 30% of the net rentable area of the related Mortgaged Property, the Master Servicer shall deliver to the Special Servicer a copy of the approved lease. With respect to any modification, waiver or consent that is a Master Servicer Decision pursuant to clause (vii) of the definition of “Master Servicer Decision”, the Master Servicer shall deliver to the Special Servicer a copy of the approved annual budget. With respect to the processing of any modification, waiver or consent related to any Mortgagor incurring additional debt or mezzanine debt, the applicable Special Servicer (if such Special Servicer processes such modification, waiver or consent pursuant to Section 3.18(a)) or the applicable Master Servicer (if such Master Servicer processes such modification, waiver or consent pursuant to Sections 3.18(a) and (m) shall, on or before the later of (i) 3:00 p.m. on the related P&I Advance Date and (ii) five (5) Business Days immediately following the applicable Master Servicer or the

 -279-

applicable Special Servicer, as the case may be, obtaining actual knowledge of the incurrence of such additional debt or mezzanine debt, deliver notice of the Mortgagor’s incurrence of such debt, substantially in the form of Exhibit JJ, to cts.sec.notifications@wellsfargo.com and an Additional Disclosure Notification in the form attached hereto as Exhibit DD). The notice contemplated in the preceding sentence shall set forth, to the extent the applicable Special Servicer or the applicable Master Servicer, as the case may be, has the requisite information or can reasonably obtain such information, (1) the amount of additional debt that was incurred in the related Collection Period, (2) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and additional debt, and (3) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and additional debt. In the event that either (i) the CREFC^® Investor Reporting Package is amended to include such information set forth above, in a manner reasonably acceptable to the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator, as applicable, and such Master Servicer confirms with the Certificate Administrator that such amended CREFC^® Investor Reporting Package enables the Certificate Administrator to include such information on Form 10-D in a manner reasonably acceptable to the Certificate Administrator, or (ii) the Trust is no longer subject to the Exchange Act, the additional report in the form of Exhibit JJ shall no longer be required hereunder. From time to time, the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator may agree on a different delivery time and format for the information set forth in this paragraph.

(h)          Subject to the consent rights and processes set forth in Section 6.08 with respect to Major Decisions, each Master Servicer shall process all defeasance transactions for the Mortgage Loans for which it acts as Master Servicer and shall be entitled to all defeasance fees paid related thereto (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that any Special Servicer is entitled to under this Agreement). Notwithstanding the foregoing, such Master Servicer shall not permit (or, with regard to any Non-Serviced Mortgage Loan, take any act in furtherance of) the substitution of any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole Loan unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)(ii) and such Master Servicer has received (i) replacement collateral consisting of government securities within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), which satisfies the requirements of the applicable Mortgage Loan documents, in an amount sufficient to make all scheduled payments under the related Mortgage Loan (or defeased portion thereof) when due, (ii) a certificate of an Independent certified public accountant to the effect that such substituted property will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on such Mortgage Loan or Serviced Whole Loan in compliance with the requirements of the terms of the related Mortgage Loan documents and, if applicable, Companion Loan documents, (iii) one or more Opinions of Counsel (at the expense of the related Mortgagor) to the effect that the Trustee, on behalf of the Trust, will have a first priority perfected security interest in such substituted Mortgaged Property; provided, however, that, to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the related Mortgagor shall pay the cost of any such opinion as a condition to granting such defeasance, (iv) to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the Mortgagor shall establish a single purpose entity to act as a successor mortgagor, if so required by the Rating Agencies, (v) to the extent permissible under the related Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall use its reasonable

 -280-

efforts to require the related Mortgagor to pay all costs of such defeasance, including but not limited to the cost of maintaining any successor mortgagor, and (vi) to the extent permissible under the Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall obtain, at the expense of the related Mortgagor, Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided, further, however, that no such confirmation from any Rating Agency shall be required to the extent that the applicable Master Servicer has delivered a defeasance certificate substantially in the form of Exhibit U hereto for any Mortgage Loan that (together with any Mortgage Loans cross-collateralized with such Mortgage Loans) is: (i) a Mortgage Loan with a Cut-off Date Balance less than $35,000,000, (ii) a Mortgage Loan that represents less than 5% of the aggregate Cut-off Date Balance of all Mortgage Loans a, and (iii) a Mortgage Loan that is not one of the ten (10) largest Mortgage Loans by Stated Principal Balance. Notwithstanding the foregoing, in the event that requiring the Mortgagor to pay for the items specified in clauses (ii), (iv) and (v) in the preceding sentence would be inconsistent with the related Mortgage Loan documents, such reasonable costs shall be paid by the related Mortgage Loan Seller as and to the extent set forth in the applicable Mortgage Loan Purchase Agreement.

(i)           Notwithstanding anything herein or in the related Mortgage Loan documents and, if applicable, Companion Loan documents, to the contrary, the applicable Master Servicer may permit the substitution of “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) for any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole Loan, as applicable (or any portion thereof), in lieu of the defeasance collateral specified in the related Mortgage Loan documents or Serviced Whole Loan documents, as applicable; provided that such substitution is consistent with the Servicing Standard and the applicable Master Servicer reasonably determines that allowing their use would not cause a default or event of default to become reasonably foreseeable and the applicable Master Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the extent permitted under the Mortgage Loan documents and, if applicable or Companion Loan documents or otherwise as a Trust Fund expense) to the effect that such use would not be and would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any Trust REMIC; and provided, further, that the requirements set forth in Section 3.18(h) (including receipt of any Rating Agency Confirmation) are satisfied; and provided, further, that such securities are backed by the full faith and credit of the United States government, or the applicable Master Servicer shall obtain Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 -281-

Notwithstanding the foregoing, with respect to (i) all of the Mortgage Loans originated or acquired by Bank of America, National Association that are subject to defeasance (other than the One North Wacker and Arizona Mills Mortgage Loans) and (ii) all of the Mortgage Loans originated or acquired by Morgan Stanley Mortgage Capital Holdings LLC that are subject to defeasance, each of Bank of America, National Association and Morgan Stanley Mortgage Capital Holdings LLC, as applicable, has transferred to a third party or has retained on behalf of itself or an Affiliate the right to establish or designate the successor borrower and/or to purchase or cause to be purchased the related defeasance collateral, in each case as set forth in the related Mortgage Loan Purchase Agreement (any such right or obligation, the “Retained Defeasance Rights and Obligations”). In the event the General Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller, which such Mortgage Loan provides for Retained Defeasance Rights and Obligations in the related Mortgage Loan documents, the Master Servicer shall provide, within five (5) Business Days of receipt of such notice, written notice of such defeasance request to Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, in the case of any such Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller. Until such time as Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, provides the Master Servicer with written notice to the contrary, the notice of a defeasance of a Mortgage Loan with Retained Defeasance Rights and Obligations as to which (i) Bank of America, National Association is the related Mortgage Loan Seller shall be delivered to Bank of America, National Association, One Bryant Park, Mail Code: NY-100-11-07, New York, New York 10036, Attention: Director of CMBS Securitization, email: leland.f.bunch@bofa.com, with copies to Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255, Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director, email: todd.stillerman@bofa.com and cmbsnotices@bofa.com, and Hank LaBrun, Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Charlotte, North Carolina 28202, email: henry.labrun@cwt.com or (ii) Morgan Stanley Mortgage Capital Holdings LLC is the related Mortgage Loan Seller shall be delivered to Morgan Stanley Mortgage Capital Holdings LLC, 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Mortgage Capital Holdings LLC, 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division, and a copy by email to cmbs_notices@morganstanley.com). With respect to any Mortgage Loan originated or acquired by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, that is subject to defeasance, if the successor borrower is not designated or formed by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as the case may be, or any Affiliate or successor thereto, the successor borrower shall be reasonably acceptable to the applicable Master Servicer in accordance with the Servicing Standard.

(j)           If required under the related Mortgage Loan or Companion Loan documents or if otherwise consistent with the Servicing Standard, the applicable Master Servicer shall establish and maintain one or more accounts (the “Defeasance Accounts”), which shall be Eligible Accounts, into which all payments received by such Master Servicer from any defeasance collateral substituted for any Mortgaged Property shall be deposited and retained, and shall administer such Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan

 -282-

documents. Notwithstanding the foregoing, in no event shall the applicable Master Servicer permit such amounts to be maintained in the Defeasance Account for a period in excess of ninety (90) days, unless such amounts are reinvested by such Master Servicer in “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii). To the extent not required or permitted to be placed in a separate account, the applicable Master Servicer shall deposit all payments received by it from defeasance collateral substituted for any Mortgaged Property into the applicable Collection Account and treat any such payments as payments made on the Mortgage Loan or Companion Loan in advance of its Due Date in accordance with clause (a)(i) of the definition of “Aggregate Available Funds” and not as a prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer permit such amounts to be maintained in the applicable Collection Account for a period in excess of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in the case of a leap year).

(k)          Notwithstanding anything to the contrary in this Agreement, neither the applicable Master Servicer nor the applicable Special Servicer, as the case may be, shall, unless it has received Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) (the cost of which shall be paid by the related Mortgagor, if so allowed by the terms of the related loan documents and otherwise paid out of general collections) grant or accept any consent, approval or direction regarding the termination of the related property manager or the designation of any replacement property manager, with respect to any Mortgaged Property that secures a Mortgage Loan that (i) is one of the ten (10) largest Mortgage Loans a by Stated Principal Balance or (ii) has an unpaid principal balance that is at least equal to 5% of the then-aggregate principal balance of all Mortgage Loans or $35,000,000.

(l)           Notwithstanding anything to the contrary in this Agreement, in connection with any modification, waiver, consent or amendment in connection with any release of collateral securing any Mortgage Loan in connection with a defeasance of such collateral, the applicable Special Servicer shall not approve any such modification, waiver or amendment or consent thereto without first having received a copy of an Opinion of Counsel addressed to such Special Servicer and the applicable Master Servicer that such modification, waiver, consent or amendment will not cause an Adverse REMIC Event.

(m)         Notwithstanding any other provisions of this Section 3.18 or Section 3.08, but subject to any related Intercreditor Agreement, the applicable Master Servicer may, without any Directing Certificateholder’s approval, consent or consultation (except as otherwise provided below in the definition of “Master Servicer Decision”), Risk Retention Consultation Party’s consultation or the applicable Special Servicer’s approval, consent or consultation take any of the following actions with respect to Non-Specially Serviced Loans (and in the case of clause (ix), a Non-Serviced Mortgage Loan) (each such action, a “Master Servicer Decision”): (i) grant waivers of non-material covenant defaults (other than financial covenants and receipt of financial statements, but including immaterial timing waivers such as with respect to late financial

 -283-

statements) (except that, other than with respect to any NCB Co-op Mortgage Loan or any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder’s consent (or deemed consent) shall be required to grant timing waivers of more than three (3) consecutive late deliveries of financial statements); (ii) consents to releases of non-material, non-income producing parcels of a Mortgaged Property that do not materially affect the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the Mortgage Loan as and when due, provided such releases are required by the related Mortgage Loan documents and there is no lender discretion permitted under the Mortgage Loan documents; (iii) approve or consent to grants of easements or rights of way (including, without limitation, for utilities, access, parking, public improvements or another purpose) or subordination of the lien of the Mortgage Loan to easements if the applicable Special Servicer has determined, in accordance with the proviso to the definition of “Special Servicer Decision”, that such easements or rights of way do not materially affect the use or value of a Mortgaged Property or a Mortgagor’s ability to make payments with respect to the related Mortgage Loan or any related Companion Loan; (iv) grant subordination, non-disturbance and attornment agreements and consents involving leasing activities that do not involve a ground lease and affect an area less than or equal to the lesser of (a) 30% of the net rentable area of the improvements at the Mortgaged Property and (b) 30,000 square feet of the improvements at the Mortgaged Property, including approval of new leases and amendments to current leases; (v) approve or consent to actions and releases related to condemnation of parcels of a Mortgaged Property if the applicable Special Servicer has determined, in accordance with the proviso to the definition of “Special Servicer Decision”, that such condemnation is not with respect to a material parcel or a material income producing parcel and such condemnation does not materially affect the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or any related Companion Loan when due; (vi) consent to a change in property management relating to any Mortgage Loan and related Serviced Companion Loan if the replacement property manager is not a Borrower Party and, other than with respect to any NCB Co-op Mortgage Loan, the Mortgage Loan has an outstanding principal balance less than $10,000,000; (vii) approve annual operating budgets for Mortgage Loans; (viii) grant any extension or enter into any forbearance with respect to the anticipated refinancing of a Mortgage Loan or sale of a Mortgaged Property after the related Maturity Date of such Mortgage Loan so long as (A) such extension or forbearance does not extend beyond 120 days after the related Maturity Date and (B) the related Mortgagor has delivered documentation reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days after the date on which such Balloon Payment will become due; (ix) any non-material modification, amendment, consent to a non-material modification or waiver of any term of any Intercreditor Agreement if the applicable Special Servicer has determined, in accordance with the proviso to the definition of “Major Decision”, that such modification, amendment or consent is administrative in nature, including a note splitting amendment, provided, that if any such modification or amendment would adversely impact the applicable Special Servicer, such modification or amendment will additionally require the consent of the applicable Special Servicer as a condition to its effectiveness; (x) any determination of Acceptable Insurance Default, except that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan as to

 -284-

the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required in accordance with this Agreement for any such determination; (xi) approve or consent to any defeasance of the related Mortgage Loan or Serviced Companion Loan other than agreeing to (A) a modification of the type of defeasance collateral required under the Mortgage Loan or Serviced Whole Loan documents other than direct, non-callable obligations of the United States would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the Mortgage Loan or Serviced Whole Loan documents do not otherwise permit such principal prepayment; (xii) any determination to bring a Mortgaged Property into compliance with applicable environmental laws or to otherwise address hazardous material located at a Mortgaged Property subject, prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan as to the Directing Certificateholder or the holder of the majority of the Controlling Class, to the consent (or deemed consent) of the Directing Certificateholder, (xiii) any transfer of the Mortgaged Property that the Mortgage Loan documents allow without the consent of the lender but subject to satisfaction of conditions specified in the Mortgage Loan documents where no lender discretion is necessary in order to determine if such conditions are satisfied; (xiv) with respect to NCB Co-op Mortgage Loans, consent to the related Mortgagor incurring subordinate debt secured by the related Mortgaged Property, subject to the satisfaction of the NCB Subordinate Debt Conditions with respect to such subordinate debt; (xv) to the extent not a Major Decision or a Special Servicer Decision pursuant to clause (x) of the definition of “Major Decision” or clause (iii) of the definition of “Special Servicer Decision”, respectively, approve any requests for the funding or disbursement of amounts from any escrow accounts, reserve funds or letters of credit held as “performance”, “earn-out”, “holdback” or similar escrows or reserves where such request is for the funding or disbursement of ordinary course impounds, repair and replacement reserves, lender approved budget and operating expenses, and tenant improvements pursuant to an approved lease, or in the case of any NCB Co-op Mortgage Loan, any other escrow funds, reserve funds or other additional collateral with respect to such Mortgage Loan, each in accordance with the Mortgage Loan documents (all such fundings and disbursements being collectively referred to as “Routine Disbursements”) or any other funding or disbursement as mutually agreed upon by the applicable Master Servicer and the applicable Special Servicer; provided, however, that in the case of any Mortgage Loan (other than an NCB Co-op Mortgage Loan) whose escrows, reserves, holdbacks and related letters of credit exceed, in the aggregate, at the related origination date, 10% of the initial principal balance of such Mortgage Loan (which Mortgage Loans are identified on Schedule 3 hereto), no such funding or disbursement of such escrows, reserves, holdbacks or letters of credit will be deemed to constitute a Routine Disbursement, and will instead constitute Special Servicer Decisions, except for the routine funding of tax payments and insurance premiums when due and payable and except for any such funding or disbursement as to which the related Mortgage Loan documents do not provide for lender discretion; and (xvi) grant or agree to any other waiver, modification, amendment and/or consent that does not constitute a Major Decision or a Special Servicer Decision; provided that (w) any such action would not in any way affect a payment term of the Certificates, (x) any such action would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes (as evidenced by an Opinion of Counsel (at the expense of the Trust to the extent not reimbursed or paid by the related Mortgagor), to the extent requesting such opinion is consistent with the Servicing Standard), (y) agreeing to such action would be consistent with the Servicing

 -285-

Standard, and (z) agreeing to such action would not violate the terms, provisions or limitations of this Agreement or any Intercreditor Agreement; provided, further, that, with respect to any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect with regard to such Serviced AB Whole Loan, the foregoing matters shall not include (and Master Servicer Decision shall not include) any action that constitutes a “major decision” under the related Intercreditor Agreement. In the case of any Master Servicer Decision that requires the consent of the Directing Certificateholder, such consent shall be deemed given if a response to the request for consent is not provided within ten (10) Business Days after receipt of the applicable Master Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to the applicable Master Servicer in order to grant or withhold such consent. In connection with the processing by the applicable Master Servicer of any Master Servicer Decision, after completion thereof, the applicable Master Servicer shall deliver notice thereof to the Special Servicer (and the Special Servicer shall promptly, prior to the occurrence and continuance of a Consultation Termination Event and other than in respect of any Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, deliver notice thereof to the Directing Certificateholder, except to the extent that the Directing Certificateholder notifies the Special Servicer that the Directing Certificateholder does not desire to receive copies of such items) and the Risk Retention Consultation Party (other than with respect to any Excluded Loan as to such party). The foregoing is intended to be an itemization of actions the applicable Master Servicer may take without having to obtain the approval of any other party and is not intended to limit the responsibilities of the applicable Master Servicer hereunder.

(n)          No Master Servicer or Special Servicer shall modify any Mortgage Loan into an AB Modified Loan unless the documents evidencing such modification provide that all payments on the junior or “B” portion of such AB Modified Loan (including interest, principal and other amounts) shall only be payable after the point in time at which all interest and principal on the senior or “A” portion of such AB Modified Loan shall have been paid in full and such senior or “A” portion shall no longer be outstanding; provided, however, that interest and other amounts in respect of such junior or “B” portion may accrue prior to such point in time.

In addition to the foregoing, the applicable Special Servicer shall be allowed to grant a forbearance if (i) prior to October 1, 2021 (or prior to a later date provided by the IRS in any future guidance), the period of forbearance granted, when added to any prior periods of forbearance granted before or after the Trust acquired such Mortgage Loan (whether or not such prior grants of forbearance were covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12)), does not exceed six (6) months (or such longer period of time as may be allowed by future guidance that is binding on federal income tax authorities) or the applicable forbearance program pursuant to which the related forbearance was granted is otherwise identical or similar to those described in Section 2.07 of Revenue Procedure 2020-26 and such forbearance is covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12), (ii) such forbearance is permitted under another provision of this Agreement and the requirements under such provision are satisfied, or (iii) an Opinion of Counsel is delivered to the effect that such forbearance will not result in an Adverse REMIC Event.

Section 3.19     Transfer of Servicing Between Master Servicers and Special Servicers; Recordkeeping; Asset Status Report. (a) Upon determining that a Servicing Transfer

 -286-

Event has occurred with respect to any Serviced Mortgage Loan or Serviced Companion Loan, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall promptly give notice to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Operating Advisor and the Directing Certificateholder (in the case of the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) thereof, and the applicable Master Servicer shall deliver the related Mortgage File and Servicing File to the applicable Special Servicer and concurrently provide a copy of such Servicing File, exclusive of all Privileged Communications, to the Operating Advisor. The applicable Master Servicer shall use its reasonable efforts to provide the applicable Special Servicer with all documents and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to such Mortgage Loan and, if applicable, the related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise available to such Master Servicer without undue burden or expense, and reasonably requested by the applicable Special Servicer to enable it to assume its functions hereunder with respect thereto. Such Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each related Servicing Transfer Event (or, in the case of clauses (iii), (iv), (viii) or (ix) of the definition of Servicing Transfer Event, within five (5) Business Days of receiving notice from the applicable Special Servicer of such Servicing Transfer Event when such Special Servicer makes the determination) and in any event shall continue to act as Master Servicer and administrator of such Mortgage Loan and, if applicable, the related Serviced Companion Loan until such Special Servicer has commenced the servicing of such Mortgage Loan and, if applicable, the related Serviced Companion Loan. The applicable Master Servicer shall deliver to the Trustee, the Certificate Administrator, the Operating Advisor, the Directing Certificateholder (with respect to the Directing Certificateholder (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party), a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer to the applicable Special Servicer, or by the applicable Special Servicer to the applicable Master Servicer, pursuant to this Section 3.19. Prior to the occurrence and continuance of a Consultation Termination Event, the Certificate Administrator shall deliver to each Controlling Class Certificateholder a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer pursuant to this Section 3.19.

Upon determining that a Specially Serviced Loan (other than an REO Loan) has become current and has remained current for three (3) consecutive Periodic Payments (provided that (i) no additional Servicing Transfer Event is foreseeable in the reasonable judgment of the applicable Special Servicer, and (ii) for such purposes taking into account any modification or amendment of such Mortgage Loan and, if applicable, the related Companion Loan), and that no other Servicing Transfer Event is continuing with respect thereto, the applicable Special Servicer shall immediately give notice thereof to the applicable Master Servicer, the Operating Advisor, the related Serviced Companion Noteholder (unless with respect to an AB Subordinate Companion Loan an AB Control Appraisal Period is in effect) and the Directing Certificateholder (with respect to the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) and shall return the related Mortgage File and Servicing File to the applicable Master Servicer (or copies thereof if copies only were delivered to the applicable Special Servicer) and upon giving such notice, and returning such Mortgage File and Servicing File to such Master Servicer, such

 -287-

Special Servicer’s obligation to service such Corrected Loan shall terminate and the obligations of such Master Servicer to service and administer such Mortgage Loan and, if applicable, the related Companion Loan shall recommence.

(b)          In servicing any Specially Serviced Loans and Serviced Companion Loans, the applicable Special Servicer will provide to the Custodian originals of documents included within the definition of “Mortgage File” for inclusion in the related Mortgage File to the extent within its possession (with a copy of each such original to the applicable Master Servicer), and provide the applicable Master Servicer with copies of any additional related Mortgage Loan or Serviced Companion Loan information including correspondence with the related Mortgagor.

(c)          Notwithstanding the provisions of Section 3.12(c), the applicable Master Servicer shall maintain ongoing payment records with respect to each of the Specially Serviced Loans, Serviced Companion Loans and REO Properties (other than with respect to a Non-Serviced Mortgage Loan) and shall provide the applicable Special Servicer with any information in its possession with respect to such records to enable such Special Servicer to perform its duties under this Agreement; provided that this statement shall not be construed to require such Master Servicer to produce any additional reports.

(d)          No later than sixty (60) days after a Servicing Transfer Event for a Serviced Mortgage Loan and, if applicable, the related Companion Loan, the applicable Special Servicer shall deliver in electronic format a report (the “Asset Status Report”) with respect to such Mortgage Loan and related Companion Loan, if applicable, and the related Mortgaged Property to the applicable Master Servicer, the Directing Certificateholder (but with respect to the Directing Certificateholder, only in respect of any Mortgage Loan other than (A) any Excluded Loan as to such party or (B) any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect, and in any event prior to the occurrence and continuance of a Consultation Termination Event), any related Subordinate Companion Holder if an AB Control Appraisal Period is not in effect with respect to any Serviced AB Whole Loan, the Risk Retention Consultation Party (but only with respect to any Mortgage Loan other than an Excluded Loan as to such party), the Operating Advisor (but, other than with respect to an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, only after the occurrence and during the continuance of a Control Termination Event and, with respect to any Serviced AB Whole Loan, only to the extent that such Whole Loan is subject to an AB Control Appraisal Period) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) and, with respect to any related Serviced Companion Loan, to the related Companion Holder or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer of such Other Securitization into which the related Serviced Companion Loan has been sold; the applicable Special Servicer shall also deliver a summary of each Final Asset Status Report to the Certificate Administrator and the Certificate Administrator shall post the summary of the Final Asset Status Report to the Certificate Administrator’s Website. Each Final Asset Status Report shall be labeled or otherwise identified or communicated as being final by the applicable Special Servicer. For the avoidance of doubt, no Master Servicer shall make any Asset Status Reports available to any Certificateholders on its website. None of the parties to this Agreement shall provide any Asset Status Report or any Final Asset Status Report to the Certificate Administrator. The applicable Special Servicer shall notify the Operating Advisor of whether any

 -288-

Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Certificateholder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the applicable Special Servicer. Further, the Certificate Administrator shall not request any Asset Status Report or Final Asset Status Report from any Master Servicer. Such Asset Status Report shall set forth the following information to the extent reasonably determinable based on the information that was delivered to the applicable Special Servicer in connection with the transfer of servicing pursuant to the Servicing Transfer Event:

(i)           a summary of the status of such Specially Serviced Loan and any negotiations with the related Mortgagor;

(ii)          a discussion of the legal and environmental considerations reasonably known to the applicable Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the related Mortgage Loan (and any related Serviced Companion Loan) and whether outside legal counsel has been retained;

(iii)         the most current rent roll (or with respect to residential cooperative properties, maintenance schedule), and income or operating statement available for the related Mortgaged Property;

(iv)        (A) the applicable Special Servicer’s recommendations on how such Specially Serviced Loan might be returned to performing status (including the modification of a monetary term, and any workout, restructure or debt forgiveness) and returned to the applicable Master Servicer for regular servicing or otherwise realized upon (including any proposed sale of a Defaulted Loan or REO Property), (B) a description of any such proposed or taken actions, and (C) the alternative courses of action that were or are being considered by the applicable Special Servicer in connection with the proposed or taken actions;

(v)          the status of any foreclosure actions or other proceedings undertaken with respect to such Specially Serviced Loan, any proposed workouts and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Whole Loan;

(vi)         a description of any amendment, modification or waiver of a material term of any ground lease (or any space lease or air rights lease, if applicable) or franchise agreement;

(vii)        the decision that the applicable Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth such Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives;

(viii)       an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action,

 -289-

setting forth (x) the basis on which the applicable Special Servicer made such determination and (y) the net present value calculation and all related assumptions;

(ix)         the appraised value of the related Mortgaged Property (and a copy of the last obtained Appraisal of such Mortgaged Property) together with a description of any adjustments to the valuation of such Mortgaged Property made by the applicable Special Servicer together with an explanation of those adjustments; and

(x)           such other information as the applicable Special Servicer deems relevant in light of the Servicing Standard.

If within ten (10) Business Days of receiving an Asset Status Report, the Directing Certificateholder does not disapprove such Asset Status Report in writing or if the applicable Special Servicer makes a determination, in accordance with the Servicing Standard that the disapproval by the Directing Certificateholder (communicated to the applicable Special Servicer within ten (10) Business Days) is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), the applicable Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the applicable Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan documents. If, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder disapproves such Asset Status Report within ten (10) Business Days of receipt and the applicable Special Servicer has not made the affirmative determination described above, the applicable Special Servicer shall revise such Asset Status Report and deliver a new Asset Status Report as soon as practicable, but in no event later than thirty (30) days after such disapproval, to the applicable Master Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event and, in the case of a Serviced AB Whole Loan, only prior to the occurrence and continuance of a Consultation Termination Event and if an AB Control Appraisal Period is in effect with respect to the related AB Subordinate Companion Loan), the Operating Advisor (but only after the occurrence and during the continuance of a Control Termination Event) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the applicable Special Servicer shall revise such Asset Status Report as described above in this Section 3.19(d) until the Directing Certificateholder shall fail to disapprove such revised Asset Status Report in writing within ten (10) Business Days of receiving such revised Asset Status Report or until the applicable Special Servicer makes a determination, in accordance with the Servicing Standard, that the disapproval is not in the best interests of the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan); provided that, if the Directing Certificateholder has not approved the Asset Status Report for a period of sixty (60) Business Days following the first submission of an Asset Status Report, the applicable Special Servicer may act upon the most recently submitted form of Asset Status Report, if consistent with the Servicing Standard; provided, however, that

 -290-

such Asset Status Report does not, and is not intended to be, a substitute for the approvals that are specifically required pursuant to Section 6.08. Each Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report; provided that such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.19(d). Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with an Asset Status Report for an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class that includes a Major Decision and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

No direction or disapproval of the Directing Certificateholder hereunder or under a related Intercreditor Agreement or failure of the Directing Certificateholder to consent to or approve (including any deemed consents or approvals) any request of the applicable Special Servicer, shall (a) require or cause the applicable Special Servicer to violate the terms of a Specially Serviced Loan, applicable law or any provision of this Agreement, including the applicable Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, or (b) result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or (c) expose the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Operating Advisor, the Mortgage Loan Sellers, the Trust, the Trustee, the Certificate Administrator or their respective officers, directors, members, employees or agents to any claim, suit or liability or (d) materially expand the scope of the applicable Special Servicer’s, the Trustee’s or the applicable Master Servicer’s responsibilities under this Agreement.

Prior to the occurrence and continuance of a Control Termination Event, the applicable Special Servicer shall deliver each Final Asset Status Report to the Operating Advisor promptly following the approval or deemed approval of the Directing Certificateholder.

If a Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, if both a Control Termination Event has occurred and is continuing and an AB Control Appraisal Period is in effect), the applicable Special Servicer shall promptly deliver each Asset Status Report prepared in connection with a Specially Serviced Loan to the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)). The Operating Advisor shall provide comments to the applicable Special Servicer in respect of the Asset Status Report, if any, within ten (10) Business Days following the later of (i) receipt of such Asset Status Report or (ii) receipt of such additional information reasonably requested by the Operating Advisor related thereto, and propose possible alternative courses of action to the extent it determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that are holders of the Control Eligible Certificates), as a collective whole. The applicable Special Servicer shall consider such alternative courses of action and any other feedback provided by the Operating Advisor (and the Directing Certificateholder (in each case, if no Consultation Termination Event has occurred and is continuing and such Specially

 -291-

Serviced Loan is not an Excluded Loan as to such party or a Non-Serviced Mortgage Loan)) in connection with the applicable Special Servicer’s preparation of any Asset Status Report. The applicable Special Servicer may revise the Asset Status Report as it deems necessary to take into account any input and/or comments from the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)), to the extent the applicable Special Servicer determines that the Operating Advisor’s and/or Directing Certificateholder’s input and/or recommendations are consistent with the Servicing Standard and in the best interest of the Certificateholders as a collective whole (or, with respect to a Serviced Whole Loan, the best interest of the Certificateholders and the holders of the related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of such Companion Loan)). Promptly upon determining whether or not to revise any Asset Status Report to take into account any input and/or comments from the Operating Advisor or the Directing Certificateholder, the applicable Special Servicer shall revise the Asset Status Report, if applicable, and deliver to the Operating Advisor and the Directing Certificateholder the revised Asset Status Report (until a Final Asset Status Report is issued) or provide notice that the Special Servicer has decided not to revise such Asset Status Report, as applicable.

After the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), the Directing Certificateholder shall have no right to consent to any Asset Status Report under this Section 3.19. After the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder (except with respect to any Excluded Loan as to such party or any Serviced AB Whole Loan if an AB Control Appraisal Period is not in effect) and the Operating Advisor shall consult with the applicable Special Servicer and propose alternative courses of action and provide other feedback in respect of any Asset Status Report. The Directing Certificateholder (other than in its capacity as a Certificateholder) (in each case, after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan as to such party)), shall have no right to receive any Asset Status Report or otherwise consult with the applicable Special Servicer with respect to Asset Status Reports and the applicable Special Servicer shall only be obligated to consult with the Operating Advisor with respect to any Asset Status Report as described above. The applicable Special Servicer may choose to revise the Asset Status Report as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of the Operating Advisor or the Directing Certificateholder during the applicable periods described above, but is under no obligation to follow any particular recommendation of the Operating Advisor or the Directing Certificateholder.

Notwithstanding the foregoing, if an AB Control Appraisal Period is not in effect with respect to an AB Subordinate Companion Loan, the applicable Special Servicer shall prepare an Asset Status Report for any Serviced AB Whole Loan, upon it becoming a Specially Serviced Loan pursuant to this Agreement and the related Intercreditor Agreement, but the Directing Certificateholder will have no approval rights over any such Asset Status Report, and the consent or approval rights with respect to such Asset Status Report shall be as set forth in the related Intercreditor Agreement.

 -292-

(e)          (i) Upon receiving notice of the occurrence of the events described in clause (iv) or (ix) of the definition of Servicing Transfer Event (without regard to the 60-day period set forth therein), the applicable Master Servicer shall with reasonable promptness give notice thereof, and shall use its reasonable efforts to provide the applicable Special Servicer with all information relating to the Mortgage Loan or Serviced Companion Loan and reasonably requested by such Special Servicer to enable it to negotiate with the related Mortgagor. The applicable Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each such event.

(ii)          After the occurrence and during the continuance of a Control Termination Event, upon receiving notice of the occurrence of an event described in clause (iv) or (ix) of the definition of Servicing Transfer Event (without regard to the 60-day period set forth therein), the applicable Master Servicer shall deliver notice thereof to the Operating Advisor at the same time such notice is provided to the applicable Special Servicer pursuant to clause (i) above.

(f)           Prior to the occurrence and continuance of a Control Termination Event, no later than two (2) Business Days following the establishment of a Final Asset Status Report with respect to any Specially Serviced Loan, the applicable Special Servicer shall deliver in electronic format to the Directing Certificateholder (other than with respect to any Excluded Loan as to such party) a draft notice that will include a draft summary of the Final Asset Status Report (which briefly summarizes such Final Asset Status Report, but shall not include any Privileged Information) (and shall deliver each Asset Status Report with respect to a Serviced AB Mortgage Loan if an AB Control Appraisal Period is not in effect (to the extent approved by the related AB Whole Loan Controlling Holder), to the Directing Certificateholder). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, if, prior to the occurrence and continuance of a Control Termination Event, within five (5) Business Days of receipt of such draft summary, the Directing Certificateholder approves of, or does not disapprove of such draft summary, then the applicable Special Servicer shall deliver in electronic format such notice and summary of the Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b). If the Directing Certificateholder affirmatively disapproves of such summary in writing, then within two (2) Business Days of receipt of such disapproval, the applicable Special Servicer shall revise the summary and deliver such new summary to the Directing Certificateholder until the Directing Certificateholder approves such draft summary; provided, however, that if the Directing Certificateholder has not approved of the draft summary of the Final Asset Status Report within twenty (20) Business Days of receipt of the initial draft summary of the Final Asset Status Report, then the most recent draft summary of the Final Asset Status Report delivered by the applicable Special Servicer prior to such twentieth (20th) Business Day shall be deemed to be the final summary of the Final Asset Status Report; provided, further, however, that if at any time the applicable Special Servicer determines that any affirmative disapproval of such draft summary by the Directing Certificateholder is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), pursuant to the Servicing Standard, the applicable Special Servicer shall deliver in electronic format such notice and summary of the Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b) notwithstanding such disapproval.

-293-

The applicable Special Servicer shall promptly deliver (but in any event no later than two (2) Business Days following its completion) a copy of each Final Asset Status Report to the Operating Advisor. The applicable Special Servicer shall prepare a summary of any Final Asset Status Report related to any Serviced AB Whole Loan for which the related holder of an AB Subordinate Companion Loan is not subject to an AB Control Appraisal Period, which Final Asset Status Report has been approved or deemed approved by the holder of the related AB Subordinate Companion Loan in accordance with the related Intercreditor Agreement (to the extent such Intercreditor Agreement requires such approval or deemed approval), and deliver in electronic format notice of such Final Asset Status Report and the summary of such Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b).

(g)          No provision of this Section 3.19 shall require a Special Servicer to take or to refrain from taking any action because of any proposal, objection or comment by the Operating Advisor or a recommendation of the Operating Advisor.

Section 3.20    Sub-Servicing Agreements. (a) Each Master Servicer and each Special Servicer may enter into Sub-Servicing Agreements to provide for the performance by third parties of any or all of its respective obligations hereunder; provided that the Sub-Servicing Agreement as amended or modified: (i) is consistent with this Agreement in all material respects and requires the Sub-Servicer to comply with all of the applicable conditions of this Agreement; (ii) provides that if the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall for any reason no longer act in such capacity hereunder (including, without limitation, by reason of a Servicer Termination Event), the Trustee or its designee shall thereupon assume all of the rights and, except to the extent they arose prior to the date of assumption, obligations of such party under such agreement, or, alternatively, may act in accordance with Section 7.02 under the circumstances described therein (subject to Section 3.20(g)); (iii) provides that the Trustee (for the benefit of the Certificateholders and the related Companion Holder (if applicable)) and the Trustee (as holder of the Lower-Tier Regular Interests) shall be a third party beneficiary under such Sub-Servicing Agreement, but that (except to the extent the Trustee or its designee assumes the obligations of such party thereunder as contemplated by the immediately preceding clause (ii)) none of the Trust, the Trustee, the Operating Advisor, the Certificate Administrator, any Master Servicer or any Special Servicer, as applicable, (other than the applicable Master Servicer or applicable Special Servicer that enters into such Sub-Servicing Agreement) any successor master servicer or successor special servicer or any Certificateholder (or the related Companion Holder, if applicable) shall have any duties under such Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its option and without penalty; provided, however, that the Initial Sub-Servicing Agreements may only be terminated by the Trustee or its designees as contemplated by Section 3.20(g) and in such additional manner and by such other Persons as is provided in such Sub-Servicing Agreement; (v) does not permit the Sub-Servicer any direct rights of indemnification that may be satisfied out of assets of the Trust except through the applicable Master Servicer or the applicable Special Servicer, as the case may be, if and only to the extent provided pursuant to Section 6.04; (vi) does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, is permitted hereunder to modify such Mortgage Loan; (vii) does not permit the

-294-

Sub-Servicer to take any action constituting a Major Decision without the consent of the applicable Master Servicer or the applicable Special Servicer, as applicable (which consent shall not be granted except in accordance with Section 6.08); (viii) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant or an Additional Servicer, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party and (ix) provides that the Sub-Servicer shall be in default under the related Sub-Servicing Agreement and such Sub-Servicing Agreement shall be terminated (following the expiration of any applicable grace period) if the Sub-Servicer fails (A) to deliver by the due date any Exchange Act reporting items required to be delivered to the applicable Master Servicer, the Certificate Administrator or the Depositor under Article XI or under the Sub-Servicing Agreement or to the applicable master servicer under any other pooling and servicing agreement that the Depositor is a party to, or (B) to perform in any material respect any of its covenants or obligations contained in the Sub-Servicing Agreement regarding creating, obtaining or delivering any Exchange Act reporting items required for any party to this Agreement to perform its obligations under Article XI or under the Exchange Act reporting items required under any other pooling and servicing agreement that the Depositor is a party to. Any successor master servicer or successor special servicer, as applicable, hereunder shall, upon becoming a successor master servicer or successor special servicer, as applicable, be assigned and may assume any Sub-Servicing Agreements from the applicable predecessor Master Servicer or Special Servicer, as the case may be (subject to Section 3.20(g)). In addition, each Sub-Servicing Agreement entered into by the applicable Master Servicer may but need not provide that the obligations of the Sub-Servicer thereunder may terminate with respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced Loan; provided, however, that the Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) that the Sub-Servicer will continue to make all Advances and calculations and prepare all reports required under the Sub-Servicing Agreement with respect to Specially Serviced Loans and continue to collect its Primary Servicing Fees as if no Servicing Transfer Event had occurred and with respect to REO Properties (and the related REO Loans) as if no REO Acquisition had occurred and to render such incidental services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for in such Sub-Servicing Agreement. The applicable Master Servicer or applicable Special Servicer, as the case may be, shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any amendments thereto and modifications thereof, entered into by it, in each case promptly upon its execution and delivery of such documents. References in this Agreement to actions taken or to be taken by the applicable Master Servicer include actions taken or to be taken by a Sub-Servicer on behalf of each Master Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) to satisfy the obligations of the applicable Master Servicer hereunder to make Advances shall be deemed to have been advanced by the applicable Master Servicer out of its own funds and, accordingly, in such event, such Advances shall be recoverable by such Sub-Servicer in the same manner and out of the same funds as if such Sub-Servicer were the applicable Master Servicer, and, for so long as they are outstanding, such Advances shall accrue interest in accordance with Section 3.03(d), such interest to be allocable between the applicable Master Servicer and such Sub-Servicer as may be provided (if at all) pursuant to the terms of the Sub-Servicing Agreement. For purposes of this Agreement, each Master Servicer shall be deemed to have received any payment when a Sub-Servicer retained by

-295-

it receives such payment. The applicable Master Servicer or the applicable Special Servicer, as the case may be, shall notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Trustee and the Depositor (and such Special Servicer shall notify the Operating Advisor) in writing promptly of the appointment by it of any Sub-Servicer, except that a Master Servicer need not provide such notice as to the Initial Sub-Servicing Agreements.

(b)          Each Sub-Servicer shall be authorized to transact business in the state or states in which the related Mortgaged Properties it is to service are situated, if and to the extent required by applicable law to the extent necessary to ensure the enforceability of the related Mortgage Loans or the compliance with its obligations under the Sub-Servicing Agreement and the applicable Master Servicer’s obligations under this Agreement.

(c)          As part of its servicing activities hereunder, the applicable Master Servicer and the applicable Special Servicer for the benefit of the Trustee and the Certificateholders, shall (at no expense to the Trustee, the Certificateholders or the Trust) monitor the performance and enforce the obligations of each of its Sub-Servicers under the related Sub-Servicing Agreement, except that the applicable Master Servicer shall be required only to use reasonable efforts to cause any Initial Sub-Servicer to comply with the requirements of Article XI. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Sub-Servicing Agreements in accordance with their respective terms and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as is in accordance with the Servicing Standard. The applicable Master Servicer shall have the right to remove a Sub-Servicer retained by it pursuant to the terms of the related Sub-Servicing Agreement.

(d)          In the event the Trustee or its designee becomes a successor master servicer and assumes the rights and obligations of a Master Servicer under any Sub-Servicing Agreement, the applicable Master Servicer, at its expense, shall deliver to the assuming party all documents and records relating to such Sub-Servicing Agreement and the Mortgage Loans and, if applicable, the Companion Loans then being serviced thereunder and an accounting of amounts collected and held on behalf of it thereunder, and otherwise use reasonable efforts to effect the orderly and efficient transfer of the Sub-Servicing Agreement to the assuming party.

(e)          Notwithstanding the provisions of any Sub-Servicing Agreement and this Section 3.20, except to the extent provided in Article XI with respect to the obligations of any Sub-Servicer that is an Initial Sub-Servicer, the applicable Master Servicer shall remain obligated and responsible to the Trustee, the applicable Special Servicer, holders of the Companion Loans serviced hereunder and the Certificateholders for the performance of its obligations and duties under this Agreement in accordance with the provisions hereof to the same extent and under the same terms and conditions as if it alone were servicing and administering the Mortgage Loans for which it is responsible, and the applicable Master Servicer shall pay the fees of any Sub-Servicer thereunder as and when due from its own funds. In no event shall the Trust bear any termination fee required to be paid to any Sub-Servicer as a result of such Sub-Servicer’s termination under any Sub-Servicing Agreement.

(f)           The Trustee, upon the request of the applicable Master Servicer, shall furnish to any Sub-Servicer any documents necessary or appropriate to enable such Sub-Servicer to carry out its servicing and administrative duties under any Sub-Servicing Agreement.

-296-

(g)          Each Sub-Servicing Agreement shall provide that, in the event the Trustee or any other Person becomes a successor master servicer, the Trustee or such successor master servicer shall have the right to terminate such Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding the foregoing or any other contrary provision in this Agreement, the Trustee and any successor master servicer shall assume each Initial Sub-Servicing Agreement and (i) the Initial Sub-Servicer’s rights and obligations under the Initial Sub-Servicing Agreement shall expressly survive a termination of the applicable Master Servicer’s servicing rights under this Agreement; provided that the Initial Sub-Servicing Agreement has not been terminated in accordance with its provisions; (ii) any successor master servicer, including, without limitation, the Trustee (if it assumes the servicing obligations of the applicable Master Servicer) shall be deemed to automatically assume and agree to the then-current Initial Sub-Servicing Agreement without further action upon becoming the successor master servicer and (iii) this Agreement may not be modified in any manner which would increase the obligations or limit the rights of the Initial Sub-Servicer hereunder and/or under the Initial Sub-Servicing Agreement, without the prior written consent of the Initial Sub-Servicer (which consent shall not be unreasonably withheld).

(h)          With respect to Mortgage Loans subject to a Sub-Servicing Agreement with any Master Servicer, the applicable Special Servicer shall, upon request (such request to be made reasonably in advance as appropriate to the circumstances surrounding such request) of the related Sub-Servicer, reasonably cooperate in delivering reports and information, including remittance information, and affording access to information to the related Sub-Servicer that would be required to be delivered or afforded, as the case may be, to the applicable Master Servicer pursuant to the terms hereof.

(i)           Notwithstanding any other provision of this Agreement, no Special Servicer shall enter into any Sub-Servicing Agreement that provides for the performance by third parties of any or all of its obligations herein, without, prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the consent of the Directing Certificateholder, except to the extent necessary for the applicable Special Servicer to comply with applicable regulatory requirements.

Section 3.21    Interest Reserve Account.

(a)          On the P&I Advance Date occurring in each February or in any January that occurs in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), the Certificate Administrator, in respect of the Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account, an amount equal to one (1) day’s interest on the Stated Principal Balance of the Actual/360 Mortgage Loans as of the Distribution Date occurring in the month preceding the month in which the P&I Advance Date occurs at the related Net Mortgage Rate, to the extent a full Periodic Payment or P&I Advance is made in respect thereof (all amounts so deposited in any consecutive February and January, “Withheld Amounts”).

(b)          On each P&I Advance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw, from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding

-297-

January (if applicable) and February, if any, and deposit such amount into the Lower-Tier REMIC Distribution Account.

Section 3.22    Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers.  Within a reasonable time upon request from the Directing Certificateholder or the Operating Advisor, as applicable, and no more often than on a monthly basis, each applicable Master Servicer and each applicable Special Servicer shall, without charge, make a knowledgeable Servicing Officer via telephone available to verbally answer questions from (a) the Directing Certificateholder ((i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) and (b) upon the occurrence and during the continuance of any Control Termination Event, the Operating Advisor (with respect to a Special Servicer only), regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is responsible.

Section 3.23    Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party. (a) Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer and the Operating Advisor of the transfer of any Certificate of a Controlling Class by delivering a notice to each such Person substantially in the form of Exhibit MM attached hereto, the selection of a Directing Certificateholder or the resignation or removal thereof. The Directing Certificateholder (other than the Loan-Specific Directing Certificateholder) is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor when such Certificateholder is appointed Directing Certificateholder and when it is removed or resigns. To the extent there is only one Controlling Class Certificateholder and it is also the General Special Servicer, it shall be the Directing Certificateholder.

On the Closing Date, the initial Directing Certificateholder (other than the Loan-Specific Directing Certificateholder) shall execute a certification substantially in the form of Exhibit P-1G to this Agreement. Upon the resignation or removal of the existing Directing Certificateholder (other than the Loan-Specific Directing Certificateholder), any successor directing certificateholder shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1G to this Agreement prior to being recognized as the new Directing Certificateholder.

On the Closing Date, the initial Risk Retention Consultation Party shall execute a certification substantially in the form of Exhibit P-1H to this Agreement. Upon the resignation or removal of the existing Risk Retention Consultation Party, any successor Risk Retention Consultation Party shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1H to this Agreement prior to being recognized as the new Risk Retention Consultation Party.

-298-

(b)          Once a Directing Certificateholder has been selected, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Controlling Class Certificateholders entitled to appoint such Directing Certificateholder, by Certificate Balance, or the Directing Certificateholder shall have notified the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and each other Controlling Class Certificateholder, in writing, of the resignation of such Directing Certificateholder or the selection of a new Directing Certificateholder. In the event that (i) the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee or the Operating Advisor receives written notice from a majority of the Controlling Class Certificateholders that a Directing Certificateholder is no longer designated and (ii) the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) becomes the Directing Certificateholder pursuant to the proviso of the definition of “Directing Certificateholder”, then the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or its representative) shall provide its name and address to the Certificate Administrator and notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor that it is the new Directing Certificateholder; provided that the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor shall be entitled to rely on the written notification provided by the purported Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class without independently verifying that such Controlling Class Certificateholder actually owns the largest aggregate Certificate Balance of the Controlling Class. The foregoing provisions shall not be applicable to the Directing Certificateholder that is a Loan-Specific Directing Certificateholder. Additionally, once a Risk Retention Consultation Party has been selected, each applicable Master Servicer, each applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Holders of the RR Interest entitled to appoint the Risk Retention Consultation Party, by Certificate Balance, or such Risk Retention Consultation Party shall have notified each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and each other Holder of the RR Interest, in writing, of the selection of a new Risk Retention Consultation Party.

(c)          Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor and the Trustee shall be entitled to rely on the most recent notification with respect to the identity of the Controlling Class Certificateholder, the Directing Certificateholder and the Risk Retention Consultation Party.

(d)          In the event that no Directing Certificateholder or Risk Retention Consultation Party, as applicable, has been appointed or identified to any Master Servicer or any Special Servicer, as applicable, and such Master Servicer or such Special Servicer, as the case may be, has attempted to obtain such information from the Certificate Administrator and no such entity has been identified to such Master Servicer or such Special Servicer, as applicable, then until such time as the new Directing Certificateholder or Risk Retention Consultation Party, as applicable, is

-299-

identified to such Master Servicer or such Special Servicer, as applicable, such Master Servicer or such Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of the Directing Certificateholder or Risk Retention Consultation Party, as the case may be.

(e)          Upon request, the Certificate Administrator shall deliver to the Depositor, Trustee, each applicable Special Servicer, the Operating Advisor, each applicable Master Servicer and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, a list of each Controlling Class Certificateholder as reflected in the Certificate Register, including names and addresses. In addition to the foregoing, within five (5) Business Days of receiving notice of the selection of a new Directing Certificateholder or Risk Retention Consultation Party or the existence of a new Controlling Class Certificateholder, the Certificate Administrator shall notify the Trustee, the Operating Advisor, the applicable Master Servicer and the applicable Special Servicer. Notwithstanding the foregoing, (a) RREF IV Debt AIV, LP shall be the initial Directing Certificateholder and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing, and (b) Bank of America, National Association shall be the initial Risk Retention Consultation Party and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing.

Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee shall be entitled to rely on the preceding sentence with respect to the identity of the Directing Certificateholder and the Risk Retention Consultation Party.

(f)           If the Certificate Administrator determines that a Class of Book-Entry Certificates is the Controlling Class, the Certificate Administrator shall notify the related Certificateholders of such Class (through the Depository) of the Class becoming the Controlling Class.

(g)          Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class or in its own interest; (iii) the Directing Certificateholder does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class (or in the case of the Loan-Specific Directing Certificateholder has no liabilities or duties to the Controlling Class or the Holders of any Class of Certificates); (iv) the Directing Certificateholder may take actions that favor interests of the Holders of one or more Classes including the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; and (v) the Directing Certificateholder shall have no liability whatsoever (other than to a Controlling Class Certificateholder; provided that the Loan-Specific Directing Certificateholder shall have no such liability) for having so acted as set forth in clauses (i) through (v) above, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal of the Directing Certificateholder for having so acted.

-300-

Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Risk Retention Consultation Party may act solely in the interests of the Holders of the RR Interest; (iii) the Risk Retention Consultation Party does not have any liability or duties to the Holders of any Class of Certificates other than the RR Interest; (iv) the Risk Retention Consultation Party may take actions that favor interests of the Holders of one or more Classes including the RR Interest over the interests of the Holders of one or more other Classes of Certificates; and (v) the Risk Retention Consultation Party shall have no liability whatsoever (other than to a Holder of an RR Interest) for having so acted as set forth in clauses (i) through (iv) above, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal of the Risk Retention Consultation Party for having so acted.

(h)          All requirements of each Master Servicer and each Special Servicer to provide notices, reports, statements or other information (including the access to information on a website) to the Directing Certificateholder contained in this Agreement shall also apply to each Companion Holder with respect to information relating to the related Serviced AB Mortgage Loan or a Serviced Whole Loan, as applicable; provided, however, that nothing in this subsection (h) shall in any way eliminate the obligation to deliver any information required to be delivered under the related Intercreditor Agreement.

(i)           Until it receives notice to the contrary, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor shall be entitled to rely on the most recent notification with respect to the identity and contact information of the Controlling Class Certificateholder, the Directing Certificateholder, the Risk Retention Consultation Party and any AB Whole Loan Controlling Holder.

(j)           With respect to a Serviced Whole Loan and any approval and consent rights in this Agreement with respect to such Serviced Whole Loan, the related Serviced Whole Loan Controlling Holder shall exercise such rights in accordance with the related Intercreditor Agreement.

(k)          The Certificate Registrar shall determine which Class of Certificates is the then-current Controlling Class within two (2) Business Days of a request from the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, Trustee, or any Certificateholder and provide such information to the requesting party.

(l)           At any time that the Controlling Class Certificateholder is the Holder of a majority of the Class G Certificates and the Class G Certificates are the Controlling Class, such Controlling Class Certificateholder may waive its right (a) to appoint the Directing Certificateholder and (b) to exercise any of the Directing Certificateholder’s rights under this Agreement by irrevocable written notice delivered to the Depositor, the Certificate Administrator (which shall be via email to trustadministrationgroup@wellsfargo.com), the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor. Notwithstanding anything to the contrary contained herein, during such time as a Control Termination Event or Consultation Termination Event is in existence solely as a result of the operation of clause (ii) of the definition

-301-

of Control Termination Event and clause (ii) of the definition of Consultation Termination Event, such Control Termination Event or Consultation Termination Event shall be deemed to no longer be in existence and have not occurred with respect to any unaffiliated third party to whom the Controlling Class Certificateholder that irrevocably waived its right to exercise any of the rights of the Controlling Class Certificateholder has sold or transferred all or a portion of its interest in the Class G Certificates if such unaffiliated third party holds the majority of the Controlling Class after giving effect to such transfer (the “Non-Waiving Successor”). Following any such sale or transfer, the Non-Waiving Successor shall again have the rights of the Controlling Class Certificateholder as set forth herein (including the rights to appoint a Directing Certificateholder or cause the exercise of the rights of the Directing Certificateholder) without regard to any prior waiver by the predecessor Controlling Class Certificateholder. The Non-Waiving Successor shall also have the right to irrevocably waive its right to appoint the Directing Certificateholder and to exercise any of the rights of the Controlling Class Certificateholder. The Non-Waiving Successor shall also have the right to exercise any of the rights of the Controlling Class Certificateholder. No Non-Waiving Successor described above shall have any consent rights with respect to any Mortgage Loan that became a Specially Serviced Loan prior to the sale or transfer of the Class G Certificates to the Non-Waiving Successor and had not also become a Corrected Loan prior to such sale or transfer until such time as such Mortgage Loan becomes a Corrected Loan.

(m)         Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall (i) include on its statement made available pursuant to Section 4.02(a) of this Agreement the identity of the new Controlling Class and (ii) provide to each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor notice of such event and the identity and contact information of the new Controlling Class Certificateholder (the cost of obtaining such information from DTC being an expense of the Trust). The Certificate Administrator shall notify the Operating Advisor, each applicable Master Servicer and each applicable Special Servicer within ten (10) Business Days of the existence or cessation of (i) any Control Termination Event or (ii) any Consultation Termination Event. Upon the Certificate Administrator’s determination that a Control Termination Event or a Consultation Termination Event has occurred or is terminated, the Certificate Administrator shall, within ten (10) Business Days, post a “special notice” on the Certificate Administrator’s Website pursuant to this provision. Any party hereto may at any time request from the Certificate Administrator written confirmation of whether there existed a Control Termination Event or a Consultation Termination Event during the preceding calendar year and the Certificate Administrator shall deliver such confirmation to such party within 10 days of such request.

In the event that a Control Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Control Termination Event has occurred due to the reduction of the Certificate Balance of the Class G Certificates to less than 25% of the aggregate Original Certificate Balance thereof, with regard to the application of any Cumulative Appraisal Reduction Amounts.”

In the event that a Consultation Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Consultation Termination Event has occurred due to the reduction of the Certificate Balance of the Class G Certificates to less than 25% of the aggregate Original Certificate Balance thereof, without regard to the application of any Cumulative Appraisal Reduction Amounts.”

-302-

In the event that a Control Termination Event or Consultation Termination Event has occurred pursuant to clause (ii) of the definition of each of such terms, such special notice shall state “A Control Termination Event and a Consultation Termination Event has occurred due to the irrevocable waiver by the applicable Controlling Class Certificateholder of its rights as Controlling Class Certificateholder.”

In the event that a Consultation Termination Event has occurred due to the reduction of each Class of Control Eligible Certificates below 25% of its Original Certificate Balance, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts, such special notice shall state: “A Consultation Termination Event has occurred because no Class of Control Eligible Certificates exists where such class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that class, in each case without regard to the application of any Cumulative Appraisal Reduction Amounts.”

In the event of any transfer of a Class G Certificate, and upon notice to the Certificate Administrator in the form of Exhibit MM that results in a termination of a Control Termination Event or a Consultation Termination Event, such “special notice” shall state: “A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class Certificates to an unaffiliated third party which has terminated any waiver by the prior Holder.”

The Directing Certificateholder shall not have any consent or consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. Notwithstanding the proviso to each of the definitions of “Control Termination Event” and “Consultation Termination Event”, in either such case, in respect of the servicing of any such Excluded Loan, a Control Termination Event and a Consultation Termination Event will each be deemed to have occurred with respect to any such Excluded Loan as to such party.

The Risk Retention Consultation Party shall not have any consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either such Risk Retention Consultation Party or the Holder of the majority of the RR Interest.

Section 3.24    Intercreditor Agreements. (a) Each Master Servicer and Special Servicer acknowledges and agrees that each Serviced Whole Loan being serviced under this Agreement and each Mortgage Loan with mezzanine debt is subject to the terms and provisions of the related Intercreditor Agreement and each agrees to service each such Serviced Whole Loan, and each Mortgage Loan with mezzanine debt, in accordance with the related Intercreditor Agreement and this Agreement, including, without limitation, effecting distributions and allocating reimbursement of expenses in accordance with the related Intercreditor Agreement and, in the event of any conflict between the provisions of this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement shall govern. Notwithstanding anything contrary in this Agreement, each applicable Master Servicer and each applicable Special Servicer agrees not to take any action with respect to a Serviced Whole Loan, or a Mortgage Loan with mezzanine debt, or the related Mortgaged Property without the prior consent of the related Companion Holder or mezzanine lender, as applicable, to the extent that the related Intercreditor Agreement provides that such Companion Holder or mezzanine lender, as applicable, is required or permitted to consent

-303-

to such action. Each applicable Master Servicer and each applicable Special Servicer acknowledges and agrees that each Companion Holder and each mezzanine lender or its respective designee has the right to purchase the related Mortgage Loan pursuant to the terms and conditions of this Agreement and the related Intercreditor Agreement to the extent provided for therein. Each Master Servicer and each Special Servicer further acknowledges and agrees that any AB Whole Loan Controlling Holder will have the right to replace the applicable Special Servicer solely with respect to the related Serviced AB Whole Loan, to the extent provided for herein and in the related Intercreditor Agreement.

(b)          Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for any cost, claim or damage that arises from any entitlement in favor of a Companion Holder or a mezzanine lender under the related Intercreditor Agreement or conflict between the terms of this Agreement and the terms of such Intercreditor Agreement. Notwithstanding any provision of any Intercreditor Agreement that may otherwise require such Master Servicer or such Special Servicer to abide by any instruction or direction of a Companion Holder or a mezzanine lender, neither such Master Servicer nor such Special Servicer shall be required to comply with any instruction or direction the compliance with which requires an Advance that constitutes or would constitute a Nonrecoverable Advance. In no event shall any expense arising from compliance with an Intercreditor Agreement constitute an expense to be borne by the applicable Master Servicer or the applicable Special Servicer for its own account without reimbursement. In no event shall the applicable Master Servicer or the applicable Special Servicer be required to consult with or obtain the consent of any Companion Holder or a mezzanine lender unless such Companion Holder or mezzanine lender has delivered notice of its identity and contact information to each of the parties to this Agreement (upon which notice each of the parties to this Agreement shall be conclusively entitled to rely). As of the Closing Date, the contact information for the Companion Holders and mezzanine lenders is as set forth in the related Intercreditor Agreement. In no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, be required to consult with or obtain the consent of a new Directing Certificateholder or a new Controlling Class Certificateholder or consult with a new Risk Retention Consultation Party unless the Certificate Administrator has delivered notice to such Master Servicer or such Special Servicer, as applicable, as required under Section 3.23(e) or such Master Servicer or such Special Servicer, as applicable, have actual knowledge of the identity and contact information of a new Directing Certificateholder, a new Controlling Class Certificateholder or a new Risk Retention Consultation Party.

(c)          No direction or disapproval of the Companion Holders or any mezzanine lender shall (a) require or cause the applicable Master Servicer or the applicable Special Servicer to violate the terms of a Mortgage Loan or Serviced Companion Loan, applicable law or any provision of this Agreement, including such Master Servicer’s or such Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, (b) result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions or (c) materially expand the scope of the applicable Special Servicer’s, Trustee’s, the Certificate Administrator’s or the applicable Master Servicer’s responsibilities under this Agreement.

(d)          With respect to any Serviced Pari Passu Companion Loan, notwithstanding any rights the Operating Advisor, the Directing Certificateholder or the Risk Retention

-304-

Consultation Party hereunder may have to consult with respect to any action or other matter with respect to the servicing of such Companion Loan, to the extent the related Intercreditor Agreement provides that such right is exercisable by the related Companion Holder or is exercisable in conjunction with any related Companion Holder, the Directing Certificateholder and the Risk Retention Consultation Party shall not be permitted to exercise such right or, to the extent provided in the related Intercreditor Agreement, shall be required to exercise such right in conjunction with the related Companion Holder, as applicable (except to the extent that the Directing Certificateholder or the Risk Retention Consultation Party is the related Serviced Whole Loan Controlling Holder). Additionally, notwithstanding anything in this Agreement to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall consult, seek the approval or obtain the consent of the holder of any Serviced Companion Loan with respect to any matters with respect to the servicing of such Companion Loan to the extent required under related Intercreditor Agreement and shall not take such actions requiring consent of the related Companion Holder without such consent. In addition, notwithstanding anything to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall deliver reports and notices to the related Companion Holder as required under the Intercreditor Agreement.

(e)          Notwithstanding anything in this Agreement to the contrary, the applicable Special Servicer shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Controlling Class Certificateholder pursuant to this Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to a Serviced Whole Loan to the related Companion Holder, within the same time frame it is required to provide to the Controlling Class Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Certificateholder under this Agreement due to the occurrence and continuance of a Control Termination Event or the occurrence and continuance of a Consultation Termination Event) and (ii) to consult with any related Companion Holder on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Companion Holder requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to a Serviced Whole Loan, and consider alternative actions recommended by such related Companion Holder; provided that after the expiration of a period of ten (10) Business Days from the delivery to such related Companion Holder by the applicable Special Servicer of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Certificateholder, the applicable Special Servicer shall no longer be obligated to consult with such related Companion Holder, whether or not such related Companion Holder has responded within such ten (10) Business Day period (unless, such Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the related Companion Holder set forth in the immediately preceding sentence, such Special Servicer may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if such Special Servicer determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Holder. In no event shall the applicable Special

-305-

Servicer be obligated at any time to follow or take any alternative actions recommended by the related Companion Holder.

(f)           In addition to the consultation rights of the holder of a Serviced Pari Passu Companion Loan provided in the immediately preceding paragraph, such Companion Holder shall have the right to attend (in person or telephonically, in the discretion of the applicable Master Servicer or applicable Special Servicer, as the case may be) annual meetings with the applicable Master Servicer or the applicable Special Servicer at the offices of such Master Servicer or such Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, in which servicing issues related to the related Whole Loan are discussed.

(g)          With respect to any Serviced Whole Loan, the applicable Special Servicer shall not modify, waive or amend the terms of the related Intercreditor Agreement such that the monthly remittance to the holder of the related Companion Loan is required earlier than 2 Business Days after receipt by the applicable Master Servicer of the related Periodic Payment without the consent of such Master Servicer.

(h)          To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to any Intercreditor Agreement for a Whole Loan are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.

(i)           With respect to the Serviced AB Whole Loan, notwithstanding any rights the Directing Certificateholder hereunder may have to consult with respect to any action or other matter with respect to the servicing of such Serviced AB Whole Loan, to the extent the related Intercreditor Agreement provides that such right is exercisable by the related AB Subordinate Companion Holder or its representative or is exercisable in conjunction with the related AB Subordinate Companion Holder, then the Directing Certificateholder shall not be permitted to exercise such right. Additionally, notwithstanding anything in this Agreement to the contrary, the applicable Master Servicer or the applicable Special Servicer shall consult with, seek the approval of, or obtain the consent of the AB Subordinate Companion Holder or its representative with respect to any matters with respect to the servicing of the related Subordinate Companion Loan to the extent required under the related Intercreditor Agreement and shall not take such actions requiring consent of or consultation with such AB Subordinate Companion Holder or its representative without such consent or consultation (or deemed consent or consultation). In addition, notwithstanding anything to the contrary, the applicable Master Servicer or applicable Special Servicer shall deliver information, reports and notices to the AB Subordinate Companion Holder or its representative as and to the extent required under the related Intercreditor Agreement; provided that if such AB Subordinate Companion Holder is a Borrower Party with respect to the related Mortgage Loan, then such AB Subordinate Companion Holder shall not be entitled to receive any information that would constitute Excluded Information if such AB Whole Loan were an Excluded Controlling Class Loan. Each of the Master Servicers and the Special Servicers further acknowledges and agrees that any AB Whole Loan Controlling Holder will have the right to exercise the rights of the Directing Certificateholder under this Agreement to the extent provided for in, and subject to the terms of, the related Intercreditor Agreement.

-306-

Section 3.25    Rating Agency Confirmation. (a) Notwithstanding the terms of any related Mortgage Loan documents or other provisions of this Agreement, if any action under any Mortgage Loan documents or this Agreement requires Rating Agency Confirmation as a condition precedent to such action, if the party (the “RAC Requesting Party”) required to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within ten (10) Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then such RAC Requesting Party shall be required to confirm (through direct communication and not by posting any confirmation on the 17g-5 Information Provider’s Website) that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again (which may be through direct communication). The circumstances described in the preceding sentence are referred to in this Agreement as a “RAC No-Response Scenario.” Once the RAC Requesting Party has sent a request for a Rating Agency Confirmation to the 17g-5 Information Provider, such RAC Requesting Party may, but shall not be obligated to send such request directly to the Rating Agencies in accordance with the procedures set forth in Section 13.10(d).

If there is no response to such Rating Agency Confirmation request within five (5) Business Days of such second request in a RAC No-Response Scenario or if such Rating Agency has responded in a manner that indicates such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (x) with respect to any condition in any Mortgage Loan document requiring such Rating Agency Confirmation or with respect to any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) below), the requirement to obtain a Rating Agency Confirmation shall be deemed not to apply (as if such requirement did not exist) with respect to such Rating Agency and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may then take such action if the applicable Master Servicer or the applicable Special Servicer, as the case may be, confirms its original determination (made prior to making such request) that taking the action with respect to which it requested the Rating Agency Confirmation would still be consistent with the Servicing Standard, and (y) with respect to a replacement of the applicable Master Servicer or the applicable Special Servicer, such condition shall be deemed not to apply (as if such requirement did not exist) if (i) the replacement master servicer or special servicer is listed on S&P’s Select Servicer List as a “U.S. Commercial Mortgage Master Servicer” or “U.S. Commercial Mortgage Special Servicer”, as applicable, if S&P is the non-responding Rating Agency, (ii) the applicable replacement master servicer or special servicer is rated at least “CMS3” (in the case of the replacement master servicer) or “CSS3” (in the case of the replacement special servicer), if Fitch is the non-responding Rating Agency or (iii) KBRA has not publicly cited servicing concerns with respect to the applicable replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other CMBS transaction serviced by such replacement master servicer or special servicer prior to the time of determination, if KBRA is the non-responding Rating Agency.

Any Rating Agency Confirmation request made by any Master Servicer, any Special Servicer, Certificate Administrator or Trustee, as applicable, pursuant to this Agreement,

-307-

shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

Promptly following the applicable Master Servicer’s or the applicable Special Servicer’s determination to take any action discussed in this Section 3.25(a) following any requirement to obtain a Rating Agency Confirmation being deemed not to apply (as if such requirement did not exist), such Master Servicer or such Special Servicer, as applicable, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

(b)          Notwithstanding anything to the contrary in this Section 3.25, for purposes of the provisions of any Mortgage Loan document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral) or release or substitution of any collateral, any Rating Agency Confirmation requirement in the Mortgage Loan documents for which the applicable Master Servicer or the applicable Special Servicer would have been permitted to waive obtaining or to make a determination with respect to such Rating Agency Confirmation pursuant to Section 3.25(a) shall be deemed not to apply (as if such requirement did not exist).

(c)          For all other matters or actions not specifically discussed in Section 3.25(a) above, the applicable RAC Requesting Party shall deliver Rating Agency Confirmation from each Rating Agency.

(d)          With respect to any Serviced Pari Passu Companion Loan as to which there exists Serviced Pari Passu Companion Loan Securities, if any action relating to the servicing and administration of the related Whole Loan or any related REO Property (including, but not limited to, the replacement of the applicable Master Servicer, the applicable Special Servicer or a sub-servicer) (the “Relevant Action”) requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then such action will also require delivery of a confirmation of each Companion Loan Rating Agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Pari Passu Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to this Section 3.25) as a condition precedent to such action, which confirmation shall be sought by the applicable Master Servicer or the applicable Special Servicer, as applicable, seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action.

Section 3.26    The Operating Advisor. (a) The Operating Advisor shall promptly review (i) all information made available to Privileged Persons on the Certificate Administrator’s Website (A) that relates to any Specially Serviced Loan, and (B) that is contained in the CREFC^®

-308-

Servicer Watch List prepared by the applicable Master Servicer and (ii) each Final Asset Status Report delivered to the Operating Advisor by the applicable Special Servicer.

(b)          The Operating Advisor and its Affiliates will be obligated to keep confidential any information appropriately labeled “Privileged Information” received from the applicable Special Servicer or Directing Certificateholder in connection with the Directing Certificateholder’s exercise of its rights under this Agreement (including, without limitation, in connection with the review and/or approval of any Asset Status Report), subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information. Subject to the terms and conditions in this Agreement related to Privileged Information, the Operating Advisor agrees that it shall use information received from the applicable Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.

(c)          (i) After the occurrence and during the continuance of a Control Termination Event, based on the Operating Advisor’s review of any assessment of compliance report, attestation report, Asset Status Report and other information (other than any communications between the Directing Certificateholder and the applicable Special Servicer that would be Privileged Information) delivered to the Operating Advisor by such Special Servicer, including each Asset Status Report delivered during the prior calendar year, the Operating Advisor shall (if any Mortgage Loans (other than Servicing Shift Mortgage Loans) were Specially Serviced Loans during the prior calendar year) deliver to the applicable Special Servicer, the Certificate Administrator and the 17g-5 Information Provider within one hundred-twenty (120) days of the end of the prior calendar year for which a Control Termination Event was continuing as of December 31, an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit V (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement including, without limitation, provisions herein relating to Privileged Information; provided, however, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement), setting forth the Operating Advisor’s assessment of the applicable Special Servicer’s performance of its duties under this Agreement during the prior calendar year with respect to the resolution and/or liquidation of Specially Serviced Loans (other than Servicing Shift Mortgage Loans) that the applicable Special Servicer is responsible for servicing under this Agreement; provided, further, however, that in the event the applicable Special Servicer is replaced, the Operating Advisor Annual Report shall only relate to such Special Servicer that was acting as Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report. Notwithstanding the foregoing, with respect to any Serviced AB Whole Loan, no Operating Advisor Annual Report will be permitted to include an assessment of the applicable Special Servicer’s performance in respect of such Serviced AB Whole Loan until an AB Control Appraisal Period is in effect under the related Intercreditor Agreement. Subject to the restrictions in this Agreement, including, without limitation, Section 3.26(c), each such Operating Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the applicable Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Loans or REO Properties that the applicable Special Servicer is responsible for servicing under this Agreement (other than with respect to any REO Property related to a Non-Serviced Mortgage Loan or a Servicing Shift

-309-

Mortgage Loan) and (B) comply with all of the confidentiality requirements described in this Agreement regarding Privileged Information (subject to any permitted exceptions); provided that the Operating Advisor shall not be required to report on any instances of non-compliance with, or deviations from, the Servicing Standard or the applicable Special Servicer’s obligations under this Agreement that the Operating Advisor determines, in accordance with the Operating Advisor Standard, to be immaterial. Such Operating Advisor Annual Report shall be delivered to the applicable trustee, the applicable Master Servicer, the applicable Special Servicer, the Rating Agencies, the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website in accordance with Section 3.13(b)) and the 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)); provided, however, that the applicable Special Servicer shall be given an opportunity to review the Operating Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider. The Operating Advisor shall have no obligation to adopt any comments to the Operating Advisor Annual Report that are provided by the applicable Special Servicer. The Operating Advisor Annual Report will be prepared on the basis of the applicable Special Servicer’s performance of its duties as they relate to the resolution and/or liquidation of Specially Serviced Loans, taking into account the applicable Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Operating Advisor of the items required to be reviewed by it pursuant to this Agreement. Notwithstanding the foregoing, no Operating Advisor Annual Report shall be required from the Operating Advisor with respect to any calendar year as to which no Final Asset Status Report was prepared by the applicable Special Servicer in connection with a Specially Serviced Loan or REO Property.

(ii)          In the event the Operating Advisor’s ability to perform its obligations in respect of the Operating Advisor Annual Report is limited or prohibited due to the failure of a party hereto to timely deliver information required to be delivered to the Operating Advisor or because such information is inaccurate or incomplete, the Operating Advisor shall set forth such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from such limitations or prohibitions. The Operating Advisor shall be entitled to conclusively rely on the accuracy and completeness of any information it is provided without liability for any such reliance hereunder. In the event a lack of access to Privileged Information limits or prohibits the Operating Advisor from performing its duties under this Agreement, the Operating Advisor shall set forth any such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from its lack of access to Privileged Information.

(d)          With respect to each Serviced Mortgage Loan (other than a Servicing Shift Mortgage Loan) or Serviced Whole Loan (other than a Servicing Shift Whole Loan), prior to the occurrence and continuance of a Control Termination Event (or, with respect to a Serviced AB Whole Loan, prior to the occurrence and continuance of a Control Termination Event and if an AB Control Appraisal Period is not in effect), the applicable Special Servicer will forward any Appraisal Reduction Amount and net present value calculations used in the applicable Special Servicer’s determination of what course of action to take in connection with the workout or

-310-

liquidation of a Specially Serviced Loan to the Operating Advisor after such calculations have been finalized. The Operating Advisor shall review such calculations but shall not opine on or take any affirmative action with respect to such Appraisal Reduction Amount calculations and/or net present value calculations (except that if the Operating Advisor discovers a material mathematical error contained in such calculations, them the Operating Advisor shall notify the applicable Special Servicer of such error).

(e)          (i) With respect to each Serviced Mortgage Loan (other than a Servicing Shift Mortgage Loan) or Serviced Whole Loan (other than a Servicing Shift Whole Loan), after the occurrence and during the continuance of a Control Termination Event, and with respect to any Serviced AB Whole Loan, after the occurrence and during the continuance of a Control Termination Event and if an AB Control Appraisal Period is in effect, after the calculation but prior to the utilization by the applicable Special Servicer of any of the calculations related to (i) Appraisal Reduction Amounts or Collateral Deficiency Amount (if the applicable Special Servicer has calculated any such Appraisal Reduction Amount or Collateral Deficiency Amount) or (ii) net present value in accordance with Section 1.02(iv), the applicable Special Servicer shall forward such calculations, together with any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Operating Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Communications), to the Operating Advisor promptly, but in any event no later than two (2) Business Days after preparing such calculations, and the Operating Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portion of the applicable formulas required to be utilized in connection with any such calculation.

(ii)          In connection with this Section 3.26(e), in the event the Operating Advisor does not agree with the mathematical calculations of the Appraisal Reduction Amount or Collateral Deficiency Amount (if calculated by the applicable Special Servicer) or net present value or the application of the applicable non-discretionary portions of the formula required to be utilized for such calculation, the Operating Advisor and the applicable Special Servicer shall consult with each other in order to resolve any material inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations. The applicable Master Servicer shall cooperate with such Special Servicer and provide any information reasonably requested by such Special Servicer necessary for the calculation of the Appraisal Reduction Amount or Collateral Deficiency Amount that is either in its possession or, solely with respect to Non-Specially Serviced Loans, reasonably obtainable by the applicable Master Servicer. In the event the Operating Advisor and the applicable Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Operating Advisor shall promptly notify the Certificate Administrator of such disagreement and the Certificate Administrator shall examine the calculations and supporting materials provided by the Operating Advisor and the applicable Special Servicer and determine which calculation is to apply and shall provide such parties prompt written notice of its determination. With respect to the Operating Advisor’s review of net present value, Collateral Deficiency Amount or Appraisal Reduction Amount calculations

-311-

as described above, the Operating Advisor’s recalculation will not take into account the reasonableness of Special Servicer’s property and borrower performance assumptions or other similar discretionary portions of the net present value, Collateral Deficiency Amount or Appraisal Reduction Amount calculation.

(iii)         Notwithstanding the foregoing, the consultation duties of the Operating Advisor set forth in this Agreement shall not be permitted to be exercised by the Operating Advisor with respect to any Serviced AB Whole Loan until after the occurrence and during the continuance of a Control Termination Event (except with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) and an AB Control Appraisal Period is in effect.

(f)           Notwithstanding the foregoing, prior to the occurrence and continuance of an Control Termination Event, the Operating Advisor will be limited to an after-the-action review of any assessment of compliance, attestation report, Final Asset Status Report and other information delivered to the Operating Advisor by the applicable Special Servicer or made available to Privileged Persons that are posted on the Certificate Administrator’s Website during the prior calendar year (together with any additional information and material reviewed by the Operating Advisor), and, therefore, it shall have no specific involvement with respect to collateral substitutions, assignments, workouts, modifications, consents, waivers, lockbox management, insurance policies, borrower substitutions, lease changes, additional borrower debt, defeasances, property management changes, releases from escrow, assumptions and other similar actions that such Special Servicer may perform under this Agreement.

(g)          The Operating Advisor and its Affiliates shall keep all information appropriately labeled as “Privileged Information” confidential and shall not disclose such labeled Privileged Information to any Person (including Certificateholders other than the Directing Certificateholder), other than (1) to the extent expressly required by this Agreement to the other parties to this Agreement with a notice indicating that such information is Privileged Information, (2) pursuant to a Privileged Information Exception or (3) where necessary to support specific findings or conclusions concerning allegations of deviations from the Servicing Standard (i) in the Operating Advisor Annual Report or (ii) in connection with a recommendation by the Operating Advisor to replace a Special Servicer. Each party to this Agreement that receives Privileged Information from the Operating Advisor with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (with respect to any Mortgage Loan other than a Non-Serviced Whole Loan and other than any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) other than pursuant to a Privileged Information Exception. Notwithstanding the foregoing, the Operating Advisor shall be permitted to share Privileged Information with its Affiliates and any subcontractors of the Operating Advisor that agree in writing to be bound by the same confidentiality provisions applicable to the Operating Advisor.

(h)          Subject to the requirements of confidentiality imposed on the Operating Advisor herein (including without limitation in respect of Privileged Information), the Operating

-312-

Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 4.07(a).

(i)           The Operating Advisor shall be paid a fee of $10,000 on the Closing Date. As compensation for its activities hereunder, the Operating Advisor shall be entitled to receive the Operating Advisor Fee on each Remittance Date with respect to each Mortgage Loan and each REO Loan (but excluding any related Companion Loan). As to each Mortgage Loan and each REO Loan, the Operating Advisor Fee shall accrue from time to time at the Operating Advisor Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the related Mortgage Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on the related Mortgage Loan or deemed to be due on such REO Loan is computed.

The Operating Advisor shall be entitled to reimbursement of any Operating Advisor Expenses provided for pursuant to Section 6.04(a) and/or 6.04(b), such amounts to be reimbursed from amounts on deposit in the applicable Collection Account as provided by Section 3.05(a). Each successor operating advisor shall be required to acknowledge and agree to the terms of the preceding sentence.

In addition, the Operating Advisor Consulting Fee shall be payable to the Operating Advisor with respect to each Major Decision for which the Operating Advisor has consultation obligations hereunder. The Operating Advisor Consulting Fee shall be payable from funds on deposit in the applicable Collection Account as provided in Section 3.05(a)(ii) of this Agreement, but, with respect to the period when the outstanding Certificate Balances of the Control Eligible Certificates have not been reduced to zero as a result of the allocation of Realized Losses to such Certificates, only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor. When the Operating Advisor has consultation obligations with respect to a Major Decision under this Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Operating Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision, but only to the extent not prohibited by the related Mortgage Loan documents, and in no event will it take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection. The applicable Master Servicer or the applicable Special Servicer, as the case may be, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard; provided that the applicable Master Servicer or the applicable Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction. Notwithstanding the foregoing, the Operating Advisor will have no obligations or consultation rights in its capacity as operating advisor with respect to: (i) any Servicing Shift Mortgage Loan, Non-Serviced Whole Loan or any related REO Property or (ii) any Serviced AB Whole Loan, prior to the occurrence and continuance of a Control Termination Event and if an AB Control Appraisal Period is not in effect; provided, further, that the Operating Advisor shall not be entitled to an Operating Advisor Consulting Fee with respect to any Non-Serviced Whole Loan.

-313-

(j)           After the occurrence and during the continuance of a Consultation Termination Event, the Operating Advisor may be removed upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Cumulative Appraisal Reduction Amounts are allocable) requesting a vote to replace the Operating Advisor with a replacement Operating Advisor selected by such Certificateholders (provided that the proposed replacement Operating Advisor is an Eligible Operating Advisor), (ii) payment by such requesting Holders to the Certificate Administrator of all reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote and (iii) receipt by the Trustee and the Certificate Administrator of Rating Agency Confirmation from each Rating Agency (which confirmations will be obtained by the Certificate Administrator at the expense of such Holders and will not constitute an additional expense of the Trust). The Certificate Administrator shall promptly provide written notice to all Certificateholders of such request by posting such notice on the Certificate Administrator’s Website in accordance with Section 3.13(b), and concurrently by mail, and conduct the solicitation of votes of all Certificates in such regard. Upon the vote or written direction of Holders of Certificates evidencing at least 75% of the Voting Rights (taking into account the application of Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Cumulative Appraisal Reduction Amounts are allocable), the Trustee shall immediately replace the Operating Advisor with the replacement Operating Advisor.

(k)          After the occurrence of an Operating Advisor Termination Event, the Trustee may, and upon the written direction of Holders of Certificates representing at least 25% of the Voting Rights (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Classes of Certificates), the Trustee shall promptly terminate the Operating Advisor for cause and appoint a replacement Operating Advisor that is an Eligible Operating Advisor; provided that no such termination shall be effective until a successor operating advisor has been appointed and has assumed all of the obligations of the Operating Advisor under this Agreement. No such termination shall terminate, change, reduce, or otherwise modify the rights and obligations of the Operating Advisor that accrued prior to such termination, including the right to receive all amounts accrued and owing to it under this Agreement, and other than indemnification rights (arising out of events occurring prior to such termination). The Trustee may rely on a certification by the replacement Operating Advisor that it is an Eligible Operating Advisor. Upon any termination of the Operating Advisor and appointment of a successor to the Operating Advisor, the Trustee will, as soon as possible, be required to give written notice of the termination and appointment to the applicable Special Servicer, the applicable Master Servicer, the Certificate Administrator, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website), the Depositor, the Directing Certificateholder, the Risk Retention Consultation Party, any Companion Loan holder and the Certificateholders.

(l)           The Holders of Certificates representing at least 25% of the Voting Rights affected by any Operating Advisor Termination Event hereunder may waive such Operating Advisor Termination Event within twenty (20) days of the receipt of notice from the Trustee of the occurrence of such Operating Advisor Termination Event. Upon any such waiver of an Operating Advisor Termination Event, such Operating Advisor Termination Event shall cease to

-314-

exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of an Operating Advisor Termination Event by certificateholders, the trustee and the certificate administrator will be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Operating Advisor Termination Event prior to such waiver from the Trust.

(m)         Prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder shall have the right to consent, such consent not to be unreasonably withheld, conditioned or delayed, to the identity of any replacement Operating Advisor appointed pursuant to this Section 3.26; provided, further, that such consent will be deemed to have been granted if no objection is made within ten (10) Business Days following the Directing Certificateholder’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn.

(n)          The Operating Advisor may resign from its obligations and duties hereby imposed on it (a) upon thirty (30) days prior written notice to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Directing Certificateholder and the Risk Retention Consultation Party, if applicable, and (b) upon the appointment of, and the acceptance of such appointment by, a successor operating advisor that is an Eligible Operating Advisor and receipt by the Trustee of Rating Agency Confirmation from each Rating Agency. No such resignation by the Operating Advisor shall become effective until the replacement Operating Advisor shall have assumed the resigning Operating Advisor’s responsibilities and obligations. The resigning Operating Advisor shall pay all costs and expenses (including costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 3.26.

(o)          In the event there are no Classes of Certificates outstanding other than the Control Eligible Certificates, the RR Interest and the Class X-F, Class F, Class X-G, Class X-H, Class V and Class R Certificates, then all of the rights and obligations of the Operating Advisor shall terminate without payment of any termination fee (other than any rights or obligations that accrued prior to the date of such termination (including accrued and unpaid compensation) and other than indemnification rights arising out of events occurring prior to such termination). In connection with any termination pursuant to this Section 3.26(o), no successor operating advisor shall be appointed. Upon receipt of written notice of such acts by a Responsible Officer of the Trustee, the Trustee shall provide the Operating Advisor with prompt notice upon its termination pursuant to this Section 3.26(o).

(p)          In the event the Operating Advisor resigns or is otherwise terminated for any reason it shall remain entitled to any accrued and unpaid Operating Advisor Fees and Operating Advisor Consulting Fees and reimbursement of accrued and unpaid Operating Advisor Expenses pursuant to Section 3.26(i) and shall also remain entitled to any rights of indemnification provided hereunder.

(q)          The parties hereto agree, and the Certificateholders by their acceptance of their Certificates shall be deemed to have agreed, that (i) subject to Section 6.04, the Operating Advisor shall have no liability to any Certificateholder for any actions taken or for refraining from taking any actions under this Agreement, (ii) the Operating Advisor shall act solely as a contracting

-315-

party to the extent set forth in this Agreement, (iii) the Operating Advisor shall have no (A) fiduciary duty, or (B) other duty except with respect to its specific obligations under this Agreement, and shall have no duty to any particular Class of Certificates or particular Certificateholders, and (iv) the Operating Advisor does not constitute an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended, or a “broker” or “dealer” within the meaning of the Exchange Act. Furthermore, the Operating Advisor shall have no obligations or responsibility at any time to review the actions of a Master Servicer for compliance with the Servicing Standard, and the Operating Advisor shall not be required to consider such Master Servicer actions in connection with any Operating Advisor Annual Report.

(r)           Neither the Operating Advisor nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker-dealer Affiliate of the Operating Advisor or (ii) investments by an Affiliate of the Operating Advisor if the Operating Advisor and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Operating Advisor under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Operating Advisor and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

(s)          The Operating Advisor shall at all times be an Eligible Operating Advisor and if the Operating Advisor ceases to be an Eligible Operating Advisor, the Operating Advisor shall immediately resign under Section 3.26(n) of this Agreement and the Trustee shall appoint a successor operating advisor subject to and in accordance with this Section 3.26. Notwithstanding the foregoing, if the Trustee is unable to find a successor operating advisor within thirty (30) days of the termination of the Operating Advisor, the Depositor shall be permitted to find a replacement.

(t)           The Operating Advisor may delegate its duties and obligations to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Agreement related to the Operating Advisor’s duties and obligations; provided that no agent or subcontractor may (i) be affiliated with a Sponsor, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Operating Advisor shall remain obligated and primarily liable for its obligations hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Operating Advisor alone were performing its obligations under this Agreement. The Operating Advisor shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Operating Advisor by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

-316-

(u)          With respect to the determination of whether a Control Termination Event or Consultation Termination Event has occurred and is continuing, or has terminated, the Operating Advisor is entitled to rely solely on its receipt from the Certificate Administrator of notice thereof pursuant to Section 3.23(m), and, with respect to any obligations of the Operating Advisor that are performed only after the occurrence and continuance of a Control Termination Event and/or Consultation Termination Event, the Operating Advisor shall have no obligation to perform any such duties until the receipt of such notice or actual knowledge of the occurrence of a Control Termination Event or Consultation Termination Event, as applicable.

Section 3.27    Companion Paying Agent. (a) With respect to each of the Serviced Companion Loans, the applicable Master Servicer shall be the Companion Paying Agent hereunder. The Companion Paying Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.

(b)          No provision of this Agreement shall be construed to relieve the Companion Paying Agent from liability for its negligent failure to act, bad faith or its own willful misfeasance; provided, however, that the duties and obligations of the Companion Paying Agent shall be determined solely by the express provisions of this Agreement. The Companion Paying Agent shall not be liable except for the performance of such duties and obligations, no implied covenants or obligations shall be read into this Agreement against the Companion Paying Agent. In the absence of bad faith on the part of the Companion Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth and correctness of the statements or conclusions expressed therein, upon any resolutions, certificates, statements, opinions, reports, documents, orders or other instrument furnished to the Companion Paying Agent by any Person and which on their face do not contradict the requirements of this Agreement.

(c)          In the case of each of the Serviced Companion Loans, upon the resignation or removal of the applicable Master Servicer pursuant to Article VII of this Agreement, the applicable Master Servicer, as the Companion Paying Agent, shall be deemed simultaneously to resign or be removed.

(d)          This Section 3.27 shall survive the termination of this Agreement or the resignation or removal of the Companion Paying Agent, as regards to rights accrued prior to such resignation or removal.

Section 3.28    Serviced Companion Noteholder Register. The Companion Paying Agent shall maintain a register (the “Serviced Companion Noteholder Register”) with respect to each Serviced Companion Loan on which it will record the names and address of, and wire transfer instructions for, the Serviced Companion Noteholders from time to time, to the extent such information is provided in writing to it by each Serviced Companion Noteholder. The initial Serviced Companion Noteholders, along with their respective name and address, are listed on Exhibit S hereto. In the event a Serviced Companion Noteholder transfers a Serviced Companion Loan without notice to the Companion Paying Agent, the Companion Paying Agent shall have no liability for any misdirected payment in such Serviced Companion Loan and shall have no obligation to recover and redirect such payment.

-317-

The Companion Paying Agent shall promptly provide the name and address of any Serviced Companion Noteholder to any party hereto or any successor Serviced Companion Noteholder upon written request and any such Person may, without further investigation, conclusively rely upon such information. The Companion Paying Agent shall have no liability to any Person for the provision of any such name and address.

For the avoidance of doubt, any notices or information required to be delivered pursuant to this Agreement by any party hereto to a Serviced Companion Noteholder with respect to a Serviced Companion Loan that has been included in an Other Securitization shall be provided to the Other Servicer under the Other Pooling and Servicing Agreement.

Section 3.29    Certain Matters Relating to the Non-Serviced Mortgage Loans and the Serviced Pari Passu Companion Loans.(a) In the event that any of the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer shall be replaced in accordance with the terms of the applicable Non-Serviced PSA, the applicable Master Servicer and the applicable Special Servicer shall acknowledge its successor as the successor to the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be.

(b)          If any of the Trustee, the Certificate Administrator or the applicable Master Servicer receives notice from a Rating Agency that the applicable Master Servicer is no longer an “approved” master servicer by any of the Rating Agencies rating the Certificates, then the Trustee, the Certificate Administrator or such Master Servicer, as applicable, shall promptly notify each Non-Serviced Master Servicer of the same.

(c)          In connection with the securitization of each Serviced Pari Passu Companion Loan, (in each case, only while it is a Serviced Companion Loan), upon the request of (and at the expense of) the related Serviced Companion Noteholder (or its designee), each of the applicable Master Servicer, the applicable Special Servicer and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Noteholder in attempting to cause the related Mortgagor to provide information relating to such Whole Loan and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

(d)          In connection with the sale of any Non-Serviced Whole Loan by any Non-Serviced Special Servicer, upon receipt of any notices or materials required to be furnished by the Non-Serviced Special Servicer to the holder of the related Non-Serviced Mortgage Loan pursuant to the related Intercreditor Agreement, the applicable Special Servicer shall, prior to the occurrence and continuance of a Control Termination Event, forward such materials to the Directing Certificateholder for its consent, if such consent is required. The applicable Special Servicer may (with the consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event) waive any timing or delivery requirements related to such sale to the extent set forth in the related Intercreditor Agreement.

(e)          With respect to any Non-Serviced Mortgage Loan, the Directing Certificateholder (as determined under clause (B) of the definition thereof), prior to the occurrence and continuance of a Consultation Termination Event, or the applicable Special Servicer,

-318-

following the occurrence and during the continuance of a Consultation Termination Event, shall be entitled to exercise any consultation rights held by the holder of such Mortgage Loan in its capacity as a “Non-Controlling Note Holder” (or similar term identified in the related Intercreditor Agreement) under the related Intercreditor Agreement.

(f)           With respect to each Mortgage Loan that is part of a Whole Loan, this Agreement is subject to the related Intercreditor Agreement and incorporates by reference all provisions required to be included herein pursuant to such Intercreditor Agreement.

(g)          With respect to each Serviced Whole Loan, if any Serviced Companion Loan becomes the subject of an “asset review” (or such analogous term defined in the related Other Pooling and Servicing Agreement) pursuant to the related Other Pooling and Servicing Agreement, the applicable Master Servicer, the applicable Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the Other Asset Representations Reviewer or any other party to the Other Pooling and Servicing Agreement in connection with such Asset Review by providing the Other Asset Representations Reviewer or such other requesting party with any documents reasonably requested by the Other Asset Representations Reviewer or such other requesting party, but only to the extent such documents are in the possession of such Master Servicer, such Special Servicer, the Trustee or the Custodian, as the case may be, but in any event excluding any documents known to such Master Servicer, such Special Servicer, the Trustee or the Custodian to contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications.

(h)          With respect to any Non-Serviced Mortgage Loan, if the applicable Master Servicer or Special Servicer shall receive any communication from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer regarding any Major Decision pursuant to clause (xii) of the definition of such term or “Master Servicer Decision” pursuant to clause (ix) of the definition of such term, then such Master Servicer or Special Servicer shall forward the communication to the Directing Certificateholder (and to the applicable Master Servicer, if the applicable Special Servicer is forwarding such communication, and to the applicable Special Servicer if the applicable Master Servicer is forwarding such communication, and the Master Servicer or the Special Servicer, as the case may be, shall reasonably cooperate with the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be, in effecting any action by the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, in any such case subject to and consistent with the related Intercreditor Agreement.

(i)           During the period from and after the date on which a Serviced Pari Passu Companion Loan is deposited into an Other Securitization, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date the General Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement the following reports and data files with respect to such Serviced Pari Passu Companion Loan: (A) to the extent the General Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report and the CREFC^® REO Status Report, (B) the CREFC^® Loan Setup File (only with respect to the first

-319-

“distribution date” (or analogous term) as defined in the related Other Pooling and Servicing Agreement), (C) the most recent CREFC^® Property File and the CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the General Special Servicer and the General Master Servicer), (D) a CREFC^® Servicer Watch List with information that is current as of such Serviced Whole Loan Remittance Date, (E) a CREFC^® Financial File, (F) a CREFC^® Loan Level Reserve/LOC Report, (G) a CREFC^® Advance Recovery Report, (H) a CREFC^® Total Loan Report, (I) the CREFC^® Loan Periodic Update File and (J) the CREFC^® Significant Insurance Event Report. Additionally, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date, the General Master Servicer shall deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports received from the General Special Servicer. In no event shall any report described in this Section 3.29(i) be required to reflect information that has not been collected by or delivered to the General Master Servicer, or any payments or collections not received by the General Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due. In addition, the General Master Servicer shall deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement any and all other reports required to be delivered by the General Master Servicer to the Certificate Administrator hereunder pursuant to the terms hereof to the extent related to such Serviced Pari Passu Companion Loan.

(j)           On a Servicing Shift Securitization Date, (i) the Custodian shall, upon receipt of a Request for Release, transfer the related Mortgage File (other than the Mortgage Note evidencing the related Servicing Shift Mortgage Loan, the original of which shall be retained by the Custodian) for the related Servicing Shift Whole Loan to the related Non-Serviced Trustee under the related Non-Serviced PSA and retain a copy of such Mortgage File and (ii) the applicable Master Servicer shall, upon receipt of notice from the applicable Mortgage Loan Seller that the applicable Servicing Shift Lead Note has been or is being securitized on the related Servicing Shift Securitization Date, transfer (and cooperate with reasonable requests in connection with such transfer of) the Servicing File for the related Servicing Shift Whole Loan, and any Escrow Payments, reserve funds and originals of items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the related Servicing Shift Whole Loan, to the related Non-Serviced Master Servicer on the related Servicing Shift Securitization Date

(k)          Promptly upon any change in the identity of the applicable Master Servicer, the successor Master Servicer shall deliver notice of such change (together with the contact information of such successor Master Servicer) to each Non-Serviced Trustee, Non-Serviced Certificate Administrator, Non-Serviced Special Servicer, Non-Serviced Master Servicer and Non-Serviced Operating Advisor.

Section 3.30    Certain Matters with Respect to Joint Mortgage Loans.

(a)           If a Mortgage Loan Seller with respect to a Joint Mortgage Loan (a “Repurchasing Mortgage Loan Seller”) repurchases the Mortgage Note(s) (as such term is defined in this Section 3.30(a)) (a “Repurchased Note”) related to such Joint Mortgage Loan that it sold to the Depositor, but the other Mortgage Loan Seller with respect to such Joint Mortgage Loan does

-320-

not repurchase the Mortgage Note(s) related to such Joint Mortgage Loan that it sold to the Depositor, the provisions of this Section 3.30 shall apply prior to the adoption, pursuant to Section 13.01(l), of any amendment to this Agreement that provides otherwise. Each Mortgage Loan Seller of a Joint Mortgage Loan has agreed pursuant to the terms of the related Mortgage Loan Purchase Agreement that the terms set forth in this Section 3.30 with respect to the servicing and administration of such Joint Mortgage Loan shall apply if one or more of the Mortgage Notes related to such Joint Mortgage Loan has been repurchased from the Trust and at least one other Mortgage Note related to such Joint Mortgage Loan is included in the Trust until such time as all of the Mortgage Notes related to such Joint Mortgage Loan are no longer included in the Trust. For purposes of this Section 3.30, Section 13.01(l) and Section 13.08(a) only, “Mortgage Note” shall mean with respect to any Joint Mortgage Loan, each original promissory note that collectively represents the Mortgage Note (as defined in Article I) with respect to such Joint Mortgage Loan and shall not be a collective reference to such promissory notes. With respect to any Joint Mortgage Loan that is part of a Whole Loan, clauses (b)–(j) below shall not apply, and the terms of the related Intercreditor Agreement shall continue to govern the relationship between the related Mortgage Notes as if each related Repurchased Note were a Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan, as applicable. With respect to any other Joint Mortgage Loan, clauses (b)–(j) below shall apply to such Joint Mortgage Loan.

(b)          Custody of and record title under the Mortgage Loan documents with respect to the applicable Joint Mortgage Loan shall be held exclusively by the Custodian as provided under this Agreement or, with respect to a Non-Serviced Mortgage Loan, the Non-Serviced Custodian as provided under the related Non-Serviced PSA, except that the Repurchasing Mortgage Loan Seller shall hold and retain title to its original Repurchased Note(s) and any related endorsements thereof.

(i)           All of the Mortgage Notes with respect to any Joint Mortgage Loan shall be of equal priority with each other, and no portion of any Mortgage Note shall have priority or preference over any other portion of the other Mortgage Notes or security therefor. Payments from the related Mortgagor (including, without limitation, any Penalty Charges) or any other amounts received with respect to each Mortgage Note shall be collected as provided in this Agreement by the applicable Master Servicer and shall be applied upon receipt by such Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Payments or any other amounts received with respect to the related Repurchased Note shall be held in trust for the benefit of the applicable Repurchasing Mortgage Loan Seller and remitted (net of its pro rata share of amounts payable at the Administrative Cost Rate and any other amounts due to the applicable Master Servicer or the applicable Special Servicer) to the applicable Repurchasing Mortgage Loan Seller or its designee by the applicable Master Servicer on each Distribution Date pursuant to instructions provided by the applicable Repurchasing Mortgage Loan Seller and deposited and applied in accordance with this Agreement, subject to Section 3.30(b)(ii). If any Joint Mortgage Loan to which this Section 3.30 applies becomes an REO Loan, payments or any other amounts received with respect to any such Joint Mortgage Loan shall be collected and shall be applied upon receipt by the applicable Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Any Appraisal Reduction Amounts calculated with respect to any Joint Mortgage Loan subject

-321-

to this Section 3.30 shall be allocated to each related Mortgage Note pro rata based upon the respective unpaid principal balances thereof.

(ii)          If the applicable Master Servicer or the applicable Special Servicer, as applicable, receives an aggregate payment of less than the aggregate amount due under any such Joint Mortgage Loan at any particular time, the applicable Repurchasing Mortgage Loan Seller shall receive from such Master Servicer an amount equal to its Mortgage Loan Seller Percentage Interest of such payment. All expenses, losses and shortfalls relating solely to such Joint Mortgage Loan including, without limitation, losses of principal or interest, Nonrecoverable Advances, interest on Servicing Advances, Special Servicing Fees, Workout Fees and Liquidation Fees (including any such fees related to the applicable Mortgage Notes), shall be allocated between the holders of the related Mortgage Notes pro rata based upon the respective unpaid principal balances thereof. In no event shall any costs, expenses, fees or any other amounts related to any Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage Loan be deducted from payments or any other amounts received with respect to such Joint Mortgage Loan and payable to the applicable Repurchasing Mortgage Loan Seller.

(iii)         A Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies shall be serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller and the Certificateholders pursuant to the terms and conditions of this Agreement in accordance with the Servicing Standard and in accordance with the provisions herein as if (A) such Joint Mortgage Loan were a Serviced Whole Loan, (B) the related Mortgage Note(s) not repurchased were (1) a Serviced Pari Passu Mortgage Loan and (2) the only Mortgage Loan that is part of such Joint Mortgage Loan (or related Serviced Whole Loan), and (C) the related Repurchased Note were a Serviced Pari Passu Companion Loan. No Repurchasing Mortgage Loan Seller shall be permitted to terminate the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor as servicer, special servicer or operating advisor, respectively, of the related Repurchased Note. All rights of the mortgagee under each such Joint Mortgage Loan shall be exercised by the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the Trust to the extent of its interest therein and the applicable Repurchasing Mortgage Loan Seller in accordance with this Agreement.

(iv)         With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the related Repurchasing Mortgage Loan Seller shall be treated hereunder as if it were a Serviced Pari Passu Companion Loan holder on a pari passu basis. Funds collected by the applicable Master Servicer or the applicable Special Servicer, as applicable, and applied to the applicable Mortgage Notes shall be deposited and disbursed in accordance with the provisions hereof relating to holders of promissory notes comprising Serviced Whole Loans that are pari passu in right of payment. Compensation shall be paid to the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor with respect to each Repurchased Note as provided in this Agreement as if each such Repurchased Note were a Serviced Pari Passu Companion Loan. None of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor shall have any obligation to make P&I Advances with respect to any Repurchased Note or, if no related

-322-

Mortgage Note is part of the Trust, a Servicing Advance with respect to any Repurchased Note. Except as otherwise specified herein, the applicable Master Servicer and the applicable Special Servicer shall have no reporting requirement with respect to any Repurchased Note other than to deliver to the related Repurchasing Mortgage Loan Seller any document as is required to be delivered to a holder of a Serviced Pari Passu Companion Loan hereunder.

(c)          If any non-repurchased Mortgage Note relating to a Joint Mortgage Loan to which this Section 3.30 applies is a Specially Serviced Loan, then any related Repurchased Note shall also be a Specially Serviced Loan under this Agreement. The applicable Special Servicer shall cause such related Repurchased Note to be specially serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller in accordance with the terms and provisions set forth in this Agreement and shall be entitled to any Special Servicing Fee, Workout Fee or Liquidation Fee payable to such Special Servicer under this Agreement as with respect to a Serviced Pari Passu Companion Loan.

(d)          If (A) the applicable Master Servicer shall pay any amount to any Repurchasing Mortgage Loan Seller pursuant to the terms hereof in the belief or expectation that a related payment has been made or will be received or collected in connection with any or all of the applicable Mortgage Notes and (B) such related payment is not received or collected by such Master Servicer, then the applicable Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer return such amount to such Master Servicer. If such Master Servicer determines at any time that any amount received or collected by such Master Servicer in respect of any Joint Mortgage Loan to which this Section 3.30 applies must be returned to the related Mortgagor or paid to any other person or entity pursuant to any insolvency law or otherwise, notwithstanding any other provision of this Agreement, such Master Servicer shall not be required to distribute any portion thereof to the related Repurchasing Mortgage Loan Seller, and such Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer repay (which obligation shall survive the termination of this Agreement) any portion thereof that such Master Servicer shall have distributed to such Repurchasing Mortgage Loan Seller, together with interest thereon at such rate, if any, as such Master Servicer may pay to the related Mortgagor or such other person or entity with respect thereto.

(e)          With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, subject to this Agreement (including, without limitation, the consent and consultation rights of the Directing Certificateholder and any consultation rights of the Operating Advisor), the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the holders of any of the Repurchased Notes, shall have the exclusive right and obligation to (i) administer, service and make all decisions and determinations regarding the related Joint Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as provided hereunder. Without limiting the generality of the preceding sentence, the applicable Master Servicer or the applicable Special Servicer, as applicable, may agree to any modification, waiver or amendment of any term of, forgive interest on and principal of, capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release of the related Mortgagor on or any guarantor of any Joint Mortgage Loan it is required to service and administer as contemplated by this Section 3.30, without the consent of the related

-323-

Repurchasing Mortgage Loan Seller, subject, however, to the terms of this Agreement as they pertain to a Serviced Pari Passu Companion Loan.

(f)          In taking or refraining from taking any action permitted hereunder, the applicable Master Servicer and the applicable Special Servicer shall each be subject to the same degree of care with respect to the administration and servicing of the Joint Mortgage Loans that are not Non-Serviced Mortgage Loans and to which this Section 3.30 applies as is consistent with this Agreement and shall be liable to any Repurchasing Mortgage Loan Seller only to the same extent as set forth herein with respect to any holder of a Serviced Pari Passu Companion Loan.

(g)          If the Trustee, the applicable Master Servicer or the applicable Special Servicer has made a Servicing Advance with respect to any Repurchased Note which would otherwise be reimbursable to such advancing party under this Agreement, and such Advance is determined to be a Nonrecoverable Advance, the applicable Repurchasing Mortgage Loan Seller shall reimburse the Trust in an amount equal to such Repurchasing Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest of such Nonrecoverable Advance with interest thereon. Notwithstanding the foregoing, the applicable Repurchasing Mortgage Loan Seller shall not be obligated to reimburse the Trustee, the applicable Master Servicer or the applicable Special Servicer (and amounts due to the applicable Repurchasing Mortgage Loan Seller shall not be offset) for Advances or interest thereon or any amounts related to any Mortgage Loans or any other Joint Mortgage Loan other than such amounts relating to the applicable Repurchased Note. To the extent that the applicable Repurchasing Mortgage Loan Seller reimburses any such Nonrecoverable Advances and such amounts are subsequently recovered, the applicable Repurchasing Mortgage Loan Seller shall receive a reimbursement from such recovery based on its Mortgage Loan Seller Percentage Interest of such recovery. This reimbursement right shall not limit the Trustee’s, the applicable Master Servicer’s or the applicable Special Servicer’s rights to reimbursement under this Agreement. Notwithstanding anything to the contrary contained herein, the total liability of each Repurchasing Mortgage Loan Seller shall not exceed an amount equal to its Mortgage Loan Seller Percentage Interest of the amount to be reimbursed.

(h)          Each Repurchasing Mortgage Loan Seller shall have the right to assign the related Repurchased Note; provided that, with respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the assignee of the related Repurchased Note shall agree in writing to be bound by the terms of this Agreement.

(i)           With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the applicable Master Servicer and the applicable Special Servicer shall, in connection with their servicing and administrative duties under this Agreement, exercise efforts consistent with the Servicing Standard to execute and deliver, on behalf of each Repurchasing Mortgage Loan Seller as a holder of a pari passu interest in the applicable Joint Mortgage Loan, any and all financing statements, continuation statements and other documents and instruments necessary to maintain the lien created by any Mortgage or other security document related to the applicable Joint Mortgage Loan on the related Mortgaged Property and related collateral, any and all modifications, waivers, amendments or consents to or with respect to the related Joint Mortgage Loan documents, and any and all instruments of satisfaction or cancellation, or of full release or discharge, and all other comparable instruments with respect to the related Repurchased Note or related Repurchased Notes and the related

-324-

Mortgaged Property all in accordance with, and subject to, the terms of this Agreement. Each Repurchasing Mortgage Loan Seller agrees to furnish, or cause to be furnished, to the applicable Master Servicer and the applicable Special Servicer any powers of attorney or other documents necessary or appropriate to enable such Master Servicer or such Special Servicer, as the case may be, to carry out its servicing and administrative duties under this Agreement related to the applicable Joint Mortgage Loan; provided, that such Repurchasing Mortgage Loan Seller shall not be liable, and shall be indemnified by the applicable Master Servicer or the applicable Special Servicer, as applicable, for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer, as the case may be; provided, further, that the applicable Master Servicer or the applicable Special Servicer, without the written consent of the applicable Repurchasing Mortgage Loan Seller, shall not initiate any action in the name of such Repurchasing Mortgage Loan Seller without indicating its representative capacity or take any action with the intent to cause and that actually causes, such Repurchasing Mortgage Loan Seller to be registered to do business in any state.

(j)           Pursuant to the related Mortgage Loan Purchase Agreement, the applicable Repurchasing Mortgage Loan Seller is required to deliver to the applicable Master Servicer or the applicable Special Servicer, as applicable, the Mortgage Loan documents related to the applicable Repurchased Note, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or otherwise available at law or equity with respect to the related Repurchased Note.

Section 3.31    [RESERVED].

Section 3.32    Litigation Control.  (a) With respect to any Serviced Mortgage Loan, any Serviced Companion Loan or any related REO Loan or related REO Property, the applicable Special Servicer shall, in accordance with the Servicing Standard, direct, manage, prosecute and/or defend any action brought by a Mortgagor, guarantor, or other obligor on the related Note or any Affiliates thereof (each a “Borrower-Related Party”) against the Trust, any Master Servicer and/or any Special Servicer or any predecessor master servicer or special servicer, and represent the interests of the Trust in any litigation relating to the rights and obligations of the Trust, or of the Mortgagor or other Borrower-Related Party under the related Mortgage Loan documents, or with respect to the related Mortgaged Property or other collateral securing such Mortgage Loan (or Serviced Whole Loan), or otherwise with respect to the enforcement of the obligations of a Borrower-Related Party under the related Mortgage Loan documents (“Trust-Related Litigation”). In the event that any Master Servicer is named in any Trust-Related Litigation but no Special Servicer is named in such Trust-Related Litigation (regardless of whether the Trust is named in such Trust-Related Litigation), the applicable Master Servicer shall notify the applicable Special Servicer of such litigation as soon as practicable but in any event no later than within ten (10) Business Days of such Master Servicer receiving service of such Trust-Related Litigation. The Operating Advisor shall not be required to review the actions of the applicable Special Servicer with respect to Trust-Related Litigation unless such review is otherwise related to the performance of the Operating Advisor’s duties, rights and obligations in respect of a Final Asset Status Report and/or Asset Status Report.

-325-

(b)          To the extent a Master Servicer is named in the Trust-Related Litigation, and neither the Trust nor a Special Servicer is named, in order to effectuate the role of the applicable Special Servicer as contemplated by the immediately preceding subsection, such Master Servicer shall (i) provide monthly status reports to the applicable Special Servicer regarding such Trust-Related Litigation; (ii) seek to have the Trust replace such Master Servicer as the appropriate party to the lawsuit; and (iii) so long as such Master Servicer remains a party to the lawsuit, consult with and act at the direction of the applicable Special Servicer with respect to decisions and resolutions related to the interests of the Trust in such Trust-Related Litigation, including but not limited to the selection of counsel; provided that such Master Servicer shall have the right to engage separate counsel relating to claims against such Master Servicer to the extent set forth in Section 3.32(e); and provided, however, that if there are claims against such Master Servicer and such Master Servicer has not determined that separate counsel is required for such claims, such counsel shall be reasonably acceptable to such Master Servicer.

(c)          No Special Servicer shall (i) undertake (or direct any Master Servicer to undertake) any material settlement of any Trust-Related Litigation or (ii) initiate any material Trust-Related Litigation unless and until it has notified in writing the Directing Certificateholder (only if the related Mortgage Loan is not an Excluded Loan and prior to the occurrence and continuance of a Consultation Termination Event) (to the extent the identity of the Directing Certificateholder is actually known to such Special Servicer; provided that such Special Servicer shall make due inquiry of the Certificate Administrator as to the identity of the Directing Certificateholder) and the related holder of any Serviced Companion Loan (if such matter affects such related Serviced Companion Loan) (to the extent the identity of the holder of such Serviced Companion Loan is actually known to such Special Servicer) and the Directing Certificateholder (only if the related Mortgage Loan is not an Excluded Loan and prior to the occurrence and continuation of a Control Termination Event) has not objected in writing within five (5) Business Days of having been notified thereof and having been provided with all information that the Directing Certificateholder has reasonably requested with respect thereto promptly following its receipt of the subject notice (it being understood and agreed that if such written objection has not been received by such Special Servicer within such 5 Business Day period, then the Directing Certificateholder shall be deemed to have approved the taking of such action); provided that, if the applicable Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders and, with respect to a Serviced Whole Loan, the related Companion Holders, such Special Servicer may take such action without waiting for the Directing Certificateholder’s response.

(d)          Notwithstanding the foregoing, no Special Servicer or Master Servicer shall follow any advice, direction or consultation provided by the Directing Certificateholder or the Risk Retention Consultation Party (or any other party to this Agreement) that would require or cause such Special Servicer or Master Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing Standard, require or cause such Special Servicer or Master Servicer, as applicable, to violate provisions of this Agreement, require or cause such Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan or Serviced Whole Loan, expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, cause any REMIC created hereunder to fail to qualify as a REMIC, result in the imposition of a “prohibited transaction” or “prohibited

-326-

contribution” tax under the REMIC Provisions or materially expand the scope of such Special Servicer’s or Master Servicer’s, as the case may be, responsibilities under this Agreement.

(e)          Notwithstanding the right of a Special Servicer to represent the interests of the Trust in Trust-Related Litigation, and subject to the rights of such Special Servicer to direct the applicable Master Servicer’s actions in this Section 3.32, such Master Servicer shall retain the right to make determinations relating to claims against such Master Servicer, including but not limited to the right to engage separate counsel and to appear in any proceeding on its own behalf in such Master Servicer’s reasonable discretion, the cost of which shall be subject to indemnification as and to the extent provided in this Agreement.

(f)          Further, nothing in this section shall require a Master Servicer to take or fail to take any action which, in such Master Servicer’s good faith and reasonable judgment, may (i) result in a violation of the REMIC Provisions or (ii) subject such Master Servicer to liability or materially expand the scope of such Master Servicer’s obligations under this Agreement.

(g)          Notwithstanding any Master Servicer’s right to make determinations relating to claims against such Master Servicer, the applicable Special Servicer shall have the right at any time in accordance with the Servicing Standard to (i) direct such Master Servicer to settle any claims asserted against such Master Servicer (whether or not the Trust or the applicable Special Servicer is named in any such claims or Trust-Related Litigation) (and with respect to any material settlements with respect to any Mortgage Loan other than an Excluded Loan, with the consent or consultation of the Directing Certificateholder prior to a Control Termination Event or Consultation Termination Event, respectively) and (ii) otherwise reasonably direct the actions of such Master Servicer relating to claims against such Master Servicer (whether or not the Trust or the applicable Special Servicer is named in any such claims or Trust-Related Litigation), provided in either case that (A) such settlement or other direction does not require any admission of liability or wrongdoing on the part of such Master Servicer, (B) the cost of such settlement or any resulting judgment is and shall be paid by the Trust and payment of such cost or judgment is provided for in this Agreement, (C) such Master Servicer is and shall be indemnified as and to the extent provided in this Agreement for all costs and expenses of such Master Servicer incurred in defending and settling the Trust-Related Litigation and for any judgment, (D) any such action taken by such Master Servicer at the direction of the applicable Special Servicer shall be deemed (as to such Master Servicer) to be in compliance with the Servicing Standard and (E) the applicable Special Servicer provides such Master Servicer with assurance reasonably satisfactory to such Master Servicer as to the items in clauses (A), (B) and (C).

(h)          In the event both a Master Servicer and a Special Servicer or Trust are named in Trust-Related Litigation, such Master Servicer and Special Servicer shall cooperate with each other to afford such Master Servicer and Special Servicer the rights afforded to such party in this Section 3.32.

This Section 3.32 shall not apply in the event the applicable Special Servicer authorizes the applicable Master Servicer, and such Master Servicer agrees (both authority and agreement to be in writing), to make certain decisions or control certain Trust-Related Litigation on behalf of the Trust in accordance with the Servicing Standard.

-327-

Notwithstanding the foregoing, (i) in the event that any action, suit, litigation or proceeding names the Trustee in its individual capacity, or in the event that any judgment is rendered against the Trustee in its individual capacity, the Trustee, upon prior written notice to the applicable Master Servicer or the applicable Special Servicer, as the case may be, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (ii) in the event of any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or Mortgaged Properties, no Master Servicer or Special Servicer shall, without the prior written consent of the Trustee, (A) initiate an action, suit, litigation or proceeding in the name of the Trustee, whether in such capacity or individually, (B) engage counsel to represent the Trustee, or (C) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other similar actions with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state (provided that no Master Servicer or Special Servicer shall be responsible for any delay due to the unwillingness of the Trustee to grant such consent); and (iii) in the event that any court finds that the Trustee is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Trustee shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests, whether as Trustee or individually (but not to otherwise direct, manage or prosecute such litigation or claim); provided, however, that nothing in this subsection shall be interpreted to preclude the applicable Special Servicer (with respect to any material Trust-Related Litigation with respect to any Mortgage Loan other than an Excluded Loan, with the consent or consultation of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event or Consultation Termination Event, respectively, to the extent required in Section 3.32(c), respectively) from initiating any action, suit, litigation or proceeding in its name as representative of the Trustee of the Trust.

Section 3.33    Delivery of Excluded Information to the Certificate Administrator. Any Excluded Information that a Master Servicer, a Special Servicer or the Operating Advisor identifies and delivers to the Certificate Administrator for posting to the Certificate Administrator’s Website shall be delivered to the Certificate Administrator via e-mail (or such other electronic means as is mutually acceptable to the parties) in one or more separate files labeled “Excluded Information” followed by the applicable loan name and loan file to cmbsexcludedinformation@wellsfargo.com. For the avoidance of doubt, any information that is not appropriately labeled and delivered in accordance with this Section 3.33 shall not be separately posted as Excluded Information on the Certificate Administrator’s Website, and any information appropriately labeled and delivered to the Certificate Administrator pursuant to this Section 3.33 shall be posted on the Certificate Administrator’s Website under the “Excluded Information” section, as provided under Section 3.13. When so posted, the Excluded Controlling Class Holders shall be prohibited from the access of Excluded Information with respect to any Excluded Controlling Class Loans on the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans). Each applicable Master Servicer, each applicable Special Servicer and the Operating Advisor shall have no obligations to separately label and deliver any Excluded Information in accordance with this

-328-

Section 3.33 until such party has received written notice with respect to the related Excluded Controlling Class Loan in the form of Exhibit P-1E to this Agreement. Nothing set forth in this Agreement shall prohibit the Directing Certificateholder or any Controlling Class Certificateholder from receiving, requesting or reviewing any Excluded Information relating to any Excluded Controlling Class Loan with respect to which the Directing Certificateholder or such Controlling Class Certificateholder is not a Borrower Party and, if such Excluded Information is not available on the Certificate Administrator’s Website on account of it constituting Excluded Information, such Directing Certificateholder or Controlling Class Certificateholder that is not a Borrower Party with respect to the related Excluded Controlling Class Loan shall be permitted to obtain such information in accordance with Section 4.02(f) of this Agreement.

[End of Article III]

Article IV

DISTRIBUTIONS TO CERTIFICATEHOLDERS

Section 4.01    Distributions.

(a)           Distributions of Available Funds. On each Distribution Date, to the extent of the Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to each Class of Lower-Tier Regular Interests (other than the LRR Uncertificated Interest), and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

(i)            first, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class A-SB Certificates, the Class X-A Certificates, the Class X-B Certificates, the Class X-D Certificates, the Class X-F Certificates, the Class X-G Certificates, the Class X-H Certificates and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest, Class A-4-X1 Upper-Tier Regular Interest, Class A-4-X2 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-5-X1 Upper-Tier Regular Interest and Class A-5-X2 Upper-Tier Regular Interest pro rata (based upon their respective Interest Distribution Amounts for such Distribution Date), in respect of interest, up to an amount equal to the aggregate Interest Distribution Amount in respect of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests for such Distribution Date;

(ii)           second, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the Class A-SB Certificates and the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, in reduction of the Certificate Balances thereof: (I) prior to the Cross-Over Date (1) first, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount, until the outstanding Certificate Balance of the

-329-

Class A-SB Certificates has been reduced to the Class A-SB Planned Principal Balance for such Distribution Date; (2) second, to the Holders of the Class A-1 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clause (1) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-1 Certificates has been reduced to zero; (3) third, to the Holders of the Class A-2 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1) and (2) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-2 Certificates has been reduced to zero; (4) fourth, to the Holders of the Class A-3 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2) and (3) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-3 Certificates has been reduced to zero; (5) fifth, to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3) and (4) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-4 Upper-Tier Regular Interest has been reduced to zero; (6) sixth, to the Grantor Trust in respect of the Class A-5 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4) and (5) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-5 Upper-Tier Regular Interest has been reduced to zero; and (7) seventh, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4), (5) and (6) above have been made on such Distribution Date), until the outstanding Certificate Balance of the Class A-SB Certificates has been reduced to zero; and (II) on or after the Cross-Over Date, to the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-SB Certificates, Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest, pro rata (based on their respective Certificate Balances) in an amount equal to the Principal Distribution Amount for such Distribution Date, until the Certificate Balance of each of the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-SB Certificates, Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest is reduced to zero;

(iii)          third, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the Class A-SB Certificates, and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, up to an amount equal to, and pro rata based upon, first, in an amount equal to the aggregate unreimbursed Realized Losses previously allocated to each such Class, and then, in an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

(iv)          fourth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest and the Class A-S-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance

-330-

with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

(v)           fifth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class A-S Upper-Tier Regular Interest has been reduced to zero;

(vi)         sixth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

(vii)        seventh, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest and the Class B-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

(viii)        eighth, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class B Upper-Tier Regular Interest has been reduced to zero;

(ix)          ninth, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

(x)           tenth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

(xi)          eleventh, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class C Upper-Tier Regular Interest has been reduced to zero;

-331-

(xii)         twelfth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest;

(xiii)        thirteenth, to the Holders of the Class D Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

(xiv)         fourteenth, to the Holders of the Class D Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class D Certificates has been reduced to zero;

(xv)          fifteenth, to the Holders of the Class D Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

(xvi)        sixteenth, to the Holders of the Class E Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

(xvii)       seventeenth, to the Holders of the Class E Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class E Certificates has been reduced to zero;

(xviii)      eighteenth, to the Holders of the Class E Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

(xix)         nineteenth, to the Holders of the Class F Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

(xx)          twentieth, to the Holders of the Class F Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class F Certificates has been reduced to zero;

(xxi)         twenty-first, to the Holders of the Class F Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

-332-

(xxii)        twenty-second, to the Holders of the Class G Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

(xxiii)       twenty-third, to the Holders of the Class G Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class G Certificates has been reduced to zero;

(xxiv)       twenty-fourth, to the Holders of the Class G Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class;

(xxv)       twenty-fifth, to the Holders of the Class H Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

(xxvi)       twenty-sixth, to the Holders of the Class H Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (reduced by any prior distributions thereof hereunder), until the outstanding Certificate Balance of the Class H Certificates has been reduced to zero;

(xxvii)      twenty-seventh, to the Holders of the Class H Certificates, first, up to an amount equal to the unreimbursed Realized Losses previously allocated to such Class, and then, up to an amount equal to interest on that amount at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class; and

(xxviii)     twenty-eighth, to the Holders of the Class R Certificates in respect of the Class UR Interest, the amount, if any, of the Available Funds remaining in the Upper-Tier REMIC Distribution Account with respect to such Distribution Date.

If, in connection with any Distribution Date, the Certificate Administrator has reported the amount of an anticipated distribution to DTC based on the receipt of payments as of the Determination Date and additional Periodic Payments, balloon payments or unscheduled principal payments are subsequently received by the applicable Master Servicer and required to be part of the Aggregate Available Funds for such Distribution Date, such Master Servicer shall promptly notify the Certificate Administrator and the Certificate Administrator will use commercially reasonable efforts to cause DTC to make the revised distribution on a timely basis on such Distribution Date. Each applicable Master Servicer, each applicable Special Servicer and the Certificate Administrator shall not be liable or held responsible for any resulting delay in the making of such distribution to Certificateholders solely on the basis of the actions described in the preceding sentence.

-333-

Amounts distributable or otherwise allocable to any Exchangeable Upper-Tier Regular Interest set forth above will be distributed to the corresponding Classes of Exchangeable Certificates in accordance with their Class Percentage Interests therein pursuant to Section 5.11.

(b)          Distributions of Retained Certificate Available Funds. On each Distribution Date, to the extent of the Retained Certificate Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to the LRR Uncertificated Interest, and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

(i)            first, to the Holders of the RR Interest, in respect of interest, up to an amount equal to the Retained Certificate Interest Distribution Amount for such Distribution Date;

(ii)          second, to the Holders of the RR Interest, in reduction of the Certificate Balance thereof, an amount equal to the Retained Certificate Principal Distribution Amount for such Distribution Date, until the outstanding Certificate Balance of the RR Interest has been reduced to zero; and

(iii)         third, to the Holders of the RR Interest, up to an amount equal to the Retained Certificate Realized Loss Distribution Amount for such Distribution Date;

provided, however, that to the extent any Retained Certificate Available Funds remain in the Upper-Tier REMIC Distribution Account after applying amounts as set forth in clauses (i) – (iii) above, any such amounts so remaining shall be disbursed to the Holders of the Class R Certificates in respect of the Class UR Interest.

(c)          On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to receive distributions in respect of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, in an amount equal to the amount of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, actually distributable to the Holders of the respective Related Certificates or Related Exchangeable Upper-Tier Regular Interests as provided in Sections 4.01(a), 4.01(b), 4.01(d), 4.01(f) and 4.01(i) such that at all times the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests is equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest. On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to receive distributions in respect of interest in an amount equal to the Interest Distribution Amount or Retained Certificate Interest Distribution Amount, as applicable, in respect of each Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest plus a pro rata portion of the Interest Distribution Amount in respect of (i) in the case of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4 and Class LA5 Uncertificated Interests, the Class X-A Certificates, (ii) in the case of the Class LAS and Class LB Uncertificated Interests, the Class X-B Certificates, (iii) in the case of the Class LD and Class LE Uncertificated Interests, the Class X-D Certificates, (iv) in the case of the Class LF Uncertificated Interest, the Class X-F Certificates, (v) in the case of the Class LG Uncertificated Interest, the Class X-G

-334-

Certificates or (vi) in the case of the Class LH Uncertificated Interest, the Class X-H Certificates, in each case, computed based on an interest rate equal to the excess of the Weighted Average Net Mortgage Rate over the Pass-Through Rate of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest and a notional amount equal to its related Lower-Tier Principal Amount, in each case to the extent actually distributable thereon as provided in Section 4.01(a) or 4.01(b), as applicable. Amounts distributable pursuant to this paragraph are referred to herein collectively as the “Lower-Tier Distribution Amount”, and shall be made by the Certificate Administrator by deeming such Lower-Tier Distribution Amount to be withdrawn from the Lower-Tier REMIC Distribution Account to be deposited in the Upper-Tier REMIC Distribution Account.

As of any date, the principal balance of each Lower-Tier Regular Interest shall equal the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest with respect thereto, as adjusted for the allocation of Realized Losses and Retained Certificate Realized Losses, as provided in Sections 4.04(b) and 4.04(c). The initial principal balance of each Lower-Tier Regular Interest shall equal the respective Original Lower-Tier Principal Amount. The Pass-Through Rate with respect to each Lower-Tier Regular Interest for any Distribution Date shall be the Weighted Average Net Mortgage Rate for such Distribution Date.

Any amount that remains in the Lower-Tier REMIC Distribution Account on each Distribution Date after distribution of the Lower-Tier Distribution Amount and distribution of Prepayment Premiums and Yield Maintenance Charges pursuant to Section 4.01(e) shall be distributed to the Holders of the Class R Certificates in respect of the Class LR Interest (but only to the extent of the Aggregate Available Funds for such Distribution Date remaining in the Lower-Tier REMIC Distribution Account, if any).

(d)         After the Certificate Balance of any Class of Certificates has been reduced to zero, such Class shall not be entitled to any further distributions in respect of interest or principal other than reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, and other amounts provided for in this Section 4.01.

(e)          Funds on deposit in the Distribution Account on each Distribution Date that represent Prepayment Premiums or Yield Maintenance Charges received by the Trust with respect to any Mortgage Loan or REO Loan (but excluding any related Companion Loan) during the related Collection Period, in each case net of any Liquidation Fees or Workout Fees payable therefrom, shall be distributable as follows: if any Yield Maintenance Charge or Prepayment Premium is collected during any particular Collection Period with respect to any Mortgage Loan, then on the Distribution Date corresponding to that Collection Period, the Certificate Administrator shall pay that Yield Maintenance Charge or Prepayment Premium (net of Liquidation Fees or Workout Fees payable therefrom) in the following manner:

(i)           to the Non-Retained Certificates, in the following amounts:

(A)      to each Class of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1,

-335-

Class C-2, Class D and Class E Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) the related Base Interest Fraction for such Class of Certificates and the applicable principal prepayment, and (3) a fraction, the numerator of which is equal to the amount of principal distributed to such Class of Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date;

(B)      to the Class A-4-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-4-1 Certificates and the applicable principal prepayment;

(C)      to the Class A-4-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-4-2 Certificates and the applicable principal prepayment;

(D)      to the Class A-5-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-5 Certificates and the applicable principal

-336-

prepayment and (ii) the Base Interest Fraction for the Class A-5-1 Certificates and the applicable principal prepayment;

(E)      to the Class A-5-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-5 Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-5-2 Certificates and the applicable principal prepayment;

(F)       to the Class A-S-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-S-1 Certificates and the applicable principal prepayment;

(G)      to the Class A-S-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class A-S-2 Certificates and the applicable principal prepayment;

(H)      to the Class B-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3,

-337-

Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class B-1 Certificates and the applicable principal prepayment;

(I)       to the Class B-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class B-2 Certificates and the applicable principal prepayment;

(J)       to the Class C-X1 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class C-1 Certificates and the applicable principal prepayment;

(K)      to the Class C-X2 Certificates, the product of (1) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (2) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date and (3) the difference between (i) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (ii) the Base Interest Fraction for the Class C-2 Certificates and the applicable principal prepayment;

-338-

(L)      to the Class X-A Certificates, the excess, if any, of (1) the product of (i) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium and (ii) a fraction, the numerator of which is equal to the total amount of principal distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates and the Class A-5 Exchangeable Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date, over (2) the total amount of such Yield Maintenance Charge or Prepayment Premium distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates and the Class A-5 Exchangeable Certificates as described above;

(M)     to the Class X-B Certificates, the excess, if any, of (1) the product of (i) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium and (ii) a fraction, the numerator of which is equal to the total amount of principal distributed to the Class A-S Exchangeable Certificates and the Class B Exchangeable Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates for that Distribution Date, over (2) the total amount of such Yield Maintenance Charge or Prepayment Premium distributed to the Class A-S Exchangeable Certificates and the Class B Exchangeable Certificates as described above; and

(N)      to the Class X-D Certificates, any remaining portion of the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium not distributed as described above in this clause (i); and

(ii)          to the RR Interest, the Required Credit Risk Retention Percentage of such Yield Maintenance Charge or Prepayment Premium.

For purposes of the first paragraph of this Section 4.01(e), the relevant “Base Interest Fraction” in connection with any Principal Prepayment of any Mortgage Loan that provides for the payment of a Yield Maintenance Charge or Prepayment Premium, and with respect to any Class of Principal Balance Certificates (other than the RR Interest), shall be a fraction (A) the numerator of which is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on such Class for the related Distribution Date, and (ii) the applicable Discount Rate and (B) the denominator of which is the difference between (i) the Mortgage Rate on such Mortgage Loan and (ii) the applicable Discount Rate; provided that: (a) under no circumstances will the Base Interest Fraction be greater than 1.0; (b) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is greater than or equal to the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction

-339-

will equal zero; and (c) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is less than the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction shall be equal to 1.0. If a Mortgage Loan provides for a step-up in the Mortgage Rate, then the Mortgage Rate used in the determination of the Base Interest Fraction will be the Mortgage Rate in effect at the time of the prepayment.

For purposes of the preceding paragraph, the relevant “Discount Rate” in connection with any Prepayment Premium or Yield Maintenance Charge collected on any prepaid Mortgage Loan or REO Loan and distributable on any Distribution Date shall be a rate per annum equal to (i) if a discount rate was used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, such discount rate (as reported by the applicable Master Servicer), converted (if necessary) to a monthly equivalent yield, or (ii) if a discount rate was not used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, the yield calculated by the linear interpolation of the yields (as reported under the heading “U.S. Government Securities/Treasury Constant Maturities” in Federal Reserve Statistical Release H.15 (519) published by the Federal Reserve Board for the week most recently ended before the date of the relevant prepayment (or deemed prepayment) of U.S. Treasury constant maturities with a maturity date, one longer and one shorter, most nearly approximating the related Stated Maturity Date (in the case of a Mortgage Loan or REO Loan that is not related to an ARD Loan) or the related Anticipated Repayment Date (in the case of a Mortgage Loan or REO Loan that is related to an ARD Loan)), such interpolated yield converted to a monthly equivalent yield. If Federal Reserve Statistical Release H.15 (519) is no longer published, the Certificate Administrator shall select a comparable publication as the source of the applicable yields of U.S. Treasury constant maturities.

No Yield Maintenance Charge or Prepayment Premium shall be distributed to the Class X-F, Class X-G, Class X-H, Class F, Class G, Class H, Class R or Class V Certificates.

All distributions of Yield Maintenance Charges and Prepayment Premiums made in respect of the respective Classes of Regular Certificates and Exchangeable Certificates on each Distribution Date pursuant to Section 4.01(e) shall first be deemed to be distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Lower-Tier Regular Interests, pro rata based upon the amount of principal distributed in respect of each such Class of Lower-Tier Regular Interests for such Distribution Date pursuant to Section 4.01(c) above.

(f)           On each Distribution Date, the Certificate Administrator shall withdraw amounts from the Gain-on-Sale Reserve Account (other than amounts with respect to a Non-Serviced Mortgage Loan) equal to the Gain-on-Sale Remittance Amount for such Distribution Date. The Certificate Administrator shall deposit such amounts in the Distribution Account for distribution pursuant to Section 4.01(a) to the Holders of the Regular Certificates (other than the RR Interest) and the Exchangeable Upper-Tier Regular Interests (and correspondingly, the Exchangeable Certificates) in order of distribution priority (first deeming such amounts to be distributed with respect to the Related Lower-Tier Regular Interests). Amounts paid in reimbursement of Realized Losses shall not reduce the Certificate Balances of the Classes of Certificates receiving such distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after such distributions shall be applied to offset future Realized Losses with respect to

-340-

the Principal Balance Certificates and related Realized Losses in each case allocable to the Regular Certificates (other than the RR Interest) and the Exchangeable Certificates. Upon termination of the Trust, any amounts remaining in the Gain-on-Sale Reserve Account shall be distributed to the Holders of the Class R Certificates from the Lower-Tier REMIC in respect of the Class LR Interest.

In addition, on each Distribution Date, the Certificate Administrator shall withdraw amounts from the Retained Certificate Gain-on-Sale Reserve Account (other than amounts with respect to a Non-Serviced Mortgage Loan) equal to the Retained Certificate Gain-on-Sale Remittance Amount for such Distribution Date. The Certificate Administrator shall deposit such amounts in the Distribution Account for distribution pursuant to Section 4.01(b) to the Holders of the RR Interest (first deeming such amounts to be distributed with respect to the Related Lower-Tier Regular Interest). Amounts paid in reimbursement of Retained Certificate Realized Losses shall not reduce the Certificate Balance of the RR Interest if it receives such distributions. Any amounts remaining in the Retained Certificate Gain-on-Sale Reserve Account after such distributions shall be applied to offset future Retained Certificate Realized Losses with respect to the RR Interest. Upon termination of the Trust, any amounts remaining in the Retained Certificate Gain-on-Sale Reserve Account shall be distributed to the Holders of the Class R Certificates from the Lower-Tier REMIC in respect of the Class LR Interest.

(g)          All distributions made with respect to each Class of Certificates on each Distribution Date shall be allocated pro rata among the outstanding Certificates in such Class based on their respective Percentage Interests. Except as otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such distributions with respect to each Class on each Distribution Date shall be made to the Certificateholders of the respective Class of record at the close of business on the related Record Date and shall be made by wire transfer of immediately available funds to the account of any such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided the Certificate Administrator with wiring instructions no less than five (5) Business Days prior to the related Record Date (which wiring instructions may be in the form of a standing order applicable to all subsequent Distribution Dates), or otherwise by check mailed to such Certificateholder at its address in the Certificate Register. The final distribution on each Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Certificate) will be made in like manner, but only upon presentation and surrender of such Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Each distribution with respect to a Book-Entry Certificate shall be paid to the Depository, as Holder thereof, and the Depository shall be responsible for crediting the amount of such distribution to the accounts of its Depository Participants in accordance with its normal procedures. Each Depository Participant shall be responsible for disbursing such distribution to the Certificate Owners that it represents and to each indirect participating brokerage firm (a “brokerage firm” or “indirect participating firm”) for which it acts as agent. Each brokerage firm shall be responsible for disbursing funds to the Certificate Owners that it represents. None of the Trustee, the Certificate Administrator, the Certificate Registrar, the Depositor, any Master Servicer, any Special Servicer or the Underwriters shall have any responsibility therefor except as otherwise provided by this Agreement or applicable law.

-341-

(h)        Except as otherwise provided in Section 9.01, whenever the Certificate Administrator expects that the final distribution with respect to any Class of Certificates (determined without regard to any possible future reimbursement of any amount of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Class of Certificates) will be made on the next Distribution Date, the Certificate Administrator shall, no later than the related P&I Advance Determination Date, post on the Certificate Administrator’s Website pursuant to Section 3.13(b) a notice in electronic format to the effect that:

(i)         the Certificate Administrator expects that the final distribution with respect to such Class of Certificates will be made on such Distribution Date but only upon presentation and surrender of such Certificates at the offices of the Certificate Registrar or such other location therein specified; and

(ii)        no interest shall accrue on such Certificates from and after such Distribution Date.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section 4.01(h) shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust hereunder by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.01(h).

(i)         Distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to the Regular Certificates and Exchangeable Certificates shall be made in the amounts and manner specified in Section 4.01(a), Section 4.01(b) or Section 4.01(d), as applicable, to the Holders of the respective Class otherwise entitled to distributions of interest and principal on such Class on the relevant Distribution Date; provided that all distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to a Class of Certificates which has since been retired shall be to the prior Holders that surrendered the Certificates of such Class upon retirement thereof and shall be made by check mailed to the address of each such prior Holder last shown in the Certificate Register. Notice of any such distribution to a prior Holder shall be made in accordance with Section 13.05 at such last address. The amount of the distribution to each such prior Holder shall be based upon the aggregate Percentage Interest evidenced by the Certificates surrendered thereby.

-342-

If the check mailed to any such prior Holder is returned uncashed, then the amount thereof shall be set aside and held uninvested in trust for the benefit of such prior Holder, and the Certificate Administrator shall attempt to contact such prior Holder in the manner contemplated by Section 4.01(h) as if such Holder had failed to surrender its Certificates.

(j)         On each Distribution Date, any Excess Interest received during the related Collection Period with respect to any ARD Loans shall be distributed (i) to the Holders of the Excess Interest Certificates in an amount equal to the Non-Retained Percentage of such Excess Interest and (ii) to the Holders of the RR Interest in an amount equal to the Required Credit Risk Retention Percentage of such Excess Interest, in each case, from the Excess Interest Distribution Account. Excess Interest will not be available to pay any other amounts except for distributions on Excess Interest Certificates and the RR Interest as set forth in the prior sentence.

(k)        On each Serviced Whole Loan Remittance Date, with respect to any Serviced Companion Loan, the Companion Paying Agent shall make withdrawals and payments from the Companion Distribution Account for each Companion Loan in the following order of priority:

(i)         to pay to the applicable Master Servicer for deposit into the applicable Collection Account, as applicable, any amounts deposited by such Master Servicer in the Companion Distribution Account not required to be deposited therein;

(ii)        to the extent permitted under the related Intercreditor Agreement and not otherwise previously reimbursed, to pay the Trustee or the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05, to the extent any such amounts relate solely to a Serviced Whole Loan related to such Companion Loan, and such amounts are to be paid by the related Companion Holder pursuant to the related Intercreditor Agreement;

(iii)       to pay all amounts remaining in the Companion Distribution Account related to such Serviced Companion Loan to the related Companion Holder, in accordance with the related Intercreditor Agreement; and

(iv)       to clear and terminate the Companion Distribution Account at the termination of this Agreement pursuant to Section 9.01.

All distributions from the Companion Distribution Account required hereunder shall be made by the Companion Paying Agent to the related Companion Holder by wire transfer in immediately available funds on each Serviced Whole Loan Remittance Date (and on each additional date required by this Agreement or the related Intercreditor Agreement) to the account of such Companion Holder or an agent therefor appearing on the Serviced Companion Noteholder Register on the related Record Date (or, if no such account so appears or information relating thereto is not provided at least five (5) Business Days prior to the related Record Date, by check sent by first class mail to the address of such Companion Holder or its agent appearing on the Serviced Companion Noteholder Register). Any such account shall be located at a commercial bank in the United States.

-343-

On the final Remittance Date, each Master Servicer shall withdraw from its Collection Account and deliver to the Certificate Administrator who shall distribute to the Mortgage Loan Sellers, any Loss of Value Payments relating to the Mortgage Loans that it is servicing and that were transferred from the Loss of Value Reserve Fund to its Collection Account on the immediately preceding Remittance Date.

Section 4.02        Distribution Date Statements; CREFC^® Investor Reporting Packages; Grant of Power of Attorney.(a) On each Distribution Date, the Certificate Administrator shall make available pursuant to Section 3.13(b) on the Certificate Administrator’s Website to any Privileged Person a statement (substantially in the form set forth as Exhibit G hereto and based in part upon information supplied to the Certificate Administrator in the related CREFC^® Investor Reporting Package in accordance with CREFC^® guidelines) as to the distributions made on such Distribution Date (each, a “Distribution Date Statement”) which shall include:

(i)         the amount of the distribution on such Distribution Date to the Holders of each Class of Certificates in reduction of the Certificate Balance thereof;

(ii)        the aggregate amount of Advances made, with respect to the pool of Mortgage Loans, during the period from but not including the previous Distribution Date to and including such Distribution Date and details of P&I Advances as of the P&I Advance Date;

(iii)       the aggregate amount of compensation paid to the Trustee and the Certificate Administrator, servicing compensation paid to the applicable Master Servicer and the applicable Special Servicer, compensation paid to the Operating Advisor, compensation paid to the Asset Representations Reviewer and CREFC^® Intellectual Property Royalty License Fees paid to CREFC^®, in each case, with respect to the Collection Period for such Determination Date together with detailed calculations of servicing compensation paid to such Master Servicer and such Special Servicer;

(iv)       the aggregate Stated Principal Balance of the Mortgage Loans and any REO Loans (but excluding any related Companion Loans), with respect to the pool of Mortgage Loans, outstanding immediately before and immediately after such Distribution Date;

(v)        the aggregate amount of unscheduled payments received;

(vi)       the number of loans, their aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans, as of the end of the related Collection Period for such Distribution Date;

(vii)      the number and aggregate principal balance of the Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 days to 120 days, (D) current but specially serviced or in foreclosure but not an REO Property and (E) for which the related Mortgagor is subject to oversight by a bankruptcy court;

(viii)     the value of any REO Property (and, with respect to any Serviced Whole Loan, the trust’s interest therein) included in the Trust Fund as of the end of the related

-344-

Determination Date for such Distribution Date, on a loan-by-loan basis, based on the most recent Appraisal or valuation;

(ix)        the Available Funds and Retained Certificate Available Funds for such Distribution Date;

(x)         the (A) Interest Distribution Amount, Interest Accrual Amount and Interest Shortfall or (B) Retained Certificate Interest Distribution Amount, as applicable, in respect of such Class of Certificates for such Distribution Date, separately identifying any Interest Distribution Amount, Interest Accrual Amount, Interest Shortfall or Retained Certificate Interest Distribution Amount, as applicable, for such Distribution Date allocated to such Class of Certificates;

(xi)        the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates allocable to (A) Yield Maintenance Charges, (B) in the case of the Class V Certificates and the RR Interest, Excess Interest and (C) Prepayment Premiums;

(xii)       the Pass-Through Rate for such Class of Certificates for such Distribution Date and the next succeeding Distribution Date;

(xiii)      the Scheduled Principal Distribution Amount and the Unscheduled Principal Distribution Amount for such Distribution Date, with respect to the pool of Mortgage Loans;

(xiv)      the Certificate Balance or Notional Amount, as the case may be, of each Class of Certificates immediately before and immediately after such Distribution Date, separately identifying any reduction therein as a result of the allocation of any Realized Loss or Retained Certificate Realized Loss, as applicable, on such Distribution Date and the aggregate amount of all reductions as a result of allocations of Realized Losses or Retained Certificate Realized Losses, as applicable, in respect of the Principal Balance Certificates (other than the RR Interest) and the RR Interest, respectively, to date;

(xv)      the Certificate Factor for each Class of Certificates (other than the Class R and Class V Certificates) immediately following such Distribution Date;

(xvi)     the amount of any Cumulative Appraisal Reduction Amounts effected (including, with respect to any Serviced Whole Loan, the amount allocable to the related Mortgage Loan and Serviced Companion Loan) in connection with such Distribution Date on a loan-by-loan basis;

(xvii)    the current Controlling Class;

(xviii)   the number and related Stated Principal Balance of any Mortgage Loans extended or modified since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) on a loan-by-loan basis;

-345-

(xix)      a loan-by-loan listing of each Mortgage Loan which was the subject of a Principal Prepayment since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) and the amount and the type of Principal Prepayment occurring;

(xx)       a loan-by-loan listing of each Mortgage Loan which was defeased since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

(xxi)      all deposits into, withdrawals from, and the balance of the Interest Reserve Account on the P&I Advance Date;

(xxii)     in the case of the Class R Certificates, the amount of any distributions on such Certificates pursuant to Sections 4.01(a), 4.01(b), 4.01(c) and 4.01(f);

(xxiii)    the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates in reimbursement of previously allocated Realized Losses or Retained Certificate Realized Losses, as applicable;

(xxiv)    the aggregate unpaid principal balance of the Mortgage Loans outstanding as of the close of business on the related Determination Date, with respect to the pool of Mortgage Loans;

(xxv)     with respect to any Mortgage Loan as to which a Liquidation Event occurred since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) or prior to the related Determination Date (other than a payment in full), (A) the loan number thereof, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with such Liquidation Event (separately identifying the portion thereof allocable to distributions on the Certificates), (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in connection with such Liquidation Event, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in connection with such Liquidation Event;

(xxvi)    with respect to any REO Property (including, with respect to any Non-Serviced Whole Loan, the Trust’s interest therein) included in the Trust as to which the applicable Special Servicer determined, in accordance with the Servicing Standard, that all payments or recoveries with respect to the Mortgaged Property have been ultimately recovered since the previous Determination Date, (A) the loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Certificates), (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in respect of the related REO Loan in connection with that determination, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in respect of the related REO Loan in connection with that determination;

-346-

(xxvii)   the aggregate amount of interest on P&I Advances paid to the applicable Master Servicer and the Trustee since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date), with respect to the pool of Mortgage Loans;

(xxviii) exchanges of Exchangeable Certificates that took place since the last Distribution Date and the designations of the applicable Classes that were exchanged or, if applicable, that no such exchanges have occurred;

(xxix)    the then-current credit support levels for each Class of Certificates;

(xxx)     the aggregate amount of Prepayment Premiums and Yield Maintenance Charges on the Mortgage Loans (each separately identified) collected since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

(xxxi)    a loan-by-loan listing of any material modification, extension or waiver of a Mortgage Loan;

(xxxii)   a loan-by-loan listing of any material breach of the representations and warranties given with respect to a Mortgage Loan by the applicable Mortgage Loan Seller;

(xxxiii)  an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, which information will be provided to the Certificate Administrator by the applicable Master Servicer; and

(xxxiv)  the amount of any Excess Interest actually received.

In the case of information furnished pursuant to clauses (i), (ix), (x), (xi), (xiv), (xxiii), (xxiv) and (xxxiv) above, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per Definitive Certificate.

The Certificate Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information only by virtue of its receipt and posting of such information to the Certificate Administrator’s website.

Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate, a statement containing the information set forth in clauses (i) and (x) above as to the applicable Class, aggregated for such calendar year or applicable portion thereof during which person was a Certificateholder, together with such other information as the Certificate Administrator deems necessary or desirable, or that a Certificateholder or Certificate Owner reasonably requests, to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.

Upon receipt of an Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall

-347-

(i) include such Asset Review Report Summary in Item 1B on the Form 10-D for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

(b)        [RESERVED].

(c)        Each applicable Master Servicer and each applicable Special Servicer may, at its sole cost and expense, make available by electronic media, bulletin board service or Internet website (in addition to making information available as provided herein) any reports or other information such Master Servicer or such Special Servicer, as applicable, is required or permitted to provide to any party to this Agreement, the Rating Agencies or any Certificateholder or any prospective Certificateholder that has provided such Master Servicer or such Special Servicer, as applicable, with an Investor Certification or has executed a “click-through” confidentiality agreement in accordance with Section 3.13 (which may be a licensed or registered investment advisor) to the extent such action does not conflict with the terms of this Agreement (including without limitation, any requirements to keep Privileged Information confidential), the terms of the Mortgage Loans or applicable law. Notwithstanding this paragraph, the availability of such information or reports on the Internet or similar electronic media shall not be deemed to satisfy any specific delivery requirements in this Agreement except as set forth herein. In connection with providing access to the applicable Master Servicer’s Internet website, such Master Servicer shall take reasonable measures to ensure that only such parties listed above may access such information including, without limitation, requiring registration, a confidentiality agreement and acceptance of a disclaimer. No Master Servicer or Special Servicer, as the case may be, shall be liable for dissemination of this information in accordance with this Agreement, and no Master Servicer or Special Servicer shall be responsible for any information delivered, produced, or made available pursuant to Section 3.13 and Section 4.02(a), other than information produced by such Master Servicer or such Special Servicer, as applicable; provided that such information otherwise meets the requirements set forth herein with respect to the form and substance of such information or reports. The applicable Master Servicer shall be entitled to attach to any report provided pursuant to this Section 4.02(c), any reasonable disclaimer with respect to information provided, or any assumptions required to be made by such report.

Each Special Servicer shall from time to time (and, in any event, as may be reasonably required by the applicable Master Servicer) provide the applicable Master Servicer with such information in its possession regarding the Specially Serviced Loans and REO Properties as may be necessary for the applicable Master Servicer to prepare each report and any supplemental information to be provided by the applicable Master Servicer to the Certificate Administrator. None of the Certificate Administrator, the Trustee or the Depositor shall have any obligation to recompute, verify or recalculate the information provided thereto by the applicable Master Servicer. Unless the Certificate Administrator has actual knowledge that any report or file received from such Master Servicer contains erroneous information, the Certificate Administrator is authorized to rely thereon in calculating and making distributions to Certificateholders in accordance with Section 4.01, preparing the Distribution Date Statement required by Section 4.02(a) and allocating Realized Losses and/or Retained Certificate Realized Losses, as applicable, to the Certificates in accordance with Section 4.04.

-348-

Notwithstanding the foregoing, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed pursuant to this Section 4.02(c) or Section 4.02(d) shall not constitute a breach of this Section 4.02(c) or of Section 4.02(d) to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or the Mortgaged Properties. The applicable Master Servicer or the applicable Special Servicer may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

(d)        Upon the written request of a Certificateholder, any beneficial owner of a Certificate, or any prospective purchaser of a Certificate that is a Qualified Institutional Buyer and is designated by a Certificateholder or a beneficial owner of a Certificate as such and, in any case, has delivered an Investor Certification to the Depositor and the Certificate Administrator, as soon as reasonably practicable, at the expense of the requesting party, the Certificate Administrator shall make available to the requesting party such information that is in the Certificate Administrator’s possession or can reasonably be obtained by the Certificate Administrator as is requested by such person, for purposes of satisfying applicable reporting requirements under Rule 144A under the Securities Act. Neither the Certificate Registrar, nor the Certificate Administrator shall have any responsibility for the sufficiency under Rule 144A or any other securities laws of any available information so furnished to any person including any prospective purchaser of a Certificate or any interest therein, nor for the content or accuracy of any information so furnished which was prepared or delivered to them by another.

(e)        The information to which any Certificateholder is entitled is limited to the information gathered and provided to the Certificateholder by the parties hereto pursuant to this Agreement and by acceptance of any Certificate, each Certificateholder agrees that except as specifically provided herein, no Certificateholder shall contact any Mortgagor directly with respect to any Mortgage Loan.

(f)         Upon the reasonable request of the Directing Certificateholder or any Controlling Class Certificateholder that, in either case, is an Excluded Controlling Class Holder with respect to any Excluded Controlling Class Loan identified to the applicable Master Servicer’s (in the case of a Non-Specially Serviced Loan) or the applicable Special Servicer’s (in the case of a Specially Serviced Loan) reasonable satisfaction (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder) and if such information is in such Master Servicer’s or such Special Servicer’s possession, as applicable, such Master Servicer or such Special Servicer shall provide or make available (or forward electronically) to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder, as applicable) any Excluded Information (available to Privileged Persons through the Certificate Administrator’s Website but not accessible to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, through the Certificate Administrator’s Website because the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, is an Excluded Controlling Class Holder with respect to another Excluded Controlling Class Loan) relating to any Excluded Controlling Class Loan with respect to which the Directing

-349-

Certificateholder or such Controlling Class Certificateholder, as applicable, is not a Borrower Party; provided that, in connection therewith, the applicable Master Servicer or the applicable Special Servicer may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, generally to the effect that such Person is the Directing Certificateholder or a Controlling Class Certificateholder, will keep such Excluded Information confidential and is not a Borrower Party, upon which such Master Servicer or such Special Servicer may conclusively rely. In addition, the applicable Master Servicer and the applicable Special Servicer shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder, as applicable, of an Investor Certification substantially in the form of Exhibit P-1B that the Directing Certificateholder or Controlling Class Certificateholder is not an Excluded Controlling Class Holder with respect to a particular Mortgage Loan. For the avoidance of doubt, the applicable Special Servicer referenced in this Section 4.02(f) shall include any applicable Excluded Special Servicer with respect to the related Excluded Special Servicer Loan(s).

Section 4.03        P&I Advances. (a) On or before 4:00 p.m., New York City time, on each P&I Advance Date, the applicable Master Servicer shall (i) remit to the Certificate Administrator for deposit from its own funds into the Lower-Tier REMIC Distribution Account, an amount equal to the aggregate amount of P&I Advances, if any, with respect to the Mortgage Loans serviced by such Master Servicer to be made in respect of the related Distribution Date, (ii) apply amounts held in the applicable Collection Account, for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made. Any amounts held in the applicable Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer’s records and replaced by such Master Servicer by deposit in the applicable Collection Account on or before the next succeeding P&I Advance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The applicable Master Servicer shall notify the Certificate Administrator of (i) the aggregate amount of P&I Advances to be made by such Master Servicer for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances with respect to Mortgage Loans serviced by such Master Servicer for such Distribution Date, on or before two (2) Business Days prior to such Distribution Date. If the applicable Master Servicer fails to make a required P&I Advance by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on the related Distribution Date, unless such Master Servicer shall have cured such failure (and provided written notice of such cure to the Trustee and the Certificate Administrator) by 11:00 a.m., New York City time, on such Distribution Date. In the event that the applicable Master Servicer fails to make a required P&I Advance hereunder, the Certificate Administrator shall notify the Trustee of such circumstances by 4:30 p.m., New York City time, on the related P&I Advance Date. Notwithstanding the foregoing, the portion of any P&I Advance equal to the CREFC^® Intellectual Property Royalty License Fee shall not be remitted to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account but shall be deposited into the applicable Collection Account for payment to CREFC^® on such Distribution Date.

-350-

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to any Mortgage Loan that is part of a Whole Loan with a related Serviced Companion Loan, then it shall provide to the related other master servicer and Other Trustee under the Other Pooling and Servicing Agreement written notice of the amount of such P&I Advance with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance.

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to a Non-Serviced Mortgage Loan, then it shall provide to the related Non-Serviced Master Servicer and Non-Serviced Trustee written notice of the amount of such P&I Advance within two (2) Business Days of making such P&I Advance.

No Special Servicer shall have an obligation to make any P&I Advance or any recoverability determination with respect to any P&I Advance under this Agreement.

(b)        Subject to Section 4.03(c) and Section 4.03(e) below, the amount of P&I Advances to be made by each Master Servicer with respect to any Distribution Date, and each Mortgage Loan for which it acts as Master Servicer, shall be equal to: (i) the Periodic Payments (net of related Servicing Fees and, in the case of any Non-Serviced Mortgage Loan, a fee accruing at the related Non-Serviced Primary Servicing Fee Rate) other than Balloon Payments, that were due on such Mortgage Loan (including any Non-Serviced Mortgage Loan) and any REO Loan (other than any portion of an REO Loan related to a Companion Loan) for which it acts as Master Servicer during the related Collection Period and were not received as of the close of business on the Business Day preceding the related P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the applicable Master Servicer) and (ii) with respect to each such Mortgage Loan delinquent in respect of its Balloon Payment as of the P&I Advance Date (including any REO Loan (other than any portion of an REO Loan related to a Companion Loan) as to which the related Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to Section 4.03(c) below, the obligation of the applicable Master Servicer to make such P&I Advances is mandatory, and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan), shall continue until the Distribution Date on which the proceeds, if any, received in connection with a Liquidation Event or the disposition of the REO Property, as the case may be, with respect thereto are to be distributed. No P&I Advances shall be made with respect to any Companion Loan.

(c)        Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. With respect to each Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination that a P&I Advance that has been made on such Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Serviced Mortgage Loan independently of any determination made by the applicable Other Servicer or Other Trustee, as the case may be, under the applicable Other Pooling and Servicing Agreement in respect of the related Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the

-351-

applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Other Servicer, as the case may be, that an Other Servicer or the Other Trustee has determined, in accordance with the applicable Other Pooling and Servicing Agreement with respect to a Serviced Companion Loan, that any proposed advance under the applicable Other Pooling and Servicing Agreement that is similar to a P&I Advance would be, or any outstanding advance under such Other Pooling and Servicing Agreement that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Other Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

With respect to each Non-Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination (based on information provided by the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer) that a P&I Advance that has been made on such Non-Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Non-Serviced Mortgage Loan independently of any determination made by the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the Non-Serviced Trustee, as the case may be, under the applicable Non-Serviced PSA in respect of the related Non-Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Non-Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, that either has determined, or the Non-Serviced Trustee has determined, in accordance with the applicable Non-Serviced PSA with respect to a Non-Serviced Companion Loan, that any proposed advance under the applicable Non-Serviced PSA that is similar to a P&I Advance would be, or any outstanding advance under such Non-Serviced PSA that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Non-Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related

-352-

Non-Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Non-Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

(d)        In connection with the recovery of any P&I Advance out of the applicable Collection Account, pursuant to Section 3.05(a), the applicable Master Servicer shall be entitled to pay the Trustee and itself (in that order of priority) as the case may be, out of any amounts then on deposit in the applicable Collection Account (but in no event from any funds allocable to a Serviced Companion Noteholder (unless related thereto), except to the extent permitted pursuant to the terms of the related Intercreditor Agreement), interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such P&I Advance from the date made to but not including the date of reimbursement; provided, however, that no interest will accrue on any P&I Advance (i) if the related Periodic Payment is received on or before the related Due Date has passed and any applicable Grace Period has expired or (ii) if the related Periodic Payment is received after the Determination Date but on or prior to the related P&I Advance Date. The applicable Master Servicer shall reimburse itself and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject to Section 3.17 of this Agreement, as soon as practicably possible after funds available for such purpose are deposited in the applicable Collection Account.

(e)        Notwithstanding the foregoing, (i) neither the applicable Master Servicer nor the Trustee shall make an advance for Excess Interest, Yield Maintenance Charges, Default Interest, late payment charges, Prepayment Premiums, or Balloon Payments or make any P&I Advance with respect to any Companion Loan or any cure payment payable by a holder of an AB Subordinate Companion Loan and (ii) if an Appraisal Reduction Amount has been determined with respect to any Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan, an “appraisal reduction amount” (or similar item) has been made in accordance with the related Non-Serviced PSA and the applicable Master Servicer has notice of such appraisal reduction amount) then in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Mortgage Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (x) the amount of the interest portion of such P&I Advance for such Mortgage Loan for such Distribution Date without regard to this clause 4.03(e)(ii), and (y) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (or, in the case of a Serviced Whole Loan, the portion of such Appraisal Reduction Amount allocated to the related Mortgage Loan), if any, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. For purposes of the immediately preceding sentence, the Periodic Payment due on the Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment for the related Distribution Date.

-353-

(f)         For the avoidance of doubt, each master servicer shall make P&I Advances on the basis of the original terms of any Mortgage Loan, including Mortgage Loans subject to forbearance agreements or other temporary deferrals or payment accommodations, unless (a) the terms of the Mortgage Loan have been permanently modified to reduce or forgive a monetary obligation or (b) such advance has been determined to be non-recoverable.

Section 4.04        Allocation of Realized Losses. (a) On each Distribution Date, immediately following the distributions to be made on such date pursuant to Section 4.01, the Certificate Administrator shall calculate the Realized Loss and Retained Certificate Realized Loss for such Distribution Date. Any allocation of Realized Losses or Retained Certificate Realized Losses to a Class of Regular Certificates or Exchangeable Certificates or Exchangeable Upper-Tier Regular Interest shall be made by reducing the Certificate Balance thereof by the amount so allocated. Any Realized Losses or Retained Certificate Realized Losses so allocated to a Class of Regular Certificates or Exchangeable Certificates shall be allocated among the respective Certificates of such Class of Regular Certificates or Exchangeable Certificates in proportion to the Percentage Interests evidenced thereby. The allocation of Realized Losses or Retained Certificate Realized Losses shall constitute an allocation of losses and other shortfalls experienced by the Trust. Reimbursement of previously allocated Realized Losses and Retained Certificate Realized Losses will not constitute distributions of principal for any purpose and will not result in an additional reduction in the Certificate Balance of the applicable Class of Certificates or Upper-Tier Regular Interest in respect of which any such reimbursement is made. With respect to any Class of Principal Balance Certificates (other than any Exchangeable Certificates) and Exchangeable Upper-Tier P&I Regular Interests, to the extent any Nonrecoverable Advances (plus interest thereon) that were reimbursed from principal collections on the Mortgage Loans and previously resulted in a reduction of the Aggregate Principal Distribution Amount (and corresponding to a reduction of the Principal Distribution Amount and Retained Certificate Principal Distribution Amount) are subsequently recovered on the related Mortgage Loan, the amount of such recovery will be added to the Certificate Balance of the Class or Classes of such Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interests that previously were allocated Realized Losses and Retained Certificate Realized Losses, as applicable, and in the case of Realized Losses, in sequential order according to the priority of payments for such Principal Balance Certificates (other than the RR Interest) and Exchangeable Upper-Tier P&I Regular Interests (and with respect to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable), on a pro rata basis according to the amount of unreimbursed Realized Losses on such Classes), in each case up to the amount of the unreimbursed Realized Losses and Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates or Exchangeable Upper-Tier Regular Interests.

(b)        (i) On each Distribution Date, the Certificate Balances of the Principal Balance Certificates (other than any Exchangeable Certificates and the RR Interest) and the Exchangeable Upper-Tier P&I Regular Interests will be reduced without distribution, as a write-off to the extent of any Realized Losses, if any, allocable to such Certificates or Exchangeable Upper-Tier Regular Interests with respect to such Distribution Date. Any such write-off shall be allocated in Reverse Sequential Order.

-354-

(ii)        On each Distribution Date, the Certificate Balance of the RR Interest will be reduced without distribution, as a write-off to the extent of any Retained Certificate Realized Losses with respect to such Distribution Date.

(iii)       Any Realized Losses applied to the Class A-4, Class A-5, Class A-S, Class B or Class C Upper-Tier Regular Interests shall be allocated to the corresponding Classes of Exchangeable Certificates with Certificate Balances that represent an interest therein pro rata to reduce their Certificate Balances in accordance with their Class Percentage Interests therein.

(c)        With respect to any Distribution Date, any Realized Losses or Retained Certificate Realized Losses allocated to a Class of Principal Balance Certificates (other than any Exchangeable Certificates) or Exchangeable Upper-Tier P&I Regular Interest pursuant to Section 4.04(a) or Section 4.04(b) with respect to such Distribution Date shall reduce the Lower-Tier Principal Amount of the Related Lower-Tier Regular Interest with respect thereto as a write-off.

Section 4.05        Appraisal Reduction Amounts; Collateral Deficiency Amounts. (a) For purposes of (x) determining the Controlling Class (and whether a Control Termination Event has occurred and is continuing) and (y) determining the Voting Rights of the related Classes for purposes of removal of the applicable Special Servicer or the Operating Advisor, Allocated Appraisal Reduction Amounts and Allocated Collateral Deficiency Amounts (with respect to a Serviced Whole Loan, to the extent allocated to the related Mortgage Loan) shall be allocated to each Class of Certificates (other than the RR Interest and any Exchangeable Certificates) and the Exchangeable Upper-Tier Regular Interests in reverse sequential order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class is reduced to zero (i.e., first, to the Class H Certificates, second, to the Class G Certificates, third, to the Class F Certificates, fourth, to the Class E Certificates, fifth, to the Class D Certificates, sixth, to the Class C Upper-Tier Regular Interest, seventh, to the Class B Upper-Tier Regular Interest, eighth, to the Class A-S Upper-Tier Regular Interest, and finally, pro rata based on their respective interest entitlements, to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests). Allocated Appraisal Reduction Amounts and Allocated Collateral Deficiency Amounts allocated to any Exchangeable Upper-Tier Regular Interest as set forth above will be allocated to the Classes of Exchangeable P&I Certificates representing interests therein pro rata in accordance with their respective Class Percentage Interests in such Exchangeable Upper-Tier Regular Interest.

Appraisal Reduction Amounts and Cumulative Appraisal Reduction Amounts allocated to a related Mortgage Loan will be allocated between the RR Interest on the one hand and the Senior Certificates and Subordinate Certificates, on the other hand, based on the Required Credit Risk Retention Percentage and the Non-Retained Percentage, respectively.

As of the first Determination Date following a Mortgage Loan becoming an AB Modified Loan, the applicable Special Servicer shall calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent Appraisal obtained by the applicable Special Servicer with respect to such Mortgage Loan, and all other information relevant to a Collateral Deficiency Amount determination. Upon obtaining knowledge or receipt of notice by the applicable Special Servicer that a Non-Serviced Mortgage

-355-

Loan has become an AB Modified Loan, the applicable Special Servicer shall (i) promptly request from the related Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee the most recent appraisal with respect to such AB Modified Loan, in addition to all other information reasonably required by the applicable Special Servicer to calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, and (ii) as of the first Determination Date following receipt by the applicable Special Servicer of the appraisal and any other information set forth in the immediately preceding clause (i) that the applicable Special Servicer reasonably expects to receive, calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent appraisal obtained by the Non-Serviced Special Servicer with respect to such Non-Serviced Mortgage Loan, and all other information in its possession relevant to a Collateral Deficiency Amount determination. Upon obtaining knowledge or receipt of notice by any other party to this Agreement that a Non-Serviced Mortgage Loan has become an AB Modified Loan, such party shall promptly notify the applicable Special Servicer thereof. Upon reasonable prior written request, the applicable Master Servicer shall provide the applicable Special Servicer with information in its possession or, with respect to Non-Specially Serviced Loans, reasonably obtainable by the applicable Master Servicer that is reasonably required to calculate or recalculate any Collateral Deficiency Amount. Each applicable Master Servicer, the Operating Advisor (unless a Control Termination Event has occurred and is continuing and the applicable Special Servicer has calculated any such Collateral Deficiency Amount), the Trustee and the Certificate Administrator shall not calculate or verify any Collateral Deficiency Amount.

For purposes of determining the Controlling Class and whether a Control Termination Event has occurred and is continuing, Allocated Collateral Deficiency Amounts allocated to an AB Modified Loan will be allocated to each Class of Control Eligible Certificates in Reverse Sequential Order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class of Control Eligible Certificates is reduced to zero. For the avoidance of doubt, for purposes of determining the Controlling Class or the occurrence and continuance of a Control Termination Event, any Class of Control Eligible Certificates shall be allocated both applicable Appraisal Reduction Amounts and applicable Collateral Deficiency Amounts (the sum of which shall constitute the applicable Cumulative Appraisal Reduction Amount), in accordance with this Section 4.05(a), but only to the extent of the Allocated Appraisal Reduction Amounts and Allocated Cumulative Appraisal Reduction Amounts.

With respect to (i) any Appraisal Reduction Amount calculated for the purposes of determining the Voting Rights of the related Classes for purposes of removal of a Special Servicer or Operating Advisor and (ii) any Appraisal Reduction Amount or Collateral Deficiency Amount calculated for purposes of determining the Controlling Class or the occurrence and continuance of a Control Termination Event, the appraised value of the related Mortgaged Property shall be determined on an “as is” basis.

The applicable Special Servicer shall promptly notify the applicable Master Servicer and the Certificate Administrator, to the extent it receives such information, of the amount of any Appraisal Reduction Amount, any Collateral Deficiency Amount and any resulting Cumulative Appraisal Reduction Amount allocated to each Mortgage Loan, AB Modified Loan or Serviced Whole Loan (which notification shall be satisfied through delivery of such Appraisal Reduction Amount as included in the CREFC^® Appraisal Reduction Amount Template included

-356-

in the CREFC^® Investor Reporting Package with respect to the Collateral Deficiency Amount and the Cumulative Appraisal Reduction Amount) and the Certificate Administrator shall promptly post notice of such Appraisal Reduction Amount, Collateral Deficiency Amount and/or Cumulative Appraisal Reduction Amount, as applicable, to the Certificate Administrator’s Website. Based on information in its possession, the Certificate Administrator shall determine from time to time which Class of Certificates is the Controlling Class. Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall notify the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor of such event, including the identity and contact information of the new Controlling Class Certificateholder and the identity of the Controlling Class as set forth in Section 3.23(m) (the cost of obtaining such information from the Depository being an expense of the Trust).

(b)        (i) The Holders of the majority of Voting Rights of any Class of Control Eligible Certificates that is determined at any time of determination to no longer be the Controlling Class because its Certificate Balance has been reduced to less than 25% of its initial Certificate Balance (any such Class, an “Appraised-Out Class”) as a result of an Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) in respect of such Class shall have the right, at their sole expense, to require the applicable Special Servicer to order (or, with respect to a Non-Serviced Mortgage Loan, require the applicable Special Servicer to request from the applicable Non-Serviced Special Servicer) a second Appraisal with respect to any Mortgage Loan (or Serviced Whole Loan) for which an Appraisal Reduction Event has occurred or as to which there exists a Collateral Deficiency Amount (such Holders, the “Requesting Holders”). The applicable Special Servicer shall use its reasonable efforts to cause such second Appraisal to be delivered within thirty (30) days from receipt of the Requesting Holders’ written request and shall cause such Appraisal to be prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the applicable Special Servicer to obtain an additional Appraisal). With respect to any such Non-Serviced Mortgage Loan, the applicable Special Servicer shall use commercially reasonable efforts to obtain such second Appraisal from the applicable Non-Serviced Special Servicer.

In addition, the Requesting Holders of any Appraised-Out Class shall have the right, at their sole expense, to require the applicable Special Servicer to order an additional Appraisal of any Serviced Mortgage Loan as to which there exists a Collateral Deficiency Amount if an event has occurred at, or with respect to, the related Mortgaged Property or Mortgaged Properties that would have a material effect on its or their appraised value. The applicable Special Servicer shall use its reasonable efforts to cause such additional Appraisal to be delivered within thirty (30) days from receipt of the Requesting Holders’ written request and shall cause such Appraisal to be prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the applicable Special Servicer to obtain an additional Appraisal).

(ii)        Upon receipt of any supplemental Appraisal pursuant to clause (i) above, the applicable Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such supplemental Appraisal, any recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) is

-357-

warranted, and if so warranted, such Person shall recalculate the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on such supplemental Appraisal and receipt of information that is in the possession of the Master Servicer and reasonable requested by the Special Servicer from the Master Servicer. If required by such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class and each other Appraised-Out Class shall, if applicable, have its related Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount, Allocated Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable. The Holders of an Appraised-Out Class may not exercise any direction, control, consent and/or similar rights of the Controlling Class until such time, if any, as the Class is reinstated as the Controlling Class (such period beginning upon receipt by the applicable Special Servicer of any request to obtain a supplemental Appraisal pursuant to clause (i) above to but excluding the date on which either (A) the applicable Special Servicer determines that no recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount is warranted or (B) the applicable Special Servicer recalculates the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on the supplemental Appraisal, the “Appraisal Review Period”). The rights of the Controlling Class during each Appraisal Review Period shall be exercised by the next most senior Class of Control Eligible Certificates that is not an Appraised-Out Class, if any.

(c)        With respect to each Serviced Mortgage Loan, and each Serviced Whole Loan as to which an Appraisal Reduction Event has occurred (unless such Mortgage Loan or Serviced Whole Loan has become a Corrected Loan (for such purposes taking into account any amendment or modification of such Mortgage Loan, any related Companion Loan or Serviced Whole Loan)), the applicable Special Servicer shall (1) within thirty (30) days of the occurrence or of each anniversary of the related Appraisal Reduction Event, and (2) upon its determination that the value of the related Mortgaged Property has materially changed, notify the applicable Master Servicer of the occurrence of such anniversary or determination and order an Appraisal (which may be an update of a prior Appraisal), the cost of which shall be paid by such Master Servicer as a Servicing Advance or to the extent it would be a Nonrecoverable Advance, an expense of the Trust, or conduct an internal valuation, as applicable and, promptly following receipt of any such Appraisal or performance of such valuation (or receipt of any Appraisal obtained in accordance with Section 4.05(b)(i) above), shall deliver a copy thereof to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder. Based upon such Appraisal or internal valuation (or any Appraisal obtained in accordance with Section 4.05(b) above) and receipt of information reasonably requested by the applicable Special Servicer from the applicable Master Servicer and necessary to calculate the Appraisal Reduction Amount, the applicable Special Servicer shall determine or redetermine, as applicable, and report to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder, the amount and calculation or recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount with respect to such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, and such report shall be delivered in the CREFC^® Appraisal Reduction Template format; provided, however, that the

-358-

applicable Special Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Master Servicer to provide sufficient information to such Special Servicer to comply with such duties or failure by such Master Servicer to otherwise comply with its obligations hereunder. Following a Master Servicer’s receipt from the applicable Special Servicer of the calculation of the Appraisal Reduction Amounts, such Master Servicer shall provide such information to the Certificate Administrator in the form of the CREFC^® Loan Periodic Update File and the CREFC^® Appraisal Reduction Template provided to it by the applicable Special Servicer, and the Certificate Administrator will calculate the Allocated Appraisal Reduction Amount and the Allocated Cumulative Appraisal Reduction Amount. Such report of the Appraisal Reduction Amount shall also be promptly forwarded by the applicable Special Servicer to the holder of any related Serviced Companion Loan (or if applicable, to the Other Master Servicer of the securitization into which such Serviced Pari Passu Companion Loan has been sold). If the applicable Special Servicer is required to redetermine the Appraisal Reduction Amount or Collateral Deficiency Amount, such redetermined Appraisal Reduction Amount or Collateral Deficiency Amount shall replace the prior Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, with respect to such Mortgage Loan, Companion Loan or Serviced Whole Loan, as applicable. Prior to the occurrence and continuance of a Consultation Termination Event (and unless the related Mortgage Loan is an Excluded Loan as to such party), the applicable Special Servicer shall consult with the Directing Certificateholder with respect to any Appraisal, valuation or downward adjustment in connection with an Appraisal Reduction Amount or Collateral Deficiency Amount. Notwithstanding the foregoing but subject to Section 4.05(b), the applicable Special Servicer will not be required to obtain an Appraisal or conduct an internal valuation, as applicable, with respect to a Mortgage Loan or related Companion Loan or Serviced Whole Loan as to which an Appraisal Reduction Event has occurred to the extent the applicable Special Servicer has obtained an Appraisal or conducted such a valuation (in accordance with requirements of this Agreement), as applicable, with respect to the related Mortgaged Property within the twelve-month period immediately prior to the occurrence of such Appraisal Reduction Event. Instead, the applicable Special Servicer may use such prior Appraisal or valuation, as applicable, in calculating any Appraisal Reduction Amount with respect to such Mortgage Loan or related Companion Loan or Serviced Whole Loan; provided that the applicable Special Servicer is not aware of any material change to the related Mortgaged Property having occurred and affecting the validity of such Appraisal or valuation.

The applicable Master Servicer shall deliver by electronic mail to the applicable Special Servicer any information in its possession or, with respect to Non-Specially Serviced Loans, reasonably obtainable by the applicable Master Servicer that is reasonably required to determine, calculate, redetermine or recalculate any Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, using reasonable efforts to deliver such information, within four (4) Business Days following the applicable Special Servicer’s reasonable request therefor; provided that such Special Servicer’s failure to timely make such request shall not relieve such Master Servicer of its obligation to use reasonable efforts to provide such information to such Special Servicer within four (4) Business Days following such Special Servicer’s reasonable request. The applicable Master Servicer shall not calculate Appraisal Reduction Amounts.

(d)        Any Serviced Mortgage Loan, any related Serviced Companion Loan and any Serviced Whole Loan previously subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, which has become a Corrected Loan (for such purposes taking into

-359-

account any amendment or modification of such Mortgage Loan, any related Serviced Companion Loan and any Serviced Whole Loan, as applicable), and with respect to which no other Appraisal Reduction Event has occurred and is continuing, will no longer be subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount. Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan shall be calculated by the applicable party under and in accordance with and pursuant to the terms of the applicable Non-Serviced PSA.

(e)        Each Serviced Whole Loan will be treated as a single Mortgage Loan for purposes of calculating an Appraisal Reduction Amount with respect to the Mortgage Loan and Companion Loan(s) that comprise such Serviced Whole Loan. Any Appraisal Reduction Amount in respect of a Serviced AB Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, first, to the related AB Subordinate Companion Loan (until its principal balance is notionally reduced to zero by such Appraisal Reduction Amounts) and second, pro rata, between the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans. Any Appraisal Reduction Amount in respect of any Serviced Pari Passu Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, pro rata, between the related Serviced Pari Passu Mortgage Loan and the related Serviced Pari Passu Companion Loan, based upon their respective outstanding principal balances.

Section 4.06        Grantor Trust Reporting. (a) The parties intend that the portions of the Trust Fund constituting the Grantor Trust, shall constitute, and that the affairs of the Grantor Trust shall be conducted so as to qualify such portion as, a “grantor trust” under subpart E, part I of subchapter J of the Code, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, neither the Trustee nor the Certificate Administrator shall have the power to vary the investment of the Holders of the Class V Certificates or the RR Interest in the Grantor Trust so as to improve their rate of return. The Certificate Administrator shall prepare or cause to be prepared, submit to the Trustee for execution (and the Trustee shall timely execute and timely return to the Certificate Administrator) and timely file all Tax Returns in respect of the Grantor Trust. In addition, the Certificate Administrator shall (A) file, or cause to be filed, Internal Revenue Service Form 1041, Form 1099 or such other form as may be applicable with the Internal Revenue Service with copies of the statements in the following clause, (B) furnish, or cause to be furnished, to the Holders of the Class V Certificates and the RR Interest, their allocable share of income and expense with respect to the Excess Interest and Excess Interest Distribution Account, in the time or times and in the manner required by the Code, and (C) furnish, or cause to be furnished, to the Holders of the Exchangeable Certificates, their allocable share of income and expense with respect to the Exchangeable Upper-Tier REMIC Regular Interests, in the time or times and in the manner required by the Code.

(b)        As of the Closing Date, the Grantor Trust is a WHFIT that is a WHMT. The Certificate Administrator shall report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Certificate Administrator to do so is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that Hare & Co. LLC is the only “middleman” as defined in the WHFIT Regulations unless and until the Depositor provides the Certificate Administrator with the identities of other “middlemen” that are Certificateholders. The Certificate Administrator shall be entitled to

-360-

indemnification in accordance with the terms of this Agreement in the event that the Internal Revenue Service makes a determination that the first sentence of this paragraph is incorrect.

(c)        The Certificate Administrator shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available (via its website) WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.

(d)        The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Certificate Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each Holder of a Class V Certificate, an Exchangeable Certificate or an RR Interest, by acceptance of its interest in such Class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of a Class V Certificate, an Exchangeable Certificate or an RR Interest, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.

(e)        To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on an appropriate website the CUSIP for the Class V Certificates or the Exchangeable Certificates. The CUSIP so published shall represent the Rule 144A CUSIP. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent such CUSIP has been received. Absent the receipt of such CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.

Section 4.07        Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool. (a) The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where (i) Certificateholders and beneficial owners of Certificates that are Privileged Persons may submit questions to (A) the Certificate Administrator relating to the Distribution Date Statement, (B) the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports being made available pursuant to Sections 3.13(b) and Section 3.13(d), the Mortgage Loans (excluding any Non-Serviced Mortgage Loan) or the related Mortgaged Properties or (C) the Operating Advisor relating to the Operating Advisor Annual Report or other reports prepared by the Operating Advisor or actions by the applicable Special Servicer referenced in any Operating Advisor Annual Report (each an “Inquiry” and collectively, “Inquiries”), and (ii) Privileged Persons may view Inquiries that have been previously submitted and answered, together with the answers thereto.

-361-

Upon receipt of an Inquiry for the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator or the Operating Advisor, as applicable, and in the case of any Inquiry relating to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer or related Non-Serviced Special Servicer, as applicable, the Certificate Administrator shall forward the Inquiry to the appropriate person (in the case of the General Master Servicer to the following: REAM_InvestorRelations@wellsfargo.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of an Inquiry, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Operating Advisor, as applicable, unless such party determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall be delivered to the Certificate Administrator by electronic mail. In the case of an Inquiry relating to a Non-Serviced Mortgage Loan, the Certificate Administrator shall make reasonable efforts to obtain an answer from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as applicable; provided that the Certificate Administrator shall not be responsible for the content of such answer or any delay or failure to obtain such answer. The Certificate Administrator shall post (within a commercially reasonable period of time following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described above, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, the applicable Mortgage Loan documents or this Agreement, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged Information (subject to the Privileged Information Exception), (vi) that answering the Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or (vii) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor, shall promptly notify the Certificate Administrator of such determination. In addition, no party shall post or otherwise disclose any direct communications with the Directing Certificateholder or the Risk Retention Consultation Party (in its capacity as Risk Retention Consultation Party) as part of its response to any Inquiries. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. Any notice by the Certificate Administrator to the Person who submitted an Inquiry that will not be answered shall include the following statement: “Because the Pooling and Servicing Agreement provides that a Master Servicer, a Special Servicer, the Certificate Administrator and the Operating Advisor shall not answer an Inquiry if it determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described in the Pooling and Servicing Agreement, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law or the applicable Mortgage Loan documents, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional costs or expenses to the Trustee, a Master Servicer, a Special Servicer, the Certificate Administrator or Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged

-362-

Information, or (vi) answering any Inquiry is otherwise, for any reason, not advisable, no inference should or may be drawn from the fact that a Master Servicer, a Special Servicer, the Certificate Administrator or the Operating Advisor has declined to answer the Inquiry.” Answers posted on the Investor Q&A Forum will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Underwriters or any of their respective Affiliates. None of the Underwriters, Depositor, any Master Servicer, any Special Servicer, the Certificate Administrator, the Trustee or the Operating Advisor or any of their respective Affiliates will certify to any of the information posted in the Investor Q&A Forum and no such party shall have any responsibility or liability for the content of any such information. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. The Investor Q&A Forum will not reflect questions, answers and other communications that are not submitted via the Certificate Administrator’s Website. Notwithstanding the foregoing, the Operating Advisor shall not be required to respond to any Inquiries from Certificateholders for which its response would require the Operating Advisor to provide information to such inquiring Certificateholders that they are otherwise not entitled to receive under the terms of this Agreement.

(b)        The Certificate Administrator shall make available to any Certificateholder and any Certificate Owner that is a Privileged Person, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Certificate Owners that are Privileged Persons can register and thereafter obtain information with respect to any other Certificateholder or Certificate Owner that has so registered. Any person registering to use the Investor Registry shall certify that (a) it is a Certificateholder or a Certificate Owner and a Privileged Person and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such certification to persons entitled to access to the Investor Registry. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Certificate Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.

(c)        The 17g-5 Information Provider shall make available, only to NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where NRSROs may (i) submit questions to the Certificate Administrator relating to any Distribution Date Statements, or submit questions to the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports prepared by such parties (each such submission, a “Rating Agency Inquiry”), and (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the responses thereto. In addition, NRSROs may use the forum to submit requests (each such submission also, a “Rating Agency

-363-

Inquiry”) to the applicable Master Servicer for loan-level reports and other related information. Upon receipt of a Rating Agency Inquiry for the applicable Master Servicer or the applicable Special Servicer, the 17g-5 Information Provider shall forward the Rating Agency Inquiry to the appropriate person (in the case of the General Master Servicer to the following: RAInvRequests@wellsfargo.com; and, in the case of the NCB Master Servicer, to the following: BANK2021BNK36@ncb.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of a Rating Agency Inquiry from the 17g-5 Information Provider, the applicable Master Servicer or the applicable Special Servicer, as the case may be, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply by email to the Certificate Administrator. The 17g-5 Information Provider shall post (within a commercially reasonable period of time following receipt of such response) such Rating Agency Inquiry with the related response thereto (or such reports, as applicable) to the Rating Agency Q&A Forum and Document Request Tool. Any reports posted by the 17g-5 Information Provider in response to an inquiry may be posted on a separate website or web page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or any Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege with, or the disclosure of attorney work product, or (iii) (A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, and (B) the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Master Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Rating Agency Inquiry and shall promptly notify the 17g-5 Information Provider by email of such determination. The 17g-5 Information Provider shall promptly thereafter post the Rating Agency Inquiry with the reason it was not answered to the Rating Agency Q&A Forum and Document Request Tool. The 17g-5 Information Provider shall not be liable for the failure by any other such Person to so answer. Questions posted on the Rating Agency Q&A Forum and Document Request Tool shall not be attributed to the submitting NRSRO. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any other person. None of the Underwriters, the Depositor, or any of their respective Affiliates will certify to any of the information posted in the Rating Agency Q&A Forum and Document Request Tool and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications that are not submitted via the 17g-5 Information Provider’s Website.

Section 4.08        Secure Data Room. (a) The Certificate Administrator shall create a Secure Data Room and the Depositor shall, upon the receipt of each Mortgage Loan Seller’s Diligence File Certification and within 120 days following the Closing Date, deliver to the

-364-

Certificate Administrator an electronic copy of the Diligence Files for the Mortgage Loans that have been uploaded by the Mortgage Loan Sellers to the Designated Site. Upon receipt thereof, the Certificate Administrator shall promptly upload the contents of each Diligence File actually received by it to the Secure Data Room. Access to the Secure Data Room shall be granted by the Certificate Administrator to (i) the Asset Representations Reviewer and (ii) any other Person at the direction of the Depositor, in each case, upon the occurrence of an Affirmative Asset Review Vote and receipt by the Certificate Administrator of a certification substantially in the form of Exhibit QQ hereto (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s website). In no case whatsoever shall Certificateholders be permitted to access the Secure Data Room. For the avoidance of doubt, the Certificate Administrator shall be under no obligation to post any documents or information to the Secure Data Room other than the contents of the Diligence Files initially delivered to it by the Depositor.

(b)        The Certificate Administrator shall not have any obligation or duty to verify, review, confirm or otherwise determine whether the type, number or contents of any Diligence File delivered to the Certificate Administrator is accurate, complete, or relates to the transaction or confirm that all documents and information constituting any Diligence File have actually been delivered to the Certificate Administrator. In no case shall the Certificate Administrator be deemed to have obtained actual or constructive knowledge of the contents of, or information contained in, any Diligence File by virtue of posting such Diligence File to the Secure Data Room. In the event that any document or information is posted in error, the Certificate Administrator may remove such document or information from the Secure Data Room. The Certificate Administrator shall not have any obligation to produce physical or electronic copies of any document or information provided to it for posting to the Secure Data Room. The Certificate Administrator shall not be responsible or held liable for any other Person’s use or dissemination of the documents or information contained on the Secure Data Room; provided that such event or occurrence is not also a result of its own negligence, bad faith or willful misconduct. The Certificate Administrator shall not be required to restrict access to the Secure Data Room on a loan-by-loan basis and any Person with access to the Secure Data Room shall covenant to access only the information necessary to perform its duties and responsibilities under this Agreement.

(c)        Upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07, the Certificate Administrator shall transfer electronic copies of the Diligence Files to a successor certificate administrator designated in writing by the Depositor or the applicable Master Servicer, and all costs and expenses associated with the transfer of the Diligence Files shall be payable as part of the costs and expenses associated with the transfer of its responsibilities upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07. Following the date on which any Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust, the applicable Special Servicer may direct the Certificate Administrator in writing to delete the Diligence File related to such Mortgage Loan from the Secure Data Room; provided that absent such direction, the Certificate Administrator shall not be obligated to delete any Diligence File from the Secure Data Room. Following the termination of the Trust pursuant to Section 9.01, the Certificate Administrator shall be permitted to delete all files from the Secure Data Room. Upon deletion, in no event shall the Certificate Administrator be obligated to reproduce or retrieve such deleted files.

-365-

[End of Article IV]

Article V

THE CERTIFICATES

Section 5.01        The Certificates. (a) The Certificates will be substantially in the respective forms annexed hereto as Exhibit A-1 through and including Exhibit A-4, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may, in the reasonable judgment of the Certificate Registrar, be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required by law, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof. The Class X Certificates will be issuable only in minimum Denominations of authorized initial Notional Amount of not less than $1,000,000 and in integral multiples of $1.00 in excess thereof. The Registered Certificates (other than the Class X-A Certificates and Class X-B Certificates) will be issuable only in minimum Denominations of authorized initial Certificate Balance of not less than $10,000, and in integral multiples of $1.00 in excess thereof. The Non-Registered Certificates (other than any Class X Certificates and other than the Class V and Class R Certificates and the RR Interest) will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $100,000, and in integral multiples of $1.00 in excess thereof. The RR Interest will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $1.00, and in integral multiples of $0.01 in excess thereof. If the Original Certificate Balance or initial Notional Amount, as applicable, of any Class (other than the RR Interest) does not equal an integral multiple of $1.00, then a single additional Certificate of such Class may be issued in a minimum denomination of authorized initial Certificate Balance or initial Notional Amount, as applicable, that includes the excess of (i) the Original Certificate Balance or initial Notional Amount, as applicable, of such Class over (ii) the largest integral multiple of $1.00 that does not exceed such amount. The Class R and Class V Certificates shall be issued, maintained and transferred in minimum percentage interests of 10% of such Class R or Class V Certificates and in integral multiples of 1% in excess thereof.

(b)        One authorized signatory shall sign the Certificates for the Certificate Registrar by manual or facsimile signature. If an authorized signatory whose signature is on a Certificate no longer holds that office at the time the Certificate Registrar countersigns the Certificate, the Certificate shall be valid nevertheless. A Certificate shall not be valid until an authorized signatory of the Certificate Registrar (who may be the same officer who executed the Certificate) manually countersigns the Certificate. The signature shall be conclusive evidence that the Certificate has been executed and countersigned under this Agreement.

Section 5.02        Form and Registration. No transfer of any Non-Registered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer (other than one by the Depositor to an Affiliate thereof or by the Initial Purchasers to

-366-

RREF IV Debt AIV, LP) is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, then either:

(a)        Each Class of the Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S under the Act shall initially be represented by a temporary book-entry certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each a “Temporary Regulation S Book-Entry Certificate”), which shall be deposited on the Closing Date on behalf of the purchasers of the Non-Registered Certificates represented thereby with the Certificate Registrar, at its principal trust office, as custodian, for the Depository, and registered in the name of the Depository or the nominee of the Depository for the account of designated agents holding on behalf of Euroclear and/or Clearstream. Prior to the expiration of the 40-day period commencing on the later of the commencement of the offering and the Closing Date (the “Restricted Period”), beneficial interests in each Temporary Regulation S Book-Entry Certificate may be held only through Euroclear or Clearstream. After the expiration of the Restricted Period, a beneficial interest in a Temporary Regulation S Book-Entry Certificate may be exchanged for an interest in the related Regulation S Book-Entry Certificate in the applicable form set forth as an exhibit hereto in accordance with the procedures set forth in Section 5.03(f). During the Restricted Period, distributions due in respect of a beneficial interest in a Temporary Regulation S Book-Entry Certificate shall only be made upon delivery to the Certificate Registrar by Euroclear or Clearstream, as applicable, of a Non-U.S. Beneficial Ownership Certification. After the expiration of the Restricted Period, distributions due in respect of any beneficial interests in a Temporary Regulation S Book-Entry Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the Regulation S Book-Entry Certificate of the same Class is improperly withheld or refused. The aggregate Certificate Balance of a Temporary Regulation S Book-Entry Certificate or a Regulation S Book-Entry Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

On the Closing Date, the Certificate Administrator shall execute, the Authenticating Agent shall authenticate, and the Certificate Administrator shall deliver to the Certificate Registrar the Regulation S Book-Entry Certificates, which shall be held by the Certificate Registrar for purposes of effecting the exchanges contemplated by the preceding paragraph. Wells Fargo Bank, National Association is hereby initially appointed the Authenticating Agent with the power to act, on the Trustee’s behalf, in the authentication and delivery of the Certificates in connection with transfers and exchanges as herein provided. If Wells Fargo Bank, National Association is removed as Certificate Administrator, then Wells Fargo Bank, National Association shall be terminated as Authenticating Agent. If the Authenticating Agent is terminated, the Trustee shall appoint a successor authenticating agent, which may be the Trustee or an Affiliate thereof.

(b)        Certificates of each Class of Non-Registered Certificates (other than any RR Interest during the RR Interest Transfer Restriction Period) offered and sold to Qualified Institutional Buyers in reliance on Rule 144A under the Act (“Rule 144A”) shall be represented by Rule 144A Book-Entry Certificates, which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Balance of a Rule 144A Book-Entry Certificate may from time to time be increased or decreased by

-367-

adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

(c)        Certificates of each Class of Non-Registered Certificates that are initially offered and sold to investors that are Institutional Accredited Investors that are not Qualified Institutional Buyers (the “Non-Book Entry Certificates”) shall be in the form of Definitive Certificates, substantially in the applicable form set forth as an exhibit hereto, and shall be registered in the name of such investors or their nominees by the Certificate Registrar who shall deliver the certificates for such Non-Book Entry Certificates to the respective beneficial owners or owners. For the avoidance of doubt, the Class R and Class V Certificates shall only be in the form of Definitive Certificates, and the RR Interest shall be issued in the form of Definitive Certificates at all times during the RR Interest Transfer Restriction Period.

(d)        Owners of beneficial interests in Book-Entry Certificates of any Class shall not be entitled to receive physical delivery of certificated Certificates unless: (i) the Depository advises the Certificate Registrar in writing that the Depository is no longer willing or able to discharge properly its responsibilities as depository with respect to the Book-Entry Certificates of such Class or ceases to be a Clearing Agency, and the Certificate Registrar and the Depository are unable to locate a qualified successor within ninety (90) days of such notice or (ii) the Trustee has instituted or has been directed to institute any judicial proceeding to enforce the rights of the Holders of such Class and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Certificate Registrar to obtain possession of the Certificates of such Class; provided, however, that under no circumstances will certificated Non-Registered Certificates be issued to beneficial owners of a Temporary Regulation S Book-Entry Certificate. Upon notice of the occurrence of any of the events described in clause (i) or (ii) above with respect to any Certificates of a Class that are in the form of Book-Entry Certificates and upon surrender by the Depository of any Book-Entry Certificate of such Class and receipt from the Depository of instructions for re-registration, the Certificate Registrar shall issue Certificates of such Class in the form of Definitive Certificates (bearing, in the case of a Definitive Certificate issued for a Rule 144A Book-Entry Certificate, the same legends regarding transfer restrictions borne by such Book-Entry Certificate), and thereafter the Certificate Registrar shall recognize the Holders of such Definitive Certificates as Certificateholders under this Agreement. Unless and until Definitive Certificates are issued in respect of a Class of Book-Entry Certificates, beneficial ownership interests in such Class of Certificates will be maintained and transferred on the book entry records of the Depository and Depository Participants, and all references to actions by Holders of such Class of Certificates will refer to action taken by the Depository upon instructions received from the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures and, except as otherwise set forth herein, all references herein to payments, notices, reports and statements to Holders of such Class of Certificates will refer to payments, notices, reports and statements to the Depository or its nominee as the registered Holder thereof, for distribution to the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures.

(e)        Subject to the following provisions, during the RR Interest Transfer Restriction Period, any RR Interest shall only be held as a Definitive Certificate in the Retained Interest Safekeeping Account by the Certificate Administrator (and each Retaining Party’s respective interest shall be tracked in the form of an entry in the Certificate Administrator’s trust

-368-

accounting system under the Retained Interest Safekeeping Account), for the benefit of the Holder of the related Certificate.

The Certificate Administrator shall hold the RR Interest in safekeeping and shall release the Definitive Certificate representing a portion of the requesting Retaining Party’s RR Interest only upon receipt of written instructions from the applicable Holder of the RR Interest and the Retaining Sponsor’s written consent, or in connection with a transfer, in accordance with Section 5.03(i), and in accordance with any authentication procedures as may be utilized by the Certificate Administrator and in accordance with this Agreement. There shall be, and hereby is, established by the Certificate Administrator an account which will be designated the “Retained Interest Safekeeping Account” and into which the RR Interest shall be held and which shall be governed by and subject to this Agreement. In addition, on and after the date hereof, the Certificate Administrator may establish any number of subaccounts to the Retained Interest Safekeeping Account for each Retaining Party. The RR Interest to be delivered in physical form to the Certificate Administrator shall be delivered as set forth herein. No amounts distributable to the RR Interest shall be remitted to the Retained Interest Safekeeping Account, but shall be remitted directly to each Retaining Party in accordance with written instructions provided separately by each Retaining Party to the Certificate Administrator. Under no circumstances by virtue of safekeeping the RR Interest shall the Certificate Administrator be obligated to bring legal action or institute proceedings against any person on behalf of the Retaining Parties. During the RR Interest Transfer Restriction Period and for such longer time as the Retaining Parties may request, the Certificate Administrator shall hold the Definitive Certificate representing the RR Interest at the below location, or any other location; provided the Certificate Administrator has given notice to each of the Retaining Parties of such new location:

Wells Fargo Bank NA 

Attn: Security Control and Transfer (SCAT) – MAC N9345-010 

425 E Hennepin Avenue 

Minneapolis, MN 55414

The Certificate Administrator shall make available to each Retaining Party its respective account information as mutually agreed upon by the Certificate Administrator and each respective Retaining Party, and in accordance with the Certificate Administrator’s policies and procedures. Any transfer of an RR Interest shall be subject to Section 5.03(g) and Section 5.03(i). The Certificate Administrator is directed by the Depositor to enter into a safekeeping account agreement to facilitate the initial settlement and sale of the RR Interest on the Closing Date.

On the Closing Date and upon any transfer of the RR Interest pursuant to Section 5.03(i), the Certificate Administrator shall deliver written confirmation to the Depositor, the Retaining Sponsor and the initial Holder of the RR Interest substantially in the form of Exhibit UU to this Agreement evidencing its receipt of the RR Interest.

Section 5.03        Registration of Transfer and Exchange of Certificates. (a) The Certificate Administrator shall keep or cause to be kept at the Corporate Trust Office books (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided (the Certificate Administrator, in such capacity, being

-369-

the “Certificate Registrar”). In such capacities, the Certificate Administrator shall be responsible for, among other things, (i) maintaining the Certificate Register and a record of the aggregate holdings of Certificates of each Class of Non-Registered Certificates represented by a Temporary Regulation S Book-Entry Certificate, a Regulation S Book-Entry Certificate and a Rule 144A Book-Entry Certificate and accepting Certificates for exchange and registration of transfer, (ii) holding the RR Interest as Definitive Certificates on behalf of each Holder of such Class and (iii) transmitting to the Depositor, each applicable Master Servicer and each applicable Special Servicer any notices from the Certificateholders. No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of Transfer or exchange of any Certificate (other than Definitive Certificates) referred to in this Section 5.03.

(b)        Subject to the restrictions on transfer set forth in this Article V, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

(c)        Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time during the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, or to transfer its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, such holder may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in such Temporary Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit, or cause to be credited, a beneficial interest in the Temporary Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account and (3) a certificate in the form of Exhibit I hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions (who shall be the agent member of Euroclear or Clearstream, or both) a beneficial interest in the Temporary Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

-370-

(d)        Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time following the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the Regulation S Book-Entry Certificate of the same Class, or to transfer its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in a Regulation S Book-Entry Certificate, such holder may, subject to the rules and procedures of the Depository, exchange, or cause the exchange of, such interest for an equivalent beneficial interest in such Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with such increase and (3) a certificate in the form of Exhibit J hereto given by the holder of such beneficial interest stating (A) that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, or (B) that the transferee is otherwise entitled to hold its interest in the applicable Certificates in the form of an interest in the Regulation S Book-Entry Certificate, without any registration of such Certificates under the Act (in which case such certificate shall enclose an Opinion of Counsel to such effect and such other documents as the Certificate Registrar may reasonably require), then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

(e)        Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate. If a holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate of the same Class, or to transfer its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Rule 144A Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, as the case may be, and the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in the Rule 144A Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions from Euroclear or Clearstream, if applicable, and the Depository, directing the Certificate Registrar, as registrar, to credit or cause to be credited a

-371-

beneficial interest in the Rule 144A Book-Entry Certificate equal to the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, (2) with respect to a transfer of an interest in the Regulation S Book-Entry Certificate, information regarding the participant account of the Depository to be debited with such decrease and (3) with respect to a transfer of an interest in the Temporary Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate (i) during the Restricted Period, a certificate in the form of Exhibit K hereto given by the holder of such beneficial interest and stating that the Person transferring such interest in the Temporary Regulation S Book-Entry Certificate reasonably believes that the Person acquiring such interest in the Rule 144A Book-Entry Certificate is a Qualified Institutional Buyer or (ii) after the Restricted Period, an Investment Representation Letter in the form of Exhibit C attached hereto from the transferee to the effect that such transferee is a Qualified Institutional Buyer (an “Investment Representation Letter”) and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Rule 144A Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, and the Certificate Registrar shall instruct the Depository, concurrently with such reduction, to credit, or cause to be credited, to the account of the Person specified in such instructions, a beneficial interest in the Rule 144A Book-Entry Certificate equal to the reduction in the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to debit, or cause to be debited, from the account of the Person making such transfer the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate that is being transferred.

(f)         Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate. Interests in a Temporary Regulation S Book-Entry Certificate as to which the Certificate Registrar has received from Euroclear or Clearstream, as the case may be, a certificate (a “Non-U.S. Beneficial Ownership Certification”) to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit L hereto from the holder of a beneficial interest in such Temporary Regulation S Book-Entry Certificate, shall be exchanged after the Restricted Period, for interests in the Regulation S Book-Entry Certificate of the same Class. The Certificate Registrar shall effect such exchange by delivering to the Depository for credit to the respective accounts of such holders, a duly executed and authenticated Regulation S Book-Entry Certificate, representing the aggregate Certificate Balance of interests in the Temporary Regulation S Book-Entry Certificate initially exchanged for interests in the Regulation S Book-Entry Certificate. The delivery to the Certificate Registrar by Euroclear or Clearstream of the certificate or certificates referred to above may be relied upon by the Depositor and the Certificate Registrar as conclusive evidence that the certificate or certificates referred to therein has or have been delivered to Euroclear or Clearstream pursuant to the terms of this Agreement and the Temporary Regulation S Book-Entry Certificate. Upon any exchange of interests in the Temporary Regulation S Book-Entry Certificate for interests in the Regulation S Book-Entry Certificate, the Certificate Registrar shall endorse the Temporary Regulation S Book-Entry Certificate to reflect the reduction in the Certificate Balance represented thereby by

-372-

the amount so exchanged and shall endorse the Regulation S Book-Entry Certificate to reflect the corresponding increase in the amount represented thereby. Until so exchanged in full and except as provided therein, the Temporary Regulation S Book-Entry Certificate, and the Certificates evidenced thereby, shall in all respects be entitled to the same benefits under this Agreement as the Regulation S Book-Entry Certificate and Rule 144A Book-Entry Certificate authenticated and delivered hereunder.

(g)        Non-Book Entry Certificate to Book-Entry Certificate. If a holder of a Non-Book Entry Certificate (other than (a) a Class R Certificate or (b) an RR Interest during the RR Interest Transfer Restriction Period) wishes at any time to exchange its interest in such Non-Book Entry Certificate for an interest in a Book-Entry Certificate of the same Class, or to transfer all or part of such Non-Book Entry Certificate to a Person who is entitled to take delivery thereof in the form of an interest in a Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, if applicable, and the Depository, cause the exchange of all or part of such Non-Book Entry Certificate for an equivalent beneficial interest in the appropriate Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) such Non-Book Entry Certificate, duly endorsed as provided herein, (2) instructions from such holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Book-Entry Certificate equal to the portion of the Certificate Balance of the Non-Book Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase and (3) a certificate in the form of Exhibit M hereto (in the event that the applicable Book-Entry Certificate is the Temporary Regulation S Book-Entry Certificate), in the form of Exhibit N hereto (in the event that the applicable Book-Entry Certificate is the Regulation S Book-Entry Certificate) or in the form of Exhibit O hereto (in the event that the applicable Book-Entry Certificate is the Rule 144A Book-Entry Certificate), then the Certificate Registrar, as registrar, shall cancel, or cause to be canceled, all or part of such Non-Book Entry Certificate, shall, if applicable, execute, authenticate and deliver to the transferor a new Non-Book Entry Certificate equal to the aggregate Certificate Balance of the portion retained by such transferor and shall instruct the Depository to increase, or cause to be increased, such Book-Entry Certificate by the aggregate Certificate Balance of the portion of the Non-Book Entry Certificate to be exchanged and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Book-Entry Certificate equal to the Certificate Balance of the portion of the Non-Book Entry Certificate so canceled. Upon the written direction of the Depositor (which may be by email to cts.cmbs.bond.admin@wellsfargo.com) or its Affiliate, the Certificate Registrar shall execute any instrument as may be reasonably required by the Depository to effect such exchange.

(h)        Non-Book Entry Certificates on Initial Issuance Only. Subject to the issuance of Definitive Certificates, if and when permitted by Section 5.02(d), and subject to the issuance and transfer of the RR Interest during the RR Interest Transfer Restriction Period in accordance with Section 5.03(i), no Non-Book Entry Certificate shall be issued to a transferee of an interest in any Rule 144A Book-Entry Certificate, Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate or to a transferee of a Non-Book Entry Certificate (or any portion thereof).

-373-

(i)         Transfers of RR Interest.  At all times, if a Transfer of any RR Interest after the Closing Date is to be made, then the following documents shall be delivered to the Certificate Administrator, who will facilitate the transfer in conjunction with the Certificate Registrar who shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon) (A) if such RR Interest is in the possession of the Certificate Administrator, a letter notifying the Certificate Administrator in writing of the Holder of an RR Interest’s intention to transfer such RR Interest from the Retained Interest Safekeeping Account and identifying the transferee, (B) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit D-3, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (C) a certification from the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit D-4, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (D) a completed W-9 by the prospective transferee and (E) contact information and wiring instructions for the prospective transferee. So long as the RR Interest is held by the Certificate Administrator in the Retained Interest Safekeeping Account, upon the completion of any such Transfer during the RR Interest Transfer Restriction Period, the Certificate Administrator shall issue a receipt to such transferor and transferee. Upon receipt of the foregoing certifications, the Certificate Registrar shall, subject to Section 5.02(e) and Section 5.03(a), reflect such RR Interest in the name of the prospective Transferee. For the avoidance of doubt, in no event shall an RR Interest be held as a Book-Entry Certificate during the RR Interest Transfer Restriction Period. Any attempted or purported transfer in violation of this Section 5.03(i) shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

(j)         Other Exchanges. In the event that a Book-Entry Certificate is exchanged for a Definitive Certificate, such Certificates may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of subsections (c) through (f) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S under the Act, at the case may be) and such other procedures as may from time to time be adopted by the Certificate Registrar.

(k)        Restricted Period. Prior to the termination of the Restricted Period with respect to the issuance of the Certificates, transfers of interests in the Temporary Regulation S Book-Entry Certificate to U.S. persons (as defined in Regulation S) shall be limited to transfers made pursuant to the provisions of subsection (e) above.

(l)         If Non-Registered Certificates are issued upon the transfer, exchange or replacement of Certificates bearing a restrictive legend relating to compliance with the Act, or if a request is made to remove such legend on Certificates, the Non-Registered Certificates so issued shall bear the restrictive legend, or such legend shall not be removed, as the case may be, unless there is delivered to the Certificate Registrar such satisfactory evidence, which may include an Opinion of Counsel that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Regulation S under the Act. Upon provision of such satisfactory evidence, the Certificate Registrar shall authenticate and deliver Certificates that do not bear such legend.

-374-

(m)       All Certificates surrendered for registration of transfer and exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with the Certificate Registrar’s customary procedures.

(n)        With respect to the ERISA Restricted Certificates, no sale, transfer, pledge or other disposition (other than any initial transfer to the Initial Purchasers or with respect to the RR Interest, the applicable Retaining Parties) of any such Certificate shall be made unless the Trustee and Certificate Administrator shall have received either (i) a representation letter from the proposed purchaser or transferee of such Certificate substantially in the form of Exhibit F-1 attached hereto, to the effect that such proposed purchaser or transferee is not and will not be (A) an employee benefit plan subject to the fiduciary responsibility provisions of ERISA or a plan subject to Section 4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA) or other plan subject to any federal, state or local law (“Similar Law”) which is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each, a “Plan”) or (B) a person acting on behalf of (including an entity whose underlying assets include Plan assets within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of any such Plan, other than an insurance company using the assets of its general account under circumstances whereby the purchase and holding of such Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 (or, in the case of a Plan subject to Similar Law, under circumstances that would not result in a non-exempt violation of Similar Law) or (ii) if such Certificate is presented for registration in the name of a purchaser or transferee that is any of the foregoing, an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a non-exempt “prohibited transaction” within the meaning of ERISA, Section 4975 of the Code or a non-exempt violation of any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, any Master Servicer, any Special Servicer, any Sub-Servicer, the Initial Purchasers, the Underwriters, the Operating Advisor, the Asset Representations Reviewer or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Agreement. The Trustee and Certificate Administrator shall not register the sale, transfer, pledge or other disposition of any ERISA Restricted Certificate unless the Trustee and Certificate Administrator have received either the representation letter described in clause (i) above or the Opinion of Counsel described in clause (ii) above. The costs of any of the foregoing representation letters or Opinions of Counsel shall not be borne by any of the Depositor, any Master Servicer, any Special Servicer, any Sub-Servicer, the Trustee, the Certificate Administrator, the Initial Purchasers, the Underwriters, the Operating Advisor, the Certificate Registrar, the Asset Representations Reviewer or the Trust. Each Certificate Owner of an ERISA Restricted Certificate shall be deemed to represent that it is not and will not become a Person specified in clauses (i)(A) or (i)(B) above. Any transfer, sale, pledge or other disposition of any ERISA Restricted Certificates that would constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate the provisions of this Section 5.03(n) shall be deemed absolutely null and void ab initio, to the extent permitted under applicable law.

-375-

(o)        No Class R or Class V Certificate may be purchased by or transferred to any prospective purchaser or transferee that is or will be a Plan, or any person acting on behalf of a Plan (including an entity whose underlying assets include Plan assets within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of a Plan to purchase such Class R or Class V Certificate. Each prospective transferee of a Class R or Class V Certificate shall deliver to the transferor and the Certificate Administrator a representation letter, substantially in the form of Exhibit F-2, stating that the prospective transferee is not and will not become a Plan or a person acting on behalf of a Plan (including an entity whose underlying assets include Plan assets within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of a Plan. Any attempted or purported transfer in violation of these transfer restrictions shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

Each Person who has or acquires any Residual Ownership Interest shall be deemed by the acceptance or acquisition of such Residual Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Residual Ownership Interest are expressly subject to the following provisions:

(i)         Each Person acquiring or holding any Residual Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Residual Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Residual Ownership Interest) as a Permitted Transferee. Any acquisition described in the first sentence of this Section 5.03(o) by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void ab initio and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Residual Ownership Interest as soon and as fully as possible.

(ii)        No Residual Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar, and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Residual Ownership Interest, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached as Exhibit D-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or

-376-

fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of this Section 5.03(o) and (y) other than in connection with the initial issuance of a Class R Certificate, require a statement from the proposed transferor substantially in the form attached as Exhibit D-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in its Transferee Affidavit are false.

(iii)       Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, however, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee. Upon notice to the Certificate Registrar that there has occurred a Transfer to any Person that is a Disqualified Organization or an agent thereof (including a broker, nominee or middleman) in contravention of the foregoing restrictions, and in any event not later than sixty (60) days after a request for information from the transferor of such Residual Ownership Interest or such agent, the Certificate Registrar agrees to furnish to the Internal Revenue Service and the transferor of such Residual Ownership Interest or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code, including, but not limited to, the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar, the Certificate Registrar may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, however, that such Persons shall in no event be excused from furnishing such information.

(p)        The Class R Certificates may only be transferred to and owned by Qualified Institutional Buyers.

(q)        Notwithstanding any other provision of this Agreement, the Certificate Administrator shall comply with all federal withholding requirements respecting payments to Certificateholders and other payees of interest or original issue discount that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for such withholding, and the Certificateholders shall be required to provide the Certificate Administrator with such forms and such other information reasonably required by the Certificate Administrator. If the Certificate Administrator does withhold any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Certificate

-377-

Administrator shall indicate the amount withheld to such Person. Such amounts shall be deemed to have been distributed to such Persons for all purposes of this Agreement.

(r)         Notwithstanding any other provision of this Agreement, none of the Depositor, the Trust, any Underwriter, any Initial Purchaser, the Trustee, any Master Servicer, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any of their respective affiliated entities (the “Transaction Parties”) is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the acquisition of any Certificates by any Plan subject to Section 406 of ERISA or Section 4975 of the Code (an “ERISA Plan”) or any person acting on behalf of using the assets of an ERISA Plan. In addition, each beneficial owner of any Certificate or any interest therein that is an ERISA Plan or that is acting on behalf of or using the assets of an ERISA Plan, including any fiduciary purchasing Certificates on behalf of an ERISA Plan (“Plan Fiduciary”) will be deemed to have represented by its acquisition of such Certificate that none of the Transaction Parties has provided any investment recommendation or investment advice on which the ERISA Plan or the Plan Fiduciary has relied in connection with the decision to acquire Offered Certificates, and they are not otherwise acting as a fiduciary (within the meaning of Section 3(21) of ERISA or Section 4975(e)(3) of the Code) to the ERISA Plan in connection with the ERISA Plan’s acquisition of Offered Certificates (unless an applicable prohibited transaction exemption is available to cover the purchase or holding of the Offered Certificates or the transaction is not otherwise prohibited), and (ii) the Plan Fiduciary making the decision to acquire the Offered Certificates is exercising its own independent judgment in evaluating the investment in the Offered Certificates.

Section 5.04        Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of actual notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust. In connection with the issuance of any new Certificate under this Section 5.04, the Certificate Registrar may require the payment of a sum sufficient to cover any expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 5.04 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

Section 5.05        Persons Deemed Owners. Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Certificate Registrar and any agent of any of them shall not be affected by any notice to the contrary; provided, that to the extent that a party to this Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor

-378-

Certification, such party to this Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

Section 5.06        Access to List of Certificateholders’ Names and Addresses; Special Notices. (a) The Certificate Registrar shall maintain in as current form as is reasonably practicable the most recent list available to it of the names and addresses of the Certificateholders. If any Certificateholder that has provided an Investor Certification (i) requests in writing from the Certificate Registrar a list of the names and addresses of Certificateholders, (ii) states that such Certificateholder desires to communicate with other Certificateholders with respect to its rights under this Agreement or under the Certificates and (iii) provides a copy of the communication which Certificateholder proposes to transmit, then the Certificate Registrar shall, within ten (10) Business Days after the receipt of such request, furnish such Certificateholder (at such Certificateholder’s sole cost and expense) a current list of the Certificateholders. In addition, upon written request to the Certificate Administrator of any Certificateholder or Certificate Owner (if applicable) that has provided an Investor Certification, the Certificate Administrator shall promptly notify such Certificateholder or Certificate Owner of the identity of the then-current Directing Certificateholder. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which information was derived. Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and the Depositor shall be entitled to a list of the names and addresses of Certificateholders from time to time upon request therefor.

(b)        (i) The Certificate Administrator shall include in any Form 10-D any written request received in accordance with Section 11.04(a) prior to the Distribution Date to which the Form 10-D relates (and on or after the Distribution Date preceding such Distribution Date) from a Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners related to Certificateholders or Certificate Owners exercising their rights under the terms of this Agreement. Any Form 10-D containing such disclosure (a “Special Notice”) regarding the request to communicate shall include the following and no more than the following (a) the name of the Certificateholder or Certificate Owner making the request, (b) the date the request was received, (c) a statement to the effect that the Certificate Administrator has received such request, stating that such Certificateholder or Certificate Owner is interested in communicating with other Certificateholders or Certificate Owners with regard to the possible exercise of rights under this Agreement, and (d) a description of the method other Certificateholders or Certificate Owners may use to contact the requesting Certificateholder or Certificate Owner. It is hereby understood that a disclosure in substantially the following form shall be deemed to satisfy the requirements in the preceding sentence: “On [date], the Certificate Administrator received from [name], a Certificateholder or Certificate Owner, a request to communicate with other Certificateholders and Certificate Owners in the securitization transaction to which this report on Form 10-D relates (the “Securitization”). The requesting Certificateholder or Certificate Owner is interested in communicating with other Certificateholders and Certificate Owners with regard to the possible exercise of rights under the pooling and servicing agreement governing the Securitization. Other Certificateholders and Certificate Owners may contact the requesting Certificateholder or Certificate Owner at [telephone number], [email address] and/or [mailing address].”

-379-

(ii)        In verifying the identity of any Certificateholder or Certificate Owner in connection with any request to communicate, (i) if the Certificateholder or Certificate Owner is the holder of record with respect to any Certificate, the Certificate Administrator shall not require any further verification or (ii) if the Certificateholder or Certificate Owner is not the holder of record with respect to any Certificate, the Certificate Administrator shall require no more than (x) a written certification from such Certificateholder or Certificate Owner that it is the beneficial owner of a Certificate and (y) one of the following documents confirming ownership of such Certificate: a trade confirmation, an account statement, a letter from a broker-dealer or another document acceptable to the Certificate Administrator that is similar to any of the foregoing documents. The Certificate Administrator shall not have any obligation to verify the information provided by any Certificateholder or Certificate Owner in any request to communicate and may rely on such information conclusively. Additionally, any expenses the Certificate Administrator incurs in connection with any request to communicate will be paid by the Trust.

Section 5.07        Maintenance of Office or Agency. The Certificate Registrar shall maintain or cause to be maintained an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Certificates and this Agreement may be served. The Certificate Registrar initially designates its office at 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415 as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Certificateholders and the Mortgagors of any change in the location of the Certificate Register or any such office or agency.

Section 5.08        Appointment of Certificate Administrator. (a) Wells Fargo Bank, National Association is hereby initially appointed Certificate Administrator in accordance with the terms of this Agreement. If the Certificate Administrator resigns or is terminated, the Trustee shall appoint a successor certificate administrator which may be the Trustee or an Affiliate thereof to fulfill the obligations of the Certificate Administrator hereunder which must satisfy the eligibility requirements set forth in Section 8.06.

(b)        The Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.

(c)        The Certificate Administrator, at the expense of the Trust (but only if such amount constitutes “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith.

(d)        The Certificate Administrator shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.

-380-

(e)        The Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Certificate Administrator of its duties or obligations hereunder.

(f)         The Certificate Administrator shall not be responsible for any act or omission of the Trustee, any Master Servicer, any Special Servicer or the Depositor.

Section 5.09        [RESERVED]

Section 5.10        Voting Procedures. With respect to any matters submitted to Certificateholders for a vote, the Certificate Administrator shall administer such vote through the Depository with respect to Book-Entry Certificates and directly with registered Holders by mail with respect to Definitive Certificates. In each case, such vote shall be administered in accordance with the following procedures, unless different procedures are otherwise described herein with respect to a specific vote:

(a)        Any matter submitted to Certificateholders for a vote shall be announced in a notice prepared by the Certificate Administrator. Such notice shall include the record date determined by the Certificate Administrator for purposes of the vote and a voting deadline which shall be no less than thirty (30) days and no later than sixty (60) days after the date such notice is distributed. The notice and related ballot shall be sent to Holders of Book-Entry Certificates through the Depository and by mail to the registered Holders of Definitive Certificates. In addition, the notice and related ballot shall be posted to the Certificate Administrator’s Website. Notices delivered in this manner shall be considered delivered to all Holders regardless of whether any Holder actually receives the notice and ballot.

(b)        In connection with any vote administered pursuant to this Agreement, voting Holders shall be required to certify their holdings in the manner set forth on the ballot, unless a specific manner is otherwise provided herein. Holders may only vote in accordance with their Voting Rights. Voting Rights with respect to any outstanding Class of Certificates shall be calculated by the Certificate Administrator in accordance with the definition of Voting Rights as of the record date for the vote. Only Classes with an outstanding Certificate Balance greater than zero as of the record date of the vote shall be permitted to vote. Once a Holder has cast its vote, the vote may be changed or retracted on or before the vote deadline. Any changes or retractions shall be communicated by the Certificateholder to the Certificate Administrator in writing on a ballot. After the vote deadline has passed, votes may not be changed or retracted by any Holder unless the Holder wishing to change or retract its vote holds a sufficient portion of the Voting Rights such that the Holder, by its vote alone, could approve or deny the proposition subject to a vote without taking into consideration the votes cast by any other Holder. Transferees or purchasers of any Class of Certificates are subject to and shall be bound by all votes of Holders initiated or conducted prior to its acquisition of such Certificate.

(c)        The Certificate Administrator may take up to fifteen (15) Business Days to tabulate the results of any vote. The Certificate Administrator shall use its reasonable efforts to resolve any illegible or incomplete ballots received prior to the voting deadline. Illegible or incomplete ballots that are received on the voting deadline or that cannot be resolved by the voting

-381-

deadline shall not be counted. Promptly after the votes are tabulated, the Certificate Administrator shall prepare a notice announcing the results of the vote. Such notice shall include the percentage of Voting Rights in favor of the proposition, the percentage against the proposition and the percentage abstaining. In addition, the notice will announce whether the proposition has been adopted by Certificateholders. The notice shall be distributed in accordance with the methods described in Section 5.10(a) above. The Certificate Administrator shall also include such notice on the Form 10-D prepared in connection with the distribution period that corresponds with the date such notice is distributed. All vote tabulations shall be final and the Certificate Administrator shall not, absent manifest error, re-tabulate the votes or conduct a new vote for the same proposition.

(d)        Any and all reasonable expenses incurred by the Certificate Administrator in connection with administering any vote shall be borne by the Trust. The Certificate Administrator is under no obligation to advise Holders about the matter being voted on or answer questions other than process-related questions regarding the administration of the vote.

(e)        If any party to this Agreement believes a vote of Certificateholders is needed for some matter related to the administration of the Trust that is not specifically contemplated herein, such party may request the Certificate Administrator to conduct a vote and the Certificate Administrator will conduct the requested vote in accordance with these procedures. Unless specifically provided herein, all such votes require a majority of Certificateholders to carry a proposition.

Section 5.11        Exchangeable Certificates. (a) On the Closing Date, the Grantor Trust shall issue the several Classes of Exchangeable Certificates. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest. All amounts allocated to an Exchangeable Upper-Tier Regular Interest hereunder, including principal and interest payable thereon and reimbursement of previously allocated Realized Losses (with interest), shall be allocated to the Classes of Exchangeable Certificates representing an interest therein, in proportion to their Class Percentage Interests therein; provided, that the Exchangeable Certificates will be entitled to Prepayment Premiums and Yield Maintenance Charges as described in Section 4.01(e).

(b)        Certificates of each Class of Exchangeable Certificates (each such Class, in connection with any exchange, an applicable “Surrendered Class”) may be exchanged on the books of DTC for Certificates of the corresponding Classes of Exchangeable Certificates set forth next to such Class in the table below (each, an applicable “Received Class”), and vice versa. The Denomination of each of the Received Classes of Certificates must be equal to the Denomination of each of the Surrendered Classes of Certificates. No fee shall be required with respect to any exchange of Exchangeable Certificates. Following any exchange of Certificates of one or more Surrendered Classes for Certificates of one or more Received Classes, the Class Percentage Interests in the Corresponding Exchangeable Upper-Tier Regular Interests that are represented by the Surrendered Classes (and consequently their related Certificate Balances or Notional Amounts) shall be decreased, and those of the Received Classes (and consequently their related Certificate Balances or Notional Amounts) shall be increased. The Certificate Administrator or Certificate

-382-

Registrar, as applicable, shall (i) make the appropriate notation of such exchange on the Certificate Register and on the Book-Entry Certificate for each Class of Exchangeable Certificates involved in such exchange to reflect such reductions and increases and (ii) give appropriate instructions to the Depository to reflect such reductions and increases.

Surrendered Classes (or Received Classes) of Certificates	Received Classes (or Surrendered Classes) of Certificates
Class A-4	Class A-4-1, Class A-4-X1
Class A-4	Class A-4-2, Class A-4-X2
Class A-5	Class A-5-1, Class A-5-X1
Class A-5	Class A-5-2, Class A-5-X2
Class A-S	Class A-S-1, Class A-S-X1
Class A-S	Class A-S-2, Class A-S-X2
Class B	Class B-1, Class B-X1
Class B	Class B-2, Class B-X2
Class C	Class C-1, Class C-X1
Class C	Class C-2, Class C-X2

For example, a Certificateholder holding Class A-S Certificates with a Denomination of $107,588,000 may surrender Class A-S Certificates with a Denomination of $53,794,000 (the Certificates of the applicable Surrendered Class) and receive in exchange Class A-S-1 Certificates with a Denomination of $53,794,000 and Class A-S-X1 Certificates with a Denomination of $53,794,000 (collectively, the Certificates of the applicable Received Classes). In such event, (i) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be reduced from 100% to 50%, (ii) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% to 50%, and (iii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be increased from 0% to 50%.

Similarly a Certificateholder holding Class A-S-1 Certificates with a Denomination of $53,794,000 that seeks to surrender all such Certificates in exchange for Class A-S Certificates will be required to surrender all such Certificates, as well as Class A-S-X1 Certificates with a Denomination of $53,794,000 in order to accomplish such exchange. In such event, (i) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be reduced from 50% to 0%, (ii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be reduced from 50% to 0%, and (iii) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% (assuming no other Class A-S Certificates are then outstanding) to 50%.

(c)        The maximum Certificate Balance or Notional Amount of each Class of Class A-4 Exchangeable Certificates, Class A-5 Exchangeable Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates or Class C Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class A-4, Class A-5, Class A-S, Class B or Class C Upper-Tier Regular Interest, respectively.

-383-

(d)        In order to effect an exchange of Exchangeable Certificates, the Certificateholder shall deliver a notice substantially in the form of Exhibit TT to the Certificate Administrator by e-mail to cts.cmbs.bond.admin@wellsfargo.com (with a subject line referencing “BANK 2021-BNK36” and setting forth the proposed Exchange Date) no later than three (3) Business Days before the proposed exchange date (the “Exchange Date”). The Exchange Date may be any Business Day other than the first or last Business Day of the month. The notice must (i) be set forth on the applicable Certificateholder’s letterhead, (ii) carry a medallion stamp guarantee and (iii) set forth the following information: (x) the CUSIP number, outstanding Certificate Balance or Notional Amount and Original Certificate Balance or Original Notional Amount of each proposed Surrendered Class and of each proposed Received Class; (y) the Certificateholder’s DTC participant number; and (z) the proposed Exchange Date. A notice shall become irrevocable on the second Business Day before the proposed Exchange Date.

(e)        Upon the satisfaction of the conditions to an exchange described in this Section 5.11, the Certificate Administrator shall deliver Certificates of the applicable Received Classes to the requesting Certificateholder. The Certificate Administrator shall reduce the outstanding Certificate Balance(s) or Notional Amount(s) of the Surrendered Classes, and increase the outstanding Certificate Balance(s) or Notional Amount(s) of the Received Classes, on the Certificate Register. The Certificateholder and the Certificate Administrator shall utilize the “deposit and withdrawal system” at the Depository to effect the exchange.

(f)         The Certificate Administrator shall make the first distribution on Certificates of any Received Classes related to an exchange on the Distribution Date in the month following the month of exchange to the Certificateholder of record as of the applicable Record Date for such Certificates and Distribution Date. If an Exchange Date occurs in any month before the Distribution Date in such month, then any distributions to be made on such Distribution Date on Certificates of any Surrendered Classes shall be so made to the Certificateholders of record as of the applicable Record Date for such Certificates and such Distribution Date. Neither the Certificate Administrator nor the Depositor shall have any obligation to ensure the availability in the market of the applicable Certificates to accomplish any exchange.

[End of Article V]

Article VI

THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, the Operating Advisor, the asset representations reviewer, THE DIRECTING CERTIFICATEHOLDER AND THE Risk Retention Consultation Party

Section 6.01        Representations, Warranties and Covenants of each Applicable Master Servicer, each Applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer. (a) Each Master Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Special Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

-384-

(i)         The Master Servicer is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America, and the Master Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

(ii)        The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not (A) violate the Master Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets or (C) violate any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

(iii)       The Master Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Master Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

(vi)       No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer which would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

(vii)      The Master Servicer has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

-385-

(viii)     No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required under federal or state law for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the Master Servicer’s consummation of any transactions contemplated hereby, other than (A) such consents, approvals, authorizations, orders, qualifications, registrations, filings or notices as have been obtained, made or given prior to the actual performance by the Master Servicer of its obligations under this Agreement or (B) where the lack of such consent, approval, authorization, order, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Master Servicer under this Agreement.

(b)        Each Special Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

(i)         The Special Servicer (A) in the case of the General Special Servicer, a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and (B) in the case of NCB Special Servicer, a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and, in each case, the Special Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

(ii)        The execution and delivery of this Agreement by the Special Servicer, and the performance and compliance with the terms of this Agreement by the Special Servicer, do not (A) violate the Special Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Special Servicer or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Special Servicer to perform its obligations under this Agreement or its financial condition;

(iii)       The Special Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of the creditors of national banks or of “financial companies” (as defined in

-386-

Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Special Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

(vi)       No litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer, which would prohibit the Special Servicer from entering into this Agreement or, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

(vii)      The Special Servicer has errors and omissions coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

(viii)     No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Special Servicer of, or compliance by the Special Servicer with, this Agreement or the consummation of the transactions of the Special Servicer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Special Servicer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Special Servicer to perform its obligations hereunder.

(c)        The Operating Advisor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, each Special Servicer, as of the Closing Date, that:

(i)         The Operating Advisor is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and the Operating Advisor is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

(ii)        The execution and delivery of this Agreement by the Operating Advisor, and the performance and compliance with the terms of this Agreement by the Operating Advisor, do not (A) violate the Operating Advisor’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Operating

-387-

Advisor or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or its financial condition;

(iii)       The Operating Advisor has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Operating Advisor, enforceable against the Operating Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Operating Advisor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or the financial condition of the Operating Advisor;

(vi)       The Operating Advisor has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07;

(vii)      No litigation is pending or, to the best of the Operating Advisor’s knowledge, threatened against the Operating Advisor, which would prohibit the Operating Advisor from entering into this Agreement or, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement; and

(viii)     No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Operating Advisor of, or compliance by the Operating Advisor with, this Agreement or the consummation of the transactions of the Operating Advisor contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Operating Advisor of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder.

-388-

(d)        The Asset Representations Reviewer hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Depositor, each Master Servicer, each Special Servicer and the Certificate Administrator, as of the Closing Date, that:

(i)         The Asset Representations Reviewer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Asset Representations Reviewer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

(ii)        The execution and delivery of this Agreement by the Asset Representations Reviewer, and the performance and compliance with the terms of this Agreement by the Asset Representations Reviewer, do not (A) violate the Asset Representations Reviewer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Asset Representations Reviewer or its property is subject, which, in the case of either (B) or (C) above, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or its financial condition;

(iii)       The Asset Representations Reviewer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Asset Representations Reviewer, enforceable against the Asset Representations Reviewer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Asset Representations Reviewer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or the financial condition of the Asset Representations Reviewer;

(vi)       No litigation is pending or, to the best of the Asset Representations Reviewer’s knowledge, threatened against the Asset Representations Reviewer, which

-389-

would prohibit the Asset Representations Reviewer from entering into this Agreement or, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Asset Representations Reviewer to perform its obligations under this Agreement;

(vii)      The Asset Representations Reviewer has errors and omissions coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

(viii)     No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Asset Representations Reviewer of, or compliance by the Asset Representations Reviewer with, this Agreement or the consummation of the transactions of the Asset Representations Reviewer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Asset Representations Reviewer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Asset Representations Reviewer to perform its obligations hereunder; and

(ix)        The Asset Representations Reviewer is an Eligible Asset Representations Reviewer.

(e)        The representations and warranties set forth in paragraphs (a)-(d) above shall survive the execution and delivery of this Agreement. Upon written notice or actual knowledge by any party to this Agreement (or upon written notice thereof from any Certificateholder or any Companion Holder) of a breach of any of the representations and warranties set forth in this Section 6.01 which materially and adversely affects the interests of any party to this Agreement, the Certificateholders, the party discovering such breach shall give prompt written notice to the other parties hereto, each certifying Certificateholder, and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

Section 6.02        Liability of the Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer. The Depositor, each applicable Master Servicer, the Operating Advisor, each applicable Special Servicer and the Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the respective obligations specifically imposed upon and undertaken by the Depositor, such Master Servicer, the Operating Advisor, such Special Servicer and the Asset Representations Reviewer herein.

Section 6.03        Merger, Consolidation or Conversion of the Depositor, a Master Servicer, the Operating Advisor, a Special Servicer or the Asset Representations Reviewer. (a) Subject to 6.03(b) below, each of the Depositor, each applicable Master Servicer and each applicable Special Servicer will keep in full effect its existence, rights and franchises as an entity under the laws of the jurisdiction of its incorporation or organization, and each will obtain and preserve its qualification to do business as a foreign entity in each jurisdiction in which qualification is or shall be necessary to protect the validity and enforceability of this Agreement,

-390-

the Certificates or any of the Mortgage Loans or Companion Loans and to perform its respective duties under this Agreement.

(b)        Each of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets (which may be limited to all or substantially all of its assets related to commercial mortgage loan servicing or commercial mortgage surveillance, as the case may be) to any Person, in which case any Person resulting from any merger or consolidation to which the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, shall be the successor of the Depositor, such Master Servicer, such Special Servicer, the Operating Advisor, or the Asset Representations Reviewer (such Person, in the case of a Master Servicer or a Special Servicer, in each of the foregoing cases, the “Surviving Entity”), as the case may be, hereunder, without the execution or filing of any paper (other than an assumption agreement wherein the successor shall agree to perform the obligations of and serve as the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, as the case may be, in accordance with the terms of this Agreement) or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that with respect to such merger, consolidation or succession, Rating Agency Confirmation is received from each Rating Agency with respect to the Classes of Certificates and, with respect to any class of Serviced Companion Loan Securities, a confirmation is received from each applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates as described in Section 3.25); provided, further, that if a Master Servicer, a Special Servicer or the Operating Advisor enters into a merger and such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, is the surviving entity under applicable law, such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall not, as a result of the merger, be required to provide a Rating Agency Confirmation with respect to ratings of the Classes of Certificates or, with respect to any class of Serviced Companion Loan Securities, a confirmation of the rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings; provided, further, that for so long as the Trust, and, with respect to any Serviced Companion Loan included as part of the trust in a related Other Securitization, is subject to the reporting requirements of the Exchange Act, if such Master Servicer, such Special Servicer or the Operating Advisor notifies the Depositor in writing (a “Merger Notice”) of any such merger, consolidation, conversion or other change in form, and the Depositor or the depositor in such Other Securitization, as the case may be, notifies such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, in writing that the Depositor or the depositor in such Other Securitization, as the case may be, has discovered that such successor entity has not complied with its Exchange Act reporting obligations under any other commercial mortgage loan securitization (and specifically identifying the instance of noncompliance), then it shall be an additional condition to such succession that the Depositor or the depositor in such Other Securitization, as the case may be, shall have consented (which consent shall not be unreasonably withheld or delayed) to such successor entity. Notwithstanding the foregoing, no Master Servicer, Special Servicer or Operating Advisor may remain a Master Servicer, a Special Servicer or Operating

-391-

Advisor, as applicable, under this Agreement after (x) being merged or consolidated with or into any Person that is a Prohibited Party, or (y) transferring all or substantially all of its assets to any Person if such Person is a Prohibited Party, except to the extent (i) such Master Servicer, such Special Servicer or Operating Advisor, as applicable, is the surviving entity of such merger, consolidation or transfer and has been and continues to be in compliance with its Regulation AB reporting obligations hereunder or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld. If, within sixty (60) days following the date of delivery of the Merger Notice to the Depositor or the depositor in such Other Securitization, as the case may be, the Depositor or depositor in such Other Securitization, as the case may be, shall have failed to notify such Master Servicer or such Special Servicer, as applicable, in writing of the Depositor’s determination, or depositor’s determination, in the case of an Other Securitization, to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent. If the conditions to the provisions in the second preceding sentence are not met, the Trustee may terminate, and if the conditions set forth in the third proviso of the third preceding sentence are not met the Trustee shall terminate, the applicable Surviving Entity’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 7.01.

(i)         The Asset Representations Reviewer shall keep in full effect its existence and rights as an entity under the laws of the jurisdiction of its organization, and shall be in compliance with the laws of all jurisdictions to the extent necessary to perform its duties under this Agreement.

(ii)        Any Person into which the Asset Representations Reviewer may be merged or consolidated, or any Person resulting from any merger or consolidation to which the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Asset Representations Reviewer, shall be the successor of the Asset Representations Reviewer hereunder, and shall be deemed to have assumed all of the liabilities and obligations of such Asset Representations Reviewer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the Trustee has received a Rating Agency Confirmation with respect to such successor or surviving Person.

Section 6.04        Limitation on Liability of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and Others. (a) None of the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor, the Asset Representations Reviewer or any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing shall be under any liability to the Trust, the Certificateholders or the Companion Holders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor, the Asset Representations Reviewer or any such Person against any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of such party’s obligations or duties or by reason of negligent disregard of such party’s obligations and duties hereunder. The

-392-

Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and any partner, director, officer, shareholder, member, manager, employee or agent of the Depositor, a Master Servicer (including in its capacity as Companion Paying Agent, if applicable), a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, and any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing may rely on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer, the Operating Advisor and the Non-Serviced Trust (with respect to any Non-Serviced Mortgage Loan, to the extent provided under the related Intercreditor Agreement) and any partner, director, officer, shareholder, member, manager, employee or agent of any of the foregoing shall be indemnified and held harmless by the Trust against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including without limitation reasonable attorneys’ fees and expenses and expenses relating to the enforcement of this indemnity and of investigation, counsel fees, damages, judgments and amounts paid in settlement) incurred in connection with any actual or threatened legal or administrative action (whether in equity or at law) or claim relating to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates, other than any loss, liability or expense: (i) specifically required to be borne thereby pursuant to the terms hereof; (ii) incurred in connection with any breach of a representation or warranty made by it herein; (iii) incurred by reason of bad faith, willful misconduct or negligence in the performance of its obligations or duties hereunder, or by reason of negligent disregard of such obligations or duties; or (iv) in the case of the Depositor and any of its partners, directors, officers, shareholders, members, managers, employees and agents, incurred in connection with any violation by any of them of any state or federal securities law. In addition, absent actual fraud (as determined by a final non-appealable court order), neither the Trustee nor the Certificate Administrator (including in its capacity as Custodian, Certificate Registrar and 17g-5 Information Provider) shall be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action. Each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer and the Operating Advisor conclusively may rely on, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) as contemplated by and in accordance with this Agreement and reasonably believed or in good faith believed by the applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor to be genuine and to have been signed or presented by the proper party or parties and each of them may consult with counsel, in which case any written advice of counsel or Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.

-393-

(b)        None of the Depositor, any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Operating Advisor or the Asset Representations Reviewer shall be under any obligation to appear in, prosecute or defend any legal or administrative action (whether in equity or at law), proceeding, hearing or examination that is not incidental to its respective duties under this Agreement or which in its opinion may involve it in any expense or liability not recoverable from the Trust; provided, however, that each of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor or the Asset Representations Reviewer may in its discretion undertake any such action, proceeding, hearing or examination that it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders (and, in the case of any Serviced Whole Loan, the rights of the Certificateholders and the holders of a Serviced Companion Loan (as a collective whole) taking into account the subordinate or pari passu nature of such Serviced Companion Loan); provided, however, that if a Serviced Whole Loan and/or the holder of any related Companion Loan are involved, such expenses, costs and liabilities will be payable out of funds related to the applicable Serviced Whole Loan in accordance with the related Intercreditor Agreement and will also be payable out of the other funds in the applicable Collection Account if amounts on deposit with respect to such Serviced Whole Loan are insufficient therefor. If any such expenses, costs or liabilities relate to a Mortgage Loan or Companion Loan, then any subsequent recovery on that Mortgage Loan or Companion Loan, as applicable, will be used to reimburse the Trust for any amounts advanced for the payment of such expenses, costs or liabilities. In such event, the legal expenses and costs of such action, proceeding, hearing or examination and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust, and the Depositor, each applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each applicable Special Servicer, the Asset Representations Reviewer and the Operating Advisor shall be entitled to be reimbursed therefor out of amounts attributable to the Mortgage Loans or the Companion Loan on deposit in the applicable Collection Account (including, without duplication, any subaccount thereof), as provided by Section 3.05(a)(xii).

(c)        Each applicable Master Servicer and each applicable Special Servicer, as applicable, agrees to indemnify the Depositor, the Trustee, the related Serviced Companion Noteholder, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable) (in the case of each applicable Special Servicer and any other applicable Master Servicer), the applicable Special Servicer (in the case of each applicable Master Servicer and any other applicable Special Servicer) and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of such Master Servicer or such Special Servicer, as the case may be, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by such Master Servicer or such Special Servicer, as the case may be, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein by such Master Servicer or such Special Servicer, as applicable. The Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately

-394-

notify the applicable Master Servicer or the applicable Special Servicer, as applicable, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall assume the defense of such claim (with counsel reasonably satisfactory to the Trustee, the Certificate Administrator or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless such Master Servicer’s or such Special Servicer’s, as the case may be, defense of such claim is materially prejudiced thereby.

Each applicable Master Servicer and each applicable Special Servicer shall indemnify and hold harmless the Depositor from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the Depositor or its Affiliates that arise out of or are based upon, severally and not jointly (i) a breach by such Master Servicer or such Special Servicer, as applicable, of any obligation it has to deliver information to the 17g-5 Information Provider as set forth in this Agreement, including Section 3.07(a), Section 3.08, Section 3.09(e), Section 3.12, Section 3.17(c) and Section 3.18(g) or (ii) a breach of any obligation it has set forth in Sections 3.13(e), (h) and (j).

(d)        Each of the Trustee and the Certificate Administrator (including in its role as Custodian), respectively agrees to indemnify the Depositor, each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Trustee or the Certificate Administrator, respectively, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Trustee or the Certificate Administrator, respectively, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The Depositor, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Trustee and the Certificate Administrator, respectively, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Trustee or the Certificate Administrator shall assume the defense of such claim (with counsel reasonably satisfactory to the Depositor, such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Asset Representations Reviewer or the Operating Advisor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect

-395-

of such claim. Any failure to so notify the Trustee or the Certificate Administrator shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Trustee’s or the Certificate Administrator’s defense of such claim is materially prejudiced thereby.

(e)        The Depositor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Depositor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Depositor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Depositor if a claim is made by a third party with respect to this Agreement, whereupon the Depositor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable) or such Special Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Depositor shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Depositor’s defense of such claim is materially prejudiced thereby.

(f)         The Operating Advisor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Operating Advisor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Operating Advisor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor, as the case may be, shall immediately notify the Operating Advisor if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Operating Advisor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent), such

-396-

Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Operating Advisor shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Operating Advisor’s defense of such claim is materially prejudiced thereby.

(g)        Neither the Operating Advisor nor its Affiliates or any of the partners, directors, officers, shareholders, members, managers, employees or agents of the Operating Advisor shall be under any liability to any Certificateholder for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Operating Advisor against any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations and duties hereunder.

(h)        The Asset Representations Reviewer agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Asset Representations Reviewer, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Asset Representations Reviewer of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor, as the case may be, shall immediately notify the Asset Representations Reviewer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Asset Representations Reviewer shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Asset Representations Reviewer shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Asset Representations Reviewer’s defense of such claim is materially prejudiced thereby.

(i)         The applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator, Non-Serviced Operating Advisor (if any), Non-Serviced Depositor, Non-Serviced Trustee, and any of their respective partners, directors, officers, shareholders, members, managers, employees or agents (collectively, the “Non-Serviced Indemnified Parties”), shall be indemnified by the Trust and held harmless against the Trust’s pro rata share (subject to the applicable Non-Serviced Intercreditor Agreement) of any and all claims,

-397-

losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred in connection with the servicing and administration of a Non-Serviced Mortgage Loan and the related Non-Serviced Mortgaged Property under the applicable Non-Serviced PSA (as and to the same extent the applicable Non-Serviced Trust is required to indemnify such parties in respect of other mortgage loans in the applicable Non-Serviced Trust pursuant to the terms of the related Non-Serviced PSA).

The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of any Master Servicer (including in its capacity as Companion Paying Agent, if applicable), any Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer.

(j)         For purposes of this Section 6.04 and Section 11.12, a Master Servicer or Special Servicer, as the case may be, will be deemed not to have engaged in willful misconduct or committed bad faith or negligence in the performance of their respective obligations and duties hereunder or acted in negligent disregard of such obligations and duties if such Master Servicer or such Special Servicer, as applicable, fails to follow any terms of any Mortgage Loan documents because such Master Servicer or such Special Servicer, as applicable, in accordance with the Servicing Standard, determines that compliance with such terms would or potentially would cause an Adverse REMIC Event or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code (for which determination such Master Servicer and such Special Servicer will be entitled to rely on advice of counsel, the cost of which will be reimbursed as an additional expense of the Trust).

(k)        The NCB Master Servicer shall indemnify and hold harmless the General Master Servicer and its partners, directors, officers, shareholders, members, managers, employees or agents from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by the General Master Servicer or such Persons in connection with any CREFC^® Schedule AL File prepared by the General Master Servicer that arise out of or are based upon any error, inaccuracy or incompleteness in any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d) or any failure by the NCB Master Servicer to deliver to the General Master Servicer any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File by the time specified in Section 3.12(d).

Section 6.05        Depositor, Master Servicers and Special Servicers Not to Resign. Subject to the provisions of Section 6.03, no Master Servicer or Special Servicer shall resign from its obligations and duties hereby imposed on it except upon (a) determination that such party’s duties hereunder are no longer permissible under applicable law or (b) in the case of a Master Servicer or a Special Servicer, upon the appointment of, and the acceptance of such appointment by, a successor (which may be appointed by the resigning Master Servicer or Special Servicer, as applicable), and receipt by the Certificate Administrator and the Trustee of Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation

-398-

may be considered satisfied with respect to the Certificates pursuant to Section 3.25). Any such determination permitting the resignation of such Master Servicer or such Special Servicer pursuant to clause (a) above shall be evidenced by an Opinion of Counsel (at the expense of the resigning party) to such effect delivered to the Trustee and (prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder. Unless applicable law requires the resignation of such Master Servicer or such Special Servicer (as the case may be) to be effective immediately, and the Opinion of Counsel delivered pursuant to the prior sentence so states, no such resignation by such Master Servicer or such Special Servicer under clause (a) above shall become effective until the Trustee or a successor master servicer or special servicer, as applicable, shall have assumed such Master Servicer’s or such Special Servicer’s, as applicable, responsibilities and obligations in accordance with Section 7.02 and no such resignation by such Master Servicer or such Special Servicer shall become effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Upon any termination (as described in Section 7.01(c)) or resignation of such Master Servicer or such Special Servicer, pursuant to this Section 6.05, such Master Servicer or such Special Servicer, as applicable, shall have the right and opportunity to appoint any successor master servicer or special servicer with respect to this Section 6.05; provided that, such successor master servicer or special servicer shall not be the Asset Representations Reviewer, the Operating Advisor or one of their respective Affiliates and (prior to the occurrence and continuance of a Control Termination Event) such successor special servicer is approved by the Directing Certificateholder, such approval not to be unreasonably withheld. The resigning party shall pay all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 6.05. Except as provided in Section 7.01(c), in no event shall such Master Servicer or such Special Servicer have the right to appoint any successor master servicer or special servicer if such Master Servicer or Special Servicer, as applicable, is terminated or removed pursuant to Section 7.01.

Section 6.06        Rights of the Depositor in Respect of each applicable Master Servicer and Special Servicer. The Depositor may, but is not obligated to, enforce the obligations of any Master Servicer and any Special Servicer hereunder and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of any Master Servicer and any Special Servicer hereunder or exercise the rights of any Master Servicer or any Special Servicer, as applicable, hereunder; provided, however, that any Master Servicer and any Special Servicer shall not be relieved of any of their respective obligations hereunder by virtue of such performance by the Depositor or its designee. The Depositor shall not have any responsibility or liability for any action or failure to act by any Master Servicer or any Special Servicer and is not obligated to supervise the performance of the Trustee, any Master Servicer, the Operating Advisor or any Special Servicer under this Agreement or otherwise.

Section 6.07        Master Servicers and Special Servicers as Certificate Owners. Any Master Servicer, any Special Servicer or any Affiliate thereof may become the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect to) any Certificate with (except as otherwise set forth in the definition of “Certificateholder”) the same rights it would have if it were not a Master Servicer, a Special Servicer or an Affiliate thereof.

-399-

Section 6.08        The Directing Certificateholder and the Risk Retention Consultation Party.(a) (A) Other than with respect to any Serviced AB Whole Loan that is not subject to an AB Control Appraisal Period, for so long as no Control Termination Event has occurred and is continuing, the Directing Certificateholder shall be entitled to advise (1) the applicable Special Servicer, with respect to all Major Decisions for all Serviced Mortgage Loans (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class), (2) the applicable Special Servicer, with respect to all Serviced Mortgage Loans, as to the Special Servicer Decisions described in clauses (iv), (v), (vi) and (vii) of the definition of “Special Servicer Decision”, and (3) the applicable Master Servicer, to the extent the Directing Certificateholder’s consent is required by the applicable clauses of the definition of “Master Servicer Decision”, and shall have the right to replace the applicable Special Servicer with or without cause pursuant to Section 7.01(d) and have certain other rights described below, and (B) the Risk Retention Consultation Party shall (other than with respect to an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest) be entitled to consult on a strictly non-binding basis with the applicable Special Servicer with respect to any Major Decision (provided that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan). For the avoidance of doubt, any consultation with the Risk Retention Consultation Party under this Agreement shall occur only upon the request of the Risk Retention Consultation Party with respect to any individual triggering event, and any such consultation shall be on a strictly non-binding basis and shall be subject to all limitations with respect to the procedures and timing of such consultation set forth in this Section 6.08.

Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, the third and fourth paragraphs of this Section 6.08(a) and Section 6.08(b), for so long as no Control Termination Event has occurred and is continuing, the applicable Special Servicer shall not be permitted to take (x) with respect to any Serviced AB Whole Loan (but only prior to the occurrence and continuance of a Control Appraisal Period), any “major decision” under the related Intercreditor Agreement or (y) any of the following actions with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan (and in the case of clause (xii), a Non-Serviced Mortgage Loan) (each such action described in clause (x) or clause (y), a “Major Decision”) without the Directing Certificateholder’s consent (provided that if such written consent has not been received by such Special Servicer within ten (10) Business Days after the Directing Certificateholder’s receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to the applicable Special Servicer in order to grant or withhold such consent, the Directing Certificateholder will be deemed to have approved such action):

(i)         any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of properties securing any Serviced Mortgage Loan or Serviced Companion Loan that comes into and continues in default;

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

-400-

Payment Accommodations)) of a Serviced Mortgage Loan or Serviced Whole Loan or any extension of the maturity date of such Mortgage Loan or Serviced Whole Loan other than in connection with a maturity default if refinancing or sale is expected within 120 days as provided in clause (viii) of the definition of “Master Servicer Decision”;

(iii)       following a default or an event of default with respect to a Mortgage Loan or Serviced Whole Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or Serviced Whole Loan or initiation of any proceedings, judicial or otherwise, under the related Mortgage Loan documents;

(iv)       any sale of a Defaulted Loan and any related defaulted Companion Loan, or any REO Property (other than in connection with the termination of the Trust) or a defaulted Non-Serviced Mortgage Loan that the applicable Special Servicer is permitted to sell in accordance with Section 3.16(a)(iii) of this Agreement, in each case, for less than the applicable Purchase Price;

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

(vi)       any release of material collateral or any acceptance of substitute or additional collateral for a Serviced Mortgage Loan or Serviced Whole Loan or any consent to either of the foregoing, other than if required pursuant to the specific terms of the related Mortgage Loan documents and for which there is no lender discretion and other than the items listed in clauses (ii), (v) and (xv) of the definition of “Master Servicer Decision”;

(vii)      any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Serviced Mortgage Loan or a Serviced Whole Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor, other than (A) any such transfer as described under clause (xiii) of the definition of “Master Servicer Decision” or any encumbrance as described under clause (xiv) of the definition of “Master Servicer Decision” or (B) solely with respect to an NCB Co-op Mortgage Loan, provided that the NCB Subordinate Debt Conditions have been satisfied with respect thereto (a) the waiver of a “due-on-encumbrance” clause relating to an NCB Co-op Mortgage Loan to permit subordinate debt secured by the related Mortgaged Property and (b) the incurrence of additional indebtedness by a Mortgagor of an NCB Co-op Mortgage Loan;

(viii)     other than in the case of an NCB Co-op Mortgage Loan, any property management company changes with respect to a Mortgage Loan, including without limitation, approval of the termination of a manager and appointment of a new property manager, in each case, if the replacement property manager is a Borrower Party or the Mortgage Loan has an outstanding principal balance equal to or greater than $10,000,000;

(ix)        any franchise changes with respect to a Mortgage Loan for which the lender is required to consent or approve such changes under the related Mortgage Loan documents;

-401-

(x)         other than in the case of any Non-Specially Serviced Loan or any Mortgage Loan secured by a residential cooperative property sold to the Depositor by National Cooperative Bank, N.A., releases of any material amounts from escrow accounts, reserve accounts or letters of credit, in each case held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Serviced Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion, and other than those that are permitted to be undertaken by the applicable Master Servicer without the consent of the applicable Special Servicer hereunder;

(xi)        any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in a Mortgagor or guarantor releasing a Mortgagor or guarantor from liability under a Serviced Mortgage Loan or Serviced Whole Loan other than pursuant to the specific terms of such Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;

(xii)       subject to the proviso at the end of this definition, any modification, amendment, consent to a modification or waiver of any material term of any Intercreditor Agreement or any action to enforce rights (or decision not to enforce rights) with respect thereto; provided, that any such modification or amendment that would adversely impact the applicable Master Servicer shall additionally require the consent of the applicable Master Servicer as a condition to its effectiveness;

(xiii)      agreeing to any modification, waiver, consent or amendment of the related Mortgage Loan or Serviced Whole Loan in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (A) a modification of the type of defeasance collateral required under the Mortgage Loan or Serviced Whole Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the applicable loan documents do not otherwise permit such principal prepayment;

(xiv)     other than with respect to a Non-Specially Serviced Loan, any determination of Acceptable Insurance Default; and

(xv)      any consent to incurrence of additional debt by a Mortgagor or mezzanine debt by a direct or indirect parent of a Mortgagor, to the extent the mortgagee’s approval is required under the related Mortgage Loan documents, other than with respect to an NCB Co-op Mortgage Loan, as to which the NCB Subordinate Debt Conditions have been satisfied;

provided that with respect to any Non-Specially Serviced Loan or any Non-Serviced Mortgage Loan, if the applicable Special Servicer determines, with respect to clause (xii) above, that a modification, amendment or waiver is administrative in nature, including a note splitting amendment, the applicable Special Servicer shall provide written notice of such determination to the applicable Master Servicer, in which case, the applicable Master Servicer shall process such decision and such decision shall be deemed to be a Master Servicer Decision not a Major Decision; provided, further, that the applicable Special Servicer shall make any such determination and

-402-

provide any such notice within two (2) business days of its receipt of a request related to any such decision;

provided, further, that in the event that the applicable Special Servicer or the applicable Master Servicer, as the case may be, determines that immediate action, with respect to the foregoing matters or any Master Servicer Decision, or any other matter requiring consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event in this Agreement (or any matter requiring consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor), is necessary to protect the interests of the Certificateholders (or, with respect to any Serviced Whole Loan, the interest of the Certificateholders and the holders of any related Serviced Companion Loan) (as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans)), the applicable Special Servicer or the applicable Master Servicer, as the case may be, may take any such action without waiting for the Directing Certificateholder’s response (or without waiting to consult with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor, as the case may be); provided that if such matter requires consent of or consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor pursuant to this Agreement, the applicable Special Servicer or the applicable Master Servicer, as the case may be, provides the Directing Certificateholder (or the Operating Advisor, if applicable) and the Risk Retention Consultation Party (if applicable) with prompt written notice following such action including a reasonably detailed explanation of the basis therefor. None of the applicable Master Servicer or the applicable Special Servicer is required to obtain the consent of the Directing Certificateholder for any of the foregoing actions or any other matter requiring consent of the Directing Certificateholder after the occurrence and during the continuance of a Control Termination Event; provided, however, that, after the occurrence and during the continuance of a Control Termination Event, the applicable Special Servicer shall consult with the Directing Certificateholder (only prior to the occurrence and continuance of a Consultation Termination Event) in connection with any Major Decision not relating to an Excluded Loan with respect to the Directing Certificateholder (and any other actions which otherwise require consultation with the Directing Certificateholder prior to the occurrence and continuance of a Consultation Termination Event hereunder) and consider alternative actions recommended by the Directing Certificateholder in respect thereof. Additionally, upon request, the Special Servicer shall consult with the Risk Retention Consultation Party on a non-binding basis (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) in connection with any Major Decision not relating to an Excluded Loan with respect to the Risk Retention Consultation Party and consider alternative actions recommended by the Risk Retention Consultation Party in respect thereof. In the event the applicable Special Servicer receives no response from the Directing Certificateholder or the Risk Retention Consultation Party within ten (10) Business Days following its written request for input on any required consultation, the applicable Special Servicer shall not be obligated to consult with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on the specific matter; provided, however, that the failure of the Directing Certificateholder or the Risk Retention Consultation Party to respond shall not relieve the applicable Special Servicer from consulting with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on any future matters with respect to the applicable Mortgage Loan (other than a Non-Serviced Mortgage Loan or an Excluded Loan with respect to such party) or Serviced Whole Loan. In addition, after a Control Termination Event, the applicable Special Servicer will also be

-403-

required to consult with the Operating Advisor in connection with any proposed Major Decision (and any other actions which otherwise require consultation with the Operating Advisor after the occurrence and during the continuance of a Control Termination Event hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the applicable Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the applicable Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the applicable Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the applicable Mortgage Loan or any other Mortgage Loan. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in this Section 6.08 for consulting with the Operating Advisor.

Subject to the terms and conditions of this Section 6.08(a), the applicable Special Servicer shall process all requests in respect of Specially Serviced Loans and any matter that constitutes a Major Decision or a Special Servicer Decision.

Upon receiving a request for any matter that constitutes a Special Servicer Decision or a Major Decision with respect to a Serviced Mortgage Loan and any Serviced Companion Loan that is not a Specially Serviced Loan, the applicable Master Servicer shall promptly forward such request to the applicable Special Servicer and the applicable Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and the Master Servicer will have no further obligation with respect to such request or the Special Servicer Decision or Major Decision except as provided in the next sentence. With respect to such request, such Master Servicer shall continue to cooperate with reasonable requests of the Special Servicer by delivering any additional information in the Master Servicer’s possession to the Special Servicer that is reasonably requested by the Special Servicer relating to such Special Servicer Decision or Major Decision. Prior to the occurrence of a Consultation Termination Event, the applicable Special Servicer shall promptly forward such request to the Directing Certificateholder together with the Special Servicer’s written recommendation and analysis. The Directing Certificateholder shall promptly provide notice to the applicable Special Servicer of any objection the Directing Certificateholder has to the applicable Special Servicer’s written recommendation and analysis (provided that if such written consent has not been received by the Special Servicer within the applicable time period, then the Directing Certificateholder will be deemed to have approved such action).

In addition, the applicable Master Servicer shall provide the applicable Special Servicer with any notice that it receives relating to a default by the Mortgagor under a Ground Lease where the collateral for the Mortgage Loan is the Ground Lease, and the applicable Special

-404-

Servicer will determine in accordance with the Servicing Standard whether the Trust as lender should cure any Mortgagor defaults relating to Ground Leases. Any costs relating to any such cure of a Mortgagor default relating to a Ground Lease shall be paid by the applicable Master Servicer as a Servicing Advance.

With respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, any Major Decision relating to a Specially Serviced Loan, and (ii) after the occurrence and during the continuance of a Consultation Termination Event, any Major Decision relating to a Mortgage Loan (in each case, other than with respect to an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest), the applicable Special Servicer shall provide copies of any notice, information and report that it is required to provide to the Directing Certificateholder pursuant to this Agreement with respect to such Major Decision to the Risk Retention Consultation Party, within the same time frame it is required to provide such notice, information or report to the Directing Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Directing Certificateholder under this Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event).

In addition, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, for so long as no Control Termination Event has occurred and is continuing, the Directing Certificateholder subject to any rights, if any, of the related Companion Holder to advise the applicable Special Servicer with respect to the related Serviced Whole Loan, pursuant to the terms of the related Intercreditor Agreement, may direct the applicable Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to which provision is otherwise made herein; provided that notwithstanding anything herein to the contrary, no such direction or objection contemplated by the preceding paragraphs of this Section 6.08(a) or this paragraph may require or cause the applicable Master Servicer or applicable Special Servicer to violate any provision of any Mortgage Loan or related Intercreditor Agreement or mezzanine intercreditor agreement, applicable law, this Agreement, or the REMIC Provisions (and, with respect to a Serviced Whole Loan, subject to the rights of the holders of the related Companion Loan), including without limitation the obligation of any Master Servicer and any Special Servicer to act in accordance with the Servicing Standard, or expose any Master Servicer, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Trust or the Trustee to liability, or materially expand the scope of the responsibilities of any Master Servicer or any Special Servicer, as applicable, hereunder or cause any Master Servicer or any Special Servicer, as applicable, to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the applicable Special Servicer, as the case may be, is not in the best interests of the Certificateholders.

In the event a Special Servicer or a Master Servicer, as applicable, determines that a refusal to consent by the Directing Certificateholder or any advice from the Directing Certificateholder or the Risk Retention Consultation Party, would cause such Special Servicer or such Master Servicer, as applicable, to violate the terms of any Mortgage Loan, applicable law or this Agreement, including without limitation, the Servicing Standard, such Special Servicer or such Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify

-405-

the Directing Certificateholder or the Risk Retention Consultation Party, respectively, and the Trustee and the Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by such Master Servicer or such Special Servicer in accordance with the direction of or approval of the Directing Certificateholder or the approval of the Risk Retention Consultation Party that does not violate the terms of any Mortgage Loan, applicable law or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of such Master Servicer or such Special Servicer.

With respect to any matter for which the consent or consultation of the Directing Certificateholder or Risk Retention Consultation Party is required, to the extent no specific time period for deemed consent or deemed waiver of consultation rights is expressly stated, in the event no response from the Directing Certificateholder or Risk Retention Consultation Party, as applicable, is received within ten (10) Business Days following written request for consent or consultation and receipt of all reasonably requested information on any required consent or consultation, the Directing Certificateholder or Risk Retention Consultation Party, as applicable, shall be deemed to have consented to or approved or consulted on the specific matter; provided that the failure of the Directing Certificateholder or Risk Retention Consultation Party, as applicable, to respond will not affect any future matters with respect to the applicable Mortgage Loan or any other Mortgage Loan.

The Directing Certificateholder shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Directing Certificateholder shall not be protected against any liability to a Controlling Class Certificateholder that would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties owed to the Controlling Class Certificateholders or by reason of reckless disregard of obligations or duties owed to the Controlling Class Certificateholders. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Directing Certificateholder may take actions that favor the interests of one or more Classes of the Certificates including the Holders of the Controlling Class over other Classes of the Certificates, and that the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class, including the Holders of the Controlling Class, that the Directing Certificateholder does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Directing Certificateholder shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Directing Certificateholder shall have no liability whatsoever (other than to a Controlling Class Certificateholder) for having so acted, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal thereof for having so acted.

The Risk Retention Consultation Party shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Risk Retention Consultation Party shall not be protected against any liability to a Holder of an RR Interest that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in the performance of duties owed to the Holders

-406-

of the RR Interest or by reason of reckless disregard of obligations or duties owed to the Holders of the RR Interest. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Risk Retention Consultation Party may take actions that favor the interests of one or more Classes of the Certificates including the Holders of an RR Interest over other Classes of the Certificates, and that the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Risk Retention Consultation Party may act solely in the interests of the Holders of an RR Interest, that the Risk Retention Consultation Party does not have any duties or liability to the Holders of any Class of Certificates other than the RR Interest, that the Risk Retention Consultation Party shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holder of the RR Interest, and that the Risk Retention Consultation Party shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal thereof for having so acted.

Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Non-Serviced PSA including the holders of the controlling class under such Non-Serviced PSA over other classes of the certificates issued under the Non-Serviced PSA and/or any Class of Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.

(b)               Notwithstanding anything to the contrary contained herein (i) after the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to a Directing Certificateholder), the Directing Certificateholder shall have no right to consent to or direct any action taken or not taken by any party to this Agreement; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder and the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the applicable Special Servicer and any other applicable party shall consult (on a non-binding basis) with the Directing Certificateholder and, with respect to any Specially Serviced Loan, the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party)

-407-

to the extent set forth herein in connection with any Major Decision to be taken or refrained from being taken to the extent set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class), the Directing Certificateholder shall have no direction, consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Directing Certificateholder and, other than with respect to any Excluded Loan with respect to the Risk Retention Consultation Party or the holder of a majority of the RR Interest, the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the applicable Special Servicer and any other applicable party shall consult with the Risk Retention Consultation Party (on a non-binding basis) to the extent set forth herein in connection with any Major Decision to be taken or refrained from being taken to the extent set forth herein.

Section 6.09        Knowledge of Wells Fargo Bank, National Association. Except as otherwise expressly set forth in this Agreement, Wells Fargo Bank, National Association acting in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Wells Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers or Servicing Officers, as applicable.

[End of Article VI]

Article VII

SERVICER TERMINATION EVENTS

Section 7.01        Servicer Termination Events; Master Servicers and Special Servicers Termination. (a) “Servicer Termination Event”, wherever used herein, means, with respect to any Master Servicer or any Special Servicer, as the case may be, any one of the following events:

(i)         (A) any failure by such Master Servicer to make any deposit required to be made by such Master Servicer to its Collection Account, or remit to the Companion Paying Agent for deposit into the related Companion Distribution Account, on the day and by the time such deposit or remittance is first required to be made under the terms of this Agreement, which failure is not remedied within one (1) Business Day or (B) any failure by such Master Servicer to deposit into, or remit to the Certificate Administrator for deposit into, any Distribution Account any amount required to be so deposited or remitted, which failure is not remedied by 11:00 a.m. (New York City time) on the relevant Distribution Date; or

-408-

(ii)        any failure by such Special Servicer to deposit into the REO Account, within one (1) Business Day after such deposit is required to be made or to remit to the applicable Master Servicer for deposit into the applicable Collection Account or any other required account hereunder, any amount required to be so deposited or remitted by such Special Servicer pursuant to, and at the time specified by, the terms of this Agreement; or

(iii)       any failure on the part of such Master Servicer or such Special Servicer, as the case may be, duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement, which failure continues unremedied for a period of thirty (30) days (or (A) with respect to any year that a report on Form 10-K is required to be filed, five (5) Business Days in the case of such Master Servicer’s or such Special Servicer’s obligations, as the case may be, contemplated by Article XI, (B) fifteen (15) days in the case of such Master Servicer’s failure to make a Servicing Advance or (C) fifteen (15) days in the case of a failure to pay the premium for any property insurance policy required to be maintained) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to such Master Servicer or such Special Servicer, as the case may be, by any other party hereto, or (B) to such Master Servicer or such Special Servicer, as the case may be, with a copy to each other party to this Agreement, by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, solely as it relates to the servicing of a Serviced Pari Passu Whole Loan if affected by that failure, by the related Serviced Companion Noteholder; provided, however, if such failure is capable of being cured and such Master Servicer or such Special Servicer, as applicable, is diligently pursuing such cure, such period will be extended an additional thirty (30) days; provided, further, however, that such extended period will not apply to the obligations regarding Exchange Act reporting; or

(iv)       any breach on the part of such Master Servicer or such Special Servicer, as the case may be, of any representation or warranty contained in Section 6.01(a) or Section 6.01(b), as applicable, which materially and adversely affects the interests of any Class of Certificateholders or Companion Holders (excluding the holder of any Non-Serviced Companion Loan) and which continues unremedied for a period of thirty (30) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to such Master Servicer or such Special Servicer, as the case may be, by the Depositor, the Certificate Administrator or the Trustee, or to such Master Servicer, such Special Servicer, the Depositor, the Certificate Administrator and the Trustee by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, as it relates to the servicing of a Serviced Pari Passu Whole Loan affected by such breach, by the related Serviced Companion Noteholder; provided, however, that if such breach is capable of being cured and such Master Servicer or such Special Servicer, as the case may be, is diligently pursuing such cure, such 30-day period will be extended an additional thirty (30) days; or

(v)        a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or

-409-

liquidation of its affairs, shall have been entered against such Master Servicer or such Special Servicer, as the case may be, and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of sixty (60) days; or

(vi)       such Master Servicer or such Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Master Servicer or such Special Servicer, as the case may be, or of or relating to all or substantially all of its property; or

(vii)      such Master Servicer or such Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing; or

(viii)     KBRA (or, in the case of Serviced Pari Passu Companion Loan Securities, any Companion Loan Rating Agency) has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, or (B) placed one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, on “watch status” in contemplation of a ratings downgrade or withdrawal (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by KBRA (or, in the case of Serviced Pari Passu Companion Loan Securities, such Companion Loan Rating Agency) within sixty (60) days of such rating action) and, in the case of either of clauses (A) or (B), publicly citing servicing concerns with such Master Servicer or Special Servicer, as the case may be, as the sole or a material factor in such rating action; or

(ix)        such Master Servicer or such Special Servicer, as the case may be, is no longer rated at least “CMS3” or “CSS3”, respectively, by Fitch and such Master Servicer or Special Servicer is not reinstated to at least that rating within 60 days of the delisting; or

(x)         such Master Servicer or such Special Servicer, as the case may be, is removed from S&P’s Select Servicer List as a “U.S. Commercial Mortgage Master Servicer” or a “U.S. Commercial Mortgage Special Servicer”, as applicable, and is not restored to such status on such list within sixty (60) days.

(b)        If any Servicer Termination Event with respect to a Master Servicer or a Special Servicer (in either case, for purposes of this Section 7.01(b), the “Affected Party”) shall occur and be continuing, then, and in each and every such case, so long as such Servicer Termination Event shall not have been remedied, the Trustee may, and at the written direction of the Directing Certificateholder (solely with respect to such Special Servicer and only (i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to a Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) or the Holders of Certificates entitled to more than 25% of the Voting Rights, the Trustee shall, terminate (and the Depositor may direct the Trustee to terminate each of such Master Servicer or such Special Servicer, as the case may be, upon five

-410-

(5) Business Days’ written notice if there is a Servicer Termination Event under clause (A) in the parenthetical in Section 7.01(a)(iii) above), by notice in writing to the Affected Party, with a copy of such notice to the Depositor and the Operating Advisor, all of the rights (subject to Section 3.11 and Section 6.04) and obligations of the Affected Party under this Agreement and in and to the Mortgage Loans and the proceeds thereof (other than as a Certificateholder or Companion Holder, if applicable); provided, however, that the Affected Party shall be entitled to the payment of accrued and unpaid compensation and reimbursement through the date of such termination as provided for under this Agreement for services rendered and expenses incurred. From and after the receipt by the Affected Party of such written notice except as otherwise provided in this Article VII, all authority and power of the Affected Party under this Agreement, whether with respect to the Certificates (other than as a Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee with respect to a termination of such Master Servicer or such Special Servicer pursuant to and under this Section 7.01, and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Affected Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents, or otherwise. Such Master Servicer and such Special Servicer each agree that if it is terminated pursuant to this Section 7.01(b), it shall promptly (and in any event no later than twenty (20) Business Days subsequent to its receipt of the notice of termination) provide the Trustee with all documents and records requested by it to enable it to assume such Master Servicer’s or such Special Servicer’s, as the case may be, functions hereunder, and shall cooperate with the Trustee in effecting the termination of such Master Servicer’s or such Special Servicer’s, as the case may be, responsibilities and rights (subject to Section 3.11 and Section 6.04) hereunder, including, without limitation, the transfer within five (5) Business Days to the Trustee for administration by it of all cash amounts which shall at the time be or should have been credited by such Master Servicer to its Collection Account or any Servicing Account (if it is the Affected Party), by such Special Servicer to the REO Account (if it is the Affected Party) or thereafter be received with respect to the applicable Mortgage Loans or any REO Property (provided, however, that such Master Servicer and such Special Servicer each shall, if terminated pursuant to this Section 7.01(b) or pursuant to Section 7.01(d) (with respect to such Special Servicer), continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the date of such termination, whether in respect of Advances (in the case of such Special Servicer or such Master Servicer) or otherwise, and it and its Affiliates and the directors, managers, officers, members, employees and agents of it and its Affiliates shall continue to be entitled to the benefits of Section 3.11 and Section 6.04 notwithstanding any such termination).

(c)        If a Master Servicer receives notice of termination under Section 7.01(b) solely due to a Servicer Termination Event under, Section 7.01(a)(viii), (ix) or (x) such Master Servicer shall have a forty-five (45) day period after such notice in which to find a successor master servicer qualified to act as Master Servicer hereunder in accordance with Section 6.03 and Section 7.02 and to which such Master Servicer can sell its rights to service the Mortgage Loans under this Agreement. During such forty-five (45) day period such Master Servicer may continue to serve as a Master Servicer hereunder. In the event that such Master Servicer is unable, within such forty-five (45) day period, to cause a qualified successor master servicer to assume the duties

-411-

of such Master Servicer hereunder, then and in such event, the Trustee shall assume the obligations of such Master Servicer hereunder.

Notwithstanding Section 7.01(b), if any Servicer Termination Event on the part of the General Special Servicer shall occur and be continuing that affects the Holder of a Serviced Pari Passu Companion Loan, then, so long as the General Special Servicer is not otherwise terminated, the Holder of such Serviced Pari Passu Companion Loan or the Other Trustee appointed under the related Other Pooling and Servicing Agreement, as applicable, shall be entitled to direct the Trustee to terminate the General Special Servicer with respect to the related Serviced Pari Passu Whole Loan. The General Special Servicer appointed to replace the General Special Servicer with respect to a Serviced Pari Passu Mortgage Loan cannot at any time be (without the prior written consent of the holder of such Serviced Pari Passu Companion Loan) the person (or Affiliate thereof) that was terminated at the direction of the holder of the related Serviced Pari Passu Companion Loan. Any such Special Servicer under this paragraph shall meet the eligibility requirements of Section 7.02 and the eligibility requirements of the related Other Pooling and Servicing Agreement, and the appointment thereof shall comply with the provisions of Section 7.02. Any appointment of a replacement General Special Servicer in accordance with this paragraph shall be subject to the receipt of Rating Agency Confirmation and confirmation from the applicable rating agencies that such appointment or replacement will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Companion Loan Securities (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

(d)        Subject to the rights of the holder of a related AB Subordinate Companion Loan pursuant to the related Intercreditor Agreement, at any time prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder shall be entitled to terminate the rights (subject to Section 3.11 and Section 6.04) and obligations of the applicable Special Servicer under this Agreement, (A) for cause at any time and (B) without cause at any time, in each case, upon ten (10) Business Days’ notice to such Special Servicer, each applicable Master Servicer, the Certificate Administrator, the Trustee and the Operating Advisor; such termination to be effective upon the appointment of a successor special servicer meeting the requirements of this Section 7.01(d). Upon a termination of such Special Servicer, the Directing Certificateholder (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) shall appoint a successor special servicer to assume the duties of such Special Servicer hereunder; provided, however, that (i) such successor will meet the requirements set forth in Section 7.02, (ii) each Rating Agency delivers Rating Agency Confirmation and, in the case of any class of any Serviced Companion Loan Securities, the applicable rating agencies deliver a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (iii) no replacement of such Special Servicer shall be effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan.

-412-

After the occurrence and during the continuance of a Control Termination Event and upon (a) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances pursuant to Section 4.05) of the Principal Balance Certificates (other than the RR Interest) requesting a vote to replace such Special Servicer with a new special servicer designated in such written direction to assume the duties of such Special Servicer hereunder, (b) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any legal fees and any Rating Agency fees and expenses) to be incurred by the Certificate Administrator in connection with administering such vote and which will not be additional expenses of the Trust and (c) delivery by such Holders to the Certificate Administrator and Trustee of Rating Agency Confirmation from each Rating Agency (which Rating Agency Confirmation shall be obtained at the expense of such Holders) and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall promptly post notice to all Certificateholders of such request on the Certificate Administrator’s Website in accordance with Section 3.13(b) and concurrently by mail, and conduct the solicitation of votes of all Certificates (other than the RR Interest) in such regard, which requisite affirmative votes shall be received within one hundred-eighty (180) days of the posting of such notice, and if not so received, such votes shall be null and void ab initio. Upon the written direction of Holders of Certificates evidencing at least 66-2/3% of a Certificateholder Quorum of Certificates, the Trustee shall terminate all of the rights and obligations of such Special Servicer under this Agreement and appoint the successor special servicer to assume the duties of such Special Servicer (which must be a Qualified Replacement Special Servicer) designated by such Certificateholders. The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder may (i) access such notices via the Certificate Administrator’s Website and (ii) register to receive electronic mail notifications when such notices are posted thereon. Notwithstanding the foregoing, the Certificateholder’s direction to remove a Special Servicer shall not apply to any Serviced AB Whole Loan for which the holder of the related AB Subordinate Companion Loan is not subject to an AB Control Appraisal Period or any Servicing Shift Whole Loan.

An AB Whole Loan Controlling Holder shall have the right, if an AB Control Appraisal Period is not in effect, to replace the applicable Special Servicer solely with respect to the related Serviced AB Whole Loan, so long as (A) each Rating Agency delivers a Rating Agency Confirmation; (B) the successor special servicer has assumed in writing (from and after the date such successor special servicer becomes a Special Servicer) all of the responsibilities, duties and liabilities of such Special Servicer under this Agreement from and after the date it becomes a Special Servicer as they relate to any Serviced AB Whole Loan pursuant to an assumption agreement reasonably satisfactory to the Certificate Administrator; and (C) the Certificate Administrator shall have received an opinion of counsel reasonably satisfactory to the Certificate Administrator to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with this Agreement, (y) such replacement will be bound by the terms of this Agreement with respect to any Serviced AB Whole Loan and (z) subject to customary qualifications and exceptions, this Agreement will be enforceable against such replacement in accordance with the terms hereof.

-413-

The parties hereto acknowledge that, notwithstanding anything to the contrary contained in this section, and subject to the related Intercreditor Agreement, if a servicer termination event on the part of a Non-Serviced Special Servicer under a Non-Serviced PSA remains unremedied and affects the holder of the related Non-Serviced Mortgage Loan, and the related Non-Serviced Special Servicer has not otherwise been terminated, the holder of the related Non-Serviced Mortgage Loan (or the Trustee, acting at the direction of the Directing Certificateholder prior to the occurrence and continuance of a Consultation Termination Event (subject to the related Intercreditor Agreement)) will be entitled to direct the related Non-Serviced Trustee to terminate the related Non-Serviced Special Servicer solely with respect to the related Non-Serviced Whole Loan. The appointment (or replacement) of the applicable Non-Serviced Special Servicer with respect to a Non-Serviced Whole Loan will in any event be subject to Rating Agency Confirmation from each Rating Agency. A replacement special servicer will be selected by the related Non-Serviced Trustee or, prior to a control termination event under the related Non-Serviced PSA, by the related Non-Serviced Whole Loan Controlling Holder; provided, however, that any successor special servicer appointed to replace such Special Servicer with respect to such Non-Serviced Whole Loan cannot at any time be the Person (or an Affiliate thereof) that was terminated at the direction of the holder of such Non-Serviced Mortgage Loan, without the prior written consent of the Directing Certificateholder.

Following the occurrence and continuance of a Consultation Termination Event, subject to the immediately succeeding paragraph, if the Operating Advisor determines in accordance with the Operating Advisor Standard that a Special Servicer is not performing its duties as required hereunder or is otherwise not acting in accordance with the Servicing Standard, the Operating Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to such Special Servicer, a written report in the form of Exhibit W attached hereto, setting forth the reasons supporting its recommendation (along with any information the Operating Advisor considered relevant to its recommendation) and recommending a replacement Special Servicer (which form may be modified or supplemented from time to time to cure any ambiguity or error or to incorporate any additional information, subject to compliance of such form with the terms and provisions of this Agreement; provided, further, that in no event shall the information or any other content included in such written recommendation contravene any provision of this Agreement) detailing the reasons supporting its recommendation (along with relevant information justifying its recommendation) and recommending a suggested replacement special servicer to assume the duties of such Special Servicer, which shall be a Qualified Replacement Special Servicer. In such event, the Certificate Administrator shall promptly post notice to all Certificateholders of such recommendation and the related report on the Certificate Administrator’s Website in accordance with Section 3.13(b), and by mail conduct the solicitation of votes of all Certificates in such regard. Upon (i) the affirmative vote of Holders of Principal Balance Certificates evidencing at least a majority of the aggregate Voting Rights (taking into account the application of any Cumulative Appraisal Reduction Amounts to notionally reduce the respective Certificate Balances of such Certificates) of all Principal Balance Certificates on an aggregate basis within 180 days of posting of the Operating Advisor’s recommendation to the Certificate Administrator’s Website, and if not so received, such votes shall be null and void ab initio, and (ii) receipt by the Certificate Administrator following satisfaction of the foregoing clause (i) of Rating Agency Confirmation from each Rating Agency and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of the then-current ratings of any class of any related Serviced Pari

-414-

Passu Companion Loan Securities, the Trustee shall (i) terminate all of the rights and obligations of such Special Servicer under this Agreement and appoint a successor special servicer approved by the Certificateholders and (ii) promptly notify such outgoing Special Servicer of the effective date of such termination. The reasonable out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) associated with obtaining such Rating Agency Confirmations and administering such vote and the Operating Advisor’s identification of a Qualified Replacement Special Servicer shall be an additional expense of the Trust. In the event that the Trustee does not receive at least a majority of the requested votes, then the Trustee shall have no obligation to remove such Special Servicer. Prior to the appointment of any replacement special servicer, such replacement special servicer shall have agreed to succeed to the obligations of such Special Servicer under this Agreement and to act as such Special Servicer’s successor hereunder. Notwithstanding the foregoing, the Operating Advisor shall not be permitted to recommend the replacement of a Special Servicer with respect to an AB Whole Loan so long as the related Serviced Companion Noteholder is not subject to an AB Control Appraisal Period under the related Intercreditor Agreement or with respect to any Servicing Shift Whole Loan.

No penalty or fee shall be payable to the terminated Special Servicer with respect to any termination pursuant to this Section 7.01(d). All costs of any such termination made by the Directing Certificateholder without cause shall be paid by the Holders of the Controlling Class.

For the avoidance of doubt, the indemnification of the Operating Advisor in Section 6.04 shall include, subject to the limitations set forth in Section 6.04, any action or claim arising from, or relating to, the Operating Advisor’s determination under this Section 7.01(d) (regarding removal of a Special Servicer), or the result of the vote of the Certificateholders (regarding removal of a Special Servicer).

(e)        Each Master Servicer and each Special Servicer shall, as the case may be, from time to time, take all such reasonable actions as are required by it in accordance with the related Servicing Standard in order to prevent the Certificates from being placed on “watch” status or downgraded due to servicing or special servicing, as applicable, concerns by any Rating Agency with respect to such Master Servicer or Special Servicer, as applicable. In no event shall the remedy for a breach of the foregoing covenant extend beyond termination pursuant to Section 7.01(a)(viii), (ix) or (x) and the resulting operation of Section 7.01(b) and (c). The operation of this subsection (e) shall not be construed to limit the effect of Section 7.01(a)(viii), (ix) or (x).

(f)         Notwithstanding the foregoing, (1) if any Servicer Termination Event on the part of a Master Servicer affects a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, and if such Master Servicer is not otherwise terminated, or (2) if a Servicer Termination Event on the part of a Master Servicer affects only a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, then such Master Servicer may not be terminated by or at the direction of the related holder of such Serviced Companion Loan or the holders of any Serviced Companion Loan Securities, but upon the written direction of the related holder of such Serviced Companion Loan, such Master Servicer shall be required to appoint a sub-servicer that will be responsible for servicing the related Serviced Whole Loan.

-415-

(g)        Notwithstanding anything to the contrary contained in this Section 7.01, with respect to any Excluded Special Servicer Loan, if any, the related Special Servicer shall resign as Special Servicer of that Excluded Special Servicer Loan. Prior to the occurrence and continuance of a Control Termination Event, if the applicable Excluded Special Servicer Loan is not also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder shall select an Excluded Special Servicer, as successor to the resigning Special Servicer, for the related Excluded Special Servicer Loan in accordance with this Agreement. After the occurrence and during the continuance of a Control Termination Event, (i) if at any time the applicable Excluded Special Servicer Loan is also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class or (ii) if the Directing Certificateholder is entitled to appoint the Excluded Special Servicer but does not so appoint within thirty (30) days of resignation, the resigning Special Servicer shall use reasonable efforts to select the related Excluded Special Servicer. The resigning Special Servicer shall not have any liability with respect to the actions or inactions of the applicable Excluded Special Servicer or with respect to the identity of the applicable Excluded Special Servicer so long as, on the date of the appointment, the selected Excluded Special Servicer is a Qualified Replacement Special Servicer. It shall be a condition to any such appointment that (i) the Rating Agencies confirm that the appointment would not result in a qualification, downgrade or withdrawal of any of their then-current ratings of the Certificates and each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities makes the equivalent confirmation, (ii) the related Excluded Special Servicer is a Qualified Replacement Special Servicer and (iii) the related Excluded Special Servicer delivers to the Depositor and the Certificate Administrator and any applicable Other Depositor and Other Certificate Administrator, the information, if any, required under Item 6.02 of Form 8-K pursuant to the Exchange Act regarding itself in its role as Excluded Special Servicer.

If at any time a Special Servicer that had previously acted as a Special Servicer is no longer a Borrower Party with respect to an Excluded Special Servicer Loan (including, without limitation, as a result of the related Mortgaged Property becoming REO Property), (1) the related Excluded Special Servicer shall resign, (2) the related Mortgage Loan or Serviced Whole Loan shall no longer be an Excluded Special Servicer Loan, (3) such original Special Servicer shall become the Special Servicer again for such related Mortgage Loan or Serviced Whole Loan and (4) such original Special Servicer shall be entitled to all special servicing compensation with respect to such Mortgage Loan or Serviced Whole Loan earned during such time on and after such Mortgage Loan or Serviced Whole Loan is no longer an Excluded Special Servicer Loan.

The applicable Excluded Special Servicer shall perform all of the obligations of the Special Servicer for the related Excluded Special Servicer Loan and shall be entitled to all special servicing compensation with respect to such Excluded Special Servicer Loan earned during such time as the related Mortgage Loan or Serviced Whole Loan is an Excluded Special Servicer Loan (provided that the applicable Special Servicer shall remain entitled to all other special servicing compensation with respect to all Mortgage Loans and Serviced Whole Loans that are not Excluded Special Servicer Loans during such time).

If a Servicing Officer of the applicable Master Servicer, a related Excluded Special Servicer, or the applicable Special Servicer, as the case may be, has actual knowledge that a Mortgage Loan is no longer an Excluded Loan, an Excluded Controlling Class Loan or an

-416-

Excluded Special Servicer Loan, as applicable, the applicable Master Servicer, the related Excluded Special Servicer or the applicable Special Servicer, as the case may be, shall provide prompt written notice thereof to each of the other parties to this Agreement.

Section 7.02        Trustee to Act; Appointment of Successor. On and after the time a Master Servicer or a Special Servicer, as the case may be, either resigns pursuant to clause (a) of Section 6.05 or receives a notice of termination for cause pursuant to Section 7.01(b), and provided that no acceptable successor has been appointed within the time period specified in Section 7.01(c), the Trustee shall be the successor to such party, until such successor to that Master Servicer or that Special Servicer, as applicable, is appointed as provided in this Section 7.02 or by the Directing Certificateholder as provided in Section 7.01(d), as applicable, in all respects in its capacity as such Master Servicer or such Special Servicer, as applicable, under this Agreement and the transactions set forth or provided for herein and shall be subject to, and have the benefit of, all of the rights, (subject to Section 3.11 and Section 6.04) benefits, responsibilities, duties, liabilities and limitations on liability relating thereto and that arise thereafter placed on or for the benefit of such Master Servicer or Special Servicer, as applicable, by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the terminated party’s failure under Section 7.01 to provide information or moneys required hereunder shall not be considered a default by such successor hereunder. The appointment of a successor master servicer shall not affect any liability of the predecessor Master Servicer which may have arisen prior to its termination as Master Servicer, and the appointment of a successor special servicer shall not affect any liability of the predecessor Special Servicer which may have arisen prior to its termination as Special Servicer. The Trustee in its capacity as successor to such Master Servicer or such Special Servicer, as such case may be, shall not be liable for any of the representations and warranties of such Master Servicer or such Special Servicer, respectively, herein or in any related document or agreement, for any acts or omissions of the predecessor master servicer or special servicer or for any losses incurred by the predecessor Master Servicer pursuant to Section 3.06 hereunder, nor shall the Trustee be required to purchase any Mortgage Loan hereunder solely as a result of its obligations as successor master servicer or special servicer, as the case may be. Subject to Section 3.11, as compensation therefor, the Trustee as successor master servicer shall be entitled to the Servicing Fees and all fees relating to the Mortgage Loans or the Companion Loans which that Master Servicer would have been entitled to if such Master Servicer had continued to act hereunder, including but not limited to any income or other benefit from any Permitted Investment pursuant to Section 3.06, and subject to Section 3.11, and the Trustee as successor to such Special Servicer shall be entitled to the Special Servicing Fees to which such Special Servicer would have been entitled if such Special Servicer had continued to act hereunder. Should the Trustee succeed to the capacity of such Master Servicer or such Special Servicer, as the case may be, the Trustee shall be afforded the same standard of care and liability as such Master Servicer or such Special Servicer, as applicable, hereunder notwithstanding anything in Section 8.01 to the contrary, but only with respect to actions taken by it in its role as successor master servicer or successor special servicer, as the case may be, and not with respect to its role as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling to act as successor to that Master Servicer or that Special Servicer, as applicable, or shall, if it is unable to so act, or if the Trustee is not approved as a servicer by each Rating Agency, or if the Directing Certificateholder (solely with respect to such Special Servicer) ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the

-417-

Controlling Class) or the Holders of Certificates entitled to more than 50% of the Voting Rights so request in writing to the Trustee, promptly appoint, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution which meets the criteria set forth in Section 6.05 and otherwise herein, as the successor to that Master Servicer or that Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of such Master Servicer or such Special Servicer hereunder. No appointment of a successor to such Master Servicer or such Special Servicer hereunder shall be effective until (i) the assumption in writing by the successor to such Master Servicer or such Special Servicer of all its responsibilities, duties and liabilities hereunder that arise thereafter, (ii) receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), (iii) such appointment (solely with respect to such Special Servicer) has been approved (prior to the occurrence and continuance of a Control Termination Event) by the Directing Certificateholder, such approval not to be unreasonably withheld and (iv) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Pending appointment of a successor to such Master Servicer or such Special Servicer hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in such capacity as herein above provided. In connection with such appointment and assumption of a successor to such Master Servicer or such Special Servicer as described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on the Mortgage Loans as it and such successor shall agree; provided, however, that no such compensation with respect to a successor master servicer or successor special servicer, as the case may be, shall be in excess of that permitted the terminated Master Servicer or Special Servicer, as the case may be, hereunder. The Trustee, the non-terminated Master Servicer or the non-terminated Special Servicer and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. Any reasonable out-of-pocket costs and expenses associated with the transfer of the servicing function (other than with respect to a termination without cause) under this Agreement shall be borne by the predecessor Master Servicer or Special Servicer, as applicable. If such predecessor Master Servicer or Special Servicer (as the case may be) has not reimbursed the party requesting such termination or the successor master servicer or special servicer for such expenses within ninety (90) days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust; provided that the terminated Master Servicer or Special Servicer shall not thereby be relieved of its liability for such expenses. If and to the extent that the terminated Master Servicer or Special Servicer has not reimbursed such costs and expenses, the party requesting such termination shall have an affirmative obligation to take all reasonable actions to collect such expenses on behalf of the Trust. In the event of a termination without cause, such costs and expenses shall be borne by the party requesting such termination, or as otherwise set forth herein; provided that the Certificate Administrator and the Trustee shall not bear any such costs and expenses. For the avoidance of doubt, if the Trustee is terminating a Master Servicer or a Special Servicer in accordance with this Agreement at the direction of any party or parties permitted to direct the Trustee to so terminate such Master Servicer or such Special Servicer

-418-

pursuant to this Agreement, the Trustee shall not have any liability for such expenses pursuant to this paragraph.

Section 7.03        Notification to Certificateholders. (a) Upon any resignation of a Master Servicer or a Special Servicer pursuant to Section 6.05, any termination of a Master Servicer or a Special Servicer pursuant to Section 7.01 or any appointment of a successor to a Master Servicer or a Special Servicer pursuant to Section 7.02, the Certificate Administrator shall give prompt written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register.

(b)        Not later than the later of (i) sixty (60) days after the occurrence of any event which constitutes or, with notice or lapse of time or both, would constitute a Servicer Termination Event and (ii) five (5) days after the Certificate Administrator would be deemed to have notice of the occurrence of such an event in accordance with Section 8.02(vii), the Certificate Administrator shall transmit by mail to the Depositor and all Certificateholders (and, if a Serviced Whole Loan is affected, the related Serviced Companion Noteholder) notice of such occurrence, unless such default shall have been cured.

Section 7.04        Waiver of Servicer Termination Events. The Holders of Certificates representing at least 66-2/3% of the Voting Rights allocated to each Class of Certificates affected by any Servicer Termination Event hereunder may waive such Servicer Termination Event; provided, however, that a Servicer Termination Event under clause (i), (ii), (viii), (ix) or (x) of Section 7.01(a) may be waived only with the consent of all of the Certificateholders of the affected Classes, and a Servicer Termination Event under clause (iii) of Section 7.01(a) (with respect to obligations under Article XI) may be waived only with the consent of the Depositor. Upon any such waiver of a Servicer Termination Event, subject to the rights of any affected holder of a Serviced Companion Loan under Section 7.01(c) or Section 7.01(f), such Servicer Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of a Servicer Termination Event by Certificateholders, the Trustee and the Certificate Administrator shall be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Servicer Termination Event prior to such waiver from the Trust. No such waiver shall extend to any subsequent or other Servicer Termination Event or impair any right consequent thereon except to the extent expressly so waived. Notwithstanding any other provisions of this Agreement, for purposes of waiving any Servicer Termination Event pursuant to this Section 7.04, Certificates registered in the name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to the matters described above as they would if any other Person held such Certificates.

Section 7.05        Trustee as Maker of Advances. In the event that a Master Servicer fails to fulfill its obligations hereunder to make any Advances and such failure remains uncured, the Trustee shall perform such obligations (x) within five (5) Business Days following such failure by a Master Servicer with respect to Servicing Advances resulting in a Servicer Termination Event under Section 7.01(a)(iii) to the extent a Responsible Officer of the Trustee has actual knowledge of such failure with respect to such Servicing Advances and (y) by noon, New York City time, on the related Distribution Date with respect to P&I Advances pursuant to the Certificate Administrator’s notice of failure pursuant to Section 4.03(a) unless such failure has been cured. With respect to any such Advance made by the Trustee, the Trustee shall succeed to all of such

-419-

Master Servicer’s rights with respect to Advances hereunder, including, without limitation, such Master Servicer’s rights of reimbursement and interest on each Advance at the Reimbursement Rate, and rights to determine that a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without regard to any impairment of any such rights of reimbursement caused by such Master Servicer’s default in its obligations hereunder); provided, however, that if Advances made by the Trustee and a Master Servicer shall at any time be outstanding, or any interest on any Advance shall be accrued and unpaid, all amounts available to repay such Advances and the interest thereon hereunder shall be applied entirely to the Advances outstanding to the Trustee, until such Advances shall have been repaid in full, together with all interest accrued thereon, prior to reimbursement of such Master Servicer for such Advances. The Trustee shall be entitled to conclusively rely on any notice given with respect to a Nonrecoverable Advance hereunder.

[End of Article VII]

Article VIII

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

Section 8.01        Duties of the Trustee and the Certificate Administrator. (a) The Trustee and the Certificate Administrator, prior to the occurrence of a Servicer Termination Event and after the curing or waiving of all Servicer Termination Events which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If a Servicer Termination Event occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee and the Certificate Administrator contained in this Agreement shall not be construed as a duty.

(b)        The Trustee or the Certificate Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II, the Diligence Files, any CREFC^® reports and any information delivered for posting to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Certificate Administrator shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Certificate Administrator shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, a Master Servicer or a Special Servicer or another Person, and accepted by the Trustee or the Certificate Administrator in good faith, pursuant to this Agreement.

(c)        No provision of this Agreement shall be construed to relieve the Trustee or the Certificate Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:

-420-

(i)         Prior to the occurrence of a Servicer Termination Event, and after the curing of all such Servicer Termination Events which may have occurred, the duties and obligations of the Trustee and the Certificate Administrator shall be determined solely by the express provisions of this Agreement, the Trustee and the Certificate Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the Certificate Administrator and, in the absence of bad faith on the part of the Trustee and the Certificate Administrator, the Trustee and the Certificate Administrator may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee or the Certificate Administrator and conforming to the requirements of this Agreement;

(ii)        Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Certificate Administrator, respectively, unless it shall be proved that the Trustee or the Certificate Administrator, as applicable, was negligent in ascertaining the pertinent facts; and

(iii)       Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of Certificates entitled to greater than 25% (i) of the Percentage Interest of each affected Class, or (ii) if each Class is an affected Class of the aggregate Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Certificate Administrator, or exercising any trust or power conferred upon the Trustee or the Certificate Administrator, under this Agreement (unless a higher percentage of Voting Rights is required for such action).

(d)        The Certificate Administrator shall make available via its internet website initially located at www.ctslink.com to the Serviced Companion Noteholders all reports that the Certificate Administrator has made available to Certificateholders under this Agreement to the extent such reports relate to the related Serviced Companion Loan and upon the submission of an Investor Certification pursuant to this Agreement.

Section 8.02        Certain Matters Affecting the Trustee and the Certificate Administrator. Except as otherwise provided in Section 8.01:

(i)         The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, direction of the Depositor, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

(ii)        The Trustee and the Certificate Administrator may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete

-421-

authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;

(iii)       Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, security or indemnity reasonably satisfactory to it, against the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;

(iv)       Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

(v)        Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require indemnity reasonably satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;

(vi)       The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, affiliates or attorneys; provided, however, that the appointment of such agents, affiliates or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate

-422-

Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;

(vii)      For all purposes under this Agreement, none of the Trustee, the Custodian or the Certificate Administrator shall be deemed to have actual knowledge or notice of any Servicer Termination Event or Asset Representations Reviewer Termination Event or any act, failure or breach of any Person upon the occurrence of which the Trustee or Certificate Administrator may be required to act unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event, act, failure or breach, as applicable, which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;

(viii)     Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of a Master Servicer or a Special Servicer (unless the Trustee is acting as a Master Servicer or a Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as a Master Servicer or a Special Servicer) or of the Depositor, the Operating Advisor or the Asset Representations Reviewer;

(ix)        Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency;

(x)         In no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct;

(xi)        Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and

(xii)       Nothing herein shall be construed as an obligation for any party to this Agreement to advise a Certificateholder with respect to its rights and protections relative to the Trust.

Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Registrar, 17g-5 Information Provider and Authenticating Agent).

Section 8.03        Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and in the Certificates, other than the acknowledgments of the Trustee or the Certificate Administrator in Sections 2.01(h) and Section 2.04 and the signature, if any, of the Certificate Registrar and Authenticating Agent set forth on any outstanding Certificate, shall not be taken as the statements

-423-

of the Trustee or the Certificate Administrator, and the Trustee or the Certificate Administrator assume no responsibility for their correctness. Neither the Trustee nor the Certificate Administrator makes any representations as to the validity or sufficiency of this Agreement or of any Certificate (other than as to the signature, if any, of the Trustee or the Certificate Administrator set forth thereon) or of any Mortgage Loan or related document. Neither the Trustee nor the Certificate Administrator shall be accountable for the use or application by the Depositor of any of the Certificates issued to it or of the proceeds of such Certificates, or for the use or application of any funds paid to the Depositor in respect of the assignment of the Mortgage Loans to the Trust, or any funds deposited in or withdrawn from each applicable Collection Account or any other account by or on behalf of the Depositor, the applicable Master Servicer, the applicable Special Servicer or in the case of the Trustee, the Certificate Administrator. The Trustee and the Certificate Administrator shall not be responsible for and may rely upon the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, a Master Servicer or a Special Servicer and accepted by the Trustee or the Certificate Administrator, in good faith, pursuant to this Agreement.

Section 8.04        Trustee or Certificate Administrator May Own Certificates. The Trustee or the Certificate Administrator, each in its individual capacity, not as Trustee or Certificate Administrator, may become the owner or pledgee of Certificates, and may deal with the Depositor, any Master Servicer, any Special Servicer or the Underwriters in banking transactions, with the same rights it would have if it were not Trustee or the Certificate Administrator.

Section 8.05        Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator.(a) As compensation for the performance of their respective duties hereunder, the Trustee will be paid the Trustee Fee, which shall cover recurring and otherwise reasonably anticipated expenses of the Trustee, and the Certificate Administrator will be paid the Certificate Administrator Fee equal to the Certificate Administrator’s portion of one (1) month’s interest at the Certificate Administrator Fee Rate, which shall cover recurring and otherwise reasonably anticipated expenses of the Certificate Administrator. The Trustee Fee and Certificate Administrator Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan), the Certificate Administrator shall pay to the Trustee monthly the Trustee Fee from the Certificate Administrator Fee, which Certificate Administrator Fee shall accrue from time to time at the Certificate Administrator Fee Rate and the Certificate Administrator Fee shall be computed in the same manner as interest is calculated thereon and for the same period respecting which any related interest payment due or deemed thereon is computed. The Trustee Fee (which shall not be limited to any provision of law in regard to the compensation of a trustee of an express trust) shall constitute the Trustee’s sole form of compensation for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties of the Trustee hereunder, except for the reimbursement of expenses specifically provided for herein. The Certificate Administrator Fee shall constitute the Certificate Administrator’s sole form of compensation for the exercise and performance of its powers and duties hereunder, except for the reimbursement of expenses specifically provided for herein. No Trustee Fee or Certificate Administrator Fee shall be payable with respect to any Companion Loan.

-424-

(b)        The Trustee, the Certificate Administrator (in each case, including in its capacity as Custodian and in its individual capacity) and any director, officer, employee, representative or agent of the Trustee and the Certificate Administrator, respectively, shall be entitled to be indemnified and held harmless by the Trust (to the extent of amounts on deposit in each applicable Collection Account or the Lower-Tier REMIC Distribution Account, as applicable, from time to time) against any loss, liability or expense (including, without limitation, costs and expenses of litigation, and of investigation, counsel fees, damages, judgments and amounts paid in settlement, and expenses incurred in becoming the successor to the applicable Master Servicer or the applicable Special Servicer, to the extent not otherwise paid hereunder, and, for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) arising out of, or incurred in connection with, any act or omission of the Trustee or the Certificate Administrator, respectively, relating to the exercise and performance of any of the powers, rights and duties of the Trustee or the Certificate Administrator, respectively (including in any capacities in which they serve, such as paying agent, REMIC Administrator, Authenticating Agent, Custodian, Certificate Registrar, and 17g-5 Information Provider) hereunder; provided, however, that none of the Trustee or the Certificate Administrator, nor any of the other above specified Persons shall be entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or made by or on behalf of the Trustee or the Certificate Administrator, respectively, in the normal course of the Trustee or the Certificate Administrator, respectively, performing its duties in accordance with any of the provisions hereof, which are not “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of the Trustee’s or the Certificate Administrator’s, respectively, obligations and duties hereunder, or by reason of negligent disregard of such obligations or duties, or as may arise from a breach of any representation or warranty of the Trustee specified in Section 8.12 or the Certificate Administrator specified in Section 8.14, respectively, made herein. The provisions of this Section 8.05(b) shall survive the termination of this Agreement and any resignation or removal of the Trustee or the Certificate Administrator, respectively, and appointment of a successor thereto. The foregoing indemnity shall also apply to the Certificate Administrator in all of its capacities hereunder, including Custodian, Certificate Registrar and Authenticating Agent.

(c)        The Certificate Administrator shall indemnify and hold harmless the Depositor and the Mortgage Loan Sellers from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the Depositor or any Mortgage Loan Seller or its Affiliates that arise out of or are based upon (i) a breach by the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, of its obligations under this Agreement or (ii) negligence, bad faith or willful misconduct on the part of the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, in the performance of such obligations or its negligent disregard of its obligations and duties under this Agreement.

-425-

Section 8.06        Eligibility Requirements for Trustee and Certificate Administrator. Each of the Trustee and the Certificate Administrator hereunder shall at all times be, and will be required to resign if it fails to be, (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority and in the case of the Trustee, shall not be an Affiliate of any Master Servicer or any Special Servicer (except during any period when the Trustee is acting as, or has become successor to, the applicable Master Servicer or the applicable Special Servicer, as the case may be, pursuant to Section 7.02), (ii) in the case of the Trustee, an institution whose long-term senior unsecured debt is rated at least “BBB” by S&P, “A” by Fitch (or short-term rating of “F1” by Fitch) and “BBB-” by KBRA (if then rated by KBRA), or such other rating with respect to which the Rating Agencies have provided a Rating Agency Confirmation and (iii) an entity that is not a Prohibited Party.

If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.06 the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In the event the place of business from which the Certificate Administrator administers the Trust REMICs or in which the Trustee’s office is located is in a state or local jurisdiction that imposes a tax on the Trust on the net income of a REMIC (other than a tax corresponding to a tax imposed under the REMIC Provisions), the Certificate Administrator or the Trustee, as applicable shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.07, (ii) pay such tax at no expense to the Trust or (iii) administer the Trust REMICs from a state and local jurisdiction that does not impose such a tax.

Section 8.07        Resignation and Removal of the Trustee and Certificate Administrator. (a) The Trustee and the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Depositor, each Master Servicer, each Special Servicer and the Trustee or the Certificate Administrator, as applicable, the Operating Advisor, the Asset Representations Reviewer, 17g-5 Information Provider and to all Certificateholders. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c). Upon receiving such notice of resignation, the Depositor shall use its reasonable best efforts to promptly appoint a successor trustee or successor certificate administrator acceptable to the General Master Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder by written instrument, in duplicate, which instrument shall be delivered to the resigning Trustee or Certificate Administrator and to the successor trustee or certificate administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer, the Certificateholders and the Trustee or Certificate Administrator, as applicable, by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of resignation, the resigning Trustee or Certificate

-426-

Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, and such petition will be an expense of the Trust.

(b)        If at any time the Trustee or Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 8.06 (and in the case of the Certificate Administrator, Section 5.08) and shall fail to resign after written request therefor by the Depositor or a Master Servicer, or if at any time the Trustee or Certificate Administrator shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate Administrator or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, or if the Trustee or Certificate Administrator (if different than the Trustee) shall fail to timely publish any report to be delivered, published or otherwise made available by the Certificate Administrator pursuant to Section 4.02 and such failure shall continue unremedied for a period of five (5) days, or if the Certificate Administrator fails to make distributions required pursuant to Section 4.01 or Section 9.01, then the Depositor may remove the Trustee or Certificate Administrator, as applicable, and appoint a successor trustee or certificate administrator acceptable to the requesting Master Servicer, by written instrument, in duplicate, which instrument shall be delivered to the Trustee or Certificate Administrator so removed and to the successor trustee or certificate administrator in the case of the removal of the Trustee or Certificate Administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer and the Certificateholders by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of removal, the removed Trustee or Certificate Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, at the expense of the Trust.

(c)        The Holders of Certificates entitled to at least 75% of the Voting Rights may, upon thirty (30) days’ prior written notice, with or without cause, remove the Trustee or Certificate Administrator and appoint a successor trustee or certificate administrator by written instrument or instruments, in triplicate, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to each Master Servicer, one complete set to the Trustee or Certificate Administrator so removed and one complete set to the successor so appointed. A copy of such instrument shall be delivered to the Depositor, each Special Servicer and the remaining Certificateholders by each applicable Master Servicer. In the event of any such termination without cause pursuant to this Section 8.07(c), the successor trustee or certificate administrator, as applicable, shall be responsible for all costs and expenses necessary to effect the transfer of responsibilities from its predecessor.

(d)        Any resignation or removal of the Trustee or Certificate Administrator and appointment of a successor trustee or certificate administrator pursuant to any of the provisions of this Section 8.07 shall not become effective until (i) acceptance of appointment by the successor trustee or certificate administrator as provided in Section 8.08 and (ii) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Further, the resigning Trustee or Certificate Administrator, as the case may be, shall pay all costs and expenses associated with the transfer of its duties.

-427-

If the same party is acting as Trustee and Certificate Administrator pursuant to this Agreement, any removal of either such party in its capacity as Trustee or Certificate Administrator, as applicable, shall also result in such party’s removal in its capacity as Trustee or Certificate Administrator, as applicable, and the Depositor shall appoint a successor certificate administrator and a successor trustee, in each instance meeting the eligibility requirements set forth hereunder.

Upon any succession of the Trustee or Certificate Administrator under this Agreement, the predecessor Trustee or Certificate Administrator shall be entitled to the payment of accrued and unpaid compensation and reimbursement as provided for under this Agreement for services rendered and expenses incurred (including without limitation, unreimbursed Advances). No Trustee or Certificate Administrator shall be personally liable for any action or omission of any successor trustee or certificate administrator.

(e)        Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor, or upon the termination of the Trustee, (a) the outgoing Trustee shall (i) endorse the original executed Mortgage Note for each Mortgage Loan (to the extent that the original executed Mortgage Note for each Mortgage Loan was endorsed to the outgoing trustee), without recourse, representation or warranty, express or implied, to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 or in blank, and (ii) in the case of the other assignable Mortgage Loan documents (to the extent such other Mortgage Loan documents were assigned to the outgoing trustee), assign such Mortgage Loan documents to such successor, and such successor shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made; (b) if any original executed Mortgage Note for a Mortgage Loan was not endorsed to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release, deliver such Mortgage Note to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Note is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 or in blank; provided, however, that, notwithstanding anything to the contrary herein, to the extent any such endorsement of such Mortgage Note requires the signature of the related Mortgage Loan Seller in order to comply with the foregoing, then the applicable Master Servicer shall use reasonable efforts to cause the related Mortgage Loan Seller to execute such endorsement; (c) if any other assignable Mortgage Loan document was not assigned to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release, deliver such Mortgage Loan document to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Loan document is assigned to such successor trustee; and (d) in any case, such successor trustee shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsements and assignments have been made or, in the event such endorsement or assignment cannot be made for any reason, to note the same in such certification.

(f)         Neither the Asset Representations Reviewer nor any of its Affiliates may be appointed as successor trustee or certificate administrator.

-428-

Section 8.08        Successor Trustee or Certificate Administrator. (a) Any successor trustee or certificate administrator appointed as provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor, each Master Servicer, each Special Servicer and to its predecessor Trustee or Certificate Administrator an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Certificate Administrator shall become effective and such successor trustee or certificate administrator without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as Trustee or Certificate Administrator herein. The predecessor Trustee shall deliver to the successor trustee all Mortgage Files and related documents and statements held by it hereunder (other than any Mortgage Files at the time held on its behalf by the Custodian, which Custodian, at Custodian’s option shall become the agent of the successor trustee), and the Depositor, the applicable Master Servicer, the applicable Special Servicer and the predecessor Trustee shall execute and deliver such instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee all such rights, powers, duties and obligations, and to enable the successor trustee to perform its obligations hereunder.

(b)        No successor trustee or successor certificate administrator shall, as applicable, accept appointment as provided in this Section 8.08 unless at the time of such acceptance such successor trustee or successor certificate administrator, as applicable, shall be eligible under the provisions of Section 8.06.

(c)        Upon acceptance of appointment by a successor trustee or successor certificate administrator as provided in this Section 8.08, the General Master Servicer shall deliver notice of the succession of such Trustee or Certificate Administrator, as applicable, to the Depositor and the Certificateholders. If the General Master Servicer fails to deliver such notice within ten (10) days after acceptance of appointment by the successor trustee or successor certificate administrator, as applicable, such successor trustee or successor certificate administrator shall cause such notice to be delivered at the expense of the General Master Servicer.

Section 8.09        Merger or Consolidation of Trustee or Certificate Administrator. Any Person into which the Trustee or the Certificate Administrator may be merged or converted or with which it may be consolidated or any Person resulting from any merger, conversion or consolidation to which the Trustee or the Certificate Administrator shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee or the Certificate Administrator shall be the successor of the Trustee or the Certificate Administrator, as applicable, hereunder; provided that, in the case of the Trustee, such successor person shall be eligible under the provisions of Section 8.06, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and shall provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

Section 8.10        Appointment of Co-Trustee or Separate Trustee. (a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the same

-429-

may at the time be located, each applicable Master Servicer and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as each applicable Master Servicer and the Trustee may consider necessary or desirable. If any Master Servicer shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request to do so, or in case a Servicer Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 8.06 hereunder and no notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 8.08. All co-trustee fees shall be payable out of the Trust Fund.

(b)        In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to a Master Servicer or a Special Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee.

(c)        Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then-separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.

(d)        Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

(e)        The appointment of a co-trustee or separate trustee under this Section 8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.

Section 8.11        Appointment of Custodians. The Certificate Administrator is hereby appointed as the Custodian to hold all or a portion of the Mortgage Files. The Custodian shall be

-430-

a depository institution subject to supervision by federal or state authority, shall have combined capital and surplus of at least $15,000,000 and shall be qualified to do business in the jurisdiction in which it holds any Mortgage File. The Custodian shall be subject to the same obligations and standard of care as would be imposed on the Certificate Administrator hereunder in connection with the retention of Mortgage Files directly by the Certificate Administrator. Upon termination or resignation of the Custodian, the Certificate Administrator may appoint another Custodian meeting the foregoing requirements. The appointment of one or more Custodians by the Certificate Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible for all acts and omissions of any Custodian other than the initial Custodian. Any Custodian appointed hereunder must maintain a fidelity bond and errors and omissions policy in an amount customary for Custodians which serve in such capacity in commercial mortgage loan securitization transactions, or may self-insure.

Section 8.12        Representations and Warranties of the Trustee. The Trustee hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder and the Certificate Administrator for the benefit of the Certificateholders, as of the Closing Date, that:

(i)         The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America;

(ii)        The execution and delivery of this Agreement by the Trustee, and the performance and compliance with the terms of this Agreement by the Trustee, will not violate the Trustee’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

(iii)       The Trustee has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Trustee, enforceable against the Trustee in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Trustee is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Trustee’s good faith and reasonable judgment, is likely to affect

-431-

materially and adversely the ability of the Trustee to perform its obligations under this Agreement;

(vi)       No litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit the Trustee from entering into this Agreement or, in the Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Trustee to perform its obligations under this Agreement; and

(vii)      No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Trustee, or compliance by the Trustee with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Trustee of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Trustee to perform its obligations hereunder.

Section 8.13        Provision of Information to Certificate Administrator, Master Servicers and Special Servicers. The applicable Master Servicer shall promptly, upon request, provide the applicable Special Servicer and the Certificate Administrator with notice of any change in the identity and/or contact information of any Serviced Companion Noteholder (to the extent it receives written notice of such change). The Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer may each conclusively rely on the information provided to them regarding identity and/or contact information regarding any Serviced Companion Noteholder, and the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer, as applicable, shall have no liability for notices not sent to the correct Serviced Companion Noteholders or any obligation to determine the identity and/or contact information of the Serviced Companion Noteholders to the extent updated or correct information regarding the holders of any of the Serviced Companion Noteholders or the most recent identity and/or contact information regarding any of the Serviced Companion Noteholders has not been provided to the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable.

Section 8.14        Representations and Warranties of the Certificate Administrator. The Certificate Administrator hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder, and the Trustee, for the benefit of the Certificateholders, as of the Closing Date, that:

(i)         The Certificate Administrator is a national banking association duly organized under the laws of the United States of America, duly organized, validly existing and in good standing under the laws thereof;

(ii)        The execution and delivery of this Agreement by the Certificate Administrator, and the performance and compliance with the terms of this Agreement by the Certificate Administrator, will not violate the Certificate Administrator’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both,

-432-

would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

(iii)       The Certificate Administrator has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)       This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

(v)        The Certificate Administrator is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Certificate Administrator’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator;

(vi)       No litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator which would prohibit the Certificate Administrator from entering into this Agreement or, in the Certificate Administrator’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator; and

(vii)      No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Certificate Administrator, or compliance by the Certificate Administrator with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Certificate Administrator of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Certificate Administrator to perform its obligations hereunder.

Section 8.15        Compliance with the PATRIOT Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the Trustee, the Certificate Administrator, each applicable Special Servicer and each applicable Master Servicer is required to obtain, verify and record certain

-433-

information relating to individuals and entities which maintain a business relationship with the Trustee, the Certificate Administrator, each applicable Special Servicer or each applicable Master Servicer, as applicable, arising out of the Trust or this Agreement. Accordingly, each of the parties to this Agreement agrees to provide to the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer, upon its respective reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer to comply with Applicable Laws.

[End of Article VIII]

Article IX

TERMINATION

Section 9.01        Termination upon Repurchase or Liquidation of All Mortgage Loans. Subject to this Section 9.01 and Section 9.02, the Trust and the respective obligations and responsibilities under this Agreement of the Certificate Administrator (other than the obligations of the Certificate Administrator to provide for and make payments to Certificateholders as hereafter set forth), the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer and the Trustee, shall terminate upon payment (or provision for payment) to the Certificateholders of all amounts held by the Certificate Administrator and required hereunder to be so paid on the Distribution Date following the earlier to occur of (i) the final payment (or related Advance) or other liquidation of the last Mortgage Loan and REO Property (as applicable) subject hereto, (ii) the purchase or other liquidation by the Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, of all the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund at a price equal to (a) the sum of (1) the Termination Purchase Amount and (2) the reasonable out-of-pocket expenses of each applicable Master Servicer and each applicable Special Servicer with respect to such termination, unless such Master Servicer or such Special Servicer, as applicable, is the purchaser of such Mortgage Loans, minus (b) solely in the case where a Master Servicer is exercising such purchase right, the aggregate amount of unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer in respect of such Advances in accordance with Section 3.03(d) and Section 4.03(d) and any unpaid Servicing Fees, remaining outstanding and payable solely to such Master Servicer (which items shall be deemed to have been paid or reimbursed to the applicable Master Servicer in connection with such purchase) or (iii) so long as the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests, are no longer outstanding, the voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest) and the payment or deemed payment by such exchanging party of the Termination Purchase Amount for the remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the terms of the immediately succeeding paragraph, of which (a) an amount equal to

-434-

the product of (i) the Required Credit Risk Retention Percentage and (ii) the Termination Purchase Amount will be paid to the Holders of the RR Interest in exchange for the surrender of the RR Interest, and (b) an amount equal to the product of (i) the Non-Retained Percentage and (ii) the Termination Purchase Amount will be deemed paid to the Trust and deemed distributed to the Holder or Holders of the then-outstanding Certificates (other than the RR Interest) in exchange for such Certificates; provided, however, that in no event shall the trust created hereby continue beyond the expiration of twenty-one (21) years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date hereof. Upon termination of the Trust pursuant to clause (i) of the immediately preceding sentence, the Custodian shall release or cause to be released to the General Master Servicer and the NCB Master Servicer, at their respective addresses provided in Section 13.05 of this Agreement or to such other address designated by it in writing, those Mortgage Files remaining in its possession relating to the Mortgage Loans other than the NCB Mortgage Loans (in the case of the General Master Servicer) and those Mortgage Files relating to the NCB Mortgage Loans (in the case of the NCB Master Servicer). In connection with a termination of the Trust under this Article IX, the obligations and responsibilities of the Custodian under this Agreement shall terminate upon its delivery of such Mortgage Files to the applicable Master Servicer, Sole Certificateholder or other party as required by this Section 9.01, except for the obligation of the Custodian to execute assignments, endorsements and other instruments as required by this Section 9.01.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, the Class R Certificates and the RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01(a) by giving written notice to all the parties hereto no later than sixty (60) days prior to the anticipated date of exchange. In the event that the Sole Certificateholder elects to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and the RR Interest) and pay the Termination Purchase Amount for all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall (i) remit for deposit in the Collection Account of the General Master Servicer an amount in immediately available funds equal to (a) the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount plus (b) all amounts due and owing to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee and the Certificate Administrator hereunder through the date of the liquidation of the Trust that may be withdrawn from the applicable Collection Account, or an escrow account acceptable to the respective parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the Distribution Account pursuant to Section 3.05(a), but only to the extent that such amounts are not already on deposit in the applicable Collection Account, and (ii) be deemed to pay to the Trust (which amount shall be further deemed distributed to the Holders of all outstanding Certificates (other than the RR Interest)) an amount equal to the product of the Non-

-435-

Retained Percentage and the Termination Purchase Amount. In addition, each Master Servicer shall transfer all amounts required to be transferred to the Lower-Tier REMIC Distribution Account and Excess Interest Distribution Account on the P&I Advance Date related to such Distribution Date in which the final distribution on the Certificates is to occur from the applicable Collection Account pursuant to the first paragraph of Section 3.04(b) (provided, however, that if a Serviced Whole Loan is secured by REO Property, the portion of the above-described purchase price allocable to such Trust’s portion of REO Property shall initially be deposited into the related REO Account). Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Class V Certificates, Class R Certificates and the RR Interest) on the applicable Distribution Date, (i) the Certificate Administrator shall remit to the Holders of the RR Interest in immediately available funds an amount equal to the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount and (ii) the Custodian shall, upon receipt of a Request for Release from each applicable Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund, and the Trust shall be liquidated in accordance with Section 9.02. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the Lower-Tier REMIC for an amount equal to the aggregate remaining Certificate Balance of the Principal Balance Certificates (other than any Exchangeable Certificates) and the Exchangeable Upper-Tier P&I Regular Interests, plus accrued, unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of such Certificates, Exchangeable Upper-Tier P&I Regular Interests and Related Lower-Tier Regular Interests.

The obligations and responsibilities under this Agreement of the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator and the Companion Paying Agent shall terminate with respect to any Companion Loan to the extent (i) its related Serviced Mortgage Loan has been paid in full or is no longer part of the Trust Fund and (ii) no amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of this Section 9.01 by giving written notice to the Trustee, the Certificate Administrator, and the other parties hereto no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, any Special Servicer, any Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balance of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date

-436-

Balance of the Mortgage Loans as set forth in the Preliminary Statement (in order to make such determination, the General Master Servicer may, at any time, request that the NCB Master Servicer commence to periodically inform the General Master Servicer of the Stated Principal Balance of the NCB Mortgage Loans and, commencing upon such request of the General Master Servicer, the NCB Master Servicer shall inform the General Master Servicer (which may be through providing the General Master Servicer access to the NCB Master Servicer’s website) of the Stated Principal Balance of the NCB Mortgage Loans on a monthly basis, or at an accelerated interval as requested by the General Master Servicer of the NCB Master Servicer). This purchase shall terminate the Trust and retire the then-outstanding Certificates. In the event that a Master Servicer or a Special Servicer purchases, or the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund in accordance with the preceding sentence, the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, shall deposit in the Lower-Tier REMIC Distribution Account not later than the P&I Advance Date relating to the Distribution Date on which the final distribution on the Certificates is to occur, an amount in immediately available funds equal to the above-described purchase price (exclusive of any portion thereof payable to any Person other than the Certificateholders pursuant to Section 3.05(a), which portion shall be deposited in the Collection Account of the General Master Servicer). In addition, each Master Servicer shall transfer to the Lower-Tier REMIC Distribution Account all amounts required to be transferred thereto on such P&I Advance Date from its Collection Account pursuant to the first paragraph of Section 3.04(b), together with any other amounts on deposit in its Collection Account that would otherwise be held for future distribution. Upon confirmation that such final deposits and payments have been made, the Custodian shall release or cause to be released to the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, as shall be necessary to effectuate transfer of the Mortgage Loans as assets of the Trust and REO Properties remaining in the Trust Fund. If the Holders of the majority of the Controlling Class, the General Special Servicer, the NCB Special Servicer (if not then NCB), the General Master Servicer or the NCB Master Servicer (if not then NCB) makes such an election, then NCB (so long as NCB is either the NCB Special Servicer or the NCB Master Servicer) will have the option, by giving written notice to the other parties hereto no later than 30 days prior to the anticipated date of purchase, to purchase all of the NCB Mortgage Loans and each related REO Property remaining in the Trust, and the other party will then have the option to purchase only the remaining Mortgage Loans and each related REO Property.

For purposes of this Section 9.01, the Holder of the majority of the Controlling Class shall have the first option to terminate the Upper-Tier REMIC and Lower-Tier REMIC, then the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, then the other Special Servicer, then the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, then the other Master Servicer, and then the Holders of the Class R Certificates. For purposes of this Section 9.01, the Directing Certificateholder with the consent of the Holders of the Controlling Class, shall act on behalf of the Holders of the Controlling Class in purchasing the assets of the Trust and terminating the Trust.

-437-

Notice of any termination pursuant to this Section 9.01 shall be given promptly by the Certificate Administrator by letter to the Certificateholders, each Serviced Companion Noteholder and the 17g-5 Information Provider in accordance with the provisions of Section 3.13(c) (who shall promptly post a copy of such additional notice on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)) and, if not previously notified pursuant to this Section 9.01, to the other parties hereto mailed (a) in the event such notice is given in connection with the purchase of all of the Mortgage Loans is an asset of the Trust and each REO Property remaining in the Trust Fund, not earlier than the fifteenth (15th) day and not later than the twenty-fifth (25th) day of the month next preceding the month of the final distribution on the Certificates, or (b) otherwise during the month of such final distribution on or before the P&I Advance Determination Date in such month, in each case specifying (i) the Distribution Date upon which the Trust will terminate and final payment of the Certificates will be made, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Certificates at the offices of the Certificate Registrar or such other location therein designated. Upon termination of the Trust pursuant to this Section 9.01, the Certificate Administrator shall provide notice thereof to the Trustee via email.

After transferring the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable to the Regular Certificates and the Exchangeable Certificates pursuant to Section 4.01(e) to the Upper-Tier REMIC Distribution Account, in each case pursuant to Section 3.04(b) and upon presentation and surrender of the Certificates by the Certificateholders on the final Distribution Date, the Certificate Administrator shall distribute to each Certificateholder so presenting and surrendering its Certificates (i) such Certificateholder’s Percentage Interest of that portion of the amounts then on deposit in the Upper-Tier REMIC Distribution Account that are allocable to payments on the Class of Certificates so presented, (ii) to Holders of the Excess Interest Certificates or the RR Interest so presented, any amounts remaining on deposit in the Excess Interest Distribution Account, and (iii) any remaining amount shall be distributed to the Class R Certificates in respect of the Class LR Interest or the Class UR Interest, as applicable. Amounts transferred from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account as of the final Distribution Date, shall be distributed in termination and liquidation of the Lower-Tier Regular Interests and the Class LR Interest in accordance with Sections 4.01(a), 4.01(b), 4.01(c), 4.01(e) and 4.01(f). Any funds not distributed on such Distribution Date shall be set aside and held uninvested in trust for the benefit of the Certificateholders not presenting and surrendering their Certificates in the aforesaid manner and shall be disposed of in accordance with this Section 9.01 and Section 4.01(h).

Section 9.02        Additional Termination Requirements. (a) In the event a Master Servicer or a Special Servicer purchases, or the Holders of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund as provided in Section 9.01, the Upper-Tier REMIC and Lower-Tier REMIC, as applicable, shall be terminated in accordance with the following additional requirements, which meet the definition of a “qualified liquidation” in Section 860F(a)(4) of the Code:

-438-

(i)         the Certificate Administrator shall specify the date of adoption of the plan of complete liquidation (which shall be the date of mailing of the notice specified in Section 9.01) in a statement attached to each of the related Trust REMICs’ final Tax Returns pursuant to Treasury Regulations Section 1.860F-1;

(ii)        during the 90-day liquidation period and at or prior to the time of the making of the final payment on the Certificates, the Certificate Administrator on behalf of the Trustee shall sell all of the assets of the related Trust REMICs to the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates, as applicable, for cash; and

(iii)       within such 90-day liquidation period and immediately following the making of the final payment on the Lower-Tier Regular Interests and the Certificates, the Certificate Administrator shall distribute or credit, or cause to be distributed or credited, to the Holders of the Class R Certificates in respect of the Class LR Interest (in the case of the Lower-Tier REMIC) and in respect of the Class UR Interest (in the case of the Upper-Tier REMIC) all cash on hand (other than cash retained to meet claims), and the Trust (if applicable) or the related Trust REMIC(s) shall terminate at that time.

[End of Article IX]

Article X

ADDITIONAL REMIC PROVISIONS

Section 10.01    REMIC Administration. (a) The Certificate Administrator shall make elections or cause elections to be made to treat each Trust REMIC as a REMIC under the Code and, if necessary, under Applicable State and Local Tax Law. Each such election will be made on Form 1066 or other appropriate federal tax return for the taxable year ending on the last day of the calendar year in which the Lower-Tier Regular Interests and the Certificates are issued. For the purposes of the REMIC election in respect of the Upper-Tier REMIC, the Upper-Tier Regular Interests shall be designated the “regular interests,” and the Class UR Interest shall be designated the sole class of “residual interests” in the Upper-Tier REMIC. For purposes of the REMIC election in respect of the Lower-Tier REMIC, each Class of Lower-Tier Regular Interests shall be designated as a class of “regular interests” and the Class LR Interest shall be designated as the sole class of “residual interests” in the Lower-Tier REMIC. Each applicable Special Servicer, each applicable Master Servicer and the Trustee shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any Trust REMIC other than the foregoing interests. The Certificate Administrator shall prepare or cause to be prepared and timely produced to the Trustee to sign (and the Trustee shall timely sign) and file or cause to be filed with the Internal Revenue Service, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such Trust REMIC on IRS Form SS-4 or obtain such number by other permissible means. The Certificate Administrator shall be responsible for the preparation of the related IRS Form W-9, if such form is requested. The Trustee shall be entitled to rely on the information contained therein, and is hereby directed to execute such IRS Form W-9; provided, however, the Certificate Administrator shall also be directed to execute such IRS Form W-9 (in lieu of the Trustee) if permitted by IRS regulations.

-439-

(b)        The Closing Date is hereby designated as the “startup day” (“Startup Day”) of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.

(c)        The Certificate Administrator shall act on behalf of each Trust REMIC in relation to any tax matter or controversy involving either such REMIC and shall represent each such REMIC in any administrative or judicial proceeding relating to an examination or audit by any governmental taxing authority with respect thereto. The legal expenses, including without limitation attorneys’ or accountants’ fees, and costs of any such proceeding and any liability resulting therefrom shall be expenses of the Trust and the Certificate Administrator shall be entitled to reimbursement therefor out of amounts attributable to the Mortgage Loans and any REO Properties on deposit in each applicable Collection Account as provided by Section 3.05(a) unless such legal expenses and costs are incurred by reason of the Certificate Administrator’s willful misconduct, bad faith or negligence. The Certificate Administrator shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code of each Trust REMIC. By their acceptance thereof, the Holders of the Class R Certificates agree to the designation of the Certificate Administrator as “partnership representative” for the Trust REMICs.

(d)        The Certificate Administrator shall prepare or cause to be prepared and shall file, or cause to be filed, all of the Tax Returns that it determines are required with respect to each Trust REMIC created hereunder, and shall cause the Trustee to sign (and the Trustee shall timely sign) such Tax Returns in a timely manner. The ordinary expenses of preparing such returns shall be borne by the Certificate Administrator without any right of reimbursement therefor. The Certificate Administrator shall prepare or cause to be prepared, and file or cause to be filed with the IRS, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such REMIC on IRS Form SS-4 or obtain such number by other permissible means.

(e)        The Certificate Administrator shall provide or cause to be provided (i) to any Transferor of a Class R Certificate such information as is necessary for the application of any tax relating to the transfer of such Class R Certificate to any Person who is a Disqualified Organization, or in the case of a Transfer to an agent thereof, to such agent, (ii) to the Certificateholders such information or reports as are required by the Code or the REMIC Provisions including reports relating to interest, original issue discount and market discount or premium (using the Prepayment Assumption) and (iii) to the Internal Revenue Service, Form 8811, within thirty (30) days after the Closing Date.

(f)         The Certificate Administrator shall take such actions and shall cause the Trust to take such actions as are reasonably within the Certificate Administrator’s control and the scope of its duties more specifically set forth herein as shall be necessary to maintain the status of each Trust REMIC as a REMIC under the REMIC Provisions and the Trustee shall assist the Certificate Administrator to the extent reasonably requested by the Certificate Administrator to do so. No Master Servicer or Special Servicer shall knowingly or intentionally take any action, cause the Trust to take any action or fail to take (or fail to cause to be taken) any action reasonably within its control and the scope of duties more specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust, or (ii) result in the imposition of a tax upon any Trust REMIC or the Grantor Trust (including but not limited to the

-440-

tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”) (either such event, an “Adverse REMIC Event”) unless the Certificate Administrator receives an Opinion of Counsel (at the expense of the party seeking to take such action or, if such party fails to pay such expense, and the Certificate Administrator determines that taking such action is in the best interest of the Trust and the Certificateholders, at the expense of the Trust, but in no event at the expense of the Certificate Administrator or the Trustee) to the effect that the contemplated action will not, with respect to the Trust, any Trust REMIC created hereunder, cause the loss of such status or, unless the Certificate Administrator determines in its sole discretion to indemnify the Trust against such tax, result in the imposition of such a tax (not including a tax on “net income from foreclosure property”). The Trustee shall not take or fail to take any action (whether or not authorized hereunder) as to which the Certificate Administrator has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action. The Certificate Administrator may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not expressly permitted by this Agreement, but in no event at the expense of the Certificate Administrator or the Trustee. At all times as may be required by the Code, the Certificate Administrator will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each Trust REMIC as “qualified mortgages” as defined in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.

(g)        In the event that any applicable federal, state or local tax, including interest, penalties or assessments, additional amounts or additions to tax, is imposed on any Trust REMIC, such tax shall be charged against amounts otherwise distributable to the Holders of the Certificates, except as provided in the last sentence of this Section 10.01(g); provided that with respect to the estimated amount of tax imposed on any “net income from foreclosure property” pursuant to Section 860G(c) of the Code or any similar tax imposed by a state or local tax authority, the applicable Special Servicer shall retain in the related REO Account a reserve for the payment of such taxes in such amounts and at such times as it shall deem appropriate (or as advised by the Certificate Administrator in writing), and shall remit to the applicable Master Servicer such reserved amounts as the applicable Master Servicer shall request in order to pay such taxes. Except as provided in the preceding sentence, the applicable Master Servicer shall withdraw from the applicable Collection Account sufficient funds to pay or provide for the payment of, and to actually pay, such tax as is estimated to be legally owed by any Trust REMIC (but such authorization shall not prevent the Certificate Administrator from contesting, at the expense of the Trust (other than as a consequence of a breach of its obligations under this Agreement), any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Certificate Administrator is hereby authorized to and shall segregate, into a separate non-interest bearing account, the net income from any “prohibited transaction” under Section 860F(a) of the Code or the amount of any taxable contribution to any Trust REMIC after the Startup Day that is subject to tax under Section 860G(d) of the Code and use such income or amount, to the extent necessary, to pay such prohibited transactions tax. To the extent that any such tax (other than any such tax paid in respect of “net income from foreclosure property”) is paid to the Internal Revenue Service or applicable state or local tax authorities, the Certificate Administrator shall retain an equal amount from future amounts otherwise distributable to the Holders of Class R Certificates (as applicable) and shall distribute such retained amounts, (x) in

-441-

the case of the Lower-Tier Regular Interests, to the Upper-Tier REMIC to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class LR Interest in the manner specified in Section 4.01(c) and (y) in the case of the Upper-Tier REMIC, to the Holders of the Principal Balance Certificates in the manner specified in Section 4.01(a) or Section 4.01(b), as applicable, to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class UR Interest. None of the Trustee, the Certificate Administrator, any Master Servicer or any Special Servicer shall be responsible for any taxes imposed on any Trust REMIC except to the extent such taxes arise as a consequence of a breach of their respective obligations under this Agreement which breach constitutes willful misconduct, bad faith, or negligence by such party.

(h)        The Certificate Administrator shall, for federal income tax purposes, maintain or cause to be maintained books and records with respect to each Trust REMIC on a calendar year and on an accrual basis or as otherwise may be required by the REMIC Provisions.

(i)         Following the Startup Day, neither the Certificate Administrator nor the Trustee shall accept any contributions of assets to any Trust REMIC unless the Certificate Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make such contribution) to the effect that the inclusion of such assets in such Trust REMIC will not cause an Adverse REMIC Event.

(j)         Neither the Certificate Administrator nor the Trustee shall enter into any arrangement by which the Trust or any Trust REMIC will receive a fee or other compensation for services nor permit the Trust or any Trust REMIC to receive any income from assets other than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted investments” as defined in Section 860G(a)(5) of the Code.

(k)        Solely for the purposes of Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” by which the Certificate Balance or Notional Amount of each Class of Regular Certificates, Exchangeable Certificates or Exchangeable Upper-Tier Regular Interests and by which the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests would be reduced to zero is the date that is the Rated Final Distribution Date.

(l)         None of the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as applicable, shall sell, dispose of or substitute for any of the Mortgage Loans (except in connection with (i) the default, imminent default or foreclosure of a Mortgage Loan, including but not limited to, the acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust, (iii) the termination of the Trust pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or Article III of this Agreement) or acquire any assets for the Trust or any Trust REMIC or sell or dispose of any investments in the applicable Collection Account or the REO Account for gain unless it has received an Opinion of Counsel that such sale, disposition or substitution will not (a) affect adversely the status of any Trust REMIC as a REMIC or (b) unless the Trustee, the Certificate Administrator, the applicable Master Servicer or the

-442-

applicable Special Servicer, as the case may be, has determined in its sole discretion to indemnify the Trust against such tax, cause the Trust or any Trust REMIC to be subject to a tax on “prohibited transactions” pursuant to the REMIC Provisions.

(m)       The Certificate Administrator’s authority under this Agreement includes the authority to make, and the Certificate Administrator is hereby directed to make, any elections allowed under the Code (i) to avoid the application of Section 6221 of the Code (or successor provisions) to either Trust REMIC and (ii) to avoid payment by either Trust REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any Holder of a Class R Certificate, past or present. Each Holder of a Class R Certificate agrees, by acquiring such Certificate, to any such elections.

(n)        The Exchangeable Upper-Tier Regular Interests shall be held in the Grantor Trust and have been placed in the Grantor Trust through the efforts of the Underwriters. The Exchangeable Upper-Tier Regular Interests shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Exchangeable Certificates, which Exchangeable Certificates, in the aggregate, will evidence 100% beneficial ownership of such assets from and after the Closing Date. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest.

Section 10.02    Use of Agents.(a) The Trustee shall execute all of its obligations and duties under this Article X through its Corporate Trust Office. The Trustee may execute any of its obligations and duties under this Article X either directly or by or through agents, affiliates or attorneys. The Trustee shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents, affiliates or attorneys.

(b)        The Certificate Administrator may execute any of its obligations and duties under this Article X either directly or by or through agents or attorneys. The Certificate Administrator shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents or attorneys.

Section 10.03    Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator. (a) The Depositor shall provide or cause to be provided to the Certificate Administrator within ten (10) days after the Depositor receives a request from the Certificate Administrator, all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes as to the valuations and issue prices of the Certificates, including, without limitation, the price, yield, Prepayment Assumptions and projected cash flow of the Certificates.

(b)        Each applicable Master Servicer and each applicable Special Servicer shall each furnish such reports, certifications and information, and upon reasonable notice and during normal business hours, access to such books and records maintained thereby, as may relate to the Certificates or the Trust and as shall be reasonably requested by the Certificate Administrator in order to enable it to perform its duties hereunder.

-443-

Section 10.04    Appointment of REMIC Administrators.(a) The Certificate Administrator may appoint at the Certificate Administrator’s expense, one or more REMIC Administrators, which shall be authorized to act on behalf of the Certificate Administrator in performing the functions set forth in Section 10.01 herein. The Certificate Administrator shall cause any such REMIC Administrator to execute and deliver to the Certificate Administrator an instrument in which REMIC Administrator shall agree to act in such capacity, with the obligations and responsibilities herein. The appointment of a REMIC Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible and liable for all acts and omissions of the REMIC Administrator. Each REMIC Administrator must be acceptable to the Certificate Administrator and must be organized and doing business under the laws of the United States of America or of any State and be subject to supervision or examination by federal or state authorities. In the absence of any other Person appointed in accordance herewith acting as REMIC Administrator, the Certificate Administrator hereby agrees to act in such capacity in accordance with the terms hereof. If Wells Fargo Bank, National Association is removed as Certificate Administrator, then Wells Fargo Bank, National Association shall be terminated as REMIC Administrator.

(b)        Any Person into which any REMIC Administrator may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion, or consolidation to which any REMIC Administrator shall be a party, or any Person succeeding to the corporate agency business of any REMIC Administrator, shall continue to be the REMIC Administrator without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the REMIC Administrator.

(c)        Any REMIC Administrator may at any time resign by giving at least thirty (30) days’ advance written notice of resignation to the Trustee, the Certificate Registrar, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer and the Depositor. The Certificate Administrator may at any time terminate the agency of any REMIC Administrator by giving written notice of termination to such REMIC Administrator, each applicable Master Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice of resignation or upon such a termination, or in case at any time any REMIC Administrator shall cease to be eligible in accordance with the provisions of this Section 10.04, the Certificate Administrator may appoint a successor REMIC Administrator, in which case the Certificate Administrator shall give written notice of such appointment to each applicable Master Servicer, the Trustee and the Depositor and shall mail notice of such appointment to all Certificateholders; provided, however, that no successor REMIC Administrator shall be appointed unless eligible under the provisions of this Section 10.04. Any successor REMIC Administrator upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as REMIC Administrator. No REMIC Administrator shall have responsibility or liability for any action taken by it as such at the direction of the Certificate Administrator.

[End of Article X]

-444-

Article XI

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

Section 11.01 Intent of the Parties; Reasonableness.  The parties hereto acknowledge and agree that the purpose of Article XI of this Agreement is to facilitate compliance by the Depositor (and any Other Depositor of any Other Securitization that includes a Serviced Companion Loan) with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its rights to request delivery of information or other performance under these provisions other than in reasonable good faith, or for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, due to interpretive guidance provided by the Commission or its staff, and agree to comply with requests made by the Depositor (or any Other Depositor or Other Trustee of any Other Securitization that includes a Serviced Companion Loan) in good faith for delivery of information under these provisions on the basis of such evolving interpretations of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered”). In connection with BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, and any Other Securitization subject to Regulation AB that includes a Serviced Companion Loan, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Trustee, the Custodian and the Certificate Administrator shall cooperate fully with the Depositor and the Certificate Administrator, and any Other Depositor, Other Trustee and Other Certificate Administrator of any Other Securitization that includes a Serviced Companion Loan, as applicable, to deliver or make available to the Depositor or the Certificate Administrator, and any such Other Depositor, Other Trustee or Other Certificate Administrator, as applicable (including any of its assignees or designees), any and all statements, reports, certifications, records and any other information (in its possession or reasonably attainable) necessary in the reasonable good faith determination of the Depositor or such Other Depositor, as applicable, to permit the Depositor or such Other Depositor, as applicable, to comply with the provisions of Regulation AB, together with such disclosures relating to each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Trustee, the Custodian, the Asset Representations Reviewer and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans (and the related Serviced Companion Loan, if applicable), reasonably believed by the Depositor or the related Other Depositor to be necessary in order to effect such compliance. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 11.01, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor and each Other Depositor to satisfy any related filing requirements. For purposes of this Article XI, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.

Section 11.02  Succession; Subcontractors.  (a) As a condition to the succession to any Master Servicer and any Special Servicer or to any Sub-Servicer (but only if such Sub-Servicer is a servicer as contemplated by Item 1108(a)(2)) as servicer or sub-servicer or succession to the Certificate Administrator under this Agreement by any Person (i) into which the applicable Master

-445- 

Servicer and the applicable Special Servicer, such Sub-Servicer or Certificate Administrator may be merged or consolidated, or (ii) which may be appointed as a successor to the applicable Master Servicer and the applicable Special Servicer or to any such Sub-Servicer or Certificate Administrator, the person removing and replacing a Master Servicer and a Special Servicer or Certificate Administrator shall provide to the Depositor, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and each Other Depositor, as applicable, at least fifteen (15) calendar days prior to the effective date of such succession or appointment (or such shorter period as is agreed to by the Depositor), (x) written notice to the Depositor, the Other Depositor and the Other Certificate Administrator of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor, all information relating to such successor reasonably requested by the Depositor, Other Depositor or Other Certificate Administrator in order to comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act); provided, however that if disclosing such information prior to such effective date would violate any applicable law or confidentiality agreement, the applicable Master Servicer, the applicable Special Servicer, any Additional Servicer or the Certificate Administrator, as the case may be, shall submit such disclosure to the Depositor and the Other Depositor no later than the effective date of such succession or appointment.

(b)       Each applicable Master Servicer, each applicable Special Servicer, the Sub-Servicer, the Trustee, the Operating Advisor and the Certificate Administrator (each such Master Servicer, Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator and each Sub-Servicer, for purposes of this Section 11.02, a “Servicer”) is permitted to utilize one or more Subcontractors to perform certain of its obligations hereunder. If such Subcontractor will be a Servicing Function Participant, such Servicer shall promptly upon written request provide to the Depositor or any Mortgage Loan Seller (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) a written description (in form and substance satisfactory to the Depositor, such Mortgage Loan Seller or such Other Trustee, Other Certificate Administrator or Other Depositor, as applicable) of the role and function of each Subcontractor utilized by such Servicer, specifying (i) the identity of such Subcontractor and (ii) the elements of the Servicing Criteria that will be addressed in assessments of compliance provided by each such Subcontractor. As a condition to the utilization by such Servicer of any Subcontractor determined to be a Servicing Function Participant, such Servicer shall (i) with respect to any such Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause, and (ii) with respect to any other subcontractor with which it has entered into a servicing relationship, cause such Subcontractor used by such Servicer for the benefit of the Depositor and the Trustee (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) to comply with the provisions of Section 11.10 and Section 11.11 of this Agreement to the same extent as if such Subcontractor were such Servicer. With respect to any Servicing Function Participant engaged by such Servicer that is an Initial Sub-Servicer, such Servicer shall be responsible for using commercially reasonable efforts to obtain, and with respect to each other Servicing Function Participant engaged by such Servicer, such Servicer shall obtain from each such Servicing Function Participant and deliver to the applicable Persons any assessment of compliance report and related accountant’s attestation required to be delivered by such Subcontractor under Section 11.10 and Section 11.11,

-446- 

in each case, as and when required to be delivered. For the avoidance of doubt, the Custodian shall not be permitted to utilize any Subcontractor to perform any of its obligations hereunder.

(c)          Notwithstanding the foregoing, if a Servicer engages a Subcontractor, other than an Initial Sub-Servicer in connection with the performance of any of its duties under this Agreement, such Servicer shall be responsible for determining whether such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and whether any such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding sentence, that such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a Sub-Servicer for purposes of this Agreement, the engagement of such Sub-Servicer shall not be effective unless and until notice is given to the Depositor and the Certificate Administrator of any such Sub-Servicer and Sub-Servicing Agreement. Other than with respect to the Initial Sub-Servicer, no Sub-Servicing Agreement shall be effective until fifteen (15) days after such written notice is received by the Depositor and the Certificate Administrator (or such shorter period as is agreed to by the Depositor). Such notice shall contain all information reasonably necessary to enable the Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

(d)          In connection with the succession to the Trustee under this Agreement by any Person (i) into which the Trustee may be merged or consolidated, or (ii) which may be appointed as a successor to the Trustee, the Trustee shall deliver written notice to the Depositor, the Certificate Administrator and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), in each case at least thirty (30) calendar days prior to the effective date of such succession or appointment (or if such prior notice is violative of applicable law or any applicable confidentiality agreement, no later than one (1) Business Day after such effective date of succession) and shall furnish to the Depositor and the Certificate Administrator, in writing and in form and substance reasonably satisfactory to the Depositor and the Certificate Administrator, all information reasonably necessary for the Certificate Administrator to accurately and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

(e)          Notwithstanding anything to the contrary contained in this Article XI, in connection with any Sub-Servicer and/or any Mortgage Loan that is the subject of an Initial Sub-Servicing Agreement, with respect to all matters related to Regulation AB, the applicable Master Servicer shall not have any obligation other than to use commercially reasonable efforts to cause such Sub-Servicer to comply with its obligations under such Initial Sub-Servicing Agreement.

(f)           Any notice and/or information furnished or required to be furnished pursuant to this Section 11.02 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the information relates to a party that services, specially services or is trustee for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.02.

-447- 

Section 11.03  Filing Obligations.  (a) Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee shall reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06 and 11.07 of this Agreement, the Certificate Administrator shall prepare for execution by the Depositor any Forms 8-K, 10-D, ABS-EE and 10-K required by the Exchange Act, in order to permit the timely filing thereof, and the Certificate Administrator shall file (via the Commission’s Electronic Data Gathering and Retrieval System (“EDGAR”)) such Forms executed by the Depositor.

Each party hereto shall be entitled to rely on the information in the Prospectus or this Agreement with respect to the identity of any “sponsor”, credit enhancer, derivative provider or “significant obligor” as of the Closing Date other than with respect to itself or any information required to be provided by it or indemnified for by it pursuant to any separate agreement.

(b)       In the event that the Certificate Administrator is unable to timely file with the Commission all or any required portion of any Form 8-K, 10-D, ABS-EE or 10-K required to be filed by this Agreement because required disclosure information was either not delivered to it or delivered to it after the delivery deadlines set forth in this Agreement, the Certificate Administrator will promptly notify the Depositor. In the case of Forms 10-D, ABS-EE and 10-K, the Depositor, each applicable Master Servicer, the Certificate Administrator, the Operating Advisor and the Trustee will thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A, Form ABS-EE/A or Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Certificate Administrator will, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the next succeeding Form 10-D to be filed for the Trust. In the event that any previously filed Form 8-K, Form 10-D, Form ABS-EE or Form 10-K needs to be amended, the Certificate Administrator will notify the Depositor, and such other parties as needed and the parties hereto will cooperate with the Certificate Administrator to prepare any necessary Form 8-K/A, Form 10-D/A, Form ABS-EE/A or Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K shall be signed by an officer of the Depositor. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.03 related to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K is contingent upon the parties observing all applicable deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10, 11.11 and 11.15 of this Agreement. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D, Form ABS-EE or Form 10-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D, Form ABS-EE or Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.

Section 11.04   Form 10-D and Form ABS-EE Filings.  (a) Within fifteen (15) days after each Distribution Date (subject to permitted extensions under the Exchange Act), the

-448- 

Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit AA to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, absent such reporting, direction and approval.

For so long as the Trust is subject to the reporting requirements of the Exchange Act, as set forth on Exhibit AA hereto, within five (5) calendar days after the related Distribution Date, (i) certain parties to this Agreement identified on Exhibit AA hereto shall be required to provide to the Certificate Administrator and the Depositor (and in the case of any Servicing Function Participant, with a copy to the applicable Master Servicer), to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format, or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-D Disclosure, if applicable; provided that information relating to any REO Account to be reported under “Item 9: Other Information” on Exhibit AA shall be reported by the applicable Special Servicer to the applicable Master Servicer within four (4) calendar days after the related Distribution Date on Exhibit LL; (ii) the parties listed on Exhibit AA hereto shall include with such Additional Form 10-D Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit DD (except with respect to the reporting of REO Account balances which shall be delivered in the form of Exhibit LL hereto) and (iii) the Depositor shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com (or such other e-mail address as the Certificate Administrator may instruct) or by facsimile to 410-715-2380, Attn: CTS SEC Notifications. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit AA of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee or Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.

The Certificate Administrator shall include in any Form 10-D filed by it (i) the information required by Rule 15Ga-1(a) of the Exchange Act concerning all assets of the Trust that were subject of a demand for the repurchase of, or the substitution of a Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by Section 2.03(b), (ii) a reference to the most recent Form ABS-15G filed by the Depositor and the Mortgage Loan Sellers, if applicable, and the Commission’s assigned “Central Index Key” for each such filer and (iii) to the extent such information is provided to the Certificate Administrator by the applicable Master Servicer in the form of Exhibit LL hereto for inclusion therein within the time period described in this Section 11.04, the balances of the REO Account (to the extent the related information has been received from the applicable Special Servicer within the time period specified in this Section 11.04) and each applicable Collection Account as of the related Distribution Date and as

-449- 

of the immediately preceding Distribution Date and (iv) the balances of the Distribution Accounts, the Gain-on-Sale Reserve Account and the Interest Reserve Account, in each case as of the related Distribution Date and as of the immediately preceding Distribution Date. The Depositor and the Mortgage Loan Sellers, in accordance with Section 5(f) of the applicable Mortgage Loan Purchase Agreement, shall deliver such information as described in clause (i) and clause (ii) of this paragraph.

Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator by email to cts.sec.notifications@wellsfargo.com, no later than the fifth (5th) calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

With respect to any Mortgage Loan that permits Additional Debt or mezzanine debt in the future, the Certificate Administrator shall include as part of any applicable Form 10-D filed by it (to the extent it receives such information from the applicable Servicer) the identity of such Mortgage Loan and, to the extent such information is received by the Certificate Administrator from the applicable Master Servicer or the applicable Special Servicer, as the case may be, substantially in the form of Exhibit JJ (A) the amount of any such Additional Debt or mezzanine debt, as applicable, that is incurred during the related Collection Period, (B) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable, and (C) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable.

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Forms 10-D and ABS-EE for each reporting period: Name: W. Todd Stillerman, Esq., Telephone: (980) 388-7451. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

Upon receipt of the Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall (i) include such Asset Review Report Summary in Item 1B on the Form 10-D in accordance with Section 11.04 for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

To the extent the Certificate Administrator receives a request from any Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners pursuant to Section 5.06, the Certificate Administrator shall include on the Form 10-D

-450- 

relating to the reporting period in which such request was received a Special Notice including the information required to be included pursuant to Section 5.06.

(b)       After preparing the Forms 10-D and ABS-EE, the Certificate Administrator shall forward electronically copies of the Forms 10-D and ABS-EE to the Depositor for review no later than ten (10) calendar days after the related Distribution Date or, if the 10th calendar day after the related Distribution Date is not a Business Day, the immediately preceding Business Day. Within two (2) Business Days after receipt of such copies, but no later than the two (2) Business Days prior to the 15th calendar day after the Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D and Form ABS-EE, respectively, and, a duly authorized officer of the Depositor shall sign the Form 10-D and Form ABS-EE and return an electronic or fax copy of such signed Form 10-D and Form ABS-EE (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Alternatively, if the Certificate Administrator agrees in its sole discretion, the Depositor may deliver to the Certificate Administrator manually signed copies of a power of attorney meeting the requirements of Item 601(b)(24) of Regulation S-K under the Securities Act under the Securities Act, and certified copies of a resolution of the Depositor’s board of directors authorizing such power of attorney, each to be filed with each Form 10-D and each Form ABS-EE, as applicable, in which case the Certificate Administrator shall sign such Forms 10-D and Forms ABS-EE, as applicable, as attorney in fact for the Depositor. As provided in Section 11.04(d), the Certificate Administrator shall file such Form ABS-EE, upon receipt of the Depositor’s signature thereof, prior to the filing of the related Form 10-D. If a Form 10-D or Form ABS-EE cannot be filed on time or if a previously filed Form 10-D or Form ABS-EE needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will make available on its Internet website a final executed copy of each Form 10-D and Form ABS-EE filed by the Certificate Administrator. The signing party at the Depositor can be contacted at One Bryant Park, NY-100-11-07, New York, New York 10036, Attention: Leland F. Bunch, III, with a copy to: W. Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255 and cmbsnotices@bofa.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.04(b) related to the timely preparation and filing of Form 10-D and Form ABS-EE, as applicable, is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.04(b). Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, or claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-D or such Form ABS-EE, respectively, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any party to this Agreement needed to prepare, arrange for execution or file such Form 10-D or such Form ABS-EE, respectively, not resulting from its own negligence, bad faith or willful misconduct.

(c)           Prior to the filing of each Form 10-D by the Certificate Administrator pursuant to Section 11.04(a), the Certificate Administrator shall prepare and file on behalf of the Trust any Form ABS-EE in form and substance as required by the Exchange Act and the rules and regulations of the Commission thereunder; provided that the foregoing shall not apply to any Form ABS-EE required to be filed with the Commission and incorporated by reference in the Prospectus

-451- 

(or the preliminary version thereof). The Certificate Administrator shall file each Form ABS-EE with a copy of the related CREFC^® Schedule AL File received by the Certificate Administrator pursuant to Section 3.12(c) as Exhibit 102 thereto. To the extent the Certificate Administrator receives any Schedule AL Additional File with respect to such Form ABS-EE pursuant to Section 3.12(c), the Certificate Administrator shall file such Schedule AL Additional File as Exhibit 103 to such Form ABS-EE. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File. After preparing the Form ABS-EE, the Certificate Administrator shall forward electronically a copy of such Form ABS-EE (together with the related CREFC^® Schedule AL File and any Schedule AL Additional File received by the Certificate Administrator) concurrently with the related Form 10-D to the Depositor for review and approval. Any questions shall be directed to ssreports@wellsfargo.com; provided, that if any such question pertains to information included in any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d), the General Master Servicer shall promptly provide a copy of such question to the NCB Master Servicer (via email at BANK2021BNK36@ncb.com) and consult with the NCB Master Servicer as to any response thereto. The General Master Servicer shall reasonably cooperate with the Depositor to answer any reasonable questions that the Depositor may pose to such Master Servicer regarding the data or information contained in any CREFC^® Schedule AL File or Schedule AL Additional File (other than questions regarding data that is in the Initial Schedule AL File, Initial Schedule AL Additional File or the Annex A-1 to the Prospectus) as of the time the applicable Master Servicer delivered such CREFC^® Schedule AL File or Schedule AL Additional File, as applicable, to the Certificate Administrator. The Certificate Administrator, the General Master Servicer, the NCB Master Servicer and the Depositor shall each, to the extent related to such party’s obligations hereunder, reasonably cooperate to remedy any filing errors regarding any CREFC^® Schedule AL File or any Schedule AL Additional File in a timely manner.

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Form ABS-EE for each reporting period: Name: W. Todd Stillerman, Esq., Telephone: (980) 388-7451. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

(d)          Any notice and/or information furnished or required to be furnished pursuant to this Section 11.04 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.04.

Section 11.05   Form 10-K Filings. (a) Within ninety (90) days after the end of each fiscal year of the Trust (it being understood that the fiscal year for the Trust ends on December 31 of each year) or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”), commencing in March 2022, the Certificate Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each

-452- 

such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator within the applicable time frames set forth in this Agreement:

(i)            an annual compliance statement for each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian and each Additional Servicer, as described under Section 11.09, including disclosure regarding any material instance of noncompliance and the nature and status thereof;

(ii)           (A) the annual reports on assessment of compliance with servicing criteria for the Trustee, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each other Servicing Function Participant utilized by each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Custodian or Trustee, as described under Section 11.10; and

(B)      if any such report on assessment of compliance with servicing criteria described under Section 11.10 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance (including whether such instance of noncompliance involved the servicing of the assets backing the Certificates issued pursuant to this Agreement and any steps taken to remedy such instance of noncompliance), or if such report on assessment of compliance with servicing criteria described under Section 11.10 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included;

(iii)          (A) the registered public accounting firm attestation report for the Trustee, each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each Servicing Function Participant utilized by each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Operating Advisor, the Custodian or the Trustee, as described under Section 11.11; and

(B)         if any registered public accounting firm attestation report described under Section 11.11 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included; and

(iv)          a certification in the form attached hereto as Exhibit Y, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the “Sarbanes-Oxley Certification”), which shall, except as described below, be signed by the senior officer of the Depositor in charge of securitization.

Any disclosure or information in addition to clauses (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the following

-453- 

paragraph be reported by the parties set forth on Exhibit BB to the Depositor and the Certificate Administrator and approved by the Depositor and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, absent such reporting, direction and approval. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com or by facsimile to (410) 715 2380, Attn: CTS SEC Notifications.

As set forth on Exhibit BB hereto, no later than March 1st of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2022, (i) the parties listed on Exhibit BB shall be required to provide to the Certificate Administrator and the Depositor, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-K Disclosure, if applicable, (ii) the parties listed on Exhibit BB hereto shall include with such Additional Form 10-K Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit DD and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit BB of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.

Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator in writing, no later than March 1st with respect to the filing of a report on Form 10-K, if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

(b)      After preparing the Form 10-K, the Certificate Administrator shall forward electronically a copy of the Form 10-K to the Depositor for review no later than six (6) Business Days prior to the 10-K Filing Deadline. Within three (3) Business Days after receipt of such copy, but no later than March 25th, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-K and the senior officer in charge of securitization for the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator at such time. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator shall follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will make available on its Internet website a final executed copy of each Form 10-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at One Bryant Park, NY-100-11-07, New York, New York 10036, Attention: Leland F.

-454- 

Bunch, III, with a copy to: W. Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255 and cmbsnotices@bofa.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.05 related to the timely preparation and filing of Form 10-K is contingent upon the parties to this Agreement (and any Additional Servicer or Servicing Function Participant engaged or utilized, as applicable, by any such parties) observing all applicable deadlines in the performance of their duties under this Section 11.05. Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-K, where such failure results from the Certificate Administrator’s failure to receive, on a timely basis, any information from the parties to this Agreement (or any Sub-Servicer or Servicing Function Participant engaged by any such parties) needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.

(c)       Upon written request from any Mortgage Loan Seller, Other Depositor, any Master Servicer or any Special Servicer, the Certificate Administrator shall confirm to such Mortgage Loan Seller, Other Depositor, applicable Master Servicer or applicable Special Servicer whether it has received notice that any party to this Agreement has changed since the Closing Date and will provide to such Mortgage Loan Seller or Other Depositor, the applicable Master Servicer or the applicable Special Servicer, if known to the Certificate Administrator, the identity of the new party.

(d)       Any notice and/or information furnished or required to be furnished pursuant to this Section 11.05 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.05.

Section 11.06  Sarbanes-Oxley Certification.  Each Form 10-K shall include a Sarbanes-Oxley Certification in the form attached as Exhibit Y required to be included therewith pursuant to the Sarbanes-Oxley Act. For so long as the Trust or the trust for any Other Securitization is subject to the reporting requirements of the Exchange Act, each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer (in the case of the Asset Representations Reviewer, solely with respect to reporting periods in which the Asset Representations Reviewer is required to deliver an Asset Review Report) shall provide, and (i) with respect to each Initial Sub-Servicer engaged by the applicable Master Servicer or the applicable Special Servicer, as the case may be, that is a Servicing Function Participant shall use commercially reasonable efforts to cause such Initial Sub-Servicer to provide, and (ii) with respect to each other Servicing Function Participant with which any Master Servicer, any Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans, shall cause such Servicing Function Participant to provide, to each Person who signs the Sarbanes-Oxley Certification for the Trust or any Other Securitization that includes a Serviced Companion Loan (individually and collectively, the “Certifying Person”), on or before March 1st of each year commencing in March 2022, a certification substantially in the form attached hereto as Exhibits Y-1, Y-2, Y-3, Y-4, Y-5, Y-6

-455- 

or Y-7 (each, a “Performance Certification”), as applicable, on which each Certifying Person, the entity for which such Certifying Person acts as an officer (if the Certifying Person is an individual), and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely; provided that, if a Servicing Function Participant (other than an Initial Sub-Servicer) with which the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans fails to provide a Performance Certification, the Performance Certification provided by the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor, as applicable, that engaged such Servicing Function Participant shall not exclude information that would have been provided by such Servicing Function Participant. In addition, in the event that any Serviced Companion Loan is deposited into a commercial mortgage securitization (including an “Other Securitization”) and the Reporting Servicer is provided with timely and complete contact information for the parties to such Other Securitization, each Reporting Servicer, upon not less than thirty (30) days prior written request, shall provide to the Person who signs the Sarbanes-Oxley Certification with respect to such Other Securitization either the Performance Certification or a separate certification in form and substance similar to applicable Performance Certification (which shall address the matters contained in the applicable Performance Certification, but solely with respect to the related Companion Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and such entity’s officers, directors and Affiliates can reasonably rely. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure a Sarbanes-Oxley Certification from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to a Performance Certification. The senior officer in charge of securitization for the Depositor shall serve as the Certifying Person on behalf of the Trust. In addition, each Reporting Servicer shall execute a reasonable reliance certificate (which may be included as part of such other certifications being delivered by such Reporting Servicer) to enable the Certification Parties to rely upon each (i) annual compliance statement provided pursuant to Section 11.09, if applicable, (ii) annual report on assessment of compliance with servicing criteria provided pursuant to Section 11.10 and (iii) accountant’s report provided pursuant to Section 11.11, and shall include a certification that each such annual compliance statement or report discloses any deficiencies or defaults described to the registered public accountants of such Reporting Servicer to enable such accountants to render the certificates provided for in Section 11.11. In the event any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a certification to each affected Certifying Person pursuant to this Section 11.06 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be. Each such Performance Certification shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator, any affected Other Depositor and Other Certificate Administrator and such providing parties. Notwithstanding the foregoing, nothing in this Section 11.06 shall require any Reporting Servicer (i) to certify or verify the accurateness or completeness of any information provided to such Reporting Servicer by third parties (including a “significant obligor”, but other than an Additional Servicer or a Sub-Servicer appointed pursuant to Section 3.20), (ii) to certify information other than to such Reporting Servicer’s knowledge and in accordance with

-456- 

such Reporting Servicer’s responsibilities hereunder or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Reporting Servicer have been completed except as they have been left blank on their face.

Notwithstanding anything to the contrary contained in this Section 11.06, with respect to each year in which the Trust and the trust for each Other Securitization is not subject to the reporting requirements of the Exchange Act, none of the parties required to deliver any certification under this Section 11.06 shall be obligated to do so.

Section 11.07   Form 8-K Filings.  Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor and to the extent it receives the Form 8-K Disclosure Information described below, the Certificate Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act and shall provide notice thereof to the Depositor, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit CC to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, absent such reporting, direction and approval.

As set forth on Exhibit CC hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than close of business, New York City time, on the second (2^nd) Business Day after the occurrence of a Reportable Event (i) the parties set forth on Exhibit CC hereto shall be required to provide to the Depositor and the Certificate Administrator, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties any Form 8-K Disclosure Information, if applicable, (ii) the parties listed on Exhibit CC hereto shall include with such Form 8-K Disclosure Information, an Additional Disclosure Notification in the form attached hereto as Exhibit DD and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit CC of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com or by facsimile to 410-715-2380, Attn: CTS SEC Notifications.

After preparing the Form 8-K, the Certificate Administrator shall forward electronically a copy of the Form 8-K to the Depositor for review no later than noon, New York City time, on the 3rd Business Day after the Reportable Event, but in no event earlier than twenty-four (24) hours after having received the Form 8-K Disclosure Information pursuant to the

-457- 

immediately preceding paragraph. Promptly, but no later than the close of business on the third (3rd) Business Day after the Reportable Event, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. No later than noon, New York City time, on the 4th Business Day after the Reportable Event, a duly authorized officer of the Depositor shall sign the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will, make available on its Internet website a final executed copy of each Form 8-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at One Bryant Park, NY-100-11-07, New York, New York 10036, Attention: Leland F. Bunch, III, with a copy to: W. Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255 and cmbsnotices@bofa.com. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.07 related to the timely preparation and filing of Form 8-K is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.07. Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from the parties to this Agreement needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.

Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator and the Trustee shall promptly notify (and the applicable Master Servicer and the applicable Special Servicer, as the case may be, shall (i) with respect to each Initial Sub-Servicer that is an Additional Servicer engaged by such Master Servicer or such Special Servicer, as applicable, use commercially reasonable efforts to cause such Additional Servicer to promptly notify and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement) cause such Additional Servicer to promptly notify) the Depositor and the Certificate Administrator, but in no event later than noon, New York City time, on the second (2nd) Business Day after its occurrence, of any Reportable Event applicable to such party to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format.

Notwithstanding anything to the contrary in this Section 11.07, with respect to each year in which the Trust and the trust for each Other Securitization is not subject to the reporting requirements of the Exchange Act, none of the parties hereto are required to deliver Form 8-K Disclosure Information.

Any notice and/or information furnished or required to be furnished pursuant to this Section 11.07 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan

-458- 

or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.07.

For so long as the Trust is subject to the reporting obligations of the Exchange Act, with respect to any Non-Serviced Mortgage Loan serviced under a related Non-Serviced PSA, no resignation, removal or replacement of any party to such Non-Serviced PSA that would be required to be reported on a Form 8-K relating to this Trust shall become effective with respect to this Trust until the Certificate Administrator has filed any required Form 8-K pursuant to this Section 11.07.

Section 11.08  Form 15 Filing.  On or prior to January 30th of the first year in which the Depositor shall provide notice to the Certificate Administrator of its ability under applicable law to suspend its Exchange Act filings, the Certificate Administrator shall prepare and file a notification relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act (the “Form 15 Suspension Notification”) or any form necessary to be filed with the Commission to suspend such reporting obligations. With respect to any reporting period occurring after the filing of such form, subject to Section 11.15(h), the obligations of the parties to this Agreement under Section 11.04, Section 11.05 and Section 11.07 shall be suspended and reports or certifications due under Section 11.09, 11.10 and 11.11 shall not be due until April 15th of each year. The Certificate Administrator shall provide prompt notice to the Mortgage Loan Sellers and all other parties hereto that such form has been filed. If, after the filing of a Form 15 Suspension Notification, the Depositor shall provide notice to the Certificate Administrator that it is required to resume its Exchange Act filings, the Certificate Administrator shall recommence preparing and filing reports on Forms 10-D, 10-K, ABS-EE and 8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07, and all parties’ obligations under this Article XI shall recommence.

Section 11.09  Annual Compliance Statements.  Each applicable Master Servicer, each applicable Special Servicer (regardless of whether the applicable Special Servicer has commenced special servicing of a Mortgage Loan), the Custodian, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it) and the Certificate Administrator (each, a “Certifying Servicer”) shall (and each such party shall (i) with respect to each Additional Servicer engaged by the Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer to deliver to and (ii) with respect to each other Additional Servicer that is also a Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to deliver to), on or before March 1st of each year, commencing in March 2022, deliver to the Trustee, the Certificate Administrator (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website), the Depositor and the 17g-5 Information Provider (who shall post to the 17g-5 Information Provider’s Website), an Officer’s Certificate, in the form attached hereto as Exhibit GG (or such other form, similar in substance, as may be reasonably acceptable to the Depositor) stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer has fulfilled all its obligations under

-459- 

this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Such Officer’s Certificate shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties. Each Certifying Servicer shall (i) with respect to each Additional Servicer engaged by such Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer, and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to forward a copy of each such statement (or, in the case of the Certificate Administrator, make a copy of each such statement available on its Internet website) to the Directing Certificateholder and the 17g-5 Information Provider. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such Officer’s Certificate from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit GG. Promptly after receipt of each such Officer’s Certificate, the Depositor may review each such Officer’s Certificate and, if applicable, consult with the Certifying Servicer as to the nature of any failures by the Certifying Servicer or any related Additional Servicer with which the Certifying Servicer has entered into a servicing relationship with respect to the Mortgage Loans in the fulfillment of any of the Certifying Servicer’s or Additional Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement. The obligations of the Certifying Servicer and each Additional Servicer under this Section 11.09 apply to the Certifying Servicer and each Additional Servicer that serviced a Mortgage Loan during the applicable period, whether or not such Certifying Servicer or Additional Servicer is acting as a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator or Additional Servicer at the time such Officer’s Certificate is required to be delivered. Each applicable Master Servicer, each applicable Special Servicer and each Additional Servicer shall not be required to cause the delivery of any such statement until April 15 in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

In the event any Master Servicer, any Special Servicer, the Trustee or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer to provide and (ii) with respect to any other Additional Servicer engaged by such party that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide, an annual statement of compliance pursuant to this Section 11.09 with respect to the period of time that the applicable Master Servicer, the applicable Special Servicer, the Trustee or the Certificate Administrator was subject to this Agreement or the period of time that such Additional Servicer was subject to such other servicing agreement.

Any certificate, statement, report, notice and/or information furnished or required to be furnished pursuant to this Section 11.09 shall also be provided to each Other Depositor and

-460- 

each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.09.

Section 11.10  Annual Reports on Assessment of Compliance with Servicing Criteria.  (a) On or before March 1st of each year, commencing in March 2022, each applicable Master Servicer, each applicable Special Servicer (regardless of whether any Special Servicer has commenced special servicing of the Mortgage Loans), the Trustee (provided, however, that the Trustee shall be required to deliver an assessment of compliance only if an Advance was made by the Trustee in such calendar year), the Custodian, the Operating Advisor, the Certificate Administrator and each Additional Servicer, each at its own expense, shall furnish (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by a Master Servicer, a Special Servicer, Trustee, Operating Advisor, Custodian, or Certificate Administrator that is a Servicing Function Participant, use commercially reasonable efforts to cause such Servicing Function Participant to furnish and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to furnish) to the Trustee, the Certificate Administrator, the Depositor (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website) (and, with respect to each applicable Special Servicer, also to the Operating Advisor), and the 17g-5 Information Provider, a report substantially in the form of Exhibit HH or such other form provided by such Reporting Servicer that complies in all material respects with the requirements of Item 1122 of Regulation AB, on an assessment of compliance with the Servicing Criteria applicable to it that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Relevant Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 11.05, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit HH. Such report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the Reporting Servicer.

Each such report shall be addressed to the Depositor and signed by an authorized officer of the applicable company, and shall address the Relevant Servicing Criteria specified on a certification substantially in the form of Exhibit Z hereto delivered to the Depositor on the Closing Date. Promptly after receipt of each such report, (i) the Depositor may review each such report and, if applicable, consult with each Reporting Servicer as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria applicable to it (and each Servicing Function Participant engaged or utilized by each Reporting Servicer, as applicable), and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Exhibit Z and notify the Depositor of any

-461- 

exceptions. Each applicable Master Servicer, each applicable Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and any Servicing Function Participant shall not be required to cause the delivery of any such assessments until April 15th in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

Notwithstanding the foregoing, at any time that the Certificate Administrator and the Trustee are the same entity, the Certificate Administrator and Trustee may provide a combined assessment of compliance required pursuant to this Section 11.10(a) in respect of their combined Relevant Servicing Criteria as set forth on Exhibit Z hereto.

(b)       Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator hereby acknowledge and agree that the Relevant Servicing Criteria set forth on Exhibit Z is appropriately set forth with respect to such party and any Servicing Function Participant with which each applicable Master Servicer, each applicable Special Servicer, Trustee, Operating Advisor or Certificate Administrator has entered into a servicing relationship.

(c)       No later than ten (10) Business Days after the end of each fiscal year for the Trust, any Master Servicer and any Special Servicer shall notify the Certificate Administrator, the Depositor and each Mortgage Loan Seller as to the name of each Additional Servicer engaged by it and each Servicing Function Participant utilized by it, in each case other than with respect to any Initial Sub-Servicer, and the Trustee, the Operating Advisor and the Certificate Administrator shall notify the Depositor and each Mortgage Loan Seller as to the name of each Servicing Function Participant utilized by it, in each case by providing an updated Exhibit FF, and each such notice (except to a Mortgage Loan Seller) will specify what specific Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant. When each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor submit their assessments pursuant to Section 11.10(a), such Master Servicer, such Special Servicer, the Trustee, the Certificate Administrator and the Operating Advisor, as applicable, will also at such time include the assessment (and related attestation pursuant to Section 11.11) of each Servicing Function Participant engaged by it.

In the event any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each such party shall cause any Servicing Function Participant engaged by it to provide (and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such Master Servicer or Special Servicer that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer and (ii) with respect to any other Additional Servicer that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide) an annual assessment of compliance pursuant to this Section 11.10, coupled with an attestation as required in Section 11.11 with respect to the period of time that the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator was

-462- 

subject to this Agreement or the period of time that the Additional Servicer was subject to such other servicing agreement.

(d)      The Operating Advisor may at any time request from the Certificate Administrator confirmation of whether a Control Termination Event or Consultation Termination Event occurred during the previous calendar year, and upon such request the Certificate Administrator shall deliver such confirmation to the Operating Advisor within fifteen (15) days of such request.

(e)       Any certificate, statement, report, assessment, attestation, notice and/or information furnished or required to be furnished pursuant to this Section 11.10 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.10.

Section 11.11  Annual Independent Public Accountants’ Attestation Report.  On or before March 1st of each year, commencing in March 2022, each applicable Master Servicer, each applicable Special Servicer, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it), the Custodian, the Operating Advisor and the Certificate Administrator, each at its own expense, shall cause (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee, Operating Advisor or Certificate Administrator that is a Servicing Function Participant use commercially reasonable efforts to cause such Servicing Function Participant to cause and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to cause) a registered public accounting firm (which may also render other services to each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor or the applicable Servicing Function Participant, as the case may be) and that is a member of the American Institute of Certified Public Accountants to furnish a report to the Trustee, the Certificate Administrator (who will promptly post such report on the Certificate Administrator’s Website pursuant to Section 3.13(b)) and the Depositor, the 17g-5 Information Provider and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, and, promptly, but not earlier than the second (2^nd) Business Day following the delivery of such report to the 17g-5 Information Provider, to the Rating Agencies, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assertion that such Reporting Servicer has complied with the Relevant Servicing Criteria applicable to it and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is issuing an opinion as to whether such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria applicable to it was fairly stated in all material respects. In the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each such related accountant’s attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will

-463- 

use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee. Copies of such statement will be provided by the Certificate Administrator in accordance with Section 3.13(b). Such report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the providing parties.

Promptly after receipt of such report from any Master Servicer, any Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant, (i) the Depositor may review the report and, if applicable, consult with the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator as to the nature of any defaults by each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian, the Certificate Administrator or any Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, as the case may be, in the fulfillment of any of the applicable Master Servicer’s, the applicable Special Servicer’s, the Trustee’s, the Certificate Administrator’s, the Operating Advisor’s, the Custodian’s or the applicable Servicing Function Participants’ obligations hereunder or under the applicable sub-servicing or primary servicing agreement, and (ii) the Certificate Administrator shall confirm that each accountants’ attestation report submitted pursuant to this Section 11.11 relates to an assessment of compliance meeting the requirements of Section 11.10 and notify the Depositor of any exceptions. Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian and any Additional Servicer shall not be required to deliver, or shall be required to cause the delivery of such reports until April 15th in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed with respect to the Trust for the preceding fiscal year.

Any notice, report, assessment of compliance, statement, certificate and/or information furnished or required to be furnished pursuant to this Section 11.11 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.11.

Section 11.12  Indemnification.  Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer shall indemnify and hold harmless each Certification Party from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Certification Party arising out of (i) an actual breach by such Master Servicer, such Special Servicer, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Certificate Administrator, as the case may be, of its obligations under this Article XI, (ii) negligence, bad faith or willful misconduct on the part of such Master Servicer, such Special Servicer, the Trustee, the Asset Representations Reviewer, the Operating Advisor, the Custodian or the Certificate Administrator in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable by, or on behalf of, such party.

-464- 

Each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, in each case, indemnify and hold harmless each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Certification Party arising out of (a) a breach of its obligations to provide any of the annual compliance statements or annual assessment of compliance with the servicing criteria or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement, (b) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (c) any failure by it, as a Servicer (as defined in Section 11.02(b)) to identify a Servicing Function Participant pursuant to Section 11.02(c), or (d) delivery of any Deficient Exchange Act Deliverable.

In addition, each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement) with the Depositor and each Other Depositor as necessary for the Depositor or such Other Depositor, as applicable, to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).

In connection with comments provided to the Depositor or any Other Depositor from the Commission or its staff regarding information (x) delivered by each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or an Additional Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such Affected Reporting Party to prepare such information, which information is contained in a report filed by the Depositor or any Other Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s or any Other Depositor’s filing of such report, the Depositor or any Other Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission or its staff for inclusion in the Depositor’s or any Other Depositor’s response to the Commission or its staff, unless such Affected Reporting Party elects, with the consent of the Depositor or any Other Depositor, as applicable (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission or its staff and negotiate a response and/or resolution with the Commission or its staff; provided, however, that if an Affected Reporting Party is a Servicing Function Participant or Additional Servicer retained by a Master Servicer, a Master Servicer shall receive

-465- 

copies of all material communications pursuant to this Section 11.12. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission or its staff in a timely manner; provided that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor or any Other Depositor informed of its progress with the Commission or its staff and copy the Depositor or any Other Depositor on all correspondence with the Commission or its staff and provide the Depositor or any Other Depositor with the opportunity to participate (at the Depositor’s or any Other Depositor’s expense) in any telephone conferences and meetings with the Commission or its staff and (ii) the Depositor or any Other Depositor shall cooperate with any Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission or its staff with respect to any comments from the Commission or its staff relating to such Affected Reporting Party and to notify the Commission or its staff of such authorization. The Depositor (or any Other Depositor) and the Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission or its staff for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor or any Other Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor or any Other Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses required to be at the Depositor’s or any Other Depositor’s expense as set forth above) and any amendments to any reports filed with the Commission or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor or any Other Depositor, as the case may be. Each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) with respect to any Initial Sub-Servicer engaged by it that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.

If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor (the “Performing Party”) shall contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to Sections 11.06, 11.09 (if applicable), 11.10, 11.11 (or breach of its obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer or Servicing Function Participant, in each case, with which it has entered into a servicing relationship with respect to the Mortgage

-466- 

Loans cause such party, in each case, to agree to the foregoing indemnification and contribution obligations. This Section 11.12 shall survive the termination of this Agreement or the earlier resignation or removal of any Master Servicer, any Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator.

Section 11.13 Amendments.  This Article XI may be amended with the written consent of the parties hereto pursuant to Section 13.01 for purposes of complying with Regulation AB and/or to conform to standards developed within the CMBS market and the Sarbanes-Oxley Act without any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement; provided that the reports and certificates required to be prepared pursuant to Sections 3.13, 11.09, 11.10 and 11.11 shall not be eliminated without Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, without a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25). For the avoidance of doubt, any amendment to this Article XI affecting a Serviced Companion Loan shall be subject to Section 13.01(k).

Section 11.14  Regulation AB Notices.  Any notice, report or certificate required to be delivered by any Master Servicer, any Special Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Trustee, as the case may be, to the Depositor pursuant to this Article XI may be delivered via email (and additionally delivered via phone or telecopy), notwithstanding the provisions of Section 13.05, to cts.sec.notifications@wellsfargo.com.

Section 11.15  Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans.  (a) Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any sub-servicer appointed with respect to any Serviced Pari Passu Companion Loan to, upon written request or notice from a Mortgage Loan Seller (or a permitted transferee of such Mortgage Loan Seller pursuant to the related Intercreditor Agreement), reasonably cooperate with the Mortgage Loan Seller (or such permitted transferee) selling any Serviced Pari Passu Companion Loan into a securitization that is required to comply with Regulation AB (a “Regulation AB Companion Loan Securitization”) and, to the extent needed in order to comply with Regulation AB, provide to the Mortgage Loan Seller (or such permitted transferee) information about itself that such Mortgage Loan Seller reasonably requires to meet the requirements of Items 1117 and 1119 and paragraphs (b), (c)(2), (c)(3), (c)(4), (c)(5), (c)(6) and (e) of Item 1108 of Regulation AB and shall reasonably cooperate with such Mortgage Loan Seller to provide such other information as may be reasonably necessary to comply with the requirements of Regulation AB. Each of the

-467- 

Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer understands that such information may be included in the offering material related to a Regulation AB Companion Loan Securitization and agrees to (i) negotiate in good faith an agreement (subject to the final sentence of this sub-section) to indemnify and hold the related depositor and underwriters involved in the offering of the related commercial mortgage pass through certificates harmless for any costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by the depositor or such underwriters as a result of any material misstatements or omissions or alleged material misstatements or omissions in any such offering material to the extent that such material misstatement or omission was made in reliance upon any such information provided by the Trustee (where such information pertains to the Trustee individually and not to any specific aspect of the Trustee’s duties or obligations under this Agreement), the Certificate Administrator (where such information pertains to the Certificate Administrator individually and not to any specific aspect of the Certificate Administrator’s duties or obligations under this Agreement), the applicable Master Servicer (where such information pertains to the applicable Master Servicer individually and not to any specific aspect of the applicable Master Servicer’s duties or obligations under this Agreement) and the applicable Special Servicer (where such information pertains to the applicable Special Servicer individually and not to any specific aspect of the applicable Special Servicer’s duties or obligations under this Agreement), as applicable, to such depositor, underwriters or Mortgage Loan Seller (or permitted transferee) as required by this Section 11.15(a) and (ii) deliver such securities law opinion(s) of counsel, certifications and/or indemnification agreement(s) (to the extent the cost thereof is paid by the related Mortgage Loan Seller) with respect to such information that are substantially similar to those delivered with respect to the offering material for this securitization by the applicable Master Servicer or the applicable Special Servicer, Trustee and Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the offering material related to a Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent that the information provided by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, for inclusion in the offering materials related to such Regulation AB Companion Loan Securitization is substantially and materially similar to the information provided by such party with respect to the offering materials related to this transaction, subject to any required changes due to any amendments to Regulation AB or any changes in the interpretation of Regulation AB or changes in factual circumstances, such party shall be deemed to be in compliance with this Section 11.15(a). Any indemnification agreement executed by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer in connection with the Regulation AB Companion Loan Securitization shall be substantially similar to the related indemnification agreement executed in connection with this Agreement. It shall be a condition precedent to any party’s obligations otherwise set forth above and/or elsewhere in Article XI that the applicable Mortgage Loan Seller (or permitted transferee) shall have (a) provided reasonable advance notice (and, in any event, not less than ten (10) Business Days) of the exercise of its rights hereunder and (b) paid, or entered into reasonable agreement to cause to be paid, the reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by such party in reviewing and/or causing the delivery of any disclosure, opinion of counsel or indemnification agreement.

(b)          Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the

-468- 

applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), cooperate with the depositor, trustee, certificate administrator, master servicer or special servicer for any Regulation AB Companion Loan Securitization in preparing each Form 10-D, Form ABS-EE and Form 10-K required to be filed by such Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or other applicable party for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) and shall provide to such depositor, trustee, certificate administrator or master servicer within the time period set forth in the Other Pooling and Servicing Agreement (so long as such time period is no earlier than the time periods set forth herein) for such Regulation AB Companion Loan Securitization such information relating to a Serviced Securitized Companion Loan as may be reasonably necessary for the depositor, trustee, certificate administrator and master servicer of the Regulation AB Companion Loan Securitization to comply with the reporting requirements of Regulation AB and the Exchange Act; provided, however, that any parties to any Regulation AB Companion Loan Securitization shall consult with the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer (and the applicable Master Servicer shall consult with any sub-servicer appointed by it with respect to the related Serviced Whole Loan), and the Trustee, the Certificate Administrator, such Master Servicer and such Special Servicer shall cooperate with such parties in respect of establishing the time periods for preparation of the Form 10-D and Form ABS-EE reports in the documentation for such Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(b) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(b).

(c)          Each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide the depositor, trustee or certificate administrator, as applicable, under a Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or certificate administrator, as applicable, for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) information with respect to any event that is required to be disclosed under Form 8-K with respect to a Serviced Securitized Companion Loan within two (2) Business Days after the occurrence of such event of which it has knowledge. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, any Master Servicer or any Special

-469- 

Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(c) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(c).

(d)      On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide, with respect to itself, to the depositor, trustee or certificate administrator, as applicable, under such Regulation AB Companion Loan Securitization, to the extent required pursuant to Item 1122 of Regulation AB, (i) a report on an assessment of compliance with the servicing criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting firm’s attestation report on such Person’s assessment of compliance with the applicable servicing criteria to the extent required pursuant to Item 1122(b) of Regulation AB and (iii) such other information as may be required pursuant to Item 1122(c) of Regulation AB. Notwithstanding the foregoing, to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(d) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(d).

(e)       On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, each applicable Master Servicer and each applicable Special Servicer shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to, to the extent required pursuant to Item 1123 of Regulation AB, deliver, with respect to itself, to the depositor, trustee and certificate administrator under such Regulation AB Companion Loan Securitization (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), under such Regulation

-470- 

AB Companion Loan Securitization a servicer compliance statement signed by an authorized officer of such Person that satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(e) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(e).

(f)       Each of the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause a Servicing Function Participant to agree (severally but not jointly) to indemnify (such indemnity limited to each such parties respective failure described below) and hold the related Mortgage Loan Seller (or permitted transferee), depositor, sponsor(s), trustee, certificate administrator or master servicer under a Regulation AB Companion Loan Securitization harmless for any costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) incurred by such Mortgage Loan Seller, depositor, sponsor(s), trustee, certificate administrator or master servicer as a result of any failure by the Servicing Function Participant to comply with the reporting requirements to the extent applicable set forth under Sections 11.15(b), (c), (d) or (e) above.

Any subservicing agreement related to a Serviced Securitized Companion Loan shall contain a provision requiring the related Sub-Servicer to provide to the applicable Master Servicer or the applicable Special Servicer, as applicable, information, reports, statements and certificates with respect to itself and such Serviced Securitized Companion Loan comparable to any information, reports, statements or certificates required to be provided by the applicable Master Servicer or the applicable Special Servicer pursuant to this Section 11.15, even if such Sub-Servicer is not otherwise required to provide such information, reports or certificates to any Person in order to comply with Regulation AB. Such information, reports or certificates shall be provided to the applicable Master Servicer or the applicable Special Servicer, as the case may be, no later than two (2) Business Days prior to the date on which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is required to deliver its comparable information, reports, statements or certificates pursuant to this Section 11.15.

(g)        With respect to any Mortgaged Property that secures a Serviced Pari Passu Companion Loan that the applicable Other Depositor has notified the applicable Master Servicer and the applicable Special Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) (together with notification of the relevant Distribution Date) with respect to an Other Securitization that includes such Serviced Companion Loan, to the extent that the applicable Master Servicer or the applicable Special Servicer, as the case may be, is in receipt of the updated financial statements of such “significant obligor” for any calendar quarter (other than the fourth (4th) calendar quarter of any calendar year) from the Mortgagor, beginning with the first calendar quarter in which such notice from the Other Depositor was received, or the updated financial statements of such “significant obligor” for any calendar year, beginning for the calendar year in which such notice from the Other Depositor was received, as applicable, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall deliver to

-471- 

the Other Depositor, on or prior to the day that occurs two (2) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seven (7) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs twelve (12) or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seventeen (17) or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, the financial statements of such “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as calculated by the applicable Master Servicer (or as calculated by the applicable Special Servicer and provided to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or as calculated by the applicable Special Servicer with respect to any Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer) in accordance with CREFC^® guidelines and (B) if such financial statement receipt occurs less than twelve (12) Business Day prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than seventeen (17) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of the “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as reported by the related Mortgagor in such financial statements (or as reported by the related Mortgagor to the applicable Special Servicer and provided by the applicable Special Servicer to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or as reported by the applicable Special Servicer with respect to the Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer).

If the applicable Master Servicer or the applicable Special Servicer, as the case may be, does not receive such financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten (10) Business Days after the date such financial information is required to be delivered under the related Mortgage Loan documents, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall notify the Other Depositor with respect to such Other Securitization that includes the related Serviced Pari Passu Companion Loan (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to notify such Other Depositor) that it has not received such financial information. The applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements required to be delivered by the related Mortgagor under the related Mortgage Loan documents.

The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the related Mortgagor related to any such “significant obligor” (identified to it as such by the Other Depositor in accordance with the second preceding paragraph) to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed with respect to the

-472- 

Other Securitization, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization; provided, however, the applicable Special Servicer shall provide such Officer’s Certificate to the applicable Master Servicer and the applicable Master Servicer shall forward such Officer’s Certificate to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.

(h)          If any Other Securitization includes a Serviced Companion Loan and is subject to the reporting requirements of the Exchange Act, then the obligations of the parties hereto set forth in this Article XI with respect such Other Securitization shall remain in full force and effect notwithstanding that the Trust may cease to be subject to the reporting requirements of the Exchange Act.

Section 11.16  Certain Matters Regarding Significant Obligors.  As of the Closing Date, with respect to the Trust, there is no “significant obligor” within the meaning of Item 1101(k) of Regulation AB (“Significant Obligor”).

Section 11.17   Impact of Cure Period.  For the avoidance of doubt, no Master Servicer or Special Servicer shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, during any grace period provided for in this Article XI; provided that if any such party fails to comply with the delivery requirements of this Article XI by the expiration of any applicable grace period such failure shall constitute a Servicer Termination Event. No Master Servicer or Special Servicer shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, for failing to deliver any item required under this Article XI by the time required hereunder with respect to any reporting period for which the Trust (or any trust in a related Other Securitization) is not required to file Exchange Act reports.

[End of Article XI]

Article XII

THE ASSET REPRESENTATIONS REVIEWER

Section 12.01   Asset Review.

(a)           On or prior to each Distribution Date, based either on the CREFC^® Delinquent Loan Status Report and/or the CREFC^® Loan Periodic Update File delivered by the applicable Master Servicer for such Distribution Date, the Certificate Administrator shall determine if an Asset Review Trigger has occurred. If an Asset Review Trigger is determined to have occurred, the Certificate Administrator shall promptly provide notice to all Certificateholders

-473- 

and each other party to this Agreement. Any notice required to be delivered to the Certificateholders pursuant to this Article XII shall be delivered by the Certificate Administrator by posting such notice on the Certificate Administrator’s Website, by mailing such notice to the Certificateholders’ addresses appearing in the Certificate Register in the case of Definitive Certificates and by delivering such notice via the Depository in the case of Book-Entry Certificates. The Certificate Administrator shall include in the Form 10-D relating to the reporting period in which the Asset Review Trigger occurred the following statement describing the events that caused the Asset Review Trigger to occur: “As of the [Date of Distribution], the following Mortgage Loans identified below are sixty (60) or more days delinquent and an Asset Review Trigger as defined in the Pooling and Servicing Agreement has occurred.”. On each Distribution Date occurring after providing such notice to Certificateholders, the Certificate Administrator, based on information provided to it by the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall determine whether (1) any additional Mortgage Loan has become a Delinquent Loan, (2) any Mortgage Loan has ceased to be a Delinquent Loan and (3) whether an Asset Review Trigger has ceased to exist, and, if there is an occurrence of any of the events or circumstances identified in clauses (1), (2) and/or (3), deliver such information in a written notice (which may be via email) in the form of Exhibit RR within two (2) Business Days to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

If Certificateholders (other than Holders of the RR Interest) evidencing not less than 5% of the Voting Rights of the Certificates deliver to the Certificate Administrator, within ninety (90) days after the filing of the Form 10-D reporting the occurrence of an Asset Review Trigger, a written direction requesting a vote to commence an Asset Review (an “Asset Review Vote Election”), then the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders (with a copy to the Asset Representations Reviewer) and conduct a solicitation of votes in accordance with Section 5.10 to authorize an Asset Review. Upon the affirmative vote to authorize an Asset Review by Holders of Certificates evidencing at least (i) a majority of those Certificateholders who cast votes and (ii) a majority of an Asset Review Quorum within one hundred fifty (150) days of receipt of the Asset Review Vote Election (an “Affirmative Asset Review Vote”), the Certificate Administrator shall promptly provide written notice thereof to all parties to this Agreement, the Underwriters, the Mortgage Loan Sellers, the Directing Certificateholder, the Risk Retention Consultation Party and the other Certificateholders (the “Asset Review Notice”). Upon receipt of an Asset Review Notice, the Asset Representations Reviewer shall request access to the Secure Data Room by providing the Certificate Administrator with a certification substantially in the form attached hereto as Exhibit QQ (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s Website). Upon receipt of such certification, the Certificate Administrator shall promptly (and in any case within two (2) Business Days after such receipt) grant the Asset Representations Reviewer access to the Secure Data Room. In the event an Affirmative Asset Review Vote has not occurred within such one hundred fifty (150) day period following the receipt of the Asset Review Vote Election, no Certificateholder may request a vote or cast a vote for an Asset Review and the Asset Representations Reviewer will not be required to review any Delinquent Loan unless and until (A) an additional Mortgage Loan has become a Delinquent Loan after the expiration of such one hundred fifty (150) day period, (B) a new Asset Review Trigger has occurred as a result or an Asset Review Trigger is otherwise in effect, (C) the Certificate Administrator has timely received any Asset Review Vote Election after the occurrence

-474- 

of the events described in clauses (A) and (B) in this sentence and (D) an Affirmative Asset Review Vote has occurred within one hundred fifty (150) days after the Asset Review Vote Election described in clause (C) in this sentence. After the occurrence of any Asset Review Vote Election or an Affirmative Asset Review Vote, no Certificateholder may make any additional Asset Review Vote Election except as described in the immediately preceding sentence. Any reasonable out-of-pocket expenses incurred by the Certificate Administrator in connection with administering such vote will be paid as an expense of the Trust from the applicable Collection Account. The Certificate Administrator shall be entitled to administer any vote in connection with the foregoing through an agent.

(b)       (i) Upon receipt of an Asset Review Notice, the Custodian (with respect to clauses (1) - (5) below for all Mortgage Loans), the applicable Master Servicer (with respect to clauses (6) and (7) below for Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to clauses (6) and (7) below for Specially Serviced Loans), in each case to the extent in such party’s possession, shall promptly, but in no event later than ten (10) Business Days, provide the following materials in electronic format to the Asset Representations Reviewer (collectively, with the Diligence Files posted on the Secure Data Room by the Certificate Administrator pursuant to Section 4.08, a copy of the Prospectus, a copy of each related Mortgage Loan Purchase Agreement and a copy of this Agreement, the “Review Materials”):

(1)       a copy of an assignment of the Mortgage in favor of the Trustee, with evidence of recording thereon, for each Delinquent Loan that is subject to an Asset Review;

(2)a copy of an assignment of any related assignment of leases (if such item is a document separate from the Mortgage) in favor of the Trustee, with evidence of recording thereon, related to each Delinquent Loan that is subject to an Asset Review;

(3)       a copy of the assignment of all unrecorded documents relating to each Delinquent Loan that is subject to an Asset Review, if not already covered pursuant to clause (1) or clause (2) above;

(4)       a copy of all filed copies (bearing evidence of filing) or evidence of filing of any UCC financing statements related to each Delinquent Loan that is subject to an Asset Review;

(5)       a copy of an assignment in favor of the Trustee of any financing statement executed and filed in the relevant jurisdiction related to each Delinquent Loan that is subject to an Asset Review;

(6)       a copy of any notice previously delivered by the applicable Master Servicer or the applicable Special Servicer, as applicable, of any alleged defect or breach with respect to any Delinquent Loan; and

(7)       copies of any other related documents that were entered into or delivered in connection with the origination of the related Mortgage Loan that the Asset Representations Reviewer has determined are necessary in connection with

-475- 

its completion of any Asset Review and that are requested by the Asset Representations Reviewer, in the time frames and as otherwise described in clause (ii) hereof.

(ii)       In addition, in the event that, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, the Asset Representations Reviewer shall promptly, but in no event later than ten (10) Business Days after receipt of the Review Materials, notify the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, of such missing document(s), and request that the applicable Master Servicer or the applicable Special Servicer, as the case may be, promptly, but in no event later than ten (10) Business Days after receipt of notification from the Asset Representations Reviewer, deliver to the Asset Representations Reviewer such missing document(s) to the extent in its possession; provided that any such notification and/or request shall be in writing, specifically identifying the documents being requested and sent to the notice address for the related party set forth in Section 13.05 of this Agreement. In the event any missing documents are not provided by the applicable Master Servicer or the applicable Special Servicer, as the case may be, within such ten (10) Business Day period, the Asset Representations Reviewer shall request such documents from the related Mortgage Loan Seller; provided that the Mortgage Loan Seller is required under the related Mortgage Loan Purchase Agreement to deliver such missing document only to the extent such document is in the possession of such party but in any event excluding any documents that contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications (and, if such documents are not in its possession, solely with respect to any Mortgage Loan sold by such Mortgage Loan Seller that is a Non-Serviced Mortgage Loan, Mortgage Loan Seller shall be required to make a request under the applicable Non-Serviced PSA for any such documents that are not in its possession). In the event any missing documents with respect to a Non-Serviced Mortgage Loan are not provided by the Mortgage Loan Seller, the Asset Representations Reviewer shall request such documents from the parties to the related Non-Serviced PSA, to the extent that the Asset Representations Reviewer is entitled to request such documents under such Non-Serviced PSA.

(iii)         The Asset Representations Reviewer may, but is under no obligation to, consider and rely upon information furnished to it by a Person that is not a party to this Agreement or the applicable Mortgage Loan Seller, and shall do so only if such information can be independently verified (without unreasonable effort or expense to the Asset Representations Reviewer) and is determined by the Asset Representations Reviewer in its good faith and sole discretion to be relevant to the Asset Review conducted pursuant to this Section 12.01 (any such information, “Unsolicited Information”).

(iv)         Upon receipt by the Asset Representations Reviewer of the Asset Review Notice and access to the Diligence File with respect to a Delinquent Loan, the Asset Representations Reviewer, as an independent contractor, shall commence a review of the compliance of each Delinquent Loan with the representations and warranties related to that

-476- 

Delinquent Loan (such review, the “Asset Review”). The Asset Representations Reviewer shall perform an Asset Review with respect to each representation and warranty made by the related Mortgage Loan Seller with respect to such Delinquent Loan in accordance with the procedures set forth on Exhibit PP (each such procedure, a “Test”); provided, that the Asset Representations Reviewer may, but is under no obligation to, modify any Test and/or associated Review Materials described in Exhibit PP if, and only to the extent, the Asset Representations Reviewer determines pursuant to the Asset Review Standard that it is necessary to modify such Test and/or such associated Review Materials in order to facilitate its Asset Review in accordance with the Asset Review Standard. Once an Asset Review of a Mortgage Loan is completed, no further Asset Review shall be required in respect of, or performed on, such Mortgage Loan notwithstanding that such Mortgage Loan may continue to be a Delinquent Loan or again become a Delinquent Loan at a time when a new Asset Review Trigger occurs and a new Affirmative Asset Review Vote is obtained subsequent to the occurrence of such new Asset Review Trigger.

(v)           No Certificateholder shall have the right to change the scope of the Asset Review, and the Asset Representations Reviewer shall not be required to review any information other than (1) the Review Materials and (2) if applicable, Unsolicited Information.

(vi)          The Asset Representations Reviewer may, absent manifest error and subject to the Asset Review Standard, (i) assume, without independent investigation or verification, that the Review Materials are accurate and complete in all material respects and (ii) conclusively rely on such Review Materials.

(vii)         The Asset Representations Reviewer shall prepare a preliminary report with respect to each Delinquent Loan within fifty-six (56) days after the date on which access to the Secure Data Room is provided, subject to the last sentence of this Section 12.01(b)(vii). In the event that the Asset Representations Reviewer determines that the Review Materials are insufficient to complete a Test and such missing documentation is not delivered to the Asset Representations Reviewer by the related Mortgage Loan Seller, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) to the extent in the possession of the applicable Master Servicer or applicable Special Servicer, as applicable, within ten (10) Business Days following the request by the Asset Representations Reviewer to the applicable Master Servicer, the applicable Special Servicer or the related Mortgage Loan Seller, as the case may be, as described in Section 12.01(b)(ii), the Asset Representations Reviewer shall list such missing documents in such preliminary report setting forth the preliminary results of the application of the Tests and the reasons why such missing documents are necessary to complete a Test and (if the Asset Representations Reviewer has so concluded) that the absence of such documents will be deemed to be a failure of such Test. The Asset Representations Reviewer shall provide such preliminary report to the applicable Master Servicer (only with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) and the related Mortgage Loan Seller. If the preliminary report indicates that any of the representations and warranties fails or is deemed to fail any Test, the related Mortgage Loan Seller shall have ninety (90) days (the “Cure/Contest Period”) to remedy or otherwise

-477- 

refute the failure. Any documents or explanations to support the related Mortgage Loan Seller’s claim that the representation and warranty has not failed a Test or that any missing information or documents in the Review Materials are not required to complete a Test shall be sent by such Mortgage Loan Seller to the Asset Representations Reviewer. For avoidance of doubt, the Asset Representations Reviewer shall not be required to prepare a preliminary report in the event the Asset Representations Reviewer determines that there is no Test failure with respect to the related Mortgage Loan.

(viii)        The Asset Representations Reviewer shall, within sixty (60) days after the date on which access to the Secure Data Room is provided to the Asset Representations Reviewer by the Certificate Administrator or within the ten (10) days after the expiration of the Cure/Contest Period (whichever is later), complete an Asset Review with respect to each Delinquent Loan and deliver (i) a report setting forth the Asset Representations Reviewer’s findings and conclusions as to whether or not it has determined there is any evidence of a failure of any Test based on the Asset Review and a statement that the Asset Representations Reviewer’s findings and conclusions set forth in such report were not influenced by any third party (an “Asset Review Report”) to each party to this Agreement, the related Mortgage Loan Seller for each Delinquent Loan, the Directing Certificateholder and (ii) a summary of the Asset Representations Reviewer’s conclusions included in such Asset Review Report (an “Asset Review Report Summary”) to the Trustee, the applicable Special Servicer and the Certificate Administrator. The period of time by which the Asset Review Report must be completed and delivered may be extended by up to an additional thirty (30) days, upon written notice to the parties to this Agreement and the applicable Mortgage Loan Seller, if the Asset Representations Reviewer determines pursuant to the Asset Review Standard that such additional time is required due to the characteristics of the Mortgage Loan and/or the Mortgaged Property or Mortgaged Properties. In no event may the Asset Representations Reviewer determine whether any Test failure constitutes a Material Defect, or whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller, which, in each case, shall be a responsibility of the applicable Enforcing Servicer pursuant to Section 2.03(k) of this Agreement.

(ix)          In addition, in the event that the Asset Representations Reviewer does not receive any documentation that it requested from the applicable Master Servicer (with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) or the related Mortgage Loan Seller in sufficient time to allow the Asset Representations Reviewer to complete its Asset Review and deliver an Asset Review Report, the Asset Representations Reviewer shall prepare the Asset Review Report solely based on the documentation received by the Asset Representations Reviewer with respect to the related Delinquent Loan, and the Asset Representations Reviewer shall have no responsibility to independently obtain any such documentation from any party to this Agreement or otherwise.

(x)           Within thirty (30) days after receipt of an Asset Review Report with respect to any Mortgage Loan, the applicable Special Servicer shall determine whether at that time, based on the Servicing Standard, there exists a Material Defect with respect to such Mortgage Loan. If the applicable Special Servicer determines that a Material Defect exists,

-478- 

it shall enforce the obligations of the applicable Mortgage Loan Seller with respect to such Material Defect in accordance with Section 2.03(b).

(c)           The Asset Representations Reviewer and its affiliates shall keep confidential any information appropriately labeled as “Privileged Information” received from any party to this Agreement or any Sponsor (including, without limitation, in connection with the review of the Mortgage Loans) and not disclose such Privileged Information to any Person (including Certificateholders), other than (1) to the extent expressly required by this Agreement in an Asset Review Report or otherwise, to the other parties to this Agreement with a notice indicating that such information is Privileged Information or (2) pursuant to a Privileged Information Exception. Each party to this Agreement that receives Privileged Information from the Asset Representations Reviewer with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer other than pursuant to a Privileged Information Exception.

(d)          The Asset Representations Reviewer may delegate its duties to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Section 12.01; provided that no agent or subcontractor may (i) be affiliated with any Mortgage Loan Seller, any Master Servicer, any Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Asset Representations Reviewer shall remain obligated and primarily liable for any Asset Review required hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Asset Representations Reviewer alone were performing its obligations under this Agreement. The Asset Representations Reviewer shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Asset Representations Reviewer by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

Section 12.02   Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability.

(a)           The Asset Representations Reviewer shall be paid a fee of $5,000 on the Closing Date. As compensation for the performance of its routine duties, the Asset Representations Reviewer shall be paid a fee (the “Asset Representations Reviewer Fee”), payable monthly from amounts received in respect of the Mortgage Loans and shall be equal to the product of a rate equal to 0.00020% per annum (the “Asset Representations Reviewer Fee Rate”) and the Stated Principal Balance of the Mortgage Loans and any REO Loans (including any Non-Serviced Mortgage Loan, but not any Companion Loan) and shall be calculated in the same manner as interest is calculated on such Mortgage Loans.

-479- 

(b)          As compensation for the performance of its duties hereunder, with respect to an individual Asset Review Trigger and each Mortgage Loan that is a Delinquent Loan and is subject to an Asset Review (for purposes of this paragraph, each a “Subject Loans”), upon the completion of any Asset Review with respect to an individual Asset Review Trigger, the Asset Representations Reviewer shall be paid a fee equal to (a) in the case of a Subject Loan that is not an NCB Co-op Mortgage Loan, (i) $15,000, plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance less than $20,000,000, (ii) $20,000 plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance greater than or equal to $20,000,000, but less than $40,000,000 or (iii) $25,000 plus $1,000 per additional Mortgaged Property with respect to a Delinquent Loan with a Cut-off Date Balance greater than or equal to $40,000,000 and (b) in the case of a Subject Loan that is an NCB Co-op Mortgage Loan, $10,000 (any such fee, the “Asset Representations Reviewer Asset Review Fee”). The Asset Representations Reviewer Asset Review Fee with respect to each Delinquent Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) shall be paid by the related Mortgage Loan Seller; provided, however, that if the related Mortgage Loan Seller is insolvent or fails to pay such amount within ninety (90) days of written invoice therefor by the Asset Representations Reviewer, such fee shall be paid by the Trust following delivery by the Asset Representations Reviewer of a certification to the applicable Master Servicer that the requirements for payment set forth in this Section 12.02(b) have been met. The Asset Representations Reviewer shall not deliver any such certificate unless it has invoiced payment of such amount and otherwise met the requirements for payment set forth in this Section 12.02(b), including receipt of evidence of such insolvency or failure to pay such amount. A Mortgage Loan Seller shall be deemed to have failed to pay such amount hereunder ninety (90) days after delivery by the Asset Representations Reviewer of an itemized invoice to such Mortgage Loan Seller by registered mail or overnight courier to the address listed in this Agreement for such Mortgage Loan Seller, or to such other address as shall be provided by such Mortgage Loan Seller for delivery of notices in accordance with this Agreement, or ninety (90) days following attempted delivery of such invoice by registered mail or overnight courier and reasonable follow -up by telephone or e-mail. Notwithstanding any payment of such fee by the Trust to the Asset Representations Reviewer, such fee will remain an obligation of the related Mortgage Loan Seller and the Enforcing Servicer shall pursue remedies against such Mortgage Loan Seller to recover any such amounts to the extent paid by the Trust.

(c)           Notwithstanding the foregoing, the Asset Representations Reviewer Asset Review Fee with respect to a Delinquent Loan shall be included in the Purchase Price for any Mortgage Loan that was the subject of a completed Asset Review that is repurchased or substituted by a Mortgage Loan Seller, and such portion of the Purchase Price received shall be used to reimburse the Asset Representations Reviewer or the Trust, as the case may be, for such fees pursuant to Section 12.02(b).

(d)          The Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.

Section 12.03   Resignation of the Asset Representations Reviewer.  The Asset Representations Reviewer may resign and be discharged from its obligations hereunder by giving written notice thereof to the other parties to this Agreement and each Rating Agency. Upon such notice of resignation, the Depositor shall promptly appoint a successor asset representations

-480-

reviewer that is an Eligible Asset Representations Reviewer. If no successor asset representations reviewer shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Asset Representations Reviewer may petition any court of competent jurisdiction for the appointment of a successor asset representations reviewer that is an Eligible Asset Representations Reviewer. The Asset Representations Reviewer will bear all reasonable costs and expenses of each party hereto and each Rating Agency in connection with its resignation.

Section 12.04  Restrictions of the Asset Representations Reviewer. Neither the Asset Representations Reviewer nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker dealer Affiliate of the Asset Representations Reviewer or (ii) investments by an Affiliate of the Asset Representations Reviewer if the Asset Representations Reviewer and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Asset Representations Reviewer under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Asset Representations Reviewer and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

Section 12.05  Termination of the Asset Representations Reviewer.

(a)      An “Asset Representations Reviewer Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

(i)      any failure by the Asset Representations Reviewer to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure shall continue unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Asset Representations Reviewer by the Trustee or to the Asset Representations Reviewer and the Trustee by the Holders of Certificates having greater than 25% of the Voting Rights, provided that any such failure that is not curable within such thirty (30) day period, the Asset Representations Reviewer shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

(ii)     any failure by the Asset Representations Reviewer to perform its obligations hereunder in accordance with the Asset Review Standard in any material respect, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

-481-

(iii)       any failure by the Asset Representations Reviewer to be an Eligible Asset Representations Reviewer, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

(iv)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Asset Representations Reviewer, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

(v)        the Asset Representations Reviewer shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Asset Representations Reviewer or of or relating to all or substantially all of its property; or

(vi)       the Asset Representations Reviewer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations.

Upon receipt by the Certificate Administrator of written notice of the occurrence of any Asset Representations Reviewer Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders (which shall be simultaneously delivered to the Asset Representations Reviewer) in accordance with the notice distribution procedures described in Section 12.01(a), unless the Certificate Administrator has received written notice that such Asset Representations Reviewer Termination Event has been remedied. If an Asset Representations Reviewer Termination Event shall occur then, and in each and every such case, so long as such Asset Representations Reviewer Termination Event shall not have been remedied, either the Trustee (i) may or (ii) upon the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (without regard to the application of any Cumulative Appraisal Reduction Amounts), shall, terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement, other than rights and obligations accrued prior to such termination (including the right to receive all amounts accrued and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination), by notice in writing to the Asset Representations Reviewer. The Asset Representations Reviewer is required to bear all reasonable costs and expenses of itself and of each other party to this Agreement in connection with its termination due to an Asset Representations Reviewer Termination Event. Notwithstanding anything herein to the contrary, the Depositor and each Mortgage Loan Seller shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Asset Representations Reviewer Termination Event of which it becomes aware.

-482-

(b)          Upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (without regard to the application of any Cumulative Appraisal Reduction Amounts) requesting a vote to terminate and replace the Asset Representations Reviewer with a proposed successor asset representations reviewer that is an Eligible Asset Representations Reviewer and (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote, the Certificate Administrator shall promptly provide written notice thereof to the Asset Representations Reviewer and to all Certificateholders by (i) posting such notice on its internet website, and (ii) mailing such notice to all Certificateholders at their addresses appearing in the Certificate Register and to the Asset Representations Reviewer. Upon the written direction of Holders of Certificates evidencing at least 75% of a Certificateholder Quorum (without regard to the application of any Cumulative Appraisal Reduction Amounts), the Trustee shall terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement (other than any rights or obligations that accrued prior to the date of such termination and other than indemnification rights arising out of events occurring prior to such termination) by notice in writing to the Asset Representations Reviewer and appoint the proposed successor. As between the Asset Representations Reviewer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Asset Representations Reviewer. In the event that Holders of the Certificates evidencing at least 75% of a Certificateholder Quorum (without regard to the application of any Cumulative Appraisal Reduction Amounts) elect to remove the Asset Representations Reviewer without cause and appoint a successor, the successor asset representations reviewer will be responsible for all expenses necessary to effect the transfer of responsibilities from its predecessor.

(c)           On or after the receipt by the Asset Representations Reviewer of written notice of termination, subject to this Section 12.05, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Asset Representations Reviewer shall execute any and all documents and other instruments, and do or accomplish all other acts or things reasonably necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than thirty (30) days after (1) the Asset Representations Reviewer resigns pursuant to Section 12.03 of this Agreement or (2) the Trustee delivers such written notice of termination to the Asset Representations Reviewer, the Trustee shall appoint a successor asset representations reviewer that is an Eligible Asset Representations Reviewer. The Trustee shall provide written notice of the appointment of an Asset Representations Reviewer to each applicable Master Servicer, each applicable Special Servicer, the Operating Advisor, the Certificate Administrator, the Directing Certificateholder and each Certificateholder within one Business Day of such appointment.

The Asset Representations Reviewer shall at all times be an Eligible Asset Representations Reviewer and if the Asset Representations Reviewer ceases to be an Eligible Asset Representations Reviewer, the Asset Representations Reviewer shall immediately notify each applicable Master Servicer, each applicable Special Servicer, the Trustee, the Operating Advisor, the Certificate Administrator and the Directing Certificateholder of such disqualification and immediately resign under Section 12.03 of this Agreement and the Trustee shall appoint a successor asset representations reviewer subject to and in accordance with this Section 12.05. Notwithstanding the foregoing, if the Trustee is unable to find a successor asset representations

-483-

reviewer within thirty (30) days of the termination of the Asset Representations Reviewer, the Depositor shall be permitted to find a replacement. The Trustee shall not be liable for any failure to identify and appoint a successor asset representations reviewer so long as the Trustee uses commercially reasonable efforts to conduct a search for a successor asset representations reviewer and such failure is not a result of the Trustee’s negligence, bad faith or willful misconduct in the performance of its obligations hereunder.

(d)          Upon any termination of the Asset Representations Reviewer and appointment of a successor to the Asset Representations Reviewer, the Trustee shall, as soon as possible, give written notice thereof to each applicable Special Servicer, each applicable Master Servicer, the Certificate Administrator (who shall, as soon as possible, give written notice thereof to the Certificateholders), the Operating Advisor, the Mortgage Loan Sellers, the Depositor, each Rating Agency, and, prior to the occurrence and continuance of a Consultation Termination Event and the Directing Certificateholder. In the event that the Asset Representations Reviewer is terminated, all of its rights and obligations under this Agreement shall terminate, other than any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination).

[End of Article XII]

Article XIII

MISCELLANEOUS PROVISIONS

Section 13.01  Amendment. (a) This Agreement may be amended from time to time by the parties hereto, without the consent of any of the Certificateholders or the Companion Holders:

(i)      to correct any defect or ambiguity in this Agreement in order to address any manifest error in any provision of this Agreement;

(ii)     to cause the provisions in this Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or this Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

(iii)    to change the timing and/or nature of deposits in any applicable Collection Account, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

-484-

(iv)    to modify, eliminate or add to any of its provisions to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust or any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

(v)     to modify, eliminate or add to the provisions of Section 5.03(o) or any other provision hereof restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

(vi)    to revise or add any other provisions with respect to matters or questions arising under this Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or any holder of a Serviced Pari Passu Companion Loan not consenting to such revision or addition, as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

(vii)   to amend or supplement any provision hereof to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

-485-

(viii)  to modify the provisions of Sections 3.05 and 3.17 (with respect to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the applicable Master Servicer, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder, determine that the CMBS industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

(ix)    to modify the procedures of this Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holders of the RR Interest), as evidenced by (x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

(x)     to modify, eliminate or add to any of its provisions to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

(xi)    to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the foreign or domestic risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal.

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

(b)          This Agreement may also be amended from time to time by the parties hereto with the consent of the Holders of Certificates of each Class affected by such amendment

-486-

evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

(i)      reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

(ii)     reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

(iii)    adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

(iv)    change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller; or

(v)    amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and, if required under the related Intercreditor Agreement, the consent of the holder of any AB Subordinate Companion Loan for each Serviced AB Whole Loan.

    (c)      Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, any Master Servicer or any Special Servicer shall consent to any amendment hereto without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted hereunder and that such amendment or the exercise of any power granted to the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to this Agreement may be made that changes any provision specifically required to be included in this Agreement by an Intercreditor Agreement

-487-

related to a Companion Loan without, in each case, the consent of the holder of the related Companion Loan(s).

   (d)       No later than the effective date of any amendment to this Agreement, the Certificate Administrator shall post a copy of the same to the Certificate Administrator’s Website, deliver a copy of the same to the 17g-5 Information Provider who shall post a copy of the same on the 17g-5 Information Provider’s Website pursuant to Section 3.13(b) and Section 3.13(c), as applicable, and thereafter, the Certificate Administrator shall furnish written notification of the substance of such amendment together with a copy of such amendment in electronic format to each Certificateholder and each Serviced Companion Noteholder, the Depositor, each Other Depositor, each Other Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Underwriters and the Rating Agencies.

  (e)         It shall not be necessary for the consent of Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Certificate Administrator may prescribe.

   (f)        The Trustee and the Certificate Administrator shall not be obligated to enter into any amendment pursuant to this Section 13.01 that affects its rights, duties and immunities under this Agreement or otherwise.

   (g)       The cost of any Opinion of Counsel to be delivered pursuant to Section 13.01(a) or Section 13.01(c) and the cost of any amendment entered into hereunder shall be borne by the Person seeking the related amendment, except that if any Master Servicer, the Certificate Administrator or the Trustee requests any amendment of this Agreement in furtherance of the rights and interests of Certificateholders, the cost of any Opinion of Counsel required in connection therewith pursuant to Section 13.01(a) or Section 13.01(c) shall be payable out of each applicable Collection Account.

   (h)       The Servicing Standard shall not be amended unless each Rating Agency provides Rating Agency Confirmation and, with respect to any class of Serviced Companion Loan Securities, the applicable rating agencies provide a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

   (i)        To the extent the Operating Advisor, the Trustee, the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or Depositor obtains an Opinion of Counsel as provided for in Section 13.01(c) in connection with executing any amendment to this Agreement, such party shall be deemed not to have acted negligently in connection with entering into such amendment for purposes of availing itself of any indemnity provided to such party under this Agreement.

   (j)         Notwithstanding any other provision of this Agreement, for purposes of the giving or withholding of consents pursuant to this Section 13.01, Certificates registered in the

-488-

name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to matters described above as they would if any other Person held such Certificates, so long as neither the Depositor nor any of its Affiliates is performing servicing duties with respect to any of the Mortgage Loans.

   (k)    This Agreement may not be amended without the consent of any holder of a Companion Loan if such amendment would materially and adversely affect the rights of such Companion Holder hereunder.

   (l)     In addition, if one but not all of the Mortgage Notes evidencing a Joint Mortgage Loan is repurchased by the applicable Mortgage Loan Sellers, this Agreement may be amended by the parties hereto (at the expense of the party requesting such amendment (or, if the applicable Master Servicer or applicable Special Servicer is requesting such amendment in connection with the fulfillment of its duties under this Agreement, at the expense of the Trust)), without the consent of any Certificateholder, to add or modify provisions relating to the applicable Repurchased Note for purposes of the servicing and administration of such Repurchased Note provided that the amendment shall not adversely affect in any material respect the interests of the Certificateholders, as evidenced by a Rating Agency Confirmation from each Rating Agency (obtained at the expense of the Repurchasing Mortgage Loan Seller) with respect to such amendment (or, if no such Rating Agency Confirmation is actually received, by an Opinion of Counsel to such effect). Prior to the effectiveness of such amendment, if one but not all of the Mortgage Notes with respect to a Joint Mortgage Loan is repurchased, the terms of Section 3.30 shall govern the servicing and administration of such Joint Mortgage Loan.

Section 13.02  Recordation of Agreement; Counterparts. (a) To the extent permitted by applicable law, this Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Certificate Administrator at the expense of the Depositor on direction by the applicable Special Servicer and with the consent of the Depositor (which may not be unreasonably withheld), but only upon direction accompanied by an Opinion of Counsel (the cost of which shall be paid by the Depositor) to the effect that such recordation materially and beneficially affects the interests of the Certificateholders.

(b)     For the purpose of facilitating the recordation of this Agreement as herein provided and for other purposes, this Agreement shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”), in each case to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity 

-489-

or authenticity thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.

(c)        The Trustee shall make any filings required under the laws of the state of its place of business required solely by virtue of the fact of the location of the Trustee’s place of business, the costs of which, if any, to be at the Trustee’s expense.

Section 13.03  Limitation on Rights of Certificateholders. (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.

(b)          No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third party by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.

(c)          No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, any Intercreditor Agreement, any Mortgage Loan, or with respect to the Certificates, unless, with respect to any suit, action or proceeding upon or under or with respect to this Agreement, such Holder previously shall have given to the Trustee and the Certificate Administrator a written notice of default, and of the continuance thereof, as herein before provided, or of the need to institute such suit, action or proceeding on behalf of the Trust and unless also (except in the case of a default by the Trustee) the Holders of Certificates of any Class evidencing not less than 25% of the related Percentage Interests in such Class shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty (60) days after its receipt of such notice, request and offer of such indemnity, shall have neglected or refused to institute any such action, suit or proceeding. The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Holders of Certificates unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or hereby. It is understood and intended, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatsoever by virtue of any provision of this Agreement or the Certificates to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, which priority or preference is not

-490-

otherwise provided for herein, or to enforce any right under this Agreement or the Certificates, except in the manner herein or therein provided and for the equal, ratable and common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section 13.03(c), each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

Section 13.04  Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.

THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 13.05  Notices. (a) Any communications provided for or permitted hereunder shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given if personally delivered at or couriered, sent by facsimile transmission (other than with respect to the Mortgage Loan Sellers) or mailed by registered mail, postage prepaid (except for notices to the Mortgage Loan Sellers, each applicable Master Servicer the Certificate Administrator and the Trustee which shall be deemed to have been duly given only when received), to:

In the case of the Depositor:

-491-

Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park 

NY-100-11-07
New York, New York 10036
Attention: Leland F. Bunch, III
Facsimile: (646) 855-5044

             with a copy to:

W. Todd Stillerman, Esq.
Associate General Counsel & Director
Bank of America Legal Department
150 North College Street, Mail Code: NC1-028-24-02
Charlotte, North Carolina 28255
Facsimile: (404) 736-2127

             and with a copy to:

             cmbsnotices@bofa.com

             and with a copy to:

Cadwalader, Wickersham & Taft LLP
227 West Trade Street
Charlotte, North Carolina 28202
Attention: Henry A. LaBrun, Esq.
Facsimile: (704) 348-5200

In the case of the General Master Servicer:

Wells Fargo Bank, National Association
Commercial Mortgage Servicing

Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Facsimile number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com

with a copy to:

Wells Fargo Bank, National Association Legal Department

301 S. College St., TW 30

Charlotte, North Carolina 28202

Fax Number: (816) 412-9338

Attention: Commercial Mortgage Servicing Legal Support

-492-

Reference: BANK 2021-BNK36

with a copy to:

K&L Gates LLP

300 South Tryon Street

Suite 1000

Charlotte, North Carolina 28202

Attention: Stacy G. Ackermann

Reference: BANK 2021-BNK36

In the case of the NCB Master Servicer:

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

with a copy to:

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Karyn Mann, Senior Vice President

Facsimile number: (703) 647-3479

Email: kmann@ncb.coop

In the case of the General Special Servicer:

Rialto Capital Advisors, LLC
200 S. Biscayne Blvd, Suite 3550

Miami, Florida 33131
Attention: Liat Heller

Facsimile number: (305) 229-6425

E-mail: liat.heller@rialtocapital.com

with a copy to:

Jeff Krasnoff

Facsimile number: (305) 229-6425

E-mail: jeff.krasnoff@rialtocapital.com;

and with a copy to:

-493-

Niral Shah

Facsimile number: (305) 229-6425

Email: niral.shah@rialtocapital.com;

and with a copy to:

Adam Singer

Facsimile number: (305) 229-6425

Email: adam.singer@rialtocapital.com

In the case of the NCB Special Servicer:

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

with a copy to:

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Karyn Mann, Senior Vice President

Facsimile number: (703) 647-3479

Email: kmann@ncb.coop

In the case of the Directing Certificateholder:

RREF IV Debt AIV, LP
c/o Rialto Capital Management LLC

600 Madison Avenue, 12th Floor

New York, New York 10022

Attention: Josh Cromer

Fax number: (212) 751-4646

with a copy to:

RREF IV Debt AIV, LP
c/o Rialto Capital Management LLC

600 Madison Avenue, 12th Floor

New York, New York 10022

Attention: Joseph Bachkosky

Fax number: (212) 751-4646

In the case of the Risk Retention Consultation Party:

-494-

Bank of America, National Association
One Bryant Park

NY-100-11-07
New York, New York 10036
Attention: Leland F. Bunch, III
Facsimile: (646) 855-5044

             with a copy to:

W. Todd Stillerman, Esq.
Associate General Counsel & Director
Bank of America Legal Department
150 North College Street, Mail Code: NC1-028-24-02
Charlotte, North Carolina 28255
Facsimile: (404) 736-2127

             and with a copy to:

             cmbsnotices@bofa.com

             and with a copy to:

Cadwalader, Wickersham & Taft LLP
227 West Trade Street
Charlotte, North Carolina 28202
Attention: Henry A. LaBrun, Esq.
Facsimile: (704) 348-5200

In the case of the Trustee:

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee BANK 2021-BNK36

with a copy to:

CMBSTrustee@wilmingtontrust.com
Facsimile No.: (302) 636-4140

In the case of the Certificate Administrator:

Wells Fargo Bank, National Association

9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

with a copy to:

-495-

cts.cmbs.bond.admin@wellsfargo.com
trustadministrationgroup@wellsfargo.com

In the case of the Custodian:

Wells Fargo Bank, National Association
1055 10th Avenue SE
Minneapolis, Minnesota 55414
Attention: Document Custody Group BANK 2021-BNK36

with a copy to:

cmbscustody@wellsfargo.com

in the case of a surrender, transfer or exchange other than with respect to the RR Interest:

Wells Fargo Bank, National Association

600 South 4th Street

7th Floor, MAC 9300-070

Minneapolis, Minnesota 55415

Attention: CTS – Certificate Transfer Services – BANK 2021-BNK36

In the case of the release or transfer of the RR Interest:

Wells Fargo Bank, National Association
9062 Old Annapolis Road

7th Floor, MAC 9300-070
Columbia, Maryland 21045
Attention: Risk Retention Custody – BANK 2021-BNK36

with a copy to:

riskretentioncustody@wellsfargo.com

in the case of a surrender, transfer or exchange other than with respect to the RR Interest:

Wells Fargo Bank, National Association
600 South 4th Street
7th Floor, MAC 9300-070
Minneapolis, Minnesota 55415
Attention: Certificate Transfer Services – BANK 2021-BNK36

-496-

In the case of the Operating Advisor and the Asset Representations Reviewer:

Pentalpha Surveillance LLC

375 N. French Road, Suite 100

Amherst, New York, 14228

Attention: BANK 2021-BNK36 Transaction Manager

With a copy sent via email to:

notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line

In the case of the Mortgage Loan Sellers:

1.          Wells Fargo Bank, National Association

301 South College St.
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36, Commercial Mortgage Pass-Through

Certificates, Series 2021-BNK36

with a copy to:

Troy Stoddard, Senior Counsel
Wells Fargo Legal Department, D1086-341
550 S. Tryon St., 34th Floor
Charlotte, North Carolina 28202

and a copy to:

             Herschel Patel
Wells Fargo Bank, National Association
10 S. Wacker Dr., 32nd Floor
Chicago, IL 60606

             and a copy via email to:

             cmbsnotices@wellsfargo.com and herschel.patel@wellsfargo.com

2.          Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

-497-

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and

             cmbs_notices@morganstanley.com

3.          Bank of America, National Association
One Bryant Park,
Mail Code: NY1-100-11-07
New York, New York 10036
Attention: Director of CMBS Securitization
Email: leland.f.bunch@bofa.com

with copies to:

Bank of America Legal Department
150 North College Street

Mail Code: NC1-028-24-02
Charlotte, North Carolina 28255
Attention: W. Todd Stillerman, Esq.

Associate General Counsel & Director

Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

and

             Cadwalader, Wickersham & Taft LLP
227 West Trade Street
Charlotte, North Carolina 28202
Attention: Henry A. LaBrun, Esq.
Facsimile: (704) 348-5200

-498-

4.          National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number (703) 647-3473

Email: kluzik@ncb.coop

with a copy to:

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Karyn Mann, Senior Vice President

Facsimile number: (703) 647-3479

Email: kmann@ncb.coop

In the case of any mezzanine lender or Companion Loan Holder:

The address set forth in the related Intercreditor Agreement.

To each such Person, such other address as may hereafter be furnished by such Person to the parties hereto in writing. Any communication required or permitted to be delivered to a Certificateholder shall be deemed to have been duly given when mailed first class, postage prepaid, to the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.

(b)          Any party required to deliver any notice or information pursuant to the terms of this Agreement to the Rating Agencies shall deliver such written notice of the events or information specified in Section 3.13(c) to the Rating Agencies at the address listed below, promptly following the occurrence thereof. The applicable Master Servicer or the applicable Special Servicer, as the case may be, the Certificate Administrator, and Trustee also shall furnish such other information regarding the Trust as may be reasonably requested by the Rating Agencies to the extent such party has or can obtain such information without unreasonable effort or expense; provided, however, that such other information is first provided to the 17g-5 Information Provider in accordance with the procedures set forth in Section 3.13(c); provided, further, that the 17g-5 Information Provider shall not disclose which Rating Agency has requested such information. Notwithstanding the foregoing, the failure to deliver such notices or copies shall not constitute a Servicer Termination Event, as the case may be, under this Agreement. Any confirmation of the rating by the Rating Agencies required hereunder shall be in writing.

Any notices to the Rating Agencies shall be sent to the following addresses:

-499-

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
E-mail: cmbssurveillance@kbra.com

S&P Global Ratings

55 Water Street, 41st Floor

New York, New York 10041

Attention: Commercial Mortgage Surveillance Manager

E-mail: CMBS_Info_17g5@spglobal.com

Section 13.06  Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

Section 13.07  Grant of a Security Interest. The Depositor intends that the conveyance of the Conveyed Property shall constitute a sale and not a pledge of security for a loan. If such conveyance is deemed to be a pledge of security for a loan, however, the Depositor intends that the rights and obligations of the parties to such loan shall be established pursuant to the terms of this Agreement. The Depositor also intends and agrees that, in such event, (i) the Depositor shall be deemed to have granted to the Trustee (in such capacity) a first priority security interest in the Depositor’s entire right, title and interest in, to and under the Conveyed Property and all proceeds thereof, in each case, whether now owned or existing or hereafter acquired or arising, and (ii) this Agreement shall constitute a security agreement under applicable law. The Depositor shall file or cause to be filed, as a precautionary filing, a UCC Financing Statement in all appropriate locations in the State of Delaware promptly following the initial issuance of the Certificates, and the Certificate Administrator shall, at the expense of the Depositor (to the extent reasonable), prepare and file continuation statements with respect thereto, in each case in the six-month period prior to every fifth anniversary of the date of the initial UCC Financing Statement. The Depositor shall cooperate in a reasonable manner with the Certificate Administrator in the preparation and filing of such continuation statement. This Section 13.07 shall constitute notice to the Certificate Administrator and the Trustee pursuant to any of the requirements of the applicable UCC.

Section 13.08  Successors and Assigns; Third Party Beneficiaries. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the respective

-500-

successors and assigns of the parties hereto, and all such provisions shall inure to the benefit of the Certificateholders. Each Mortgage Loan Seller (and its respective agents), each Companion Holder (and its respective agents), each Underwriter, each depositor of a Regulation AB Companion Loan Securitization, each Other Exchange Act Reporting Party (with respect to its rights under Article XI of this Agreement) and each Initial Purchaser is an intended third-party beneficiary to this Agreement in respect of the respective rights afforded it hereunder. No other person, including, without limitation, any Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim under this Agreement. If one, but not all, of the Mortgage Notes evidencing any Joint Mortgage Loan is repurchased, the applicable Repurchasing Mortgage Loan Seller shall be a third-party beneficiary of this Agreement to the same extent as if it were a holder of a Serviced Pari Passu Companion Loan, as contemplated by Section 3.30 hereof.

(b)          Each Serviced Companion Noteholder shall be a third-party beneficiary to this Agreement in respect to the rights afforded it hereunder. Each of the Other Servicers and the Other Trustees shall be a third-party beneficiary to this Agreement in respect to all provisions herein expressly relating to compensation, reimbursement or indemnification of such Other Servicer and Other Trustee, and any provisions regarding reimbursement or advances or interest thereon to such Other Servicer or Other Trustee.

(c)          Each of the applicable Non-Serviced Trustee, Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Depositor, Non-Serviced Certificate Administrator and any Non-Serviced Trust holding a related Non-Serviced Companion Loan, shall be a third-party beneficiary to this Agreement in respect to its rights as specifically provided for herein and under the applicable Non-Serviced Intercreditor Agreement.

(d)          Subject to Section 2.03(k), Section 2.03(l)(iv) and Section 2.03(l)(v), any Requesting Certificateholder shall be an express third-party beneficiary to this Agreement for purposes of exercising rights under Section 2.03(k) through Section 2.03(o).

Section 13.09  Article and Section Headings. The article and section headings herein are for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.

Section 13.10 Notices to the Rating Agencies. (a) The Certificate Administrator shall use reasonable efforts promptly to provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), (and the related 17g-5 information provider for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each of the following of which it has actual knowledge:

(i)      any material change or amendment to this Agreement;

(ii)     the occurrence of a Servicer Termination Event that has not been cured;

(iii)    the resignation or termination of the Certificate Administrator, any Master Servicer, the Asset Representations Reviewer or any Special Servicer; and

-501-

(iv)       the repurchase or substitution of Mortgage Loans by the related Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement.

   (b)          Each applicable Master Servicer shall use reasonable efforts to promptly provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), with respect to each of the following of which it has actual knowledge:

(i)         the resignation or removal of the Trustee or the Certificate Administrator;

(ii)        any change in the location of each applicable Collection Account;

(iii)       any event that would result in the voluntary or involuntary termination of any insurance of the accounts of the Trustee;

(iv)      any change in the lien priority of any Mortgage Loan with respect to an assumption of the Mortgage Loan or additional encumbrance described in Section 3.08;

(v)       any additional lease to an anchor tenant or termination of any existing lease to an anchor tenant at retail properties for any Mortgage Loan with a Stated Principal Balance that is equal to or greater than the lesser of (1) an amount greater than 5% of the then-aggregate outstanding principal balances of the Mortgage Loans and (2) $35,000,000;

(vi)      any material damage to any Mortgaged Property;

(vii)     any assumption with respect to a Mortgage Loan; and

(viii)    any release or substitution of any Mortgaged Property.

      (c)      The Certificate Administrator shall promptly furnish notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to the Rating Agencies of (i) any change in the location of the Distribution Accounts and (ii) the final payment to any Class of Certificateholders.

    (d)         The Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer, as applicable, shall furnish to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to each Rating Agency (and any rating agency for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each Serviced Mortgage Loan such information as any Rating Agency shall reasonably request and which the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, can reasonably provide in accordance with applicable law and without waiving any attorney-client privilege relating to such information or violating the terms of this Agreement or any Mortgage Loan documents. The Trustee, the Certificate Administrator, any Master Servicer and any Special Servicer, as applicable, may include any reasonable disclaimer it deems appropriate with respect to such information. Notwithstanding anything to the contrary herein, nothing in this Section 13.10 shall require a party to provide duplicative notices or copies to the Rating Agencies with respect to any of the above listed items. In connection with the delivery by any Master

-502-

Servicer or any Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify such Master Servicer or such Special Servicer when such information, report, notice or document has been posted. The applicable Master Servicer or the applicable Special Servicer, as the case may be, may, but shall not be obligated to, send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider.

Section 13.11  Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements. It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Sellers are entitled to the benefit of any securitization indemnification provisions that specifically run to the benefit of the lenders in the Mortgage Loan documents. Therefore, the Depositor, Master Servicer, Special Servicer and Trustee hereby agree to reasonably cooperate with any Mortgage Loan Seller, at the sole expense of such Mortgage Loan Seller, with respect to obtaining the benefits of the provisions of any section of a loan agreement or securitization cooperation agreement providing for indemnification of the lender and/or its loan seller affiliates with respect to the current securitization of the related Mortgage Loan, including, without limitation, executing any documents as are reasonably necessary to permit the related Mortgage Loan Seller to enforce such provisions for its benefit; provided, that none of the Depositor, Master Servicer, Special Servicer or Trustee shall be required to take any action that is inconsistent with the Servicing Standard, would violate applicable law, the terms and provisions of this Agreement or the Mortgage Loan documents, would adversely affect any Certificateholder, would cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, or would result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions. To the extent that the Trustee is required to execute any document facilitating the above rights of a Mortgage Loan Seller under this Section 13.11, such document shall be in form and substance reasonably acceptable to the Trustee.

 [End of Article XIII]

[SIGNATURES COMMENCE ON FOLLOWING PAGE]

-503-

IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized, in each case as of the day and year first above written.

BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC., Depositor
By:	/s/ Leland F. Bunch, III
	Name: Leland F. Bunch, III
	Title: Chief Executive Officer & President

WELLS FARGO BANK, NATIONAL ASSOCIATION,
General Master Servicer
By:	/s/ Amanda Perkins
	Name: Amanda Perkins
	Title: Vice President

NATIONAL COOPERATIVE BANK, N.A.,
NCB Master Servicer
By:	/s/ Karyn Mann
	Name: Karyn Mann
	Title: Senior Vice President

Rialto Capital Advisors, LLC,
General Special Servicer
By:	/s/ Sorana Georgescu
	Name: Sorana Georgescu
	Title: Secretary

BANK 2021-BNK36: Pooling and Servicing Agreement

NATIONAL COOPERATIVE BANK, N.A.,
NCB Special Servicer
By:	/s/ Karyn Mann
	Name: Karyn Mann
	Title: Senior Vice President

WELLS Fargo bank, national association,
not in its individual capacity, but solely as Certificate Administrator
By:	/s/ Amy Mofsenson
	Name: Amy Mofsenson
	Title: Vice President

Wilmington Trust, national association,
not in its individual capacity, but solely as Trustee
By:	/s/ Patrick A. Kanar
	Name: Patrick A. Kanar
	Title: Banking Officer

BANK 2021-BNK36: Pooling and Servicing Agreement

PENTALPHA SURVEILLANCE LLC,
as Operating Advisor
By:	/s/ James Callahan
	Name:	James Callahan
	Title:	Executive Director and Solely as an Authorized Signatory for Pentalpha Surveillance LLC

PENTALPHA SURVEILLANCE LLC,
as Asset Representations Reviewer
By:	/s/ James Callahan
	Name:	James Callahan
	Title:	Executive Director and Solely as an Authorized Signatory for Pentalpha Surveillance LLC

BANK 2021-BNK36: Pooling and Servicing Agreement

EXHIBIT A-1

[FORM OF] CLASS [__] CERTIFICATE

BANK 2021-BNK36

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK36, CLASS [__]

[FOR CLASSES X-D, X-F, X-G, X-H, D, E, F, G AND H OFFERED PURSUANT TO REGULATION S:]¹ [THIS CERTIFICATE IS A TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE FOR PURPOSES OF REGULATION S (“REGULATION S”) UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]

[FOR BOOK-ENTRY CERTIFICATES:]² [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS

¹ Temporary Regulation S Book-Entry Certificate legend.

² Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.

A-1-1

SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

[FOR CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G AND H:] [PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.]

[FOR CLASS X CERTIFICATES AND CLASSES A-4-X1, A-4-X2, A-5-X1, A-5-X2, A-S-X1, A-S-X2, B-X1, B-X2, C-X1 AND C-X2:] [THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY DISTRIBUTIONS OF PRINCIPAL. THE NOTIONAL AMOUNT OF THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE AGGREGATE CERTIFICATE BALANCE OF ANY UNDERLYING CLASS OF PRINCIPAL BALANCE CERTIFICATES OR UPPER-TIER REGULAR INTERESTS, AS APPLICABLE, THAT COMPRISE ITS NOTIONAL AMOUNT. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.

THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THIS CLASS OF CERTIFICATES IS BASED WILL BE REDUCED AS A

A-1-2

RESULT OF PRINCIPAL PAYMENTS AND LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.]

[FOR CLASSES X-D, X-F, X-G, X-H, D, E, F, G AND H:] [THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.]

[FOR CLASSES X-F, X-G, X-H, F, G AND H:] [THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH

A-1-3

RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.]

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2): SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER Exchangeable CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.]

[FOR REGULAR CERTIFICATES OTHER THAN THE RR INTEREST (CLASSES A-1, A-2, A-3, A-SB, D, E, F, G, H, X-A, X-B, X-D, X-F, X-G AND X-H): THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.]

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2)): THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL INTEREST IN A PORTION OF THE RELATED EXCHANGEABLE CLASS SPECIFIC GRANTOR TRUST ASSETS.]

[FOR SUBORDINATE CERTIFICATES (CLASSES A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2, D, E, F, G AND H): THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]

A-1-4

PASS-THROUGH RATE: CLASS [__] PASS-THROUGH RATE   INITIAL [CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[            ]   DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: OCTOBER 7, 2021   FIRST DISTRIBUTION DATE:
NOVEMBER 18, 2021   APPROXIMATE AGGREGATE
[CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THE CLASS [__] CERTIFICATES
AS OF THE CLOSING DATE: $[_________]   GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER: RIALTO CAPITAL ADVISORS, LLC   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR: WELLS FARGO BANK, NATIONAL ASSOCIATION   OPERATING Advisor: PENTALPHA SURVEILLANCE LLC   ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC   CUSIP NO.: [            ]   ISIN NO.: [            ]   COMMON CODE NO.: [            ]   CERTIFICATE NO.: [_]-[_]  

A-1-5

CLASS [__] CERTIFICATE

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in the Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [______]] is the registered owner of the interest evidenced by this Certificate in the Class [__] Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (subject to adjustments reflected on the schedule of exchanges attached hereto)], by the aggregate initial Certificate Balance or Notional Amount, as applicable, of the Class [__] Certificates [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates)]. The Certificates are designated as the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and

A-1-6

obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

[FOR REGULAR CERTIFICATES OTHER THAN THE RR INTEREST (CLASSES A-1, A-2, A-3, A-SB, D, E, F, G, H, X-A, X-B, X-D, X-F, X-G AND X-H): This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”).] [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): This certificate represents an undivided beneficial interest in a portion of the related Exchangeable Class Specific Grantor Trust Assets]. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and/or interest then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate specified above on the Certificate Balance or Notional Amount, as applicable, of this Certificate immediately prior to each Distribution Date. Principal and/or interest allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Available Funds to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Realized Losses on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the

A-1-7

Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in the each Collection Accounts will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register

A-1-8

only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

Subject to the terms of the Pooling and Servicing Agreement, the Class [__] Certificates will be issued in minimum denominations of [FOR REGISTERED PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES (CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): $10,000][FOR NON-REGISTERED PRINCIPAL BALANCE CERTIFICATES: CLASSES D, E, F, G AND H: $100,000][FOR CLASS X CERTIFICATES: $1,000,000], and in integral multiples of $1 in excess thereof, with one Certificate of each such Class evidencing an additional amount equal to the remainder of the initial Certificate Balance of such Class.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): and Section 5.11] of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the

A-1-9

amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, the Special Servicers, the Master Servicers, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

A-1-10

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

A-1-11

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	Name:
	Title:

Dated: October ___, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS ONE OF THE CLASS [__] CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Authenticating Agent
By:
	Name:
	Title:

A-1-12

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

A-1-13

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

A-1-14

[TO BE ATTACHED TO RULE 144A/REGULATION S BOOK-ENTRY CERTIFICATES AND EXCHANGEABLE CERTIFICATES]

SCHEDULE OF EXCHANGES OF CERTIFICATES

The following exchanges of a part of this Certificate have been made:

A-1-15

EXHIBIT A-2

[FORM OF] CLASS R CERTIFICATE

BANK 2021-BNK36

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK36, CLASS R

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, THE MASTER SERVICERS, THE SPECIAL SERVICERS, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE

A-2-1

FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, DISQUALIFIED NON-U.S. TAX PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 5.03 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE CERTIFICATE ADMINISTRATOR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN SECTION 860E(e)(5) OF THE CODE, OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS “NON-ECONOMIC RESIDUAL INTERESTS” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL

A-2-2

CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.

A-2-3

PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: [_]% DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2021 CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN) CLOSING DATE: OCTOBER 7, 2021 FIRST DISTRIBUTION DATE:
NOVEMBER 18, 2021 GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION GENERAL SPECIAL SERVICER: RIALTO CAPITAL ADVISORS, LLC NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A. TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION CERTIFICATE ADMINISTRATOR: WELLS FARGO BANK, NATIONAL ASSOCIATION OPERATING Advisor: PENTALPHA SURVEILLANCE LLC ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC CUSIP NO.: [            ] ISIN NO.: [            ] CERTIFICATE NO.: R-[_]

A-2-4

CLASS R CERTIFICATE

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.

THIS CERTIFIES THAT [____________________] is the registered owner of the interest evidenced by this Certificate in the Class R Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class of Certificates specified on the face hereof. The Certificates are designated as the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

This Class R Certificate represents a “residual interest” in two “real estate mortgage investment conduits”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D

A-2-5

of the Internal Revenue Code of 1986, as amended (the “Code”). Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code of each Trust REMIC. By their acceptance thereof, the Holders of the Class R Certificates hereby agree to the designation of the Certificate Administrator as “partnership representative” for the Trust REMICs.

Pursuant to the terms of the Pooling and Servicing Agreement, distributions, if any, on this Certificate shall be made by the Certificate Administrator in an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) and to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the Distribution Date to the Person in whose name this Certificate is registered as of the related Record Date. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in the each Collection Accounts will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

A-2-6

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions: (A) no Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Disqualified Organization or agent thereof (including a nominee, middleman or similar person) (an “Agent”), a Plan or a Person acting on behalf of or investing the assets of a Plan (such Plan or Person, an “ERISA Prohibited Holder”) or a Disqualified Non-U.S. Tax Person and shall promptly notify the Certificate Registrar of any change or impending change to such status; (B) in connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached to the Pooling and Servicing Agreement as Exhibit D-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the

A-2-7

proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of Section 5.03(o) of the Pooling and Servicing Agreement and (y) other than in connection with the initial issuance of a Class R Certificate, require a statement from the proposed transferor substantially in the form attached as Exhibit D-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in its Transferee Affidavit are false.

The Class R Certificates will be issued in fully registered, certificated form, in minimum percentage interests of 10% and integral multiples of 1% in excess thereof.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

A-2-8

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, either Special Servicer, either Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED

A-2-9

BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

A-2-10

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	Name:
	Title:

Dated: October ___, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT. 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Authenticating Agent
By:
	Name:
	Title:

A-2-11

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

A-2-12

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

A-2-13

EXHIBIT A-3

[FORM OF] CLASS V CERTIFICATE

BANK 2021-BNK36

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK36, CLASS V

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN

A-3-1

EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

THIS CERTIFICATE REPRESENTS AN UNDIVIDED beneficial INTEREST IN A PORTION OF THE EXCESS INTEREST GRANTOR TRUST ASSETS. EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.

A-3-2

PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: [_]% DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2021 CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN) CLOSING DATE: OCTOBER 7, 2021 FIRST DISTRIBUTION DATE:
NOVEMBER 18, 2021 GENERAL MASTER SERVICER:
WELLS FARGO BANK, NATIONAL ASSOCIATION GENERAL SPECIAL SERVICER:
RIALTO CAPITAL ADVISORS, LLC NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A. TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION CERTIFICATE ADMINISTRATOR:
WELLS FARGO BANK, NATIONAL ASSOCIATION OPERATING ADVISOR:
PENTALPHA SURVEILLANCE LLC ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC CUSIP NO.: [            ] ISIN NO.: [           ] CERTIFICATE NO.: V-[_]

A-3-3

CLASS V CERTIFICATE

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in the Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.

THIS CERTIFIES THAT [____________________] is the registered owner of the interest evidenced by this Certificate in the Class V Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class of Certificates specified on the face hereof. The Certificates are designated as the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

A-3-4

This Certificate represents an undivided beneficial interest in a portion of the Excess Interest Grantor Trust Assets. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Pooling and Servicing Agreement the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of the Excess Interest then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

This Certificate is limited in right of payment to, among other things, Excess Interest actually collected on the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in the each Collection Accounts will be paid to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts

A-3-5

of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

The Class V Certificates will be issued in fully registered, certificated form, in minimum percentage interests of 10% and integral multiples of 1% in excess thereof.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

A-3-6

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, the Special Servicers, the Master Servicers, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years

A-3-7

from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

A-3-8

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	Name:
	Title:

Dated: October ___, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS ONE OF THE CLASS V CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT. 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Authenticating Agent
By:
	Name:
	Title:

A-3-9

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

A-3-10

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________ account number ____________________________ or, if mailed by check, to _____________________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

A-3-11

EXHIBIT A-4

[FORM OF] RR Interest

BANK 2021-BNK36

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK36, RR INTEREST

[FOR BOOK-ENTRY CERTIFICATES ONLY AFTER THE RR INTEREST TRANSFER RESTRICTION PERIOD:]³ [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF

³ Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.

A-4-1

THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF RETAINED CERTIFICATE REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE RETAINED CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.

A-4-2

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

THIS CERTIFICATE REPRESENTS (I) A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND (II) AN UNDIVIDED BENEFICIAL INTEREST IN A PORTION OF THE EXCESS INTEREST GRANTOR TRUST ASSETS.

A-4-3

PASS-THROUGH RATE: THE WEIGHTED AVERAGE NET MORTGAGE RATE INITIAL CERTIFICATE BALANCE OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[            ] DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2021 CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN) CLOSING DATE: OCTOBER 7, 2021 FIRST DISTRIBUTION DATE:
NOVEMBER 18, 2021 APPROXIMATE AGGREGATE
CERTIFICATE BALANCE OF THE RR INTEREST
AS OF THE CLOSING DATE: $[_________] GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION GENERAL SPECIAL SERVICER: RIALTO CAPITAL ADVISORS, LLC NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A. TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION CERTIFICATE ADMINISTRATOR: WELLS FARGO BANK, NATIONAL ASSOCIATION OPERATING Advisor: PENTALPHA SURVEILLANCE LLC ASSET REPRESENTATIONS REVIEWER: PENTALPHA SURVEILLANCE LLC CUSIP NO.: [______] CERTIFICATE NO.: RR-[_]

A-4-4

RR INTEREST

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in each applicable Collection Account, the Distribution Accounts, the Interest Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the REO Accounts, formed and sold by

BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC.

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES ONLY AFTER THE RR INTEREST TRANSFER RESTRICTION PERIOD: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [MORGAN STANLEY BANK, N.A.][BANK OF AMERICA, NATIONAL ASSOCIATION][WELLS FARGO BANK, NATIONAL ASSOCIATION] is the registered owner of the interest evidenced by this Certificate in the RR Interest issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof, by the aggregate initial Certificate Balance of the RR Interest. The Certificates are designated as the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any

A-4-5

conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

This Certificate represents (i) a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) an undivided beneficial interest in a portion of the Excess Interest Grantor Trust Assets. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest (including Excess Interest) then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Retained Certificate Available Funds to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

Retained Certificate Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Retained Certificate Realized Losses allocated to the RR Interest will be allocated pro rata among the outstanding Certificates of such Class.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans and Excess Interest actually collected on the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments to the extent provided in the Pooling and Servicing Agreement. Interest or other investment income earned on funds in the each Collection Accounts will be paid

A-4-6

to the applicable Master Servicer as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one (1) year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon receipt by the Certificate Administrator of (i) a certificate from the prospective Transferee in the form set forth in the Pooling and Servicing Agreement, countersigned by the Retaining Sponsor and (ii) a certificate from the prospective Transferor in the form set forth in the Pooling and Servicing Agreement.

The RR Interest will be issued in fully registered, certificated form in minimum denominations of $1, and in integral multiples of $0.01 in excess thereof, with one Certificate of

A-4-7

each such Class evidencing an additional amount equal to the remainder of the initial Certificate Balance of such Class.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, each applicable Master Servicer, each applicable Special Servicer, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, the Special Servicers, the Master Servicers, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which

A-4-8

the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Exchangeable Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class V Certificates, Class R Certificates and RR Interest)), the Sole Certificateholder shall have the right, with the consent of each applicable Master Servicer, to exchange all of its Certificates (other than the Class V Certificates, Class R Certificates and RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

A-4-9

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal. 

WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	Name:
	Title:

Dated: October ___, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS A PART OF THE RR INTEREST REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT. 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Authenticating Agent
By:
	Name:
	Title:

A-4-10

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT	-	as tenants by the entireties	Custodian
JT TEN	-	as joint tenants with rights of	(Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

A-4-11

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________________________ for the account of __________________________________ account number _______________ or, if mailed by check, to _______________________________________. Statements should be mailed to _______________________________________________________________. This information is provided by assignee named above, or ______________________________, as its agent.

A-4-12

EXHIBIT B

MORTGAGE LOAN SCHEDULE

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Balance	Cut-off Date Balance	Address
1	BANA	One North Wacker	127,000,000	127,000,000	1 North Wacker Drive
2	BANA/WFB	Arizona Mills	75,000,000	74,888,072	5000 South Arizona Mills Circle
3	BANA	ExchangeRight Portfolio 50	66,940,000	66,940,000	Various
3.01	BANA	Publix- Madison Commons - Madison (Hughes), AL	8,580,480	8,580,480	300 Hughes Road
3.02	BANA	First Midwest Bank - Highland (Indianapolis), IN	4,299,847	4,299,847	10322 Indianapolis Boulevard
3.03	BANA	Walgreens - Vancouver (114th), WA	3,677,348	3,677,348	6105 Northeast 114th Avenue
3.04	BANA	Walgreens - Fresno (Blackstone), CA	3,648,474	3,648,474	2420 North Blackstone Avenue
3.05	BANA	Walgreens - Broussard (Saint Nazaire), LA	3,193,164	3,193,164	105 Saint Nazaire Road
3.06	BANA	First Midwest Bank - Joliet (2801 Jefferson), IL	3,107,359	3,107,359	2801 West Jefferson Street
3.07	BANA	Walgreens - New Albany (New Albany), OH	3,064,457	3,064,457	5555 New Albany Road East
3.08	BANA	Octapharma - Riverdale (Riverdale), MD	3,003,168	3,003,168	6806 Riverdale Road
3.09	BANA	Walgreens - Bossier City (Airline), LA	2,843,816	2,843,816	3400 Airline Drive
3.10	BANA	Octapharma - Chicago (95th), IL	2,727,367	2,727,367	1947 West 95th Street
3.11	BANA	WellMed - El Paso (Yarbrough), TX	2,451,566	2,451,566	501 North Yarbrough Drive
3.12	BANA	WellMed - Plant City (Alexander), FL	2,335,116	2,335,116	507 West Alexander Street
3.13	BANA	WellMed - San Antonio (Military), TX	2,023,681	2,023,681	8303 West Military Drive
3.14	BANA	CVS Pharmacy - Erie (Peninsula) PA	1,961,253	1,961,253	1111 Peninsula Drive
3.15	BANA	First Midwest Bank - Mundelein (Allanson), IL	1,925,746	1,925,746	1500 Allanson Road
3.16	BANA	Fresenius Kidney Care - Anderson (Jackson), IN	1,899,963	1,899,963	1815 Jackson Street
3.17	BANA	Dollar Tree – Richton Park (Sauk), IL	1,545,626	1,545,626	4889 Sauk Trail
3.18	BANA	First Midwest Bank - McHenry (Richmond), IL	1,385,135	1,385,135	1308 North Richmond Road
3.19	BANA	Dollar General - Marietta (River), PA	1,333,039	1,333,039	1256 River Road
3.2	BANA	Dollar General - Pine Hill (Erial), NJ	1,317,717	1,317,717	712 Erial Road
3.21	BANA	Dollar General - Purvis (Old US 11), MS	1,256,427	1,256,427	4683 Old Highway 11
3.22	BANA	Family Dollar - South Point (Solida), OH	1,164,494	1,164,494	301 Solida Road
3.23	BANA	Dollar Tree - Glenpool (Waco), OK	1,139,978	1,139,978	12180 South Waco Avenue
3.24	BANA	Sherwin Williams - Ames (16th), IA	1,103,205	1,103,205	2635 Southeast 16th Street
3.25	BANA	Sherwin Williams (Broken Arrow), OK	1,103,205	1,103,205	6301 South Garnett Road
3.26	BANA	Family Dollar - Warren (Youngstown), OH	1,057,238	1,057,238	2430 Youngstown Road Southeast
3.27	BANA	Dollar General - Bismarck (Lincoln), ND	1,041,915	1,041,915	5211 Lincoln Road
3.28	BANA	Dollar General - Lake Cormorant (Highway 301), MS	1,041,915	1,041,915	3441 Highway 301 North
3.29	BANA	Dollar General - Pharr (Minnesota), TX	1,011,271	1,011,271	1520 East Minnesota Road
3.3	BANA	Dollar General - Rocky Mount (Goldrock), NC	696,030	696,030	640 Goldrock Road
4	BANA	International Plaza I	65,400,000	65,400,000	14201 Dallas Parkway
5	MSMCH	Suarez Puerto Rico Industrial Portfolio	60,000,000	60,000,000	Various
5.01	MSMCH	San Juan Industrial Park	40,188,346	40,188,346	PR-1, KM 25.1
5.02	MSMCH	Rexco Industrial Park	19,317,245	19,317,245	150 Calle B
5.03	MSMCH	Wendy’s	494,408	494,408	PR-1, KM 25.1

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Balance	Cut-off Date Balance	Address
6	BANA	The Court at Oxford Valley	55,000,000	55,000,000	120, 210, 220, 310-330, 620, 640, 650, 610 and 630 Commerce Boulevard
7	BANA	Plaza at Imperial Valley	49,500,000	49,500,000	520-580 Danenberg Drive
8	WFB	Tides Folly Beach	46,000,000	45,931,496	1 Center Street
9	MSMCH	Corporate Research Center	44,500,000	44,500,000	26460, 26462 and 26464 Corporate Avenue
10	MSMCH	Lightwave Corporate Center	37,125,000	37,125,000	9305 Lightwave Avenue
11	WFB	La Brea & San Vicente	31,500,000	31,500,000	1302 South La Brea Avenue
12	BANA	Raymour & Flanigan Campus	30,000,000	30,000,000	7230, 7248 & 7272 Morgan Road; 4545 & 4563 Morgan Place
13	WFB	Norwalk Town Square	30,000,000	30,000,000	11633 The Plaza
14	MSMCH	Tomball Town Center	26,100,000	26,100,000	14002, 14020, 14030, 14040, 14060, 14080, 14090, 14094 F.M. 2920
15	WFB	Lake Pointe Corporate Centre	25,300,000	25,300,000	2850 & 2875 South Decker Lake Drive
16	MSMCH	Newport Pavilion	21,590,000	21,590,000	130 Pavilion Parkway
17	WFB	1925 Maple	17,800,000	17,800,000	1925 East Maple Avenue
18	MSMCH	University Square Shopping Center	16,500,000	16,500,000	2604-2624 11th Avenue
19	NCB	Netherland Gardens Corp. f/k/a Netherland Tenants Corp.	16,500,000	16,445,184	5610, 5614, 5615, 5620, 5621, 5635, 5639, 5640, 5644, 5645 and 5650 Netherland Avenue
20	WFB	Central San Rafael Storage	15,000,000	15,000,000	3105 Kerner Boulevard
21	BANA	Southern Flexible Apartment Portfolio II	14,700,000	14,700,000	Various
21.01	BANA	Siegel Suites Columbia	6,500,000	6,500,000	150 Stoneridge Drive
21.02	BANA	Siegel Select Gautier	2,850,000	2,850,000	3491 Dolphin Road
21.03	BANA	Siegel Select Alexandria	2,800,000	2,800,000	1000 MacArthur Drive
21.04	BANA	Siegel Select Montgomery	2,550,000	2,550,000	1255 Townplace Drive
22	WFB	Metro Crossing	14,450,000	14,382,576	3626 Metro Crossing Drive
23	BANA	McDonald’s Global HQ	15,000,000	14,287,548	110 North Carpenter Street
24	WFB	Zions Bank	13,550,000	13,550,000	180 North University Avenue
25	MSMCH	2707 Sedgwick	13,500,000	13,500,000	2707 Sedgwick Avenue
26	MSMCH	South Main Shopping Center	13,450,000	13,450,000	12355 South Main Street
27	MSMCH	2800 Bailey	13,000,000	13,000,000	2800 Bailey Avenue
28	WFB	Davidsohn Industrial Park	12,200,000	12,200,000	4915, 4935, 4955, 4975 & 4995 Steptoe Street
29	MSMCH	Longford Shoppes	12,187,500	12,187,500	6415 and 6485 South Fort Apache Road
30	NCB	Fairfield Commons Owners Corp.	11,500,000	11,476,280	2-346 Edmunton Drive
31	NCB	2400 Johnson Avenue Owners, Inc.	11,500,000	11,476,280	2400 Johnson Avenue
32	MSMCH	290 Tunxis Hill	11,000,000	11,000,000	290 Tunxis Hill Road, 620 Villa Avenue and 160 Greenfield Street
33	WFB	Velocity Industrial Portfolio	10,000,000	10,000,000	Various
33.01	WFB	2750 Morris Road	5,649,203	5,649,203	2750 Morris Road
33.02	WFB	1180 Church Road	4,350,797	4,350,797	1180 Church Road
34	BANA	Legacy Business Park	10,000,000	10,000,000	1701 North Green Valley Parkway
35	WFB	Park City Self Storage UT	9,750,000	9,750,000	1240 West Richardson Flat Road
36	WFB	Grandview Court	9,350,000	9,350,000	724-946 North Green Bay Road
37	MSMCH	Anaheim Hills Medical Office	9,250,000	9,250,000	500 Anaheim Hills Road (aka 500 S Anaheim Hills Road)

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Balance	Cut-off Date Balance	Address
38	NCB	415 East 80th Street Housing Corporation	8,600,000	8,600,000	415 East 80th Street
39	WFB	Village At Dos Vientos	8,300,000	8,300,000	330-370 Via Las Brisas
40	WFB	Arville Commerce Center	8,000,000	8,000,000	4610, 4620, 4630, 4640 & 4650 Arville Street
41	MSMCH	Boulder Crossroads	7,500,000	7,500,000	5040, 5060, 5216, 5222 and 5230 Boulder Highway
42	MSMCH	The Platform Santa Barbara	7,000,000	7,000,000	126 East Haley Street and 417 Santa Barbara Street
43	BANA	Sprague Self Storage	7,000,000	7,000,000	16122 East Sprague Avenue
44	BANA	Bella Road Self Storage	6,750,000	6,750,000	226 Bella Vista Road
45	BANA	Western Skies Business Center	6,700,000	6,700,000	1166, 1176 & 1206 East Warner Road
46	MSMCH	Titan Self Storage	6,500,000	6,500,000	939 South McLean Boulevard
47	BANA	3508-3510 Johnson Avenue	6,390,000	6,390,000	3508-3510 Johnson Avenue
48	BANA	Matteson Ground Lease	6,225,000	6,225,000	4808 Lincoln Highway
49	NCB	Waldo Gardens, Inc.	5,600,000	5,588,659	3800 Waldo Avenue
50	MSMCH	Kings Automall Shopping Center	5,300,000	5,300,000	9950-9998 Kings Automall Drive
51	WFB	Walgreens - Yakima	5,200,000	5,200,000	6400 West Nob Hill Boulevard
52	NCB	The Renee Owners Inc. a/k/a The Renee Owners, Inc.	5,000,000	5,000,000	78-40 164th Street
53	WFB	U-Stor-It – Melrose Park	5,000,000	5,000,000	4501 West North Avenue
54	NCB	Hudson House Tenants Corporation	5,000,000	4,994,392	100 Ardsley Avenue West
55	BANA	Lincoln MHC	4,900,000	4,900,000	6694 CO-2
56	NCB	60 West Broad Street, Inc.	4,750,000	4,734,422	60 West Broad Street
57	WFB	WAG Hudson, WI	4,700,000	4,700,000	141 Carmichael Road
58	BANA	Monte Cristo Adult Community	4,500,000	4,500,000	887 Count Drive
59	BANA	BuxBear Self Storage	4,500,000	4,500,000	1985 West Hayden Avenue
60	BANA	Tomball Self Storage	4,394,000	4,394,000	11133 Spring Cypress Road
61	NCB	12 West 17th St. Tenants’ Corp.	4,300,000	4,295,434	12 West 17th Street
62	MSMCH	Broad Street Portfolio	4,100,000	4,100,000	150, 152, 154, 156 and 158 Broad Street
63	NCB	Oakhurst Gardens Corp.	3,900,000	3,893,284	100 Pelham Road
64	BANA	Lakeside Villa & Glacier View	3,840,000	3,840,000	Various
64.01	BANA	Lakeside Villa Mobile Park	2,288,960	2,288,960	6200 Fair Oaks Road Southeast
64.02	BANA	Glacier View Mobile Park	1,551,040	1,551,040	7138 Englewood Drive Southeast
65	BANA	Lindon Self Storage	3,700,000	3,700,000	81 North 1800 West
66	MSMCH	RVacation RV Park	3,280,000	3,280,000	428 Campground Road
67	NCB	Archer Cooperative, Inc.	3,250,000	3,250,000	1430 and 1480 Thieriot Avenue
68	NCB	Caribbean House, Inc.	3,200,000	3,200,000	1375 River Road
69	NCB	111-127 Cabrini Apartments Corp.	2,800,000	2,800,000	111-127 Cabrini Boulevard a/k/a 115 Cabrini Boulevard
70	NCB	94-102 Hamilton Place Housing Development Fund Corporation	2,800,000	2,800,000	94-102 Hamilton Place
71	MSMCH	4601 S Indiana Ave	2,800,000	2,800,000	4601 South Indiana Avenue
72	NCB	250 North Village Owners, Inc.	2,775,000	2,765,849	250 North Village Avenue
73	NCB	White Oak Cooperative Housing Corp.	2,750,000	2,745,273	50 White Oak Street
74	BANA	Brookville MHC	2,550,000	2,550,000	6200 South Brookville Road

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Balance	Cut-off Date Balance	Address
75	NCB	Garden Lofts Corp.	2,500,000	2,500,000	131-133 West 28th Street
76	NCB	NW-Mad 95 Owners Corp. a/k/a N W Mad-95 Owners Corp.	2,500,000	2,495,732	27-29 East 95th Street and 1356 Madison Avenue
77	NCB	Crescent Tenants Corp.	2,500,000	2,491,952	31-85 Crescent Street
78	NCB	Jackson Manor Inc.	2,450,000	2,445,938	90-10 34th Avenue
79	NCB	Midland Manor Owners Corp.	2,450,000	2,445,874	182-25 Wexford Terrace
80	MSMCH	Load & Lock Mini Storage	2,306,000	2,299,405	13505 State Route 68
81	NCB	35 East Tenants Corp.	2,150,000	2,146,298	35 East 30th Street
82	NCB	Hudson Park Co-operative Apts., Inc., a/k/a Hudson Park Cooperative Apts., Inc.	1,900,000	1,896,773	164 Church Street
83	NCB	Greene Street Associates, Inc. A/K/A Greenestreet Associates, Inc.	1,750,000	1,744,470	15-17 Greene Street
84	BANA	Sunset View MHC	1,700,000	1,700,000	3150 S Platte River Drive
85	NCB	Cherry Lane Owners Corp.	1,650,000	1,644,629	42-95 Main Street
86	NCB	Delano Tenants Corp.	1,500,000	1,497,165	99-15 66th Avenue
87	BANA	Arroyo MHC	1,300,000	1,300,000	1015 Glade Lane
88	NCB	25 Indian Road Owners Corp.	1,300,000	1,281,668	25 Indian Road
89	NCB	Village Gardens Tenants Corp.	1,200,000	1,200,000	304-20 Fenimore Road
90	NCB	482 East 74th Street Apartment Corp.	1,100,000	1,096,569	482 East 74th Street
91	NCB	Sherwood Village Cooperative B, Inc.	1,000,000	998,342	99-11 60th Avenue and 99-14 59th Avenue
92	NCB	22321 Owners Corp.	1,000,000	992,951	223/231 West 21st Street

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	City	State	Note Date	Maturity  Date or ARD	Mortgage Rate
1	BANA	One North Wacker	Chicago	IL	9/10/2021	10/1/2031	2.71850%
2	BANA/WFB	Arizona Mills	Tempe	AZ	8/31/2021	9/1/2026	3.80200%
3	BANA	ExchangeRight Portfolio 50	Various	Various	9/10/2021	10/1/2031	3.26370%
3.01	BANA	Publix- Madison Commons - Madison (Hughes), AL	Madison	AL
3.02	BANA	First Midwest Bank - Highland (Indianapolis), IN	Highland	IN
3.03	BANA	Walgreens - Vancouver (114th), WA	Vancouver	WA
3.04	BANA	Walgreens - Fresno (Blackstone), CA	Fresno	CA
3.05	BANA	Walgreens - Broussard (Saint Nazaire), LA	Broussard	LA
3.06	BANA	First Midwest Bank - Joliet (2801 Jefferson), IL	Joliet	IL
3.07	BANA	Walgreens - New Albany (New Albany), OH	New Albany	OH
3.08	BANA	Octapharma - Riverdale (Riverdale), MD	Riverdale	MD
3.09	BANA	Walgreens - Bossier City (Airline), LA	Bossier City	LA
3.10	BANA	Octapharma - Chicago (95th), IL	Chicago	IL
3.11	BANA	WellMed - El Paso (Yarbrough), TX	El Paso	TX
3.12	BANA	WellMed - Plant City (Alexander), FL	Plant City	FL
3.13	BANA	WellMed - San Antonio (Military), TX	San Antonio	TX
3.14	BANA	CVS Pharmacy - Erie (Peninsula) PA	Erie	PA
3.15	BANA	First Midwest Bank - Mundelein (Allanson), IL	Mundelein	IL
3.16	BANA	Fresenius Kidney Care - Anderson (Jackson), IN	Anderson	IN
3.17	BANA	Dollar Tree – Richton Park (Sauk), IL	Richton Park	IL
3.18	BANA	First Midwest Bank - McHenry (Richmond), IL	McHenry	IL
3.19	BANA	Dollar General - Marietta (River), PA	Marietta	PA
3.2	BANA	Dollar General - Pine Hill (Erial), NJ	Pine Hill	NJ
3.21	BANA	Dollar General - Purvis (Old US 11), MS	Purvis	MS
3.22	BANA	Family Dollar - South Point (Solida), OH	South Point	OH
3.23	BANA	Dollar Tree - Glenpool (Waco), OK	Glenpool	OK
3.24	BANA	Sherwin Williams - Ames (16th), IA	Ames	IA
3.25	BANA	Sherwin Williams (Broken Arrow), OK	Broken Arrow	OK
3.26	BANA	Family Dollar - Warren (Youngstown), OH	Warren	OH
3.27	BANA	Dollar General - Bismarck (Lincoln), ND	Lincoln	ND
3.28	BANA	Dollar General - Lake Cormorant (Highway 301), MS	Lake Cormorant	MS
3.29	BANA	Dollar General - Pharr (Minnesota), TX	Pharr	TX
3.3	BANA	Dollar General - Rocky Mount (Goldrock), NC	Rocky Mount	NC
4	BANA	International Plaza I	Farmers Branch	TX	8/11/2021	9/1/2031	2.43500%
5	MSMCH	Suarez Puerto Rico Industrial Portfolio	Various	PR	8/24/2021	9/1/2026	3.65600%
5.01	MSMCH	San Juan Industrial Park	Caguas	PR
5.02	MSMCH	Rexco Industrial Park	Guaynabo	PR
5.03	MSMCH	Wendy’s	Caguas	PR

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	City	State	Note Date	Maturity  Date or ARD	Mortgage Rate
6	BANA	The Court at Oxford Valley	Fairless Hills	PA	6/25/2021	7/1/2031	3.20000%
7	BANA	Plaza at Imperial Valley	El Centro	CA	8/12/2021	9/1/2031	3.75000%
8	WFB	Tides Folly Beach	Folly Beach	SC	9/3/2021	9/11/2031	3.81400%
9	MSMCH	Corporate Research Center	Hayward	CA	9/16/2021	10/1/2031	2.54000%
10	MSMCH	Lightwave Corporate Center	San Diego	CA	9/9/2021	10/1/2031	2.55000%
11	WFB	La Brea & San Vicente	Los Angeles	CA	7/9/2021	7/11/2031	3.34500%
12	BANA	Raymour & Flanigan Campus	Liverpool	NY	9/9/2021	10/1/2031	2.92500%
13	WFB	Norwalk Town Square	Norwalk	CA	6/29/2021	7/11/2031	3.31300%
14	MSMCH	Tomball Town Center	Tomball	TX	7/20/2021	8/1/2031	3.45000%
15	WFB	Lake Pointe Corporate Centre	West Valley City	UT	8/12/2021	9/11/2031	2.96600%
16	MSMCH	Newport Pavilion	Newport	KY	6/16/2021	7/1/2026	3.04000%
17	WFB	1925 Maple	El Segundo	CA	8/5/2021	8/11/2031	3.42600%
18	MSMCH	University Square Shopping Center	Greeley	CO	8/24/2021	9/1/2031	3.13000%
19	NCB	Netherland Gardens Corp. f/k/a Netherland Tenants Corp.	Riverdale	NY	7/28/2021	8/1/2031	3.05000%
20	WFB	Central San Rafael Storage	San Rafael	CA	8/6/2021	8/11/2031	3.25700%
21	BANA	Southern Flexible Apartment Portfolio II	Various	Various	9/7/2021	10/1/2031	3.75000%
21.01	BANA	Siegel Suites Columbia	Columbia	SC
21.02	BANA	Siegel Select Gautier	Gautier	MS
21.03	BANA	Siegel Select Alexandria	Alexandria	LA
21.04	BANA	Siegel Select Montgomery	Montgomery	AL
22	WFB	Metro Crossing	Council Bluffs	IA	6/17/2021	7/11/2026	3.35800%
23	BANA	McDonald’s Global HQ	Chicago	IL	10/29/2020	11/1/2030	2.93500%
24	WFB	Zions Bank	Provo	UT	9/1/2021	9/11/2031	3.20000%
25	MSMCH	2707 Sedgwick	Bronx	NY	8/31/2021	9/1/2031	3.43000%
26	MSMCH	South Main Shopping Center	Houston	TX	7/2/2021	8/1/2031	3.65000%
27	MSMCH	2800 Bailey	Bronx	NY	7/30/2021	8/1/2031	2.86700%
28	WFB	Davidsohn Industrial Park	Las Vegas	NV	9/1/2021	9/11/2031	3.40500%
29	MSMCH	Longford Shoppes	Las Vegas	NV	7/15/2021	8/1/2031	3.72000%
30	NCB	Fairfield Commons Owners Corp.	North Babylon	NY	7/30/2021	8/1/2031	3.03000%
31	NCB	2400 Johnson Avenue Owners, Inc.	Bronx	NY	7/29/2021	8/1/2031	3.03000%
32	MSMCH	290 Tunxis Hill	Fairfield	CT	7/14/2021	8/1/2031	3.30000%
33	WFB	Velocity Industrial Portfolio	Lansdale	PA	6/28/2021	7/11/2031	3.23000%
33.01	WFB	2750 Morris Road	Lansdale	PA
33.02	WFB	1180 Church Road	Lansdale	PA
34	BANA	Legacy Business Park	Henderson	NV	8/27/2021	9/1/2031	3.48000%
35	WFB	Park City Self Storage UT	Kamas	UT	8/26/2021	9/11/2031	3.27000%
36	WFB	Grandview Court	Waukegan	IL	5/10/2021	5/11/2031	3.35300%
37	MSMCH	Anaheim Hills Medical Office	Anaheim	CA	7/21/2021	8/1/2031	3.50000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	City	State	Note Date	Maturity  Date or ARD	Mortgage Rate
38	NCB	415 East 80th Street Housing Corporation	New York	NY	7/30/2021	8/1/2031	3.05000%
39	WFB	Village At Dos Vientos	Thousand Oaks	CA	8/26/2021	9/11/2031	3.78100%
40	WFB	Arville Commerce Center	Las Vegas	NV	8/19/2021	9/11/2031	3.10000%
41	MSMCH	Boulder Crossroads	Las Vegas	NV	7/2/2021	8/1/2031	3.77000%
42	MSMCH	The Platform Santa Barbara	Santa Barbara	CA	9/1/2021	9/1/2031	3.41000%
43	BANA	Sprague Self Storage	Spokane Valley	WA	9/9/2021	10/1/2031	3.40000%
44	BANA	Bella Road Self Storage	Vacaville	CA	8/20/2021	9/1/2031	3.47000%
45	BANA	Western Skies Business Center	Gilbert	AZ	9/1/2021	9/1/2028	3.04400%
46	MSMCH	Titan Self Storage	Elgin	IL	9/3/2021	10/1/2031	3.42000%
47	BANA	3508-3510 Johnson Avenue	Riverdale	NY	8/5/2021	9/1/2031	3.55000%
48	BANA	Matteson Ground Lease	Matteson	IL	8/6/2021	9/1/2031	3.09000%
49	NCB	Waldo Gardens, Inc.	Bronx	NY	7/30/2021	8/1/2031	3.10000%
50	MSMCH	Kings Automall Shopping Center	Cincinnati	OH	7/15/2021	8/1/2031	4.04000%
51	WFB	Walgreens - Yakima	Yakima	WA	6/17/2021	7/11/2031	3.79000%
52	NCB	The Renee Owners Inc. a/k/a The Renee Owners, Inc.	Fresh Meadows	NY	8/2/2021	9/1/2031	3.02000%
53	WFB	U-Stor-It – Melrose Park	Melrose Park	IL	7/7/2021	7/11/2031	3.41000%
54	NCB	Hudson House Tenants Corporation	Ardsley-On-Hudson	NY	8/31/2021	9/1/2031	2.84000%
55	BANA	Lincoln MHC	Commerce City	CO	9/9/2021	10/1/2031	3.62300%
56	NCB	60 West Broad Street, Inc.	Mount Vernon	NY	7/21/2021	8/1/2031	3.12000%
57	WFB	WAG Hudson, WI	Hudson	WI	6/17/2021	7/11/2031	3.54000%
58	BANA	Monte Cristo Adult Community	Livingston	CA	8/9/2021	9/1/2031	4.38000%
59	BANA	BuxBear Self Storage	Hayden	ID	8/31/2021	9/1/2028	3.57300%
60	BANA	Tomball Self Storage	Tomball	TX	7/20/2021	8/1/2031	3.60000%
61	NCB	12 West 17th St. Tenants’ Corp.	New York	NY	8/27/2021	9/1/2031	3.07000%
62	MSMCH	Broad Street Portfolio	Summit	NJ	8/26/2021	9/1/2031	3.51000%
63	NCB	Oakhurst Gardens Corp.	New Rochelle	NY	8/25/2021	9/1/2031	2.98000%
64	BANA	Lakeside Villa & Glacier View	Olympia	WA	9/1/2021	9/1/2031	3.48000%
64.01	BANA	Lakeside Villa Mobile Park	Olympia	WA
64.02	BANA	Glacier View Mobile Park	Olympia	WA
65	BANA	Lindon Self Storage	Lindon	UT	9/10/2021	10/1/2031	3.74400%
66	MSMCH	RVacation RV Park	Selma	NC	7/15/2021	8/1/2031	3.70890%
67	NCB	Archer Cooperative, Inc.	Bronx	NY	7/29/2021	8/1/2031	3.19000%
68	NCB	Caribbean House, Inc.	Edgewater	NJ	9/3/2021	10/1/2031	3.25000%
69	NCB	111-127 Cabrini Apartments Corp.	New York	NY	7/27/2021	8/1/2031	3.05000%
70	NCB	94-102 Hamilton Place Housing Development Fund Corporation	New York	NY	7/28/2021	8/1/2031	3.16000%
71	MSMCH	4601 S Indiana Ave	Chicago	IL	6/3/2021	7/1/2031	4.75000%
72	NCB	250 North Village Owners, Inc.	Rockville Centre	NY	7/30/2021	8/1/2031	3.09000%
73	NCB	White Oak Cooperative Housing Corp.	New Rochelle	NY	8/20/2021	9/1/2031	2.99000%
74	BANA	Brookville MHC	Indianapolis	IN	8/17/2021	9/1/2031	3.50000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	City	State	Note Date	Maturity  Date or ARD	Mortgage Rate
75	NCB	Garden Lofts Corp.	New York	NY	8/25/2021	9/1/2031	3.03000%
76	NCB	NW-Mad 95 Owners Corp. a/k/a N W Mad-95 Owners Corp.	New York	NY	8/26/2021	9/1/2031	3.03000%
77	NCB	Crescent Tenants Corp.	Astoria	NY	7/27/2021	8/1/2031	3.22000%
78	NCB	Jackson Manor Inc.	Jackson Heights	NY	8/26/2021	9/1/2031	3.20000%
79	NCB	Midland Manor Owners Corp.	Jamaica	NY	8/16/2021	9/1/2031	3.11000%
80	MSMCH	Load & Lock Mini Storage	Findlay	OH	7/8/2021	8/1/2031	3.84500%
81	NCB	35 East Tenants Corp.	New York	NY	8/31/2021	9/1/2031	2.98000%
82	NCB	Hudson Park Co-operative Apts., Inc., a/k/a Hudson Park Cooperative Apts., Inc.	New Rochelle	NY	8/31/2021	9/1/2031	3.06000%
83	NCB	Greene Street Associates, Inc. A/K/A Greenestreet Associates, Inc.	New York	NY	7/30/2021	8/1/2031	3.32000%
84	BANA	Sunset View MHC	Englewood	CO	9/9/2021	10/1/2031	3.42300%
85	NCB	Cherry Lane Owners Corp.	Flushing	NY	7/29/2021	8/1/2031	3.16000%
86	NCB	Delano Tenants Corp.	Rego Park	NY	7/26/2021	8/1/2031	3.36000%
87	BANA	Arroyo MHC	Farmington	NM	9/9/2021	10/1/2026	3.71700%
88	NCB	25 Indian Road Owners Corp.	New York	NY	7/29/2021	8/1/2031	3.19000%
89	NCB	Village Gardens Tenants Corp.	Mamaroneck	NY	8/26/2021	9/1/2031	3.15000%
90	NCB	482 East 74th Street Apartment Corp.	New York	NY	7/20/2021	8/1/2031	3.39000%
91	NCB	Sherwood Village Cooperative B, Inc.	Corona	NY	8/17/2021	9/1/2031	3.20000%
92	NCB	22321 Owners Corp.	New York	NY	8/23/2021	9/1/2031	3.29000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Yes/No)	Primary Servicing Fee Rate
1	BANA	One North Wacker	120	120	0	No	0.00250%
2	BANA/WFB	Arizona Mills	60	59	360	No	0.00250%
3	BANA	ExchangeRight Portfolio 50	120	120	0	No	0.00250%
3.01	BANA	Publix- Madison Commons - Madison (Hughes), AL
3.02	BANA	First Midwest Bank - Highland (Indianapolis), IN
3.03	BANA	Walgreens - Vancouver (114th), WA
3.04	BANA	Walgreens - Fresno (Blackstone), CA
3.05	BANA	Walgreens - Broussard (Saint Nazaire), LA
3.06	BANA	First Midwest Bank - Joliet (2801 Jefferson), IL
3.07	BANA	Walgreens - New Albany (New Albany), OH
3.08	BANA	Octapharma - Riverdale (Riverdale), MD
3.09	BANA	Walgreens - Bossier City (Airline), LA
3.10	BANA	Octapharma - Chicago (95th), IL
3.11	BANA	WellMed - El Paso (Yarbrough), TX
3.12	BANA	WellMed - Plant City (Alexander), FL
3.13	BANA	WellMed - San Antonio (Military), TX
3.14	BANA	CVS Pharmacy - Erie (Peninsula) PA
3.15	BANA	First Midwest Bank - Mundelein (Allanson), IL
3.16	BANA	Fresenius Kidney Care - Anderson (Jackson), IN
3.17	BANA	Dollar Tree – Richton Park (Sauk), IL
3.18	BANA	First Midwest Bank - McHenry (Richmond), IL
3.19	BANA	Dollar General - Marietta (River), PA
3.2	BANA	Dollar General - Pine Hill (Erial), NJ
3.21	BANA	Dollar General - Purvis (Old US 11), MS
3.22	BANA	Family Dollar - South Point (Solida), OH
3.23	BANA	Dollar Tree - Glenpool (Waco), OK
3.24	BANA	Sherwin Williams - Ames (16th), IA
3.25	BANA	Sherwin Williams (Broken Arrow), OK
3.26	BANA	Family Dollar - Warren (Youngstown), OH
3.27	BANA	Dollar General - Bismarck (Lincoln), ND
3.28	BANA	Dollar General - Lake Cormorant (Highway 301), MS
3.29	BANA	Dollar General - Pharr (Minnesota), TX
3.3	BANA	Dollar General - Rocky Mount (Goldrock), NC
4	BANA	International Plaza I	120	119	0	No	0.00250%
5	MSMCH	Suarez Puerto Rico Industrial Portfolio	60	59	0	No	0.00250%
5.01	MSMCH	San Juan Industrial Park
5.02	MSMCH	Rexco Industrial Park
5.03	MSMCH	Wendy’s

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Yes/No)	Primary Servicing Fee Rate
6	BANA	The Court at Oxford Valley	120	117	360	No	0.00250%
7	BANA	Plaza at Imperial Valley	120	119	0	No	0.00250%
8	WFB	Tides Folly Beach	120	119	360	No	0.00250%
9	MSMCH	Corporate Research Center	120	120	0	No	0.00250%
10	MSMCH	Lightwave Corporate Center	120	120	0	No	0.00250%
11	WFB	La Brea & San Vicente	120	117	0	No	0.00250%
12	BANA	Raymour & Flanigan Campus	120	120	0	No	0.00250%
13	WFB	Norwalk Town Square	120	117	0	No	0.00250%
14	MSMCH	Tomball Town Center	120	118	0	No	0.01250%
15	WFB	Lake Pointe Corporate Centre	120	119	0	No	0.00250%
16	MSMCH	Newport Pavilion	60	57	0	No	0.00000%
17	WFB	1925 Maple	120	118	0	No	0.00250%
18	MSMCH	University Square Shopping Center	120	119	0	No	0.00250%
19	NCB	Netherland Gardens Corp. f/k/a Netherland Tenants Corp.	120	118	360	No	0.00000%
20	WFB	Central San Rafael Storage	120	118	0	No	0.00250%
21	BANA	Southern Flexible Apartment Portfolio II	120	120	360	No	0.00250%
21.01	BANA	Siegel Suites Columbia
21.02	BANA	Siegel Select Gautier
21.03	BANA	Siegel Select Alexandria
21.04	BANA	Siegel Select Montgomery
22	WFB	Metro Crossing	60	57	360	No	0.00000%
23	BANA	McDonald’s Global HQ	120	109	270	No	0.00000%
24	WFB	Zions Bank	120	119	0	No	0.00250%
25	MSMCH	2707 Sedgwick	120	119	0	No	0.00250%
26	MSMCH	South Main Shopping Center	120	118	360	No	0.04000%
27	MSMCH	2800 Bailey	120	118	0	No	0.00250%
28	WFB	Davidsohn Industrial Park	120	119	360	No	0.00250%
29	MSMCH	Longford Shoppes	120	118	0	No	0.00250%
30	NCB	Fairfield Commons Owners Corp.	120	118	480	No	0.00000%
31	NCB	2400 Johnson Avenue Owners, Inc.	120	118	480	No	0.00000%
32	MSMCH	290 Tunxis Hill	120	118	0	No	0.00250%
33	WFB	Velocity Industrial Portfolio	120	117	0	No	0.00000%
33.01	WFB	2750 Morris Road
33.02	WFB	1180 Church Road
34	BANA	Legacy Business Park	120	119	360	No	0.00250%
35	WFB	Park City Self Storage UT	120	119	0	No	0.00250%
36	WFB	Grandview Court	120	115	360	No	0.03250%
37	MSMCH	Anaheim Hills Medical Office	120	118	0	No	0.00250%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Yes/No)	Primary Servicing Fee Rate
38	NCB	415 East 80th Street Housing Corporation	120	118	0	No	0.00000%
39	WFB	Village At Dos Vientos	120	119	360	No	0.00250%
40	WFB	Arville Commerce Center	120	119	0	No	0.06000%
41	MSMCH	Boulder Crossroads	120	118	0	No	0.05250%
42	MSMCH	The Platform Santa Barbara	120	119	0	No	0.05250%
43	BANA	Sprague Self Storage	120	120	0	No	0.07000%
44	BANA	Bella Road Self Storage	120	119	0	No	0.03250%
45	BANA	Western Skies Business Center	84	83	0	No	0.00250%
46	MSMCH	Titan Self Storage	120	120	0	No	0.06250%
47	BANA	3508-3510 Johnson Avenue	120	119	0	No	0.00250%
48	BANA	Matteson Ground Lease	120	119	0	No	0.00250%
49	NCB	Waldo Gardens, Inc.	120	118	480	No	0.00000%
50	MSMCH	Kings Automall Shopping Center	120	118	360	No	0.00250%
51	WFB	Walgreens - Yakima	120	117	0	No	0.03250%
52	NCB	The Renee Owners Inc. a/k/a The Renee Owners, Inc.	120	119	0	No	0.00000%
53	WFB	U-Stor-It – Melrose Park	120	117	360	No	0.00250%
54	NCB	Hudson House Tenants Corporation	120	119	480	No	0.00000%
55	BANA	Lincoln MHC	120	120	0	No	0.07000%
56	NCB	60 West Broad Street, Inc.	120	118	360	No	0.00000%
57	WFB	WAG Hudson, WI	120	117	0	No	0.04250%
58	BANA	Monte Cristo Adult Community	120	119	0	No	0.00250%
59	BANA	BuxBear Self Storage	84	83	0	No	0.04000%
60	BANA	Tomball Self Storage	120	118	0	No	0.00250%
61	NCB	12 West 17th St. Tenants’ Corp.	120	119	480	No	0.00000%
62	MSMCH	Broad Street Portfolio	120	119	0	No	0.00250%
63	NCB	Oakhurst Gardens Corp.	120	119	360	No	0.00000%
64	BANA	Lakeside Villa & Glacier View	120	119	0	No	0.00250%
64.01	BANA	Lakeside Villa Mobile Park
64.02	BANA	Glacier View Mobile Park
65	BANA	Lindon Self Storage	120	120	0	No	0.08000%
66	MSMCH	RVacation RV Park	120	118	0	No	0.00250%
67	NCB	Archer Cooperative, Inc.	120	118	0	No	0.00000%
68	NCB	Caribbean House, Inc.	120	120	360	No	0.00000%
69	NCB	111-127 Cabrini Apartments Corp.	120	118	0	No	0.00000%
70	NCB	94-102 Hamilton Place Housing Development Fund Corporation	120	118	0	No	0.00000%
71	MSMCH	4601 S Indiana Ave	120	117	360	No	0.00250%
72	NCB	250 North Village Owners, Inc.	120	118	360	No	0.00000%
73	NCB	White Oak Cooperative Housing Corp.	120	119	360	No	0.00000%
74	BANA	Brookville MHC	120	119	0	No	0.00250%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Yes/No)	Primary Servicing Fee Rate
75	NCB	Garden Lofts Corp.	120	119	0	No	0.00000%
76	NCB	NW-Mad 95 Owners Corp. a/k/a N W Mad-95 Owners Corp.	120	119	360	No	0.00000%
77	NCB	Crescent Tenants Corp.	120	118	360	No	0.00000%
78	NCB	Jackson Manor Inc.	120	119	360	No	0.00000%
79	NCB	Midland Manor Owners Corp.	120	119	360	No	0.00000%
80	MSMCH	Load & Lock Mini Storage	120	118	360	No	0.07250%
81	NCB	35 East Tenants Corp.	120	119	360	No	0.00000%
82	NCB	Hudson Park Co-operative Apts., Inc., a/k/a Hudson Park Cooperative Apts., Inc.	120	119	360	No	0.00000%
83	NCB	Greene Street Associates, Inc. A/K/A Greenestreet Associates, Inc.	120	118	360	No	0.00000%
84	BANA	Sunset View MHC	120	120	0	No	0.16670%
85	NCB	Cherry Lane Owners Corp.	120	118	360	No	0.00000%
86	NCB	Delano Tenants Corp.	120	118	480	No	0.00000%
87	BANA	Arroyo MHC	60	60	0	No	0.21430%
88	NCB	25 Indian Road Owners Corp.	120	118	120	No	0.00000%
89	NCB	Village Gardens Tenants Corp.	120	119	0	No	0.00000%
90	NCB	482 East 74th Street Apartment Corp.	120	118	360	No	0.00000%
91	NCB	Sherwood Village Cooperative B, Inc.	120	119	360	No	0.00000%
92	NCB	22321 Owners Corp.	120	119	120	No	0.00000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Non-Serviced Primary Servicing Fee Rate
1	BANA	One North Wacker	0.00000%
2	BANA/WFB	Arizona Mills	0.00000%
3	BANA	ExchangeRight Portfolio 50	0.00000%
3.01	BANA	Publix- Madison Commons - Madison (Hughes), AL
3.02	BANA	First Midwest Bank - Highland (Indianapolis), IN
3.03	BANA	Walgreens - Vancouver (114th), WA
3.04	BANA	Walgreens - Fresno (Blackstone), CA
3.05	BANA	Walgreens - Broussard (Saint Nazaire), LA
3.06	BANA	First Midwest Bank - Joliet (2801 Jefferson), IL
3.07	BANA	Walgreens - New Albany (New Albany), OH
3.08	BANA	Octapharma - Riverdale (Riverdale), MD
3.09	BANA	Walgreens - Bossier City (Airline), LA
3.10	BANA	Octapharma - Chicago (95th), IL
3.11	BANA	WellMed - El Paso (Yarbrough), TX
3.12	BANA	WellMed - Plant City (Alexander), FL
3.13	BANA	WellMed - San Antonio (Military), TX
3.14	BANA	CVS Pharmacy - Erie (Peninsula) PA
3.15	BANA	First Midwest Bank - Mundelein (Allanson), IL
3.16	BANA	Fresenius Kidney Care - Anderson (Jackson), IN
3.17	BANA	Dollar Tree – Richton Park (Sauk), IL
3.18	BANA	First Midwest Bank - McHenry (Richmond), IL
3.19	BANA	Dollar General - Marietta (River), PA
3.2	BANA	Dollar General - Pine Hill (Erial), NJ
3.21	BANA	Dollar General - Purvis (Old US 11), MS
3.22	BANA	Family Dollar - South Point (Solida), OH
3.23	BANA	Dollar Tree - Glenpool (Waco), OK
3.24	BANA	Sherwin Williams - Ames (16th), IA
3.25	BANA	Sherwin Williams (Broken Arrow), OK
3.26	BANA	Family Dollar - Warren (Youngstown), OH
3.27	BANA	Dollar General - Bismarck (Lincoln), ND
3.28	BANA	Dollar General - Lake Cormorant (Highway 301), MS
3.29	BANA	Dollar General - Pharr (Minnesota), TX
3.3	BANA	Dollar General - Rocky Mount (Goldrock), NC
4	BANA	International Plaza I	0.00000%
5	MSMCH	Suarez Puerto Rico Industrial Portfolio	0.00000%
5.01	MSMCH	San Juan Industrial Park
5.02	MSMCH	Rexco Industrial Park
5.03	MSMCH	Wendy’s

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Non-Serviced Primary Servicing Fee Rate
6	BANA	The Court at Oxford Valley	0.00000%
7	BANA	Plaza at Imperial Valley	0.00000%
8	WFB	Tides Folly Beach	0.00000%
9	MSMCH	Corporate Research Center	0.00000%
10	MSMCH	Lightwave Corporate Center	0.00000%
11	WFB	La Brea & San Vicente	0.00000%
12	BANA	Raymour & Flanigan Campus	0.00000%
13	WFB	Norwalk Town Square	0.00000%
14	MSMCH	Tomball Town Center	0.00000%
15	WFB	Lake Pointe Corporate Centre	0.00000%
16	MSMCH	Newport Pavilion	0.00500%
17	WFB	1925 Maple	0.00000%
18	MSMCH	University Square Shopping Center	0.00000%
19	NCB	Netherland Gardens Corp. f/k/a Netherland Tenants Corp.	0.00000%
20	WFB	Central San Rafael Storage	0.00000%
21	BANA	Southern Flexible Apartment Portfolio II	0.00000%
21.01	BANA	Siegel Suites Columbia
21.02	BANA	Siegel Select Gautier
21.03	BANA	Siegel Select Alexandria
21.04	BANA	Siegel Select Montgomery
22	WFB	Metro Crossing	0.00250%
23	BANA	McDonald’s Global HQ	0.00250%
24	WFB	Zions Bank	0.00000%
25	MSMCH	2707 Sedgwick	0.00000%
26	MSMCH	South Main Shopping Center	0.00000%
27	MSMCH	2800 Bailey	0.00000%
28	WFB	Davidsohn Industrial Park	0.00000%
29	MSMCH	Longford Shoppes	0.00000%
30	NCB	Fairfield Commons Owners Corp.	0.00000%
31	NCB	2400 Johnson Avenue Owners, Inc.	0.00000%
32	MSMCH	290 Tunxis Hill	0.00000%
33	WFB	Velocity Industrial Portfolio	0.00250%
33.01	WFB	2750 Morris Road
33.02	WFB	1180 Church Road
34	BANA	Legacy Business Park	0.00000%
35	WFB	Park City Self Storage UT	0.00000%
36	WFB	Grandview Court	0.00000%
37	MSMCH	Anaheim Hills Medical Office	0.00000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Non-Serviced Primary Servicing Fee Rate
38	NCB	415 East 80th Street Housing Corporation	0.00000%
39	WFB	Village At Dos Vientos	0.00000%
40	WFB	Arville Commerce Center	0.00000%
41	MSMCH	Boulder Crossroads	0.00000%
42	MSMCH	The Platform Santa Barbara	0.00000%
43	BANA	Sprague Self Storage	0.00000%
44	BANA	Bella Road Self Storage	0.00000%
45	BANA	Western Skies Business Center	0.00000%
46	MSMCH	Titan Self Storage	0.00000%
47	BANA	3508-3510 Johnson Avenue	0.00000%
48	BANA	Matteson Ground Lease	0.00000%
49	NCB	Waldo Gardens, Inc.	0.00000%
50	MSMCH	Kings Automall Shopping Center	0.00000%
51	WFB	Walgreens - Yakima	0.00000%
52	NCB	The Renee Owners Inc. a/k/a The Renee Owners, Inc.	0.00000%
53	WFB	U-Stor-It – Melrose Park	0.00000%
54	NCB	Hudson House Tenants Corporation	0.00000%
55	BANA	Lincoln MHC	0.00000%
56	NCB	60 West Broad Street, Inc.	0.00000%
57	WFB	WAG Hudson, WI	0.00000%
58	BANA	Monte Cristo Adult Community	0.00000%
59	BANA	BuxBear Self Storage	0.00000%
60	BANA	Tomball Self Storage	0.00000%
61	NCB	12 West 17th St. Tenants’ Corp.	0.00000%
62	MSMCH	Broad Street Portfolio	0.00000%
63	NCB	Oakhurst Gardens Corp.	0.00000%
64	BANA	Lakeside Villa & Glacier View	0.00000%
64.01	BANA	Lakeside Villa Mobile Park
64.02	BANA	Glacier View Mobile Park
65	BANA	Lindon Self Storage	0.00000%
66	MSMCH	RVacation RV Park	0.00000%
67	NCB	Archer Cooperative, Inc.	0.00000%
68	NCB	Caribbean House, Inc.	0.00000%
69	NCB	111-127 Cabrini Apartments Corp.	0.00000%
70	NCB	94-102 Hamilton Place Housing Development Fund Corporation	0.00000%
71	MSMCH	4601 S Indiana Ave	0.00000%
72	NCB	250 North Village Owners, Inc.	0.00000%
73	NCB	White Oak Cooperative Housing Corp.	0.00000%
74	BANA	Brookville MHC	0.00000%

BANK 2021-BNK36

Loan ID	Mortgage Loan Seller	Property Name	Non-Serviced Primary Servicing Fee Rate
75	NCB	Garden Lofts Corp.	0.00000%
76	NCB	NW-Mad 95 Owners Corp. a/k/a N W Mad-95 Owners Corp.	0.00000%
77	NCB	Crescent Tenants Corp.	0.00000%
78	NCB	Jackson Manor Inc.	0.00000%
79	NCB	Midland Manor Owners Corp.	0.00000%
80	MSMCH	Load & Lock Mini Storage	0.00000%
81	NCB	35 East Tenants Corp.	0.00000%
82	NCB	Hudson Park Co-operative Apts., Inc., a/k/a Hudson Park Cooperative Apts., Inc.	0.00000%
83	NCB	Greene Street Associates, Inc. A/K/A Greenestreet Associates, Inc.	0.00000%
84	BANA	Sunset View MHC	0.00000%
85	NCB	Cherry Lane Owners Corp.	0.00000%
86	NCB	Delano Tenants Corp.	0.00000%
87	BANA	Arroyo MHC	0.00000%
88	NCB	25 Indian Road Owners Corp.	0.00000%
89	NCB	Village Gardens Tenants Corp.	0.00000%
90	NCB	482 East 74th Street Apartment Corp.	0.00000%
91	NCB	Sherwood Village Cooperative B, Inc.	0.00000%
92	NCB	22321 Owners Corp.	0.00000%

EXHIBIT C

FORM OF INVESTMENT REPRESENTATION LETTER

Wells Fargo Bank, National Association

as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch, III

Re: Transfer of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

This letter is delivered pursuant to Section 5.03 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 in connection with the transfer by _________________ (the “Seller”) to the undersigned (the “Purchaser”) of $_______________ aggregate [Certificate Balance][Notional Amount][__% Percentage Interest] of Class ___ Certificates (the “Certificates”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

Exhibit C-1 

In connection with such transfer, the Purchaser hereby represents and warrants to you and the addressees hereof as follows:

1.       Check one of the following:^*

☐ The Purchaser is not purchasing a Class R Certificate and the Purchaser is an institution that is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D (“Regulation D”) under the Securities Act of 1933, as amended (the “Securities Act”) or any entity in which all of the equity owners are “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D (each, an “Institutional Accredited Investor”) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Certificates, and the Purchaser and any accounts for which it is acting are each able to bear the economic risk of the Purchaser’s or such account’s investment. The Purchaser is acquiring the Certificates purchased by it for its own account or for one or more accounts, each of which is an Institutional Accredited Investor, as to each of which the Purchaser exercises sole investment discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs incurred by it in connection with this transfer.

☐ The Purchaser is a “qualified institutional buyer” (a “QIB”) within the meaning of Rule 144A (“Rule 144A”) under the Securities Act. The Purchaser is aware that the transfer is being made in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the information required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.

2.       The Purchaser’s intention is to acquire the Certificates (a) for investment for the Purchaser’s own account or (b) for reoffer, resale, pledge or other transfer (i) to QIBs in transactions under Rule 144A, and not in any event with the view to, or for resale in connection with, any distribution thereof, or (ii) (other than with respect to a Class R Certificate) to Institutional Accredited Investors, subject in the case of clause (ii) above to (w) the receipt by the Certificate Registrar of a letter substantially in the form hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel acceptable to the Trustee and Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act, (y) the receipt by the Certificate Registrar of such other evidence acceptable to the Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act and other applicable laws and (z) a written undertaking to reimburse the Trust for any costs incurred by it in connection with the proposed transfer. The Purchaser understands that the Certificates (and any subsequent Certificates) have not been registered under the Securities Act, by reason of a specified exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the Purchaser’s investment intent (or intent to reoffer, resell, pledge or transfer the Certificates only to certain investors in certain exempted transactions) as expressed herein.

^* Purchaser must select one of the following two certifications.

Exhibit C-2 

3.       The Purchaser has reviewed the Preliminary Prospectus and the Final Prospectus relating to the Offered Certificates (collectively, the “Prospectus”) (and, with respect to Offered Private Certificates, the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum related to such Offered Private Certificates) and the agreements and other materials referred to therein and has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by the Prospectus.

4.       The Purchaser acknowledges that the Certificates (and any Certificates issued on transfer or exchange thereof) have not been registered or qualified under the Securities Act or the securities laws of any State or any other jurisdiction, and that the Certificates cannot be reoffered, resold, pledged or otherwise transferred unless it is registered or qualified thereunder or unless an exemption from such registration or qualification is available.

5.       The Purchaser hereby undertakes to be bound by the terms and conditions of the Pooling and Servicing Agreement in its capacity as an owner of a Certificate or Certificates, as the case may be (each, a “Certificateholder”), in all respects as if it were a signatory thereto. This undertaking is made for the benefit of the Trust, the Certificate Registrar and all Certificateholders present and future.

6.       The Purchaser will not sell or otherwise transfer any portion of the Certificate or Certificates, except in compliance with Section 5.03 of the Pooling and Servicing Agreement.

7.       Check one of the following:^**

☐ The Purchaser is a U.S. Tax Person (as defined below) and it has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).

☐ The Purchaser is not a U.S. Tax Person and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Registrar (or its agent) with respect to distributions to be made on the Certificates. The Purchaser has attached hereto [(i) a duly executed IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form, as applicable), which identifies such Purchaser as the beneficial owner of the Certificates and states that such Purchaser is not a U.S. Tax Person, (ii) IRS Form W-8IMY (with all appropriate attachments) or (iii)]^*** two duly executed copies of IRS Form W-8ECI (or successor form), which identify such Purchaser as the beneficial owner of the Certificates and state that interest and original issue discount on the Certificates and Permitted Investments is, or is expected to be, effectively connected with a U.S. trade or business. The Purchaser agrees to provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any applicable successor IRS forms, or such other certifications as the Certificate Registrar may reasonably request, on or before the date that any such IRS form or certification

^** Each Purchaser must include one of the two alternative certifications.

^*** Does not apply to a transfer of Class R Certificates.

Exhibit C-3 

expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Registrar.

For purposes of this paragraph 7, “U.S. Tax Person” means a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States federal income tax regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Tax Persons).

8.     Please make all payments due on the Certificates:^****

☐ (a) by wire transfer to the following account at a bank or entity in New York, New York, having appropriate facilities therefor:

Bank:

ABA #:

Account #:

Attention:

☐ (b) by mailing a check or draft to the following address:

9.       If the Purchaser is purchasing a Class R Certificate, the Purchaser is not a partnership (including any entity treated as a partnership for U.S. federal income tax purposes), any interest in which is owned, directly or indirectly, through one or more partnerships, trusts or other pass-through entities by a Disqualified Non-U.S. Tax Person.

Very truly yours,

[The Purchaser]

By:
	Name: Title:

Dated:

^**** Only to be filled out by Purchasers of Definitive Certificates. Please select (a) or (b). For holders of the Definitive Certificates, wire transfers are only available if such holder’s Definitive Certificates have an aggregate Certificate Balance or Notional Amount, as applicable, of at least U.S. $5,000,000.

Exhibit C-4 

EXHIBIT D-1

Form of Transferee Affidavit FOR TRANSFERS
OF CLASS R CERTIFICATES

[Date]

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

STATE OF	)
	)	ss.:
COUNTY OF	)

I, [______], under penalties of perjury, declare that, to the best of my knowledge and belief, the following representations are true, correct and complete, and being first sworn, depose and say that:

1.       I am a [______] of [______] (the “Purchaser”), on behalf of which I have the authority to make this affidavit.

2.       The Purchaser is acquiring Class R Certificates representing [__]% of the residual interest in each of the real estate mortgage investment conduits (each, a “REMIC” or “Trust REMIC”) designated as the (i)  “Lower-Tier REMIC” and (ii) “Upper-Tier REMIC”, respectively, relating to the Certificates for which an election is to be made under Section 860D of the Internal Revenue Code of 1986 (the “Code”).

3.       The Purchaser is not a “Disqualified Organization” (as defined below), and that the Purchaser is not acquiring the Class R Certificates for the account of, or as agent or nominee of, or with a view to the transfer of direct or indirect record or beneficial ownership thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified Organization is

Exhibit D-1-1 

any of the following: (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause a Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

4.       The Purchaser acknowledges that Section 860E(e) of the Code would impose a substantial tax on the transferor or, in certain circumstances, on an agent for the transferee, with respect to any transfer of any interest in any Class R Certificates to a Disqualified Organization.

5.       The Purchaser is a Permitted Transferee and, to the extent applicable, the Purchaser’s U.S. taxpayer identification number is [__________].

6.       No purpose of the acquisition of the Class R Certificates is to impede the assessment or collection of tax.

7.       The Purchaser will not cause income from the Class R Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other person.

8.       Check the applicable paragraph:

☐       The present value of the anticipated tax liabilities associated with holding the Class R Certificate, as applicable, does not exceed the sum of:

(i)      the present value of any consideration given to the Purchaser to acquire such Class R Certificate;

(ii)     the present value of the expected future distributions on such Class R Certificate; and

Exhibit D-1-2 

(iii)    the present value of the anticipated tax savings associated with holding such Class R Certificate as the related REMIC generates losses.

For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the highest rate currently specified in Section 11(b) of the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate specified in Section 11(b) of the Code if the Purchaser has been subject to the alternative minimum tax under Section 55 of the Code in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Purchaser.

☐       The transfer of the Class R Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,

(i)       the Purchaser is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Class R Certificate will only be taxed in the United States;

(ii)     at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;

(iii)    the Purchaser will transfer the Class R Certificate only to another “eligible corporation,” as defined in Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Treasury Regulations Section 1.860E-1(c)(5); and

(iv)    the Purchaser determined the consideration paid to it to acquire the Class R Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.

☐       None of the above.

9.       The Purchaser historically has paid its debts as they have come due and intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Class R Certificates as they become due.

10.     The Purchaser understands that it may incur tax liabilities with respect to the Class R Certificate in excess of any cash flows generated by such Certificate.

11.     The Purchaser is aware that the Certificate Registrar will not register any transfer of a Class R Certificate by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Purchaser expressly agrees that

Exhibit D-1-3 

it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.

12.     The Purchaser represents that it is not acquiring the Class R Certificate as a nominee, trustee or agent for any person that is not a Permitted Transferee and that for so long as it retains its interest in the Class R Certificate, it will endeavor to remain a Permitted Transferee.

13.     The Purchaser consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Class R Certificate will only be owned, directly or indirectly, by a Permitted Transferee.

14.     The Purchaser has reviewed the provisions of Section 5.03 of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Class R Certificates; and the Purchaser expressly agrees to be bound by and to comply with such provisions.

15.     The Purchaser consents to the designation of the Certificate Administrator as “partnership representative” of each Trust REMIC pursuant to Section 10.01 of the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized officer this ___day of _________, 20__.

By:
	Name: Title:

By:
	Name: Title:

Exhibit D-1-4 

On this ____ day of _______20__, before me, the undersigned, a Notary Public in and for the State of _______________, duly commissioned and sworn, personally appeared ______________________ and ________________________, known or proved to me to be the same persons who executed the foregoing instrument and to be _____________________________ and ___________________________, respectively, of the Purchaser, and acknowledged to me that they executed the same as their respective free acts and deeds and as the free act and deed of the Purchaser.

NOTARY PUBLIC in and for the
     State of _______________

[SEAL]

My Commission expires:

Exhibit D-1-5 

EXHIBIT D-2

FORM OF TRANSFEROR LETTER FOR TRANSFERS
OF CLASS R CERTIFICATES

[Date]

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”)

Ladies and Gentlemen:

This letter is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of Class R Certificates evidencing a [__]% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:

(1)       No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.

(2)       The Transferor understands that the Transferee has delivered to you a Transferee Affidavit in the form attached to the Pooling and Servicing Agreement as Exhibit D-1. The Transferor does not know or believe that any representation contained therein is false.

(3)       The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in

Exhibit D-2-1 

the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.

Very truly yours,
	(Transferor)
By:
	Name: Title:

Exhibit D-2-2 

EXHIBIT D-3

Form of Transferee CERTIFICATE FOR TRANSFERS
OF RR Interest

[Date]

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Bank of America, National Association,

as Retaining Sponsor

One Bryant Park

New York, New York 10036

Attention: Leland F. Bunch, III

with a copy to: cmbsnotices@bofa.com

Banc of America Merrill Lynch Commercial Mortgage Inc.

One Bryant Park

New York, New York 10036
Attention: Leland F. Bunch, III

with a copy to: cmbsnotices@bofa.com

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

[_____] (the “Purchaser”) hereby certifies, represents and warrants to you, as Certificate Registrar and as “retaining sponsor” as such term is defined in Regulation RR, that:

Exhibit D-3-1 

1. The Purchaser is acquiring $[_____] Certificate Balance of the RR Interest from [_____] (the “Transferor”).

2. The Purchaser is aware that the Certificate Registrar will not register any transfer of an RR Interest by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, a certificate in substantially the same form as this certificate. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such certificate is false.

3. If the Purchaser is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the acquisition of the RR Interest will be effected through BofA Securities, Inc., Wells Fargo Securities, LLC, Morgan Stanley & Co. LLC, Academy Securities, Inc., Drexel Hamilton, LLC or an affiliate thereof.

4. Check one of the following:

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Purchaser certifies, represents and warrants to you, as Certificate Registrar, that:

A. It is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

B. It is not acquiring the RR Interest as a nominee, trustee or agent for any person that is not a Majority-Owned Affiliate, and that for so long as it retains its interest in the RR Interest, it will remain a Majority-Owned Affiliate.

C. It will be bound by the U.S. Credit Risk Retention Agreement, between Bank of America, National Association, Wells Fargo Bank, National Association, Morgan Stanley Mortgage Capital Holdings LLC, Morgan Stanley Bank, N.A. and National Cooperative Bank, N.A., dated and effective as of October 7, 2021 (the “Credit Risk Retention Agreement”) as if it were a party to such agreement.

D. It hereby makes each representation set forth in Section 4(b) of the Credit Risk Retention Agreement.

E. It consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that its ownership of the RR Interest will satisfy the risk retention requirements of the Transferor, in its capacity as [sponsor][originator] under Regulation RR.

☐       The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

Exhibit D-3-2 

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

By:
	Name: Title:

By:
	Name: Title:

Exhibit D-3-3 

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]

By:
	Name: Title:

[Medallion Stamp Guarantee]

Exhibit D-3-4 

EXHIBIT D-4

FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF RR INTEREST

[Date]

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor
MAC N9300-070
Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036
Attention: Leland F. Bunch, III

with a copy to: cmbsnotices@bofa.com

Bank of America, National Association
         as Retaining Sponsor
One Bryant Park
New York, New York 10036

with a copy to: cmbsnotices@bofa.com

[EACH OTHER HOLDER OF AN RR INTEREST]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”)

Ladies and Gentlemen:

This is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of RR Interest evidencing $[____] Certificate Balance in such Class. The Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used but not otherwise defined herein

Exhibit D-4-1 

shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you that:

1. The transfer is in compliance with the Pooling and Servicing Agreement.

2. If the Transferee is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the acquisition of the RR Interest will be effected through BofA Securities, Inc., Wells Fargo Securities, LLC, Morgan Stanley & Co. LLC, Academy Securities, Inc., Drexel Hamilton, LLC or an affiliate thereof.

3. Check one of the following:

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Transferor certifies, represents and warrants to you that:

A. The transfer is in compliance with the U.S. Credit Risk Retention Agreement, between Bank of America, National Association, Wells Fargo Bank, National Association, Morgan Stanley Mortgage Capital Holdings LLC, Morgan Stanley Bank, N.A. and National Cooperative Bank, N.A., dated and effective as of October 7, 2021 (the “Credit Risk Retention Agreement”).

B. The Transferee is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor.

C. The Transferee has complied in all material respects with all of the covenants in the Credit Risk Retention Agreement during the period from the date of the Credit Risk Retention Agreement through and including the date of this transfer.

D. All of the representations and warranties made by the Transferor in the Credit Risk Retention Agreement are true and correct as of the date of the transfer.

E. All of the requirements set forth in Section 3(c) of the Credit Risk Retention Agreement have been complied with through and including the date of the transfer.

☐      The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

4. The Transferor understands that the Transferee has delivered to you a Transferee Certificate in the form attached to the Pooling and Servicing Agreement as Exhibit D-3. The Transferor does not know or believe that any representation contained therein is false.

IN WITNESS WHEREOF, the Transferor has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

Exhibit D-4-2 

	[TRANSFEROR]
By:
	Name: Title:

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]

By:
	Name: Title:

[Medallion Stamp Guarantee]

Exhibit D-4-3 

EXHIBIT E

FORM OF REQUEST FOR RELEASE
(for Custodian)

Loan Information
	Name of Mortgagor:
	[[General][NCB] Master Servicer]
	[[General][NCB] Special Servicer]
	Loan No.:
Custodian
	Name:	Wells Fargo Bank, National Association
	Address:	1055 10th Ave SE Minneapolis, Minnesota 55414 Attention: Document Custody Group BANK 2021-BNK36
	Custodian/Trustee Mortgage File No.:
Depositor
	Name:	Banc of America Merrill Lynch Commercial Mortgage Inc.
	Address:	One Bryant Park New York, New York 10036 Attention: Leland F. Bunch, III
	Certificates:	BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby requests delivery from Wells Fargo Bank, National Association, as custodian (the “Custodian”) on behalf of Wilmington Trust, National Association, as trustee (the “Trustee”), for the Holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, the documents referred to below (the “Documents”). All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Pooling and Servicing Agreement dated as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special

Exhibit E-1 

Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer (the “Pooling and Servicing Agreement”).

( )

( )

( )

( )

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby acknowledges and agrees as follows:

(1)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall hold and retain possession of the Documents in trust for the benefit of the Trustee, solely for the purposes provided in the Pooling and Servicing Agreement.

(2)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claims, liens, security interests, charges, writs of attachment or other impositions nor shall the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof except as otherwise provided in the Pooling and Servicing Agreement.

(3)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall return the Documents to the Custodian when the need therefor no longer exists, unless the Mortgage Loans have been liquidated or the Mortgage Loans have been paid in full and the proceeds thereof have been remitted to the Collection Account except as expressly provided in the Pooling and Servicing Agreement.

(4)       The Documents and any proceeds thereof, including proceeds of proceeds, coming into the possession or control of the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall at all times be earmarked for the account of the Trustee, and the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall keep the Documents separate and distinct from all other property in the [[General][NCB] Master Servicer’s] [[General][NCB] Special Servicer’s] possession, custody or control.

[____________]
By:
	Name:
	Title:

Exhibit E-2 

Date: _________

Exhibit E-3 

EXHIBIT F-1

FORM OF ERISA REPRESENTATION
LETTER REGARDING ERISA RESTRICTED CERTIFICATES

Wells Fargo Bank, National Association,
600 South 4th Street, 7th Floor
MAC N9300-070
Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036

Attention: Leland F. Bunch, III

Re: Transfer of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

The undersigned (the “Purchaser”) proposes to purchase US$[___] aggregate initial [Notional Amount][Certificate Balance] in the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, [Class [X-F][X-G][X-H][F][G][H] Certificates][RR Interest] issued pursuant to that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

In connection with such transfer, the undersigned hereby represents and warrants to you as follows:

1.       The Purchaser is not and will not be (a) an employee benefit plan or other plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (each, a “Plan”) or (b) any person acting on behalf of any such Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using

Exhibit F-1-1 

the assets of a Plan, other than an insurance company using the assets of its “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60) under circumstances whereby the purchase and holding of Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of PTCE 95-60 (or a Plan subject to Similar Law purchasing under circumstances that would not constitute or result in a non-exempt violation of applicable Similar Law).

2.       The Purchaser understands that if the Purchaser is or becomes a Person referred to in 1(a) or (b) above, such Purchaser is required to provide to the Trustee and Certificate Administrator an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a “prohibited transaction” within the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, the Master Servicers, the Special Servicers, any sub-servicer, the Initial Purchasers, the Underwriters, the Asset Representations Reviewer, the Operating Advisor or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Pooling and Servicing Agreement, which Opinion of Counsel shall not be at the expense of the Depositor, any Master Servicer, any Special Servicer, any subservicer, the Trustee, the Certificate Administrator, the Certificate Registrar, the Operating Advisor, the Asset Representations Reviewer, the Initial Purchasers, the Underwriters or the Trust.

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____________, 20__.

Very truly yours,

[The Purchaser]

By:
	Name:
	Title:

Date: _________

Exhibit F-1-2 

EXHIBIT F-2

Form of ERISA Representation Letter
regarding CLASS V AND CLASS R CERTIFICATES

[Date]

Wells Fargo Bank, National Association,
as Certificate Administrator

600 South 4th Street, 7th Floor
MAC N9300-070
Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

[OR OTHER CERTIFICATE REGISTRAR]

[Transferor]

[______]

[______]

Attention: [______]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

The undersigned (the “Purchaser”) proposes to purchase [__]% Percentage Interest in the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, [Class V][Class R] Certificates (the “[Class V][Class R] Certificate”) issued pursuant to that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

In connection with such transfer, the undersigned hereby represents and warrants to you that, with respect to the [Class R][Class V] Certificate, the Purchaser is not and will not become (a) an employee benefit plan or other plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (each, a “Plan”), or (b) any person acting on behalf of any such Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by

Exhibit F-2-1 

such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) or using the assets of a Plan to purchase such [Class V][Class R] Certificate.

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____, 20__.

Very truly yours,
[The Purchaser]
By:
	Name:
	Title:

Date: _______

Exhibit F-2-2 

EXHIBIT G

FORM OF DISTRIBUTION DATE STATEMENT

See Annex B to the Prospectus

Exhibit G-1 

EXHIBIT H

FORM OF OMNIBUS ASSIGNMENT

[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR] (the “Assignor”) for good and valuable consideration, the receipt and sufficiency of which are acknowledged, hereby sells, transfers, assigns, delivers, sets over and conveys, without recourse, representation or warranty, express or implied, unto “Wilmington Trust, National Association, as Trustee for the registered holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36” (the “Assignee”), having an office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee BANK 2021-BNK36, its successors and assigns, all right, title and interest of the Assignor in and to:

That certain mortgage and security agreement, deed of trust and security agreement, deed to secure debt and security agreement, or similar security instrument (the “Security Instrument”), and that certain Promissory Note (the “Mortgage Note”), for each of the Mortgage Loans shown on the Mortgage Loan Schedule attached hereto as Exhibit B, and that certain assignment of leases and rents given in connection therewith and all of the Assignor’s right, title and interest in any claims, collateral, insurance policies, certificates of deposit, letters of credit, escrow accounts, performance bonds, demands, causes of action and any other collateral arising out of and/or executed and/or delivered in or to or with respect to the Security Instrument and the Mortgage Note, together with any other documents or instruments executed and/or delivered in connection with or otherwise related to the Security Instrument and the Mortgage Note.

IN WITNESS WHEREOF, the Assignor has executed this instrument under seal to be effective as of the [__] day of [_____________], 20[__].

[NAME OF CURRENT ASSIGNOR]
By:
	Name:
	Title:

Exhibit H-1 

EXHIBIT I

Form of Transfer Certificate
for Rule 144A Book-Entry Certificate
to Temporary Regulation S Book-Entry Certificate
during Restricted Period

(Exchanges or transfers pursuant to
Section 5.03(c) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with the Depository in the name of [Euroclear] [Clearstream]^* (Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance

^*       Select appropriate depository.

Exhibit I-1 

with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States;

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]^**

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

^**       Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit I-2 

EXHIBIT J

Form of Transfer Certificate
for Rule 144A Book-Entry Certificate
to Regulation S Book-Entry Certificate after Restricted Period

(Exchange or transfers pursuant to
Section 5.03(d) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Regulation S Book-Entry Certificate of such Class (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit J-1 

[(2) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

^*       Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit J-2 

EXHIBIT K

Form of Transfer Certificate
for Temporary Regulation S Book-Entry Certificate
to Rule 144A Book-Entry Certificate during Restricted Period

(Exchange or transfers pursuant to
Section 5.03(e) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer”

^*       Select appropriate depository.

Exhibit K-1 

within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit K-2 

EXHIBIT L

Form of Transfer Certificate
for Temporary Regulation S Book-Entry Certificate
to Regulation S Book-Entry Certificate after Restricted Period

(Exchanges pursuant to
Section 5.03(f) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

[For purposes of acquiring a beneficial interest in a Regulation S Book-Entry Certificate of the Class specified above after the expiration of the Restricted Period,] [For purposes of receiving payments under a Temporary Regulation S Book-Entry Certificate of the Class specified above,]^* the undersigned holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate of the Class specified above issued under the Pooling and Servicing Agreement certifies that it is not a U.S. Person as defined by Regulation S under the Securities Act of 1933, as amended.

We undertake to advise you promptly by facsimile on or prior to the date on which you intend to submit your corresponding certification relating to the Certificates of the Class specified above held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

^*       Select, as applicable.

Exhibit L-1 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

Dated:______________

By:
	as, or as agent for, the holder of a beneficial interest in the Certificates to which this certificate relates.

Exhibit L-2 

EXHIBIT M

Form of Transfer Certificate
for Non-Book Entry Certificate
to Temporary Regulation S Book-Entry Certificate

(Exchanges or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository.

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

^*       Select appropriate depository.

Exhibit M-1 

(1)       the offer of the Certificates was not made to a person in the United States;

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] ^**

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

^**       Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit M-2 

EXHIBIT N

Form of Transfer Certificate
for Non-Book Entry Certificate
to Regulation S Book-Entry Certificate

(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Regulation S Book-Entry Certificate (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit N-1 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

^*       Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit N-2 

EXHIBIT O

Form of Transfer Certificate
for Non-Book Entry Certificate
to Rule 144A Book-Entry Certificate

(Exchange or transfers pursuant to
Section 5.03(g) of the Pooling and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

Exhibit O-1 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit O-2 

EXHIBIT P-1A

FORM OF INVESTOR CERTIFICATION for Non-Borrower PartY AND/OR THE RISK RETENTION CONSULTATION PARTY
(for Persons other than the DIRECTING CERTIFICATEHOLDER and/or a Controlling Class Certificateholder)

[Date]

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK36
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [_] Certificates

In accordance with the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.        The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates, a Companion Holder or the Risk Retention Consultation Party (or any investment advisor or manager or other representative of the foregoing).

2.       The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

3.       In the case that the undersigned is a Certificateholder, beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

4.       [FOR PARTIES OTHER THAN THE RISK RETENTION CONSULTATION PARTY: The undersigned is not a Borrower Party.]

5.       The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the

Exhibit P-1A-1 

undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[_____]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1A-2 

EXHIBIT P-1B

FORM OF INVESTOR CERTIFICATION for Non-Borrower PartY
(for the DIRECTING CERTIFICATEHOLDER and/or a Controlling Class Certificateholder)

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention:  BANK 2021-BNK36 Asset Manager Email:  commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention:  Corporate Trust Services (CMBS) BANK 2021-BNK36 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK36 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line	Wells Fargo Bank, National Association 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com mailto:
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class Certificates

Exhibit P-1B-1 

In accordance with the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is the Directing Certificateholder or a Controlling Class Certificateholder.

2.       The undersigned has received a copy of the Prospectus.

3.       The undersigned is not a Borrower Party.

4.       The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and may from time to time request information from the Master Servicer or Special Servicer [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

6.       At any time the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned shall deliver the certification attached as Exhibit

Exhibit P-1B-2 

P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       [For use with any party other than the initial Directing Certificateholder] The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

9.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[_____]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1B-3 

EXHIBIT P-1C

FORM OF INVESTOR CERTIFICATION for Borrower PartY
(for Persons other than the DIRECTING CERTIFICATEHOLDER, THE RISK RETENTION CONSULTATION PARTY and/or a Controlling Class Certificateholder)

[Date]

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK36
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Email: commercial.servicing@wellsfargo.com

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class Certificates

In accordance with the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

Exhibit P-1C-1 

1.       The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates or a Companion Holder (or any investment advisor or manager or other representative of the foregoing).

2.       The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

3.       In the case that the undersigned is a Certificateholder, a beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

4.       The undersigned is a Borrower Party.

5.       The undersigned is requesting access to the Distribution Date Statement pursuant to the Pooling and Servicing Agreement. In consideration of the disclosure to the undersigned of the Distribution Date Statement, or the access thereto, the undersigned will keep the Distribution Date Statement confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Distribution Date Statement will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Distribution Date Statement confidential shall expire one year following the date that the undersigned receives such Distribution Date Statement (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Distribution Date Statement in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Distribution Date Statement on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

Exhibit P-1C-2 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[_____]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1C-3 

EXHIBIT P-1D

FORM OF INVESTOR CERTIFICATION for Borrower PartY
(for the DIRECTING CERTIFICATEHOLDER and/or a Controlling Class Certificateholder)

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention:  BANK 2021-BNK36 Asset Manager Email:  commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention:  Corporate Trust Services (CMBS) BANK 2021-BNK36 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK36 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line	Wells Fargo Bank, National Association 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class Certificates

Exhibit P-1D-1 

In accordance with the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder].

2.       The undersigned is a Borrower Party with respect to the following [Excluded Loan][Excluded Controlling Class Loan](s):

[IDENTIFY [EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN](S)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”)

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

3.       The undersigned has received a copy of the Prospectus.

4.       Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.       The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s

Exhibit P-1D-2 

Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

8.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

9.       The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

10.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[_____]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1D-3 

EXHIBIT P-1E

FORM OF NOTICE OF EXCLUDED CONTROLLING CLASS HOLDER

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK36 Asset Manager Email: commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK36 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line	Wells Fargo Bank, National Association 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class Certificates

THIS NOTICE IDENTIFIES AN “[EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN]” RELATING TO THE BANK 2021-BNK36,

Exhibit P-1E-1 

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK36, REQUIRING ACTION BY YOU AS THE RECIPIENT PURSUANT TO SECTION 3.13(b) OF THE POOLING AND SERVICING AGREEMENT.

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby certifies and agrees as follows:

1.        The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

2.        The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”):

Loan Number ODCR Loan Name Borrower Name

[[If applicable] For the avoidance of doubt, [each] of the foregoing loans is both an Excluded Loan and an Excluded Controlling Class Loan.]

3.        As of the date above, the undersigned is the beneficial owner of the following certificates, and is providing the below information to the addressees hereto for purposes of their compliance with the Pooling and Servicing Agreement, including, among other things, the Certificate Administrator’s determination as to whether a Consultation Termination Event is in effect with respect to the Excluded Controlling Class Loans listed in paragraph 2 if any such mortgage loan is an Excluded Loan:

CUSIP Class Outstanding Certificate Balance Initial Certificate Balance

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

4.        Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to

Exhibit P-1E-2 

the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.        The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

6.        The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.        To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

8.        The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

Exhibit P-1E-3 

9.        The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

10.      The undersigned is simultaneously providing notice to the Certificate Administrator in the form of Exhibit P-1F to the Pooling and Servicing Agreement, requesting termination of access to any Excluded Information. The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it has (i) delivered notice of the termination of the related Excluded Controlling Class Holder status and (ii) submitted a new investor certification in accordance with Section 3.13(b) of the Pooling and Servicing Agreement.

11.      The undersigned agrees to indemnify and hold harmless each party to the Pooling and Servicing Agreement, the Underwriters, the Initial Purchasers and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) listed in Paragraph 2 above.

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
By:
	Name:
	Title:

Dated: _______ 

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1E-4 

EXHIBIT P-1F

FORM OF NOTICE OF [EXCLUDED LOAN] [EXCLUDED CONTROLLING CLASS

HOLDER] TO CERTIFICATE ADMINISTRATOR

[Date]

Via: Email
Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK36
cts.cmbs.bond.admin@wellsfargo.com 

trustadministrationgroup@wellsfargo.com

with a copy to:

Wells Fargo Bank, National Association, 

8480 Stagecoach Circle
Frederick, Maryland 21701-4747 

Attention: BANK 2021-BNK36

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby directs you as follows:

1.        The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

2.        The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”): 

Loan Number ODCR Loan Name Borrower Name

Exhibit P-1F-1 

3.        The following USER IDs for CTSLink are affiliated with the undersigned and access to any information on the Certificate Administrator’s Website with respect to the BANK 2021-BNK36 securitization should be revoked as to such users:

4.        The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information with respect to such [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it (i) is no longer an Excluded Controlling Class Holder with respect to such [Excluded Loan][Excluded Controlling Class Loan](s), (ii) has delivered notice of the termination of the related Excluded Controlling Class Holder status and (iii) has submitted an investor certification in the form of Exhibit P-1B to the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
By:
	Name:
	Title:

Dated: _______

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

The undersigned hereby acknowledges that
access to CTSLink has been revoked for
the users listed in Paragraph 3.

WELLS FARGO BANK, NATIONAL ASSOCIATION,

Certificate Administrator

Name:

Title:

Exhibit P-1F-2 

EXHIBIT P-1G

Form of Certification of the Directing Certificateholder

[Date] 

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK36 Asset Manager Email: commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK36 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line	Wells Fargo Bank, National Association 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, Class [__] Certificates

Exhibit P-1G-1 

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.        The undersigned has been appointed to act as the Directing Certificateholder.

2.        The undersigned is not a Borrower Party.

3.        If the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned agrees to and shall deliver the certification attached as Exhibit P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

4.        [For use with any party other than the initial Directing Certificateholder]The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

5.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Certificateholder]
By:
	Name:
	Title:

Dated: _______ 

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1G-2 

EXHIBIT P-1H

Form of Certification of the RISK RETENTION CONSULTATION PARTY

[Date] 

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK36 Asset Manager Email: commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee BANK 2021-BNK36 Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line	Wells Fargo Bank, National Association 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK36 Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, RR Interest

Exhibit P-1H-1 

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.        The undersigned has been appointed to act as the Risk Retention Consultation Party.

[FOR ANY SUCCESSOR RISK RETENTION CONSULTATION PARTY][2. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.]

3.        Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[RISK RETENTION CONSULTATION PARTY]
By:
	Name:
	Title:

Dated: _______ 

cc: Banc of America Merrill Lynch Commercial Mortgage Inc.

Exhibit P-1H-2 

EXHIBIT P-2

FORM OF CERTIFICATION FOR NRSROs

[Date]

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

Attention: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is a Rating Agency hired by the Depositor to provide ratings on the Certificates; or

2. The undersigned is a nationally recognized statistical rating organization and either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Agreement to certain information (the “Information”) on such 17g-5 website pursuant to the provisions of the Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y), if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement attached hereto as Annex A which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date.

The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website.

Exhibit P-2-1 

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

Exhibit P-2-2 

ANNEX A

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with Banc of America Merrill Lynch Commercial Mortgage Inc. (together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”) pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, Wells Fargo Bank, National Association, as Certificate Administrator and as Custodian, and Wilmington Trust, National Association, as Trustee and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Wells Fargo Bank, National Association, as 17g-5 Information Provider under the Pooling and Servicing Agreement, including the [section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Pooling and Servicing Agreement)]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.

Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y) any of the terms, conditions or other facts with respect to the transactions contemplated by the Pooling and Servicing Agreement, including the status thereof; provided, however, that the term Confidential Information shall not include information which:

was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;

was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or

is independently developed by the NRSRO without reference to any Confidential Information.

Information to Be Held in Confidence.

You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).

You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.

You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:

Exhibit P-2-3 

disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;

solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5), post the Confidential Information to the NRSRO’s password protected website; and

use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.

Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, however, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.

Obligation to Return Evaluation Material. Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.

Violations of this Confidentiality Agreement.

The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.

You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.

Exhibit P-2-4 

You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.

Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.

Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.

Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.

Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, however, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.

Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:

Banc of America Merrill Lynch Commercial Mortgage Inc. 

One Bryant Park 

New York, New York 10036 

Attention: Leland F. Bunch, III

Exhibit P-2-5 

EXHIBIT P-3

ONLINE MARKET DATA PROVIDER CERTIFICATION

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

Attention: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

This Certification has been prepared for provision of information to the market data providers listed in Paragraph 1 below pursuant to the direction of the Depositor. If you represent a Market Data Provider not listed herein and would like access to the information, please contact CTSLink at 866-846-4526, or at ctslink.customerservice@wellsfargo.com.

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is an employee or agent of Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corp., Markit Group Limited, BlackRock Financial Management, Inc., CMBS.com, Inc., KBRA Analytics, LLC, Moody’s Analytics, RealInsight or Thomson Reuters Corporation, a market data provider that has been given access to the Statements to Certificateholders, CREFC^® Reports and supplemental notices on www.ctslink.com (“CTSLink”) by request of the Depositor.

2. The undersigned agrees that each time it accesses CTSLink, the undersigned is deemed to have recertified that the representation above remains true and correct.

3. The undersigned acknowledges and agrees that the provision to it of information and/or reports on CTSLink is for its own use only, and agrees that it will not disseminate or otherwise make such information available to any other person without the written consent of the Depositor.

4. The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the

Exhibit P-3-1 

Operating Advisor, the Asset Representations Reviewer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

Exhibit P-3-2 

EXHIBIT Q

CUSTODIAN CERTIFICATION/EXCEPTION REPORT

[DATE]

To the Persons Listed on the attached Schedule A

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

In accordance with Section 2.02 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for which a Liquidation Event has occurred) the Custodian has, subject to Section 2.02(c) of the Pooling and Servicing Agreement, reviewed the documents delivered to it pursuant to Section 2.01 of the Pooling and Servicing Agreement and has determined that (i) subject to the first proviso of the definition of “Mortgage File”, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File,” as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Seller have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (vii) and (viii) in the definition of “Mortgage Loan Schedule” is correct.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Pooling and Servicing Agreement.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Custodian
By:
	Name:
	Title:

Exhibit Q-1 

SCHEDULE A

[APPLICABLE MORTGAGE LOAN SELLER’S NOTICE ADDRESS]

Banc of America Merrill Lynch Commercial Mortgage Inc.
One Bryant Park
New York, New York 10036

Attention: Leland F. Bunch, III

Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
Email: CMBSSurveillance@krollbondratings.com

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

S&P Global Ratings
55 Water Street, 41st Floor
New York, New York 10041
Attention: Commercial Mortgage Surveillance Manager
Email: CMBS_Info_17g5@spglobal.com

Rialto Capital Advisors, LLC
200 S. Biscayne Blvd, Suite 3550 

Miami, Florida 33131 

Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) 

Facsimile number: (305) 229-6425 

E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop

Wells Fargo Bank, National Association
Commercial Mortgage Servicing

Exhibit Q-2 

Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Email: commercial.servicing@wellsfargo.com 

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee BANK 2021-BNK36

RREF IV Debt AIV, LP
c/o Rialto Capital Management LLC
600 Madison Avenue, 12th Floor
New York, New York 10022
Attention: Josh Cromer and Joseph Bachkosky 

Fax number: (212) 751-4646 

Exhibit Q-3 

EXHIBIT R-1

FORM OF POWER OF ATTORNEY – [GENERAL][NCB] MASTER SERVICER

RECORDING REQUESTED BY:

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com]

[National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop] 

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as trustee (the “Trustee”), pursuant to that Pooling and Servicing Agreement dated as of October 1, 2021 (the “Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer [(in such capacity, the “General Master Servicer”)], Rialto Capital Advisors, LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer [(in such capacity, the “NCB Master Servicer”)] and NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), the Trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer hereby constitutes and appoints the [General][NCB] Master Servicer, by and through the [General][NCB] Master Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Master Servicer and all properties (“Mortgaged Properties”) administered by the [General][NCB] Master Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the

Exhibit R-1-1 

Mortgage Loans and Mortgaged Properties; provided, however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1.          The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2.          The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

3.          The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4.          The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5.          The completion of loan assumption agreements.

6.          The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7.          The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the Mortgage Loan secured and evidenced thereby.

8.          The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9.          The full enforcement of and preservation of the Trustee’s interests in the Mortgage Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

Exhibit R-1-2 

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and

i. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10.        With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11.        The modification or amendment of escrow agreements established for repairs to the Mortgaged Property or reserves for replacement of personal property.

12.        The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

Exhibit R-1-3 

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties or REO Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers), documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [General][NCB] Master Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Master Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Master Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Master Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Master Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [General][NCB] Master Servicer receives any notice of suit, litigation or proceeding in the name

Exhibit R-1-4 

of Wilmington Trust, National Association, then the [General][NCB] Master Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [General][NCB] Master Servicer under the Agreement or to allow the [General][NCB] Master Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [General][NCB] Master Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK36 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee for BANK 2021-BNK36
By:
	Name:
	Title:

Prepared by:
	Name:

Exhibit R-1-5 

Witness:

____________________

Witness:

_____________________

STATE OF DELAWARE	)
	)	ss.:
COUNTY OF	)

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

Notary Public

[SEAL]

My commission expires:

Exhibit R-1-6 

EXHIBIT R-2

FORM OF POWER OF ATTORNEY – [GENERAL][NCB] SPECIAL SERVICER

RECORDING REQUESTED BY: 

[Rialto Capital Advisors, LLC
200 S. Biscayne Blvd, Suite 3550 

Miami, Florida 33131 

Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) 

Facsimile number: (305) 229-6425 

E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com]

[National Cooperative Bank, N.A. 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop]

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement dated as of October 1, 2021 (the “Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Rialto Capital Advisors, LLC, as general special servicer [(the “General Special Servicer”)], National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer [(in such capacity, the “NCB Special Servicer”)], Wells Fargo Bank, National Association, as certificate administrator, the Trustee and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, relating to the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36, hereby constitutes and appoints the [General][NCB] Special Servicer, by and through the [General][NCB] Special Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Special Servicer and all properties (“REO Properties”) administered by the [General][NCB] Special Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 13 below with respect to the Mortgage Loans and REO Properties; provided, however, that the

Exhibit R-2-1 

documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5. The completion of loan assumption agreements and transfers of interest in borrower entities.

6. The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7. The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the sale or repurchase of the Mortgage Loan secured and evidenced thereby.

8. The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9. The full enforcement of and preservation of the Trustee’s interests in any Mortgage or the related promissory note, and in the proceeds thereof, by way of, including but not limited to, taking title to any Mortgaged Property on behalf of the Trust, foreclosure, the taking of a deed-in-lieu of foreclosure, or the completion of judicial or non-judicial foreclosure and/or any related litigation, including without limitation, guaranty or receivership litigation, or litigation on the note, or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or

Exhibit R-2-2 

proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, the initiation or defense of any litigation related to the ownership of any REO Property, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions;

i. the creation of a wholly-owned entity of the Trust for purposes of holding foreclosed property; and

j. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

Exhibit R-2-3 

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property.

12. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee, solely in its capacity as Trustee, in litigation and to resolve such litigation, provided that such resolution shall not include any admission of fault or wrongdoing by the Trustee or, without the Trustee’s consent, subject the Trustee to any form of injunctive relief.

13. The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments;

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, management agreements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents; and

Exhibit R-2-4 

d. any and all documents, instruments and certifications as are reasonably necessary to complete or accomplish the [General][NCB] Special Servicer’s duties and responsibilities under the Agreement.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [General][NCB] Special Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Special Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Special Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Special Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Special Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [General][NCB] Special Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [General][NCB] Special Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [General][NCB] Special Servicer under the Agreement or to allow the [General][NCB] Special Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [General][NCB] Special Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

Exhibit R-2-5 

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK36, has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

Wilmington Trust, National Association, as Trustee for BANK 2021-BNK36
By:
	Name:
	Title:

Witness:

____________________

Witness:

_____________________

Exhibit R-2-6 

STATE OF DELAWARE	)
	)	ss.:
COUNTY OF	)

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

Notary signature

Exhibit R-2-7 

EXHIBIT S

INITIAL SERVICED COMPANION NOTEHOLDERS

Loan	Companion Holder
One North Wacker	Notes a-2, a-3, a-4, a-5 and a-6: Bank of America, National Association NOTICE ADDRESS: Bank of America, N.A. NC1-027-15-01 214 North Tryon Street Charlotte, North Carolina 28255 Attention: Steven L. Wasser Email: steve.l.wasser@bofa.com with a copy to: W. Todd Stillerman, Esq. Bank of America Legal Department NC1-028-24-02 150 North College Street Charlotte, NC 28255 Email: todd.stillerman@bofa.com and: cmbsnotices@bofa.com
Arizona Mills	NOTE A-3-1: Bank of America, National Association NOTICE ADDRESS: Bank of America, N.A. NC1-027-15-01 214 North Tryon Street Charlotte, North Carolina 28255 Attention: Steven L. Wasser Email: steve.l.wasser@bofa.com with a copy to:

Exhibit S-1 

W. Todd Stillerman, Esq. Bank of America Legal Department NC1-028-24-02 150 North College Street Charlotte, NC 28255 Email: todd.stillerman@bofa.com and: cmbsnotices@bofa.com NOTE A-4: Wells Fargo Bank, National Association NOTICE ADDRESS: Wells Fargo Bank, National Association 375 Park Avenue, 2nd Floor J0127-023 New York, New York 10152 Attention: A.J. Sfarra Email: anthony.sfarra@wellsfargo.com with a copy to: Troy Stoddard, Esq. Senior Counsel Wells Fargo Law Department D1053-300 301 South College St. Charlotte, North Carolina 28202 Email: troy.stoddard@wellsfargo.com with a copy to (if by email): mike.jewesson@alston.com and peter.mckee@alston.com

Suarez Puerto Rico Industrial Portfolio

Note B: Delaware Life Insurance Company NOTICE ADDRESS: Delaware Life Insurance Company

Exhibit S-2 

Reservoir Place 1601 Trapelo Road Waltham, Massachusetts 02451 Attention: James Alban with copies to: SteepRock Capital, LLC, 2 Sound View Drive, 2nd Floor Greenwich, Connecticut 06830 Attention: Matthew Mitchell Email: mitchell@steeprockcapital.com and Alston & Bird, LLP 101 South Tryon Street, Suite 1000 Charlotte, North Carolina 28280 Attention: Elizabeth Murphy, Esq. Facsimile No. (704) 444-1780)

Raymour & Flanigan Campus

Note a-1: Bank of America, National Association NOTICE ADDRESS: Bank of America, N.A. NC1-027-15-01 214 North Tryon Street Charlotte, North Carolina 28255 Attention: Steven L. Wasser Email: steve.l.wasser@bofa.com with a copy to: W. Todd Stillerman, Esq. Bank of America Legal Department NC1-028-24-02 150 North College Street Charlotte, NC 28255 Email: todd.stillerman@bofa.com and: cmbsnotices@bofa.com

Exhibit S-3 

EXHIBIT T

FORM OF NOTICE RELATING TO THE NON-SERVICED MORTGAGE LOANS

[FOR THE NEWPORT PAVILION MORTGAGE LOAN: 

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Alan Williams
Facsimile number: (877) 379-1625 

Email: keybank_notices@keybank.com

with copies to:

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com 

Reference: BANK 2021-BNK35]

[FOR EACH OF THE METRO CROSSING AND VELOCITY INDUSTRIAL PORTFOLIO MORTGAGE LOANS:

Wells Fargo Bank, National Association
Commercial Mortgage Servicing 

Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: WFCM 2021-C60 Asset Manager
Facsimile number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com

with a copy to:

K&L Gates LLP 

300 South Tryon Street, Suite 1000 

Charlotte, North Carolina 28202 

Attention: Stacy G. Ackermann 

Facsimile Number: (704) 353-3190 

Reference: WFCM 2021-C60]

[FOR THE MCDONALD’S GLOBAL HQ MORTGAGE LOAN:

Exhibit T-1 

Wells Fargo Bank, National Association 

Commercial Mortgage Servicing 

Three Wells Fargo 

401 South Tryon Street, 8th Floor 

MAC D1050-084 

Charlotte, North Carolina 28202 

Attention: BANK 2020-BNK30 Asset Manager 

Facsimile number: (704) 715-0036 

Email: commercial.servicing@wellsfargo.com

with a copy to:

K&L Gates LLP 

Hearst Tower 

214 North Tryon Street 

Charlotte, North Carolina 28202 

Attention: Stacy G. Ackermann 

Reference: BANK 2020-BNK30]

VIA [EMAIL]

Re: BANK 2021-BNK36,
Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

As you know, [_____], acts as the master servicer (the “Lead Servicer”) for the whole loan secured by the [mortgaged property][portfolio of mortgaged properties] identified as [NON-SERVICED WHOLE LOAN] (the “Subject Whole Loan”) under the pooling and servicing agreement relating to the [_____] securitization trust (the “PSA”). This is to inform you that one or more of the promissory notes related to the Subject Whole Loan (the “Subject Mortgage Loan”) has been transferred to BANK 2021-BNK36 pursuant to that certain Pooling and Servicing Agreement, dated as of October 1, 2021 (the “2021-BNK36 Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “2021-BNK36 General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “2021-BNK36 Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “2021-BNK36 Trustee”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, and that the 2021-BNK36 Trustee is the holder of the Subject Mortgage Loan.

The undersigned, as 2021-BNK36 Certificate Administrator, hereby directs you, in your capacity as the Lead Servicer of the Subject Whole Loan, to remit to the 2021-BNK36 General Master Servicer all amounts payable to, and forward, deliver or otherwise make available, as the case may be, to the 2021-BNK36 General Master Servicer all reports,

Exhibit T-2 

statements, documents, communications, and other information that are to be forwarded, delivered or otherwise made available to, the holder of the Subject Mortgage Loan under the related Intercreditor Agreement (as such term is defined in the 2021-BNK36 Pooling and Servicing Agreement) and the PSA.

The Subject Mortgage Loan [is][is not] a Significant Obligor (as such term is defined in the 2021-BNK36 Pooling and Servicing Agreement) under the 2021-BNK36 Pooling and Servicing Agreement

Thank you for your attention to this matter. 

Exhibit T-3 

Date: _________________________

Wells Fargo Bank, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36
By:
	Name: Title:

Exhibit T-4 

EXHIBIT U

FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN

To: Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
Email: CMBSSurveillance@krollbondratings.com

Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

S&P Global Ratings
55 Water Street, 41st Floor
New York, New York 10041
Attention: Commercial Mortgage Surveillance Manager
Email: CMBS_Info_17g5@spglobal.com

[INSERT ADDRESS OF APPLICABLE MORTGAGE LOAN SELLER]

From: [Wells Fargo Bank, National Association][National Cooperative Bank, N.A.], in its capacity as [General][NCB] Master Servicer under the Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer.

Date: _________, 20___

Exhibit U-1 

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Mortgage Loan (the “Mortgage Loan”) identified by loan number _____ [and loan number [_______]] on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and heretofore secured by the Mortgaged Properties identified on the Mortgage Loan Schedule by the following names:____________________
____________________

Reference is made to the Pooling and Servicing Agreement described above. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement.

As [General][NCB] Master Servicer under the Pooling and Servicing Agreement, we hereby:

(a) Notify you that the Mortgagor has consummated a defeasance of the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked below:

____ a full defeasance of the entire principal balance of the Mortgage Loan; or

____ a partial defeasance of a portion of the principal balance of the Mortgage Loan that represents and, an allocated loan amount of $____________ or _______% of the entire principal balance of the Mortgage Loan;

(b) Certify that each of the following is true, subject to those exceptions set forth with explanatory notes on Exhibit A hereto, which exceptions the [General][NCB] Master Servicer has determined, consistent with the Servicing Standards, will have no material adverse effect on the Mortgage Loan or the defeasance transaction:

(i)         The Mortgage Loan documents permit the defeasance, and the terms and conditions for defeasance specified therein were satisfied in all material respects in completing the defeasance.

(ii)        The defeasance was consummated on __________, 20__.

(iii)       The defeasance collateral consists of securities that (i) constitute “government securities” as defined in Section 2(a)(16) of the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are listed as “Qualified Investments for ‘AAA’ Financings” under Paragraphs 1, 2 or 3 of “Cash Flow Approach” in Standard & Poor’s Public Finance Criteria 2000, as amended to the date of the defeasance, (iii) if they include a principal obligation, the principal due at maturity cannot vary or change, and (iv) are not subject to prepayment, call or early redemption.

(iv)       The [General][NCB] Master Servicer received an opinion of counsel (from counsel approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard) that the defeasance will not result in an Adverse REMIC Event.

Exhibit U-2 

(v)        The [General][NCB] Master Servicer determined that the defeasance collateral will be owned by an entity (the “Defeasance Obligor”) that is a Single-Purpose Entity (as defined in Standard & Poor’s Structured Finance Ratings Real Estate Finance Criteria, as amended to the date of the defeasance (the “S&P Criteria”)) or is subject to restrictions in its organizational documents substantially similar to those contained in the organization documents of the original Borrower with respect to bankruptcy remoteness and single purpose as of the date of the defeasance, and after the defeasance owns no assets other than the defeasance collateral and real property securing Mortgage Loans included in the pool.

(vi)       The defeasance documents require the crediting of the defeasance collateral to an Eligible Account (as defined in the S&P Criteria) in the name of the Trustee on behalf of the Trust, which account is maintained as a securities account by a securities intermediary and has been pledged to the Trustee on behalf of the Trust.

(vii)      The agreements executed in connection with the defeasance (i) grant control of the pledged securities account to Trustee on behalf of the Trust, (ii) require the securities intermediary to make the scheduled payments on the Mortgage Loan from the proceeds of the defeasance collateral directly to the [General][NCB] Master Servicer’s collection account in the amounts and on the dates specified in the Mortgage Loan documents or, in a partial defeasance, the portion of such scheduled payments attributed to the allocated loan amount for the real property defeased, increased by any defeasance premium specified in the Mortgage Loan documents (the “Scheduled Payments”), (iii) permit reinvestment of proceeds of the defeasance collateral only in Permitted Investments (as defined in the Pooling and Servicing Agreement or as defined in the documents evidencing the defeasance), (iv) permit release of surplus defeasance collateral and earnings on reinvestment from the pledged securities account only after the Mortgage Loan has been paid in full, if any such release is permitted, (v) prohibit transfers by the Defeasance Obligor of the defeasance collateral and subordinate liens against the defeasance collateral, and (vi) provide for payment from sources other than the defeasance collateral or other assets of the Defeasance Obligor of all fees and expenses of the securities intermediary for administering the defeasance and the securities account and all fees and expenses of maintaining the existence of the Defeasance Obligor.

(viii)     The [General][NCB] Master Servicer received written confirmation from a firm of independent certified public accountants, who were approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard stating that (i) revenues from the defeasance collateral (without taking into account any earnings on reinvestment of such revenues) will be sufficient to timely pay each of the Scheduled Payments after the defeasance including the payment in full of the Mortgage Loan (or the allocated portion thereof in connection with a partial defeasance) on its Maturity Date (or, in the case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues received in any month from the defeasance collateral will be applied to make Scheduled Payments within four (4) months after the date of receipt, and (iii) interest income from the defeasance collateral to the Defeasance Obligor in any calendar or fiscal year will not

Exhibit U-3 

exceed such Defeasance Obligor’s interest expense for the Mortgage Loan (or the allocated portion thereof in a partial defeasance) for such year.

(ix)       The Mortgage Loan is not among the ten (10) largest loans in the pool as of the date of the Current Report (as defined below). The entire principal balance of the Mortgage Loan as of the date of defeasance was less than both $[______] and five percent of pool balance, which is less than [__]% of the aggregate Certificate Balance of the Certificates as of the date of the most recent Distribution Date Statement received by us (the “Current Report”).

(x)        The [General][NCB] Master Servicer has received opinions of counsel stating that the Trustee on behalf of the Trust possesses a valid, perfected first priority security interest in the defeasance collateral and that the documents executed in connection with the defeasance are enforceable in accordance with their respective terms.

(c)        Certify that Exhibit B hereto is a list of the material agreements, instruments, organizational documents for the Defeasance Obligor, and opinions of counsel and independent accountants executed and delivered in connection with the defeasance.

(d)        Certify that the individual under whose hand the [General][NCB] Master Servicer has caused this Notice and Certification to be executed did constitute a Servicing Officer as of the date of the defeasance described above.

(e)        Certify that it has provided the required notices to, and obtained the required consents of, the related Mortgage Loan Seller in accordance with Section 3.18(i) of the Pooling and Servicing Agreement.

(f)         Agree to provide copies of all items listed in Exhibit B to you upon request.

Exhibit U-4 

IN WITNESS WHEREOF, the [General][NCB] Master Servicer has caused this Notice and Certification to be executed as of the date captioned above.

[________________]
as [General][NCB] Master Servicer
By:
	Name: Title:

Exhibit U-5 

EXHIBIT V

FORM OF OPERATING ADVISOR ANNUAL REPORT¹

Report Date: This report will be delivered no later than [INSERT DATE], pursuant to the terms and conditions of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”).
Transaction: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36
Operating Advisor: Pentalpha Surveillance LLC
Special Servicer: [Rialto Capital Advisors, LLC][National Cooperative Bank, N.A.]
Directing Certificateholder: RREF IV Debt AIV, LP (or its affiliate)

I. Population of Mortgage Loans that Were Considered in Compiling this Report

1. The [General][NCB] Special Servicer has notified the Operating Advisor that [ ● ] Specially Serviced Loans were transferred to special servicing in the prior calendar year [INSERT YEAR].

a. [ ● ] of those Specially Serviced Loans are still being analyzed by the [General][NCB] Special Servicer as part of the development of an Asset Status Report.

b. Asset Status Reports were issued with respect to [ ● ] of such Specially Serviced Loans. This report is based only on the Specially Serviced Loans in respect of which an Asset Status Report has been issued. The Asset Status Reports may not yet be fully implemented.

II. Executive Summary

Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement, as well as the items listed below, the Operating Advisor (in accordance with the Operating Advisor’s analysis requirements outlined in the Pooling and Servicing Agreement) has undertaken a limited review of the Special Servicer’s reported actions on the loans identified in this report. Based solely on such limited review, and subject to the assumptions, limitations and qualifications set forth herein, the Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer [is/is not] operating in compliance with the Servicing Standard with respect to its performance of its duties under the Pooling and Servicing Agreement. [The Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer has failed to materially comply with the Servicing Standard as a result of the following material deviations.]

¹ This report is an indicative report and does not reflect the final form of annual report to be used in any particular year. The Operating Advisor will have the ability to modify or alter the organization and content of any particular report, subject to the compliance with the terms of the Pooling and Servicing Agreement, including, without limitation, provisions relating to Privileged Information.

Exhibit V-1 

● [LIST OF MATERIAL DEVIATION ITEMS]

In addition, the Operating Advisor notes the following: [PROVIDE SUMMARY OF ANY ADDITIONAL MATERIAL INFORMATION].

● [ADD RECOMMENDATION OF REPLACEMENT OF SPECIAL SERVICER, IF APPLICABLE]

In connection with the assessment set forth in this report, the Operating Advisor:

1. Reviewed the Asset Status Reports, the Special Servicer’s assessment of compliance report, attestation report by a third party regarding the Special Servicer’s compliance with its obligations and net present value calculations and Appraisal Reduction Amount calculations and [LIST OTHER REVIEWED INFORMATION] for the following [●] Specially Serviced Loans: [List related mortgage loans]

2. Consulted with the Special Servicer as provided under the Pooling and Servicing Agreement. The Operating Advisor’s analysis of the Asset Status Reports (including related net present value calculations and Appraisal Reduction Amount calculations) related to the Specially Serviced Loans should be considered a limited investigation and not be considered a full or limited audit. For instance, we did not review each page of the Special Servicer’s policy and procedure manuals (including amendments and appendices), re-engineer the quantitative aspects of their net present value calculation, visit any property, visit the Special Servicer, visit the Directing Certificateholder or interact with any borrower. In addition, our review of the net present value calculations and Appraisal Reduction Amount calculations is limited to the mathematical accuracy of the calculations and the corresponding application of the non-discretionary portions of the applicable formulas, and as such, does not take into account the reasonableness of the discretionary portions of such formulas.

III. Specific Items of Review

1. The Operating Advisor reviewed the following items in connection with the generation of this report: [LIST MATERIAL ITEMS].

2. During the prior year, the Operating Advisor consulted with the Special Servicer regarding its strategy plan for a limited number of issues related to the following Specially Serviced Loans: [LIST]. The Operating Advisor participated in discussions and made strategic observations and recommended alternative courses of action to the extent it deemed such observations and recommendations appropriate.

3. Appraisal Reduction Amount calculations and net present value calculations:

4. The Operating Advisor [received/did not receive] information necessary to recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portions of the applicable

Exhibit V-2 

formulas required to be utilized in connection with any Appraisal Reduction Amount or net present value calculations used in the Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan prior to the utilization by the Special Servicer.

a. The Operating Advisor [agrees/does not agree] with the [mathematical calculations] [and/or] [the application of the applicable non-discretionary portions of the formula] required to be utilized for such calculation.

b. After consultation with the Special Servicer to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations, such inaccuracy [has been/ has not been] resolved.

5. The following is a general discussion of certain concerns raised by the Operating Advisor discussed in this report: [LIST CONCERNS].

6. In addition to the other information presented herein, the Operating Advisor notes the following additional items, if any: [LIST ADDITIONAL ITEMS].

IV. Assumptions, Qualifications and Disclaimers Related to the Work Product Undertaken and Opinions Related to this Report

1. As provided in the Pooling and Servicing Agreement, the Operating Advisor (i) is not required to report on instances of non-compliance with, or deviations from, the Servicing Standard or the Special Servicer’s obligations under the Pooling and Servicing Agreement that the Operating Advisor determines, in its sole discretion exercised in good faith, to be immaterial and (ii) will not be required in the ordinary course to provide or obtain a legal opinion, legal review or legal conclusion as part of that assessment.

2. In rendering our assessment herein, we have assumed that all executed factual statements, instruments, and other documents that we have relied upon in rendering this assessment have been executed by persons with legal capacity to execute such documents.

3. Except as may have been reflected in any Asset Status Report, the Operating Advisor did not participate in, or have access to, the Special Servicer’s and Directing Certificateholder’s discussion(s) regarding any Specially Serviced Loan. The Operating Advisor does not have authority to speak with the Directing Certificateholder or borrower directly. As such, the Operating Advisor relied upon the information delivered to it by the Special Servicer as well as its interaction with the Special Servicer, if any, in gathering the relevant information to generate this report. The services that we perform are not designed and cannot be relied upon to detect fraud or illegal acts should any exist.

4. The Special Servicer has the legal authority and responsibility to service any Specially Serviced Loans pursuant to the Pooling and Servicing Agreement. The

Exhibit V-3 

Operating Advisor has no responsibility or authority to alter the standards set forth therein or direct the actions of the Special Servicer.

5. Confidentiality and other contractual limitations limit the Operating Advisor’s ability to outline the details or substance of any communications held between it and the Special Servicer regarding any Specially Serviced Loans and certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Operating Advisor is given access to by the Special Servicer.

6. There are many tasks that the Special Servicer undertakes on an ongoing basis related to Specially Serviced Loans. These include, but are not limited to, assumptions, ownership changes, collateral substitutions, capital reserve changes, etc. The Operating Advisor does not participate in any discussions regarding such actions. As such, Operating Advisor has not assessed the Special Servicer’s operational compliance with respect to those types of actions.

7. The Operating Advisor is not empowered to speak with any investors directly. If the investors have questions regarding this report, they should address such questions to the Certificate Administrator through the Certificate Administrator’s website.

8. This report does not constitute recommendations to buy, sell or hold any security, nor does the Operating Advisor take into account market prices of securities or financial markets generally when performing its limited review of the Special Servicer as described above. The Operating Advisor does not have a fiduciary relationship with any Certificateholder or any other party or individual. Nothing is intended to or should be construed as creating a fiduciary relationship between the Operating Advisor and any Certificateholder, party or individual.

Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement.

Exhibit V-4 

EXHIBIT W

Form of Notice from Operating Advisor Recommending

Replacement of THE [GENERAL][NCB] Special Servicer

Wilmington Trust, National Association
    as Trustee
1100 North Market Street

Wilmington, Delaware 19890

Attention: CMBS Trustee BANK 2021-BNK36
Telecopy number: (302) 630-4140

Wells Fargo Bank, National Association
    as Certificate Administrator 

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK36
Telecopy Number: (410) 715-2380

[Rialto Capital Advisors, LLC
    as General Special Servicer
200 S. Biscayne Blvd, Suite 3550 

Miami, Florida 33131 

Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) 

Facsimile number: (305) 229-6425 

E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com]

[National Cooperative Bank, N.A., 

as NCB Special Servicer 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36,
Recommendation of Replacement of [General][NCB] Special Servicer

Ladies and Gentlemen:

This letter is delivered pursuant to Section 7.01(d) of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc

Exhibit W-1 

of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”) regarding the replacement of the[General][NCB] Special Servicer. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

Based upon our review of the [General][NCB] Special Servicer’s operational practices conducted pursuant to and in accordance with Section 3.26 of the Pooling and Servicing Agreement, it is our assessment that [Rialto Capital Advisors, LLC][National Cooperative Bank, N.A.], in its current capacity as [General][NCB] Special Servicer, is not [performing its duties under the Pooling and Servicing Agreement][acting in accordance with the Servicing Standard]. The following factors support our assessment: [________].

Based upon such assessment, we further hereby recommend that [Rialto Capital Advisors, LLC][National Cooperative Bank, N.A.] be removed as [General][NCB] Special Servicer and that [________] be appointed its successor in such capacity.

Very truly yours,
[The Operating Advisor]
By:
	Name: Title:

Dated:

Exhibit W-2 

EXHIBIT X

Form of CONFIDENTIALITY Agreement

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com]

[Rialto Capital Advisors, LLC
as General Special Servicer
200 S. Biscayne Blvd, Suite 3550 

Miami, Florida 33131 

Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) 

Facsimile number: (305) 229-6425 

E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com] 

[National Cooperative Bank, N.A., 

as NCB Special Servicer 

2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202 

Attention: Kathleen Luzik, Chief Operating Officer 

Facsimile number: (703) 647-3473 

Email: kluzik@ncb.coop]

Re: Access to Certain Information Regarding BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

Reference is hereby made to that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), among the Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer. Defined terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.

Exhibit X-1 

[_____] [__], 20[__]
Page 2

[Wells Fargo Bank, National Association (“Wells Fargo”)/Rialto Capital Advisors, LLC (“RCA”)/National Cooperative Bank, N.A. (“NCB”)] understands that [____] (the “Company”) is requesting certain confidential or non-public information relating to the Mortgage Loans to which the Company has continuing rights as a Certificateholder. The Company is requesting such information for the purpose of analyzing asset performance and evaluating any continuing rights the Company may have under the Trust (the “Permitted Purpose”). The Company agrees that the Permitted Purpose shall not include the use or disclosure of the Confidential Information (as defined below) in any manner that violates any applicable law, the Pooling and Servicing Agreement or the related mortgage loan documents.

[Wells Fargo/ RCA/ NCB] will provide the Company with certain confidential, non-public servicing information (the “Confidential Information”) pertaining to the Mortgage Loans and the related Mortgaged Properties and borrowers. The Company acknowledges that the Confidential Information (a) includes or may be based upon information provided to [Wells Fargo/ RCA/ NCB] by third parties, (b) may not have been verified by [Wells Fargo/ RCA/ NCB], and (c) may be incomplete or contain inaccuracies. The Company agrees that [Wells Fargo/ RCA/ NCB], the [“General Master Servicer”/“General Special Servicer”/ “NCB Master Servicer”/ “NCB Special Servicer”] (as defined in the Pooling and Servicing Agreement) and its respective Representatives (as defined below) shall not have any liability to the Company or its Representatives resulting from (x) any inaccuracies or omissions in the Confidential Information, (y) any use of the Confidential Information, or (z) [Wells Fargo/ RCA/ NCB]’s failure or inability to provide the Confidential Information to the Company for any reason. Notwithstanding the foregoing, the following will not constitute “Confidential Information” for purposes of this letter agreement: (a) information that was already in Company’s possession prior to its receipt from [Wells Fargo/ RCA/ NCB]; (b) information that is obtained by Company from a third person who, insofar as is known to Company, is not prohibited from transmitting the information to Company by a contractual, legal or fiduciary obligation to [Wells Fargo/ RCA/ NCB]; (c) information that is or becomes publicly available through no fault of Company; and (d) information that is independently developed by Company. The term “Representatives” with respect to any entity shall mean the officers, directors, general partners, employees, agents, affiliates, auditors and legal counsel (which may be internal counsel) of that entity.

The Company may have access to the Confidential Information through (at [Wells Fargo/ RCA/ NCB]’s election): (i) responses to reasonable written inquiries received from the Company, (ii) conference calls conducted on a reasonably scheduled basis with [Wells Fargo/ RCA/ NCB]’s surveillance group, or (iii) direct on-line access (read-only capacity) to the information available on the applicable [____] system or any successor or replacement system (“System”). [Wells Fargo/ RCA/ NCB] may cease or defer providing the Company with Confidential Information in the event that (a) the Company or its Representatives violate any provision hereof, or (b) [Wells Fargo/ RCA/ NCB] determines (in its sole discretion) that such termination is necessary for any reason, including its determination that such action is required pursuant to the terms of the Pooling and Servicing Agreement, the related Mortgage Loan documents, or any applicable law. [Wells Fargo/ RCA/ NCB] shall cease to provide the Company with Confidential Information if [Wells Fargo/ RCA/ NCB] has actual knowledge that the Company or its Representatives are affiliates of any borrower under the Mortgage Loan documents and [Wells Fargo/ RCA/ NCB] determines that the provision, notice or access to such Confidential Information would violate the accepted servicing practices or servicing standards as defined in

Exhibit X-2 

[_____] [__], 20[__]
Page 3

the Pooling and Servicing Agreement. The Company’s obligations and the restrictions applicable to the protection of the Confidential Information hereunder shall survive the termination of the Company’s access to the Confidential Information. [Wells Fargo/ RCA/ NCB]’s remedies hereunder, at law or at equity, are cumulative and may be combined.

The Company agrees that it will not, and it shall not permit its Representatives, to disclose the Confidential Information in any manner whatsoever to any other person or entity, other than its Representatives (but only to the extent necessary to accomplish the Permitted Purpose) who have a need to know the information, or as otherwise required by applicable law, court order or any governmental agency or regulator. The Company acknowledges (i) its obligations under the U.S. federal securities laws, and (ii) that any disclosure of the Confidential Information by it or its Representatives for any purpose other than a Permitted Purpose, in addition to being a breach of this letter agreement, may constitute a violation of federal and state securities laws. The Company will take reasonable measures to ensure that each Representative is advised of this letter agreement and agrees to keep the Confidential Information confidential. The Company shall be liable for any breach of this letter agreement by its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the Company or any of its Representatives. Notwithstanding the foregoing, the Company may subsequently provide all or any part of such Confidential Information to any other person or entity that holds or is contemplating the purchase of any Certificate or interest therein, but only if such person or entity confirms such ownership interest or prospective ownership interest and provided that, prior to the delivery of such Confidential Information, such persons shall have executed and delivered to the Company an agreement that is substantially similar in form and substance to this agreement.

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York without the application of conflict of laws principles. Anything herein to the contrary notwithstanding, [Wells Fargo/ RCA/ NCB] intends at all times to comply with the terms and provisions of the Pooling and Servicing Agreement and nothing in this letter agreement should be construed to limit or qualify any of [Wells Fargo/ RCA/ NCB]’s rights or obligations under the Pooling and Servicing Agreement. This letter agreement may be executed in counterparts and by facsimile/Portable Document Format (PDF); each such counterpart shall be deemed to be an original instrument, and all such counterparts together shall constitute one agreement.

This agreement shall terminate with respect to the information received by the Company one year after the Company receives such information or ceases to be a Certificateholder. Company agrees that this letter agreement supersedes and replaces and survives any click-through agreement regarding confidentiality of Confidential Information agreed to in connection with accessing the System whether agreed to in accessing the System before or after signing this letter agreement.

Exhibit X-3 

Please have an authorized signatory countersign in the space provided below to indicate the Company’s confirmation of, and agreement to, the matters set forth herein.

Very truly yours,
[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name: Title:]

[Rialto Capital Advisors, LLC
By:
	Name: Title:]

[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name: Title:]

CONFIRMED AND AGREED TO:

[COMPANY NAME]

By:
	Name: Title:

Exhibit X-4 

EXHIBIT Y

FORM CERTIFICATION TO BE PROVIDED WITH FORM 10-K

CERTIFICATION

I, [identify the certifying individual], certify that:

1. I have reviewed this report on Form 10-K, and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of BANK 2021-BNK36 (the “Exchange Act periodic reports”);

2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;

4. Based on my knowledge and the servicer compliance statements required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreements in all material respects; and

5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K.

In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties:

[(A) Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer;

(B) [List other applicable reporting servicers]]

Exhibit Y-1 

Date: _________________________

President
Banc of America Merrill Lynch Commercial Mortgage Inc.
(Senior officer in charge of the securitization of the depositor)

Exhibit Y-2 

EXHIBIT Y-1

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY CERTIFICATE ADMINISTRATOR

BANK 2021-BNK36 (the “Trust”)

The undersigned, __________, a __________ of WELLS FARGO BANK, NATIONAL ASSOCIATION, on behalf of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator (in such capacity, the “Certificate Administrator”), under that certain Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, the Certificate Administrator, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [_______], the Depositor, each Other Depositor and each Other Certificate Administrator with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. I have reviewed the annual report on Form 10-K for the fiscal year 20[__] (the “Annual Report”), and all reports on Form 10-D and Form 8-K to be filed in respect of periods included in the year covered by the Annual Report (collectively with the Annual Report, the “Reports”);

2. To my knowledge, the Reports taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the Annual Report;

3. To my knowledge, the distribution information required to be provided by the Certificate Administrator under the Pooling and Servicing Agreement for inclusion in the Reports is included in the Reports;

4. I am responsible for reviewing the activities performed by the Certificate Administrator under the Pooling and Servicing Agreement and based on my knowledge and the compliance reviews conducted in preparing the Certificate Administrator compliance statements required for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB, and except as disclosed on any Reports, the Certificate Administrator has fulfilled its obligations in all material respects under the Pooling and Servicing Agreement; and

Exhibit Y-1-1 

5. The report on assessment of compliance with servicing criteria applicable to the Certificate Administrator for asset-backed securities with respect to the Certificate Administrator or any Servicing Function Participant retained by the Certificate Administrator and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Depositor for disclosure in such annual report on Form 10-K.

In giving the certifications above, the Certificate Administrator has reasonably relied on information provided to it by the following unaffiliated persons: the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Depositor, the Trustee and/or the Custodian.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]

Exhibit Y-1-2 

Exhibit Y-2

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY MASTER SERVICER

BANK 2021-BNK36 (the “Trust”)

I, [identify the certifying individual], a [_______________] of [WELLS FARGO BANK, NATIONAL ASSOCIATION][NATIONAL COOPERATIVE BANK, N.A.], as [General][NCB] Master Servicer under that certain Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Master Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), and assuming the accuracy of the statements required to be made by each Special Servicer in the special servicer backup certificate delivered by each Special Servicer relating to the Relevant Period, all servicing information and all reports (the “Servicer Reports”) required to be submitted by the [General][NCB] Master Servicer to the Certificate Administrator pursuant to Sections 3.12(b) and (d) of the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Master Servicer to the Certificate Administrator for inclusion in these reports;

2. Based on my knowledge, and assuming the accuracy of the statements required to be made by each Special Servicer in the special servicer backup certificate delivered by each Special Servicer relating to the Relevant Period, the master servicing information contained in the Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Master Servicer under the Pooling and

Exhibit Y-2-1 

Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB with respect to the [General][NCB] Master Servicer, and except as disclosed in the compliance certificate delivered by the [General][NCB] Master Servicer under Section 11.09 of the Pooling and Servicing Agreement, the [General][NCB] Master Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Master Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Master Servicer’s assessment of compliance with the Relevant Servicing Criteria in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Master Servicer for asset-backed securities with respect to the [General][NCB] Master Servicer or any Servicing Function Participant retained by the [General][NCB] Master Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

[In giving the certification above, I have reasonably relied on and make no certification as to information provided to me by the following unaffiliated parties: [name(s) of third parties (including the [General][NCB] Special Servicer, but other than a Sub-Servicer, Additional Servicer or any other third party retained by the [General][NCB] Master Servicer that is not a Sub-Servicer appointed pursuant to Section 3.20 of the Pooling and Servicing Agreement) and, notwithstanding the foregoing certifications, neither I nor the [General][NCB] Master Servicer makes any certification under the foregoing clauses (2) and (3) with respect to the information in the Servicer Reports that is in turn dependent upon information provided by the [General][NCB] Special Servicer under the Pooling and Servicing Agreement. Solely with respect to the completeness of information and reports, I do not certify anything other than that all fields of information called for in written reports prepared by the [General][NCB] Master Servicer have been properly completed and that any fields that have been left blank on their face have been done so in accordance with the CREFC procedures for such report.]

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Exhibit Y-2-2 

[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]

[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name:
	Title:]

Exhibit Y-2-3 

Exhibit Y-3

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY SPECIAL SERVICER

BANK 2021-BNK36 (the “Trust”)

I, [identify the certifying individual], a [_______________] of [Rialto Capital Advisors, LLC][national cooperative bank, n.a.], as [General][NCB] Special Servicer under that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Special Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all servicing information and all required reports (the “Special Servicer Reports”) required to be submitted by the [General][NCB] Special Servicer pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Special Servicer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the special servicing information contained in the Special Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Special Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion in the Form 10-K under Item 1123 of Regulation AB with respect to the [General][NCB] Special Servicer, and

Exhibit Y-3-1 

except as disclosed in the compliance certificate delivered by the [General][NCB] Special Servicer under Section 11.09 of the Pooling and Servicing Agreement, the [General][NCB] Special Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Special Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Special Servicer assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Special Servicer for asset-backed securities with respect to the [General][NCB] Special Servicer or any Servicing Function Participant retained by the [General][NCB] Special Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

[General][NCB] Special Servicer
By:
	Name:
	Title:

Exhibit Y-3-2 

Exhibit Y-4

Form of Certification to be Provided
to Depositor by Trustee

BANK 2021-BNK36 (The “Trust”)

The undersigned, __________, a __________ of WILMINGTON TRUST, NATIONAL ASSOCIATION, on behalf of WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee (the “Trustee”), under that certain Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), the Trustee, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [______], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Trustee for asset-backed securities with respect to the Trustee or any Servicing Function Participant retained by the Trustee and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

WILMINGTON TRUST, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit Y-4-1 

Exhibit Y-5

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY OPERATING ADVISOR

BANK 2021-BNK36 (the “Trust”)

I, [identify the certifying individual], a [_______________] of PENTALPHA SURVEILLANCE LLC (the “Operating Advisor”) as Operating Advisor under that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”) and Pentalpha Surveillance LLC, as Operating Advisor and as asset representations reviewer, on behalf of the Operating Advisor, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Operating Advisor, collectively, the “Operating Advisor Periodic Information”) have been submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the Operating Advisor Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

Exhibit Y-5-1 

3. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the Operating Advisor with respect to the Trust’s fiscal year ________ have been provided all information relating to the Operating Advisor’s assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

4. The report on assessment of compliance with servicing criteria applicable to the Operating Advisor for asset-backed securities with respect to the Operating Advisor or any Servicing Function Participant retained by the Operating Advisor and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Pentalpha Surveillance LLC
By:
	Name:
	Title:

Exhibit Y-5-2 

Exhibit Y-6

Form of Certification to be Provided
to Depositor by CUSTODIAN

BANK 2021-BNK36 (The “Trust”)

The undersigned, __________, a __________ of WELLS FARGO BANK, NATIONAL ASSOCIATION, on behalf of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Custodian (the “Custodian”), under that certain Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, certifies to [______], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Custodian for asset-backed securities with respect to the Custodian or any Servicing Function Participant retained by the Custodian and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Exhibit Y-6-1 

Date:

WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit Y-6-2 

Exhibit Y-7

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY ASSET REPRESENTATIONS REVIEWER

BANK 2021-BNK36 (the “Trust”)

I, [identify the certifying individual], a [_______________] of PENTALPHA SURVEILLANCE LLC (the “Asset Representations Reviewer”) as Asset Representations Reviewer under that certain Pooling and Servicing Agreement dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and NCB special servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”) and Pentalpha Surveillance LLC, as operating advisor and as Asset Representations Reviewer, on behalf of the Asset Representations Reviewer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Asset Representations Reviewer, collectively, the “Asset Representations Reviewer Periodic Information”) have been submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports; and

2. Based on my knowledge, the Asset Representations Reviewer Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports.

Exhibit Y-7-1 

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Pentalpha Surveillance LLC
By:
	Name:
	Title:

Exhibit Y-7-2 

EXHIBIT Z

Servicing Criteria
to be Addressed in Assessment of Compliance

The assessment of compliance to be delivered by the referenced party shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria” applicable to such party, as such criteria may be updated or limited by the Commission or its staff (including, without limitation, not requiring the delivery of certain of the items set forth on this Exhibit based on interpretive guidance provided by the Commission or its staff relating to Item 1122 of Regulation AB). In addition, this Exhibit Z shall not be construed to impose on any Person any servicing duty that is not otherwise imposed on such Person under the main body of the Pooling and Servicing Agreement of which this Exhibit Z forms a part or to require an assessment of a criterion that is not encompassed by the servicing duties of the applicable party that are set forth in the main body of such Pooling and Servicing Agreement. For the avoidance of doubt, for purposes of this Exhibit Z, other than with respect to Item 1122(d)(2)(iii), references to Servicer below shall include any Sub-Servicer engaged by the Master Servicer or the Special Servicer.

	Applicable Servicing Criteria	applicable party(ies)
Reference	Criteria
	General Servicing Considerations
1122(d)(1)(i)	Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(ii)	If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(iii)	Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.	N/A
1122(d)(1)(iv)	A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer Custodian (as applicable)
1122(d)(1)(v)	Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
	Cash Collection and Administration
1122(d)(2)(i)	Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer

Exhibit Z-1

	Applicable Servicing Criteria	applicable party(ies)
Reference	Criteria
1122(d)(2)(ii)	Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.	Certificate Administrator
1122(d)(2)(iii)	Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.	Trustee (as applicable)1 General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(iv)	The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(v)	Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Exchange Act.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(vi)	Unissued checks are safeguarded so as to prevent unauthorized access.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(vii)	Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations (A) are mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
	Investor Remittances and Reporting
1122(d)(3)(i)	Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer.	Certificate Administrator Operating Advisor (with respect to A and B)
1122(d)(3)(ii)	Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.	Certificate Administrator
1122(d)(3)(iii)	Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.	Certificate Administrator
1122(d)(3)(iv)	Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.	Certificate Administrator
	Pool Asset Administration
1122(d)(4)(i)	Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.	Custodian General Master Servicer

¹ Only to the extent that the Trustee was required to make an Advance pursuant to the Pooling and Servicing Agreement during the applicable calendar year.

Exhibit Z-2

		NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(ii)	Mortgage loan and related documents are safeguarded as required by the transaction agreements	Custodian
1122(d)(4)(iii)	Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(iv)	Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.	General Master Servicer NCB Master Servicer
1122(d)(4)(v)	The Reporting Servicer’s records regarding the mortgage loans agree with the Reporting Servicer’s records with respect to an obligor’s unpaid principal balance.	General Master Servicer NCB Master Servicer
1122(d)(4)(vi)	Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(vii)	Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.	General Special Servicer NCB Special Servicer Operating Advisor
1122(d)(4)(viii)	Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(4)(ix)	Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.	General Master Servicer NCB Master Servicer
1122(d)(4)(x)	Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xi)	Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xii)	Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.	General Master Servicer NCB Master Servicer
1122(d)(4)(xiii)	Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xiv)	Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.	General Master Servicer NCB Master Servicer
1122(d)(4)(xv)	Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.	N/A

Exhibit Z-2

At all times that the Certificate Administrator and the Trustee are the same entity, the Trustee and Certificate Administrator may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

At all times that the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer are the same entity, the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer, as applicable, may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit Z-3

EXHIBIT AA

ADDITIONAL FORM 10-D DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.04 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator (or the applicable Master Servicer to the extent specified in Section 11.04 of the Pooling and Servicing Agreement) any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-D that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK36 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-D	Party Responsible
Item 1A: Distribution and Pool Performance Information: ●     Item 1111(h) of Regulation AB ●     Item 1125 of Regulation AB ●     Item 1121(a)(13) of Regulation AB	●     Each Master Servicer ●     Certificate Administrator
Item 1B: Distribution and Pool Performance Information: ●     Item 1121(a)(14) of Regulation AB ●     Item 1121(d) of Regulation AB ●     Item 1121(e) of Regulation AB	●     Certificate Administrator ●     Depositor ●     Asset Representations Reviewer

Exhibit AA-1

Item 2: Legal Proceedings: ●     Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)	●     Each Master Servicer (as to itself) ●     Each Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Depositor (as to itself) ●     Operating Advisor (as to itself) ●     Any other Reporting Servicer (as to itself) ●     Trustee/Certificate Administrator/each Master Servicer/Depositor/each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●     Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB
Item 3: Sale of Securities and Use of Proceeds	●     Depositor
Item 4: Defaults Upon Senior Securities	●     Certificate Administrator
Item 5: Submission of Matters to a Vote of Security Holders	●     Certificate Administrator
Item 6: Significant Obligors of Pool Assets: ●     Item 1112(b) of Regulation AB provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or property (if any) identified as a “significant	●     Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Each Special Servicer (as to Specially Serviced Loans and REO Properties)

Exhibit AA-2

obligor” in the Prospectus; (b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable in the Form 10-D that relates to the Distribution Date that immediately follows the Collection Period in which the information was received or prepared by the “Party Responsible” as described in clause (b) above.
Item 7: Change in Sponsor Interest in the Securities: ●     Item 1124 of Regulation AB.	●     Each Mortgage Loan Seller (as to itself in its capacity as a sponsor as defined in Regulation AB)
Item 8: Significant Enhancement Provider Information: ●     Item 1114(b)(2) and Item 1115(b) of Regulation AB	●     Depositor
Item 9: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit CC, (b) such information is required to be reported as “Additional Form 8-K Disclosure” during the	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit CC. ●     Certificate Administrator (including the

Exhibit AA-3

period to which the Form 10-D relates, and (c) such information was not previously reported as “Additional Form 8-K Disclosure”.	balances of the Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account as of the related Distribution Date and the preceding Distribution Date) ●     Each Master Servicer (with respect to the balance of its Collection Account as of the related Distribution Date and the preceding Distribution Date) ●     Each Special Servicer (with respect to the balance of each applicable REO Account as of the related Distribution Date and the preceding Distribution Date) ●     Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders)
Item 10: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●     Depositor
Item 10: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Certificate Administrator ●     Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party.
Item 10: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on

Exhibit AA-4

	behalf of the Trust.
Item 10: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K), but only if the party that is the “Party Responsible” with respect to Item 5 above elects to publish a report containing the information required by such Item 5 above and also elects to report the information on Form 10-D by means of filing the published report and answering Item 5 by referencing the published report.	●     The applicable party that is the “Party Responsible” with respect to Item 5 as set forth above.
Item 10: Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●     Depositor
Item 10: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 10: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 10: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 10: Exhibits (By Operation of Item 8 Above), but only to the extent of any document that meets all the following conditions: (a) such document constitutes “Additional Form 8-K Disclosure” pursuant to Item 9.01(d) of Exhibit CC, (b) such document is required to be reported as “Additional Form 8-K Disclosure” during the	●     Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9(d) of Exhibit CC (it being acknowledged that none of the Master Servicers or the Special Servicers constitutes a “Party Responsible” under Exhibit CC with respect to any exhibits to a

Exhibit AA-5

period to which the Form 10-D relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”. Form 10-K); provided that, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party for this Item 10.

Exhibit AA-6

EXHIBIT BB

ADDITIONAL FORM 10-K DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.05 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK36 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-K	Party Responsible
Item 1B: Unresolved Staff Comments	●     Depositor

Exhibit BB-1

Item 9B: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit CC, (b) such information is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such information was not previously reported as “Additional Form 8-K Disclosure” or as “Additional Form 10-D Disclosure”	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit CC.
Item 15: Exhibits, Financial Statement Schedules (SEE BELOW)	SEE BELOW
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 1 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was required to have been set forth in the Prospectus, (ii) such information was not so set forth and (iii) the applicable Master Servicer has not previously reported such information as “Additional Form 10-D Information”.	●     The applicable Mortgage Loan Seller.
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 2 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was set forth in the Prospectus and (ii) the applicable Master Servicer has not previously reported such information or updated versions thereof as “Additional Form 10-D Information”.	●     Depositor

Exhibit BB-2

Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 3 of 3 Parts: ●     Item 1112(b) of Regulation AB; provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or property (if any) identified as a “significant obligor” in the Prospectus; (b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor described under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable only to the extent that is has not previously been reported as “Additional Form 10-D Information”.

●     Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Each Special Servicer (as to Specially Serviced Loans and REO Properties)

Instruction J(2)(c) (Significant Enhancement Provider Information): ●     Items 1114(b)(2) and 1115(b) of Regulation AB

●     Depositor

Exhibit BB-3

Instruction J(2)(d) (Legal Proceedings): ●     Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)

●     Each Master Servicer (as to itself) ●     Each Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Depositor (as to itself) ●     Trustee/Certificate Administrator/each Master Servicer/Depositor/each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●     Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 1 of 2 Parts: 1119(a) of Regulation AB, but only the existence and (if existent) how there is (that is, the nature of) any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, (3) the Trust and (4) any other party listed under this item as a “Party Responsible”; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(b) of Regulation AB,

●     Each Master Servicer (as to itself) (only as to affiliations under Item 1119(a) with the Trustee, Certificate Administrator, each Special Servicer or a sub-servicer retained by it meeting any of the descriptions in Item 1108(a)(3)). ●     Each Special Servicer ●     Certificate Administrator ●     Trustee ●     Each party (other than a Mortgage Loan Seller), if any, that is identified in the Prospectus as an “originator” of one or more Mortgage Loans, if the Prospectus specifically states that the applicable Mortgage Loans were 10% or more of the assets of the Trust at the date of the Prospectus (provided that such a party shall no longer constitute a “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer

Exhibit BB-4

but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK36 transaction) between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”.   and ●     1119(c) of Regulation AB,   but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK36 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus constitutes an originator of 10% or more of the assets of the Trust). ●     Each party (other than a Mortgage Loan Seller), if any, that is specifically identified as an “originator of 10% or more of the assets of the Trust for purposes of Regulation AB and the upcoming Form 10-K” in a written notice delivered to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than February 15 of the year in which the Form 10-K is due. ●     Each party (if any) that is identified in the Prospectus as an “other material party to the securities or transaction” (or substantially similar phrasing); provided, however, that such a party shall no longer constitute a “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer constitutes a material party for purposes of Regulation AB. ●     Each party (if any) that that is specifically identified as an “other material party to the securities or transaction for purposes of Regulation AB and the upcoming Form 10-K” (or substantially similar phrasing) in a written notice delivered by the Depositor to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than February 15 of the year in which the Form 10-K is due.  

Exhibit BB-5

or if it was previously reported as “Additional Form 10-K Disclosure”.

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 2 of 2 Parts: 1119(a) of Regulation AB, But only the existence and (if existent) how there is any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(b) of Regulation AB, but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK36 transaction) between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was

●     Depositor ●     Each Mortgage Loan Seller

Exhibit BB-6

previously reported as “Additional Form 10-K Disclosure”. and ●     1119(c) of Regulation AB, but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK36 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”.
Item 15: Exhibits (no. 2): Plan of acquisition, reorganization, arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)	●     Depositor
Item 15: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●     Depositor

Exhibit BB-7

Item 15: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Trustee ●     Certificate Administrator ●     Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party.
Item 15: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust.
Item 15: Exhibits (no. 11): Statement regarding computation of per share earnings (Exhibit No. 11 of Item 601 of Regulation S-K)	●     Not Applicable
Item 15: Exhibits (no. 12): Statement regarding computation of ratios (Exhibit No. 12 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 13): Annual report to security holders, Form 10-Q and Form 10-QSB, or quarterly report to security holders (Exhibit No. 13 of Item 601 of Regulation S-K)	●     Not Applicable
Item 15: Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K)	●     Not Applicable.

Exhibit BB-8

Item 15: Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●     Not Applicable
Item 15: Exhibits (no. 18): Letter re change in accounting principles (Exhibit No. 18 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 21): Subsidiaries of registrant (Exhibit No. 18 of Item 601 of Regulation S-K)	●     Depositor.
Item 15: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (no. 23) – Part 1 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where (a) the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement and (b) the consent is not the consent of a registered public accounting firm in connection with an attestation delivered pursuant to Section 11.13 of this Pooling and Servicing Agreement.	●     Depositor
Item 15: Exhibits (no. 23) – Part 2 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), but the required shall consist of a consent of the registered public accounting firm for purposes of any attestation report rendered with respect to the particular “Party Responsible” pursuant to Section 11.13 of this Pooling and Servicing Agreement.	●     Each Master Servicer ●     Each Special Servicer ●     Depositor ●     Any other Servicing Function Participant provided, however, in each case, that such party shall have the duty to report or deliver, or cause the reporting or delivery, of such consent only to the extent that such party is required to deliver or cause the delivery of the related attestation report.

Exhibit BB-9

Item 15: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 15: Exhibits (no. 31(i)) Rule 13a-14(a)/15d-14(a) Certifications (Exhibit No. 31(i) of Item 601 of Regulation S-K).	●     Not Applicable
Item 15: Exhibits (no. 31(ii)) Rule 13a-14(d)/15d-14(d) Certifications (Exhibit No. 31(ii) of Item 601 of Regulation S-K).	●     Delivery of this exhibit (Sarbanes-Oxley certification and backup certifications) is governed by Section 11.08 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 32) Section 1350 Certifications (Exhibit No. 32 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (no. 33) Report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 33 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual compliance assessment) is governed by Section 11.10 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 34) Attestation report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 34 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual accountants’ attestation report) is governed by Section 11.11 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 35) Servicer compliance statement (Exhibit No. 35 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual servicer compliance statements) is governed by Section 11.09 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibit (no. 36) Certification For Shelf Offerings of Asset-Backed Securities (Exhibit No. 36 of Item 601 of Regulation S-K).	●     Depositor

Exhibit BB-10

Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (By Operation of Item 9B Above), but only to the extent of any document that meets all the following conditions: (a) such document constitutes “Additional Form 8-K Disclosure” pursuant to Item 9.01(d) of Exhibit CC, (b) such document is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”.	●     Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9(d) of Exhibit CC (it being acknowledged that none of the Master Servicers or the Special Servicers constitutes a “Party Responsible” under Exhibit CC with respect to any exhibits to a Form 10-K).
Item 15: Exhibit (no. 101) Interactive Data File (Exhibit No. 101 of Item 601 of Regulation S-K).	Not Applicable
Item 15: Exhibit (no. 102) Asset Data File (Exhibit No. 102 of Item 601 of Regulation S-K).	[Certificate Administrator] [Depositor]
Item 15: Exhibit (no. 103) Asset Related Document (Exhibit No, 103 of Item 601 of Regulation S-K).	[Certificate Administrator] [Depositor]

Exhibit BB-11

EXHIBIT CC

FORM 8-K DISCLOSURE INFORMATION

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.07 of the Pooling and Servicing Agreement to report to the Depositor and the Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 8-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK36 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 8-K

Party Responsible

Item 1.01: Entry into a Material Definitive Agreement

●     Depositor, except as described in the next bullet (it being acknowledged that Item 601 of Regulation S-K requires filing of material contracts to which the registrant or a subsidiary thereof is a party). ●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer (it being acknowledged that Instruction 3 to Item 1.01 of Form 8-K requires disclosure regarding the entry into or an amendment of a definitive agreement that is material to the asset-backed securities transaction,

Exhibit CC-1

	even if the registrant is not a party to such agreement), in each case to the extent of any amendment or definitive agreement that satisfies all the following conditions: (a) such amendment or definitive agreement relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such amendment or definitive agreement is an amendment or definitive agreement to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02: Termination of a Material Definitive Agreement– Part 1 of 2 Parts	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02: Termination of a Material Definitive Agreement– Part 2 of 2 Parts	●     Depositor, to the extent of any material agreement not covered in the prior item
Item 1.03: Bankruptcy or Receivership	●     Depositor

Exhibit CC-2

Item 2.04: Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement	●     Depositor ●     Certificate Administrator
Item 3.03: Material Modification to Rights of Security Holders	●     Certificate Administrator
Item 5.03: Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year	●     Depositor
Item 6.01: ABS Informational and Computational Material	●     Depositor
Item 6.02 (Part 1 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a change in trustee	●     Trustee ●     Depositor
Item 6.02 (Part 2 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a change in Master Servicer or Special Servicer	●     Certificate Administrator ●     Each Master Servicer or Special Servicer, as the case may be (in each case, as to itself)
Item 6.02 (Part 3 of 3 Parts): Change of Servicer or Trustee, but only to the extent related to a servicer (other than a party to the Pooling and Servicing Agreement) appointed by the particular “Party Responsible”.	●     Each Master Servicer (as to a party appointed by such Master Servicer) ●     Each Special Servicer ●     Certificate Administrator ●     Depositor
Item 6.03: Change in Credit Enhancement or External Support	●     Depositor ●     Certificate Administrator
Item 6.04: Failure to Make a Required Distribution	●     Certificate Administrator
Item 6.05: Securities Act Updating Disclosure	●     Depositor
Item 7.01: Regulation FD Disclosure	●     Depositor
Item 8.01: Other Events	●     Depositor
Item 9.01(d): Exhibits (no. 1): Underwriting agreement (Exhibit No. 1 of Item 601 of Regulation S-K)	●     Not applicable
Item 9.01(d): Exhibits (no. 2): Plan of acquisition, reorganization, arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)	●     Depositor
Item 9.01(d): Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of	●     Depositor

Exhibit CC-3

Regulation S-K)
Item 9.01(d): Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Certificate Administrator provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement
Item 9.01(d): Exhibits (no. 7): Correspondence from an independent accountant regarding non-reliance on a previously issued audit report or completed interim review. (Exhibit No. 7 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 17): Correspondence on departure of director (Exhibit No. 17 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 20): Other documents or statements to security holders (Exhibit No. 20 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●     Depositor
Item 9.01(d): Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the	●     Certificate Administrator

Exhibit CC-4

name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.
Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.

Exhibit CC-5

EXHIBIT DD

ADDITIONAL DISCLOSURE NOTIFICATION

**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Wells Fargo Bank, National Association, as Certificate Administrator

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Corporate Trust Services (CMBS)

Banc of America Merrill Lynch Commercial Mortgage Inc., BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36—SEC REPORT PROCESSING

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section [11.04] [11.05] [11.07] of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [              ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [                     ], phone number: [                     ]; email address: [                     ].

[NAME OF PARTY],
as [role]
By:
	Name:
	Title:

cc: Depositor

Exhibit DD-1

EXHIBIT EE

INITIAL SUB-SERVICERS

1.       CBRE Loan Services, Inc.

2.       MMI Servicing, Inc.

3.       Berkadia Commercial Mortgage LLC

4.       NorthMarq Capital, LLC

5.       Slatt Capital, formerly known as Barry S. Slatt Mortgage Company

6.       JLL REAL ESTATE CAPITAL, LLC

7.       PSRS Administrative Services, LLC d/b/a Pacific Southwest Realty Services

Exhibit EE-1

EXHIBIT FF

SERVICING FUNCTION PARTICIPANTS

None.

Exhibit FF-1

EXHIBIT GG

FORM OF ANNUAL COMPLIANCE STATEMENT

CERTIFICATION

BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Trust”)

I, [identifying the certifying individual], on behalf of [Wells Fargo Bank, National Association, as General Master Servicer] [Rialto Capital Advisors, LLC, as General Special Servicer] [National Cooperative Bank, N.A., as NCB Master Servicer] [National Cooperative Bank, N.A., as NCB Special Servicer] [Wells Fargo Bank, National Association, as [Certificate Administrator][Custodian]] [Wilmington Trust, National Association, as Trustee] (the “Certifying Servicer”), certify to Banc of America Merrill Lynch Commercial Mortgage Inc. and its officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. I (or Servicing Officers under my supervision) have reviewed the Certifying Servicer’s activities [during the preceding calendar year] [between [__] and [__]] (the “Reporting Period”) and the Certifying Servicer’s performance under the Pooling and Servicing Agreement; and

2. To the best of my knowledge, based on such review, the Certifying Servicer has fulfilled all of its obligations under the Pooling and Servicing Agreement in all material respects during the Reporting Period. [To my knowledge, the Certifying Servicer has failed to fulfill the following obligations under the Pooling and Servicing Agreement: [SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS THEREOF]].

Date:

[WELLS FARGO BANK, NATIONAL ASSOCIATION,

as General Master Servicer]
[Rialto Capital Advisors, LLC,
as General Special Servicer]

[NATIONAL COOPERATIVE BANK, N.A.,

as NCB Master Servicer]

[NATIONAL COOPERATIVE BANK, N.A.,

Exhibit GG-1

as NCB Special Servicer]
[WELLS FARGO BANK, NATIONAL ASSOCIATION,

as [Certificate Administrator][Custodian]]
[WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee]

By:
	Name:
	Title:

Exhibit GG-2

EXHIBIT HH

FORM OF REPORT ON ASSESSMENT OF
COMPLIANCE with SERVICING CRITERIA

[Name of Reporting Servicer] (the “Reporting Servicer”) is responsible for assessing compliance with the servicing criteria applicable to it under paragraph (d) of Item 1122 of Regulation AB, as of and for the 12-month period ending December 31, 20[__] (the “Reporting Period”), as set forth in Exhibit Z to the Pooling and Servicing Agreement. The transactions covered by this report include asset-backed securities transactions for which the Reporting Servicer acted as [a master servicer, special servicer, trustee, certificate administrator] involving commercial mortgage loans [other than __________________¹] (the “Platform”);

The Reporting Servicer has engaged certain vendors, which are not servicers as defined in Item 1101(j) of Regulation AB (the “Vendors”) to perform specific, limited or scripted activities, and the Reporting Servicer elects to take responsibility for assessing compliance with the servicing criteria or portion of the servicing criteria applicable to such Vendors’ activities as set forth on Schedule A;

Except as set forth in paragraph 4 below, the Reporting Servicer used the criteria set forth in paragraph (d) of Item 1122 of Regulation AB to assess the compliance with the applicable servicing criteria;

The criteria listed in the column titled “Inapplicable Servicing Criteria” on Schedule A hereto are inapplicable to the Reporting Servicer based on the activities it performs, directly or through its Vendors, with respect to the Platform;

The Reporting Servicer has complied, in all material respects, with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified and is not aware of any material instance of noncompliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified any material deficiency in its policies and procedures to monitor the compliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto]; and

¹ Describe any permissible exclusions, including those permitted under telephone interpretation 17.04 (i.e., transactions registered prior to compliance with Regulation AB, transactions involving an offer and sale of asset-backed securities that were not required to be issued), if applicable.

Exhibit HH-1

[____], a registered public accounting firm, has issued an attestation report on the Reporting Servicer’s assessment of compliance with the applicable servicing criteria for the Reporting Period.

[Date of Certification]

[Name of Reporting Servicer]
By:
	Name:
	Title:

Exhibit HH-2

EXHIBIT II

CREFC^® PAYMENT INFORMATION

Payments shall be made to “CRE Finance Council” and sent to:

Commercial Real Estate Finance Council, Inc.

28 West 44th Street, Suite 815

New York, NY 10036

Attn: Executive Director

or by wire transfer to:

[wiring instructions are on file with each Master Servicer]

Exhibit II-1

EXHIBIT JJ

Form of Notice of ADDITIONAL

INDEBTEDNESS NOTIFICATION

VIA EMAIL:

To: Wells Fargo Bank, National Association, as Certificate Administrator; cts.cmbs.bond.admin@wellsfargo.com, trustadministrationgroup@wellsfargo.com and cts.sec.notifications@wellsfargo.com

Ref: BANK 2021-BNK36, Additional Debt Notice for From 10-D

The following information is being furnished to you for inclusion on Form 10-D pursuant to Section 3.18(g) of the Pooling and Servicing Agreement 

	Portfolio Name	Mortgage Loan	Position in Debt Stack	Additional Debt	OPB	OPB Date	Appraised Value	Appraised Value Date	Aggregate LTV	Aggregate NCF DSCR	Aggregate NCF DSCR Date	Primary Servicer	Master Servicer	Lead Servicer	Prospectus ID
1	BANK 2021-BNK36			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$
2	BANK 2021-BNK36			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$
3	BANK 2021-BNK36			$			$		%
	Outside the Trust			$			$		%
	Outside the Trust			$			$		%
	Total			$

Exhibit JJ-1

EXHIBIT KK

[RESERVED]

Exhibit KK-1

EXHIBIT LL

ADDITIONAL DISCLOSURE NOTIFICATION (ACCOUNTS)

INSTRUCTIONS:

FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO: CTS.SEC.NOTIFICATIONS@WELLSFARGO.COM

FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Wells Fargo Bank, National Association, as Certificate Administrator

9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36—SEC REPORT PROCESSING

Email: cts.sec.notifications@wellsfargo.com

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section 11.04 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [          ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

[With respect to the Collection Accounts and REO Account balance information:

Account Name	Beginning Balance as of MM/DD/YYYY	Ending Balance as of MM/DD/YYYY
General Master Servicer’s Collection Account
NCB Master Servicer’s Collection Account

Exhibit LL-1

REO Account

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [              ], phone number: [               ]; email address: [               ].

[NAME OF PARTY],
as [role]
By:
	Name:
	Title:

cc: Depositor

Exhibit LL-2

EXHIBIT MM

Form of notice of purchase of
controlling class certificate

[Date]

Wells Fargo Bank, National Association
             as Certificate Administrator

9062 Old Annapolis Road
Columbia, Maryland 21045
Email: trustadministrationgroup@wellsfargo.com
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

Wells Fargo Bank, National Association
             as General Master Servicer

Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK36 Asset Manager
Telecopy Number: (704) 715-0036
Email: commercial.servicing@wellsfargo.com

Rialto Capital Advisors, LLC
             as General Special Servicer

200 S. Biscayne Blvd, Suite 3550

Miami, Florida 33131

Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36)

Facsimile number: (305) 229-6425

E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com

National Cooperative Bank, N.A.
             as NCB Master Servicer and NCB Special Servicer
2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number: (703) 647-3473

Email: kluzik@ncb.coop

Pentalpha Surveillance LLC
             as Operating Advisor
375 N. French Road, Suite 100

Amherst, New York 14228

Exhibit MM-1

Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer

This letter is delivered to you, pursuant to Section 3.23(a) of the Pooling and Servicing Agreement in connection with the transfer by ____________ (the “Transferor”) to us (the “Transferee”) of $__________________ original principal balance in the Class [__] Certificates, representing [_____]% of the Class [__] Certificates. The Certificates were issued pursuant to the Pooling and Servicing Agreement.

1. Our name and address is as follows:

Contact Info: [Tel/Email]

2. [IF APPLICABLE] We hereby certify, represent and warrant to you, as Certificate Administrator, that we are purchasing a majority interest in the Class [__] Certificates, and that we are not affiliated with the Transferor. To the extent that any Control Termination Event or Consultation Termination Event has occurred due to a waiver of a prior Class [__] Certificateholder of its rights under the Pooling and Servicing Agreement, we hereby request that you reinstate such rights and post a “special notice” on your website to the following effect:

“A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class to an unaffiliated third party which has terminated any waiver by the prior Holder.”

All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.

Exhibit MM-2

Very truly yours,
	(Transferee)
By:
	Name:
	Title:

Exhibit MM-3

EXHIBIT NN

FORM OF ASSET REVIEW REPORT BY THE
ASSET REPRESENTATIONS REVIEWER¹

To: [Addresses of Recipients]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test] [evidence of [•] failed Test[s] as specifically detailed on the scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans.

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this report to the persons listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹ This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit NN-1

PENTALPHA SURVEILLANCE LLC,
as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit NN-2

Exhibit A

Detailed Scorecard
[Template Example Below]

Test failures
Loan #	Loan Name	Mortgage Loan Seller	R&W #	R&W Name	Test Description	Findings
[Insert Loan Number]	[Insert Loan Name]	[Insert Mortgage Loan Seller]	21	Compliance with Usury Laws	[Insert Test Description]	[Insert Test findings]
			31	Single-Purpose Entity

Exhibit NN-3

EXHIBIT OO

FORM OF ASSET REVIEW REPORT SUMMARY¹

To: [Addresses of Recipients]

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

Ladies and Gentlemen:

In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report Summary.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test] [evidence of [•] failed Test[s] as identified on the summary scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans.

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this Asset Review Report Summary to the parties listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report Summary.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹ This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit OO-1

PENTALPHA SURVEILLANCE LLC,
as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit OO-2

Exhibit A

Summary Scorecard
[Template Example Below]

Test failures
Loan #	Loan Name	Mortgage Loan Seller	Representations and Warranty #	Representation and Warranty Name
[Insert Loan #]	[Insert Loan Name]	[Insert Mortgage Loan Seller]	21	Compliance with Usury Laws
			31	Single-Purpose Entity

Exhibit OO-3

EXHIBIT PP

ASSET REVIEW PROCEDURES 

Pursuant to the terms and subject to the conditions set forth in the Pooling and Servicing Agreement (the “PSA”), the Asset Representations Reviewer (“Asset Representations Reviewer”) shall perform an Asset Review with respect to each representation and warranty made by the related Mortgage Loan Seller only with respect to each Delinquent Loan in accordance with the procedures set forth below (each such procedure, a “Test”); provided, however, the Asset Representations Reviewer may, but is under no obligation to, modify any Test and/or associated Review Materials described in this Exhibit PP if, and only to the extent, the Asset Representations Reviewer determines pursuant to the Asset Review Standard that it is necessary to modify such Test and/or such associated Review Materials in order to facilitate its Asset Review in accordance with the Asset Review Standard. Capitalized terms used herein but not defined herein have the meaning set forth in the PSA or, solely with respect to a representation and warranty, the meaning set forth in the related mortgage loan purchase agreement (the “Mortgage Loan Purchase Agreement”). For the avoidance of doubt, in connection with the performance of the following Tests:

(A) With respect to any representation and warranty that includes a knowledge qualifier (e.g., to the Mortgage Loan Seller’s knowledge, etc.), the Asset Representations Reviewer shall not be responsible for any investigation or review beyond that set forth in the applicable Test related to such representation and warranty;

(B) With respect to any representation and warranty that includes the examination of an insurance policy or Title Policy, the Asset Representations Reviewer will be permitted to engage a qualified consultant to perform a review of the applicable policy, and will be allowed to rely upon the conclusions of the consultant when making a determination as to whether there is a Test pass.

(C) The Asset Representations Reviewer shall be under no duty to provide or obtain a legal opinion, legal review or legal conclusion;

(D) Unless otherwise provided in the Test, the “as of” date for the testing of a representation is as of the Closing Date;

(E) Unless otherwise provided in the Test, if there is more than one version of the same document with respect to a particular Mortgage Loan or Mortgaged Property, the document that will be used by the Asset Representations Reviewer in testing is the document that is dated as of the Closing Date or, if none, the document closest prior to the Closing Date;

(F) With respect to each representation and warranty and its related Test(s), the Asset Representations Reviewer shall take into account any exceptions to such representation and warranty described in the Mortgage Loan Purchase Agreement with respect to a Mortgage Loan, and a Test pass shall be deemed to have occurred with respect to such

Exhibit PP-1

Test if the sole reason for not satisfying the applicable Test is caused by such exception(s); 

(G) Evidence of a failure of a Test could result from (i) an affirmative determination by the Asset Representations Reviewer that the Test failed to achieve a Test pass, or (ii) a determination by Asset Representations Reviewer that the documentation included in the Review Materials (after making such request for any missing documents in the manner provided for in the PSA) is not sufficient to perform the Test; and

(H) A determination by the Asset Representations Reviewer of a Test pass or a Test failure shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller.

The Asset Representations Reviewer will only be required to perform the Tests described in this Exhibit PP, and will not be obligated to perform additional procedures on any Delinquent Loan, even if a different set of procedures or review Materials could produce a different outcome. Notwithstanding the required Tests, the Asset Representations Reviewer will not be required to review any information other than (1) Review Materials specified in the related Test and (2) if applicable, Unsolicited Information. The Asset Representations Reviewer may, but is under no obligation to, consider Unsolicited Information relevant to the Tests subject to the terms of the PSA. If the Asset Representations Reviewer considers Unsolicited Information, the Asset Representations Reviewer shall take into account such Unsolicited Information, in addition to the Review Materials referred to in the applicable Test(s) procedure when making a determination as to whether there is a Test pass.

Exhibit PP-2

Representations and Warranties		Test	Review Materials
1. Intentionally Omitted.	1	N/A	N/A
2. Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan. At the time of the sale, transfer and assignment to the depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Securitization Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement. The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.	2a	Review the amounts listed on the original Mortgage Note and Mortgage for an indication that they match the amounts listed on the Mortgage Loan Schedule. If the amounts are the same, then such Mortgage Loan would be considered a Whole Loan. If there is more than one property then the Mortgage for each Mortgaged Property would need to be aggregated. If identified as such, it will be a Test pass.	Mortgage; Mortgage Note; Loan agreement related to the Mortgage Loan (“Loan Agreement”); Mortgage Loan guaranty; Assignment of Leases; and Environmental Indemnity Agreement (collectively, the “Mortgage Loan Documents”); Mortgage Loan Schedule.
	2b	Review any notice previously delivered by the Master Servicer or the Special Servicer, as applicable, of any alleged defect or breach with respect to any Delinquent Loan (collectively, the “MS Servicer Notices”) for notation of any Mortgage Note or Mortgage that was subject to any assignment (other than assignments to the Mortgage Loan Seller or, with respect to any Non-Serviced Mortgage Loan, to the related Non-Serviced Trustee for the related Non-Serviced Securitization Trust), participation or pledge, or that the Mortgage Loan Seller did not have good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement. If no such notation is found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-3

Representations and Warranties		Test	Review Materials
	2c	Review the MS Servicer Notices for notation of any claim or assertion regarding the Mortgage Loan Seller not having the full right and authority to sell, assign and transfer the Mortgage Loan. If such notation is not found, it will be a Test pass.	MS Servicer Notices
	2d	Review the MS Servicer Notices for notation of any claim or assertion regarding the assignment to the depositor not constituting a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan. If such notation is not found, it will be a Test pass.	MS Servicer Notices
3. Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment premium/yield maintenance charge) may be further limited or rendered	3a	Review the opinion of Mortgagor’s counsel (“Mortgagor’s Counsel Opinion”) for an indication that it contains language that the related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as specified in representation and warranty 3. If such indication exists, it will be a Test pass.	Mortgagor’s Counsel Opinion
	3b	Review the MS Servicer Notices for notation of any valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes,	MS Servicer Notices

Exhibit PP-4

Representations and Warranties		Test	Review Materials
unenforceable by applicable law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”). Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.		Mortgages or other Mortgage Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by the Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee (as defined in the related Mortgage Loan Purchase Agreement) the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan Documents. If no such notation is found, it will be a Test pass.
4. Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.	4	Review the Mortgage Loan Documents and Mortgagor’s Counsel Opinion for an indication that the Mortgage Loan Documents contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications. If such indication exists, it will be a Test pass.	Mortgage Loan Documents; Mortgagor’s Counsel Opinion
5. Intentionally Omitted.	5	N/A	N/A
6. Mortgage Status; Waivers and Modifications. Since	6a	Review the MS Servicer Notices and Mortgage Loan	Mortgage Loan

Exhibit PP-5

Representations and Warranties		Test	Review Materials
origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a)(1) to the knowledge of the Mortgage Loan Seller, there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver or modification relates to the COVID-19 emergency, and (2) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan. With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.		Documents for an indication that, except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a)(1) to the knowledge of the Mortgage Loan Seller, there has been any forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver or modification related to the COVID-19 emergency, and (2) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage. If no such indication is found, it will be a Test pass.	Documents; MS Servicer Notices
	6b	Review the MS Servicer Notices and Mortgage Loan Documents for an indication that a related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property except by written instruments set forth in the related Mortgage File. If no such indication is found, it will be a Test pass.	MS Servicer Notices; Mortgage Loan Documents
	6c	Review the MS Servicer Notices and Mortgage Loan	MS Servicer Notices;

Exhibit PP-6

Representations and Warranties		Test	Review Materials
		Documents for notation that neither Mortgagor nor guarantor has been released from its material obligations under the Mortgage Loan except by written instruments set forth in the related Mortgage File. If no such notation is found, it will be a Test pass.	Mortgage Loan Documents
	6d	Review the MS Servicer Notices and Mortgage Loan Documents for notation of a modification, amendment or waiver that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices; Mortgage Loan Documents
7. Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its affiliate, as applicable. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to representation and warranty 8 below (each such exception, a “Title Exception”)), except as	7a	Review the MS Servicer Notices for a notation or other indication of any claim or assertion regarding any endorsement or assignment of Mortgage or Assignment of Leases not constituting a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its affiliate, as applicable, subject to the Insolvency Qualifications. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	7b	Review the related Mortgage and the Assignment of Leases for each property for provisions to the effect that the related Mortgage and Assignment of Leases is not freely assignable without the consent of the related Mortgagor. If no such provision is found, it will be a Test pass.	Mortgage; Assignment of Leases
	7c	Review the Title Policy (as defined in representation and warranty 8) to determine if the related Mortgage is a first lien on the related Mortgagor’s fee (or if	Title Policy; Mortgage; Mortgage Loan Schedule

Exhibit PP-7

Representations and Warranties		Test	Review Materials
the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.		identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property. Compare the amount of the Title Policy to the principal amount of the Mortgage Loan or allocated loan amount to determine whether they are equivalent. If each such determination is made, it will be a Test pass.
	7d	Review the Title Policy to determine if the Mortgaged Property was free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (other than Permitted Encumbrances, Title Exceptions and those which are bonded over, escrowed for or insured against by the applicable Title Policy). If so determined, it will be a Test pass.	Title Policy
	7e	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that, as of the Cut-off Date, the Mortgage Loan Seller had knowledge that the Mortgaged Property was not free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan) (other than Permitted Encumbrances, Title Exceptions and those which are bonded over, escrowed for or insured against by the applicable Title Policy). If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	7f	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that, subject	MS Servicer Notices

Exhibit PP-8

Representations and Warranties		Test	Review Materials
		to the rights of tenants, there are rights existing which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except for Permitted Encumbrances and those which are bonded over, escrowed for or insured against by the applicable Title Policy. If such a notation or other indication is not found, it will be a Test pass.
	7g	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that the Mortgage Loan Seller did not have legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold), interest in the Mortgaged Property or good and marketable title free and clear of any pledge, lien, encumbrance or security interest. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
8. Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness	8a	Review the Title Policy to determine if it is an American Land Title Association loan title insurance policy or another comparable form of loan title insurance policy approved for use in the applicable jurisdiction. Review the Mortgage Loan Documents to determine if the amount of the policy covers the amount of the Mortgage Loan, or for multiple properties, an amount equal to the allocated loan amount after all advances of principal. If so determined with respect to each part of this Test, it will be a Test pass.	Title Policy; Mortgage Loan Documents
	8b	Review the Title Policy to determine if the first-priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan	Title Policy

Exhibit PP-9

Representations and Warranties		Test	Review Materials
secured by the Mortgage, the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or principal use of the Mortgaged Property, the security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon. Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that		that is part of a Whole Loan) is subject only to Permitted Encumbrances, as defined in representation and warranty 8. If so determined, it will be a Test pass.
	8c	Review the Title Policy to determine if any Permitted Encumbrance is a mortgage lien that is senior to or coordinate and co-equal to the lien of the related Mortgage, other than as contemplated by item (f) in the definition of Permitted Encumbrances. If not so determined, it will be a Test pass.	Title Policy
	8d	Review the Title Policy and MS Servicer Notices for a notation or other indication that the coverage is not in full force and effect, that all premiums thereon have not been paid or that claims have been made by the Mortgage Loan Seller. If no such notation or other indication is found, it will be a Test pass.	Title Policy; MS Servicer Notices
	8e	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller, or any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such policy. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	8f	Review the Title Policy to determine if the Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), that (a) the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels	Title Policy

Exhibit PP-10

Representations and Warranties		Test	Review Materials
are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.		are contiguous. If so determined, it will be a Test pass.
9. Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of representation and warranty 7 above), and equipment and other personal property financing. The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1 to the applicable	9a	Review the Title Policy to determine if there is any subordinate mortgage or junior lien encumbering the related Mortgaged Property, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan. If not so determined, it will be a Test pass.	Title Policy
	9b	Review the Title Policy to determine if, as of the Cut-off Date, there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens and equipment and other personal property financing. If so determined, it will be a Test pass.	Title Policy

Exhibit PP-11

Representations and Warranties		Test	Review Materials
Mortgage Loan Purchase Agreement.	9c	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller had knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than those set forth on Exhibit C-32-1 to the applicable Mortgage Loan Purchase Agreement. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
10. Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related Assignment of Leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.	10a	Review the Mortgage File to determine if an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage) is in the Mortgage File. If so determined, it will be a Test pass.	Mortgage File; Assignment of Leases
	10b	Review the Title Policy to determine if the Mortgage, or any related Assignment of Leases, has been recorded, and creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. If so determined with respect to each part of this Test, it will be a Test pass.	Title Policy; Mortgage; Assignment of Leases
	10c	Review the Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage) to determine if the related Mortgage, or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the	Assignment of Leases; Mortgage

Exhibit PP-12

Representations and Warranties		Test	Review Materials
		related Mortgagee to enter into possession to collect the rents or for rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee. If so determined, it will be a Test pass.
11. Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1 financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.	11a	Review the MS Servicer Notices for a notation or other indication of inappropriately filed or nonexistent UCC-1 financing statements. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	11b	Review the MS Servicer Notices for notation or other indication that the UCC-1, UCC-2 and UCC-3 statements were not in suitable form for filing. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-13

Representations and Warranties		Test	Review Materials
12. Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date. An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.	12a	Review the engineering report or property condition assessment in the Mortgage File to determine if it is dated within six months of the origination date, and within twelve months of the Cut-off Date. If so determined, it will be a Test pass.	Engineering report; Property condition assessment
	12b	Review the engineering report or property condition assessment in the Mortgage File to determine if it was dated no more than twelve months prior to the Cut-off Date. Review the engineering report to confirm that each related Mortgaged Property is free of material damage. If so determined with respect to each part of the Test, it will be a Test pass.	Engineering report; Property condition assessment
	12c	Review the MS Servicer Notices for a notation or other indication that the Mortgage Loan Seller had knowledge of issues with the physical condition of the Mortgaged Property that the Mortgage Loan Seller believed would have a material adverse effect on the value or use of the Mortgaged Property other than those disclosed in the most recently dated engineering report or Servicing File and those addressed in sub-clauses (i) and (ii) of representation and warranty 12. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
13. Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing	13	Review the MS Servicer Notices for a notation or other indication that all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgage Property that became due	MS Servicer Notices

Exhibit PP-14

Representations and Warranties		Test	Review Materials
prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.		and owing prior to the Cut-off Date with respect to the Mortgaged Property have not been paid, or if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges were not covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. If such a notation or other indication is not found, it will be a Test pass.
14. Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.	14	Review the MS Servicer Notices for a notation or other indication of any proceeding pending or threatened for the total or partial condemnation of such Mortgaged Property as of the Cut-off Date, or for a notation or other indication that the Mortgage Loan Seller had knowledge as of the Cut-off of any such proceeding that would have a material adverse effect on the value, use or operation of the Mortgaged Property. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
15. Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in representation and warranty 8), an engineering report or property condition assessment as described in representation and warranty 12, applicable local law compliance materials as described in representation and warranty 26, and the ESA (as defined in representation and warranty 43), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse	15a	Review the Mortgage Loan Documents, the Mortgagor’s Counsel Opinion and the MS Servicer Notices for an indication of pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property that existed on the origination date. If such an indication is not found, it will be a Test pass.	Mortgage Loan Documents; Mortgagor’s Counsel Opinion; MS Servicer Notices
	15b	Review the MS Servicer Notices to determine if an adverse outcome of any such pending, filed or threatened action, suit or proceeding, arbitration or	MS Servicer Notices

Exhibit PP-15

Representations and Warranties		Test	Review Materials
outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.		governmental investigation involving any Mortgagor, guarantor, or Mortgaged Property would reasonably be expected to adversely affect the matters set forth in clauses (a)-(f) of representation and warranty 15. If any such adverse outcome would not reasonably be expected to adversely affect the matters set forth in clauses (a)-(f) of representation and warranty 15, it will be a Test pass.
16. Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related depositor under the Non-Serviced PSA or the related Non-Serviced Master Servicer for the related Non-Serviced Securitization Trust).	16a	Review the MS Servicer Notices for a notation or other indication of any escrow deposits and escrow payments required to be escrowed with the Mortgagee pursuant to each Mortgage Loan not in the servicer’s possession or control. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	16b	Review the Diligence File and the MS Servicer Notices to determine if all escrows and deposits required pursuant to the Mortgage Loan have been conveyed by the Mortgage Loan Seller to the depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related depositor under the Non-Serviced PSA or Non-Serviced Master Servicer for the related Non-Serviced Securitization Trust). If so determined, it will be a Test pass.	Diligence File; MS Servicer Notices
17. No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to	17a	Review the Mortgage Loan Schedule, Loan Agreement, Mortgage Note and origination settlement statement to determine if the principal amount of the Mortgage Loan was fully disbursed as of the Closing Date. If so determined, it will be a Test pass.	Mortgage Loan Schedule; Loan Agreement; Mortgage Note; and Origination settlement statement
	17b	Review the Mortgage Loan Documents to determine if there is no requirement for future advances by the	Mortgage Loan Documents

Exhibit PP-16

Representations and Warranties		Test	Review Materials
leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).		Mortgagee (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback). If so determined, it will be a Test pass.
18. Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the Insurance Rating Requirements (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property. “Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from	18a	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if it shows that the related Mortgaged Property is insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all-risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan Documents and the Insurance Rating Requirements, in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of any Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the Mortgaged	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)

Exhibit PP-17

Representations and Warranties		Test	Review Materials
A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings (“S&P”) or (2) the Syndicate Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s, and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s. Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency		Property. If so determined, it will be a Test pass.
	18b	Review the Mortgage Loan Documents for provisions requiring the insurance coverage as stated in Test 18a above. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	18c	Review the Insurance Summary Report (or, solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if it shows that the related Mortgaged Property is insured for business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to a Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months). If such provisions are found, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	18d	Review the Mortgage Loan Documents for provisions requiring the insurance coverage as stated in Test 18c above. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	18e	Review the Mortgage Loan Documents and/or the survey to determine if any material part of the improvements, exclusive of a parking lot, located on the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having “special flood hazards.” If so determined, review the Insurance Summary to determine whether the Mortgagor maintains insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such	Insurance Summary Report

Exhibit PP-18

Representations and Warranties		Test	Review Materials
Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property. If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer meeting the Insurance Rating Requirements. The Mortgaged Property is covered, and required to be		additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property. If so determined, it will be a Test pass.
	18f	If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, review the Insurance Summary Report to determine if the property is covered for windstorm and/or windstorm related perils and/or “named storms” by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer meeting the Insurance Rating Requirements. If so determined with respect to each part of this Test, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance); Diligence File
	18g	Review the Insurance Summary Report dated before the Closing Date (or solely with respect to residential	Insurance Summary Report (solely with respect to

Exhibit PP-19

Representations and Warranties		Test	Review Materials
covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate. An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best or “A3” (or the equivalent) from Moody’s or “A-” by S&P in an amount not less than 100% of the PML. The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or		cooperative properties, review the insurance policies and/or certificates of insurance) and Mortgage Loan Documents to determine if the Mortgage Property is covered, and required to be covered pursuant to the related Mortgage Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate. If so determined, it will be a Test pass.	residential cooperative properties, the insurance policies and/or certificates of insurance); Mortgage Loan Documents
	18h	Review the property condition assessment to determine if the properties are located in a seismic zone 3 or 4. If so determined, review the seismic engineering study to determine if it has been performed by an architectural or engineering consultant for the sole purpose of assessing the PML for the Mortgaged Property in the event of an earthquake and based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If so determined, it will be a Test pass.	Property condition assessment; Seismic engineering study
	18i	Review the most recent seismic engineering study or Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the PML would exceed 20% of the amount of the replacement costs of the improvements,	Seismic engineering study; Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates

Exhibit PP-20

Representations and Warranties		Test	Review Materials
Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon. All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.		and if so, review to determine if earthquake insurance on such Mortgaged Property was obtained. If so determined, determine if the insurer is meeting the Insurance Rating Requirements (as defined in representation and warranty 18). The insurance amount should be not less than 100% of the PML. If so determined with respect to each part of the Test, it will be a Test pass.	of insurance)
	18j	Review the Mortgage Loan Documents for provisions requiring that insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the Mortgage Loan, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	18k	Review the MS Servicer Notices for a notation or other indication that insurance premiums are current as of the Cut-off Date. If such a notation or other indication is found, it will be a Test pass.	MS Servicer Notices
	18l	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance policies name the Mortgagee under any Mortgage Loan and its	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates

Exhibit PP-21

Representations and Warranties		Test	Review Materials
		successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. If so determined, it will be a Test pass.	of insurance)
	18 m	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance will inure to the benefit of the trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). If so determined, it will be a Test pass.	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)
	18n	Review the Mortgage Loan Documents to determine if any Mortgage Loan obligates the Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. If so determined, it will be a Test pass.	Mortgage Loan Documents
	18o	Review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if the insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium. If so	Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance)

Exhibit PP-22

Representations and Warranties		Test	Review Materials
		determined, it will be a Test pass.
	18p	Review the MS Servicer Notices for a notation or other indication that any notice described in Test 18o may have been received by the Mortgage Loan Seller. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
19. Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in representation and warranty 8) and survey, if any, an engineering report or property condition assessment as described in representation and warranty 12, applicable local law compliance materials as described in representation and warranty 26, and the ESA (as defined in representation and warranty 43), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part	19a	Review the zoning report, Title Policy and survey, engineering report or property condition assessment, the Sponsor Diligence and the ESA to determine if each Mortgaged Property is located on or adjacent to a public road and has direct legal access to such road, or has permanent access easement or right of way permitting ingress and egress to/from a public road. If so determined, it will be a Test pass.	Zoning report; Title Policy; Survey; Engineering report or property condition assessment; Sponsor Diligence; ESA
	19b	Review the zoning report, Title Policy and survey, engineering report or property condition assessment, the Sponsor Diligence and the ESA to determine if each Mortgaged Property is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property. If so determined, it will be a Test pass.	Zoning report; Title Policy; Survey; Engineering report or property condition assessment; Sponsor Diligence; ESA
	19c	Review the Title Policy and survey to determine if each Mortgaged Property constitutes one or more separate tax parcels and do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the most recently dated Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing	Title Policy; Survey; Mortgage Loan Documents

Exhibit PP-23

Representations and Warranties		Test	Review Materials
until the separate tax parcels are created.		authority for creation of separate tax parcels, in which case any Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created. If so determined, it will be a Test pass.
20. No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property: (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.	20a	Review the survey and Title Policy to determine if all material improvements that were included for the purpose of determining the appraised value of the Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured by applicable Title Policy. If so determined, it will be a Test pass.	Survey; Title Policy; Appraisal
	20b	Review the survey and Title Policy to determine if there exist material improvements on adjoining parcels that encroach onto the Mortgaged Property which are not insured by applicable Title Policy. If not so determined, it will be a Test pass.	Survey; Title Policy
	20c	Review the survey and Title Policy to determine if there exist material improvements that encroach upon any easements except for encroachments that are insured against by the applicable Title Policy. If not so determined, it will be a Test pass.	Survey; Title Policy
21. No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.	21	Review the Mortgage Loan Documents for any shared appreciation feature or any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller. If no such	Mortgage Loan Documents

Exhibit PP-24

Representations and Warranties		Test	Review Materials
		feature is found with respect to each part of this Test, it will be a Test pass.
22. REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air-conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property	22a	Review the origination settlement statement and Mortgage Note to determine if the proceeds advanced by the Mortgagee did not exceed the non-contingent principal amount of the Mortgage Loan. If so determined, it will be a Test pass.	Origination settlement statement; Mortgage Loan
	22b	Review the most recent appraisal and Mortgage Loan Documents to determine if (a) the Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air-conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the initial principal amount of any Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the outstanding principal amount of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes of clauses (i) and (ii) above, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to such Mortgage Loan and (B) a proportionate amount of any lien that is in parity with such Mortgage Loan	Appraisal; Mortgage Loan Documents

Exhibit PP-25

Representations and Warranties		Test	Review Materials
which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). Any prepayment premiums and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this representation and warranty shall have the same meanings as set forth in the related Treasury Regulations.		or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If so determined, it will be a Test pass.
	22c	Review the MS Servicer Notices for an indication or other notation that the Mortgage Loan was modified prior to the Closing Date, and if so, if the modification was made as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(i) in the first sentence of representation and warranty 22 (substituting the date of the last such modification for the date any Mortgage Loan was originated) or sub-clause (B)(ii) in the first sentence of representation and warranty 22, including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length	MS Servicer Notices

Exhibit PP-26

		in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). If there were any such modifications, and such a notation or other indication is found, it will be a Test pass.
	22d	Review the MS Servicer Notices for a notation or other indication of any claim or assertion to the effect that the prepayment premiums and yield maintenance charges applicable to any Mortgage Loan do not constitute “customary prepayment penalties”. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
23. Compliance with Usury Laws. The mortgage rate	23a	Review the MS Servicer Notices for a notation or	MS Servicer Notices

Exhibit PP-27

Representations and Warranties		Test	Review Materials
(exclusive of any default interest, late charges, yield maintenance charge or prepayment premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.		other indication of any claim or assertion to the effect that the terms of the Mortgage Loan do not comply with applicable local, state, and federal laws in any material respect. If such a notation or other indication is not found, it will be a Test pass.
	23b	Review the MS Servicer Notices for a notation or other indication of any claim or assertion to the effect that any material requirements pertaining to the origination of any Mortgage Loan, including but not limited to, usury and any and all other material requirements of any federal, state or local law have not been complied with. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	23c	Review the Mortgage Loan Documents to determine if they provide that the Mortgage Loan complied with usury laws. If so determined, it will be a Test pass.	Mortgage Loan Documents
24. Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.	24	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that as of the date that the Mortgage Loan Seller or any prior Mortgagee held the Mortgage Note, each such holder of the Mortgage Note was not authorized to transact or do business in the jurisdiction in which each related Mortgaged Property is located. If such a notation or other indication is found, determine whether the failure to be so authorized could not materially and adversely affect the enforceability of such Mortgage Loan by the Trust. If so determined, it will be a Test pass.	MS Servicer Notices
25. Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the	25	Review the Mortgage Loan Documents to determine if a trustee is appointed. If so determined, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-28

Representations and Warranties		Test	Review Materials
Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.
26. Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-	26a	Review the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization to determine if the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable Zoning Regulations governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure. If so determined, it will be a Test pass.	Zoning report; Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement to the related Title Policy; Survey; Other affirmative investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization
	26b	Review the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization to determine if any non-conformity with zoning laws constitutes a legal non-conforming	Zoning report; Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement to the related Title Policy; Survey; Other affirmative investigation conducted by the Mortgage Loan Seller for similar commercial and

Exhibit PP-29

Representations and Warranties		Test	Review Materials
conforming use or structure, or (d) the inability to restore the Mortgaged Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.		use or structure which does not materially and adversely affect the use or operation of such Mortgaged Property. If so determined, review the Insurance Summary Report to determine if title insurance policy was obtained prior to the Closing Date with respect to any non-conforming use or structure. If so determined, it will be a Test pass.	multifamily mortgage loans intended for securitization; Insurance Summary Report
	26c	Review the Mortgage Loan Documents for provisions to the effect that, in the event of casualty or destruction, the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	26d	If the zoning report, a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization indicates that all or any part of the Mortgaged Property do not comply with zoning laws, review the Insurance Summary Report (or solely with respect to residential cooperative properties, review the insurance policies and/or certificates of insurance) to determine if law and ordinance coverage was obtained prior to the Closing Date that provides coverage for additional costs to rebuild and/or repair the property to current Zoning Regulations. If not so determined, review the	Zoning report; Insurance Summary Report (solely with respect to residential cooperative properties, the insurance policies and/or certificates of insurance); Letter from any governmental authorities; Legal opinion; Architect’s letter; Endorsement to the related Title Policy; Survey; Other affirmative investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for

Exhibit PP-30

Representations and Warranties		Test	Review Materials
		Title Policy to determine if it insures over such nonconformity. If so determined, it will be a Test pass.	securitization
	26e	Review the Mortgage Loan Documents for provisions that require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
27. Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan. The Mortgage Loan documents require the related Mortgagor to comply in all material respects with all applicable regulations, zoning and building laws.	27a	Review the Mortgage Loan Documents to determine if the Mortgagor has covenanted to keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect. If so determined, it will be a Test pass.	Mortgage Loan Documents
	27b	Review the Mortgage Loan Documents and the MS Servicer Notices for a notation or other indication that (a) the Mortgage Loan Seller had knowledge that any licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property are not in effect, and (b) the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals necessary could materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder or the related Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	Mortgage Loan Documents; MS Servicer Notices
	27c	Review the Mortgage Loan Documents for provisions requiring the related Mortgagor and the Mortgaged Property to comply in all material respects with all	Mortgage Loan Documents

Exhibit PP-31

Representations and Warranties		Test	Review Materials
		applicable regulations, zoning and building laws. If such provisions are found, it will be a Test pass.
28. Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the	28a	Review the Mortgage Loan Documents for provisions permitting full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in connection with the events or circumstances set forth in clauses (a)(i) through (a)(iii) of representation and warranty 28. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	28b	Review the Mortgage Loan Documents to determine if there exist provisions permitting recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the events or circumstances set forth in clauses (b)(i) through (b)(iv) of representation and warranty 28. If so determined, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-32

Representations and Warranties		Test	Review Materials
Mortgagor’s fraud or intentional material misrepresentation; (iii) breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).
29. Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial defeasance (as described in representation and warranty 34) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in representation and warranty 34 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage”	29a	Review the Mortgage Loan Documents for provisions stating that, if the related Mortgage Loan Documents permit a property release, the only conditions under which a property may be released during the life of the Mortgage Loan are as set forth in clauses (a) through (e) of the first sentence of representation and warranty 29. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	29b	Review the Mortgage Loan Documents for provisions stating that with respect to any partial release described in clauses (a) or (d) of the first sentence of representation and warranty 29 either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Loan Documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property	Mortgage Loan Documents

Exhibit PP-33

Representations and Warranties		Test	Review Materials
within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from		(reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions. If such provisions are found, it will be a Test pass.
	29c	Review the Loan Documents for provisions stating that in the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property	Mortgage Loan Documents

Exhibit PP-34

Representations and Warranties		Test	Review Materials
the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans). No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.		that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans). If such provisions are found, it will be a Test pass.
	29d	Review the Mortgage Loan Documents for provisions stating that no such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
30. Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.	30a	Review the Mortgage Loan Documents for provisions that require the Mortgagor to provide the owner or holder of the Mortgage Loan with quarterly (other than for single-tenant properties) and annual operating statements. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	30b	Review the Mortgage Loan Documents for provisions that require the Mortgagor to provide the owner or holder of the Mortgage Loan with quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by residential cooperative properties) for properties that have any individual ease which accounts for more than 5% of the in-place base rent and annual financial statements. If such provisions	Mortgage Loan Documents

Exhibit PP-35

Representations and Warranties		Test	Review Materials
		are found, it will be a Test pass.
31. Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C to the applicable Mortgage Loan Purchase Agreement; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost	31a	Review the Mortgage Loan Documents to determine if the original principal balance was greater than $20 million. If so, review the insurance coverage review document for an indication that the special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude acts of terrorism, from coverage, or if they do, there exists a separate terrorism insurance policy related to the Mortgaged Property. If such an indication is found, it will be a Test pass.	Mortgage Loan Documents; Insurance coverage review document
	31b	Review the Mortgage Loan Documents for provisions that do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA (as defined in representation and warranty 31), or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C to the applicable Mortgage Loan Purchase Agreement, provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan	Mortgage Loan Documents

Exhibit PP-36

Representations and Warranties		Test	Review Materials
of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.		documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount. If such provisions are not found, it will be a Test pass.
32. Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor,	32a	Review the Mortgage Loan Documents for “due-on-sale” or other such provisions for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan in the circumstances described in the first sentence of representation and warranty 32. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents
	32b	Review the Mortgage Loan Documents for provisions that require that if Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-37

Representations and Warranties		Test	Review Materials
(iv) Transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of representation and warranties 29 and 34 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1 to the applicable Mortgage Loan Purchase Agreement, or future permitted mezzanine debt as set forth on Exhibit C-32-2 to the applicable Mortgage Loan Purchase Agreement, or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 to the applicable Mortgage Loan Purchase Agreement or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
33. Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Each Mortgage Loan with	33a	Review the Mortgage Loan Documents for provisions that require that the Mortgagor to be a Single-Purpose Entity (as defined in representation and warranty 33)	Mortgage Loan Documents

Exhibit PP-38

Representations and Warranties		Test	Review Materials
a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.		for at least as long as any Mortgage Loan is outstanding. If such provisions are found, it will be a Test pass.
	33b	Review the Mortgage Loan Schedule for the Cut-off Date Balance of the Mortgage Loan. If the Mortgage Loan had a Cut-off Date Balance in excess of $10 million, review the related Mortgage Loan Documents and the Mortgagor’s organizational documents for provisions that require the Mortgagor to be a Single-Purpose Entity. If the provisions exist, it will be a Test pass.	Mortgage Loan Schedule; Mortgage Loan Documents; Mortgagor’s organizational documents
	33c	Review the Mortgage Loan Schedule for the Cut-off Date Balance of the Mortgage Loan. If the Mortgage Loan had a Cut-off Date Balance in excess of $30 million, review the Mortgagor’s Counsel Opinion regarding non-consolidation of the Mortgagor. If such an opinion is found, it will be a Test pass.	Mortgage Loan Schedule; Mortgagor’s Counsel Opinion
34. Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within	34	Review the Mortgage Loan Documents for provisions allowing the Mortgage Loan to be defeased, and if so, whether such Mortgage Loan Documents contain the provisions described in clauses (i) through (viii) of representation and warranty 34. If such provisions are found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-39

Representations and Warranties	Test	Review Materials
two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the defeasance collateral are required to be assumed by a Single-Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not

Exhibit PP-40

limited to, accountant’s fees and opinions of counsel.
35. Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.	35	Review the Mortgage Loan Documents for an indication that the loan has a fixed interest rate that remains fixed throughout the term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed. If such an indication is found, it will be a Test pass.	Mortgage Loan Documents

Exhibit PP-41

Representations and Warranties		Test	Review Materials
36. Ground Leases. For purposes of these representations and warranties, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner. With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that: (A)     The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the	36a	Review the appraisal to determine if the Mortgage Loan is secured by a Ground Lease (as defined in representation and warranty 36), in whole or in part. If so, review the Title Policy and Mortgage Loan Documents for an indication that the related Mortgage does not also encumber the lessor’s fee interest in the Mortgaged Property. If such an indication exists, proceed to Tests 36b through 36r.	Appraisal; Title Policy; Mortgage Loan Documents
	36b	Review the Title Policy and Mortgage Loan Documents for an indication that the Ground Lease or memorandum has been recorded or submitted for recordation. If such indication is found, it will be a Test pass.	Title Policy; Mortgage Loan Documents
	36c	Review the Ground Lease and Related Documents for an indication that the interest of the lessee is permitted to be encumbered by the Mortgage and does not restrict the use of the Mortgaged Property by such lessee, its successors or assigns in a manner that would adversely affect the security provided by the Mortgage. If such indication is found, it will be a Test pass.	Ground Lease and Related Documents
	36d	Review the MS Servicer Notices for notation that, as of the Closing Date, there was a material change in the terms of the Ground Lease since its recordation. If no such notation is found, it will be a Test pass. If such notation is found, review the Mortgage File for a	MS Servicer Notices; Mortgage File

Exhibit PP-42

Representations and Warranties		Test	Review Materials
related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File; (B)     The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease; (C)     The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual/360 basis, substantially amortizes); (D)     The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee		modification agreement or other such instrument is in the Mortgage File. If the modification agreement or instrument is in the Mortgage File, it will be a Test pass.
	36e	Review the Ground Lease and Related Documents for a provision that the Ground Lease may not be amended, modified, canceled or terminated without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease. If such a provision is found, it will be a Test pass.	Ground Lease and Related Documents
	36f	Review the Ground Lease and Related Documents for an indication that it has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or ten years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes). If such an indication is found, it will be a Test pass.	Ground Lease and Related Documents
	36g	Review the Title Policy for an indication that the Ground Lease is either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions, or (ii)	Title Policy; SNDA

Exhibit PP-43

Representations and Warranties		Test	Review Materials
interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject; (E)     Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid); (F)     The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;		is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject. If either indication is found, it will be a Test pass.
	36h	Review the Ground Lease and Related Documents for an indication that the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass.	Ground Lease and Related Documents
	36i	Review the Ground Lease and Related Documents for an indication that in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated an all amounts due thereunder have been paid). If such indication is found, it will be a Test pass.	Ground Lease and Related Documents
	36j	Review the MS Servicer Notices for notation that the Mortgage Loan Seller has received any written notice of material default under or notice of termination of such Ground Lease. If no such notation is found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-44

Representations and Warranties		Test	Review Materials
(G)     The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default, and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee; (H)     A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease; (I)     The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization; (J)     Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee	36k	Review the MS Servicer Notices for notation that to the Mortgage Loan Seller’s knowledge, there is a material default under such Ground Lease or condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	36l	Review the MS Servicer Notices for a notation that to the Mortgage Loan Seller’s knowledge, such Ground Lease was not in full force and effect as of the Closing Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	36m	Review the Ground Lease and Related Documents for provisions that the lessor is required to give to the Mortgagee written notice of any default, and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee. If such provisions are found, it will be a Test pass.	Ground Lease and Related Documents
	36n	Review the Ground Lease and Related Documents for provisions that the Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease. If such provisions are found, it will be a Test pass.	Ground Lease and Related Documents
	36o	Review the Ground Lease for provisions that impose any commercially unreasonable restrictions on	Ground Lease

Exhibit PP-45

Representations and Warranties		Test	Review Materials
appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; (K)     In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and (L)     Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.		subletting in connection with the origination of similar commercial or multifamily loans intended for securitization. If no such provisions are found, it will be a Test pass.
	36p	Review the Ground Lease and Related Documents and the Mortgage Loan Documents for an indication that any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (34k)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest. If such indications are found, it will be a Test pass.	Ground Lease and Related Documents; Mortgage Loan Documents
	36q	Review the Ground Lease and Related Documents and the Mortgage Loan Documents for an indication that, in the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to the ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal	Ground Lease and Related Documents; Mortgage Loan Documents

Exhibit PP-46

Representations and Warranties		Test	Review Materials
		balance of the Mortgage Loan, together with any accrued interest. If such an indication is found, it will be a Test pass.
	36r	Review the Ground Lease and Related Documents for provisions that, provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding. If such provisions are found, it will be a Test pass.	Ground Lease and Related Documents
37. Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.	37	Review the MS Servicer Notices for a notation or other indication of any claims or assertions to the effect that the servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan was not in all material respects legal, or in accordance with customary industry standards for servicing of commercial loans for conduit loan programs. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
38. Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in Exhibit C to the	38	Review the MS Servicer Notices for notation to the effect that the origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have not been, in all material respects, legal and as of the date of its origination, such Mortgage Loan, or the origination thereof did not comply in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that representation and warranty 38 does not	MS Servicer Notices

Exhibit PP-47

Representations and Warranties		Test	Review Materials
applicable Mortgage Loan Purchase Agreement.		address or otherwise cover any matters with respect to federal, state or local law otherwise covered in Exhibit C to the applicable Mortgage Loan Purchase Agreement. If no such notation is found, it will be a Test pass.
39. Intentionally Omitted.	39	N/A	N/A
40. No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in Exhibit C to the applicable Mortgage Loan Purchase Agreement. No person other than the holder of such	40a	Review the MS Servicer Notices for notation that (i) the Mortgage Loan has been more than 30 days delinquent, giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), or (ii) the Mortgage Loan was delinquent beyond any applicable grace or cure periods as of the Cut-off Date. If no such notation is found, it will be a Test pass.	MS Servicer Notices
	40b	Review the MS Servicer Notices for notation of the Mortgage Loan Seller’s knowledge of (a) a material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) an event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property. If no such notation is found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-48

Representations and Warranties		Test	Review Materials
Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.
41. Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.	41	Review the Lexis/Nexis (or comparable search) and the MS Servicer Notices for an indication that the Mortgaged Property (other than any tenants of such Mortgaged Property), or any portion thereof, was the subject of, or a Mortgagor, guarantor or tenant occupying a single-tenant property was a debtor in, a state or federal bankruptcy, insolvency or similar proceeding. If no such indication or notation is found, it will be a Test pass.	Lexis/Nexis (or comparable) search; MS Servicer Notices
42. Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4 to the applicable Mortgage Loan Purchase Agreement, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan. An “Affiliate” for purposes of this representation and warranty 42 means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.	42a	Review the Diligence File to determine if it includes certified copies of the organizational documents of the Mortgagor indicating that the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. If such indication is found, it will be a Test pass.	Diligence File
	42b	Review the Diligence File for an indication that, except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4 to the applicable Mortgage Loan Purchase Agreement, no Mortgage Loan has a Mortgagor that is an Affiliate of another Mortgagor under another Mortgage Loan. If such an indication is found, it will be a Test pass.	Diligence File
43. Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain	43a	Review the Diligence File to determine if an ESA (as defined in representation and warranty 43) is included. If so, review the ESA for an indication that it was	Diligence File; ESA

Exhibit PP-49

Representations and Warranties		Test	Review Materials
Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements, was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related		conducted within 12 months prior to the origination date of the Mortgage Loan. If such an indication is found, it will be a Test pass.
	43b	Review the ESA for an indication that it identified (i) the existence of a recognized environmental condition at the related Mortgaged Property or (ii) the need for further investigation. If no such indication is found, it will be a Test pass.	ESA
	43c	Review the ESA for an indication that it identified (i) the existence of a recognized environmental condition at the related Mortgaged Property or (ii) the need for further investigation. If such an indication is found, the following test procedures (subparts 43c-1 through 43c-6) will be performed. If any of the subparts indications are found, it will be a Test pass.	ESA; Escrow Statements; Loan Documents; Diligence File
		1.     Review escrow statements for an indication that an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable environmental laws or the environmental condition has been escrowed by the Mortgagor and is held by the related Mortgagee.	Escrow statements
		2. Review the ESA for an indication that if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air or lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, and if so, a review of the Loan Documents indicates that an operations or maintenance plan has been required to be instituted by the related Mortgagor that, based on the ESA, can	ESA

Exhibit PP-50

Representations and Warranties		Test	Review Materials
Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.		reasonably be expected to mitigate the identified risk.
		3. Review the Diligence File for an indication that any Environmental Condition identified in the ESA was remediated or abated in all material respects prior to the date hereof, as evidenced by a no further action or closure letter that was obtained from the applicable governmental regulatory authority, or a reputable environmental consultant has concluded that no further action is required.	Diligence File
		4. Review the insurance coverage review documents for an indication that an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than A- (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best.	Insurance coverage review documents
		5. Review the Diligence File for an indication that a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources considered by the Mortgage Loan Seller to be adequate to address the situation.	Diligence File
		6. Review the Diligence File for an indication that a party related to the Mortgagor having financial resources estimated by the Mortgage Loan Seller to be adequate to address the situation is required to take action.	Diligence File
	43d	Review the MS Servicer Notices for notation of the Mortgage Loan Seller’s knowledge of any environmental condition at the Mortgaged Property other than any set forth in the ESA. If no such notation	MS Servicer Notices; ESA

Exhibit PP-51

Representations and Warranties		Test	Review Materials
		is found, it will be a Test pass.
44. Intentionally Omitted.	44	N/A	N/A
45. Appraisal. The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date. The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute, or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.	45a	Review the appraisal to determine if it was dated within 6 months of the Mortgage Loan origination date and within 12 month of the Cut-off Date. If so determined, it will be a Test pass.	Appraisal
	45b	Review the appraisal to determine if it includes an appraiser’s certification or supplemental letter that indicates that the appraiser had no interest, direct or indirect, in the Mortgagor, the Mortgaged Property or any loan made on the security of the Mortgaged Property. If so determined, it will be a Test pass.	Appraisal
	45c	Review the appraisal to determine if it signed by an appraiser that (A) is a Member of the Appraisal Institute, or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, that the Mortgage Loan Seller had knowledge that the signing appraiser had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and that the appraiser’s compensation is not affected by the approval or disapproval of the Mortgage Loan. If so determined, it will be a Test pass.	Appraisal
	45d	Review the appraisal to determine if it includes documentation in the appraisal or a letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. If so determined, it will be a Test pass.	Appraisal

Exhibit PP-52

46. Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to the related Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.	46a	Review the Mortgage Loan Schedule attached as an exhibit to the related Mortgage Loan Purchase Agreement and compare it to the corresponding information in (i) Annex A to the final prospectus (ii) Mortgage Loan Documents, (iii) Pooling and Servicing Agreement, and (iv) asset summary report to determine if there are discrepancies between the documents. If there are no such discrepancies, it will be a Test pass.	Mortgage Loan Schedule; Annex A to final prospectus; Mortgage Loan Documents; Pooling and Servicing Agreement; Asset summary report
	46b	Compare the information in the Mortgage Loan Schedule to the requirements of the Pooling and Servicing Agreement to determine if they match. If there are no discrepancies, it will be a Test pass.	Mortgage Loan Schedule; Pooling and Servicing Agreement
47. Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.	47	Except with respect to a Mortgage Loan that is part of a Whole Loan, review the Mortgage Loan Documents to determine if the Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Mortgage Pool. If not so determined, it will be a Test pass.	Mortgage Loan Documents
48. Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof.	48a	Review the MS Servicer Notices for a notation or other indication that an advancement of funds (other than loan proceeds advanced at the time of loan origination) had been made by the Mortgage Loan Seller to the related Mortgagor, or that funds have been received from any person other than the related Mortgagor or an Affiliate, directly, indirectly for, or on account of, payments due on the Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices
	48b	Review the Mortgage Loan Documents to determine if the Mortgage Loan Seller, or an Affiliate, has an obligation to make any capital contribution to the Mortgagor under a Mortgage Loan, other than	Mortgage Loan Documents

Exhibit PP-53

Representations and Warranties		Test	Review Materials
		contributions made on or prior to the date hereof. If not so determined, it will be a Test pass.
49. Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.	49	Review the MS Servicer Notices for a notation or other indication of any claim or assertion that the Mortgage Loan Seller did not comply with its internal procedures with respect to all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 in connection with the origination of any Mortgage Loan. If such a notation or other indication is not found, it will be a Test pass.	MS Servicer Notices

Exhibit PP-54

EXHIBIT QQ

FORM OF CERTIFICATION TO CERTIFICATE ADMINISTRATOR
REQUESTING ACCESS TO SECURE DATA ROOM

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK36

Email: trustadministrationgroup@wellsfargo.com

Attention: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with the requirements for obtaining access to the Secure Data Room pursuant to the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is an authorized representative of [the Asset Representations Reviewer][[_____], an entity designated by the Depositor to receive access to the secure Data Room].

2. The undersigned acknowledges and agrees that (a) access to the Secure Data Room is being granted to it solely for purposes of the undersigned carrying out its obligations under the Pooling and Servicing Agreement (b) it will not disseminate or otherwise make information contained on the Secure Data Room available to any other person except in accordance with the Pooling and Servicing Agreement or otherwise with the written consent of the Depositor and (c) it will only access information relating to the Mortgage Loans to which the Asset Review relates.

3. The undersigned agrees that each time it accesses the Secure Data Room, the undersigned is deemed to have recertified that the representations above remains true and correct.

Exhibit QQ-1

4. [The undersigned is not a Certificateholder, a beneficial owner or a prospective purchaser of any Certificate.]^*

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[NAME OF PARTY], as [role]
By:
	Name: Title:

Dated: _______

[Banc of America Merrill Lynch Commercial Mortgage Inc.,

as Depositor]^*

By:
	[Name] [Title]

^*       Required to the extent that a party other than the Asset Representations Reviewer is identified by the Depositor as needing access to the Secure Data Room.

Exhibit QQ-2

EXHIBIT RR

FORM OF NOTICE OF [ADDITIONAL DELINQUENT LOAN][CESSATION OF DELINQUENT LOAN][CESSATION OF ASSET REVIEW TRIGGER]

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention:  BANK 2021-BNK36 Asset Manager Email:  commercial.servicing@wellsfargo.com	Pentalpha Surveillance LLC 375 N. French Road, Suite 100 Amherst, New York 14228 Attention: BANK 2021-BNK36 Transaction Manager, with a copy sent via email to: notices@pentalphasurveillance.com with BANK 2021-BNK36 in the subject line
Rialto Capital Advisors, LLC 200 S. Biscayne Blvd, Suite 3550 Miami, Florida 33131 Attention: Liat Heller, Jeff Krasnoff, Niral Shah, Adam Singer (BANK 2021-BNK36) Facsimile number: (305) 229-6425 E-mail: liat.heller@rialtocapital.com, jeff.krasnoff@rialtocapital.com, niral.shah@rialtocapital.com, adam.singer@rialtocapital.com
National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number: (703) 647-3473 Email: kluzik@ncb.coop

Attention: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with Section 12.01(a) of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations

Exhibit RR-1

Reviewer, the Certificate Administrator hereby notifies you that as of [RELATED DISTRIBUTION DATE]:

1. _____ An additional Mortgage Loan has become a Delinquent Loan.

2. _____ A Mortgage Loan has ceased to be a Delinquent Loan.

3. _____ An Asset Review Trigger has ceased to exist.

(check all that apply)

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

Wells Fargo Bank, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36
By:
	[Name]
	[Title]

Exhibit RR-2

EXHIBIT SS

FORM OF INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT FOR NCB CO-OP MORTGAGE LOANS

THIS INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT (this “Agreement”) made as of this __ day of ____, 20__ between [_______], a [___________] having an office at [__________] in its capacity as senior lender (“Lender”), and [_________], a [_________] having an office at [__________] in its capacity as subordinated lender (“Subordinated Lender”).

W I T N E S S E T H:

WHEREAS, Lender is the holder of a certain loan (the “Loan”) to [_________] (“Borrower”) dated the date hereof in the amount of [_________] and 00/100 ($__________) Dollars, which Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded;

WHEREAS, Subordinated Lender is the holder of a certain loan (the “Subordinated Loan”) dated the date hereof to Borrower in the amount of [_________] and 00/100 ($_________) Dollars, which Subordinated Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded; and

WHEREAS, Lender and Subordinated Lender desire to enter into this Agreement for the purpose of establishing the priorities of their respective interests in the Project, and for the purpose of setting forth certain other agreements between them with respect to their agreements with Borrower;

NOW, THEREFORE, in consideration of the premises, the payment of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Subordinated Lender agree as follows:

Defined Terms. As used in this Agreement, the following terms shall have the meanings hereinafter set forth, unless the context shall otherwise require:

“Affiliate” – Shall mean, as to any particular Person, any Person directly or indirectly, through one or more intermediaries, controlling, Controlled by or under common control with the Person or Persons in question.

“Control” – Shall mean, (i) the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of such Person (or, with respect to the Transfer prohibition set forth in Section 9(e) hereof, the ownership, directly or indirectly, in the aggregate of more than twenty five percent (25%) of the beneficial ownership interests of such Person) or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to

Exhibit TT-1

exercise voting power, by contract or otherwise. “Controlled by,” “controlling” and “under common control with” shall have the respective correlative meaning thereto.

“Certificates” – Shall mean any securities (including all classes thereof) representing beneficial ownership interests in the Loan or in a pool of mortgage loans including the Loan issued in connection with a securitization of the Loan.

“Crowdfunded Person” means a Person that is capitalized with debt and/or equity financing and/or raising monetary or other capital contributions from a number of persons or entities through the practice of syndication, advertising or general or broad solicitation, including, without limitation, (i) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (ii) via primarily internet-mediated registries, platforms, portals, mail-order subscriptions, benefit events and/or other similar methods.

“EB-5 Lender” means any Person that directly or indirectly used funds invested by an EB-5 Person through a program soliciting the issuance of visas for immigrant investors as a source for the making, acquisition, or funding of the Subordinated Loan.

“EB-5 Person” means a Person investing through a program soliciting the issuance of visas for immigrant investors, including through the Immigrant Investor Program established by the Immigration Act of 1990 (8 U.S.C. 1153(b)(5)), as amended from time to time, and the rules and regulations promulgated thereunder.

“Eligibility Requirements” – Shall mean, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $200,000,000.00 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of $60,000,000.00 and (ii) is regularly engaged in the business of making or owning commercial or multi-family real estate loans or operating commercial or multi-family mortgage properties.

“Event of Default” – Shall mean (i) with respect to the Loan and the Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period, and (ii) with respect to the Subordinated Loan and the Subordinated Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period.

“Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a first lien upon the Project and any other documents evidencing and securing the Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

“Permitted Fund Manager” – Shall mean any Person that on the date of determination is (i) a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a Proceeding.

Exhibit TT-2

“Person” – Shall mean any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint stock company, bank, trust, estate unincorporated organization, any federal, state, county or municipal government (or any agency or political subdivision thereof) endowment fund or any other form of entity.

“Proceeding” – Shall mean the commencement, whether voluntary or involuntary, of any case, proceeding or other action against Borrower under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors.

“Prohibited Entity” means any Person that (i) is a statutory trust or similar Person, (ii) owns a direct or indirect interest in the Subordinated Loan, Borrower or the Project through a tenancy-in-common or other similar form of ownership interest, (iii) is an EB-5 Lender and/or (iv) is itself a Crowdfunded Person, is under the direct or managerial control of any Crowdfunded Person and/or is more than 49% owned, directly or indirectly, by one or more Crowdfunded Persons (provided, that, notwithstanding the foregoing, any Person otherwise constituting a Prohibited Entity shall not be deemed a Prohibited Entity hereunder to the extent a Rating Agency Confirmation has been obtained with respect to such Person).

“Prohibited Person” means any Person:

(i)         listed in the annex to, or who is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”);

(ii)        that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii)       with whom a Person is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order;

(iv)       who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(v)        that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or at any replacement website or other replacement official publication of such list; or

(vi)       who is an Affiliate of a Person listed in clauses (i) through (v) above.

“Project” – Shall mean that certain real property owned by Borrower described on Exhibit A attached hereto and the improvements located or to be located thereon.

Exhibit TT-3

“Protective Advance” – Shall mean all sums advanced for the purpose of payment of real estate taxes (including special payments in lieu of real estate taxes), maintenance costs, insurance premiums or other items (including capital items) reasonably necessary to protect the Project or any portion thereof (including, but limited to, all reasonable attorneys’ fees, costs relating to the entry upon the Project or any portion thereof to make repairs and the payment, purchase, contest or compromise of any encumbrance, charge or lien which in the judgment of Lender appears to be prior or superior to the Loan Documents).

“Qualified Transferee” – Shall mean (i) Subordinated Lender or an Affiliate of Subordinated Lender or (ii) one or more of the following:

(A)        a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such Person referred to in this clause (A) satisfies the Eligibility Requirements;

(B)         an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (B) satisfies the Eligibility Requirements;

(C)         an institution substantially similar to any of the foregoing entities described in clauses (ii)(A) or (ii)(B) that satisfies the Eligibility Requirements;

(D)         any entity controlled by any of the entities described in clause (i) or clauses (ii)(A) or (ii)(C) above;

(E)         a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“CDO”) secured by or financing through an “owner trust” of, the Subordinated Loan (collectively, “Securitization Vehicles”) so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition; provided that the operative documents of the related Securitization Vehicle require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any of the relevant trustee, special servicer, or manager fails to meet the requirements of this clause (E), such Person must be replaced by a Person meeting the requirements of this clause (E) within thirty (30) days; or

(F)         an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of this definition acts as the

Exhibit TT-4

general partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition.

Notwithstanding the foregoing, in no event shall a Prohibited Person or a Prohibited Entity be a Qualified Transferee.

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

“Rating Agencies” – Shall mean, prior to a securitization, each of DBRS Morningstar, Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc., and Fitch Ratings, Inc., or any other nationally-recognized statistical rating agency which has been designated by Lender and, after a securitization, shall mean any of the foregoing that have rated any of the Certificates.

“Rating Agency Confirmation” – Shall mean each of the Rating Agencies shall have confirmed in writing that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the Certificates then outstanding. In the event that no Certificates are outstanding or the Loan is not part of a securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of the Lender, which consent shall not be unreasonably withheld or delayed.

“Required Special Servicer Rating” – Shall mean (i) a rating of “CSS1” in the case of Fitch Ratings, (ii) on the S&P list of approved special servicers in the case of S&P, (iii) in the case of Moody’s, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities, and (iv) in the case of DBRS Morningstar, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by DBRS Morningstar within the twelve (12) month period prior to the date of determination and is not a special servicer that has been cited by DBRS Morningstar as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

Exhibit TT-5

“Subordinated Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a second lien upon the Project and any other documents evidencing and securing the Subordinated Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

“Transfer” – Shall mean any assignment, pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security interest, issuance of a participation interest, or other disposition, either directly or indirectly, by operation of law or otherwise.

1.          Approval of Loans and Loan Documents; Characterization of Subordinated Loan.

(a)        Subordinated Lender hereby acknowledges that (i) it has received and reviewed and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Loan Documents, (ii) the continued performance of the Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Subordinated Loan Documents, and (iii) any application or use of the proceeds of the Loan for purposes other than those provided in the Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Loan Documents.

(b)        Lender hereby acknowledges that (i) it has received and reviewed, and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the making of the Subordinated Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Subordinated Loan Documents, (ii) the execution, delivery and performance of the Subordinated Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Loan Documents, (iii) any application or use of the proceeds of the Subordinated Loan for purposes other than those provided in the Subordinated Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Subordinated Loan Documents.

2.           Representations and Warranties.

(a)         Subordinated Lender hereby represents and warrants as follows:

(i)          Subordinated Lender has heretofore provided Lender with true, complete and correct copies of the Subordinated Loan Documents. To Subordinated Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Subordinated Loan Documents.

(ii)         Subordinated Lender is the legal and beneficial owner of the entire Subordinated Loan free and clear of any lien, security interest, option or other charge or encumbrance.

Exhibit TT-6

(iii)        There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.

(iv)        Subordinated Lender has, independently and without reliance upon Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

(v)        Subordinated Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(vi)        All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Subordinated Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vii)      Subordinated Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Subordinated Lender enforceable against Subordinated Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws, and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(viii)     To Subordinated Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Subordinated Lender of this Agreement or consummation by Subordinated Lender of the transactions contemplated by this Agreement, other than those that have been obtained.

(ix)         None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Subordinated Lender, (b) to Subordinated Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Subordinated Lender is a party or to which any of its properties are subject, (c) to Subordinated Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Subordinated Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument, (d) violate any judgment, order, injunction, decree, or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Subordinated Lender has knowledge against, or binding upon, Subordinated Lender or upon any of the securities, properties, assets, or business of Subordinated Lender or (e) to Subordinated Lender’s knowledge, constitute a violation by Subordinated Lender of any statute, law or regulation that is applicable to Subordinated Lender.

Exhibit TT-7

(x)         The Subordinated Loan is not cross defaulted with any loan except the Loan.

(b)         Lender hereby represents and warrants as follows:

(i)          Lender has heretofore provided Subordinated Lender with true, complete and correct copies of the Loan Documents. To Lender’s actual knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Loan Documents.

(ii)         Lender is the legal and beneficial owner of the Loan free and clear of any lien, security interest, option or other charge or encumbrance.

(iii)       There are no conditions precedent to the effectiveness of this Agreement against Lender that have not been satisfied or waived.

(iv)       Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(v)        All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vi)       Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Lender enforceable against Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(vii)      To Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Lender of this Agreement or consummation by Lender of the transactions contemplated by this Agreement other than those that have been obtained.

(viii)     None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Lender, (b) to Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any material contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Lender is a party or to which any of its properties are subject, (c) to Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Lender pursuant to the terms of any such material contract, mortgage, lease, bond, indenture,

Exhibit TT-8

agreement, franchise or other instrument, (d) violate any judgment, order, injunction, decree or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Lender has knowledge against, or binding upon, Lender or upon any of the securities, properties, assets, or business of Lender or (e) to Lender’s knowledge, constitute a violation by Lender of any statute, law or regulation that is applicable to Lender.

(ix)        The Loan is not cross defaulted with any other loan, except for the Subordinated Loan.

3.          Subordination and Priority. Subordinated Lender hereby subordinates and makes junior the Subordinated Loan, the Subordinated Loan Documents (and any amendment, modification or extension thereof, and any future advance or increase respecting the Subordinated Loan, in each instance, whether or not made in violation of this Agreement), and the lien and security interests created thereby and all of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive any payment on account of the Subordinated Loan. All payments or distributions upon or with respect to the Subordinated Loan which are received by Subordinated Lender contrary to the provisions of this Agreement shall be received and held in trust by the Subordinated Lender for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Loan in accordance with the terms of the Loan Documents. Nothing contained herein shall prohibit the Subordinated Lender from making protective advances (and adding the amount thereof to the principal balance of the Subordinated Loan) notwithstanding the existence of a default under the Loan at such time.

4.          Modifications, Amendments, Etc.

(a)        Lender shall have the right without the consent of Subordinated Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Senior Loan Modification”) of the Loan or the Loan Documents provided that no such Senior Loan Modification shall

Exhibit TT-9

(i) increase the interest rate or principal amount of the Loan, (ii) increase in any other material respect any monetary obligations of Borrower under the Loan Documents, (iii) extend or shorten the scheduled maturity date of the Loan (except that Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Loan Documents), (iv) convert or exchange the Loan into or for any other indebtedness or subordinate any of the Loan to any indebtedness of Borrower, (v) amend or modify the provisions limiting transfers of interests in the Borrower or the Project, (vi) cross default the Loan with any other indebtedness, (vii) obtain any contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Project, (or other similar equity participation), or (viii) extend the period during which voluntary prepayments are prohibited or during which prepayments require the payment of a prepayment fee or premium or yield maintenance charge or increase the amount of any such prepayment fee, premium or yield maintenance charge; provided, however, in no event shall Lender be obligated to obtain Subordinated Lender’s consent to a Senior Loan Modification in the case of a work-out or other surrender, compromise, release, renewal, or indulgence relating to the Loan during the existence of an Event of Default (as defined in the Loan Documents) under the Loan, except that under no conditions shall clause (i) (with respect to increase principal amount only), or clause (viii) be modified without the written consent of Subordinated Lender. In addition and notwithstanding the foregoing provisions of this Section 2, any amounts funded by the Lender under the Loan Documents as a result of (A) the making of any protective advances or other advances by the Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 2.

(b)        Subordinated Lender shall have the right without the consent of Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Subordinated Loan Modification”) of the Subordinated Loan or the Subordinated Loan Documents provided that no such Subordinated Loan Modification shall (i) increase the interest rate or principal amount of the Subordinated Loan, (ii) increase in any other material respect any monetary obligations of under the Subordinated Loan Documents, (iii) extend or shorten the scheduled maturity date of the Subordinated Loan (except that Subordinated Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Subordinated Loan Documents), (iv) convert or exchange the Subordinated Loan into or for any other indebtedness or subordinate the Subordinated Loan to any indebtedness of Borrower, (v) provide for any additional contingent interest, additional interest or so called “kicker” measured on the basis of the cash flow or appreciation of the Project (or other similar equity participation), (vi) amend or modify the provisions of the Subordinated Loan Documents limiting transfers of direct or indirect interest in Borrower, (vii) modify or amend the terms and provision of any Subordinated Loan Document with respect to the manner, timing or method of the application of payments under the Subordinated Loan Documents, (vi) cross default the Subordinated Loan with any other indebtedness, or (vii) amend or modify the provisions limiting transfers of interests in the Borrower or the Project. Notwithstanding anything to the contrary contained herein, if an Event of Default exists under the Subordinated Loan Documents, Subordinated Lender shall be permitted to modify or amend the Subordinated Loan Documents in connection with a work out or other surrender, compromise, release, renewal or modification of the Subordinated Loan except that under no conditions shall clause (i), with respect to increases in principal amounts only, clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv) or

Exhibit TT-10

clause (v) be modified without the written consent of the Lender. In addition and notwithstanding the foregoing provisions of this Section 6(b), any amounts funded by the Subordinated Lender under the Subordinated Loan Documents as a result of (A) the making of any Protective Advances or other advances by the Subordinated Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 6(b).

(c)         Lender shall deliver to Subordinated Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Lender) within a reasonable time after any of such applicable instruments have been executed by Lender.

(d)        Subordinated Lender shall deliver to Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Subordinated Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Subordinated Lender) within a reasonable time after any of such applicable instruments have been executed by Subordinated Lender.

5.           Default Notice.

(a)         Subordinated Lender shall give Lender notice of any default under the Subordinated Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Subordinated Loan on account of such default. Lender may, but shall not be obligated to, cure any such default, in which event Subordinated Lender shall accept such cure by Lender as and for the cure by Borrower.

(b)        Lender shall give Subordinated Lender notice of any default under the Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Loan on account of such default. Subordinated Lender may, but shall not be obligated to, cure any such default within the time period afforded to the Borrower pursuant to the Loan Documents, in which event Lender shall accept such cure by Subordinated Lender as and for the cure by Borrower.

6.          Casualty and Condemnation. In the event of a casualty to the buildings or improvements constructed on any portion of the Project or a condemnation or taking under a power of eminent domain of all or any portion of the Project, Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the “Award”). Subordinated Lender acknowledges and agrees that so long as the Loan is outstanding, it has no lien on or security interest in any Award, nor any rights with respect to any Award except as expressly provided in this Agreement, and Subordinated Lender assigns its rights to any Award to Lender up to an amount equal to the then outstanding amount of the Loan. Subordinated Lender agrees to promptly, upon request by Lender, execute and deliver to Lender and/or to any other party as so directed by Lender, a written confirmation of the terms set forth in the immediately preceding sentence and take sure other actions reasonably requested by Lender to further evidence the foregoing agreement (although failure of

Exhibit TT-11

Subordinated Lender to do so shall not affect the foregoing agreement). If the amount of the Award is in excess of all amounts owed to Lender under the Loan Documents, however, and either the Loan has been paid in full or Borrower is entitled to a remittance of same under the Loan Documents other than to restore the Project, such excess Award or portion to be so remitted to Borrower shall, to the extent permitted in the Loan Documents and required by the Subordinated Loan Documents, be paid to or at the direction of Subordinated Lender, unless other Persons have claimed the right to such awards or proceeds, in which case Lender shall only be required to provide notice to Subordinated Lender of such excess Award and of any other claims thereto. In the event of any competing claims for any such excess Award, Lender shall continue to hold such excess Award until Lender receives an agreement signed by all Persons making a claim to the excess Award or a final order of a court of competent jurisdiction directing Lender as to how and to which Person(s) the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Lender shall release the Award from any such event to the Borrower if and to the extent required by the terms and conditions of the Loan Documents in order to repair and restore the Project in accordance with the terms and provisions of the Loan Documents. Any portion of the Award made available to the Borrower for the repair or restoration of the Project shall not be subject to attachment by Subordinated Lender.

7.          Foreclosure of the Subordinated Mortgage: Subordinated Lender expressly agrees that, for so long as a Loan shall remain outstanding, (A) due notice of the commencement of any foreclosure of the Subordinated Loan Documents shall be given to Lender, and true copies of all papers served or entered in such action will be delivered to Lender, (B) no portion of the rents, issues and profits of the Project shall be collected in connection with the foreclosure of the Subordinated Loan Documents except through a receiver appointed by the court in which such foreclosure action is brought, after due notice for the appointment of such receiver shall have been given to Lender, (C) the rents, issues and profits collected by any such receiver shall be applied first to the payment of taxes, maintenance and operating charges and disbursements incurred in connection with the operation and maintenance of the Project and next to the payment of principal and interest (including, without limitation, default interest and late payment charges) due under the Loan Documents, and (D) if during the pendency of any such foreclosure action an action shall be brought for the foreclosure of the Loan Documents and an application shall be made for an extension of the receivership for the benefit of Lender, all such rents, issues and profits held by such receiver as of the date of such application shall be applied by the receiver solely for the benefit of Lender, and the Subordinated Lender shall not be entitled to any portion thereof until Lender has received all amounts then due to it. Without limiting the generality of the foregoing, Subordinated Lender consents to, and shall not object to, any action or proceeding at any time initiated by Lender for the appointment of a receiver and Subordinated Lender further agrees that it shall not institute any action or proceeding for the appointment of a receiver at any time during which a receiver shall have already been appointed for the benefit of Lender, and if Subordinated Lender shall have appointed or caused the appointment of a receiver prior to Lender’s initiation of proceedings to do so, Subordinated Lender agrees to take all action reasonably necessary to terminate such appointment in order to facilitate Lender’s appointment of same.

8.           Rights of Subrogation. No payment or distribution to Lender pursuant to the provisions of this Agreement and no Protective Advance by Subordinated Lender shall entitle

Exhibit TT-12

Subordinated Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the Loan, and Subordinated Lender agrees that, except with respect to the enforcement of its remedies under the Subordinated Loan Documents permitted hereunder, prior to the satisfaction of all obligations under the Loan it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Project or any other collateral now securing the Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Loan Documents or the liens, rights, estates and interests created thereby.

9.           Transfer of Subordinated Loan or Loan. Subordinated Lender shall not Transfer more than 49% of its beneficial interest in the Subordinated Loan unless either (i) a Rating Agency Confirmation has been given with respect to such Transfer, in which case the related transferee shall thereafter be deemed to be a “Qualified Transferee” for all purposes of this Agreement, or (ii) such Transfer is to a Qualified Transferee. Any such transferee must assume in writing the obligations of Subordinated Lender hereunder and agree to be bound by the terms and provisions hereof. Such proposed transferee shall also remake each of the representations and warranties contained herein for the benefit of the Lender.

At least five (5) days prior to a transfer to a Qualified Transferee, the Subordinated Lender shall provide to Lender a certification that such transfer will be made in accordance with this Section 9, such certification to include the name and contact information of the Qualified Transferee, and a statement as to how it meets the definition of Qualified Transferee.

Subordinated Lender acknowledges that any Rating Agency Confirmation may be granted or denied by the Rating Agencies in their sole and absolute discretion and that such Rating Agencies may charge customary fees in connection with any such action, which fee, together with any and all other reasonable costs and expenses of Rating Agencies or Lender incurred in connection with the processing of same, including, without limitation, reasonable attorneys’ fees and costs, shall be paid by Subordinated Lender.

Lender may, from time to time, in its sole discretion Transfer all or any of the Loan or any interest therein, and notwithstanding any such Transfer or subsequent Transfer, the Loan and the Loan Documents shall be and remain a senior obligation in the respects set forth in this Agreement to the Subordinated Loan and the Subordinated Loan Documents in accordance with the terms and provisions of this Agreement.

Notwithstanding anything contained in this Agreement, Subordinated Lender agrees that it shall in no event Transfer all or any part of the Subordinated Loan to Borrower or to any Person which is an Affiliate of Borrower and any such Transfer shall be void ab initio.

10.         Notices. All notices required to be given hereunder shall be sent by first class, certified or registered mail, postage prepaid, return receipt requested, or delivered by hand, to either party at such party’s address first set forth above. Notices shall be deemed to have been given when received. Either party may change its address for notices hereunder by written notice to the other party.

Exhibit TT-13

11.        Obligations Hereunder Not Affected. All rights, interests, agreements and obligations of Lender and Subordinated Lender under this Agreement shall remain in full force and effect irrespective of:

(i)         any lack of validity or enforceability of the Loan Documents or the Subordinated Loan Documents or any other agreement or instrument relating thereto;

(ii)        any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from any guaranty, for all or any portion of the Loan or the Subordinated Loan;

(iii)       any manner of application of collateral, or proceeds thereof, to all or any portion of the Loan or the Subordinated Loan, or any manner of sale or other disposition of any collateral for all or any portion of the Loan or the Subordinated Loan or any other assets of Borrower or any other Affiliates of Borrower;

(iv)       any change, restructuring or termination of the corporate structure or existence of Borrower or any other Affiliates of Borrower; or

(v)        any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower or a subordinated creditor or a Lender subject to the terms hereof.

12.        Continued Effectiveness; Reinstatement. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Loan is rescinded or must otherwise be returned by Lender or Subordinated Lender upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.

13.        Estoppel.

(a).       Subordinated Lender shall, within ten (10) days following a request from Lender, provide Lender with a written statement setting forth the then current outstanding principal balance of the Subordinated Loan, the aggregate accrued and unpaid interest under the Subordinated Loan, and stating whether to Subordinated Lender’s knowledge any default or Event of Default exists under the Subordinated Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Lender and by any prospective purchaser of all or any interest in the Loan.

(b).       Lender shall, within ten (10) days following a request from Subordinated Lender, provide Subordinated Lender with a written statement setting forth the then current outstanding principal balance of the Loan, the aggregate accrued and unpaid interest under the Loan, and stating whether to Lender’s knowledge any default or Event of Default exists under the Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Subordinated Lender and by any prospective purchaser of all or any interest in the Subordinated Loan.

Exhibit TT-14

14.        No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, or any other Person other than the respective successors and permitted assignees of the parties hereto. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought.

15.        Counterpart Originals. This Agreement may be executed in counterpart originals, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.

16.        No Waiver; Remedies. No failure on the part of Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

17.        No Joint Venture. Nothing provided herein is intended to create a joint venture, partnership, tenancy in common or joint tenancy relationship between or among any of the parties hereto.

18.        Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

19.        Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Loan Documents or the Subordinated Loan Documents, the terms and conditions of this Agreement shall control.

20.        No Release. Nothing herein contained shall operate to release Borrower from (a) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Loan Documents or (b) any liability of Borrower under the Loan Documents or to release Borrower from (x) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Subordinated Loan Documents or (y) any liability of Borrower under the Subordinated Loan Documents.

21.        Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.

22.        Expenses.

(a)        Subordinated Lender agrees upon demand to pay to Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and

Exhibit TT-15

expenses of its counsel and of any experts or agents, which Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Lender against Subordinated Lender hereunder to the extent that Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Subordinated Lender to perform or observe any of the provisions hereof.

(b)        Lender agrees upon demand to pay to Subordinated Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Subordinated Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Subordinated Lender against Lender hereunder to the extent that Subordinated Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Lender to perform or observe any of the provisions hereof.

23.        Injunction. Lender and Subordinated Lender each acknowledge (and waive any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by either Lender or Subordinated Lender hereunder would cause irreparable harm to the other. Accordingly, Lender and Subordinated Lender agree that upon a breach of this Agreement by the other, the remedies of injunction, declaratory judgment and specific performance shall be available to such non breaching party.

24.        Each of Lender and Subordinated Lender acknowledges that the Loan, the Loan Documents, the Subordinated Loan and the Subordinated Loan Documents are distinct, separate transactions and loans, separate and apart from each other. Each of Lender and Subordinated Lender agrees that the other shall be treated as a separate lender with a distinct and separate loan.

25.       Waiver of Jury Trial. LENDER AND SUBORDINATED LENDER EACH EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY AND EVERY RIGHT IT MAY HAVE TO A TRIAL BY JURY.

26.        Successors and Assigns. This Agreement shall be binding upon and benefit both Lender and Subordinated Lender and their respective permitted successors and assigns. Lender shall have the right to record this Agreement.

27.        Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the State of New York.

28.        Amendments. No provision of this Agreement shall be waived, amended or supplemented except by written agreement of the party charges with such waiver, amendment or supplement.

29.        Continuing Agreement. This Agreement is a continuing agreement and shall remain in full force and effect until the earlier of (a) payment in full of the Loan, (b) transfer of the Project by foreclosure of the Loan Documents or the exercise of the power of sale

Exhibit TT-16

contained therein or by deed-in-lieu of foreclosure, (c) transfer of the Project by foreclosure of the Subordinated Loan Documents or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, or (d) payment in full of the Subordinated Loan; provided, however, any rights or remedies of either party hereto arising out of any breach of any provision herein occurring prior to such date of termination shall survive such termination.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

LENDER:

[__________]

By:

SUBORDINATED LENDER:

[__________]

By:

Exhibit TT-17

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the __ day of ________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual

taking acknowledgment

STATE OF NEW YORK	)
	)	ss.:
COUNTY OF NEW YORK	)

On the ___ day of _________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual

taking acknowledgment

Exhibit TT-18

Exhibit TT

FORM OF EXCHANGE LETTER

[Certificateholder’s letterhead]

[Date]

Wells Fargo Bank, National Association,
as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK36
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with Section 5.11(d) of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), between Banc of America Merrill Lynch Commercial Mortgage Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, Rialto Capital Advisors, LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and NCB Special Servicer, Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Pentalpha Surveillance LLC, as Operating Advisor and as Asset Representations Reviewer, we hereby (i) certify that as of the above date, the undersigned is the beneficial owner of the Exchangeable Certificate set forth below under “Exchangeable Certificates to be Surrendered”, is duly authorized to deliver this notice to the Certificate Administrator and that such power has not been granted or assigned to any other Person and the Certificate Administrator may conclusively rely upon this notice and (ii) give notice of our intent to present and surrender the Exchangeable Certificates set forth below under “Exchangeable Certificates to be Surrendered” and all of our right, title and interest in and to such Exchangeable Certificates, including all payments of interest thereon received after [_____________], in exchange for the corresponding Exchangeable Certificates set forth below under “Exchangeable Certificates to be Received”. We propose an Exchange Date of [______].

We agree that upon such exchange, our interests in the portion(s) of the Exchangeable Certificates surrendered in exchange shall be reduced and our interest in the portion(s) of the Exchangeable Certificates received in such exchange shall be increased.

	Exchangeable Certificates to be Surrendered	Exchangeable Certificates to be Received
Class(es)	[_]	[_]

Exhibit TT-19

CUSIP(s)	[_]	[_]
Original Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]
Outstanding Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]

Exhibit TT-20

Our Depository participant number is [________].

Sincerely,

By:

Name:

Title:

[Medallion Stamp Guarantee]

Exhibit TT-21

Exhibit UU

FORM OF CERTIFICATE ADMINISTRATOR RECEIPT OF THE RR INTEREST

[Date]

Banc of America Merrill Lynch Commercial Mortgage Inc.

One Bryant Park

New York, New York 10036

Attention: Leland F. Bunch, III

Bank of America, National Association

   as Retaining Sponsor

One Bryant Park

New York, New York 10036

Wells Fargo Bank, National Association

301 South College St. 

Charlotte, North Carolina 28288

Morgan Stanley Bank, N.A.

1585 Broadway

New York, New York 10036

Re: BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36

In accordance with Section 5.02 of the Pooling and Servicing Agreement, dated as of October 1, 2021 (the “Pooling and Servicing Agreement”), the Certificate Administrator hereby acknowledges receipt and possession of and further agrees that it will hereafter hold in the Retained Interest Safekeeping Account $[_____] of the RR Interest in the form of a [144A Global Certificate][Definitive Certificate] (CUSIP No. [_]), which constitute the RR Interest as defined in the Pooling and Servicing Agreement, for the benefit of Bank of America, National Association, Wells Fargo Bank, National Association and Morgan Stanley Bank, N.A. each an initial Holder of the RR Interest, as the registered holders thereof. A copy of such RR Interest is attached as Exhibit A-1. Payments on the RR Interest will be made to each registered holder thereof in accordance with the Pooling and Servicing Agreement.

Exhibit UU-1

Capitalized terms used but not defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.

Wells Fargo Bank, National Association, as Certificate Administrator for the Holders of the BANK 2021-BNK36, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK36
By:
	[Name]
	[Title]

Exhibit UU-2

EXHIBIT A-1

Exhibit UU-3

SCHEDULE 1

Mortgage Loans with Additional Debt

1. One North Wacker

2. Arizona Mills

3. Suarez Puerto Rico Industrial Portfolio

4. Raymour & Flanigan Campus

5. Newport Pavilion

6. Metro Crossing

7. McDonald’s Global HQ

8. Velocity Industrial Portfolio

9. 2400 Johnson Avenue Owners, Inc.

10. Fairfield Commons Owners Corp.

11. 415 East 80th Street Housing Corporation

12. Waldo Gardens, Inc.

13. The Renee Owners Inc. a/k/a The Renee Owners, Inc.

14. Hudson House Tenants Corporation

15. 60 West Broad Street, Inc.

16. 12 West 17th St. Tenants’ Corp.

17. Oakhurst Gardens Corp.

18. Archer Cooperative, Inc.

19. 111-127 Cabrini Apartments Corp.

20. 94-102 Hamilton Place Housing Development Fund Corporation

21. 250 North Village Owners, Inc.

22. Garden Lofts Corp.

23. NW-Mad 95 Owners Corp. a/k/a N W Mad-95 Owners Corp.

Schedule 1-1

24. Crescent Tenants Corp.

25. Jackson Manor Inc.

26. Midland Manor Owners Corp.

27. 35 East Tenants Corp.

28. Hudson Park Co-operative Apts., Inc., a/k/a Hudson Park Cooperative Apts., Inc.

29. Greene Street Associates, Inc. A/K/A Greenestreet Associates, Inc.

30. 25 Indian Road Owners Corp.

31. Village Gardens Tenants Corp.

32. 482 East 74th Street Apartment Corp.

Schedule 1-2

SCHEDULE 2

CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE

Distribution Date	Class A-SB Planned Principal Balance ($)
November 2021	$27,535,000.00
December 2021	$27,535,000.00
January 2022	$27,535,000.00
February 2022	$27,535,000.00
March 2022	$27,535,000.00
April 2022	$27,535,000.00
May 2022	$27,535,000.00
June 2022	$27,535,000.00
July 2022	$27,535,000.00
August 2022	$27,535,000.00
September 2022	$27,535,000.00
October 2022	$27,535,000.00
November 2022	$27,535,000.00
December 2022	$27,535,000.00
January 2023	$27,535,000.00
February 2023	$27,535,000.00
March 2023	$27,535,000.00
April 2023	$27,535,000.00
May 2023	$27,535,000.00
June 2023	$27,535,000.00
July 2023	$27,535,000.00
August 2023	$27,535,000.00
September 2023	$27,535,000.00
October 2023	$27,535,000.00
November 2023	$27,535,000.00
December 2023	$27,535,000.00
January 2024	$27,535,000.00
February 2024	$27,535,000.00
March 2024	$27,535,000.00
April 2024	$27,535,000.00
May 2024	$27,535,000.00
June 2024	$27,535,000.00
July 2024	$27,535,000.00
August 2024	$27,535,000.00
September 2024	$27,535,000.00
October 2024	$27,535,000.00
November 2024	$27,535,000.00
December 2024	$27,535,000.00
January 2025	$27,535,000.00
February 2025	$27,535,000.00
March 2025	$27,535,000.00
April 2025	$27,535,000.00
May 2025	$27,535,000.00
June 2025	$27,535,000.00
July 2025	$27,535,000.00
August 2025	$27,535,000.00
September 2025	$27,535,000.00
October 2025	$27,535,000.00
November 2025	$27,535,000.00
December 2025	$27,535,000.00
January 2026	$27,535,000.00
February 2026	$27,535,000.00
March 2026	$27,535,000.00
April 2026	$27,535,000.00
May 2026	$27,535,000.00

Distribution Date	Class A-SB Planned Principal Balance ($)
June 2026	$27,535,000.00
July 2026	$27,535,000.00
August 2026	$27,535,000.00
September 2026	$27,535,000.00
October 2026	$27,534,288.56
November 2026	$27,023,138.46
December 2026	$26,485,661.22
January 2027	$25,971,511.32
February 2027	$25,455,891.33
March 2027	$24,864,633.61
April 2027	$24,345,843.65
May 2027	$23,800,951.60
June 2027	$23,279,118.28
July 2027	$22,731,272.53
August 2027	$22,206,378.51
September 2027	$21,679,983.34
October 2027	$21,127,710.12
November 2027	$20,598,228.25
December 2027	$20,042,959.27
January 2028	$19,510,373.12
February 2028	$18,976,263.56
March 2028	$18,392,380.24
April 2028	$17,855,069.40
May 2028	$17,292,202.07
June 2028	$16,751,742.31
July 2028	$16,185,818.83
August 2028	$15,642,192.20
September 2028	$15,097,010.24
October 2028	$14,526,503.66
November 2028	$13,978,127.89
December 2028	$13,404,521.60
January 2029	$12,852,933.84
February 2029	$12,299,767.70
March 2029	$11,674,499.21
April 2029	$11,117,956.07
May 2029	$10,536,422.99
June 2029	$9,976,621.26
July 2029	$9,391,925.57
August 2029	$8,828,846.67
September 2029	$8,264,156.13
October 2029	$7,674,715.65
November 2029	$7,106,720.06
December 2029	$6,514,071.88
January 2030	$5,942,752.39
February 2030	$5,369,797.40
March 2030	$4,726,603.36
April 2030	$4,150,162.20
May 2030	$3,549,317.21
June 2030	$2,969,503.95
July 2030	$2,365,386.20
August 2030	$1,782,181.60
September 2030	$1,197,307.09
October 2030	$588,277.17
November 2030 and thereafter	$0.00

Schedule 2-1

SCHEDULE 3

Mortgage Loans (OTHER THAN NCB CO-OP MORTGAGE LOANS) With Escrows or Reserves EXCEEDING 10% OF THE INITIAL PRINCIPAL BALANCE OF THE MORTGAGE LOAN OR (IF APPLICABLE) WHOLE LOAN

Mortgage Loan Number	Mortgage Loan Name	Reserve Description	Applicable Escrow or Reserve (Initial Amount)
58	Monte Cristo Adult Community	Performance Holdback	$585,000

Schedule 3-1

EX-4.3

Exhibit 4.3

EXECUTION VERSION

MORGAN STANLEY CAPITAL I INC.,

as Depositor,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Servicer and Special Servicer,

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Certificate Administrator and Custodian,

TRUST AND SERVICING AGREEMENT

Dated as of November 1, 2021

Morgan Stanley Capital I Trust 2021-PLZA
Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

TABLE OF CONTENTS

Page

1.	DEFINITIONS		10
	1.1.	Definitions	10
	1.2.	Interpretation	68
	1.3.	Certain Calculations in Respect of the Mortgage Loan	68
2.	DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES		72
	2.1.	Creation and Declaration of Trust; Conveyance of the Mortgage Loan	72
	2.2.	Acceptance by the Trustee and Custodian	77
	2.3.	Representations and Warranties of the Trustee	77
	2.4.	Representations and Warranties of the Certificate Administrator	79
	2.5.	[Reserved]	80
	2.6.	Representations and Warranties of the Servicer and Special Servicer	80
	2.7.	[Reserved]	81
	2.8.	Representations and Warranties of the Depositor	81
	2.9.	Representations and Warranties Contained in the Mortgage Loan Purchase Agreement	83
	2.10.	Issuance of Uncertificated Lower-Tier Interests; Execution and Delivery of Certificates	86
	2.11.	Miscellaneous REMIC Provisions	86
3.	ADMINISTRATION AND SERVICING OF THE MORTGAGE LOAN		87
	3.1.	Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer	87
	3.2.	Sub-Servicing Agreements	89
	3.3.	Cash Collateral Account	90
	3.4.	Collection Account	91
	3.5.	Distribution Account	96
	3.6.	Foreclosed Property Account	97
	3.7.	Appraisal Reductions	98
	3.8.	Investment of Funds in the Collection Account and Any Foreclosed Property Account	100
	3.9.	Payment of Taxes, Assessments, etc.	102
	3.10.	Appointment of Special Servicer	102
	3.11.	Maintenance of Insurance and Errors and Omissions and Fidelity Coverage	108
	3.12.	Procedures with Respect to Mortgage Loan; Realization upon the Property	111
	3.13.	Custodian and Trustee to Cooperate; Release of Items in the Mortgage File	114
	3.14.	Title and Management of Foreclosed Property	115

-i-

	3.15.	Sale of Foreclosed Property	117
	3.16.	Sale of the Mortgage Loan and the Companion Loans	119
	3.17.	Servicing Compensation	122
	3.18.	Reports to the Certificate Administrator; Account Statements	125
	3.19.	Certain Matters Relating to the Intercreditor Agreement	126
	3.20.	[Reserved]	127
	3.21.	Access to Certain Documentation Regarding the Mortgage Loan and Other Information	127
	3.22.	Inspections	128
	3.23.	Advances	128
	3.24.	Modifications of Loan Documents	135
	3.25.	Servicer and Special Servicer May Own Certificates	139
	3.26.	Rating Agency Confirmations; Companion Loan Rating Agency Confirmations	139
	3.27.	Other Asset Representations Reviewer	141
4.	PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS		142
	4.1.	Distributions	142
	4.2.	Withholding Tax	146
	4.3.	Allocation and Distribution of Yield Maintenance Premiums	146
	4.4.	Statements to Certificateholders	147
	4.5.	Investor Q&A Forum and Investor Registry	151
5.	THE CERTIFICATES		153
	5.1.	The Certificates	153
	5.2.	Form and Registration	154
	5.3.	Registration of Transfer and Exchange of Certificates	156
	5.4.	Mutilated, Destroyed, Lost or Stolen Certificates	163
	5.5.	Persons Deemed Owners	164
	5.6.	Access to List of Certificateholders’ Names and Addresses; Special Notices	164
	5.7.	Maintenance of Office or Agency	165
6.	THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER		165
	6.1.	Respective Liabilities of the Depositor, the Servicer and the Special Servicer	165
	6.2.	Merger or Consolidation of the Servicer or the Special Servicer	165
	6.3.	Limitation on Liability of the Depositor, the Servicer, the Special Servicer and Others	165
	6.4.	Servicer and Special Servicer Not to Resign	167
	6.5.	Indemnification by the Servicer, the Special Servicer and the Depositor	168

-ii-

7.	SERVICER TERMINATION EVENTS; SPECIAL SERVICER TERMINATION EVENTS; TERMINATION OF SPECIAL SERVICER WITHOUT CAUSE		168
	7.1.	Servicer Termination Events; Special Servicer Termination Events	168
	7.2.	Trustee to Act; Appointment of Successor	176
	7.3.	Notification to Certificateholders, the Depositor and the Rating Agencies	178
	7.4.	Other Remedies of Trustee	178
	7.5.	Waiver of Past Servicer Termination Events and Special Servicer Termination Events	179
	7.6.	Trustee as Maker of Advances	179
8.	THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR		180
	8.1.	Duties of the Trustee, the Custodian and the Certificate Administrator	180
	8.2.	Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator	182
	8.3.	None of the Trustee, the Custodian or the Certificate Administrator is Liable for Certificates or the Mortgage Loan	185
	8.4.	Trustee, Custodian and Certificate Administrator May Own Certificates	187
	8.5.	Trustee’s, Custodian’s and Certificate Administrator’s Fees and Expenses	187
	8.6.	Eligibility Requirements for the Trustee, the Custodian and the Certificate Administrator; Errors and Omissions Insurance	188
	8.7.	Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator	189
	8.8.	Successor Trustee, Successor Custodian or Successor Certificate Administrator	191
	8.9.	Merger or Consolidation of the Trustee, the Custodian or the Certificate Administrator	191
	8.10.	Appointment of Co-Trustee or Separate Trustee	192
	8.11.	Appointment of Authenticating Agent	193
	8.12.	Indemnification by Trustee, Custodian and the Certificate Administrator	194
	8.13.	Certificate Administrator and Servicer Not Responsible for Inconsistent Payment Information	194
	8.14.	Access to Certain Information	195
9.	Certain matters relating to the controlling class representative AND THE RISK RETENTION CONSULTATION PARTY		199
	9.1.	Selection and Removal of the Controlling Class Representative	199
	9.2.	Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders	201
	9.3.	Rights and Powers of the Controlling Class Representative	202
	9.4.	Controlling Class Representative Contact with Servicer and Special Servicer	204
	9.5.	The Risk Retention Consultation Party	205

-iii-

10.	EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE		206
	10.1.	Intent of the Parties; Reasonableness	206
	10.2.	Information to be Provided by the Servicer, the Special Servicer, any Primary Servicer and the Certificate Administrator	207
	10.3.	Filing Obligations	209
	10.4.	Form 10-D Disclosure	209
	10.5.	Form 10-K Disclosure	210
	10.6.	Sarbanes-Oxley Certification	210
	10.7.	Form 8-K Disclosure	211
	10.8.	Annual Compliance Statements	211
	10.9.	Annual Reports on Assessment of Compliance with Servicing Criteria	212
	10.10.	Annual Independent Public Accountants’ Servicing Report	214
	10.11.	Indemnification	215
	10.12.	Amendments	218
	10.13.	Significant Obligors	218
	10.14.	Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan	219
11.	Termination		220
	11.1.	Termination	220
	11.2.	Additional Termination Requirements	221
	11.3.	Trusts Irrevocable	222
12.	MISCELLANEOUS PROVISIONS		222
	12.1.	Amendment	222
	12.2.	Recordation of Agreement; Counterparts	226
	12.3.	Governing Law; Submission to Jurisdiction	226
	12.4.	Waiver of Jury Trial	226
	12.5.	Notices	227
	12.6.	Notices to the Rating Agencies	231
	12.7.	Severability of Provisions	231
	12.7.	Limitation on Rights of Certificateholders	231
	12.8.	Certificates Nonassessable and Fully Paid	232
	12.9.	Reproduction of Documents	232
	12.10.	No Partnership	232
	12.11.	Actions of Certificateholders	232
	12.12.	Successors and Assigns	233
	12.13.	Acceptance by Authenticating Agent, Certificate Registrar	233
	12.14.	Streit Act	234
	12.15.	Assumption by Trust of Duties and Obligations of the Mortgage Loan Seller Under the Loan Documents	234
	12.16.	Notice to the 17g-5 Information Provider and Each Rating Agency	234
	12.17.	Exchange Act Rule 17g-5 Procedures	235
	12.18.	Wells Fargo Bank	240

-iv-

13.	REMIC ADMINISTRATION		240
	13.1.	REMIC Administration	240
	13.2.	Foreclosed Property	244
	13.3.	Prohibited Transactions and Activities	246
	13.4.	Indemnification with Respect to Certain Taxes and Loss of REMIC Status	246

EXHIBITS

Exhibit A-1	Form of Class A Certificates
Exhibit A-2	Form of Class X Certificates
Exhibit A-3	Form of Class B Certificates
Exhibit A-4	Form of Class C Certificates
Exhibit A-5	Form of Class R Certificates
Exhibit A-6	Form of RR Interest
Exhibit B	Form of Request for Release
Exhibit C	Form of Transfer Certificate for Rule 144A Global Certificate to Temporary Regulation S Global Certificate
Exhibit D	Form of Transfer Certificate for Rule 144A Global Certificate to Regulation S Global Certificate
Exhibit E	Form of Transfer Certificate for Temporary Regulation S Global Certificate to Rule 144A Global Certificate during Restricted Period
Exhibit F	Form of Certification to be given by Beneficial Owner of Temporary Regulation S Global Certificate
Exhibit G	Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Global Certificate
Exhibit H	Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Global Certificate
Exhibit I	Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Global Certificate
Exhibit J-1	Form of Affidavit Pursuant to Section 860E(e) of the Internal Revenue Code of 1986
Exhibit J-2	Form of Transferor Letter
Exhibit J-3	Form of Transferee Certificate for Transfers of RR Interest
Exhibit J-4	Form of Transferor Certificate for Transfers of RR Interest
Exhibit J-5	Form of ERISA Representation Letter
Exhibit K-1	Form of Investor Certification

-v-

Exhibit K-2	Form of Investor Certification For Borrower, any Borrower Parties, Guarantor, Sponsor and Property Manager (and their respective Affiliates)
Exhibit K-3	Form of Certification of the Controlling Class Representative
Exhibit K-4	Form of Certification of the Risk Retention Consultation Party
Exhibit K-5	Form of Financial Market Publisher Certification
Exhibit L	Applicable Servicing Criteria
Exhibit M	Form of NRSRO Certification
Exhibit N	Form of Power of Attorney
Exhibit O	Additional Form 10-D Disclosure
Exhibit P	Additional Form 10-K Disclosure
Exhibit Q	Form 8-K Disclosure Information
Exhibit R	Additional Disclosure Notification
Exhibit S	Reporting Servicer Form of Performance Certification
Exhibit T-1	[Reserved]
Exhibit T-2	[Reserved]
Exhibit U-1	Form of Closing Date Custodian Report
Exhibit U-2	Form of Initial Custodian Report
Exhibit U-3	Form of Final Custodian Report
Exhibit V	Form of Certificate Administrator Receipt of the RR Interest
Exhibit W	Form of Notice to Parties of a Borrower Affiliation
Exhibit X	Form of Confidentiality Agreement

-vi-

THIS TRUST AND SERVICING AGREEMENT (this “Agreement”) is dated as of November 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian.

INTRODUCTORY STATEMENT

Terms not defined in this Introductory Statement shall have the meanings specified in Article 1 hereof.

Reference is made to that certain fixed-rate loan with a ten-year initial term with an aggregate outstanding principal balance as of the Cut-off Date of $460,000,000 (the “Whole Loan”), evidenced by: (i) eight senior promissory notes, each beginning with an “A” designation (the “Senior Notes”) and (ii) one junior promissory note designated B-1 (the “Junior Note” and, together with the Senior Notes, the “Notes”), as follows:

Note	Cut-off Date Principal Balance
“Trust Notes”
Note A-1	$139,170,000
Note A-3	$20,000,000
Note B-1	$120,830,000
“Non-Trust Notes” or “Senior Trust Notes”
Note A-2	$50,000,000
Note A-4	$10,000,000
Note A-5	$25,000,000
Note A-6	$35,000,000
Note A-7	$10,000,000
Note A-8	$50,000,000

The Whole Loan was originated by Morgan Stanley Bank, N.A. (“MSBNA” or the “Originator”), pursuant to that certain Loan Agreement, dated as of October 8, 2021 (as amended, modified or otherwise supplemented, the “Loan Agreement”), between the Originators, as lender, and Park Avenue Plaza Owner LLC, as borrower (the “Borrower”).

The Whole Loan consists of (a) the Trust Notes (as defined in the table above), which have an aggregate unpaid principal balance as of the Cut-off Date of $280,000,000 (collectively, the “Mortgage Loan”), and (b) the Non-Trust Notes (as defined in the table above), which have an aggregate unpaid principal balance as of the Cut-off Date of $180,000,000 (the “Companion Loans”).

On or prior to the Closing Date, MSBNA will sell Note A-1 and Note A-3 to Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH” or the “Mortgage Loan Seller”). On or prior to the Closing Date, MSMCH will sell Note A-1, Note A-3 and Note B-1 to the Depositor, pursuant to a Mortgage Loan Purchase and Sale Agreement, dated November 5, 2021, by and between the Mortgage Loan Seller and the Depositor (the “Mortgage Loan Purchase

7

Agreement”). As of the Closing Date, the Companion Loans will be held by MSBNA. The relative rights of the holders of each of the Notes in respect of the Whole Loan are set forth in an agreement between note holders dated as of the Closing Date (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), between the holders of the Notes. From and after the Closing Date, the Whole Loan will be serviced and administered in accordance with this Agreement and the Intercreditor Agreement.

As provided for herein, the Trustee shall elect or shall cause elections to be made to treat designated portions of the Trust Fund for federal income tax purposes as two separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC” and, each, a “REMIC”). The Class A, Class X, Class B and Class C Certificates and the RR Interest will represent “regular interests” in the Upper-Tier REMIC. The Class UT-R Interest will constitute the sole Class of REMIC “residual interests” in the Upper-Tier REMIC. The Class LA, Class LB, Class LC and Class LRR Uncertificated Interests will represent “regular interests” in the Lower-Tier REMIC. The Class LT-R Interest will constitute the sole Class of REMIC “residual interests” in the Lower-Tier REMIC. The Class R Certificates will evidence the sole Class of “residual interests” in each of the Upper-Tier REMIC and Lower-Tier REMIC for purposes of the REMIC Provisions under federal income tax law.

In exchange for the Mortgage Loan, the Trust shall issue to the Depositor all the Class A, Class X, Class B and Class C Certificates (collectively, the “Non-Retained Certificates”), the Class R Certificates and the RR Interest (together with the Non-Retained Certificates and the Class R Certificates, the “Certificates”), which Certificates in the aggregate shall evidence the entire beneficial interest in the Trust Fund. The Trust Fund consists principally of the Trust Notes, the Mortgage (to the extent of the Trust’s interest therein) and related Loan Documents (to the extent of the Trust’s interest therein). The Companion Loans and all amounts attributable thereto shall not be assets of the Trust Fund or any REMIC described herein and will be owned by the Companion Loan Holders.

The Depositor intends to sell the Certificates to the Initial Purchaser in an offering exempt from the registration requirements of the federal securities laws.

CERTIFICATES

The Upper-Tier REMIC will issue the REMIC “regular interests”, which will be represented by certificates having the same characteristics and the same designation. The following table sets forth the class designation, the approximate initial Pass-Through Rate and the aggregate initial Certificate Balance (the “Original Certificate Balance”) or aggregate initial Notional Amount (the “Original Notional Amount”), as applicable, for each Class of Certificates:

Class Designation	Approximate Initial Pass-Through Rate (per annum)	Original Certificate Balance or Original Notional Amount
Class A	2.5740%	$151,211,500
Class X	Variable IO(1)	$151,211,500(1)
Class B	2.8098%	$72,133,500
Class C	2.8098%	$42,655,000
Class R	N/A(2)	N/A(2)

8

Class Designation	Approximate Initial Pass-Through Rate (per annum)	Original Certificate Balance or Original Notional Amount
RR Interest	N/A(3)	$14,000,000

⁽¹⁾ The Class X Certificates will not have a Certificate Balance and will not be entitled to receive distributions of principal. Interest will accrue on such Class at the Pass-Through Rate thereof on the Notional Amount thereof. The Notional Amount of the Class X Certificates for any Distribution Date shall be equal to the Certificate Balance of the Class A Certificates.

⁽²⁾ The Class R Certificates will represent the Class UT-R Interest and the Class LT-R Interest. The Class UT-R Interest and Class LT-R Interest will not have Certificate Balances or Notional Amounts, will not bear interest and will not be entitled to distributions of Yield Maintenance Premiums. Any Aggregate Available Funds constituting assets remaining in the Lower-Tier Distribution Account after distributing the Lower-Tier Distribution Amount shall be distributed to the Holders of the Class R Certificates in respect of the Class LT-R Interest (but only to the extent of the Aggregate Available Funds for such Distribution Date, if any, remaining in the Lower-Tier Distribution Account). Any Aggregate Available Funds remaining in the Upper-Tier Distribution Account, after all required distributions under this Agreement have been made to each other Class of Certificates and the Class LT-R Interest, will be distributed to the Holders of the Class R Certificates in respect of the Class UT-R Interest.

⁽³⁾ The RR Interest will not have a specified Pass-Through Rate (other than for tax reporting purposes), but will have an effective interest rate equal to the Net Mortgage Rate and will be entitled to interest on any Distribution Date equal to the Retained Certificate Interest Distribution Amount.

UNCERTIFICATED LOWER-TIER INTERESTS

The following table sets forth the initial Lower-Tier Principal Amounts and Pass-Through Rates for the Uncertificated Lower-Tier Interests comprising the regular interests in the Lower-Tier REMIC created hereunder:

Class Designation	Pass-Through Rate	Original Lower-Tier Principal Amount
Class LA	(1)	$151,211,500
Class LB	(1)	$72,133,500
Class LC	(1)	$42,655,000
Class LRR	(2)	$14,000,000

⁽¹⁾ The Pass-Through Rate for each Interest Accrual Period and each of the Class LA, Class LB and Class LC Uncertificated Interests will be the Net Mortgage Rate.

⁽²⁾ The Class LRR Uncertificated Interest will not have a specified Pass-Through Rate (other than for tax reporting purposes), but will have an effective interest rate equal to the Net Mortgage Rate.

All covenants and agreements made by the Depositor herein are for the benefit and security of the Certificateholders and the Trustee as Holder of the Uncertificated Lower-Tier Interests. The Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.

9

The foregoing REMIC structure is intended to cause all of the cash from the Mortgage Loan to flow through to the Upper-Tier REMIC as cash flow on a REMIC regular interest, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interest and this Agreement shall be construed to accomplish such purpose. To the extent that the structure is believed to diverge from such intention, the parties identifying such ambiguity shall notify the other parties hereto and the parties involved will resolve such ambiguities to accomplish the intended result and will to the extent necessary rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of counsel) to accomplish such intention, including, to the extent necessary, making any amendments in accordance with Section 12.1 of this Agreement.

W I T N E S S E T H   T H A T:

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

1.            DEFINITIONS

1.1.      Definitions. Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings and such meanings shall be equally applicable to the singular and plural forms of such terms, as the context may require.

“17g-5 Indemnifying Party”: Each of the 17g-5 Information Provider, the Special Servicer, the Trustee and the Servicer.

“17g-5 Information Provider”: The Certificate Administrator.

“17g-5 Information Provider’s Website”: The internet website of the 17g-5 Information Provider, initially located at www.ctslink.com, under the “NRSRO” tab of the respective transaction, access to which is limited to the Depositor, the Rating Agencies and other NRSROs who have provided an NRSRO Certification.

“AB Modified Loan”: The Whole Loan (1) if it became a Corrected Mortgage Loan due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Whole Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

“Accelerated Mezzanine Loan Lender”: A mezzanine lender under a mezzanine loan related to the Whole Loan (if any) that has been accelerated or as to which foreclosure or enforcement proceedings have been commenced against the equity collateral pledged to secure such mezzanine loan.

“Acceptable Insurance Default”: Any default arising when the Loan Documents require that the Borrower maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its

10

reasonable judgment in accordance with Accepted Servicing Practices, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the applicable Property is located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate. In making this determination, the Special Servicer, to the extent consistent with Accepted Servicing Practices, may rely on the opinion of an insurance consultant at the expense of the Trust.

“Accepted Servicing Practices”: As defined in Section 3.1.

“Acquisition Date”: The date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust Fund is deemed to have acquired the Property.

“Act”: The Securities Act of 1933, as it may be amended from time to time.

“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information with is attached to this Agreement as Exhibit R.

“Additional Form 10-D Disclosure”: The information described in the Form 10-D items set forth under the “Item on Form 10-D” column on Exhibit O.

“Additional Form 10-K Disclosure”: The information described in the Form 10-K items set forth under the “Item in Form 10-K” column on Exhibit P hereto.

“Additional Servicer”: Each Affiliate of the Servicer, the Special Servicer, the Mortgage Loan Seller, the Certificate Administrator, the Trustee, the Custodian, the Depositor or the Initial Purchaser that services the Whole Loan and each Person, other than the Special Servicer, who is not an Affiliate of the Servicer, the Mortgage Loan Seller, the Certificate Administrator, the Trustee, the Custodian, the Depositor or the Initial Purchaser who Services the Whole Loan as of any date of determination.

“Administrative Advances”: As defined in Section 3.23(b).

“Advance”: Any Administrative Advance, Monthly Payment Advance or any Property Protection Advance.

“Advance Rate”: As defined in Section 3.23(d).

“Adverse REMIC Event”: As defined in Section 12.1(j).

“Advisers Act”: As defined in Section 5.3(n).

“Affiliate”: With respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means

11

the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, relation to individuals or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and/or the Certificate Administrator may request and rely upon an Officer’s Certificate of the Servicer, the Special Servicer, the Trustee (in the case of the Certificate Administrator), the Certificate Administrator (in the case of the Trustee), the Borrower or the Depositor, as applicable, to determine whether any Person is an Affiliate of the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Borrower or the Depositor.

“Affiliate Ethical Wall”: Reasonable policies and procedures to be maintained by an Affiliate of the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, taking into account the nature of its business, to ensure (1) that such Affiliate will not obtain Confidential Information from the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable in a manner that violates this Agreement or any applicable law, including, but not limited to, any securities laws, except if such disclosure is required by a court or administrative order or lawful discovery demand, provided the disclosing Person shall use reasonable efforts to obtain confidential treatment thereof, and (2) that such Affiliate will not provide to the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, information regarding its decisions relating to Investments in the Certificates. Under such policies and procedures maintained by such Affiliate, (i) policies and procedures restricting the flow of information exist, and shall be maintained by such Affiliate, between such Affiliate, on the one hand and the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, on the other; (ii) such policies and procedures restricting the flow of information operate in both directions so as to include (a) policies and procedures against the disclosure of Confidential Information from the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, to such Affiliate, except (x) as such disclosure is expressly allowed under this Agreement to or by such Affiliate in its capacity as a Controlling Class Certificateholder or a Controlling Class Representative or otherwise or (y) if such disclosure is required by a court or administrative order or lawful discovery demand, provided the disclosing Person shall use reasonable efforts to obtain confidential treatment thereof, and (b) policies and procedures against the disclosure by such Affiliate of information regarding its decisions relating to Investments in Certificates to the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable; (iii) the senior management personnel of such Affiliate who have obtained Confidential Information in the course of their exercise of general managerial responsibilities may not participate in or use that information to influence Investment Decisions with respect to the Certificates, nor may they pass that information to others for use in such activities; and (iv) such senior management personnel who have obtained information regarding Investments in the course of their exercise of general managerial responsibilities may not use that information to influence servicing recommendations.

“Aggregate Available Funds”: On each Distribution Date shall be equal to (i) all amounts received in respect of the Mortgage Loan pursuant to the terms of the Intercreditor Agreement (and exclusive of any amounts allocable to any Companion Loan pursuant to the terms of the Intercreditor Agreement) during the related Collection Period or advanced in respect of interest and/or principal with respect to such Distribution Date (including, without limitation,

12

any Repurchase Price, Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property) received by the Trust and allocable to the Mortgage Loan), excluding (A) payments received that are due on a subsequent Loan Payment Date (which shall be deemed received in the Collection Period in which such subsequent Loan Payment Date occurs) and (B) Yield Maintenance Premiums (which are separately distributable on the Certificates pursuant to Section 4.3), plus (ii) if such Distribution Date is the Distribution Date occurring in March of each year after 2021 (or February, if such Distribution Date is the final Distribution Date), Withheld Amounts to be withdrawn from the Interest Reserve Account for such Distribution Date, reduced by (A) an amount equal to the applicable Withheld Amount in the case of any January Distribution Date occurring in a year that is not a leap year and (unless such February Distribution Date is the final Distribution Date) each February Distribution Date, (B) the Aggregate Available Funds Reduction Amount, and (C) any amount advanced to cover the Certificate Administrator Fee (including the portion that is the Trustee Fee) and/or the CREFC^® Intellectual Property Royalty License Fee.

“Aggregate Available Funds Reduction Amount”: As of each Distribution Date, all amounts withdrawn on the related Remittance Date or during the related Collection Period from the Collection Account pursuant to Section 3.4(c), to the extent such amounts are allocable to the Mortgage Loan.

“Agreement”: This Trust and Servicing Agreement (including all exhibits hereto) and all amendments and supplements hereto.

“Allocated Appraisal Reduction Amount”: With respect to any Appraisal Reduction Amount, the amount thereof allocable to the Mortgage Loan under the Intercreditor Agreement, multiplied by the Non-Retained Percentage.

“Allocated Collateral Deficiency Amount” With respect to any Collateral Deficiency Amount, the amount thereof allocable to the Mortgage Loan under the Intercreditor Agreement, multiplied by the Non-Retained Percentage.

“Applicable Laws”: As defined in Section 8.2(d).

“Applicable Servicing Criteria”: With respect to the Servicer, the Special Servicer or any Servicing Function Participant, the Servicing Criteria applicable to it, as set forth on Exhibit L attached hereto. For clarification purposes, multiple parties can have responsibility for the same Applicable Servicing Criteria and with respect to a Servicing Function Participant engaged by the Servicer or the Special Servicer, the term “Applicable Servicing Criteria” may refer to a portion of the Applicable Servicing Criteria applicable to the Servicer or the Special Servicer, as the case may be.

“Applied Realized Loss Amount”: All amounts applied to reduce the Certificate Balance of a Class of Certificates in respect of Non-Retained Certificate Realized Losses and Retained Certificate Realized Losses pursuant to Section 4.1(h).

“Appraisal”: With respect to the Property or Foreclosed Property, an appraisal of such Property or Foreclosed Property, conducted by an Independent Appraiser in accordance

13

with the standards of the Appraisal Institute and certified by such Independent Appraiser as having been prepared in accordance with the requirements of the Standards of Professional Practice of the Appraisal Institute with an “MAI” designation and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, as well as the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended; provided that after an initial “Appraisal” has been obtained pursuant to the terms of this Agreement, an update of such initial Appraisal shall be considered an “Appraisal” hereunder for all purposes. All Appraisals (and updates thereof) obtained pursuant to the terms of this Agreement shall include a valuation using the “income capitalization – discounted cash flow approach” and set forth the discount rate and terminal capitalization rate utilized by the Independent Appraiser. All calculations under this Agreement requiring that a “value” or “appraised value” be used with respect to the Property or Foreclosed Property shall use the most recently determined appraised value set forth in an Appraisal (or update thereof) unless a different valuation is specifically required (such as the appraised value of the Property at origination).

“Appraisal Reduction Amount”: For the Whole Loan, as of any date of determination, an amount equal to the excess of (i) the outstanding principal balance of the Whole Loan on such date plus the sum of (A) all accrued and unpaid interest on the Whole Loan at the Weighted Average Note Rate, (B) all unreimbursed Administrative Advances in respect of the Mortgage Loan and all unreimbursed Property Protection Advances in respect of the Whole Loan or the Property and interest on all such Advances at the Advance Rate, (C) the amount of any Advances and interest thereon previously reimbursed from principal collections on the Whole Loan that have not otherwise been recovered from the Borrower, (D) all currently due and unpaid real estate taxes and assessments and insurance premiums and all other amounts due and unpaid in respect of the Property (which taxes, premiums and other amounts have not been the subject of an Advance) and (E) to the extent not duplicative of amounts in clauses (B), (C) or (D), all unpaid Trust Fund Expenses then due under the Loan Agreement over (ii) the sum of (A)(x) 90% of the appraised value (as determined by an updated Appraisal) of the Property or (y) if the events described in clauses (i) through (iii) in Section 3.7(e) occur with respect to the Property, the Assumed Appraised Value of the Property, in each case, less the amount of any liens (exclusive of Permitted Encumbrances) on the Property senior to the lien of the Mortgage plus (B) any escrows with respect to the Whole Loan, including for taxes and insurance premiums; provided, that the Appraisal Reduction Amount will be reduced to zero as of the date the Mortgage Loan becomes a Corrected Mortgage Loan and no Appraisal Reduction Amount will exist as to the Mortgage Loan after it has been paid in full, liquidated, repurchased or otherwise disposed of. Appraisal Reduction Amounts with respect to the Whole Loan shall be allocated first, to the Junior Note, until the principal balance of the Junior Note has been notionally reduced to zero, and second, to the Senior Notes, on a pro rata and pari passu basis (based on the principal balance of each Senior Note) until the aggregate principal balance of the Senior Notes has been notionally reduced to zero.

“Appraisal Reduction Event”: The earliest of (i) 60 days after an uncured payment delinquency (other than a delinquency in respect of the Balloon Payment) occurs in respect of the Mortgage Loan or the Whole Loan, (ii) 90 days after an uncured delinquency occurs in respect of the Balloon Payment for the Mortgage Loan or the Whole Loan (or 120 days after an uncured delinquency occurs in respect of the Balloon Payment for the Mortgage Loan or the Whole Loan if a refinancing or sale is anticipated within 120 days after the Maturity Date of

14

the Whole Loan (as evidenced by a written refinancing commitment, letter of intent or otherwise binding application from an acceptable lender or a signed purchase agreement and reasonably satisfactory in form and substance to the Servicer that provides that such refinancing or sale shall occur within 120 days after the Maturity Date)), (iii) 60 days after a reduction in Monthly Payments for the Mortgage Loan or the Whole Loan, (iv) 60 days after an extension of the Maturity Date of the Whole Loan, (v) the appointment of a receiver in respect of the Property on behalf of the Trust or any other creditor, (vi) the Borrower declaring, or becoming the subject of, bankruptcy, insolvency or similar proceedings, admitting in writing the inability to pay its debts as they come due or making an assignment for the benefit of creditors, or (vii) the Property becoming a Foreclosed Property.

“Asset Review”: Any review of representations and warranties conducted by an Other Asset Representations Reviewer, as contemplated by Item 1101(m) of Regulation AB.

“Asset Status Report”: As defined in Section 3.10(h).

“Assignment of Leases”: Any assignment of leases, rents and profits or similar agreement executed by the Borrower, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of the Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter; provided, that none of the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer shall be responsible for determining whether any such assignment is legally sufficient or in recordable form.

“Assignment of Management Agreement”: As defined in the Loan Agreement.

“Assignment of Mortgage”: An assignment of the Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the applicable Property is located to reflect of record the assignment of the Mortgage to the Trustee on behalf of the Trust Fund; provided, that none of the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer shall be responsible for determining whether any such assignment is legally sufficient or in recordable form.

“Assumed Appraised Value”: As defined in Section 3.7(e).

“Assumed Loan Payment Date”: With respect to the Whole Loan for any calendar month following a delinquency in the payment of the Balloon Payment or the foreclosure of the Whole Loan or acceptance by the Special Servicer on behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Whole Loan, the date that would have been the Loan Payment Date in such calendar month if the Maturity Date or the foreclosure of the Whole Loan or acceptance by the Special Servicer on behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Whole Loan had not occurred.

“Assumed Monthly Payment”: With respect to any Distribution Date (following the Maturity Date or the foreclosure of the Whole Loan or acceptance by the Special Servicer on

15

behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure), the scheduled monthly payment of interest and/or principal that would have been due in respect of the Mortgage Loan on its Maturity Date and each subsequent Loan Payment Date (or Assumed Loan Payment Date) if the Mortgage Loan had been required to continue to accrue interest and amortize principal in accordance with its terms in effect immediately prior to, and without regard to the occurrence of the Maturity Date (or after the occurrence of a foreclosure, in whole or in part, of the Whole Loan or acceptance by the Special Servicer on behalf of the Trust Fund and the Companion Loan Holders of a deed-in-lieu of foreclosure or comparable conversion of the Whole Loan or a portion thereof, in respect of the Mortgage Loan on the last Loan Payment Date (or Assumed Loan Payment Date) prior to its foreclosure or acceptance of a deed-in-lieu of foreclosure), in each case as such terms may have been modified, and such Maturity Date may have been extended, in connection with a bankruptcy or similar proceeding involving the parties under the Whole Loan or a modification, waiver or amendment granted or agreed to by the Servicer or Special Servicer.

“Authenticating Agent”: As defined in Section 8.11(a).

“Balloon Payment”: The payment of the outstanding principal balance of the Whole Loan, Mortgage Loan or any Companion Loan, as applicable, together with all unpaid interest, due and payable on the Maturity Date.

“Base Interest Fraction”: With respect to any principal prepayment on the Mortgage Loan and with respect to any Class of Certificates is (i) a fraction (A) whose numerator is the greater of (x) zero and (y) the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the Treasury rate used in calculating the Yield Maintenance Premium with respect to such principal prepayment and (B) whose denominator is the amount, if any, by which (i) the Mortgage Rate exceeds (ii) the Treasury rate described in clause (A)(y)(ii) above; provided, that under no circumstances will the Base Interest Fraction be greater than 1.0. If the Treasury rate referred to above is greater than or equal to the Mortgage Rate, then the Base Interest Fraction will equal zero. If the Treasury rate is greater than or equal to the Mortgage Rate, but is less than the Pass- Through Rate on the subject Class, then the Base Interest Fraction will equal 1.0; and (ii) for any Class of Certificates w ith a Pass-Through Rate equal to a fixed per annum rate, a fraction (A) w hose numerator is the greater of (x) zero and (y) the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the Treasury rate used in calculating the Yield Maintenance Premium with respect to such principal prepayment and (B) whose denominator is the amount, if any, by which (i) the Mortgage Rate multiplied by 365/360 exceeds (ii) the Treasury rate described in clause (A)(y)(ii) above; provided, that under no circumstances will the Base Interest Fraction be greater than one. If the Treasury rate referred to above is greater than or equal to the Mortgage Rate multiplied by 365/360, then the Base Interest Fraction w ill equal zero. If the Treasury rate is greater than or equal to the Mortgage Rate multiplied by 365/360, but is less than the Pass-Through Rate on the subject Class, then the Base Interest Fraction will equal 1.0.

“Beneficial Owner”: With respect to a Global Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or indirectly through a Depository Participant, in accordance with the rules of such Depository).

16

Each of the Depositor, the Trustee, the Certificate Administrator, the Special Servicer and the Servicer, as applicable, shall have the right to require, as a condition to acknowledging the status of any Person as a Beneficial Owner under this Agreement, that such Person provide an Investor Certification, and each of Depositor, the Trustee, the Certificate Administrator, the Special Servicer and the Servicer shall be entitled to rely conclusively on such Investor Certification.

“Benefit Plan”: As defined in Section 5.3(m).

“Borrower”: As defined in the Introductory Statement.

“Borrower Party”: The Borrower, the Guarantor, the Property Manager, an Accelerated Mezzanine Loan Lender or any Borrower Party Affiliate. The Trustee and/or the Certificate Administrator may request and rely upon an officer’s certificate to determine whether any person is a Borrower Party.

“Borrower Party Affiliate”: With respect to the Borrower, the Guarantor, the Property Manager or an Accelerated Mezzanine Loan Lender, (a) any other Person or entity controlling or controlled by or under common control with such Borrower, Guarantor, Property Manager or an Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person or entity owning, directly or indirectly, 10% or more of the beneficial interests in such Borrower, Guarantor, Property Manager or an Accelerated Mezzanine Loan Lender, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person or entity means the power to direct the management and policies of such Person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and/or Certificate Administrator may request and rely upon an Officer’s Certificate to determine whether any Person is a Borrower Party Affiliate.

“Borrower Reimbursable Trust Fund Expenses”: All fees and expenses payable by the Borrower pursuant to Sections 10.21(b) and 10.21(c) of the Loan Agreement.

“Breach”: As defined in Section 2.9(a).

“Business Day”: Any day other than (i) a Saturday and a Sunday and (ii) a day on which federally insured depository institutions in the State of New York or any of the states in which the Corporate Trust Office of the Trustee and the offices of the Certificate Administrator, the Custodian, the Servicer, the Special Servicer, or the Servicer’s or the Special Servicer’s collection account are located or the Federal Reserve System of the United States of America are authorized or obligated by law, governmental decree or executive order to be closed.

“Cash Collateral Account”: The Cash Collateral Account as defined in the Loan Agreement.

“CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

“Certificate”: Any Class A, Class X, Class B, Class C or Class R Certificate or the RR Interest.

17

“Certificate Administrator”: Wells Fargo Bank, National Association, or any successor Certificate Administrator appointed as herein provided. Wells Fargo Bank, National Association will perform its duties as Certificate Administrator through its Corporate Trust Services division (including, as applicable, any agents or affiliates utilized thereby).

“Certificate Administrator Fee”: With respect to the Mortgage Loan and for any Distribution Date, a fee payable monthly to the Certificate Administrator pursuant to Section 8.5 which will accrue at the Certificate Administrator Fee Rate, computed on the basis of the same principal amount, in the same manner, and for the same Interest Accrual Period for the Mortgage Loan respecting which any related interest payment on the Mortgage Loan is computed. A portion of the Certificate Administrator Fee shall be payable to the Trustee as the Trustee Fee. For the avoidance of doubt, the Certificate Administrator Fee shall be deemed to be payable from the Lower-Tier REMIC.

“Certificate Administrator Fee Rate”: With respect to the Mortgage Loan, a rate equal to 0.0122% (1.22 basis points) per annum, calculated on the same interest accrual basis as the Mortgage Loan as of the preceding Distribution Date. The Certificate Administrator Fee Rate includes the per annum rate applicable to the calculation of the Trustee Fee.

“Certificate Administrator Personnel”: The divisions and individuals of the Certificate Administrator who are involved in the performance of the duties of the Certificate Administrator under this Agreement.

“Certificate Administrator’s Website”: The Internet website of the Certificate Administrator, initially located at www.ctslink.com.

“Certificate Balance”: With respect to any outstanding Class of Sequential Pay Certificates or the RR Interest at any date, an amount equal to the aggregate initial Certificate Balance of such Class as set forth in the Introductory Statement less the sum of (a) all amounts distributed to Holders of Certificates of such Class on all previous Distribution Dates and treated under this Agreement as allocable to principal and (b) the aggregate amount of Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, allocated to such Class of Certificates, if any, pursuant to Section 4.1(h). With respect to any individual Certificate in any such Class, the product of (x) the Percentage Interest represented by such Certificate multiplied by (y) the Certificate Balance of such Class.

“Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.3(a).

“Certificateholder” or “Holder”: With respect to any Certificate (including the RR Interest), the Person in whose name a Certificate (including the RR Interest) is registered in the Certificate Register; provided, that solely for the purposes of providing, distributing or otherwise making available any reports, statements, communications, or other information required or permitted to be provided or distributed or made available to a Certificateholder under this Agreement, a Certificateholder shall include any Beneficial Owner to the extent that the Person providing, distributing or making available such reports, statements, communications, or other information has received from such Beneficial Owner an Investor Certification; provided,

18

further that, solely for the purposes of giving any consent, waiver, request or demand pursuant to this Agreement (except as set forth in the following sentence), any Certificate (including the RR Interest) beneficially owned by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, the Borrower, the Property Manager, the Sponsor or any Person known to a Responsible Officer of the Depositor, the Certificate Administrator, the Custodian or the Trustee to be a sub-servicer, or any of their respective Affiliates, or any Borrower Party or any agent of the foregoing, shall be deemed not to be outstanding and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to take any such action or effect any such consent, waiver, request or demand has been obtained. For purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificate beneficially owned by the Trustee, the Certificate Administrator, the Custodian, the Servicer, the Special Servicer or any Affiliates thereof shall be deemed to be outstanding, provided, that such amendment does not relate to the termination, increase in compensation or material reduction of obligations of the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer in its capacity as such or any Affiliates thereof (other than solely in the capacity as a Certificateholder) in any material respect, in which case such Certificate shall be deemed not to be outstanding; provided, further, if an Affiliate of the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer has provided an Investor Certification in which it has certified as to the existence of an Affiliate Ethical Wall between such Affiliate and the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer, as applicable, then any Certificates (including the RR Interest) beneficially owned by such Affiliate shall be deemed to be outstanding. The restrictions above shall not apply to the exercise of the rights of the Servicer, the Special Servicer or an Affiliate of the Servicer or the Special Servicer, if any, as a member of the Controlling Class, as applicable, so long as the Servicer or the Special Servicer or such Affiliate is not also an Affiliate of another person (other than the Certificate Administrator, so long as it is also the Servicer or the Special Servicer) whose Certificates are deemed not outstanding pursuant to such restrictions. The Trustee and the Certificate Registrar may obtain and conclusively rely upon an Officer’s Certificate of the Servicer, the Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Custodian, the Property Manager, the Guarantor, the Sponsor, any sub-servicer or the Borrower to determine whether a Certificate is beneficially owned by an Affiliate of any of them or a Borrower Party, as applicable.

“Certificateholder Quorum”: With respect to any solicitation of votes in connection with the replacement of the Special Servicer as set forth in Section 7.1(g), the Holders of Sequential Pay Certificates or the RR Interest evidencing at least 66 2/3% of the aggregate Voting Rights (taking into account the application of any Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, and any allocable portion of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan to reduce or notionally reduce the Certificate Balance of the Certificates) of all Sequential Pay Certificates and the RR Interest on an aggregate basis.

“Certification Parties”: As defined in Section 10.6.

“Certifying Servicer”: As defined in Section 10.8.

19

“Class”: With respect to the Certificates, all of the Certificates bearing the same alphabetical and numerical designation and each Uncertificated Lower-Tier Interest. For the avoidance of doubt, the RR Interest shall be a Class.

“Class A Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-1 hereto and designated as a Class A Certificate.

“Class A Pass-Through Rate”: For any Distribution Date, a fixed rate per annum equal to 2.5740%.

“Class B Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-3 hereto and designated as a Class B Certificate.

“Class B Pass-Through Rate”: For any Distribution Date, a rate per annum equal to the Net Mortgage Rate for such Distribution Date.

“Class C Certificate”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-4 hereto and designated as a Class C Certificate.

“Class C Pass-Through Rate”: For any Distribution Date, a rate per annum equal to the Net Mortgage Rate for such Distribution Date.

“Class LA Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, designated as Class LA, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum Pass-Through Rate set forth in the Introductory Statement.

“Class LB Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, designated as Class LB, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum Pass-Through Rate set forth in the Introductory Statement.

“Class LC Uncertificated Interest”: A regular interest in the Lower-Tier REMIC, designated as Class LC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum Pass-Through Rate set forth in the Introductory Statement.

“Class LRR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC, which is held as an asset of the Upper-Tier REMIC and has the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Introductory Statement.

“Class LT-R Interest”: The residual interest in the Lower-Tier REMIC. The Class LT-R Interest will be represented by the Class R Certificates.

20

“Class R Certificates”: A Certificate executed and authenticated by the Certificate Administrator in substantially the form set forth in Exhibit A-5 hereto and designated as a Class R Certificate. The Class R Certificates have neither a Certificate Balance nor a Pass-Through Rate. The Class R Certificates will evidence the sole class of “residual interests” in the Upper-Tier REMIC and the Lower-Tier REMIC.

“Class UT-R Interest”: The residual interest in the Upper-Tier REMIC. The Class UT-R Interest will be represented by the Class R Certificates.

“Class X Certificate”: A Certificate executed and authenticated by the Certificate Administrator, in substantially the form set forth in Exhibit A-2 and designated as a Class X Certificate.

“Class X Notional Amount”: An amount equal to the Certificate Balance of the Class A Certificates.

“Class X Pass-Through Rate”: A variable rate that for each Distribution Date is the Class X Strip Rate for such Distribution Date.

“Class X Strip Rate”: For the Class A Certificates for any Distribution Date, a per annum rate equal to the excess of (i) the Net Mortgage Rate for such Distribution Date over (ii) the Pass-Through Rate of the Class A Certificates.

“Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be The Depository Trust Company.

“Clearstream”: As defined in Section 5.2(a).

“Closing Date”: November 17, 2021.

“Code”: The Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of the Treasury regulations issued pursuant thereto in temporary or final form and any proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust Fund.

“Collateral”: The Property securing the Whole Loan, the Reserve Accounts (and all sums held, deposited or invested therein and all proceeds thereof) with respect to the Whole Loan and all other collateral which is subject to security interests and liens granted to secure the Whole Loan.

“Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, the excess of (i) the outstanding principal balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein, as well as any equity interests or other obligations senior thereto), over (ii) the sum of (solely to the extent allocable to the Mortgage Loan) (x) the most recent appraised value for the Property, plus (y) solely to the extent not reflected or taken into account in such appraised value

21

and to the extent on deposit with, or otherwise under the control of, the Mortgage Loan Lender as of the date of such determination, any capital or additional collateral contributed by the Borrower at the time the Whole Loan became (and as part of the modification related to) such AB Modified Loan for the benefit of the Property, plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y)) held by the Mortgage Loan Lender in respect of such AB Modified Loan as of the date of such determination. Collateral Deficiency Amounts with respect to the Whole Loan shall be allocated first, to the Junior Note, until the principal balance of the Junior Note has been notionally reduced to zero, and second, to the Senior Notes, on a pro rata and pari passu basis (based on the principal balance of each Senior Note) until the aggregate principal balance of the Senior Notes has been notionally reduced to zero. The Servicer and the Certificate Administrator shall be entitled to conclusively rely on the Special Servicer’s calculation or determination of any Collateral Deficiency Amount.

“Collateral Security Documents”: Any document or instrument given to secure or guaranty the Whole Loan, including without limitation, the Mortgage, each as amended, supplemented, assigned, extended or otherwise modified from time to time.

“Collection Account”: As defined in Section 3.4(a).

“Collection Period”: With respect to any Distribution Date, the period commencing immediately following the Determination Date in the calendar month preceding the calendar month in which such Distribution Date occurs and ending on and including the Determination Date in the calendar month in which such Distribution Date occurs; provided, that the first Collection Period shall commence immediately following the Cut-off Date and end on and include the Determination Date in December 2021. Any periodic payments received with respect to the Mortgage Loan during any grace period and relating to the immediately preceding Collection Period will be deemed to have been received during that immediately preceding Collection Period and not during the Collection Period during which such grace period ends.

“Commission”: The Securities and Exchange Commission.

“Companion Loans”: As defined in the Introductory Statement.

“Companion Loan Advance”: With respect to any Companion Loan if it is part of an Other Securitization Trust, any advance of delinquent scheduled payments with respect to such Companion Loan made by the Other Servicer or Other Trustee under such Other Securitization Trust.

“Companion Loan Holders”: Collectively, the holder or holders of the Companion Loans or a portion of the Companion Loans.

“Companion Loan Rating Agency”: With respect to a Companion Loan, any rating agency that was engaged by a participant in the securitization of such Companion Loan to assign a rating to the related Companion Loan Securities.

“Companion Loan Rating Agency Confirmation”: With respect to any matter involving a Companion Loan with respect to which any Companion Loan Securities exist,

22

confirmation in writing (which may be in the form of electronic mail, facsimile, press release, posting to its internet website or such other means then considered industry standard as determined by each applicable Companion Loan Rating Agency) by each applicable Companion Loan Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any class of Companion Loan Securities (if then rated by the Companion Loan Rating Agency); provided, that if a written waiver or other acknowledgment (or such time for a response has lapsed) from the Companion Loan Rating Agency indicating its decision not to review or to decline to review the matter for which the Companion Loan Rating Agency Confirmation is sought is received (such written notice, a “Companion Loan Rating Agency Declination”), the requirement to receive a Companion Loan Rating Agency Confirmation from the Companion Loan Rating Agency with respect to such matter will not apply; provided, further that any Companion Loan Rating Agency Confirmation is subject to the terms set forth in Section 3.26.

“Companion Loan Securities”: Any class of securities backed, wholly or partially, by a Companion Loan.

“Condemnation”: As defined in the Loan Agreement.

“Condemnation Proceeds”: As defined in the Loan Agreement.

“Confidential Information”: With respect to the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Custodian, as applicable, all material non-public information obtained in the course of and as a result of such Person’s performance of its duties under this Agreement as the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, with respect to the Mortgage Loan, the Companion Loans, the Whole Loan, the Borrower, the Guarantor, the Sponsor and the Property, unless such information (i) was already in the possession of such Person prior to being disclosed to such Person, (ii) is or becomes available to such Person from a source other than its activities as the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as applicable, or (iii) is or becomes generally available to the Certificate Administrator, the Servicer, the Special Servicer or the public other than, with respect to the Certificate Administrator, the Servicer or the Special Servicer, as a result of a disclosure by Certificate Administrator Personnel, Servicer Servicing Personnel or Special Servicer Servicing Personnel, respectively.

“Control Eligible Certificates”: The Class C Certificates. No other Class of Certificates shall be eligible to act as the Controlling Class or appoint a Controlling Class Representative.

“Controlling Class”: Not applicable

“Controlling Class Certificateholder”: Not applicable.

“Controlling Class Representative”: Not applicable.

“Controlling Persons”: As defined in Section 6.3(a).

23

“Corporate Trust Office”: The principal corporate trust offices with respect to (a) the Trustee are located at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee – MSC 2021-PLZA, and (b) the Certificate Administrator are located at (i) with respect to Certificate transfers and surrenders, 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415, Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS) – MSC 2021-PLZA. The Trustee and the Certificate Administrator may designate any other location as their respective corporate trust office(s) from time to time by notice to the Certificateholders, the Depositor, the Servicer, the Special Servicer and each other party hereto.

“Corrected Mortgage Loan”: As defined in the definition of “Special Servicing Loan Event.”

“Credit Risk Retention Rules”: The credit risk retention requirements of Section 15G of the Exchange Act (15 U.S.C. §78o-11), as added by Section 941 of the Dodd-Frank Act.

“CREFC^®”: CRE Finance Council^® or any successor thereto.

“CREFC^® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, is reasonably acceptable to the Servicer.

“CREFC^® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Bond Level File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

“CREFC^® Collateral Summary File”: The report substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Certificate Administrator.

“CREFC^® Comparative Financial Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the

24

“Comparative Financial Status Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Financial File”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

“CREFC^® Historical Bond/Collateral Realized Loss Reconciliation”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Intellectual Property Royalty License Fee”: For any Interest Accrual Period with respect to the Mortgage Loan, the amount of interest accrued during such related Interest Accrual Period at the CREFC^® Intellectual Property Royalty License Fee Rate (adjusted to a monthly rate) on the same balance, in the same manner and for the same number of days as interest at the applicable Mortgage Rate accrued with respect to the Mortgage Loan during such

25

related Interest Accrual Period. Any payments of the CREFC^® Intellectual Property Royalty License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the following instructions (or such other instructions as may hereafter be furnished by CREFC^® to the Servicer in writing at least two Business Days prior to the Remittance Date):

Account Name: Commercial Real Estate Finance Council (CREFC^®)

Bank Name: JPMorgan Chase Bank, National Association

Bank Address: 80 Broadway, New York, NY 10005

Routing Number: 021000021

Account Number: 213597397

For the avoidance of doubt, the CREFC^® Intellectual Property Royalty License Fee shall be deemed to be payable from the Lower-Tier REMIC.

“CREFC^® Intellectual Property Royalty License Fee Rate”: 0.0005% per annum.

“CREFC^® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Loan Level Reserve/LOC Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

“CREFC® Loan Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC® Loan Modification Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Loan Periodic Update File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Periodic Update File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities

26

transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

“CREFC^® Loan Setup File”: The report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer, the Special Servicer and the Certificate Administrator.

“CREFC^® NOI Adjustment Worksheet”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is acceptable to the Servicer or the Special Servicer, as applicable, and in any event, shall present the computations made in accordance with the methodology described in such form to “normalize” the net operating income and debt service coverage numbers used in the other reports required by this Agreement.

“CREFC^® Operating Statement Analysis Report”: A report prepared with respect to the Property substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CREFC^® Website or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Property File”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

“CREFC^® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to

27

time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® REO Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available as of the Closing Date on the CREFC^® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer.

“CREFC^® Reports”: Collectively refers to the following reports as may be amended, updated or supplemented from time to time as part of the CREFC^® “Investor Reporting Package^®”:

(i)          the following seven electronic files: (a) CREFC^® Loan Setup File, (b) CREFC^® Loan Periodic Update File, (c) CREFC^® Property File, (d) CREFC^® Financial File, (e) CREFC^® Special Servicer Loan File, (f) CREFC^® Bond Level File and (g) CREFC^® Collateral Summary File;

(ii)         The following ten supplemental reports: (a) CREFC^® Servicer Watch List, (b) CREFC^® Delinquent Loan Status Report, (c) CREFC^® REO Status Report, (d) CREFC^® Comparative Financial Status Report, (e) CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (f) CREFC^® Loan Level Reserve/LOC Report, (g) CREFC^® Advance Recovery Report, (h) CREFC^® Total Loan Report, (i) CREFC^® Operating Statement Analysis Report and (j) CREFC^® NOI Adjustment Worksheet;

(iii)        the following eleven templates: (a) CREFC^® Appraisal Reduction Template, (b) CREFC^® Servicer Realized Loss Template, (c) CREFC^® Reconciliation of Funds Template, (d) CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template, (e) CREFC^® Historical Liquidation Loss Template, (f) CREFC^® Interest Shortfall Reconciliation Template, (g) CREFC^® Servicer Remittance to Certificate Administrator Template, (h) CREFC^® Significant Insurance Event Template, (i) CREFC^® Loan Modification Report, (j) CREFC^® Loan Liquidation Report and (k) CREFC^® REO Liquidation Report; and

(iv)        such other reports and data files as CREFC^® may designate as part of the “CREFC^® Investor Reporting Package^®” from time to time generally.

“CREFC^® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Servicer Remittance to Certificate Administrator Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Remittance to Certificate Administrator Template” available and effective from time to time on the CREFC^® Website.

28

“CREFC^® Servicer Watch List”: For any Determination Date, a report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Watch List” available as of the Closing Date on the CREFC^® Website, or in such other final form for the presentation of such information and containing such additional information as may from time to time be promulgated as recommended by the CREFC^® for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Servicer Watch List” available as of the Closing Date on the CREFC^® Website, is reasonably acceptable to the Servicer.

“CREFC^® Significant Insurance Event Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Significant Insurance Event Template” available and effective from time to time on the CREFC^® Website.

“CREFC^® Special Servicer Loan File”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally and is reasonably acceptable to the Servicer and the Special Servicer.

“CREFC^® Total Loan Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available and effective from time to time on the CREFC^® Website.

“CREFC^® Website”: CREFC^®’s Website located at “www.crefc.org” or such other primary website as the CREFC^® may establish for dissemination of its report forms.

“Current Interest Distribution Amount”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or Uncertificated Lower-Tier Interests (other than the Class LRR Uncertificated Interest), the interest accruing during the related applicable Interest Accrual Period at the Pass-Through Rate applicable to such Class for such Interest Accrual Period on the Certificate Balance, Notional Amount or Lower-Tier Principal Amount of such Class of Certificates or Uncertificated Lower-Tier Interest, as applicable, for such Distribution Date (before giving effect to distributions of principal on such Distribution Date).

“Custodian”: Initially, the Certificate Administrator, and thereafter, any Custodian appointed pursuant to Section 8.10(a) of this Agreement. Wells Fargo Bank, National Association will perform its obligations as Custodian through its Document Custody Group (including, as applicable, any agents or affiliates utilized thereby).

“Cut-off Date”: November 5, 2021.

“DBRS Morningstar”: DBRS, Inc., and its successors-in-interest. If neither such rating agency nor any successor remains in existence, “DBRS Morningstar” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other

29

parties hereto, and specific ratings of DBRS Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Default Interest”: During the continuance of an Event of Default under the Loan Agreement, the amount by which interest accrued on the Whole Loan (exclusive of late payment charges) at the Default Rate exceeds the amount of interest that would have accrued on the Whole Loan at the Mortgage Rate.

“Default Rate”: As defined in the Loan Agreement.

“Defect”: As defined in Section 2.9(a).

“Deficient Exchange Act Deliverable”: With respect to the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Servicing Function Participant and Sub-Servicer retained by it, any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article 10 of this Agreement that does not conform to the express provisions of the applicable reporting requirements under the Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

“Definitive Certificate”: Any Certificate in fully registered certificated form. For the avoidance of doubt, the RR Interest shall at all times during the RR Interest Transfer Restriction Period be a Definitive Certificate.

“Delivery Date”: As defined in Section 2.1(b).

“Depositor”: Morgan Stanley Capital I Inc., a Delaware corporation, and its successors in interest.

“Depository”: The Depository Trust Company or a successor appointed by the Certificate Registrar (which appointment shall be at the direction of the Depositor if the Depositor is legally able to do so).

“Depository Participant”: A Person for whom, from time to time, the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

“Designated Expense Reimbursement Section”: Section 10.21 of the Loan Agreement.

“Determination Date”: With respect to each Distribution Date, the 5th day of the calendar month in which such Distribution Date occurs or, if such day is not a Business Day, the immediately succeeding Business Day, beginning in December 2021.

“Directly Operate”: With respect to any Foreclosed Property, the furnishing or rendering of services to the tenants thereof, that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such Foreclosed Property,

30

the holding of such Foreclosed Property primarily for sale to customers, the use of such Foreclosed Property in a trade or business conducted by the Trust Fund or the performance of any construction work on the Foreclosed Property (other than the completion of a building or improvement, where more than 10% of the construction of such building or improvement was completed before default became imminent), other than through an Independent Contractor; provided, that a Foreclosed Property shall not be considered to be Directly Operated solely because the Trustee (or the Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such Foreclosed Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

“Disclosable Special Servicer Fees”: With respect to the Mortgage Loan, the Companion Loans or Foreclosed Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates and as a result of any other fee-sharing arrangement (including any such amount paid under any fee sharing arrangement whereby the Special Servicer shares fees to which it is entitled with any Certificateholder or any Companion Loan Holder) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, the Borrower, any manager, any guarantor or indemnitor in respect of the Mortgage Loan, a Companion Loan or Foreclosed Property and any purchaser of the Mortgage Loan, a Companion Loan or Foreclosed Property)) in connection with the disposition, workout or foreclosure of the Mortgage, the management or disposition of Foreclosed Property or the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement other than (i) Permitted Special Servicer/Affiliate Fees, (ii) any compensation and other remuneration that the Special Servicer is entitled to pursuant to Section 3.17 of this Agreement and (iii) any compensation and other remuneration that the Servicer or the Certificate Administrator is permitted to receive or retain in connection with its duties as Servicer or Certificate Administrator hereunder.

“Disqualified Non-U.S. Person”: With respect to a Class R Certificate, any Non-U.S. Person or its agent other than (a) a Non-U.S. Person that holds the Class R Certificates in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Administrator with an effective IRS Form W-8ECI or (b) a Non-U.S. Person that has delivered to both the transferor and the Certificate Administrator an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificates to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificates will not be disregarded for federal income tax purposes.

“Disqualified Organization”: Either (a) the United States, a State, or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except in the case of FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1)) of the Code with respect to the Class R Certificates (except certain farmers’

31

cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code or (e) any other Person so designated by the Certificate Registrar based upon an Opinion of Counsel to the effect that any transfer of a Class R Certificate to such Person may cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding. The terms “United States,” “State” and “International Organization” have the meanings set forth in Section 7701 of the Code or successor provisions.

“Distribution Account”: The accounts established and maintained by the Certificate Administrator pursuant to Section 3.5.

“Distribution Date”: The fourth (4^th) Business Day after each Determination Date, commencing in December 2021.

“Distribution Date Statement”: As defined in Section 4.4(a).

“Eligible Account”: A separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts (or subaccounts thereof) maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts (or subaccounts thereof) maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity that has a Moody’s rating of (and whose long term unsecured debt obligations are rated) at least “A2” and a DBRS Morningtar rating of (and whose long term unsecured debt obligations are rated) at least “BBB(high)” (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two (2) NRSROs), and which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital and surplus of at least $50,000,000.00 and subject to supervision or examination by federal or state authorities. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

“Eligible Institution”: A depository institution or trust company insured by the Federal Deposit Insurance Corporation, (a)(i) the short term unsecured debt obligations, deposits, accounts or commercial paper of which are rated at least “P-1” by Moody’s (or, in the case of accounts in which funds are held for more than 30 days, the long-term unsecured debt obligations, deposits, accounts or commercial paper of which are rated at least “A2” by Moody’s), and (ii) the short term unsecured debt obligations, deposits, accounts or commercial paper of which are rated at least “R-1(low)” by DBRS Morningstar or (if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two (2) NRSROs) (or, in the case of accounts in which funds are held for more than 30 days, the long-term unsecured debt obligations, deposits, accounts or commercial paper of which are rated at least “BBB(high)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two (2) NRSROs), or (b) with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency in respect of the ratings of such depository institution or trust company.

“Environmental Indemnity”: As defined in the Loan Agreement.

32

“ERISA”: The Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

“ERISA Plan”: As defined in Section 5.3(n).

“ERISA Restricted Certificates”: The Class R Certificates and the RR Interest.

“EU/UK Hedging Covenant”: As defined in the EU/UK Risk Retention Agreement.

“EU/UK Retention Covenant”: As defined in the EU/UK Risk Retention Agreement.

“EU/UK Risk Retention Agreement”: The EU/UK Risk Retention Agreement, dated and effective as of the Closing Date, between MSBNA, the Trust, the Trustee and the Certificate Administrator.

“EU/UK Transfer Restriction Period”: The period from the Closing Date until the EU/UK Risk Retention Agreement has been terminated or is no longer in effect, as confirmed by an acknowledgement of the foregoing by all parties to the EU/UK Risk Retention Agreement.

“Euroclear”: As defined in Section 5.2(a).

“Event of Default”: An “Event of Default” as defined under the Loan Documents.

“Exchange Act”: The Securities Exchange Act of 1934, as amended from time to time.

“FHLMC”: The Federal Home Loan Mortgage Corporation and its successors in interest.

“Final Asset Status Report”: An Asset Status Report that is labeled or otherwise communicated as being “final”, together with such other data or supporting information provided by the Special Servicer to the Controlling Class Representative or the Risk Retention Consultation Party which does not include any communications (other than the Final Asset Status Report itself) between the Special Servicer and the Controlling Class Representative or the Risk Retention Consultation Party, as applicable, with respect to the Whole Loan; provided, that no Asset Status Report shall be considered a Final Asset Status Report unless (i) the Controlling Class Representative (during any Subordinate Control Period) has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval or consent, or has been deemed to approve or consent to such action or (ii) the Asset Status Report is otherwise implemented by the Special Servicer in accordance with the terms of this Agreement.

“Fitch”: Fitch Ratings, Inc., and its successors-in-interest. If neither such rating agency nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated

33

by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Fitch Ratings, Inc. herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“FNMA”: The Federal National Mortgage Association and its successors in interest.

“Foreclosed Property”: Any portion of the Property, title to which has been acquired by the Special Servicer on behalf of the Trust through foreclosure, deed-in-lieu of foreclosure or otherwise in the name of the Trustee or its nominee for the benefit of the Trust and the Companion Loan Holders.

“Foreclosed Property Account”: As defined in Section 3.6.

“Foreclosure”: Any foreclosure, the taking of a deed-in-lieu of foreclosure, or the completion of any judicial or non-judicial foreclosure or termination, cancellation or rescission of any such foreclosure of the Mortgage.

“Foreclosure Proceeds”: Proceeds, net of any related expenses of the Servicer, Special Servicer, the Certificate Administrator, the Custodian and/or the Trustee, received in respect of any Foreclosed Property (including, without limitation, proceeds from the operation or rental of such Foreclosed Property) prior to the final liquidation of the Foreclosed Property.

“Form 8-K Disclosure”: The information described in the Form 8-K items set forth under the “Item on Form 8-K” column on Exhibit Q hereto.

“Global Certificates”: As defined in Section 5.2(b).

“Guarantor”: Any guarantor with respect to the Mortgage Loan.

“Independent”: When used with respect to any specified Person, such a Person who (i) does not have any direct financial interest or any material indirect financial interest in the Depositor, the Borrower, the Guarantor, any Companion Loan Holder, the Sponsor, the Property Manager, the Trustee, the Certificate Administrator, the Custodian, the Servicer, the Special Servicer, the Controlling Class Representative, the Risk Retention Consultation Party or any of their respective Affiliates and (ii) is not connected with the Depositor, the Borrower, the Sponsor, the Property Manager, any Companion Loan Holder, the Trustee, the Certificate Administrator, the Custodian, the Servicer, the Special Servicer, the Controlling Class Representative, the Risk Retention Consultation Party or any of their respective Affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

“Independent Appraiser”: An Independent professional real estate appraiser who (i) is a member in good standing of the Appraisal Institute, (ii) if the state in which the applicable Property or Foreclosed Property is located certifies or licenses appraisers, is certified or licensed in such state, and (iii) has a minimum of five (5) years’ experience in the appraisal of comparable properties in the geographic area in which the applicable Property is located.

34

“Independent Contractor”: Either (i) any Person (other than the Special Servicer or Servicer) that would be an “independent contractor” with respect to the Lower-Tier REMIC or the Upper-Tier REMIC within the meaning of Section 856(d)(3) of the Code if such REMIC were a real estate investment trust (except that the ownership test set forth in that Section of the Code shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates or 35% or more of the aggregate value of all Classes of Certificates or such other interest in the Certificates as is set forth in an Opinion of Counsel, which shall, at no expense to the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Servicer, or the Trust Fund, be delivered to the Trustee, the Certificate Administrator, the Custodian, the Special Servicer or the Servicer on behalf of the Trust Fund); provided that neither the Lower-Tier REMIC nor the Upper-Tier REMIC receives or derives any income from such Person and the relationship between such Person and such REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person (including the Special Servicer or the Servicer) if the Trustee, the Certificate Administrator and the Custodian (or the Servicer or the Special Servicer on behalf of the Trust) has received an Opinion of Counsel which shall, at no expense to the Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Servicer (unless the Special Servicer or the Servicer is providing the Opinion of Counsel with respect to itself) or the Trust Fund, be to the effect that the taking of any action in respect of any Foreclosed Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such Foreclosed Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code), or cause any income realized in respect of such Foreclosed Property to fail to qualify as Rents from Real Property.

“Initial Purchaser”: Morgan Stanley & Co. LLC and its successors-in-interest.

“Inquiries”: As defined in Section 4.5.

“Institutional Accredited Investor”: An institutional investor that is an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Act or an entity in which all of the equity owners are institutional investors that are “accredited investors” within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Act.

“Insurance Proceeds”: (a) The portion of Net Proceeds (as defined in the Loan Agreement) paid as a result of a Casualty (as defined in the Loan Agreement) other than amounts to be applied to the restoration, preservation or repair of the Property or to be released to the Borrower each in accordance with the terms of the Loan Agreement, or if not required to be so applied or so released under the terms of the Loan Agreement, Accepted Servicing Practices and (b) amounts paid by any insurer pursuant to any insurance policy required to be maintained by the Servicer pursuant to Section 3.11, to the extent related to this Agreement only.

“Intercreditor Agreement”: As defined in the Introductory Statement.

“Interest Accrual Period”: With respect to (i) the Whole Loan and any Loan Payment Date, the calendar month immediately preceding the calendar month in which such

35

Loan Payment Date occurs, and (ii) the Certificates and any Distribution Date, the calendar month immediately preceding the calendar month in which such Distribution Date occurs.

“Interest Distribution Amount”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or any Uncertificated Lower-Tier Interest (other than the Class LRR Uncertificated Interest), the sum of the Current Interest Distribution Amount for such Distribution Date and such Class of Certificates or such Uncertificated Lower-Tier Interest plus the aggregate unpaid Interest Shortfalls in respect of prior Distribution Dates for such Class of Certificates or such Uncertificated Lower-Tier Interest.

“Interest Reserve Account”: As defined in Section 3.4(d).

“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or any Uncertificated Lower-Tier Interest (other than the Class LRR Uncertificated Interest), the amount by which the Current Interest Distribution Amount for such Class of Certificates or such Uncertificated Lower-Tier Interest exceeds the portion thereof actually paid in respect of interest in respect of such Class of Certificates or such Uncertificated Lower-Tier Interest on such Distribution Date.

“Interested Person”: The Depositor, the Certificate Administrator, the Custodian, the Servicer, the Special Servicer, any Majority Controlling Class Certificateholder, the Controlling Class Representative, the Risk Retention Consultation Party, the Borrower, the Guarantor, the Sponsor, the Property Manager, any Mezzanine Lender, any independent contractor engaged by the Special Servicer, any Other Depositor, any Other Servicer, any Other Special Servicer (or any independent contractor engaged by such Other Special Servicer), any Other Trustee or any Other Certificate Administrator for an Other Securitization Trust, any Companion Loan Holder, or any of their respective known Affiliates.

“Investment”: Any direct or indirect ownership interest in any security, note or other financial instrument issued or executed by the Borrower or any Affiliate of a Borrower, a loan directly or indirectly secured by any of the foregoing or a hedging transaction (however structured) that references or relates to any of the foregoing.

“Investment Account”: As defined in Section 3.8(a).

“Investment Decisions”: Investment, trading, lending or other financial decisions, strategies or recommendations with respect to Investments, whether on behalf of the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee or any of their respective Affiliates, as applicable, or any Person on whose behalf the Servicer or the Special Servicer or any of their respective Affiliates has discretion in connection with Investments.

“Investor Certification”: A certificate, substantially in the form of Exhibit K-1 and Exhibit K-2 to this Agreement, or in the form of an electronic certification contained on the Certificate Administrator’s Website, representing that the Person executing such certificate is a Certificateholder (or representative thereof), a Beneficial Owner or a prospective purchaser of a Certificate, any Companion Loan Holder (or a party to an Other Pooling and Servicing Agreement on its behalf) or the Mortgage Loan Seller if it has repurchased the Mortgage Loan (or applicable portion thereof) pursuant to the related Mortgage Loan Purchase Agreement, and

36

that (i) for purposes of obtaining information (including the Distribution Date Statements) and notices (including access to information and notices on the Certificate Administrator’s Website) pursuant to this Agreement, such Person is (a) as evidenced by Exhibit K-2, the Guarantor, the Sponsor, the Property Manager, a foreclosing Mezzanine Lender or an Affiliate of any of the foregoing, a Borrower Party, or any agent of any of the foregoing, in which case such Person shall only be given access to the Distribution Date Statements or (b) as evidenced by Exhibit K-1, not the Guarantor, the Sponsor, the Property Manager, a foreclosing Mezzanine Lender or an Affiliate of any of the foregoing, a Borrower Party, or an agent of any of the foregoing, in which case such Person shall be given access to all such information; (ii) for purposes of exercising Voting Rights as evidenced by Exhibit K-1 (A) such Person is not the Depositor, the Trustee, the Certificate Administrator, the Custodian, the Guarantor, the Sponsor, the Property Manager, a foreclosing Mezzanine Lender or an Affiliate of any of the foregoing, a Borrower Party, or an agent of any of the foregoing and (B) such Person is or is not the Servicer, the Special Servicer, or an Affiliate of any of the foregoing; provided that, for purposes of clause (ii), if such Person is an Affiliate of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian, such certification shall indicate whether an Affiliate Ethical Wall exists between it and the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian, as applicable; and/or (iii) for purposes of determining the Controlling Class Representative, exercising any rights of the Controlling Class or the Risk Retention Consultation Party or receiving Asset Status Reports or any other information under this Agreement other than Distribution Date Statements, such Person is not the Guarantor, the Sponsor, the Property Manager, a foreclosing Mezzanine Lender or any Affiliate of any of the foregoing, a Borrower Party, or an agent of any of the foregoing. The Certificate Administrator may require that Investor Certifications be resubmitted from time to time in accordance with its policies and procedures.

“Investor Q&A Forum”: As defined in Section 4.5(a).

“Investor Registry”: As defined in Section 4.5(b).

“IRS”: The Internal Revenue Service.

“Junior Note”: As defined in the Introductory Statement.

“KBRA”: Kroll Bond Rating Agency, LLC, and its successors-in-interest. If neither such rating agency nor any successor remains in existence, “KBRA” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Liquidated Property”: The Property, if it has been liquidated and the Special Servicer has determined that all amounts which it expects to recover from or on account of such Property have been recovered.

“Liquidation Expenses”: Reasonable and customary expenses (other than expenses covered by any insurance policy) incurred by the Servicer, the Special Servicer, the

37

Certificate Administrator, the Custodian or the Trustee in connection with the liquidation of the Whole Loan or the Property (or portions thereof), such expenses including, without limitation, legal fees and expenses, appraisal fees, brokerage fees and commissions, conveyance taxes and trustee and co-trustee fees, if any. Liquidation Expenses shall not include any previously incurred expenses which have been previously reimbursed to the party incurring the same or which were netted against income from any Foreclosed Property and were considered in the calculation of the amount of Foreclosure Proceeds pursuant to the definition thereof.

“Liquidation Fee”: A fee payable to the Special Servicer with respect to the Liquidated Property, or any full, partial or discounted payoff of the Whole Loan, the Mortgage Loan or a Companion Loan or the liquidation of the Whole Loan, the Mortgage Loan or a Companion Loan as to which the Special Servicer receives any Liquidation Proceeds, equal to the product of the Liquidation Fee Rate and the Net Liquidation Proceeds related to such Liquidated Property, Whole Loan, Mortgage Loan or Companion Loan. The Special Servicer shall not be entitled to receive a Liquidation Fee in connection with (i) a repurchase by the Mortgage Loan Seller of (or an indemnity payment in respect of) the Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement; (ii) a sale of the Whole Loan, the Mortgage Loan or a Companion Loan by the Special Servicer to an Interested Person in accordance with Section 3.16; or (iii) a purchase of the Mortgage Loan or a Companion Loan by a mezzanine lender pursuant to any purchase option granted in the Mezzanine Intercreditor Agreement (so long as such purchase occurs within 90 days after the first delivered notice of the applicable purchase option event is delivered to such mezzanine lender). For the avoidance of doubt, the intent of the Designated Expense Reimbursement Section is to require the Borrower to be responsible for the payment of Liquidation Fees and the Special Servicer shall be entitled to, and may collect, any Liquidation Fees payable to it from the Borrower pursuant to the Designated Expense Reimbursement Section as would be calculated hereunder. The Liquidation Fee with respect to the Specially Serviced Mortgage Loan or Foreclosed Property shall be reduced by the amount of any Modification Fees paid by or on behalf of the Borrower with respect to the Specially Serviced Mortgage Loan or Foreclosed Property and received by the Special Servicer as compensation, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee. Notwithstanding the foregoing, if the Whole Loan becomes a Specially Serviced Mortgage Loan solely due to an event described in clause (iii) of the definition of “Special Servicing Loan Event” and the related Liquidation Proceeds are received within 4 months following the related maturity date as a result of the Mortgage Loan or a Companion Loan being refinanced, the Special Servicer shall not be entitled to deduct a Liquidation Fee from amounts due to the Certificateholders (or the Companion Loan Holders, if applicable) but may collect and retain appropriate fees from the Borrower in connection with such liquidation.

“Liquidation Fee Rate”: A rate equal to 0.50% (50 basis points).

“Liquidation Proceeds”: Amounts (other than Insurance Proceeds and Condemnation Proceeds) received by the Special Servicer and/or the Trustee in connection with the liquidation of the Property, whether through judicial foreclosure, sale or otherwise, or in connection with the sale, discounted payoff or other liquidation of the Whole Loan, the Mortgage Loan or a Companion Loan (other than amounts required to be paid to the Borrower pursuant to law or the terms of the Loan Agreement) including the proceeds of any full, partial or discounted

38

payoff of the Whole Loan, the Mortgage Loan or a Companion Loan (exclusive of any portion of such payoff or proceeds that represents Default Interest or late payment charges).

“Loan Agreement”: As defined in the Introductory Statement.

“Loan Documents”: All documents executed or delivered by the Borrower or any other party evidencing or securing the Whole Loan and any amendment thereof or thereafter or subsequently added to the Mortgage File, including without limitation the Loan Agreement.

“Loan Payment Date”: The fifth (5th) day of each calendar month (or if such date is not a Business Day (as such term is defined the Loan Agreement), the immediately preceding Business Day).

“Lock Box Agreement”: The Clearing Account Agreement as defined in the Loan Agreement.

“Lower-Tier Distribution Account”: A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Lower-Tier REMIC.

“Lower-Tier Distribution Amount”: As defined in Section 4.1(c).

“Lower-Tier Principal Amount”: With respect to any Uncertificated Lower-Tier Interest, a principal amount that initially will equal the Original Lower-Tier Principal Amount of such Uncertificated Lower-Tier Interest set forth in the Introductory Statement herein, and from time to time will equal such amount reduced by the amount of any distributions of the Lower-Tier Distribution Amount allocable to principal made, and any Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses allocated, with respect to such Uncertificated Lower-Tier Interest on any Distribution Date as provided in Section 4.1(c) and Section 4.1(h), respectively, of this Agreement.

“Lower-Tier REMIC”: One of two separate REMICs comprising the Trust Fund, the assets of which consist of all of the assets of the Trust Fund other than the assets of the Upper-Tier REMIC.

“MAI Standards”: Standards of Professional Appraisal Practice established for Members of the Appraisal Institute.

“Major Decision”: Any of the following:

(i)       any proposed or actual foreclosure upon or comparable conversion (which may include acquisitions of any Foreclosed Property by deed in lieu of foreclosure) of the ownership of the Property if the Whole Loan comes into and continues in default;

(ii)      any amendment or modification, consent to a modification or waiver of a monetary term of the Whole Loan (other than late fees and Default Interest, but including the timing of payments and acceptance of discounted payoffs) or material non-monetary term of the Whole Loan or any extension of the maturity date thereof that is not expressly permitted pursuant to the terms of the Loan Documents;

39

(iii)     following a default or an Event of Default with respect to the Whole Loan, any exercise of remedies, including any acceleration of the Whole Loan or initiation of judicial, bankruptcy or similar proceedings under the Loan Documents;

(iv)     any sale of the Whole Loan if it is in default for less than the Repurchase Price or any sale of any Foreclosed Property;

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

(vi)     any release of collateral or any acceptance of substitute or additional collateral for the Whole Loan or any consent to either of the foregoing, unless required or permitted pursuant to the specific terms of the Loan Documents and for which there is no material lender discretion;

(vii)    any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to the Whole Loan or, if lender consent is required, any consent to such waiver or consent to a transfer of the Property or interests in the Borrower, other than any such transfer or incurrence of debt as may be effected without the consent of the lender under the Loan Documents;

(viii)   any incurrence of additional debt by the Borrower or of any mezzanine financing by any beneficial owner of the Borrower (to the extent that the lender has consent rights pursuant to the Loan Documents (for purposes of the determination whether the lender has such consent rights pursuant to the Loan Documents, any provision in the Loan Documents that requires that an intercreditor agreement be reasonably or otherwise acceptable to the lender will constitute such consent rights));

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

(x)       any material property management company changes, including approval of the termination of a manager and appointment of a new property manager for which lender consent is required under the Loan Agreement;

(xi)      any requests for the funding or disbursement of “performance,” “earn-out,” “holdback” or similar escrows and reserves (including those evidenced by letters of credit) for the Whole Loan if such escrows and reserves (a) exceed, at the related origination date, in the aggregate, 10% of the initial principal balance of the Whole Loan (regardless of whether such funding or disbursement may be characterized as routine and/or customary and regardless of whether the Whole Loan has a primary servicer other than the Servicer) or (b) are not routine and/or customary escrow and reserve fundings or disbursements unless there is no material lender discretion;

40

(xii)     any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in the Borrower, a guarantor or other obligor, or releasing the Borrower, a guarantor or other obligor from liability under the Whole Loan, or modifying any of the Borrower, the guarantor or other obligor’s monetary liability under the Whole Loan other than pursuant to the specific terms of the Whole Loan and for which there is no lender discretion;

(xiii)    any determination of an Acceptable Insurance Default;

(xiv)    the modification, waiver, amendment, execution, termination or renewal of any lease, to the extent lender approval is required under the Loan Documents and if such lease falls within the definition of “Major Lease” (or analogous term) under the Loan Documents, in each case, subject to any deemed approval expressly set forth in the related lease;

(xv)     any adoption or implementation of a budget submitted by the Borrower with respect to the Whole Loan (to the extent lender approval is required under the Loan Documents), if (a) the Whole Loan is on the CREFC^® servicer watch list or (b) such budget includes material (more than 25%) increases in operating expenses or payments to entities actually known by the Servicer to be Affiliates of the Borrower (excluding affiliated managers paid at fee rates agreed to at the origination of the Whole Loan), subject in each case to any deemed approval expressly set forth in the Loan Documents; and

(xvi)    the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of the Borrower.

As used above, “material lender discretion” and “lender discretion” require mortgagee discretion in making the relevant decision regarding the release of collateral or the acceptance of substitute or additional collateral, as applicable, and such decision need not be based upon the satisfaction of specified objective conditions, the satisfactory delivery of certain factual evidence or opinions or the satisfaction of any other specified objective criteria that is set forth in the Loan Documents.

“Majority Controlling Class Certificateholders”: The Holder(s) of Certificates representing more than 50% of the Certificate Balance of the Controlling Class, as determined by the Certificate Registrar from time to time.

“Management Agreement”: As defined in the Loan Agreement.

“Master Servicing Fee”: A component of the Servicing Fee payable to the Servicer pursuant to Section 3.17, which will accrue at the Master Servicing Fee Rate, computed on the basis of the same principal amount, in the same manner, and for the same Interest Accrual Period for the Mortgage Loan respecting which any related interest payment on the Whole Loan is computed. Notwithstanding anything in Section 2.9 to the contrary, for so long as the Whole Loan is serviced pursuant to this Agreement, the Master Servicing Fee will at all times accrue on the Trust Notes. For the avoidance of doubt, the Master Servicing Fee shall be deemed to be payable from the Lower-Tier REMIC.

“Master Servicing Fee Rate”: 0.0075% (0.75 basis points) per annum.

41

“Material Breach”: As defined in Section 2.9(a).

“Material Document Defect”: As defined in Section 2.9(a).

“Maturity Date”: The Loan Payment Date in November 2031 or such earlier date as may result from prepayment, acceleration or otherwise of the Whole Loan in accordance with the terms of the Loan Agreement.

“Mezzanine Intercreditor Agreement”: That certain Intercreditor Agreement, dated as of October 8, 2021, between Morgan Stanley Bank, National Association, as senior lender, and Morgan Stanley Mortgage Capital Holdings LLC, as mezzanine lender.

“Mezzanine Loan”: That certain mezzanine loan made pursuant to the Mezzanine Loan Agreement, dated as of October 8, 2021, between Park Avenue Plaza Mezz I LLC, as borrower, and Morgan Stanley Mortgage Capital Holdings LLC, as lender.

“Modification Fees”: With respect to the Whole Loan, any and all fees collected from the Borrower with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Loan Documents agreed to by the Servicer or the Special Servicer, other than (a) any assumption fees, loan service transaction fees, consent fees or assumption application fees, (b) any fee in connection with a defeasance of all or a portion of the Whole Loan and (c) Special Servicing Fees, Workout Fees and Liquidation Fees.

“Monthly Payment”: With respect to the Mortgage Loan or the Whole Loan and any Distribution Date, the scheduled payment of principal and/or interest on the Mortgage Loan or the Whole Loan, as applicable, pursuant to the Loan Agreement and the related Balloon Payment, in each case which is due and payable on the immediately preceding Loan Payment Date.

“Monthly Payment Advance”: Any advance made by the Servicer pursuant to Section 3.23(a) or, in the case of a failure by the Servicer to make such Advance, by the Trustee pursuant to Section 3.23(c). Each reference to the reimbursement or payment of a Monthly Payment Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through the date of payment or reimbursement.

“Moody’s”: Moody’s Investors Service, Inc., and its successors-in-interest. If neither such rating agency nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

“Mortgage”: The security instrument securing the Whole Loan, as described in the Loan Agreement.

“Mortgage File”: As defined in Section 2.1(b), and any additional documents required to be added to the Mortgage File pursuant to this Agreement.

42

“Mortgage Loan”: As defined in the Introductory Statement.

“Mortgage Loan Lender”: Lender as defined in the Loan Agreement.

“Mortgage Loan Purchase Agreement”: As defined in the Introductory Statement.

“Mortgage Loan Seller”: As defined in the Introductory Statement.

“Mortgage Rate”: With respect to any Interest Accrual Period and the Whole Loan, the per annum rate at which interest (but not Default Interest) accrues thereon for such Interest Accrual Period as specified in the Loan Agreement.

“MSBNA”: As defined in the Introductory Statement.

“MSMCH”: As defined in the Introductory Statement.

“Net Foreclosure Proceeds”: With respect to the Foreclosed Property, the Foreclosure Proceeds with respect to such Foreclosed Property net of any insurance premiums, taxes, assessments, ground rents and other costs permitted to be paid therefrom pursuant to Section 3.14.

“Net Liquidation Proceeds”: The excess of Liquidation Proceeds received with respect to the Property or the Whole Loan, as the case may be, over the amount of Liquidation Expenses incurred with respect thereto.

“Net Mortgage Rate”: With respect to any Distribution Date, the annualized rate at which interest would have to accrue in respect of the Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months in each Interest Accrual Period in order to produce the aggregate amount of interest (net of the Servicing Fee Rate, the Certificate Administrator Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and exclusive of Default Interest) actually accrued on the Mortgage Loan during the related Interest Accrual Period; provided, that (i) except with respect to the final Distribution Date, the Net Mortgage Rate that would otherwise be in effect for purposes of the scheduled Mortgage Loan payment due in January of each year (other than a leap year and commencing in 2022) and February of each year (commencing in 2022) will be adjusted to take into account the applicable Withheld Amounts to be deposited in the Interest Reserve Account; and (ii) the Net Mortgage Rate that would otherwise be in effect for purposes of the scheduled Mortgage Loan payment due in March of each year (or February, if the related Distribution Date is the final Distribution Date) commencing in 2022, will be adjusted to take into account the related withdrawal from the Interest Reserve Account of the Withheld Amounts for the preceding January and, if applicable, February (or only January, if the related Distribution Date in February is the final Distribution Date). For purposes of calculating the Pass-Through Rate, the Net Mortgage Rate shall be determined without regard to any modification, waiver or amendment of the terms of the Mortgage Loan or the Whole Loan, whether agreed to by the Servicer, the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrower or otherwise, and without regard to the Property becoming a Foreclosed Property.

43

“Non-Trust Notes”: As defined in the Introductory Statement.

“Nondisqualification Opinion”: An Opinion of Counsel, prepared at the Trust Fund’s expense and payable from the Collection Account, that a contemplated action will not cause (i) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or (ii) a “prohibited transaction” or “prohibited contributions” tax to be imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC at any time that any Certificates are outstanding.

“Nonrecoverable Advance”: Any Advance or portion of an Advance previously made and not previously reimbursed, or proposed to be made, including interest on such Advance, which the Servicer, the Special Servicer or the Trustee determines in accordance with Accepted Servicing Practices (in the case of the Servicer or the Special Servicer) or good faith business judgment (in the case of the Trustee) would not be ultimately recoverable from subsequent payments or collections (including Foreclosure Proceeds, Liquidation Proceeds, Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property) and Insurance Proceeds) in respect of the Mortgage Loan (or, in the case of Property Protection Advances made on the Whole Loan, out of collections on the Whole Loan) or the Property or from funds on deposit in the Collection Account pursuant to Section 3.4(c). In making such recoverability determination, the Servicer, Special Servicer or Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Borrower under the terms of the Loan Documents as they may have been modified and (ii) the Property in its “as is” or then-current condition and occupancy, as modified by such party’s assumptions (consistent with Accepted Servicing Practices in the case of the Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee) regarding the possibility and effects of future adverse change with respect to the Property, (b) to estimate and consider (among other things) future expenses (c) to estimate and consider (consistent with Accepted Servicing Practices in the case of the Servicer or the Special Servicer or in its good faith business judgment in the case of the Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances, the recovery of which, at the time of such consideration, is being deferred or delayed by the Servicer, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. The Trustee will be entitled to rely conclusively on the Servicer’s determination that an Advance is a Nonrecoverable Advance, and the Trustee and the Servicer will be entitled to rely conclusively on the Special Servicer’s determination that an Advance is a Nonrecoverable Advance. If the Special Servicer requests that the Servicer make an Advance, the Trustee and the Servicer may (but shall not be obligated to) conclusively rely on such request as evidence that such advance is not a Nonrecoverable Advance.

With respect to a Companion Loan that has been included in an Other Securitization Trust, a “Nonrecoverable Advance” shall be a Companion Loan Advance or portion of a Companion Loan Advance previously made and not previously reimbursed, or proposed to be made, including interest on such Companion Loan Advance, which the related Other Servicer, Other Special Servicer or Other Trustee, as applicable, determines in accordance with the related Other Pooling and Servicing Agreement to be a “Nonrecoverable Advance” (or other analogous term) as defined in such Other Pooling and Servicing Agreement.

44

“Non-Book Entry Certificates”: As defined in Section 5.2(c).

“Non-Reduced Certificates”: As of any date of determination, any Class of Sequential Pay Certificates or the RR Interest then outstanding for which (a)(1) the initial Certificate Balance of such Class of Certificates minus (2) the sum (without duplication) of, as of such date of determination, (x) the aggregate payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of such Class of Certificates, (y) any Appraisal Reduction Amount and Collateral Deficiency Amount allocated to the Mortgage Loan then allocable to such Class of Certificates and (z) any Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses previously allocated to such Class of Certificates, is equal to or greater than (b) 25% of the remainder of (1) the initial Certificate Balance of such Class of Certificates less (2) any payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of such Class of Certificates as of such date of determination.

“Non-Retained Certificates”: As defined in the Introductory Statement.

“Non-Retained Certificate Available Funds”: On each Distribution Date shall be equal to the Non-Retained Percentage of the Aggregate Available Funds for such Distribution Date.

“Non-Retained Certificate Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the aggregate of the Certificate Balances of the Sequential Pay Certificates after giving effect to distributions made on such Distribution Date exceeds (ii) the product of (a) the Non-Retained Percentage and (b) the outstanding principal balance of the Mortgage Loan after giving effect to (x) any payments of principal received as of the related Determination Date, (y) any reduction of the outstanding principal balance of the Mortgage Loan by the amount of any Advances of delinquent principal with respect to the Mortgage Loan that have not otherwise been reimbursed by the Borrower or otherwise through collections in respect of principal on the Mortgage Loan and (z) the aggregate reductions of the principal balance of the Mortgage Loan that have been permanently made as a result of a bankruptcy proceeding, modification or otherwise.

“Non-Retained Percentage”: An amount expressed as a percentage equal to 100% less the Required Credit Risk Retention Percentage.

“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.3(f).

“Non-U.S. Person”: A Person other than a U.S. Person.

“Note”: As defined in the Introductory Statement.

“Note Rate”: With respect to any Interest Accrual Period and any Note, the per annum rate at which interest (but not Default Interest) accrues thereon for such Interest Accrual Period as specified in the Loan Agreement and the related Note. As of the Closing Date, the Note Rate with respect to each Note is a per annum rate equal to 2.8375%.

45

“Notional Amount”: In the case of the Class X Certificates, the Class X Notional Amount.

“Note Reverse Sequential Order”: As defined in, and applied under, the Intercreditor Agreement.

“NRSRO”: Any nationally recognized statistical ratings organization under the Exchange Act, including the Rating Agencies and any Companion Loan Rating Agency; provided that, when referred to in connection with the 17g-5 Information Provider’s Website, “NRSRO” shall mean a nationally recognized statistical rating organization that has delivered an NRSRO Certification.

“NRSRO Certification”: A certification substantially in the form of Exhibit M executed by an NRSRO in favor of the 17g-5 Information Provider.

“Offering Circular”: That certain Confidential Offering Circular, dated November 5, 2021, relating to the offering of the Certificates.

“Officer’s Certificate”: A certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President (however denominated), the Treasurer, the Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Servicing Officer, Responsible Officer or other officer of the Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller or any other entity referred to herein, as the case may be, customarily performing functions similar to those performed by any of the above designated officers and also with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and whose signatures and incumbency shall have been certified to the Certificate Administrator, the Trustee or the Custodian, as applicable.

“Opinion of Counsel”: A written opinion of counsel (which counsel, in the case of any such opinion of counsel relating to the taxation of the Trust Fund or any portion thereof, qualification of either REMIC formed hereunder as a REMIC or the imposition of tax under the REMIC Provisions on any income or property of either such REMIC, compliance with the REMIC Provisions (including application of the definition of “Independent Contractor”), shall be Independent of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian), who may, without limitation, be counsel for the Depositor, the Servicer or the Special Servicer, reasonably acceptable to the Trustee, the Certificate Administrator and the Custodian, as applicable.

“Original Lower-Tier Principal Amount”: With respect to any Class of Uncertificated Lower-Tier Interests, the initial Lower-Tier Principal Amount thereof as of the Closing Date, in each case as specified in the Introductory Statement.

“Origination Date”: October 8, 2021.

“Originator”: As defined in the Introductory Statement.

46

“Other Asset Representations Reviewer”: The party acting as “asset representations reviewer” (within the meaning of Item 1101(m) of Regulation AB) under any Other Pooling and Servicing Agreement.

“Other Certificate Administrator”: Any “certificate administrator” or analogous term under an Other Pooling and Servicing Agreement.

“Other Depositor”: Any depositor under an Other Pooling and Servicing Agreement.

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust (a) that is subject to the reporting requirements of the Exchange Act, the Other Depositor, Other Trustee, Other Certificate Administrator, Other Servicer and Other Special Servicer under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement, and (b) that is not the subject of the reporting requirements of the Exchange Act, and solely for purposes of Sections 10.7, 10.8, and 10.9, the Other Trustee, Other Certificate Administrator, Other Servicer, Other Special Servicer or Other Depositor that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

“Other Pooling and Servicing Agreement”: Any pooling and servicing agreement or other comparable agreement governing the creation of any Other Securitization Trust and issuance of securities backed by the assets of such Other Securitization Trust.

“Other Securitization Trust”: Any commercial mortgage securitization trust that holds the Companion Loan (or any portion thereof or interest therein).

“Other Servicer”: Any “master servicer” or analogous term under an Other Pooling and Servicing Agreement.

“Other Special Servicer”: Any “special servicer” or analogous term under an Other Pooling and Servicing Agreement.

“Other Trustee”: Any trustee under an Other Pooling and Servicing Agreement.

“PACE Loan”: Any (x) “Property-Assessed Clean Energy loan” or (y) other indebtedness, without regard to the name given to such indebtedness, which is (i) incurred for improvements to the Property for the purpose of increasing energy efficiency, increasing use of renewable energy sources, resource conservation, or a combination of the foregoing, and (ii) repaid through multi-year assessments against the Property.

“Pass-Through Rate”: With respect to (i) the Class A Certificates, the Class A Pass-Through Rate; (ii) the Class X Certificates, the Class X Pass-Through Rate; (iii) the Class B Certificates, the Class B Pass-Through Rate; (iv) the Class C Certificates, the Class C Pass-Through Rate; and (v) each Uncertificated Lower-Tier Interest (other than the Class LRR Uncertificated Interest), the Net Mortgage Rate.

47

The Class LRR Uncertificated Interest and the RR Interest do not have a specified Pass-Through Rate (other than for tax reporting purposes); however, the effective interest rates on the Class LRR Uncertificated Interest rate and the RR Interest will be a per annum rate equal to the Net Mortgage Rate.

“PCAOB”: The Public Company Accounting Oversight Board.

“Percentage Interest”: As to any Certificate, the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (other than the Class R Certificates), such “percentage interest” is equal to the initial Certificate Balance or Notional Amount, as applicable, of such Certificate divided by the initial aggregate Certificate Balance or Notional Amount, as applicable, of all of the Certificates of the related Class. With respect to the Class R Certificates, the percentage specified on the Certificate held by the Holder of such Certificate.

“Permitted Encumbrances”: As defined in the Loan Agreement.

“Permitted Investments”: Any one or more of the following obligations or securities acquired at a purchase price of not greater than par, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Loan Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

(i)          obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or an agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America and shall be limited to the following: (i) U.S. Treasury obligations (all direct or fully guaranteed obligations), (ii) Federal Housing Administration (debentures), (iii) Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, (iv) the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), (v) the U.S. Department of Housing and Urban Development public housing agency bonds (previously referred to as local authority bonds), (vi) RefCorp obligations, (vii) Farm Credit System consolidated systemwide bonds and notes, (viii) Federal Home Loan Banks’ consolidated debt obligations, (ix) Federal Home Loan Mortgage Corp. debt obligations and (x) Federal National Mortgage Association debt obligations; provided, with respect to any investment set forth in clauses (vii), (viii), (ix) and (x), if such investment has a maturity of (A) 30 days or less, the short-term obligations of which are rated at least “P-1” by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s, (B) three months or less, but more than 30 days, the short-term obligations of which are rated in the highest short-term debt rating category by Moody’s and the long-term obligations of which are rated at least “A2” by Moody’s, (C) six months or less, but more than three months, the short-term obligations of which are rated in the highest short-term debt rating category by Moody’s and the long-term obligations of which are rated at least “Aa3” by Moody’s, and (D) more than six months, the short-term obligations of which are

48

rated in the highest short-term debt rating category by Moody’s and the long-term obligations of which are rated “Aaa” by Moody’s;

(ii)         repurchase agreements on obligations specified in clause (i) of this definition, with a party agreeing to repurchase such obligations (A) in the case of such investments with maturities of 30 days or less, (x) the short term obligations of which are rated at least “P-1” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the long term obligations of which are rated at least “A” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates), (B) in the case of such investments with maturities of three months or less, but more than 30 days, (x) the short term obligations of which are rated at least “P-1” by Moody’s (or the long term obligations of which are rated at least “A2” by Moody’s), and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the long term obligations of which are rated at least “AA(low)” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates), (C) in the case of such investments with maturities of six months or less, but more than three months, (x) the short term obligations of which are rated at least “P-1” by Moody’s and the long term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), (x) the short term obligations of which are rated at least “P-1” by Moody’s and the long term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AAA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates);

(iii)        federal funds, unsecured uncertificated certificates of deposit, time deposits, demand deposits and bankers’ acceptances of any bank or trust company organized under the laws of the United States or any state thereof, (A) in the case of such investments with maturities of 30 days or less, (x) the short term obligations of which are rated at least “P-1” by Moody’s or the long term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the

49

long term obligations of which are rated at least “A” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates), (B) in the case of such investments with maturities of three months or less, but more than 30 days, (x) the short term obligations of which are rated at least “P-1” by Moody’s or the long-term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the long term obligations of which are rated at least “AA(low)” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation from each Rating Agency), (C) in the case of such investments with maturities of six months or less, but more than three months, (x) the short term obligations of which are rated at least “P-1” by Moody’s and the long-term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), (x) the short term obligations of which are rated at least “P-1” by Moody’s and the long-term obligations of which are rated at least “A2” by Moody’s or otherwise acceptable to such Rating Agency, and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AAA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, if not so rated, such lower rating as is the subject of a Rating Agency Confirmation from each Rating Agency);

(iv)        commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) (A) in the case of such investments with maturities of 30 days or less, (x) the short term obligations of which are rated at least “P-1” by Moody’s or the long term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the long term obligations of which are rated at least “A” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, if not so rated, such lower rating as is the subject of a Rating Agency Confirmation from each Rating Agency), (B) in the case of such investments with maturities of three months or less, but more than 30 days, (x) the short term obligations of which are rated at least “P-1” by Moody’s or the long-

50

term obligations of which are rated at least “A2” by Moody’s, and (y) the short term obligations of which are rated at least “R-1(middle)” by DBRS Morningstar or the long term obligations of which are rated at least “AA(low)” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, if not so rated, such lower rating as is the subject of a Rating Agency Confirmation from each Rating Agency), (C) in the case of such investments with maturities of six months or less, but more than three months, (x) the short term obligations of which are rated at least “P-1” by Moody’s (and the long-term obligations of which are rated at least “A2” by Moody’s), and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or, if not so rated, such lower rating as is the subject of a Rating Agency Confirmation from each Rating Agency), and (D) in the case of such investments with maturities of more than six months (but less than 365 days), (x) the long-term obligations of which are rated at least “A2” by Moody’s or the short-term obligations of which are rated at least “P-1” by Moody’s and (y) the short term obligations of which are rated at least “R-1(high)” by DBRS Morningstar or the long term obligations of which are rated at least “AAA” by DBRS Morningstar (if then rated by DBRS Morningstar and, if not so rated, an equivalent or higher rating by two other NRSROs) (or such lower rating as is the subject of a Rating Agency Confirmation relating to the Certificates);

(v)         units of taxable money market mutual funds, issued by regulated investment companies, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or Wells Fargo Money Market Funds) so long as any such fund is rated at least “Aaa-mf” by Moody’s and in the highest category for money market mutual funds by DBRS Morningstar (or is otherwise acceptable to such Rating Agencies, as confirmed in a Rating Agency Confirmation relating to the Certificates by each such Rating Agency); and

(vi)        any other demand, money market or time deposit, demand obligation or any other obligation, security or investment, provided that the Servicer, Special Servicer or Certificate Administrator, as applicable, has received a Rating Agency Confirmation relating to the Certificates.

Notwithstanding the foregoing, “Permitted Investments” (i) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change and cannot include any embedded options (i.e., it is not callable putable or convertible) unless full payment of principal is paid in cash upon the exercise of the option; (ii) shall only include instruments that qualify as “cash flow investments” (within the meaning of Section 860G(a)(6) of the Code); and (iii) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest

51

rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made that requires a payment above par for an obligation. All investments (a) shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder and (b) shall not have a maturity in excess of one year.

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees or insurance commissions or fees, received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to the Mortgage Loan, a Companion Loan, or the Foreclosed Property in accordance with this Agreement.

“Permitted Transferee”: Any Person or agent of such Person other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an ownership interest in any Class R Certificate to such Person will not cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Disqualified Non-U.S. Person, (d) any entity treated as a U.S. partnership if any of its partners, directly or indirectly (other than through a U.S. corporation) is (or is permitted to be under the partnership agreement) a Disqualified Non-U.S. Person or (e) a U.S. Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Person.

“Person”: Any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Plan”: As defined in Section 5.3(n).

“Plan Fiduciary”: As defined in Section 5.3(n).

“Primary Servicing Fee”: A component of the Servicing Fee payable to the Servicer pursuant to Section 3.17, which will accrue at the Primary Servicing Fee Rate, computed on the basis of the same principal amount, in the same manner, and for the same Interest Accrual Period for the Whole Loan respecting which any related interest payment on the Whole Loan is computed. For the avoidance of doubt, the Primary Servicing Fee shall be deemed to be payable from the Lower-Tier REMIC.

“Primary Servicing Fee Rate”: 0.0075% (0.75 basis points) per annum.

“Prime Rate”: The “prime rate” published in the “Money Rates” Section of The Wall Street Journal; if The Wall Street Journal ceases to publish the “prime rate”, then the Servicer shall select an equivalent publication that publishes such “prime rate”, and if such “prime rate” is no longer generally published or is limited, regulated or administered by a

52

governmental or quasi-governmental body, then the Servicer shall reasonably select a comparable interest rate index.

“Principal Distribution Amount”: For each Distribution Date, the sum of (i) the Non-Retained Percentage of the Regular Principal Distribution Amount for such Distribution Date and (ii) the aggregate unpaid Principal Shortfalls in respect of prior Distribution Dates.

“Principal Shortfall”: For each Distribution Date, the amount by which the Non-Retained Percentage of the Regular Principal Distribution Amount exceeds the portion of such amount actually distributed in respect of principal for the Sequential Pay Certificates on such Distribution Date.

“Privileged Information”: Any (i) correspondence or other communications between any of the Controlling Class Representative or the Risk Retention Consultation Party on the one hand, and the Special Servicer (or the Servicer and/or the Trustee), on the other hand, related to the Mortgage Loan, the Companion Loans or the Whole Loan following a Special Servicing Loan Event or the exercise of the consent or consultation rights of the Controlling Class Representative or the consultation rights of the Risk Retention Consultation Party under this Agreement; (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the Borrower or other interested party; and (iii) legally privileged information, in each case, as identified to the 17g-5 Information Provider; provided that a summary of any Final Asset Status Report prepared by the Special Servicer pursuant to the terms of this Agreement is deemed not to be Privileged Information (although no such summary shall be made available to the Guarantor, the Sponsor, the Property Manager, any foreclosing Mezzanine Lender or any Affiliate thereof, the Borrower or any Borrower Party, or any agent of the foregoing).

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, arbitration parties, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is (in the case of the Servicer, the Special Servicer, the Certificate Administrator and the Trustee, based on written legal advice), required by law, rule, regulation, order, judgment or decree to disclose such information.

“Privileged Person”: The Depositor and its designees, the Initial Purchaser, the Mortgage Loan Seller, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, any Companion Loan Holder, any party to an Other Pooling and Servicing Agreement, Controlling Class Representative (but only during any Subordinate Control Period or Subordinate Consultation Period), the Risk Retention Consultation Party, any NRSRO who provides an NRSRO Certification, or any Person who provides the Certificate Administrator with an Investor Certification in the form of Exhibit K-1 (but not the Guarantor, the Sponsor, the Property Manager, any foreclosing mezzanine lender or any of their respective

53

Affiliates, any Borrower Party, or any agent of the foregoing, which shall only be entitled to access the Distribution Date Statements).

“Pro Rata and Pari Passu Basis”: As defined in the Intercreditor Agreement.

“Property”: As defined in the Loan Agreement.

“Property Manager”: “Manager” as defined in the Loan Agreement.

“Property Protection Advances”: As defined in Section 3.23(b).

“QIB”: A “qualified institutional buyer” within the meaning of Rule 144A.

“Qualified Insurer Ratings”: With respect to an insurance company or security or bonding company qualified to write the related insurance policy in the relevant jurisdiction, with respect to any fidelity bond or errors and omissions insurance, a rating with respect to its claims paying ability of at least (a) “A-” by S&P, (b) “A(low)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent rating by at least two NRSROs (which may include S&P, Fitch and/or Moody’s)), (c) “A3” by Moody’s, (d) “A” by Fitch or (e) “A:X” by A.M. Best; provided, that an insurance carrier shall be deemed to have the applicable claims-paying ability ratings set forth above if the obligations of such insurance carrier under the related insurance policy are guaranteed or backed in writing by an entity that has long term unsecured debt obligations that are rated not lower than the ratings set forth above or claims-paying ability ratings that are not lower than the ratings set forth above.

“Qualified Servicer”: With respect to the applicable replacement Servicer or Special Servicer, (a) with respect to Moody’s, (i) the applicable replacement servicer or special servicer, as applicable, was appointed to act as, and currently serves as, the master servicer or special servicer on a transaction level basis, as applicable, on the closing date of a commercial mortgage-backed securities transaction with respect to which Moody’s rated one or more classes of certificates and one or more of such classes of certificates are still outstanding and rated by Moody’s and (ii) Moody’s has not cited servicing concerns of the applicable replacement servicer or special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other commercial mortgage-backed securities transaction serviced by the applicable replacement servicer or special servicer prior to the time of determination, or (b) with respect to DBRS Morningstar, either (i) the applicable replacement Servicer or Special Servicer has a rating by DBRS Morningstar higher than or equal to “MOR CS3” as a master servicer or special servicer, as applicable, or (ii) the applicable replacement Servicer or Special Servicer is currently acting as a servicer or special servicer, as applicable, on a transaction-level basis in a CMBS transaction currently rated by DBRS Morningstar that currently has securities outstanding and for which DBRS Morningstar has not cited servicing concerns of the replacement Servicer or Special Servicer, as applicable, as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities rated by DBRS Morningstar in a commercial mortgage-backed securitization transaction rated by DBRS

54

Morningstar and serviced by the applicable replacement Servicer or Special Servicer, as applicable, prior to the time of determination.

“Rated Final Distribution Date”: For each Class of Certificates (other than the Class R Certificates and the RR Interest), the Distribution Date occurring in November 2043.

“Rating Agencies”: Moody’s and DBRS Morningstar.

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in the form of electronic mail, facsimile, press release, posting to its internet website or such other means then considered industry standard as determined by the Rating Agencies) by the Rating Agencies that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates or, if applicable, any class of Companion Loan Securities, in each case, if then rated by the Rating Agencies; provided, that if a written waiver or acknowledgment (or such time for a response has lapsed) from a Rating Agency indicating its decision not to review or declining to review the matter for which the Rating Agency Confirmation is sought is received (such written notice, a “Rating Agency Declination”), the requirement to receive a Rating Agency Confirmation from such Rating Agency with respect to such matter will not apply; provided, further that any Rating Agency Confirmation is subject to the terms set forth in Section 3.26.

“Rating Agency Inquiry”: As defined in Section 12.18 of this Agreement.

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 12.18 of this Agreement.

“Record Date”: With respect to any Distribution Date, the close of business on the last day of the calendar month preceding the calendar month in which such Distribution Date occurs, or if such last day is not a Business Day, the preceding Business Day.

“Regular Certificates”: The Class A, Class X, Class B and Class C Certificates and the RR Interest.

“Regular Principal Distribution Amount”: For each Distribution Date and the Classes of Sequential Pay Certificates and the RR Interest in the aggregate, will equal (i) all amounts collected (and allocated to the Mortgage Loan pursuant to the terms of the Intercreditor Agreement) or advanced in respect of principal with respect to the Mortgage Loan during the related Collection Period and (ii) all amounts received during the related Collection Period in respect of principal on the Mortgage Loan from the Repurchase Price, all amounts allocated to principal with respect to the Mortgage Loan from Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property) or otherwise received and allocated to the Mortgage Loan pursuant to the terms of the Intercreditor Agreement in respect of principal on the Mortgage Loan.

“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to

55

such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time in each case as effective from time to time as of the compliance dates specified therein. Each of the parties hereto acknowledge that the Regulation AB provisions herein shall be construed as if the Certificates were publicly registered and reporting were required at all times.

“Regulation S”: Regulation S under the Act.

“Regulation S Global Certificate”: As defined in Section 5.2(a).

“Reimbursement Deferral Obligation”: As defined in Section 3.23(b).

“Related Certificates” and “Related Uncertificated Lower-Tier Interest”: For the following Classes of Certificates and Classes of Uncertificated Lower-Tier Interests, the related Class of Certificates or Class of Uncertificated Lower-Tier Interests, respectively, set forth below:

Related Certificates	Related Uncertificated Lower-Tier Interest
Class A Certificates	Class LA Uncertificated Interest
Class B Certificates	Class LB Uncertificated Interest
Class C Certificates	Class LC Uncertificated Interest
RR Interest	Class LRR Uncertificated Interest

“Relevant Action”: As defined in Section 3.26(e).

“Relevant Distribution Date”: With respect to any “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust holding a Companion Loan, the “Distribution Date” (or analogous concept) under the related Other Pooling and Servicing Agreement.

“REMIC”: A “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.

“REMIC Provisions”: Provisions of the Code relating to “real estate mortgage investment conduits,” including Sections 860A through 860G of the Code, the regulations promulgated thereunder and other published guidance interpreting the same.

“Remittance Date”: With respect to each Distribution Date, the Business Day immediately preceding such Distribution Date.

“Rents from Real Property”: With respect to any Foreclosed Property, gross income of the character described in Section 856(d) of the Code.

56

“REO Management Fee”: As to the Property when it is a Foreclosed Property, a fee payable out of the Foreclosed Property Account to the Successor Manager for managing such property while it is owned by the Trust Fund, which shall be reasonable and customary in the market in which such Property is located.

“Reportable Event”: As defined in Section 10.7.

“Reporting Servicer”: The Servicer, the Special Servicer and any Servicing Function Participant (including the Certificate Administrator, the Custodian, the Trustee (if and for such time as it is a Servicing Function Participant) and each Sub-Servicer), as the case may be; provided, that the Certificate Administrator and the Custodian shall only be Reporting Servicers on and after the date that a Companion Loan (or any portion thereof) is securitized; provided, further, that the Trustee shall be a Reporting Servicer only if, and for such time as, it has made an Advance during any calendar year covered by an annual report on assessment of compliance with servicing criteria.

“Repurchase Communication”: For purposes of Section 2.9(a) only, any communication, whether oral or written, which need not be in any specific form.

“Repurchase Price”: An amount (without duplication) equal to (A) with respect to any repurchase or sale of the Mortgage Loan, the sum of (i) the unpaid principal balance of the Mortgage Loan, (ii) accrued and unpaid interest on the Mortgage Loan at the Mortgage Rate (exclusive of the Default Interest) to and including the last day of the related Interest Accrual Period in which the repurchase is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances together with interest on such Advances, (iv) an amount equal to all interest on outstanding Monthly Payment Advances and Companion Loan Advances, (v) any unpaid Trust Fund Expenses and (vi) any other out-of-pocket expenses reasonably incurred or expected to be incurred by the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian arising out of the sale of the Mortgage Loan or the enforcement of the repurchase obligation, and (B) with respect to any sale of the Whole Loan pursuant to Section 3.16, the sum of (i) the unpaid principal balance of the Whole Loan, (ii) accrued and unpaid interest on the Whole Loan at the Mortgage Rate (exclusive of the Default Interest) to and including the last day of the related Interest Accrual Period in which the sale is to occur, (iii) unreimbursed Property Protection Advances and Administrative Advances together with interest on such Advances, (iv) an amount equal to all interest on outstanding Monthly Payment Advances and Companion Loan Advances, (v) any unpaid Trust Fund Expenses and (vi) any other out-of-pocket expenses reasonably incurred or expected to be incurred by the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian arising out of the sale of the Whole Loan or the enforcement of the repurchase obligation.

“Repurchase Request”: As defined in Section 2.9(a).

“Repurchase Request Withdrawal”: As defined in Section 2.9(a).

“Requesting Party”: As defined in Section 3.26(a).

“Required Advance Amount”: With respect to any Distribution Date, an amount equal to (a) the amount of the Monthly Payment Advance (taking into account any Appraisal

57

Reduction Amount allocable to the Mortgage Loan as of such Distribution Date) that would be required to be made on the related Remittance Date by the Servicer pursuant to this Agreement if the Borrower has not made any portion of the Monthly Payment (or an Assumed Monthly Payment) for the related Loan Payment Date or Assumed Loan Payment Date less (b) the aggregate compensation payable on such Remittance Date to (i) the Certificate Administrator in respect of the Certificate Administrator Fee (including the portion that is the Trustee Fee) and (ii) CREFC^® in respect of the CREFC^® Intellectual Property Royalty License Fee.

“Required Credit Risk Retention Percentage”: 5%.

“Reserve Account”: Any reserve account required to be maintained under the Loan Agreement.

“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.

“Responsible Officer”: With respect to (i) the Trustee, the Custodian and the Certificate Administrator, any director, vice president, assistant vice president, assistant secretary, treasurer, assistant treasurer, trust officer or other officer in the Corporate Trust department of the Trustee, the Custodian or the Certificate Administrator, as the case may be, having direct responsibility for the administration of this Agreement, and (ii) the Depositor, any director, vice president, assistant vice president, assistant secretary, treasurer, assistant treasurer, trust officer or any other officer of the Depositor, customarily performing functions similar to those performed by any of the above-designated officers with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and, in the case of any certification or other document required to be signed by a Responsible Officer, an authorized signatory whose name and specimen signature appears on a list furnished to the Servicer or the Special Servicer, as applicable, by the Depositor, as such list may from time to time be amended.

“Restricted Period”: As defined in Section 5.2(a).

“Retained Certificate Available Funds”: With respect to any Distribution Date, an amount equal to the Required Credit Risk Retention Percentage of the Aggregate Available Funds for such Distribution Date.

“Retained Certificate Interest Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of interest distributed to the Holders of the Regular Certificates (other than the RR Interest) pursuant to clauses first, fourth and seventh of Section 4.1(a) on such Distribution Date.

“Retained Certificate Principal Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of principal distributed to the Holders of the Regular Certificates (other than the RR Interest) pursuant to clauses second, fifth and eighth of Section 4.1(a) on such Distribution Date.

58

“Retained Certificate Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the Certificate Balance of the RR Interest after giving effect to distributions made on such Distribution Date exceeds (ii) the product of (a) the Required Credit Risk Retention Percentage and (b) the outstanding principal balance of the Mortgage Loan after giving effect to (x) any payments of principal received as of the related Determination Date, (y) any reduction of the outstanding principal balance of the Mortgage Loan by the amount of any Advances of delinquent principal with respect to the Mortgage Loan that have not otherwise been reimbursed by the Borrower or otherwise through collections in respect of principal on the Mortgage Loan, and (z) the aggregate reductions of the principal balance of the Mortgage Loan that have been permanently made as a result of a bankruptcy proceeding, modification or otherwise.

“Retained Interest Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be deemed to be owned by the Holder of the RR Interest.

“Retaining Party”: Morgan Stanley Bank, N.A. and any successor Holder of all or part of the RR Interest.

“Retaining Sponsor”: Morgan Stanley Mortgage Capital Holdings LLC, acting as retaining sponsor as such term is defined under § __.3(b) of the Credit Risk Retention Rules.

“Risk Retention Allocation Percentage”: The Required Credit Risk Retention Percentage divided by the Non-Retained Percentage.

“Risk Retention Consultation Party”: The Risk Retention Consultation Party shall be the party selected by the Holders of more than 50% of the RR Interest (by Certificate Balance, as determined by the Certificate Registrar) from time to time. The initial Risk Retention Consultation Party shall be Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company.

“RR Interest”: A Certificate (or all Certificates, as the context may require) designated as “RR Interest” on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

“RR Interest Transfer Restriction Period”: The period from the Closing Date to the earlier of: (i) the latest of: (A) the date on which the aggregate unpaid principal balance of the Mortgage Loan has been reduced to 33.0% of the Cut-off Date Balance of the Mortgage Loan; (B) the date on which the aggregate outstanding Certificate Balance of the Sequential Pay Certificates and the RR Interest has been reduced to 33.0% of the aggregate outstanding Certificate Balance of the Sequential Pay Certificates and the RR Interest as of the Closing Date; and (C) two years after the Closing Date; and (ii) the date on which the Credit Risk Retention Rules have been effectively abolished or officially determined by the relevant regulatory agencies to be no longer applicable to the Trust.

“Rule 144A”: As defined in Section 5.2(b).

“Rule 144A Global Certificate”: As defined in Section 5.2(b).

59

“Rule 15Ga-1 Notice”: As defined in Section 2.9(a).

“Rule 15Ga-1 Notice Provider”: As defined in Section 2.9(a).

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

“Sarbanes-Oxley Act”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

“Sarbanes-Oxley Certification”: With respect to an Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the certification required to be filed together with such Other Securitization Trust’s Exchange Act report on Form 10-K pursuant to Rule 13a-14 and Rule 15d-14 of the Exchange Act.

“Senior Non-Trust Notes”: Note A-4, Note A-5, Note A-6, Note A-7 and Note A-8.

“Senior Note”: As defined in the Introductory Statement.

“Sequential Pay Certificates”: The Class A, Class B and Class C Certificates.

“Servicer”: Wells Fargo Bank, National Association, in its capacity as servicer, and its successors in interest and assigns, or if any successor servicer is appointed as herein provided, such successor servicer.

“Servicer Customary Expense”: As defined in Section 3.17.

“Servicer Mortgage File”: means copies of the mortgage documents listed in the definition of “Mortgage File” relating to the Mortgage Loan and shall also include, to the extent required to be (and actually) delivered to the Mortgage Loan Seller pursuant to the Loan Documents, copies of the following items: any other guaranty/indemnity agreement, any insurance policies or certificates (as applicable), any property inspection reports, any financial statements on the Property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary, financial information on the Borrower or the Sponsor and any guarantors and any letters of credit.

“Servicer Servicing Personnel”: The divisions and individuals of the Servicer who are involved in the performance of the duties of the Servicer under this Agreement.

“Servicer Termination Event”: As defined in Section 7.1(a).

“Service(s)” or “Servicing”: In accordance with Regulation AB, the act of servicing and administering the Mortgage Loan or any other assets of the Trust or the Companion Loans by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities industry.

60

“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time and which as of the Closing Date are listed on Exhibit L hereto.

“Servicing Fee”: A fee payable monthly to the Servicer pursuant to Section 3.17 equal to the sum of the Primary Servicing Fee plus the Master Servicing Fee. For the avoidance of doubt, the Servicing Fee shall be deemed to be payable from the Lower-Tier REMIC.

“Servicing Fee Rate”: With respect to the Mortgage Loan, the sum of the Master Servicing Fee Rate and the Primary Servicing Fee Rate, and with respect to any Companion Loan, the Primary Servicing Fee Rate.

“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person (including the Trustee, the Certificate Administrator and the Custodian), other than the Servicer and the Special Servicer, that is performing activities that address the Applicable Servicing Criteria as of any date of determination. The Trustee is a Servicing Function Participant only if, and for such time as, it has made an Advance during any calendar year covered by an annual report on assessment of compliance with servicing criteria.

“Servicing Officer”: Any officer of the Servicer or the Special Servicer involved in, or responsible for, the administration and servicing of the Whole Loan whose name and specimen signature appear on a list of servicing officers furnished to the Trustee and the Certificate Administrator on the Closing Date by the Servicer or the Special Servicer, as applicable, in the form of an Officer’s Certificate, as such list may from time to time be amended.

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is fifteen (15) days after the Relevant Distribution Date occurring on or immediately following the date on which financial statements for such calendar quarter are required to be delivered to the Mortgage Loan Lender under the Loan Documents. The parties to this Agreement acknowledge that the date on which quarterly financial statements are required to be delivered to the Mortgage Loan Lender under the Loan Documents (in the event the Property is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to any Companion Loan held in an Other Securitization Trust) is, with respect to net operating income information, forty-five (45) days following the end of each fiscal quarter, subject to Section 9.1(f)(ii) of the Loan Agreement.

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the 120th day after the end of such calendar year. The parties to this Agreement acknowledge that the date on which annual financial statements are required to be delivered to the Mortgage Loan Lender under the Loan Documents (in the event the Property is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to any Companion Loan held in an Other Securitization Trust) is, with respect to net operating income information, ninety (90) days following the end of each fiscal year, as applicable, subject to Section 9.1(f)(ii) of the Loan Agreement.

61

“Similar Law”: As defined in Section 5.3(n).

“Special Notice”: As defined in Section 5.6.

“Special Servicer”: Wells Fargo Bank, National Association, in its capacity as special servicer, and its successors-in-interest and assigns, or if any successor Special Servicer is appointed as herein provided, such successor Special Servicer.

“Special Servicer Customary Expense”: As defined in Section 3.17.

“Special Servicer Servicing Personnel”: The divisions and individuals of the Special Servicer who are involved in the performance of the duties of the Special Servicer under this Agreement.

“Special Servicer Termination Event”: As defined in Section 7.1(a).

“Special Servicing Fee”: With respect to the Specially Serviced Mortgage Loan, a fee payable monthly to the Special Servicer equal to an amount computed on the basis of the same principal amount and for the same period respecting which any related interest payment on the Whole Loan is computed, at a rate of 0.25% (25 basis points) per annum, until the Special Servicing Loan Event with respect to such Specially Serviced Mortgage Loan no longer exists. Such fee shall be in addition to, and not in lieu of, any other fee or other sum payable to the Special Servicer under this Agreement. For the avoidance of doubt, the intent of the Designated Expense Reimbursement Section is to require the Borrower to be responsible for the payment of Special Servicing Fees and the Special Servicer shall be entitled to, and may collect, any Special Servicing Fees payable to it from the Borrower pursuant to the Designated Expense Reimbursement Section as would be calculated hereunder. For the avoidance of doubt, the Special Servicing Fee shall be deemed payable from the Lower-Tier REMIC and shall only accrue for the actual number of days that the Special Servicing Loan Event exists.

“Special Servicing Loan Event”: With respect to the Whole Loan, the Mortgage Loan or the Companion Loans, (i) the Borrower has not made two (2) consecutive Monthly Payments (and have not cured at least one such delinquency by the next Loan Payment Date under the Loan Documents) in respect of the Whole Loan; (ii) the Servicer and/or the Trustee have made three (3) consecutive Monthly Payment Advances with respect to the Mortgage Loan, or any Other Servicer and/or Other Trustee under any Other Pooling and Servicing Agreement have made three (3) consecutive Companion Loan Advances with respect to the Companion Loans (in each case, regardless of whether such Monthly Payment Advances or Companion Loan Advances, as applicable, have been reimbursed); (iii) the Borrower fails to make the Balloon Payment when due, and the Borrower has not delivered to the Servicer, on or before the due date of such Balloon Payment, a written refinancing commitment, letter of intent or otherwise binding application from an acceptable lender or signed purchase agreement and reasonably satisfactory in form and substance to the Servicer that provides that such refinancing or sale will occur within one hundred twenty (120) days after the date on which such Balloon Payment will become due (provided that a Special Servicing Loan Event will occur if either (x) such refinancing or sale does not occur before the expiration of the time period for refinancing or sale specified in such documentation or (y) the Servicer is required to make a Monthly Payment Advance at any time

62

prior to such refinancing or sale); (iv) the Servicer has received notice that the Borrower has become the subject as debtor of any bankruptcy, insolvency or similar proceeding, admitted in writing the inability to pay its debts as they come due or made an assignment for the benefit of creditors; (v) the Servicer has received notice of a foreclosure or threatened foreclosure of any lien on any of the property securing the Whole Loan; (vi) the Borrower has expressed in writing to the Servicer an inability to pay the amounts owed under the Whole Loan, the Mortgage Loan or a Companion Loan in a timely manner, (vii) in the judgment of the Servicer (consistent with Accepted Servicing Practices), a default in the payment of principal or interest under the Whole Loan, the Mortgage Loan or a Companion Loan is reasonably foreseeable and would likely continue unremedied beyond any applicable grace period (or, if no grace period is specified, for a period of 60 days) and is not likely to be cured by the Borrower within 60 days, unless (a) such reasonably foreseeable default is solely related to a reasonably foreseeable default in the payment of the Balloon Payment on the Maturity Date, (b) the Borrower requests the extension of the Maturity Date, (c) the Servicer (with the consent of the Special Servicer), grants an extension of the Maturity Date pursuant to Section 3.24 hereof and subject to the terms of the Intercreditor Agreement and (d) such extension occurs prior to the Maturity Date; or (viii) a default under the Whole Loan, the Mortgage Loan or a Companion Loan of which the Servicer has notice (other than a failure by the Borrower to pay principal or interest) and that in the judgment of the Servicer (consistent with Accepted Servicing Practices) materially and adversely affects the interests of the Certificateholders or the Companion Loan Holders has occurred and remains unremedied for the applicable grace period specified in the Loan Documents (or, if no grace period is specified, sixty (60) days); provided, that a Special Servicing Loan Event will cease (a) with respect to the circumstances described in any of clauses (i), (ii) and (iii) above, when the Borrower has brought the Whole Loan current (including pursuant to the workout of the Whole Loan) and, with respect to clauses (i) and (ii) above, after the occurrence of such event when the Borrower has made three (3) consecutive full and timely Monthly Payments on the Whole Loan, or (b) with respect to the circumstances described in clauses (iv), (v), (vi), (vii) and (viii) above, when such circumstances cease to exist in the judgment of the Special Servicer (consistent with Accepted Servicing Practices); provided, in any case, that at that time no other circumstance exists (as described above) that would constitute a Special Servicing Loan Event (in such circumstances, the Whole Loan and the Mortgage Loan shall be a “Corrected Mortgage Loan”).

“Specially Serviced Mortgage Loan”: As of any date of determination, the Whole Loan, Mortgage Loan or Companion Loan after the occurrence and during the continuance of a Special Servicing Loan Event.

“Sponsor”: Collectively, Park Avenue Plaza Company L.P. and The Sungate Park Avenue Delaware Trust.

“Startup Day”: As defined in Section 13.1(c).

“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities industry) of the Mortgage Loan but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to the Mortgage Loan under the direction or authority of the Servicer (or a Sub-Servicer of the Servicer), the

63

Special Servicer (or a Sub-Servicer of the Special Servicer) or an Additional Servicer (or a Sub-Servicer of an Additional Servicer).

“Subordinate Consultation Period”: Any period when both (i) the Certificate Balance of the Class C Certificates (taking into account the application of the Non-Retained Percentage of Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan to notionally reduce the Certificate Balance of such Certificates) is less than 25% of the initial Certificate Balance of the Class C Certificates and (ii) the Certificate Balance of the Class C Certificates (without regard to the application of Appraisal Reduction Amounts and Collateral Deficiency Amounts to the Control Eligible Certificates) is at least 25% of the initial Certificate Balance of the Class C Certificates; provided, if a majority of the Controlling Class, by Certificate Balance, is directly or indirectly held by the Guarantor, the Sponsor, the Property Manager, an affiliate of any of the Guarantor, the Sponsor or the Property Manager, or the Borrower or a Borrower Party or any agent of the foregoing, then a Subordinate Consultation Period shall be deemed not to be in effect.

“Subordinate Control Period”: Any period when the Certificate Balance of the Class C Certificates (taking into account the application of the Non-Retained Percentage of Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan to notionally reduce the Certificate Balance of such Certificates) is at least 25% of the initial Certificate Balance of the Class C Certificates; provided, (A) if at any time the Certificate Balances of the Class A and Class B Certificates have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loan, then a Subordinate Control Period shall be deemed to then be in effect, and (B) notwithstanding clause (A), if a majority of the Controlling Class, by Certificate Balance, is directly or indirectly held the Guarantor, the Sponsor, the Property Manager, an affiliate of the Guarantor, the Sponsor or the Property Manager, or the Borrower or a Borrower Party or any agent of the foregoing, then a Subordinate Control Period shall be deemed not to be in effect.

“Sub-Servicer”: Any Person that (i) is a Servicing Function Participant, (ii) Services the Mortgage Loan on behalf of the Trust, the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or any other Sub-Servicer and (iii) is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the servicing functions required to be performed by the Trust, the Certificate Administrator, the Custodian, the Servicer, the Special Servicer, Servicing Function Participant or an Additional Servicer, under this Agreement or any sub-servicing agreement (including any primary servicing agreement), with respect to the Mortgage Loan, that are identified in Item 1122(d) of Regulation AB.

“Successor Manager”: Any Independent Contractor as selected or retained by the Special Servicer, on behalf of the Trust Fund, to serve as manager of Foreclosed Property, which designation, as evidenced by written confirmation from each Rating Agency, will not result in the downgrade, withdrawal or qualification of the ratings assigned to the Certificates by such Rating Agency.

“Temporary Regulation S Global Certificate”: As defined in Section 5.2(a).

64

“Terminated Party”: As defined in Section 7.1(i).

“Terminating Party”: As defined in Section 7.1(i).

“Transaction Party”: As defined in Section 5.3(n).

“Transferee Affidavit”: As defined in Section 5.3(n)(ii).

“Transferor Letter”: As defined in Section 5.3(n)(ii).

“Treasury”: The United States Department of the Treasury.

“Triggering Event of Default”: As defined in the Intercreditor Agreement.

“Trust”: The trust formed pursuant to this Agreement.

“Trust Fund”: The corpus of the Trust created by this Agreement, consisting of (i) the Mortgage Loan, including the Trust Notes together with the Mortgage File relating thereto; (ii) all scheduled and unscheduled payments on or collections in respect of the Trust Notes; (iii) any Foreclosed Property (but only to the extent of the Trust’s interest therein) and Foreclosed Property Account (but only to the extent of the Trust’s interest therein); (iv) all revenues received in respect of any Foreclosed Property (but only to the extent of the Trust’s interest therein); (v) the Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Trustee’s and the Custodian’s rights under the insurance policies with respect to the Property required to be maintained pursuant to this Agreement and any proceeds thereof (but only to the extent of the Trust’s interest therein); (vi) any Collateral Security Documents; (vii) any indemnities or guaranties given as additional security for the Trust Notes (including any environmental indemnity agreements relating to the Property) (but only to the extent of the Trust’s interest therein); (viii) all funds deposited in the Collection Account (but only to the extent of the Trust’s interest therein), the Interest Reserve Account and the Distribution Account, including reinvestment income thereon (except as otherwise provided herein); (ix) the rights and remedies of the Depositor under the Mortgage Loan Purchase Agreement; (x) the security interest in the Reserve Accounts granted pursuant to Section 2.1 (but only to the extent of the Trust’s interest therein); (xi) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC; (xii) the Uncertificated Lower-Tier Interests; and (xiii) the proceeds of any of the foregoing.

“Trust Fund Expense Account”: As defined in the Loan Agreement.

“Trust Fund Expenses”: Any unanticipated and certain other default related expenses incurred by the Trust Fund (including, without limitation, all interest on Advances and all Borrower Reimbursable Trust Fund Expenses allocable to the Mortgage Loan, to the extent not reimbursed by the Borrower) and all other amounts (such as indemnification payments to any party to this Agreement) permitted to be retained, reimbursed, withdrawn or remitted by or to the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee, as applicable, from the Collection Account or the Distribution Account pursuant to this Agreement. Expenses incurred as a result of the exercise of the Servicer or Special Servicer, as applicable, of any right granted under the Loan Agreement to obtain terrorism insurance (but only if the

65

Borrower (i) is not required to purchase such terrorism insurance or (ii) is only required to purchase such terrorism insurance up to a cap) shall be a Trust Fund Expense.

“Trust Notes”: As defined in the Introductory Statement.

“Trustee”: Wilmington Trust, National Association, in its capacity as trustee, and its successors in interest, or any successor trustee appointed as herein provided.

“Trustee Fee”: The fee to be paid to the Trustee as compensation for the Trustee’s activities under this Agreement, which fee is payable at a rate of $290 per month and included as part of the Certificate Administrator Fee. For the avoidance of doubt, the Trustee Fee shall be deemed payable from the Lower-Tier REMIC.

“Uncertificated Lower-Tier Interest”: Any of the Class LA, Class LB, Class LC and Class LRR Uncertificated Interests.

“Uninsured Cause”: Any cause of damage to property of the Borrower subject to the Mortgage such that the complete restoration of such property is not fully reimbursable (but without regard to any applicable deductible provisions) by any insurance policy required to be maintained with respect thereto pursuant to the terms of the Loan Documents or this Agreement.

“Unscheduled Payments”: With respect to any Distribution Date, all payments and collections received by the Servicer, the Special Servicer, the Trustee or the Certificate Administrator, as applicable, with respect to the Mortgage Loan or upon foreclosure or liquidation of the Property (net of related foreclosure expenses and Liquidation Expenses) during the related Collection Period including, but not limited to, prepayments due to acceleration of the Mortgage Loan, Net Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property), Net Foreclosure Proceeds, voluntary prepayments and other payments and collections on the Mortgage Loan not scheduled to be received, other than Monthly Payments or the Balloon Payment.

“Upper-Tier Distribution Account”: A subaccount of the Distribution Account, which shall be an asset of the Trust Fund and the Upper-Tier REMIC.

“Upper-Tier REMIC”: One of the two separate REMICs comprising the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier Interests and such amounts as shall from time to time be held in the Upper-Tier Distribution Account.

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

66

U.S. Person) or (v) any other Person that is disregarded as separate from its owner for U.S. federal income tax purposes and whose owner is described in clauses (i) through (iv) above.

“Voting Rights”: The portion of the voting rights of all of the Certificates that is allocated to any Certificate or Class of Certificates. At any time that any Certificates are outstanding, the Voting Rights shall be allocated among the respective Class of Certificateholders as follows: (1) (x) except as described in clause (y) of this clause (1), 5% in the aggregate to the Class X Certificates (for so long as the Notional Amount of such Class has not been reduced to zero) and (y) 0% to the Class X Certificates in the case of votes pertaining to terminating and replacing the Special Servicer as described in Section 7.1 and (2) in the case of any Class of Regular Certificates other than the Class X Certificates, a percentage equal to the product of (x) the percentage of Voting Rights remaining after allocations in clause (1) above, and (y) a percentage equal to the aggregate Certificate Balance (and in connection with certain votes under this Agreement, including any vote to remove and replace the Special Servicer pursuant to Section 7.1, taking into account any notional reduction in the Certificate Balance for any allocable portion of Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan and allocated to the Sequential Pay Certificates or the RR Interest) of the Class, in each case, determined as of the prior Distribution Date, divided by the aggregate Certificate Balance (and in connection with certain votes under this Agreement, including any vote to remove and replace the Special Servicer pursuant to Section 7.1, taking into account any notional reduction in the Certificate Balance, for Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan and allocated to the Sequential Pay Certificates and the RR Interest) of all Classes of Certificates, each determined as of the prior Distribution Date. The Class R Certificates shall not be entitled to any Voting Rights.

“Weighted Average Note Rate”: The weighted average of the Note Rates (weighted based on the outstanding principal balances of the Notes as of the date of determination).

“Withheld Amounts”: As defined in Section 3.4(d).

“Whole Loan”: As defined in the Introductory Statement.

“Workout Fee”: A fee payable to the Special Servicer pursuant to Section 3.17 equal to 0.50% (50 basis points) of each payment of principal and interest (other than Default Interest) made on the Whole Loan following resolution of a Special Servicing Loan Event by a written agreement with the Borrower negotiated by the Special Servicer for so long as another Special Servicing Loan Event does not occur. For the avoidance of doubt, the intent of the Designated Expense Reimbursement Section is to require the Borrower to be responsible for the payment of Workout Fees and the Special Servicer will be entitled to, and may collect, any Workout Fees payable to it from the Borrower pursuant to the Designated Expense Reimbursement Section as would be calculated hereunder. Notwithstanding the foregoing, the Workout Fee with respect to the Specially Serviced Mortgage Loan once the Special Servicing Loan Event has ceased shall be reduced by any Modification Fees paid by or on behalf of the Borrower and received by the Special Servicer as compensation, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee and no Workout Fee

67

shall be payable in connection with a purchase of the Mortgage Loan or a Companion Loan by a mezzanine lender, if any, or any applicable designee pursuant to any purchase option granted in the related mezzanine intercreditor agreement (so long as such purchase occurs within 90 days of such mezzanine lender’s receipt of the first applicable purchase option pursuant to the terms of the Mezzanine Intercreditor Agreement).

“Yield Maintenance Premium”: Any prepayment premium provided for under the Loan Agreement or the Notes, as calculated by the Servicer or the Special Servicer, as applicable.

1.2.      Interpretation. (a)  Whenever this Agreement refers to a Distribution Date and a “related” Collection Period, Interest Accrual Period or Loan Payment Date, such reference shall be to the Collection Period, Interest Accrual Period or Loan Payment Date, as applicable, immediately preceding such Distribution Date.

(b)       Whenever this Agreement refers to a Distribution Date and an “applicable” Pass-Through Rate, such reference shall be to the Pass-Through Rate for the applicable Class for the related Interest Accrual Period.

(c)       The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified.

(d)       Interest on the Certificates (other than the Class R Certificates) shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

(e)       With respect to any indemnification provisions in this Agreement providing that a party to this Agreement is required to indemnify another party to this Agreement for attorneys’ fees and expenses, such fees and expenses are intended to include attorneys’ fees and expenses relating to the enforcement of such indemnity.

1.3.      Certain Calculations in Respect of the Mortgage Loan. (a)  The Servicer shall apply all amounts collected by or on behalf of the Trust in respect of the Mortgage Loan in the form of payments from the Borrower, Liquidation Proceeds (only the portion of such Liquidation Proceeds that are allocable to the Mortgage Loan pursuant to the terms of the Intercreditor Agreement will be available for distribution to Certificateholders), Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property) and Insurance Proceeds (excluding any amounts payable to the Companion Loan Holders pursuant to the Intercreditor Agreement), to amounts due and owing under the Loan Documents and the Intercreditor Agreement (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Loan Documents and the Intercreditor Agreement; provided, in the absence of such express provisions in the Loan Documents and/or the Intercreditor Agreement or if and to the extent that such terms authorize the Mortgage Loan Lender to use its discretion and in any event for purposes of calculating distributions hereunder after an Event of Default, the Servicer shall apply all such amounts collected in respect of the

68

Mortgage Loan (exclusive of any amounts payable to the Companion Loan Holders pursuant to the terms of the Intercreditor Agreement) in the following order of priority:

first, as a recovery of any related and unreimbursed Advances plus interest accrued thereon and, without duplication, unreimbursed Borrower Reimbursable Trust Fund Expenses allocated to the Mortgage Loan (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust Fund);

second, as a recovery of Nonrecoverable Advances or interest on Nonrecoverable Advances to the extent previously reimbursed from principal collections with respect to the Mortgage Loan (which amount is required to be treated as a collection on the Mortgage Loan in respect of principal in calculating the Regular Principal Distribution Amount);

third, to the extent not previously allocated pursuant to clause first or clause second above, as a recovery of accrued and unpaid interest on the Mortgage Loan (exclusive of Default Interest) to the extent of the excess of (i) accrued and unpaid interest on the Mortgage Loan at the Mortgage Rate (without giving effect to any increase in the Mortgage Rate required under the Loan Agreement as a result of a default under the Mortgage Loan) to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment from the Borrower, through the related Distribution Date), over (ii) after taking into account any allocations pursuant to clause fifth below on earlier dates, the aggregate portion of the accrued and unpaid interest described in subclause (i) of this clause third that either (a)(x) was not advanced because of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related Monthly Payment Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such Monthly Payment Advance from being made) would not have been advanced because of the reductions in the amount of the related Monthly Payment Advances for the Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or (b) accrued at the applicable Net Mortgage Rate on any related Collateral Deficiency Amount allocated to the Mortgage Loan and as to which no Monthly Payment Advance was made;

fourth, as a recovery of principal of the Mortgage Loan then due and owing, including by reason of acceleration of the Mortgage Loan following an Event of Default (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

fifth, as a recovery of accrued and unpaid interest on the Mortgage Loan to the extent of the sum of (i) the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or would have occurred in connection with related Appraisal Reduction

69

Amounts allocated to the Mortgage Loan but for such Monthly Payment Advances not having been made as a result of a determination that such Monthly Payment Advances would have been a Nonrecoverable Advance, plus (ii) any accrued and unpaid interest (exclusive of Default Interest) that accrued at the applicable Net Mortgage Rate on any related Collateral Deficiency Amount allocated to the Mortgage Loan and as to which no Monthly Payment Advance was made (to the extent collections have not been allocated as a recovery of such accrued and unpaid interest pursuant to this clause fifth on earlier dates);

sixth, as a recovery of amounts to be currently applied to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items;

seventh, as a recovery of any other reserves to the extent then required to be held in escrow;

eighth, as a recovery of any Yield Maintenance Premium then due and owing under the Mortgage Loan;

ninth, as a recovery of any Default Interest or late charges then due and owing under the Mortgage Loan;

tenth, as a recovery of any assumption fees, assumption application fees, consent fees, defeasance fees, loan service transaction fees, release fees, substitution fees, Modification Fees and similar fees then due and owing under the Mortgage Loan; and

eleventh, as a recovery of any other amounts then due and owing under the Mortgage Loan;

provided that, to the extent required under the REMIC Provisions to preserve the status of each REMIC formed hereunder as a REMIC or otherwise prevent the imposition of any tax thereon, payment or proceeds received with respect to the release of any portion of the Property (including following a condemnation) from the lien of the Mortgage and the other Loan Documents at a time when the loan-to-value ratio of the Mortgage Loan (or the Whole Loan) exceeds 125% (based solely upon the value of the remaining real property and excluding any personal property or going concern value) must be applied to reduce the principal balance of the Mortgage Loan in the manner permitted by the REMIC Provisions.

(b)       Collections by or on behalf of the Trust in respect of Foreclosed Property (exclusive of amounts to be applied to the payment of the costs of operating, managing, leasing, maintaining and disposing of such Foreclosed Property, and exclusive of any amounts payable to the Companion Loan Holders pursuant to the terms of the Intercreditor Agreement) shall be applied in the following order of priority:

first, as a recovery of any related and unreimbursed Advances plus interest accrued on such Advances and, without duplication, unreimbursed Borrower Reimbursable Trust Fund Expenses allocated to the Mortgage Loan (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust Fund);

70

second, as a recovery of Nonrecoverable Advances or interest on Nonrecoverable Advances to the extent previously reimbursed from principal collections with respect to the Mortgage Loan (which amount is required to be treated as a collection on the Mortgage Loan in respect of principal in calculating the Regular Principal Distribution Amount);

third, to the extent not previously allocated pursuant to clause first or clause second above, as a recovery of accrued and unpaid interest on the Mortgage Loan (exclusive of Default Interest) to the extent of the excess of (i) accrued and unpaid interest on the Mortgage Loan at the Mortgage Rate (without giving effect to any increase in the Mortgage Rate required under the Loan Agreement as a result of a default under the Mortgage Loan) to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment from the Borrower, through the related Distribution Date), over (ii) after taking into account any allocations pursuant to clause fifth below or clause fifth of subsection (a) above on earlier dates, the aggregate portion of the accrued and unpaid interest described in subclause (i) of this clause third that either (a)(x) was not advanced because of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related Monthly Payment Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such Monthly Payment Advance from being made) would not have been advanced because of the reductions in the amount of the related Monthly Payment Advances for the Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or (b) accrued at the applicable Net Mortgage Rate on any related Collateral Deficiency Amount allocated to the Mortgage Loan and as to which no Monthly Payment Advance was made;

fourth, as a recovery of principal of the Mortgage Loan to the extent of its entire unpaid principal balance;

fifth, as a recovery of accrued and unpaid interest on the Mortgage Loan to the extent of the sum of (i) the cumulative amount of the reductions (if any) in the amount of the interest portion of the related Monthly Payment Advances for the Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan or would have occurred in connection with related Appraisal Reduction Amounts allocated to the Mortgage Loan but for such Monthly Payment Advances not having been made as a result of a determination that such Monthly Payment Advances would have been a Nonrecoverable Advance, plus (ii) any accrued and unpaid interest (exclusive of Default Interest) that accrued at the applicable Net Mortgage Rate on any related Collateral Deficiency Amount allocated to the Mortgage Loan and as to which no Monthly Payment Advance was made (to the extent collections have not been allocated as a recovery of such accrued and unpaid interest pursuant to this clause fifth or clause fifth of subsection (a) above on earlier dates);

71

sixth, as a recovery of any Yield Maintenance Premium then due and owing under the Mortgage Loan;

seventh, as a recovery of any Default Interest or late charges then deemed to be due and owing under the Mortgage Loan;

eighth, as a recovery of any assumption fees, assumption application fees, consent fees, defeasance fees, loan service transaction fees, release fees, substitution fees, Modification Fees and similar fees then due and owing under the Mortgage Loan; and

ninth, as a recovery of any other amounts deemed to be due and owing in respect of the Mortgage Loan.

(c)       All net present value calculations and determinations made under this Agreement with respect to the Whole Loan, the Mortgage Loan, the Companion Loans or the Property or Foreclosed Property (including for purposes of the definition of “Accepted Servicing Practices”) shall be made by the Servicer or the Special Servicer, as applicable, using a discount rate appropriate for the type of cash flows being discounted; namely (i) for principal and interest payments on the Mortgage Loan or a Companion Loan or sale of the Mortgage Loan or a Companion Loan if it is a defaulted loan, the highest of (1) the rate determined by the Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar debt of the Borrower as of such date of determination, (2) the Weighted Average Note Rate, and (3) the yield on the most recently issued 10-year U.S. treasuries and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal).

2.             DECLARATION OF TRUST; ORIGINAL ISSUANCE OF CERTIFICATES

2.1.      Creation and Declaration of Trust; Conveyance of the Mortgage Loan. (a)  The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust designated as “Morgan Stanley Capital I Trust 2021-PLZA”, hereby sells, transfers, assigns, delivers, sets over, and otherwise conveys or causes to be conveyed in trust to the Trustee (on behalf of the Lower-Tier REMIC) for the benefit of the Upper-Tier REMIC and the Certificateholders, without recourse (except to the extent otherwise provided herein and in the Loan Documents), the Depositor’s right, title and interest, whether now owned or hereafter acquired, now existing or hereafter arising, wherever located, in and to all of the items referred to in the definition of “Trust Fund”, including without limitation (i) all rights and remedies of the Depositor under the Mortgage Loan Purchase Agreement, (ii) all right, title and interest of the Depositor in, to and under the Reserve Accounts, (iii) all right, title and interest of the Depositor in and to the Mortgage Loan as of the Closing Date and (iv) all other assets included or to be included in the Lower-Tier REMIC for the benefit of the Upper-Tier REMIC. Such sale, transfer and assignment include any related escrow accounts and any security interest under the Mortgage Loan (whether in real or personal property and whether tangible or intangible) and all related rights to payments made or required to be made to the Depositor by the Borrower or any other party under the Loan Documents relating to the Mortgage Loan. Such sale, transfer and assignment further include all Loan Documents relating to the Mortgage Loan.

72

(b)       In connection with such sale, transfer and assignment, the Depositor does hereby deliver to, and deposit with the Certificate Administrator, in its capacity as Custodian (i) the original Trust Notes (or if any Trust Note has been lost, a lost note affidavit with respect to such Trust Note), endorsed without recourse to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, solely in its capacity as Trustee for the benefit of the Certificateholders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, without recourse, representation or warranty”, which Trust Notes and all endorsements thereon shall show a complete chain of endorsement from the original payee(s) to the Trustee and (ii) on or before the date occurring fifteen (15) days after the Closing Date (the “Delivery Date”), the following documents or instruments with respect to the Mortgage Loan (collectively with the original Trust Notes required under clause (i) above, the “Mortgage File”), in each case executed by the parties thereto:

(A)      the original or a copy of the Loan Agreement, including all amendments thereto;

(B)       the original recorded counterpart of each Mortgage or a certified copy (or a copy provided by the applicable recording office if a certified copy cannot be provided by such office) of the recorded counterpart of each Mortgage;

(C)       each original Assignment of Mortgage, in favor of the Trustee and in a form that is complete and suitable for recording in each applicable jurisdiction in which the Property is located, to “Wilmington Trust, National Association, solely in its capacity as Trustee for the benefit of the Certificateholders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, and on behalf of the Companion Loan Holders”, without recourse and an original copy of any intervening Assignment of Mortgage (with evidence of recording thereon) showing a complete chain of assignments to the assignor(s) under the Assignment of Mortgage in favor of the Trustee;

(D)      if the related Assignment of Leases is separate from any Mortgage, the original or a copy of the assignment of Assignment of Leases, in favor of the Trustee and in a form that is complete and suitable for recording in each applicable jurisdiction in which the Property is located, to “Wilmington Trust, National Association, solely in its capacity as Trustee for the benefit of the Certificateholders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, and on behalf of the Companion Loan Holders”, without recourse, which assignment may be effected in the related Assignment of Mortgage, and an original copy of any intervening assignment of Assignment of Leases (with evidence of recording thereon) showing a complete chain of assignments to the assignor(s) under the assignment of Assignment of Leases in favor of the Trustee;

(E)       copies of the executed Non-Trust Notes;

(F)       an original or a copy of the Environmental Indemnity related to the Whole Loan;

(G)       an original or a copy of the Lock Box Agreement;

73

(H)       the original or a copy of any guaranty of the obligations of the Borrower under the Loan Agreement together with, as applicable, (A)  the original or copies of any intervening assignments of such guaranty showing a complete chain of assignment from the Mortgage Loan Lender to the most recent assignee thereof prior to the Trustee, if any, and (B) an original or a copy of the assignment of such guaranty executed by the most recent assignee thereof prior to the Trustee or, if none, by the Mortgage Loan Lender;

(I)        an original or a copy of any related cash management agreement;

(J)        where applicable, a copy of each UCC-1 financing statement (and an original thereof shall have been sent for filing), together with a UCC-3 financing statement, in a form that is complete and suitable for filing, disclosing the assignment from the secured party named in such UCC-1 financing statement to the Trustee of the security interest in the personal property and other UCC collateral constituting security for repayment of the Mortgage Loan;

(K)      the original or a copy of the lender’s title insurance policies obtained in connection with the origination of the Whole Loan (or marked, signed commitments to insure or pro forma title insurance policies), together with any endorsements thereto;

(L)       an original or a copy of any assignment of Management Agreement and originals or copies of the currently effective Management Agreements, if any, for the Property;

(M)     [reserved];

(N)      an original or a copy of the Mezzanine Intercreditor Agreement;

(O)      an original or a copy of the Intercreditor Agreement; and

(P)       any and all amendments, modifications and supplements to, and waivers related to, any of the foregoing;

provided that if the Depositor cannot deliver, or cause to be delivered, any of the documents and/or instruments referred to in clauses (ii)(B), (C), (D) and (J) of this Section 2.1(b) with evidence of filing or recording thereon (if intended to be recorded or filed), because of a delay caused by the public filing or recording office where such document or instrument has been delivered for filing or recordation, the delivery requirements of Section 2.1 shall be deemed to have been satisfied on a provisional basis as of the Delivery Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the Mortgage Loan Seller to be a true and complete copy of the original thereof submitted for filing or recording) is delivered to the Custodian on or before the Delivery Date, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the applicable public filing or recording office, in the case of the documents and/or instruments referred to in clauses (ii)(B), (C), (D) and (J) of this Section 2.1(b) to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within 180 days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing

74

Date as the Custodian shall consent to, which consent shall not be unreasonably withheld so long as the Depositor is, as certified in writing to the Custodian at the time of the initial extension and no less often than every ninety (90) days thereafter, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy).

The Depositor shall cause the Mortgage Loan Seller to provide the Servicer a copy of the Mortgage File on or prior to the Closing Date.

In addition, the Depositor shall deliver or cause to be delivered to the Servicer for its review, all required insurance policies or certificates issued by the insurers showing such insurance to be in effect on the Closing Date, together with proof of payment of premiums relating thereto (which may consist of such policies or certificates).

The Assignment of Mortgage, assignment of Assignment of Leases (if any), assignment of Collateral Security Documents (to the extent such documents are required to be recorded or filed) and UCC-3 financing statements to be filed in the appropriate filing offices or record depositories shall be filed or recorded, as applicable, by the Mortgage Loan Seller or the Depositor or its applicable designee, with instructions to return all such recorded documents, or other evidences of filing issued by the applicable governmental offices, to the Custodian, with a copy to the Servicer. If any such document is determined to be defective or not to be in compliance with the requirements of the applicable filing office or recording depository, or if any such document is lost or returned unrecorded because of a defect therein, the Custodian shall request that the Mortgage Loan Seller (i) prepare a substitute document and (ii) file or record (or cause to be filed or recorded) such substitute document in the appropriate filing offices or record depositories and deliver a copy of the same to the Custodian. Notwithstanding anything to the contrary contained in this Section 2.1(b), in those instances where the public recording office retains the original Mortgage, Assignment of Mortgage, assignment of Assignment of Leases (if any) or assignment of a Collateral Security Document, if applicable, after any has been recorded, the obligations of the Depositor hereunder and the obligations of the Mortgage Loan Seller under the Mortgage Loan Purchase Agreement shall be deemed to have been satisfied upon delivery to the Custodian of a copy of the Mortgage, Assignment of Mortgage, assignment of Assignment of Leases (if any) or assignment of a Collateral Security Document, if applicable, certified by the public recording office to be a true and complete copy of the recorded original thereof.

The ownership of the Trust Notes, the Mortgage, the Collateral Security Documents and all other contents of the Mortgage File shall be vested in the Trust or the Trustee in trust for the benefit of the Certificateholders and, other than with respect to the Trust Notes, the Companion Loan Holders. The Depositor, the Certificate Administrator, the Custodian, the Servicer and the Special Servicer agree to take no action inconsistent with the Trustee’s ownership of the Mortgage Loan and to promptly indicate to all inquiring parties that the Mortgage Loan has been sold and to claim no ownership interest in the Mortgage Loan. All original documents relating to the Mortgage Loan that are not delivered to the Custodian on behalf of the Trustee are and shall be held by the Depositor, the Servicer or the Special Servicer, as the case may be, in trust for the benefit of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section 2.1(b) to be a part of the Mortgage File, such document shall be delivered promptly to the Custodian on behalf of the Trustee.

75

The conveyance of the Mortgage Loan and the related rights and property accomplished hereby is absolute and is intended by the Depositor to constitute an absolute sale and transfer of the Mortgage Loan and such other related rights and property by the Depositor to the Trustee in trust for the benefit of the Certificateholders, in exchange for the Certificates being sold by the Depositor. Furthermore, it is not intended that such conveyance be a pledge of security for the Mortgage Loan. If such conveyance is determined to be a pledge of security for the Mortgage Loan, however, the Depositor and the Trustee intend that the rights and obligations of the parties to the Mortgage Loan shall be established pursuant to the terms of this Agreement. The Depositor and the Trustee also intend and agree that, in such event, (i) this Agreement shall constitute a security agreement under applicable law, (ii) the Depositor shall be deemed to have granted to the Trustee (in such capacity) a first priority security interest in all of the Depositor’s right, title and interest in and to the assets constituting the Trust Fund, including the Mortgage Loan subject hereto from time to time, all amounts received on or with respect to the Mortgage Loan after the Closing Date, all amounts held from time to time in the Collection Account, the Distribution Account, and, if established, the Foreclosed Property Account, and all of the Depositor’s right, title and interest under the Mortgage Loan Purchase Agreement, (iii) the possession by the Custodian or its agent of the Trust Notes with respect to the Mortgage Loan subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or Person designated by such secured party for the purpose of perfecting such security interest under applicable law, and (iv) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law.

Copies of all relevant servicing or loan documents and records in the possession of the Depositor or the Mortgage Loan Seller that relate to the Mortgage Loan and that are not required to be a part of the Mortgage File in accordance with the definition thereof shall be delivered to the Servicer, on or before the date that is thirty (30) days following the Closing Date and, to the extent actually received by the Servicer, shall be held by the Servicer on behalf of the Trustee for the benefit of the Certificateholders. To the extent delivered to the Servicer by the Mortgage Loan Seller, the Servicer Mortgage File shall include, to the extent required to be (and actually) delivered to the Mortgage Loan Seller pursuant to the applicable Loan Documents, copies of each item set forth in the definition of “Servicer Mortgage File” in this Agreement. Notwithstanding the foregoing, the Mortgage Loan Seller shall not be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of the Mortgage Loan Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if received, shall be returned and any copies thereof destroyed). Delivery of any of the foregoing documents to a sub-servicer shall be deemed delivery to the Servicer and satisfy the Depositor’s obligations under this paragraph. Neither the Servicer nor the Special Servicer shall have any liability for the absence of any of the foregoing items from the Servicer Mortgage File if such item was not delivered to the Servicer by the Mortgage Loan Seller.

76

2.2.      Acceptance by the Trustee and Custodian. (a)  By its execution and delivery of this Agreement, the Trustee acknowledges the assignment to it of the Mortgage Loan in good faith without notice of adverse claims and the Custodian declares that it holds and will hold or will cause to be held such documents as are delivered to it constituting the Mortgage File (to the extent the documents constituting the Mortgage File are actually delivered to it) in trust, upon the conditions herein set forth, for the use and benefit of all present and future Certificateholders and for the use and benefit of the Companion Loan Holders.

(b)       The execution and delivery of this Agreement by the Certificate Administrator shall constitute certification by the Custodian, that (i) the original Trust Notes specified in clause (b)(i) of the definition of “Mortgage File” and all allonges thereto, if any, have been received and reviewed by the Custodian on behalf of the Trustee; and (ii) each such original Trust Note has been reviewed by the Custodian and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. On the Closing Date, the Custodian shall deliver a certification substantially in the form of Exhibit U-1 certifying the items in the preceding sentence. Within 30 days after the Closing Date, the Custodian shall deliver a certification substantially in the form of Exhibit U-2 certifying that all documents referred to in Section 2.1(b) have been received and that each such document (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan. The Custodian shall have no responsibility for reviewing the Mortgage File except as expressly set forth in this Section 2.2(b). The Custodian shall be under no duty or obligation to inspect, review, or examine any such documents, instruments or certificates to independently determine that they are valid, genuine, enforceable, legally sufficient, duly authorized, or appropriate for the represented purpose, whether the text of any assignment or endorsement is in proper or recordable form (except to determine if the endorsement conforms to the requirements of Section 2.1(b)), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, to independently determine that any document has actually been filed or recorded in the appropriate office, that any document is other than what it purports to be on its face, or whether the title insurance policies relate to the Property.

(c)       Upon the first anniversary of the Closing Date, the Custodian shall (i) deliver a final exception report in the form of Exhibit U-3 (to the parties specified thereon) as to any remaining documents that are not in the Mortgage File and (ii) request that the Mortgage Loan Seller cause such document deficiency to be cured.

2.3.      Representations and Warranties of the Trustee. (a)  The Trustee hereby represents and warrants to the other parties hereto, and for the benefit of the Certificateholders, that as of the Closing Date:

(i)        the Trustee is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Trustee possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

77

(ii)       the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not violate the Trustee’s articles of association or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Trustee is a party or which may be applicable to the Trustee or any of its assets, which default or breach of such material contract, agreement or other instrument would have a material adverse effect on the Trustee’s performance of its obligations hereunder;

(iii)      except to the extent that the laws of any jurisdiction in which a part of the Trust Fund may be located require that a co-trustee or separate trustee be appointed to act with respect to such property as contemplated by Section 8.10, the Trustee has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)      this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

(v)       the Trustee, to its actual knowledge, is not in violation of, and the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Trustee or that would materially affect the performance of its duties hereunder or thereunder;

(vi)      no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Trustee of this Agreement or if required, such approval has been obtained prior to the Closing Date;

(vii)     to the best of the Trustee’s knowledge, no litigation is pending or threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement; and

(viii)    the Trustee is covered by errors and omissions insurance coverage which is in full force and effect or otherwise complies with the requirements of Section 8.6(b).

78

(b)       The respective representations and warranties of the Trustee set forth in this Section 2.3 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto.

2.4.      Representations and Warranties of the Certificate Administrator. (a)  The Certificate Administrator hereby represents and warrants to the other parties hereto, and for the benefit of the Certificateholders, that as of the Closing Date:

(i)        the Certificate Administrator is a national banking association, duly organized, validly existing, and is in good standing under the laws of the United States; the Certificate Administrator possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise and approvals to conduct its business and to execute, deliver and comply with its obligations under this Agreement;

(ii)       the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not violate the Certificate Administrator’s articles of association or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Certificate Administrator is a party or which may be applicable to the Certificate Administrator or any of its assets, which default or breach of such material contract, agreement or other instrument would have a material adverse effect on the Certificate Administrator’s performance of its obligations hereunder;

(iii)      except to the extent that the laws of any jurisdiction in which a part of the Trust Fund may be located require that a co-certificate administrator or separate certificate administrator be appointed to act with respect to such properties as contemplated by Section 8.10, the Certificate Administrator has the full power and authority to enter into and consummate the transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

(iv)      this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Certificate Administrator, enforceable against it in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, conservatorship, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);

(v)       the Certificate Administrator, to its actual knowledge, is not in violation of, and the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the

79

Certificate Administrator or that would materially affect the performance of its duties hereunder or thereunder;

(vi)      no consent, approval, authorization or order of, or registration of filing with, or notice to any court, governmental or regulatory agency or body, is required for the execution, delivery and performance by the Certificate Administrator of this Agreement or if required, such approval has been obtained prior to the Closing Date;

(vii)     to the best of the Certificate Administrator’s knowledge, no litigation is pending or threatened against the Certificate Administrator which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement; and

(viii)    the Certificate Administrator is covered by errors and omissions insurance coverage which is in full force and effect or otherwise complies with the requirements of Section 8.6(b).

(b)       The respective representations and warranties of the Certificate Administrator set forth in this Section 2.4 shall survive until the termination of this Agreement, and shall inure to the benefit of the other parties hereto.

2.5.      [Reserved]. 

2.6.      Representations and Warranties of the Servicer and Special Servicer. (a)  Wells Fargo Bank, National Association, as the Servicer and Special Servicer, hereby represents and warrants to the other parties hereto, and for the benefit of the Certificateholders, that as of the Closing Date:

(i)        it is duly organized, validly existing and in good standing as a national banking association under the laws of the United States of America, and throughout the term of this Agreement it shall remain such a national banking association, duly authorized and qualified to transact business in the jurisdiction where the Property is located to the extent required by applicable law and necessary to ensure the enforceability of the Whole Loan in accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

(ii)       the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its articles of association or by-laws, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets, which violation or default would have consequences that would materially and adversely affect its financial condition or its ability to perform its obligations hereunder;

80

(iii)      this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;

(iv)      it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

(v)       all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

(vi)      there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement; and

(vii)     it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, in either case in compliance with the requirements of Section 3.11(d).

(b)       The representations and warranties of the Servicer and Special Servicer set forth in this Section 2.6 shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto.

2.7.      [Reserved].

2.8.      Representations and Warranties of the Depositor. (a)  The Depositor hereby represents and warrants to the other parties hereto, and for the benefit of the Certificateholders, that as of the Closing Date:

(i)        the Depositor is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;

(ii)       the execution, delivery and performance of this Agreement by the Depositor have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution, delivery and performance of this Agreement, nor the consummation of the transactions herein contemplated, nor the compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under (A) any of the provisions of any law, rule, regulation, judgment, decree or order binding on the Depositor, (B) the organizational documents of the Depositor, or (C) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound or any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it;

81

(iii)      the execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;

(iv)      this Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);

(v)       there are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect its ability to perform its obligations under this Agreement;

(vi)      the Depositor is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default would materially and adversely affect the ability of the Depositor to perform its obligations hereunder;

(vii)     other than the actions taken pursuant to this Agreement, the Depositor has taken no action to impair or encumber the title to the Mortgage Loan or to subject it to any offsets, defenses or counterclaims during the Depositor’s ownership thereof;

(viii)    the Depositor is accounting for the transfer of the Mortgage Loan as a sale under generally accepted accounting principles and, for federal income tax purposes;

(ix)       the Depositor is not, and, after giving effect to the transfers contemplated under this Agreement, will not be, insolvent; and

(x)        the Depositor has not transferred the Mortgage Loan with an intent to hinder, delay or defraud its creditors.

(b)       The representations and warranties of the Depositor set forth in Section 2.8 shall survive until termination of this Agreement, and shall inure to the benefit of the Certificateholders, the Trustee, the Certificate Administrator, the Custodian, the Servicer and the Special Servicer.

(c)       Neither the Depositor nor any of its Affiliates shall insure or guarantee distributions on the Certificates. Subject to Section 2.8(a) and (b), neither the Certificateholders,

82

the Trustee or the Certificate Administrator on their behalf shall have any rights or remedies against the Depositor for any losses or other claims in connection with the Certificates or the Mortgage Loan except as expressly set forth herein.

2.9.      Representations and Warranties Contained in the Mortgage Loan Purchase Agreement. (a)  If (i) any party hereto (A) discovers or receives notice alleging that any document required to be delivered by the Mortgage Loan Seller to the Custodian pursuant to Section 2.1 is not delivered as and when required, is not properly executed or is defective on its face (each, a “Defect”) or (B) discovers or receives notice alleging a breach of any representation or warranty made by the Mortgage Loan Seller relating to the Mortgage Loan as set forth in Exhibit A to the Mortgage Loan Purchase Agreement (a “Breach”) or (ii) the Special Servicer or the Depositor receives a Repurchase Communication of a request or demand for repurchase of the Mortgage Loan alleging a Defect or Breach (any such request or demand, a “Repurchase Request”), then such party shall give prompt written notice of such Defect, Breach or Repurchase Request to the Mortgage Loan Seller, the other parties hereto and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website), to the extent notice has not previously been delivered to such Persons pursuant to this sentence, provided, the Custodian shall have no obligation to determine if a Breach has occurred. The Special Servicer shall determine if any such Defect or Breach materially and adversely affects the value of the Mortgage Loan or the interests of the Certificateholders therein (any such Defect or Breach, a “Material Document Defect” and a “Material Breach,” respectively). If such Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer shall promptly (but in any event within three (3) Business Days) give written notice thereof to the Mortgage Loan Seller, the other parties hereto and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website). A Defect or Breach that causes the Mortgage Loan to fail to be a “qualified mortgage”, within the meaning of Section 860G(a)(3) of the Code (without regard to the rule in Treasury Regulations Sections 1.860G-2(f)(2) that treats certain “defective obligations” as “qualified mortgages”) will automatically be a Material Document Defect or Material Breach, respectively. If such determination is that the Defect or the Breach is a Material Document Defect or a Material Breach, the Special Servicer shall request that the Mortgage Loan Seller (i) repurchase the Mortgage Loan at an amount equal to the Repurchase Price, (ii) promptly cure such Material Document Defect or Material Breach, as the case may be, in all material respects, in each case in accordance with the terms of the Mortgage Loan Purchase Agreement or (iii) if such Material Document Defect or Material Breach is not related to the Mortgage Loan not being a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) which causes a defective mortgage loan to be treated as a “qualified mortgage”), indemnify the Trust for losses directly related to such Material Document Defect or Material Breach, subject to receipt of a Rating Agency Confirmation from each Rating Agency with respect to such indemnity. In the case of a Material Document Defect or Material Breach that causes the Mortgage Loan to be other than a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as “qualified mortgages”), such repurchase, cure or indemnity payment shall occur within 85 days of the date of discovery of such Material Document Defect or Material Breach by any party to this Agreement. If a Responsible Officer of the Certificate Administrator or a Servicing Officer of the Servicer or the Special Servicer, has actual knowledge that the Mortgage Loan Seller has

83

defaulted on its obligation to cure, repurchase the Mortgage Loan or make an indemnity payment under the Mortgage Loan Purchase Agreement, such entity shall promptly notify the Trustee, the Certificate Administrator, the Servicer and the Special Servicer, as applicable, and the Certificate Administrator shall notify the Certificateholders of such default. The Trustee shall not have any obligation to determine if a Material Breach has occurred. The Special Servicer shall enforce the obligations of the Mortgage Loan Seller under Section 8 of the Mortgage Loan Purchase Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, shall be carried out in such form, to such extent and at such time as if it were, in its individual capacity, the owner of the Mortgage Loan. The Special Servicer shall be reimbursed for the reasonable costs of such enforcement (it being understood that a Liquidation Fee shall be payable to the Special Servicer as and only to the extent provided herein): first, from a specific recovery of costs, expenses or attorneys’ fees against the Mortgage Loan Seller; second, out of the Repurchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to clause (viii) of Section 3.4(c) out of collections on the Mortgage Loan on deposit in the Collection Account.

If the Special Servicer or the Depositor receives a Repurchase Communication of a withdrawal of a Repurchase Request of which notice has been previously received or given and which withdrawal is by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”), such party shall give written notice of such Repurchase Request Withdrawal to the Mortgage Loan Seller, the other parties hereto and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website), to the extent notice has not previously been delivered to such Persons pursuant to this sentence.

Each notice of a Repurchase Request or Repurchase Request Withdrawal required to be given by a party pursuant to this Section 2.9(a) (each, a “Rule 15Ga-1 Notice”) shall be given no later than the tenth (10th) Business Day after receipt of a Repurchase Communication of such Repurchase Request or receipt of a Repurchase Communication of such Repurchase Request Withdrawal, and shall include (i) the identity of the Mortgage Loan, (ii) the date such Repurchase Request was received or the date such Repurchase Request Withdrawal was received, as applicable, (iii) if known, the basis for the Repurchase Request (as asserted in the Repurchase Request) and (iv) in the case of Rule 15Ga-1 Notices provided by the Special Servicer, a statement as to whether the Special Servicer currently plans to pursue such Repurchase Request.

In the event that the Trustee, the Certificate Administrator, the Custodian or the Servicer receives a Repurchase Communication of a Repurchase Request or Repurchase Request Withdrawal, such party shall promptly forward such Repurchase Request or Repurchase Request Withdrawal to the Special Servicer and include the following statement in the related correspondence: “This is a “Repurchase Request” or a “Repurchase Request Withdrawal” under Section 2.9(a) of the Trust and Servicing Agreement relating to the Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, requiring action by you as the recipient of such Repurchase Request or Repurchase Request Withdrawal thereunder”. Upon receipt of such Repurchase Request or Repurchase Request Withdrawal by the Special Servicer, the Special Servicer shall be deemed to be the recipient of such Repurchase Request or Repurchase Request Withdrawal, and the Special Servicer shall

84

comply with the notice procedures set forth in this Section 2.9(a) with respect to such Repurchase Request or Repurchase Request Withdrawal.

No Person that is required to provide a Rule 15Ga-1 Notice pursuant to this Section 2.9(a) (a “Rule 15Ga-1 Notice Provider”) shall be required to provide any information in a Rule 15Ga-1 Notice that is protected by the attorney-client privilege or the attorney work product doctrine. The Mortgage Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice provided pursuant to this Section 2.9(a) is so provided only to assist the Mortgage Loan Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a Rule 15Ga-1 Notice Provider and (B) no information provided pursuant to this Section 2.9(a) by a Rule 15Ga-1 Notice Provider in a Rule 15Ga-1 Notice shall be deemed to constitute a waiver or defense to the exercise of any legal right that such Rule 15Ga-1 Notice Provider may have with respect to the Mortgage Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice.

(b)       Upon receipt by the Servicer from the Mortgage Loan Seller of the Repurchase Price for the Mortgage Loan or any indemnification payment by the Mortgage Loan Seller, (i) the Servicer shall deposit such amount in the Collection Account, and shall cause a Servicing Officer to certify to the Trustee and the Certificate Administrator as to the receipt by the Servicer of the Repurchase Price and the deposit thereof into the Collection Account pursuant to this Section 2.9(b) and shall deliver to the Custodian a Request for Release, in the form of Exhibit B hereto, regarding the Mortgage File related to the Mortgage Loan, (ii) the Trustee and the Certificate Administrator shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty (except that the Mortgage Loan is owned by the Trust and is being sold free and clear of liens and encumbrances), as shall be prepared by such designee to vest in such designee the Mortgage Loan released pursuant hereto and the Certificate Administrator, the Trustee, the Servicer and the Special Servicer shall have no further responsibility with regard to the Mortgage File, (iii) the Custodian shall release the Mortgage File pursuant to the Request for Release and (iv) if all of the Trust Notes are repurchased by the Mortgage Loan Seller, the Servicer shall release or cause to be released to the Mortgage Loan Seller any escrow payments and reserve funds held on the Trustee’s behalf, in respect of the Mortgage Loan (to the extent any action of the Servicer is required to be taken in order to release any such escrow payments or reserve funds under the terms of the Loan Documents). If the Servicer continues to service the Whole Loan under this Agreement pursuant to the terms of the Intercreditor Agreement following the Mortgage Loan Seller’s repurchase of the Mortgage Loan in accordance with the terms of the Mortgage Loan Purchase Agreement, then the Servicer shall not be required to make any Monthly Payment Advances with respect to the Mortgage Loan.

(c)       Notwithstanding anything to the contrary herein, no Defect (except for a Defect with respect to the document described in clause (i) of Section 2.1(b) and the documents described in clauses (ii)(B), (C), (D) and (H) of Section 2.1(b), which will be deemed to be a Material Document Defect) shall be considered to be a Material Document Defect unless the document with respect to which a Defect exists is required in connection with (A) an imminent enforcement of the Mortgage Loan Lender’s rights or remedies under the Mortgage Loan;

85

(B) defending any claim asserted by the Borrower or third party with respect to the Mortgage Loan; (C) establishing the validity or priority of any lien on any collateral securing the Mortgage Loan; or (D) any immediate significant servicing obligations, including without limitation, making a claim under a title policy. Notwithstanding the foregoing, the failure of the Mortgage Loan Seller to deliver to the Trustee and the Custodian copies of the UCC financing statements with respect to the Mortgage Loan shall not be a Material Document Defect. The Trust’s sole remedy against the Mortgage Loan Seller in connection with a Material Document Defect or Material Breach shall be to enforce the Mortgage Loan Seller’s cure, repurchase and/or indemnity obligations in accordance with the provisions of the Mortgage Loan Purchase Agreement.

In addition, if there is a Material Breach or Material Document Defect with respect to the Property or a portion thereof, the Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Property or portion may be released pursuant to the terms of any partial release provisions in the Loan Documents (and the Property or portion is, in fact, released), (ii) the remainder of the Property satisfies the requirements, if any, set forth in the Loan Documents and the Mortgage Loan Seller provides an opinion of counsel to the effect that such release would not cause an Adverse REMIC Event to occur and (iii) each Rating Agency has provided a Rating Agency Confirmation.

2.10.    Issuance of Uncertificated Lower-Tier Interests; Execution and Delivery of Certificates. The Trustee acknowledges the assignment in trust by the Depositor to the Trustee of the Trust Notes and other assets comprising the Trust Fund. Concurrently with such assignment and delivery and in exchange therefor, the Trustee acknowledges the issuance of (i) the Uncertificated Lower-Tier Interests to the Depositor and (ii) the Class LT-R Interest, in exchange for the Mortgage Loan, receipt of which is hereby acknowledged, and immediately thereafter, the Certificate Administrator acknowledges that it (i) has executed and has authenticated and delivered to or upon the order of the Depositor, the Regular Certificates and has issued the Class UT-R Interest in exchange for the Uncertificated Lower-Tier Interests and (ii) has executed and has authenticated and delivered to or upon the order of the Depositor, the Class R Certificates, representing the Class LT-R and Class UT-R Interests, and the Depositor hereby acknowledges the receipt by it or its designees, of the Regular Certificates and the Class R Certificates in authorized denominations, evidencing the entire beneficial ownership of the Upper-Tier REMIC.

2.11.    Miscellaneous REMIC Provisions.

(a)       The Class A, Class X-A, Class B and Class C Certificates and the RR Interest are hereby designated as the “regular interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class UT-R Interest, evidenced by the Class R Certificates, is hereby designated as the sole class of “residual interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

(b)       The Class LA, Class LB, Class LC and Class LRR Uncertificated Interests are hereby designated as the “regular interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class LT-R Interest, represented by the Class R

86

Certificates, is hereby designated as the sole class of “residual interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

3.            ADMINISTRATION AND SERVICING OF THE MORTGAGE LOAN

3.1.      Servicer to Act as the Servicer; Special Servicer to Act as the Special Servicer. The Servicer and the Special Servicer, each as an independent contractor, shall service and administer the Mortgage Loan (and the Companion Loans) and administer Foreclosed Property solely on behalf of the Trust Fund, in the best interest of, and for the benefit of, the Certificateholders and the Companion Loan Holders as a collective whole as if such Certificateholders and Companion Loan Holders constituted one lender (as determined by the Servicer or the Special Servicer, as applicable, in the exercise of its good faith and reasonable judgment and taking into account the subordinate nature of the Junior Note) in accordance with applicable law (including the REMIC Provisions), the terms of this Agreement, the Intercreditor Agreement and the Loan Documents and, to the extent consistent with the foregoing, the following standards: (i) the higher of (a) the same manner in which and with the same care, skill, prudence and diligence with which the Servicer or the Special Servicer, as applicable, services and administers similar loans and administers foreclosed properties for other third-party portfolios, giving due consideration to customary and usual standards of practice of prudent institutional commercial mortgage lenders in servicing their own loans and administering their own foreclosed properties and (b) the care, skill, prudence and diligence the Servicer or the Special Servicer, as applicable, uses for loans which it owns or for foreclosed properties it owns and administers; (ii) with a view to the timely collection of (a) all scheduled payments of principal and interest under the Mortgage Loan and the Companion Loans or, if the Mortgage Loan or a Companion Loan comes into and continues in default and if no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery on the Whole Loan to the Certificateholders and the Companion Loan Holders (as a collective whole as if the Certificateholders and the Companion Loan Holders constituted a single lender and taking into account the subordinate nature of the Junior Note) on a net present value basis and (b) all Borrower Reimbursable Trust Fund Expenses and other amounts due under the Loan Documents and (iii) without regard to any conflicts that may arise with respect to:

(A)      any relationship that the Servicer or the Special Servicer or any affiliate thereof may have with the Borrower, the Mortgage Loan Seller, any Companion Loan Holder, the Depositor or any of their respective affiliates;

(B)       the ownership of any Certificate or any Companion Loan or any interest in any Companion Loan or any mezzanine loan by the Servicer or Special Servicer or by any affiliate of the Servicer or the Special Servicer;

(C)       in the case of the Servicer, its obligation to make Advances;

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

87

(E)       the ownership, servicing or management for others of any other loans or property by the Servicer or the Special Servicer.

Subject to the above-described servicing standards (hereinafter referred to as “Accepted Servicing Practices”) and the terms of this Agreement, the Intercreditor Agreement and of the Loan Documents, the Servicer and the Special Servicer each shall have full power and authority, acting alone and/or through one or more sub-servicers as provided in Section 3.2, to do or cause to be done any and all things (including exercising the rights of the lender) in connection with such servicing and administration which it may deem necessary or desirable. The Servicer and the Special Servicer shall service and administer the Whole Loan in accordance with applicable state and federal law. At the written request of the Servicer or the Special Servicer, as applicable, accompanied by the form of power of attorney or other documents being requested, the Trustee shall furnish to the Servicer or the Special Servicer any powers of attorney (substantially in the form of Exhibit N hereto or such other form as reasonably acceptable to the Trustee and the Servicer or the Special Servicer, as applicable) and other documents necessary or appropriate to enable such Servicer or the Special Servicer to carry out its servicing and administrative duties hereunder, and the Trustee shall not be held responsible (and shall be indemnified by the Servicer or the Special Servicer) for any negligence or misuse by the Servicer or the Special Servicer in its uses of any such powers of attorney or other document. Notwithstanding anything contained herein to the contrary, the Servicer and the Special Servicer shall not without the Trustee’s prior written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the representative capacity of the Servicer or the Special Servicer, as applicable, or (ii) take any action with the intent to, and which actually does cause, the Trustee to be registered to do business in any state.

The liability of each of the Servicer and the Special Servicer, as applicable, for actions and omissions in its capacity as Servicer and the Special Servicer, respectively, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.3). Nothing contained in this Agreement shall be construed as an express or implied guarantee by the Servicer or the Special Servicer of the collectability of the Mortgage Loan or the Companion Loans.

The parties hereto acknowledge that the Whole Loan is subject to the terms and conditions of the Intercreditor Agreement, and each such party agrees that the provisions of the Intercreditor Agreement that are required by their terms to be set forth in this Agreement are hereby incorporated herein. With respect to the Whole Loan, the Trustee, the Certificate Administrator, the Custodian, the Servicer and the Special Servicer recognize the respective rights and obligations of the Trust and the Companion Loan Holders under the Intercreditor Agreement, including (i) with respect to the allocation of collections on or in respect of the Trust Notes and the Non-Trust Notes, (ii) with respect to the allocation of expenses and losses on or in respect of the Trust Notes and Non-Trust Notes and (iii) the consultation rights of the Companion Loan Holders, in each case as and to the extent provided in the Intercreditor Agreement. Each of the Servicer and the Special Servicer shall comply with the provisions of the Intercreditor Agreement and shall perform all duties and obligations to be performed by a servicer and perform all servicing-related duties and obligations to be performed by the holder of the related Mortgage Loan pursuant to the Intercreditor Agreement. The parties hereto agree that

88

any conflict between the terms of this Agreement and the terms of the Intercreditor Agreement shall be resolved in favor of the Intercreditor Agreement.

With respect to the Companion Loans, the Servicer or the Special Servicer as applicable shall prepare and make available (or to the extent required pursuant to the terms of the Intercreditor Agreement, deliver) to the Companion Loan Holders all notices, reports, statements and communications required to be delivered or made available to the Companion Loan Holders pursuant to the terms of Intercreditor Agreement.

Notwithstanding anything contained herein to the contrary, at no time shall the Servicer or the Trustee be required to make any administrative advance or advance of delinquent scheduled monthly payments of principal or interest with respect to the Companion Loans.

3.2.      Sub-Servicing Agreements. (a)   The Servicer and the Special Servicer, each at its own expense without a right of reimbursement under this Agreement or otherwise, may enter into sub-servicing agreements with sub-servicers for the servicing and administration of the Mortgage Loan and the Companion Loans, provided that (i) any such sub-servicing agreement shall be upon such terms and conditions as are not inconsistent with this Agreement and the Intercreditor Agreement and as the Servicer or the Special Servicer, as applicable, and the sub-servicer have agreed, and (ii) no sub-servicer retained by the Servicer or the Special Servicer, as applicable, shall grant any modification, waiver, or amendment to the Loan Documents without the approval of the Servicer or the Special Servicer, as applicable. References in this Agreement to actions taken or to be taken, and limitations on actions permitted to be taken, by the Servicer or the Special Servicer, as applicable, in servicing the Whole Loan include actions taken or to be taken by a sub-servicer on behalf of the Servicer or the Special Servicer, as applicable. Each sub-servicer shall be (i) authorized to transact business and licensed in the applicable state(s), if, and to the extent, required by applicable law to enable the sub-servicer to perform its obligations under the applicable sub-servicing agreement, and (ii) qualified to perform its obligations under the applicable sub-servicing agreement. For purposes of this Agreement, the Servicer or the Special Servicer, as applicable, shall be deemed to have received any amount when the sub-servicer receives such amount, irrespective of whether such amount is remitted to the Servicer or the Special Servicer, as applicable, for deposit in the Collection Account, any Cash Collateral Account, any Reserve Account or the Distribution Account, as applicable, and actions taken by the sub-servicer shall be deemed to be actions of the Servicer or the Special Servicer, as applicable. The Servicer or the Special Servicer, as applicable, shall notify the Trustee, the Certificate Administrator, the Borrower and the Depositor in writing promptly upon the appointment of any sub-servicer and promptly furnish the Trustee and the Certificate Administrator, upon its request, with a copy of the sub-servicing agreement. No sub-servicer shall be permitted to enter into any sub-servicing agreement with other sub-servicers without the prior written consent of the Servicer or the Special Servicer, as applicable.

(b)       Notwithstanding any sub-servicing agreement, the Servicer and the Special Servicer, as applicable, shall remain obligated and liable to the Trustee, the Certificateholders and the Companion Loan Holders for the servicing and administering of the Mortgage Loan, the Companion Loans or the Foreclosed Property, as applicable, in accordance with the provisions of Section 3.1 without diminution of such obligation or liability by virtue of

89

such sub-servicing agreement, or by virtue of indemnification from a sub-servicer, and to the same extent and under the same terms and conditions as if the Servicer or the Special Servicer, as applicable, alone were servicing and administering the Mortgage Loan, the Companion Loans or the Foreclosed Property, as applicable,.

(c)       Any sub-servicing agreement entered into by the Servicer or the Special Servicer, as applicable, shall provide that it may be assumed or terminated by (i) the Trustee if the Trustee has assumed the duties of the Servicer or the Special Servicer, as applicable, or if the Servicer or the Special Servicer, as applicable, is otherwise terminated pursuant to the terms of this Agreement, or (ii) a successor Servicer or the Special Servicer, as applicable, if such successor Servicer or the Special Servicer, as applicable, has assumed the duties of the Servicer or the Special Servicer, as applicable, without cost or obligation to the Trustee, the Certificate Administrator, the successor Servicer or the Special Servicer, as applicable, the Trust or the Trust Fund.

(d)       Any sub-servicing agreement, and any other transactions or services relating to the Mortgage Loan, the Companion Loans or Foreclosed Property, as applicable, involving a sub-servicer, shall be deemed to be between the Servicer or the Special Servicer, as applicable, and such sub-servicer alone, and the Trustee, the Certificate Administrator, the Depositor, the Trust, the Servicer or the Special Servicer, as applicable, and the Certificateholders and the Companion Loan Holders shall not be deemed parties thereto and shall have no claims, rights, obligations, duties or liabilities with respect to the sub-servicer, and no provision herein shall be construed so as to require the Trust, the Trustee, the Certificate Administrator or the Depositor to indemnify any such sub-servicer. The Servicer and the Special Servicer, as applicable, are permitted, at its own expense, or to the extent that a particular expense is provided herein to be an Advance or an expense of the Trust, at the expense of the Trust, to utilize other agents or attorneys typically used by servicers of mortgage loans underlying commercial mortgage backed securities in performing its obligations under this Agreement (including, but not limited to, inspectors, appraisers, engineers, insurance, tax or UCC consultants and property managers).

(e)       Notwithstanding anything herein, each of the initial Servicer and the initial Special Servicer may delegate certain of its duties and obligations hereunder to an Affiliate of the Servicer or Special Servicer, as applicable. Such delegation shall not be considered a sub-servicing agreement hereunder, and the requirements and obligations set forth herein applicable to sub-servicing agreements, sub-servicers or Servicing Function Participants shall not be applicable to such arrangement. Notwithstanding any such delegation, the Servicer and the Special Servicer shall remain obligated and liable for the performance of their respective obligations and duties under this Agreement in accordance with the provisions hereof to the same extent and under the same terms and conditions as if each alone were servicing and administering the Mortgage Loan, the Companion Loans or the Foreclosed Property, as applicable, as required hereby.

3.3.      Cash Collateral Account. A Cash Collateral Account has been or shall be established pursuant to the terms of the Loan Agreement. The Servicer shall exercise and enforce the rights of the Trust Fund with respect to the Cash Collateral Account under the Loan

90

Agreement in accordance with Accepted Servicing Practices and the other terms of this Agreement and the other Loan Documents.

3.4.      Collection Account. (a)  The Servicer shall establish and maintain in the name of “Wells Fargo Bank, National Association, as Servicer on behalf of Wilmington Trust, National Association, as Trustee for the benefit of the Certificateholders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA and any Holders of the Companion Loans” (or such other name or names as may be acceptable to the Depositor) one or more segregated deposit accounts (the “Collection Account”). The Collection Account must be an Eligible Account. The Servicer shall deposit or cause to be deposited into the Collection Account within two (2) Business Days after receipt of properly identified and available funds, the following amounts representing payments and collections received or made during each Collection Period on or with respect to the Whole Loan:

(i)        all payments on account of principal on the Mortgage Loan (or the Companion Loans, as applicable);

(ii)       all payments on account of interest on the Mortgage Loan (or the Companion Loans, as applicable), including Default Interest;

(iii)      any amount representing reimbursements by the Borrower of Advances, interest thereon, and any other expenses of the Depositor, the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer, as applicable, as required by the Loan Documents or hereunder;

(iv)      any other amounts payable for the benefit of the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Custodian, the Certificateholders or the Companion Loan Holders under the Whole Loan;

(v)       any amounts required to be deposited pursuant to Section 3.8(b) in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;

(vi)      all Net Foreclosure Proceeds received from the Special Servicer pursuant to Section 3.14 and all Net Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property); and

(vii)     any other amounts required by the provisions of this Agreement to be deposited into the Collection Account by the Servicer, including, without limitation, any (1) proceeds of any repurchase of the Mortgage Loan or indemnity payment in respect thereof pursuant to Section 2.9(b) and the Mortgage Loan Purchase Agreement, (2) proceeds of the sale of the Mortgage Loan and/or a Companion Loan by the Special Servicer pursuant to Section 3.16, or (3) amounts payable under the Loan Documents by any Person to the extent not specifically excluded.

91

The foregoing requirements for deposits in the Collection Account by the Servicer shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, payments (if any) in the nature of additional compensation (other than Default Interest and late payment charges) to which the Servicer or Special Servicer, as applicable are entitled pursuant to Section 3.17 and any reimbursement made by the Borrower of expenses of the Servicer or the Special Servicer need not be deposited in the Collection Account by the Servicer or Special Servicer and, to the extent permitted by applicable law, the Servicer or the Special Servicer, as applicable, shall be entitled to retain any such fees and expense reimbursements received with respect to the Mortgage Loan and the Companion Loans. Upon receipt of any of the amounts described in clauses (i) through (iv) and (vi) through (vii) of the first paragraph of this Section 3.4(a) with respect to any Specially Serviced Mortgage Loan, the Special Servicer shall promptly, but in no event later than one Business Day after receipt, remit such amounts to the Servicer for deposit into the Collection Account, unless the Special Servicer determines, consistent with Accepted Servicing Practices, that a particular item should not be deposited because of a restrictive endorsement.

(b)       Funds in the Collection Account may be invested in Permitted Investments in accordance with the provisions of Section 3.8. The Servicer shall on the Closing Date give written notice to the Certificate Administrator of the location and account number of the Collection Account and shall notify the Certificate Administrator in writing prior to any subsequent change thereof.

(c)       On or prior to each Remittance Date (or, following the securitization of any Companion Loan, in the case of clauses (ii), (v), (vi) and (vii) below, on the earlier of (A) the Remittance Date and (B) the Business Day succeeding the “determination date” (or other analogous term) set forth in the related Other Pooling and Servicing Agreement (provided, that such “determination date” must in no event occur prior to the 5th day of each month or the preceding Business Day), in each case as long as the date on which remittance is required under this subsection (c) is at least one (1) Business Day after the Loan Payment Date under the Loan Agreement), prior to the remittance of funds to the Certificate Administrator for deposit in the Distribution Account pursuant to Section 3.5, the Servicer shall make withdrawals from the Collection Account (which withdrawals shall be the only permitted withdrawals from the Collection Account by the Servicer) and related remittances as described below (the order set forth below not constituting an order of priority for such withdrawals unless otherwise indicated):

(i)        to withdraw funds deposited in the Collection Account in error;

(ii)       to reimburse (or pay) the Trustee (and, via the related Other Servicer, each Other Trustee) and the Servicer (and each Other Servicer), in that order, for any unreimbursed Nonrecoverable Advances made by each together with unpaid interest thereon at the Advance Rate in the following order of priority;

(A)         first, to reimburse Nonrecoverable Advances that are Property Protection Advances relating to the Mortgage Loan and the Property and interest thereon;

92

(B)          second, to first reimburse Nonrecoverable Advances that are Monthly Payment Advances, Administrative Advances or Companion Loan Advances on the Senior Notes and interest thereon, on a Pro Rata and Pari Passu Basis, then to reimburse Nonrecoverable Advances that are Monthly Payment Advances or Administrative Advances on the Junior Note and interest thereon; and

(C)          third, to reimburse, without duplication each Other Servicer and Other Trustee for any payments made in excess of the share of Nonrecoverable Advances allocated to the Companion Loan included in such Other Securitization Trust (determined in Note Reverse Sequential Order) previously paid from general collections on the related Other Securitization Trust;

(iii)       concurrently, to pay (A) the Servicing Fee to the Servicer, and (B) the Certificate Administrator Fee (including the portion that is the Trustee Fee) to the Certificate Administrator, as applicable;

(iv)      to pay (a) first, the Servicer, as additional compensation, any income earned (net of losses (subject to Section 3.8(b)) on the investment of funds deposited in the Collection Account and any Reserve Account (to the extent not payable to the Borrower); and (b) second, the Special Servicer, the Special Servicing Fee, Workout Fee and Liquidation Fee (in each case, if any);

(v)       to reimburse the Trustee (and any Other Trustee) and the Servicer (and each Other Servicer), in that order, for (a) Advances or Companion Loan Advances, as applicable, made by each and not previously reimbursed from late payments received during the applicable period on the Whole Loan, Liquidation Proceeds, Condemnation Proceeds (to the extent not made available for the repair or restoration of the affected portion of the Property), Insurance Proceeds and other collections on the Whole Loan; provided, that any Advance or Companion Loan Advance, as applicable, that has been determined to be a Nonrecoverable Advance shall be reimbursed pursuant to clause (ii) above and (b) unpaid interest on such Advances or Companion Loan Advances, as applicable, at the Advance Rate or other applicable advance rate; provided, that prior to (x) final liquidation of the Property or (y) the final payment and release of the Mortgage, interest on Advances or Companion Loan Advances, as applicable, shall be paid first out of Default Interest or late payment charges collected in the related Collection Period before such interest on Advances or Companion Loan Advances, as applicable, is paid out of other amounts collected in respect of the Whole Loan;

(vi)      to make any other required payments (other than payments under clause (ii) above and normal monthly remittances and reimbursements pursuant to clause (vii) below) due under the Intercreditor Agreement to any Companion Loan Holder;

(vii)     to remit to the Certificate Administrator and each Companion Loan Holder, as applicable, all remaining amounts on deposit in the Collection Account payable to the Mortgage Loan holder and related Companion Loan Holder, as applicable, pursuant to the Intercreditor Agreement with respect to such Mortgage Loan or

93

Companion Loan, exclusive of any outstanding amounts reimbursable to the Servicer, the Special Servicer, the Trustee or the Trust and allocable to such Mortgage Loan or Companion Loan, as applicable, in accordance with the Intercreditor Agreement;

(viii)    to reimburse the Trustee, the Servicer and the Special Servicer, in that order, for expenses incurred by them in connection with the liquidation of the Whole Loan or the Property and not otherwise covered and paid by an insurance policy or deducted from the proceeds of liquidation;

(ix)       concurrently, to pay to the Servicer and the Special Servicer, as applicable, as additional compensation, (a) to the extent actually received from the Borrower and allocated as such pursuant to the terms of the Loan Documents and this Agreement and deposited into the Collection Account by the Servicer, any payments in the nature of late payment fees and Default Interest (to the extent remaining after payments pursuant to clause (v) above and the allocation of late fees and Default Interest pursuant to the Intercreditor Agreement), assumption fees, assumption application fees, substitution fees, release fees, defeasance fees, loan service transaction fees, Modification Fees, insufficient fund fees, consent fees, and other similar fees and expenses and (b) any income earned (net of losses) on the investment of funds deposited in the Collection Account, any reserve account (to the extent not payable to the Borrower) and the Foreclosed Property Account; provided, that such amounts received during each Collection Period shall not be required to be deposited into the Collection Account and withdrawn pursuant to this clause (ix) solely for the purpose of determining the Aggregate Available Funds Reduction Amount in connection with the calculation of Non-Retained Certificate Available Funds or Retained Certificate Available Funds for the related Distribution Date;

(x)        to pay any accrued and unpaid CREFC^® Intellectual Property Royalty License Fees to CREFC^®;

(xi)       to the extent not previously paid or advanced pursuant to this Agreement and subject to the terms of the Intercreditor Agreement with respect to amounts allocable to any Companion Loan, to pay to the Certificate Administrator (or set aside for eventual payment) any and all taxes imposed on the Trust or the Trust Fund by federal or state governmental authorities; provided, that, if such taxes are the result of the Depositor’s, Servicer’s, Special Servicer’s, Certificate Administrator’s, Trustee’s or Custodian’s, as applicable, negligence, bad faith or willful misconduct in performing its obligations hereunder, such amounts may not be withdrawn from the Collection Account, but shall be paid by such party pursuant to Sections 6.5 and 8.12, as applicable; and

(xii)      to pay or reimburse the Certificate Administrator, the Trustee, the Custodian, the Depositor, the Servicer and the Special Servicer, in that order, for any other amounts (including any Trust Fund Expenses) then due and payable or reimbursable to each pursuant to the terms of this Agreement and the Intercreditor Agreement and not previously paid or reimbursed pursuant to the preceding clauses;

94

provided, that any amounts described in clauses (i) through (xii) above shall be reimbursed, first, from collections on the Junior Note, and then from collections on the Senior Notes on a Pro Rata and Pari Passu Basis.

Notwithstanding the foregoing, with respect to any Monthly Payment Advance, Administrative Advance or Companion Loan Advance (including interest thereon), such Advances or Companion Loan Advances (including interest thereon) shall be reimbursed from collections on the Whole Loan prior to any distributions to the holders of the Notes; provided, that (x) any such Advances or Companion Loan Advances (including interest thereon) outstanding in respect of the Senior Notes will be reimbursed (on a Pro Rata and Pari Passu Basis as between such Senior Notes, based on the respective outstanding principal balances of such Senior Notes) prior to any such advances outstanding in respect of the Junior Note.

Amounts allocable to the Companion Loans under the Intercreditor Agreement shall not otherwise be available to the Trust for purposes of making distributions on the Certificates or for payment of other amounts relating only to the Trust.

Notwithstanding the foregoing, with respect to any Remittance Date, in no event will the Servicer be permitted to make a withdrawal pursuant to clauses (iii), (iv)(b), (v), (viii) or (xii) above to the extent that, (1) the item proposed to be withdrawn, if not withdrawn, would be required to be advanced by the Servicer as an Administrative Advance or a Monthly Payment Advance with respect to such Remittance Date and (2) as a result of such withdrawal, the amount on deposit in the Collection Account after giving effect to the withdrawal would be less than the amount of the Required Advance Amount; provided that the Servicer shall be permitted to make withdrawals from the Collection Account as specified above in this Section 3.4(c) up to an amount that would result in funds remaining in the Collection Account equaling or exceeding the Required Advance Amount. Notwithstanding the foregoing, such withdrawal limitations shall not apply upon (1) the final liquidation of the Whole Loan and/or the Foreclosed Property, (2) the final payment of the Whole Loan and release of the Mortgage or (3) the determination that any Advance that would increase the currently unreimbursed Advances in the aggregate would be a Nonrecoverable Advance. In addition, notwithstanding the foregoing, the Servicer shall make Administrative Advances in the amounts, and under the circumstances and conditions, set forth in Section 3.23. In addition, the Servicer shall remit each Companion Loan Holder’s share of any late collections received by the Servicer from the Borrower to such Companion Loan Holder (or, to the extent the related Companion Loan is included in an Other Securitization Trust, the Other Master Servicer under the related Other Pooling and Servicing Agreement) within two (2) Business Days of receipt of properly identified funds.

The Servicer shall pay to the Certificate Administrator and the Trustee and advance or pay to the Special Servicer or the Depositor, if applicable, from the Collection Account as provided above amounts permitted to be paid to the Special Servicer, the Certificate Administrator, the Trustee and the Depositor therefrom, on the Remittance Date following receipt of certificates (received at least two (2) Business Days prior to the Remittance Date) of a Servicing Officer of the Special Servicer, a Responsible Officer of the Certificate Administrator or the Trustee or an officer of the Depositor, as applicable, describing the item and amount to which the Special Servicer, the Certificate Administrator, the Trustee or the Depositor, respectively, are entitled; provided, the Servicer shall pay the Certificate Administrator Fee to

95

the Certificate Administrator without requiring the delivery of such certificate. The Servicer may rely conclusively on any such certificate, shall have no duty to recalculate the amounts stated therein and shall have no liability if the amount paid in reliance thereon is an amount to which the Special Servicer, the Certificate Administrator, the Trustee or the Depositor, as applicable, is not entitled.

(d)       The Certificate Administrator shall establish and maintain in the name of the Certificate Administrator and for the benefit of the Trustee and the Certificateholders, a segregated non-interest bearing reserve account that is an Eligible Account or subaccount of an Eligible Account (and which may be a subaccount of the Distribution Account) (the “Interest Reserve Account”). Funds on deposit in the Interest Reserve Account shall be uninvested. On each Distribution Date occurring in January of each year (other than a leap year and commencing in 2022) and February of each year (commencing in 2022) (unless, in either case, such Distribution Date is the final Distribution Date), the Certificate Administrator shall deposit into the Interest Reserve Account an amount equal to one day’s net interest collected on the principal balance of the Mortgage Loan as of the Loan Payment Date occurring in the calendar month in which such Distribution Date occurs at the Net Mortgage Rate to the extent a full Monthly Payment or Monthly Payment Advance is made in respect thereof (all amounts so deposited in any January or February, “Withheld Amounts”). For purposes of this calculation, the Net Mortgage Rate for those months will be calculated without regard to any adjustment for Withheld Amounts or the interest accrual basis as described in the definition of “Net Mortgage Rate”. On each Remittance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding January and, if applicable, February (or only January, if the related Distribution Date in February is the final Distribution Date), if any, and transfer such amounts into the Distribution Account.

3.5.      Distribution Account. (a)  The Certificate Administrator shall establish and maintain in the name of the Certificate Administrator for the benefit of the Trustee and the Certificateholders a segregated non-interest bearing trust account (the “Distribution Account”), which shall be deemed to include the Lower-Tier Distribution Account and the Upper-Tier Distribution Account, which shall be subaccounts of the Distribution Account for the benefit of the Certificateholders and the Trustee, as holder of the Uncertificated Lower-Tier Interests. The Distribution Account must be an Eligible Account. On each Remittance Date, the Aggregate Available Funds in the Collection Account (other than any Withheld Amounts to be added to such funds pursuant to Section 3.4(d)) shall be remitted by the Servicer to the Certificate Administrator for deposit into the Distribution Account (or, in the case of Withheld Amounts, as and to the extent provided in Section 3.4(d), into the Interest Reserve Account). The Certificate Administrator shall credit the funds remitted by the Servicer from the Collection Account to the Distribution Account. Amounts held in the Distribution Account shall remain uninvested.

(b)       The Certificate Administrator shall make withdrawals from the Distribution Account (i) to withdraw any amounts deposited therein in error, (ii) to deposit any required Withheld Amounts into the Interest Reserve Account pursuant to Section 3.4(d) and (iii) to make distributions to the Holders of the Certificates pursuant to Section 4.1.

96

(c)       The Certificate Administrator shall make or be deemed to have made withdrawals from the Lower-Tier Distribution Account in the following order of priority and only for the following purposes:

(i)        to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.1(c) and Section 4.3(b) into the Upper-Tier Distribution Account and to make distributions to the Holder of the Class R Certificates (in respect of the Class LT-R Interest) pursuant to Section 4.1(c);

(ii)       to withdraw amounts deposited into the Lower-Tier Distribution Account in error and pay such amounts to the Persons entitled thereto; and

(iii)      to clear and terminate the Lower-Tier Distribution Account pursuant to Section 11.2.

(d)       The Certificate Administrator shall make withdrawals from the Upper-Tier Distribution Account in the following order of priority and only for the following purposes:

(i)        to withdraw amounts deposited in error;

(ii)       to make distributions to Holders of the Regular Certificates and the Class R Certificates (in respect of the Class UT-R Interest) on each Distribution Date pursuant to Section 4.1 or Section 11.1 and Section 11.2 as applicable; and

(iii)      to clear and terminate the Upper-Tier Distribution Account at the termination of this Agreement pursuant to Section 11.2.

3.6.      Foreclosed Property Account. The Special Servicer shall establish and maintain one or more deposit accounts (the “Foreclosed Property Account”) in the name of “Wells Fargo Bank, National Association, as Special Servicer on behalf of Wilmington Trust, National Association, as Trustee for the benefit of the Certificateholders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA and the Companion Loan Holders” related to the Foreclosed Property, if any, held either (a) in the name of the Special Servicer on behalf of the Trustee for the benefit of the Certificateholders and the Companion Loan Holders or (b) in the name of the limited liability company formed to hold title to such Foreclosed Property, which is wholly owned by the Trust and managed by the Special Servicer for the benefit of the Trustee on behalf of the Certificateholders and the Companion Loan Holders. The Foreclosed Property Account must be an Eligible Account. The Special Servicer shall deposit or cause to be deposited into the Foreclosed Property Account within two (2) Business Days of receipt all funds collected and received in connection with the operation or ownership of such Foreclosed Property. On or before the last day of each Collection Period, the Special Servicer shall withdraw the funds in the Foreclosed Property Account, net of certain expenses and/or reserves, and remit the funds received as of the end of the immediately preceding Collection Period to the Collection Account in accordance with Section 3.4(a). The Special Servicer shall notify the Trustee and the Certificate Administrator in writing of the location and account number of the Foreclosed Property Account and shall notify the Trustee and the Certificate Administrator in writing prior to any subsequent change thereof.

97

3.7.      Appraisal Reductions. (a)  Within thirty (30) days after the occurrence of an Appraisal Reduction Event, the Special Servicer shall notify the Servicer, the Certificate Administrator, the Trustee, the Controlling Class Representative (during any Subordinate Control Period), the Risk Retention Consultation Party and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the related Other Servicer and Other Special Servicer), of such occurrence of an Appraisal Reduction Event and order an independent Appraisal of the Property unless an Appraisal of the Property was performed within nine (9) months prior to the Appraisal Reduction Event and the Special Servicer is not aware of any material change in the market or condition or value of the Property. The Special Servicer shall use efforts consistent with Accepted Servicing Practices to obtain such updated Appraisal within sixty (60) days after the occurrence of an Appraisal Reduction Event. The Special Servicer shall determine on the basis of the applicable Appraisal whether there exists any Appraisal Reduction Amount and shall give notice thereof to the Trustee, the Certificate Administrator, the Servicer, the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer, and Other Certificate Administrator with respect to such Other Securitization Trust), the Risk Retention Consultation Party and, during any Subordinate Control Period, the Controlling Class Representative. The cost of obtaining such Appraisal shall be paid by the Servicer as a Property Protection Advance unless it would constitute a Nonrecoverable Advance and in such case, subject to the allocation provisions of the Intercreditor Agreement, as an expense of the Trust. Updates of Appraisals shall be obtained by the Special Servicer and paid for by the Servicer as a Property Protection Advance (or, subject to the allocation provisions of the Intercreditor Agreement, paid for by the Trust if the Servicer determines that such Advance would constitute a Nonrecoverable Advance) every nine (9) months for so long as the Whole Loan remains specially serviced, and the Appraisal Reduction Amount shall be adjusted accordingly. If required in accordance with such adjustment, each Class of Certificates and any Companion Loan that has been notionally reduced as a result of Appraisal Reduction Amounts shall have its related Certificate Balance or principal balance, as applicable, notionally restored to the extent required by such adjustment of the allocable portion of Appraisal Reduction Amount, and the Certificate Administrator shall redetermine whether a Subordinate Control Period and/or a Subordinate Consultation Period is then in effect. Any such Appraisal obtained shall be delivered by the Special Servicer to the Certificate Administrator (with a copy to the Trustee and the Servicer), the Controlling Class Representative (during any Subordinate Control Period), each Companion Loan Holder (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer, Other Special Servicer, Other Trustee and Other Certificate Administrator with respect to such Other Securitization Trust) and the Risk Retention Consultation Party, in electronic format and the Certificate Administrator shall make such Appraisal available to Privileged Persons pursuant to Section 8.14(b). The Special Servicer shall promptly notify the Servicer of the amount of any Appraisal Reduction Amount and, after receipt of such information from the Special Servicer, the Servicer shall promptly notify the Certificate Administrator of the amount of any Appraisal Reduction Amount (which notification may be satisfied through the delivery of such information included in the CREFC® Loan Periodic Update File pursuant to Section 3.18(a)). Any Appraisal Reduction Amount will be calculated in respect of the Whole Loan taken as a whole and any such Appraisal Reduction Amount will be allocated first, to the Junior Note, and then to the Senior Notes on a Pro Rata and Pari Passu Basis.

98

(b)       To the extent that an Appraisal Reduction Amount exists and is allocated to the Mortgage Loan, (i) the amount of any Monthly Payment Advances shall be reduced as provided in Section 3.23(a) and (ii) the Voting Rights of certain Classes of Certificates will be reduced to the extent provided for herein.

(c)       Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Mortgage Loan shall be allocated between the RR Interest on the one hand and the Sequential Pay Certificates, on the other hand, based on the Required Credit Risk Retention Percentage and the Non-Retained Percentage, respectively.

(d)       To the extent that an Appraisal Reduction Amount or Collateral Deficiency Amount exists and is allocated to the Mortgage Loan, the Certificate Balances of the Sequential Pay Certificates shall be notionally reduced (solely for purposes of determining the Voting Rights of the related Classes) on any Distribution Date to the extent of the Allocated Appraisal Reduction Amount or Allocated Collateral Deficiency Amount allocated to such Class on such Distribution Date. Any Allocated Appraisal Reduction Amount or Allocated Collateral Deficiency Amount allocated to the Mortgage Loan for any Distribution Date shall be applied to notionally reduce the Certificate Balances of the Sequential Pay Certificates in the following order of priority: to the Class C, Class B and Class A Certificates, in that order (provided in each case that no Certificate Balance in respect of any such Class may be notionally reduced below zero).

To the extent that an Appraisal Reduction Amount or Collateral Deficiency Amount exists and is allocated to the Mortgage Loan, the Certificate Balance of the RR Interest shall be notionally reduced (solely for purposes of determining the Voting Rights of the related Classes) on any Distribution Date to the extent of the Required Credit Risk Retention Percentage of such allocable portion of the Appraisal Reduction Amount or Collateral Deficiency Amount on such Distribution Date.

(e)       In the event that a portion(s) of one or more Monthly Payment Advances with respect to the Mortgage Loan was reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds to be applied to interest shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds to be applied to principal shall be increased by such amount, and if the amounts of the Net Liquidation Proceeds to be applied to principal have been applied to pay the principal of the Mortgage Loan in full, any remaining Net Liquidation Proceeds shall then be applied to pay any remaining accrued and unpaid interest on the Mortgage Loan in accordance with Section 1.3.

(f)        If (i) an Appraisal Reduction Event has occurred, (ii) with respect to the Property, either (A) no Appraisals or updates of the Appraisals have been obtained or conducted with respect to the Property or Foreclosed Property, as the case may be, during the 12-month period prior to the date of such Appraisal Reduction Event or (B) a material change in the circumstances surrounding the Property or Foreclosed Property, as the case may be, has occurred since the date of the most recent Appraisal that would materially adversely affect the value of the Property or Foreclosed Property, as the case may be, and (iii) no new Appraisal has been obtained or conducted for the Property or Foreclosed Property, as the case may be, within 60 days after the occurrence of the Appraisal Reduction Event, then (x) until the new Appraisal is

99

obtained for the Property, the appraised value of the Property for purposes of determining the Appraisal Reduction Amount shall be equal to 75% of the most recent appraised value for the Property or Foreclosed Property, as the case may be (the “Assumed Appraised Value”), and (y) upon receipt or performance of the new Appraisal by the Special Servicer, the appraised value of the Property or Foreclosed Property, as the case may be, shall be based on such new Appraisal and the Appraisal Reduction Amount will be recalculated in accordance with the definition of Appraisal Reduction Amount. Notwithstanding the foregoing, deemed Appraisal Reduction Amounts imposed pursuant to clause (x) of the preceding sentence shall not be allocated to any Class of Certificates for purposes of determining whether a Subordinate Control Period or a Subordinate Consultation Period is then in effect or allocating Voting Rights provided, this sentence will not affect in any manner the effect of Appraisal Reduction Amounts based upon anything other than clause (x) of the preceding sentence, including when the related Appraisals are received.

(g)       As of the first Determination Date following the Whole Loan becoming an AB Modified Loan, the Special Servicer will be required to calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent appraisal obtained by the Special Servicer with respect to the Whole Loan, and all other information relevant to a Collateral Deficiency Amount determination. The Special Servicer shall promptly notify the Servicer in writing, whereupon the Servicer shall notify the Certificate Administrator in writing, of the amount of any Collateral Deficiency Amount allocated to the AB Modified Loan (which notification may be satisfied through delivery of such information included in the CREFC® Loan Periodic Update File or the CREFC® Appraisal Reduction Amount Template included in the CREFC® Investor Reporting Package). None of the Servicer, the Trustee or the Certificate Administrator shall be required to calculate or verify any Collateral Deficiency Amount.

3.8.      Investment of Funds in the Collection Account and Any Foreclosed Property Account. (a)  The Servicer (and, with respect to the Foreclosed Property Accounts, the Special Servicer) may direct any depository institution maintaining the Collection Account, any Foreclosed Property Account or any Reserve Account (to the extent interest is not payable to the Borrower or another party under applicable law or the Loan Documents), respectively (each, for purposes of this Section 3.8, an “Investment Account”), to invest the funds in such Investment Account in one or more Permitted Investments that bear interest or are sold at a discount, and that mature, unless payable on demand, no later than the Business Day preceding the date on which such funds are required to be withdrawn from such Investment Account pursuant to this Agreement. Any direction by the Servicer or the Special Servicer, as applicable, to invest funds on deposit in an Investment Account shall be in writing and shall certify that the requested investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand. All such Permitted Investments shall be held to maturity, unless payable on demand. Any investment of funds in an Investment Account shall be made in the name of the Trustee for the benefit of the Certificateholders (in its capacity as such) or in the name of a nominee of the Trustee. The Trustee shall have sole control (except with respect to investment direction, which shall be in the control of the Servicer (or the Special Servicer, with respect to the Foreclosed Property Account) as an independent contractor to the Trust Fund) over each such investment and any certificate or other instrument evidencing any such investment shall be delivered directly to the Trustee or its agent (which shall initially be the Servicer or the Special

100

Servicer, as applicable), together with any document of transfer, if any, necessary to transfer title to such investment to the Trustee for the benefit of the Certificateholders or its nominee. The Trustee and the Certificate Administrator shall have no responsibility or liability with respect to the investment directions of the Servicer or the Special Servicer, as applicable, or any losses resulting therefrom, whether from Permitted Investments or otherwise. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the Servicer and the Special Servicer, as applicable, shall:

(i)        consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and

(ii)       demand payment of all amounts due thereunder promptly upon determination by the Servicer or Special Servicer, as applicable, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the related Investment Account.

(b)       All net income and gain realized from investment of funds deposited in the Collection Account and the Reserve Accounts (to the extent interest is not payable to the Borrower or another party under applicable law or the Loan Documents) shall be for the benefit of the Servicer in accordance with the terms and priorities of this Agreement. All net income and gain realized from investment of funds deposited in the Foreclosed Property Account shall be for the benefit of the Special Servicer. Any net losses on funds in the Collection Account, the Reserve Accounts (except, in the case of any such loss with respect to a Reserve Account, to the extent any such losses are incurred on amounts invested for the benefit of the Borrower or other party under the terms of the Loan Documents) or the Foreclosed Property Account shall be reimbursed by the Servicer or the Special Servicer, as applicable, from its own funds promptly, but in any event on or prior to the Remittance Date following the realization of such loss; provided that neither the Servicer nor the Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company satisfied the qualifications set forth in the definition of Eligible Account at the time such investment was made (and, with respect to the Servicer, such federal or state chartered depository institution or trust company is not an Affiliate of the Servicer unless such depository institution or trust company satisfied the qualification set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) thirty (30) days prior to such insolvency).

(c)       Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the Servicer shall take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. In the event the Servicer takes any such action, the Trust Fund shall pay or reimburse the Servicer, pursuant to Section 3.4(c), for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Servicer in connection therewith.

101

(d)       Notwithstanding the foregoing, neither the Servicer, nor the Special Servicer shall cover any losses from the bankruptcy or insolvency of a depository institution holding an account described in this Section 3.8, so long as (i) such depositary institution or trust company satisfied the qualifications set forth in the definition of Eligible Institution at the time such deposit was made and such institution was not an Affiliate of the Servicer or the Special Servicer, as applicable and (ii) such loss was incurred within 30 days after the date of such bankruptcy or insolvency.

3.9.      Payment of Taxes, Assessments, etc. The Servicer (other than with respect to Foreclosed Property) and the Special Servicer (with respect to Foreclosed Property) shall maintain accurate records with respect to the Property (or the Foreclosed Property, as the case may be) reflecting the status of taxes, assessments, charges and other similar items that are or may become a lien on the Property (or the Foreclosed Property, as the case may be) and the status of insurance premiums payable in respect of insurance policies required to be maintained pursuant to Section 3.11 hereof. The Servicer shall obtain, from time to time, all bills for the payment of such items (including renewal premiums). The Servicer shall pay (or cause to be paid) real estate taxes, insurance premiums and other similar items from funds in the applicable Reserve Account in accordance with the Loan Agreement at such time as may be required by the Loan Documents. If the Borrower does not make the necessary payments and/or an Event of Default has occurred and amounts in any applicable Reserve Account are insufficient to make such payments, the Servicer shall make a Property Protection Advance, subject to the determination of non-recoverability provided in Section 3.23, from its own funds for amounts payable with respect to all such items related to the Property when and as the same shall become due and payable. The Servicer shall direct that the amount of funds in any applicable Reserve Account is increased when and if applicable taxes, assessments, charges and other similar items, ground rents or insurance premiums are increased, in accordance with the terms of the Loan Agreement.

3.10.    Appointment of Special Servicer. (a)  Wells Fargo Bank, National Association is hereby appointed as the initial Special Servicer to service the Whole Loan after a Special Servicing Loan Event has occurred and is continuing and perform the other obligations of the Special Servicer hereunder.

(b)       If there is a Special Servicer Termination Event with respect to any Special Servicer, such Special Servicer may be removed and replaced pursuant to Section 7.1. The Trustee shall, promptly after such removal, so notify the Servicer, the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Servicer and Other Special Servicer under the related Other Pooling and Servicing Agreement) and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website). The appointment of any such successor Special Servicer shall not relieve the Servicer or the Trustee of their respective obligations to make Advances as set forth herein; provided, the initial Special Servicer specified above shall not be liable for any actions or any inaction of such successor Special Servicer. No termination fee shall be payable to the terminated Special Servicer. No termination of the Special Servicer and appointment of a successor Special Servicer shall be effective until the successor Special Servicer has assumed all of its responsibilities, duties and liabilities hereunder in writing, a Companion Loan Rating Agency Confirmation with respect to such appointment has been delivered to the Trustee and

102

each Other Trustee, Other Servicer, Other Special Servicer and Other Certificate Administrator, and Rating Agency Confirmation with respect to such appointment has been delivered to the Trustee. Any successor Special Servicer shall be deemed to make the representations and warranties provided for in Section 2.7(a) mutatis mutandis as of the date of its succession. The terminated Special Servicer shall retain all rights accruing to it under this Agreement, including the right to receive fees accrued prior to its termination and other amounts payable to it (including indemnification payments).

(c)       Upon determining that a Special Servicing Loan Event has occurred and is continuing, the Servicer or the Special Servicer, as applicable, shall promptly give notice thereof in writing to the Special Servicer or Servicer, as applicable, the Trustee, the Certificate Administrator and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer and Other Certificate Administrator under the related Other Pooling and Servicing Agreement), and the Servicer shall use its reasonable efforts to provide the Special Servicer with all information, documents (but excluding the original documents constituting the Mortgage File) and records (including records stored electronically) relating to the Mortgage Loan and the Companion Loans and reasonably requested by the Special Servicer to enable it to assume its duties hereunder with respect thereto. The Servicer shall use its reasonable efforts to comply with the preceding sentence within five Business Days of the date that a Special Servicing Loan Event has occurred. The Servicer in any event shall continue to act as Servicer and administrator of the Mortgage Loan and the Companion Loans until the Special Servicer has commenced the servicing of the Mortgage Loan and the Companion Loans, upon the occurrence and during the continuation of a Special Servicing Loan Event, which shall occur upon the receipt by the Special Servicer of the information, documents and records referred to in the preceding sentence. The Special Servicer shall instruct the Borrower to continue to remit all payments in respect of the Mortgage Loan and the Companion Loans to the Servicer. The Servicer shall forward any notices it would otherwise send to the Borrower under the Whole Loan to the Special Servicer who shall send such notice to the Borrower while a Special Servicing Loan Event has occurred and is continuing.

(d)       Upon determining that a Special Servicing Loan Event is no longer continuing, the Special Servicer shall immediately give notice thereof to the Servicer, the Trustee, the Certificate Administrator and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer and Other Certificate Administrator under the related Other Pooling and Servicing Agreement), and upon giving such notice such Special Servicing Loan Event shall cease, the Special Servicer’s obligation to service the Mortgage Loan and the Companion Loans shall terminate and the obligations of the Servicer to service and administer the Mortgage Loan and the Companion Loans shall resume and the Special Servicer shall return all of the information and materials furnished to the Special Servicer pursuant to Section 3.10(c) to the Servicer.

(e)       In connection with servicing the Whole Loan during the continuance of a Special Servicing Loan Event, the Servicer or the Special Servicer, as applicable, shall provide to the Custodian originals of documents entered into in connection therewith that are required to be included within the definition of “Mortgage File” for inclusion in the Mortgage File (to the extent such documents are in the possession of the Servicer or the Special Servicer, as applicable) and copies of any additional related Mortgage Loan information, including

103

correspondence with the Borrower, and the Special Servicer shall promptly provide copies of all of the foregoing to the Servicer as well as copies of any related analysis or internal review prepared by or for the benefit of the Special Servicer.

(f)        During any period in which a Special Servicing Loan Event is continuing, no later than the Business Day preceding each date on which the Servicer is required to furnish a report under Section 3.18(a) to the Certificate Administrator, the Special Servicer shall deliver to the Servicer a written statement describing (i) the amount of all payments on account of interest received on the Mortgage Loan and/or the Companion Loans, the amount of all payments on account of principal received on the Mortgage Loan and/or the Companion Loans, the amount of Insurance Proceeds, Condemnation Proceeds and Net Liquidation Proceeds received, the amount of any Foreclosure Proceeds received with respect to the Property, and the amount of net income or net loss, as determined from management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any rental income that does not constitute Rents from Real Property with respect to, the Foreclosed Property, in each case in accordance with Section 3.15 and (ii) such additional information relating to the Whole Loan as the Servicer, the Trustee or the Certificate Administrator reasonably requests to enable it to perform its duties under this Agreement.

(g)       Notwithstanding the provisions of the preceding subsection (c), the Servicer shall maintain ongoing payment records with respect to the Mortgage Loan and the Companion Loans and shall provide the Special Servicer with any information reasonably required by the Special Servicer to perform its duties under this Agreement.

(h)       Within 60 days after a Special Servicing Loan Event occurs, the Special Servicer shall prepare a report (the “Asset Status Report”) for the Mortgage Loan, the Companion Loans and the Property and deliver the Asset Status Report to the Depositor, the Trustee, the Certificate Administrator, the Servicer, the Controlling Class Representative (during any Subordinate Control Period or any Subordinate Consultation Period), the Risk Retention Consultation Party and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website) and the Companion Loan Holders. Such Asset Status Report shall set forth the following information to the extent reasonably determinable:

(i)        summary of the status of the Mortgage Loan and/or the Companion Loans and any negotiations with the Borrower;

(ii)       a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with Accepted Servicing Practices, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan and the Companion Loans and whether outside legal counsel has been retained;

(iii)      the most current rent roll and income or operating statement available for the Property;

(iv)      the Special Servicer’s recommendations on how the Mortgage Loan and the Companion Loans might be returned to performing status or otherwise realized upon;

104

(v)       the appraised value of the Property together with the appraisal or the assumptions used in the calculation thereof;

(vi)      the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional Mortgage Loan Events of Default;

(vii)     a description of any proposed actions;

(viii)    the alternative courses of action considered by the Special Servicer in connection with the proposed actions;

(ix)       the decision that the Special Servicer made or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; and an analysis of whether or not taking such action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable discount rate used) and all related assumptions. In connection with the foregoing analysis, if the Borrower has indicated their refusal to pay any Workout Fees, Special Servicing Fees or Liquidation Fees due to the Special Servicer, the Special Servicer must consider the costs to the Trust and the Companion Loan Holders and analyze as an alternative a sale of the Mortgage Loan and the Companion Loans or of the related Foreclosed Property or other exercise of remedies;

(x)        a summary of the status of any action that was described in the most recent prior Asset Status Report and subsequently effected by the Special Servicer; and

(xi)       such other information as the Special Servicer deems relevant in light of the proposed action and Accepted Servicing Practices.

The Special Servicer shall be required to (x) deliver to the Certificate Administrator a proposed notice to the Certificateholders and the Companion Loan Holders (or, to the extent that a Companion Loan is included in an Other Securitization Trust, to the Other Depositor and Other Special Servicer under the related Other Pooling and Servicing Agreement) that will include a summary of the current Asset Status Report in an electronic format which format is reasonably acceptable to the Certificate Administrator (which shall be a brief summary of the current status of the Property and current strategy with respect to the Mortgage Loan and the Companion Loans), and the Certificate Administrator shall be required to post such notice and summary (but not the Asset Status Report) on the Certificate Administrator’s Website and (y) implement the Asset Status Report in the form delivered to the Depositor. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and, following delivery of such modified Asset Status Report to the Depositor and the 17g-5 Information Provider (which the 17g-5 Information Provider shall promptly post to the 17g-5 Information Provider’s Website pursuant to Section 12.18) and a summary of the same to the

105

Certificate Administrator (which the Certificate Administrator, shall post on the Certificate Administrator’s Website pursuant to Section 8.14(b)), implement such report.

The Servicer and the Special Servicer, as applicable, shall consult with each Companion Loan Holder (to the extent such Companion Loan Holder requests consultation), on a strictly non-binding basis, with respect to any recommended actions set forth in an Asset Status Report related to the Whole Loan and any Major Decisions to the extent set forth in the Intercreditor Agreement. In addition, each of the Servicer and the Special Servicer shall make itself available to the Companion Loan Holders for an annual meeting (which meeting may be held telephonically), upon reasonable notice and at times reasonably acceptable to the Servicer or the Special Servicer, as applicable, in which servicing issues related to the Whole Loan are discussed to the extent required by the Intercreditor Agreement.

If during any Subordinate Control Period (i) the Controlling Class Representative affirmatively approves in writing an Asset Status Report or (ii) the Controlling Class Representative does not disapprove of such Asset Status Report within five (5) Business Days from receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is reasonably necessary for the Controlling Class Representative (during any Subordinate Control Period) to make a decision regarding the Asset Status Report, then the Special Servicer shall take the recommended actions described in the Asset Status Report. In addition, following the occurrence of an extraordinary event with respect to the Property, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of such five (5) Business Day period if the Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such action before the expiration of such five (5) Business Day period would materially and adversely affect the interest of the Certificateholders and, during any Subordinate Control Period, the Special Servicer has made a reasonable effort to contact the Controlling Class Representative.

During any Subordinate Control Period, if the Controlling Class Representative objects to an Asset Status Report within the above-referenced five (5) Business Day period, then the Special Servicer (absent a determination as described in the last sentence of the immediately preceding paragraph) shall revise such Asset Status Report as soon as practicable thereafter, but in no event later than thirty (30) days after such objection. During any Subordinate Control Period, the Special Servicer shall revise such Asset Status Report as provided in the prior sentence until the Controlling Class Representative fails to disapprove such revised Asset Status Report in writing as described in the preceding sentence or until the Special Servicer makes a determination, consistent with Accepted Servicing Practices, that such objection of the Controlling Class Representative is not in the best interests of all the Certificateholders and the Companion Loan Holders as a collective whole. In any event, if the Controlling Class Representative does not approve an Asset Status Report within ninety (90) days from the first submission of such Asset Status Report, the Special Servicer shall take such action as specified in the last proposed Asset Status Report, provided that such action does not violate Accepted Servicing Practices.

During any Subordinate Consultation Period, the Controlling Class Representative shall be entitled to consult with the Special Servicer on a non-binding basis and

106

propose alternative courses of action in respect of any Asset Status Report, and the Special Servicer shall consult on a non-binding basis with and consider such alternative courses of action and any other feedback provided by such party.

The Special Servicer may revise the Asset Status Reports as it deems reasonably necessary in accordance with Accepted Servicing Practices to take into account any input and/or recommendations of the Controlling Class Representative. In addition, the Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement the new action in such revised report so long as such revised report has been prepared, reviewed and either approved or not rejected as provided above.

The Asset Status Report does not replace or satisfy any other specific consent or approval right which the Controlling Class Representative may have.

In connection with the approval or consultation rights of the Controlling Class Representative with respect to any Asset Status Report, if the Special Servicer determines that an action recommended in an Asset Status Report is necessary to protect the Property or the interest of the Certificateholders and the Companion Loan Holders as a collective whole from potential harm if such action is not taken, or if a failure to take any such action at such time would be inconsistent with Accepted Servicing Practices, the Special Servicer may take actions with respect to the Property before the expiration of the 5 Business Day period if the Special Servicer reasonably determines in accordance with Accepted Servicing Practices that failure to take such actions before the expiration of the 5 Business Day period would materially adversely affect the interest of the Certificateholders and the Companion Loan Holders as a collective whole, and the Special Servicer has made a reasonable effort to contact the Controlling Class Representative.

The Special Servicer shall not take any action inconsistent with an Asset Status Report that has been adopted as provided above, unless such action would be required in order to act in accordance with Accepted Servicing Practices. If the Special Servicer takes any action inconsistent with an Asset Status Report that has been adopted as provided above, the Special Servicer shall promptly notify the Controlling Class Representative (during any Subordinate Control Period or Subordinate Consultation Period) of such inconsistent action and provide a reasonably detailed explanation of the reasons therefor.

The Special Servicer shall deliver to the Servicer, the Controlling Class Representative (during any Subordinate Control Period or Subordinate Consultation Period), the Trustee, the Certificate Administrator, the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website) and, subject to Section 12.6, each Rating Agency, a copy of each Final Asset Status Report, in each case with reasonable promptness following the adoption thereof and in an electronic format reasonably acceptable to the Certificate Administrator. Notwithstanding anything herein to the contrary: (i) the Special Servicer shall have no right or obligation to consult with or to seek and/or obtain consent or approval from any Controlling Class Representative prior to acting (and provisions of this Agreement or the Intercreditor Agreement requiring such consultation, consent or approval shall be of no effect) during the period following any resignation or removal of a Controlling Class Representative and before a replacement is selected and/or identified; and (ii) no advice, direction or objection from or by the Controlling Class Representative, as contemplated by

107

Section 9.3, or pursuant to any other provision of this Agreement, as contemplated by this Agreement or the Intercreditor Agreement, may (and the Servicer and the Special Servicer shall ignore and act without regard to any such advice, direction or objection that the Servicer or Special Servicer, as applicable, has determined, in its reasonable, good faith judgment, would): (A) require or cause the Servicer or Special Servicer, as applicable, to violate applicable law, the terms of the Loan Documents, the Intercreditor Agreement or this Agreement, including the its obligation to act in accordance with Accepted Servicing Practices, (B) result in the imposition of federal income tax on the Trust, cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code, (C) expose the Trust, the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, any Certificateholder or any of their respective Affiliates, members, managers, officers, directors, employees or agents to any claim, suit or liability or (D) materially expand the scope of the Servicer’s or Special Servicer’s responsibilities under this Agreement.

(i)        During the continuance of a Special Servicing Loan Event, the Special Servicer shall have the authority to meet with the Borrower and, subject to the rights of the Controlling Class Representative (during any Subordinate Control Period or Subordinate Consultation Period), and take any actions consistent with Section 3.24, Accepted Servicing Practices and the most recent Asset Status Report.

(j)        In addition, during the continuance of a Special Servicing Loan Event, on the last day of each Collection Period, the Special Servicer shall prepare and deliver to the Servicer the CREFC^® Special Servicer Loan File with respect to the Mortgage Loan and the Companion Loans.

(k)       Beginning in 2022 for the fiscal year ending 2021, if applicable, the Special Servicer shall prepare and file on a timely basis the reports of foreclosure and abandonment of the Property required by Section 6050J of the Code and the reports of discharges of indebtedness income in respect of the Mortgage Loan required by Section 6050P of the Code.

3.11.    Maintenance of Insurance and Errors and Omissions and Fidelity Coverage. (a)  The Servicer, consistent with Accepted Servicing Practices and the Loan Documents, shall use efforts consistent with Accepted Servicing Practices to cause to be maintained by the Borrower (or if the Borrower fails to maintain such insurance in accordance with the Loan Agreement, the Servicer shall cause to be maintained to the extent the Trustee, as mortgagee of record, has an insurable interest) insurance with respect to the Property of the types and in the amounts required to be maintained (to the extent such insurance is available at commercially reasonable rates, provided, that the commercially reasonable requirement shall not apply with respect to terrorism insurance which will be governed by the Loan Documents) by the Borrower under the Loan Documents. The cost of any such insurance maintained by the Servicer shall be advanced by the Servicer, as a Property Protection Advance unless it would be a Nonrecoverable Advance in which case the Servicer shall make such payment from the Collection Account, which payment shall be a Trust Fund Expense (unless such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement). If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse

108

any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order. Neither the Servicer nor the Special Servicer shall be required to maintain all-risk casualty insurance that does not contain any carve-out for terrorist or similar acts (and the Borrower’s failure to obtain such insurance shall not be declared a default under the Loan Documents), if and only if the Special Servicer has determined that such failure is an Acceptable Insurance Default, evaluated on an annual basis. In making any determination related to an Acceptable Insurance Default, the Special Servicer, to the extent consistent with Accepted Servicing Practices, is entitled to rely on the opinion of an insurance consultant, the cost of which shall constitute an Administrative Advance (or to the extent such cost does not constitute a Borrower Reimbursable Trust Fund Expense, a Property Protection Advance). Neither the Servicer nor the Special Servicer shall be required to obtain terrorism insurance pursuant to this Agreement to the extent the Borrower would not be obligated to maintain terrorism insurance under the Loan Documents as in effect on the date thereof.

(b)       The Special Servicer, consistent with Accepted Servicing Practices and the Loan Documents, shall cause to be maintained such insurance (including environmental insurance) with respect to the Foreclosed Property as the Borrower is required to maintain with respect to the Property referred to in subsection (a) of this Section 3.11 or, at the Special Servicer’s election, coverage satisfying insurance requirements consistent with Accepted Servicing Practices. The cost of any such insurance with respect to a Foreclosed Property shall be payable out of amounts on deposit in the Foreclosed Property Account or shall be advanced by the Servicer as a Property Protection Advance unless such advance would be a Nonrecoverable Advance. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order. Any such insurance (other than terrorism insurance, which shall be maintained to the extent required under subsection (a)) that is required to be maintained with respect to the Foreclosed Property shall only be so required to the extent such insurance is available at commercially reasonable rates. The Special Servicer may utilize an independent consultant, to be paid as an Administrative Advance, or, to the extent not reimbursable by the Borrower as a Borrower Reimbursable Trust Fund Expense, a Property Protection Advance. If the Special Servicer requests the Servicer to

109

make a Property Protection Advance in respect of the premiums due in respect of such insurance (which request shall be made in writing not less than five Business Days’ before the date on which the Servicer is requested to make such Property Protection Advance; provided that only three Business Days’ notice shall be required in respect of such a Property Protection Advance required to be made on an urgent or emergency basis), the Servicer shall, as soon as practicable after receipt of such request, make such Property Protection Advance unless such Advance would be a Nonrecoverable Advance, and if the Servicer does not make such Advance, the Trustee (within five (5) Business Days of its receipt of notice of the Servicer’s failure to make such Advance) shall make an Advance of the premiums to maintain such insurance, provided that, in each such case, such obligations shall be subject to the provisions of this Agreement concerning Nonrecoverable Advances, the Trustee as mortgagee of record having an insurable interest and the availability of such insurance at commercially reasonable rates.

(c)       The Servicer or the Special Servicer, as applicable, may satisfy its obligations to cause insurance policies to be maintained by maintaining a master force placed or blanket insurance policy insuring against losses on the Property or the Foreclosed Property, as the case may be for which coverage is otherwise required to be maintained as set forth in the preceding subsections of this Section 3.11. The incremental cost of such insurance allocable to the Property or Foreclosed Property, if not borne by the Borrower, shall be paid by the Servicer as a Property Protection Advance unless it would be a Nonrecoverable Advance. If such master force placed or blanket insurance policy contains a deductible clause, the Servicer or the Special Servicer, as applicable, shall be obligated to deposit in the Collection Account out of its own funds all sums that would have been deposited therein but for such clause to the extent any such deductible exceeds the deductible limitation provided for in the Loan Documents, or in the absence of any such deductible limitation, the deductible limitation that is consistent with Accepted Servicing Practices.

(d)       Each of the Servicer and the Special Servicer shall obtain and maintain at its own expense, and keep in full force and effect throughout the term of this Agreement, a blanket fidelity bond and an errors and omissions insurance policy, the issuer of which has the applicable Qualified Insurer Ratings, covering its directors, officers and employees of the Servicer or the Special Servicer, as applicable, in connection with its activities under this Agreement. Each such insurance policy shall protect the Servicer or the Special Servicer, as applicable, against losses resulting directly from forgery, theft, embezzlement, fraud, errors and omissions of such covered persons. Coverage of the Servicer or the Special Servicer under a policy or bond obtained by an Affiliate thereof and providing the coverage required by this Section 3.11(d) shall satisfy the requirements of this Section 3.11(d). The amount of coverage shall be at least equal to the coverage that is required by applicable governmental authorities having regulatory power over the Servicer and the Special Servicer. If no such coverage amounts are imposed by such regulatory authorities, the amount of coverage shall be at least equal to the coverage that would be required by FNMA or FHLMC with respect to the Servicer and the Special Servicer if each were servicing and administering the Mortgage Loan for FNMA or FHLMC or as otherwise approved by FNMA or FHLMC. In the event that any such bond or policy ceases to be in effect, the Servicer or the Special Servicer, as applicable, shall obtain a comparable replacement bond or policy. Each shall use reasonable efforts to cause each and every sub-servicer, if any, to maintain a blanket fidelity bond and an errors and omissions insurance policy meeting the requirements as described above. In lieu of the foregoing, but

110

subject to this Section 3.11, each of the Servicer and the Special Servicer shall be entitled to self-insure with respect to such risks so long as its (or its immediate or ultimate parent’s) long-term unsecured debt or deposit rating is no lower than (a) “A3” by Moody’s and (b) “A(low)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent rating by at least two NRSROs).

(e)       No provision of this Section 3.11 requiring such fidelity bond and errors and omissions insurance shall diminish or relieve the Servicer or the Special Servicer from its duties and obligations as set forth in this Agreement. The Trustee and/or Certificate Administrator shall be entitled to request, upon receipt of a written request from any Certificateholder, and the Servicer and the Special Servicer shall each deliver or cause to be delivered to the Trustee and/or Certificate Administrator, a certificate of insurance from the surety and insurer certifying that such insurance is in full force and effect. The Trustee and/or Certificate Administrator will make any such certificate of insurance available to the requesting Certificateholder on a confidential basis.

3.12.    Procedures with Respect to Mortgage Loan; Realization upon the Property. (a)  Upon an Event of Default, the Special Servicer on behalf of the Trustee (during any Subordinate Control Period, with notification to and consent of the Controlling Class Representative or, during any Subordinate Consultation Period, with notification to and upon consultation with the Controlling Class Representative), subject to the terms of the Loan Documents and consistent with Accepted Servicing Practices, shall promptly pursue the remedies set forth therein, including foreclosure or otherwise realization on the Property and the other collateral for the Whole Loan. In connection with any foreclosure, enforcement of the applicable Loan Documents or other realization on the Collateral, the Special Servicer shall direct the Servicer to, and the Servicer shall, pay the costs and expenses in any such proceedings as a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance. In such case, if the Special Servicer determines (with the Servicer permitted to conclusively rely upon any such determination) that such payment would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender) the Special Servicer shall direct the Servicer to make such payment from the Collection Account, which payment shall be a Trust Fund Expense (unless such expenses are reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement). If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

111

(b)       Such proposed acceleration of the Mortgage Loan and/or foreclosure on the Property shall be taken unless the Special Servicer waives such Event of Default (or modifies or amends the Mortgage Loan to cure the Event of Default), which the Special Servicer may do if such modification, waiver or amendment is consistent with Accepted Servicing Practices and does not cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the REMIC Provisions or constitute a “significant modification” of the Mortgage Loan under Treasury Regulations Section 1.860G-2(b).

(c)       In connection with such foreclosure as set forth in Section 3.12(a) or other realization on the Property, the Special Servicer shall follow Accepted Servicing Practices; provided, that the Special Servicer shall not be permitted to direct the Servicer, and neither the Special Servicer nor the Servicer shall be required, to expend its own funds to restore the Property damaged by an Uninsured Cause unless the Servicer or the Special Servicer, as applicable, permitted the related insurance policy to lapse in violation of its respective obligations hereunder. If the Servicer does expend its own funds to restore the Property damaged by an Uninsured Cause (which insurance policy did not lapse in violation of the Servicer’s obligations), such expense shall be a Property Protection Advance. In connection with any foreclosure, enforcement of the Loan Documents or other realization on the Collateral, the Special Servicer shall direct the Servicer to, and the Servicer shall, pay the costs and expenses in any such proceedings as a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the applicable Companion Loans in Note Reverse Sequential Order.

(d)       Notwithstanding the foregoing, the Special Servicer may not foreclose on the Property on behalf of the Trust Fund and the Companion Loan Holders and thereby be the beneficial owner of the Property, or take any other action with respect to the Property that would cause the Trustee, on behalf of the Trust Fund and the Companion Loan Holders, to be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of the Property within the meaning of CERCLA or any comparable law, unless the Special Servicer has previously determined, based on a report prepared at the expense of the Trust Fund by an Independent Person who regularly conducts site assessments for purchasers of comparable properties (a copy of such report to be provided to each Companion Loan Holder (or, to the extent that a Companion Loan is included in an Other Securitization Trust, the Other Servicer and Other Special Servicer under the related Other Pooling and Servicing Agreement), that (i) the Property is in compliance with applicable environmental laws or that taking the remedial actions necessary to comply with such laws is reasonably likely to produce a greater recovery on a present value basis than not taking such actions and (ii) there are no circumstances

112

known to the Special Servicer relating to the use of hazardous substances or petroleum-based materials which require investigation or remediation, or that if such circumstances exist taking such remedial actions is reasonably likely to produce a greater recovery on a net present value basis than not taking such actions. The Special Servicer shall deliver a copy of any such report to the Trustee, the Certificate Administrator, the Custodian and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website).

If the Special Servicer has so determined based on satisfaction of the criteria in this Section 3.12(d) that it would be in the best economic interest of the Trust Fund and the Companion Loan Holders (as determined in accordance with Accepted Servicing Practices) to institute a foreclosure or take any other actions described in the immediately preceding paragraph, then subject to the rights of the Controlling Class Representative to consent to and/or consult in respect of such action pursuant to the terms of this Agreement, the Special Servicer shall take such proposed action.

The Special Servicer shall direct the Servicer to, and the Servicer shall, advance the cost of any such compliance, containment, clean up or remediation as a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

(e)       The environmental site assessments contemplated by Section 3.12(d) shall be prepared by any Independent Person who regularly conducts environmental site assessments for purchasers of comparable properties, as determined by the Servicer in a manner consistent with Accepted Servicing Practices. The cost of each such environmental site assessment shall qualify as a Property Protection Advance and shall be advanced by the Servicer unless the Servicer determines that such Advance would constitute a Nonrecoverable Advance. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor

113

Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

(f)        Notwithstanding any provision herein to the contrary, the Special Servicer shall not hold for the benefit of the Trust Fund any personal property pursuant to this Section 3.12 unless:

(i)        such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer; or

(ii)       the Special Servicer shall have obtained an Opinion of Counsel (the cost of which shall be paid by the Servicer as a Property Protection Advance unless the Servicer determines that such Property Protection Advance would constitute a Nonrecoverable Advance) to the effect that the holding of such personal property by the Trust Fund will not cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest or Certificate is outstanding.

(g)       Notwithstanding any acquisition of title to the Property following an Event of Default under the Whole Loan and cancellation of the Whole Loan, the Mortgage Loan and the Companion Loans, the Whole Loan, the Mortgage Loan and the Companion Loans shall be deemed to remain outstanding and held in the Trust Fund (with respect to the Mortgage Loan) or by the Companion Loan Holders (with respect to the Companion Loans) for purposes of the application of collections and shall be reduced only by collections net of expenses. For purposes of all calculations hereunder, so long as the Mortgage Loan and the Companion Loans shall be deemed to remain outstanding, (i) it shall be assumed that the unpaid principal balance of the Mortgage Loan and the Companion Loans immediately after any discharge is equal to the unpaid principal balance of the Mortgage Loan and the Companion Loans, respectively, immediately prior to such discharge and (ii) Foreclosure Proceeds shall be applied as provided in Section 1.3(b).

3.13.    Custodian and Trustee to Cooperate; Release of Items in the Mortgage File. From time to time and as appropriate for the servicing of the Mortgage Loan or Foreclosure of or realization on the Property, the Custodian shall, upon receipt from a Servicing Officer of the Servicer or the Special Servicer of a Request for Release in the form of Exhibit B hereto, release or cause to be released any items from the Mortgage File to the Servicer or the Special Servicer, as the case may be, within the lesser of (i) seven (7) calendar days and (ii) five (5) Business Days of its receipt of the related receipt for release. All Foreclosures shall be instituted in the Special Servicer’s own name, as an authorized delegate of the Trustee, on behalf of the Trust Fund, pursuant to a limited power of attorney substantially in the form of Exhibit N hereto from the Trustee to the Special Servicer. In the event the Special Servicer cannot institute a Foreclosure in its own name, the Special Servicer shall notify the Trustee and the Trustee shall, at the written request of a Servicing Officer of the Special Servicer, execute such documents furnished to it as shall be necessary to the prosecution of any such Foreclosure. Such receipt for release shall obligate the Servicer or the Special Servicer to (and the Servicer or Special Servicer,

114

as applicable, shall) return such items to the Custodian when the need therefor by the Servicer or the Special Servicer no longer exists.

3.14.    Title and Management of Foreclosed Property. (a)  In the event that title to the Property is acquired for the benefit of the Certificateholders and the Companion Loan Holders in foreclosure or by deed-in-lieu of foreclosure or otherwise, the deed, certificate of sale or other comparable document shall be taken in the name of the Trustee, or its nominee (which shall not include the Special Servicer), on behalf of the Trust Fund and the Companion Loan Holders or as otherwise contemplated pursuant to Section 8.10. Title may be taken in the name of a limited liability company wholly-owned by the Trust and which is managed by the Special Servicer (the costs of which shall be advanced by the Servicer, provided that such Advance would not be a Nonrecoverable Advance). Promptly after such acquisition of title, the Special Servicer shall consult with counsel to determine when an Acquisition Date shall be deemed to occur under the REMIC Provisions with respect to the affected Property, the expense of such consultation being treated as a reimbursable expense of the Servicer related to the foreclosure. The Special Servicer, on behalf of the Trust Fund (and the Companion Loan Holders), shall dispose of the Foreclosed Property in accordance with, and subject to the conditions set forth in, Sections 3.15 and 13.2. Subject to Sections 13.2 and 3.14(d), the Special Servicer shall hire on behalf of the Trust Fund and the Companion Loan Holders a Successor Manager to manage, conserve, protect and operate such Foreclosed Property for the Certificateholders (and the Companion Loan Holders) solely for the purpose of its prompt disposition and sale. In connection with such management and subject to Section 3.4(c)(xii), the Successor Manager shall be entitled to the REO Management Fee solely from the Foreclosed Property Account or the Collection Account pursuant to Section 3.4(c)(xii).

(b)       The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of the Foreclosed Property separate and apart from its own funds and general assets and shall establish and maintain with respect to the Foreclosed Property a Foreclosed Property Account in the name of the Special Servicer for the benefit of the Trustee on behalf of the Certificateholders (and the Companion Loan Holders) pursuant to Section 3.6.

(c)       The Special Servicer shall have full power and authority, subject to Accepted Servicing Practices and the specific requirements and prohibitions of this Agreement and the Intercreditor Agreement, to do any and all things in connection with the Foreclosed Property for the benefit of the Trust Fund and Companion Loan Holders on such terms as are appropriate and necessary for the efficient operation or liquidation, as applicable, of the Foreclosed Property, so long as the Special Servicer deems such actions to be consistent with Accepted Servicing Practices. Without limiting the generality of the foregoing, the Special Servicer may retain an independent contractor to operate and manage the Foreclosed Property; however, the retention of an independent contractor will not relieve the Special Servicer of its obligations hereunder with respect to the Foreclosed Property.

The Special Servicer shall deposit or cause to be deposited on a daily basis in the Foreclosed Property Account all revenues received with respect to the Foreclosed Property, and the Special Servicer shall cause to be withdrawn therefrom funds necessary for the proper operation, management and maintenance of the Foreclosed Property and for other expenses

115

related to the preservation and protection of the Foreclosed Property, including, but not limited to:

(i)        all insurance premiums due and payable in respect of the Foreclosed Property;

(ii)       all taxes, assessments, charges or other similar items in respect of the Foreclosed Property that could result or have resulted in the imposition of a lien thereon; and

(iii)      all costs and expenses necessary to preserve the Foreclosed Property, including the payment of ground rent, if any.

To the extent that amounts on deposit in the Foreclosed Property Account are insufficient for the purposes set forth in clauses (i) through (iii) above, the Special Servicer shall direct the Servicer to, and the Servicer shall, make a Property Protection Advance unless the Servicer determines, in accordance with Accepted Servicing Practices, that such Advance would constitute a Nonrecoverable Advance. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

(d)       The Special Servicer, in the name of the Trust Fund, shall (subject to Section 3.14(a)) contract with any Successor Manager for the operation and management of any Foreclosed Property; provided that no such contract shall impose individual liability on the Trustee or the Trust; provided, further, that:

(i)        the terms and conditions of any such contract shall not be inconsistent herewith;

(ii)       any such contract shall require, or shall be administered to require, that the Successor Manager (A) request that the Special Servicer pay from the Foreclosed Property Account all costs and expenses incurred in connection with the operation and management of any Foreclosed Property, and (B) remit all related revenues (net of such costs and expenses) to the Special Servicer, for deposit into the Foreclosed Property Account, as soon as practicable but in no event later than the Business Day immediately following receipt; and

(iii)      none of the provisions of this Section 3.14 relating to any such contract or to actions taken through any such Successor Manager shall be deemed to relieve the Special Servicer of any of its ordinary and regularly recurring duties and obligations to

116

the Trust Fund on behalf of the Certificateholders and the Companion Loan Holders with respect to the operation and management of any Foreclosed Property.

The Special Servicer shall be entitled, and to the extent required by the REMIC Provisions, shall be required, to enter into an agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. All REO Management Fees shall be an expense of the Trust Fund payable from the Foreclosed Property Account or subject to reimbursement pursuant to Section 3.4(c)(xi). The Special Servicer agrees to monitor the performance of the Successor Manager and to enforce the obligations of the Successor Manager on behalf of the Trust Fund and the Companion Loan Holders. Expenses incurred by the Special Servicer in connection herewith shall qualify as Property Protection Advances.

(e)       On or before the last day of each Collection Period, the Special Servicer shall withdraw from the Foreclosed Property Account and deposit into the Collection Account the proceeds and collections received or collected since the preceding Remittance Date through the Business Day prior to the Remittance Date on or with respect to the Foreclosed Property (including any funds no longer needed in any reserves established as provided below), net of expenses paid therefrom and amounts reasonably expected to be needed to fund any reserves deemed necessary for the operation, preservation and protection of the Foreclosed Property, including without limitation, the creation of reasonable reserves for working capital, repairs, replacements and necessary capital improvements and other related expenses.

3.15.    Sale of Foreclosed Property. (a)  In the event that title to the Property is acquired by the Special Servicer for the benefit of the Certificateholders and the Companion Loan Holders in foreclosure or by deed in lieu of foreclosure or otherwise, the deed, certificate of sale or other comparable document shall be taken in the name of the Trustee, or its nominee (which shall not include the Special Servicer), on behalf of the Trust Fund and the Companion Loan Holders or as otherwise contemplated pursuant to Section 8.10. Title may be taken in the name of a limited liability company wholly-owned by the Trust and that is managed by the Special Servicer (the costs of which shall be advanced by the Servicer, provided that such Advance would not be a Nonrecoverable Advance). The Special Servicer, on behalf of the Trust Fund (and the Companion Loan Holders), shall sell the Foreclosed Property as expeditiously as appropriate in accordance with Accepted Servicing Practices, but in no event later than the time period set forth in Section 13.2 hereof in a manner provided under this Section 3.15.

(b)       If the Special Servicer or an Affiliate thereof acquires any Foreclosed Property in the name of and on behalf of the Trust Fund and the Companion Loan Holders, the Special Servicer shall be empowered, subject to the Code and to the specific requirements and prohibitions of this Agreement and the Intercreditor Agreement, to do any and all things in connection with the management and operation thereof in accordance with Accepted Servicing Practices, all on such terms as the Special Servicer deems to be in the best interest of the Certificateholders and the Companion Loan Holders (as a collective whole, as if such Certificateholders and Companion Loan Holders constituted a single lender) and consistent with the REMIC Provisions.

117

(c)       Subject to the consent and consultation rights of the Controlling Class Representative, the Special Servicer shall accept the highest cash bid for the Foreclosed Property received from any Person. However, in no event may such bid be less than an amount at least equal to the portion of the Repurchase Price attributable to the Foreclosed Property. Notwithstanding the foregoing, in the absence of any such bid, the Special Servicer shall accept the highest cash bid, if the highest offeror is a Person other than the Trustee or an Interested Person, that the Special Servicer (or the Trustee as provided in the next sentence) determines is a fair price based on Appraisals obtained within the last nine (9) months. If the highest bidder is an Interested Person, the Trustee shall determine the fairness of the highest bid by an Interested Person. The Trustee may (at its option at the expense of the Trust Fund (unless such expenses are reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement)) designate an Independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ of experience in valuing or investing in loans similar to the Whole Loan, that has been selected with reasonable care by the Trustee to determine if such bid constitutes a fair price for the Foreclosed Property. The Trustee shall be entitled to conclusively rely upon any such third party determination, and all reasonable fees and costs of any Appraisals, inspection reports, and broker opinions of value incurred by any such third party shall be covered by, and be reimbursable from, the Trust (unless such expenses are reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement). If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such fees and costs, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order. The requirements of this Agreement and/or the Intercreditor Agreement may result in lower sales proceeds than would otherwise be the case. Notwithstanding the foregoing, the Special Servicer shall not be obligated to accept the higher cash offer if the Special Servicer determines, in accordance with Accepted Servicing Practices, that rejection of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and the Companion Loan Holders constituted a single lender), and the Special Servicer may accept a lower cash offer (from any Person other than an Interested Person) if it determines, in accordance with Accepted Servicing Practices, that acceptance of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and the Companion Loan Holders constituted a single lender). Neither the Trustee nor any of its affiliates, in their individual capacity, may make an offer for or purchase Foreclosed Property.

(d)       Subject to the provisions of Section 3.14, the Special Servicer shall act on behalf of the Trust Fund and the Companion Loan Holders in negotiating and taking any other action necessary or appropriate in connection with the sale of the Foreclosed Property, including

118

the collection of all amounts payable in connection therewith. Any sale of the Foreclosed Property shall be without recourse to the Trustee, the Depositor, the Certificate Administrator, the Servicer, the Special Servicer, the Trust Fund or the Certificateholders and the Companion Loan Holders (except that any contract of sale and assignment and conveyance documents may contain customary warranties, so long as the only recourse for breach thereof is to the Trust Fund) and if consummated in accordance with the terms of this Agreement, none of the Trustee, the Depositor, the Certificate Administrator, the Servicer or the Special Servicer shall have any liability to any Certificateholder or any Companion Loan Holder with respect to the purchase price thereof accepted by the Special Servicer or the Trustee.

(e)       The proceeds of any sale effected pursuant to this Section 3.15, after deduction of the expenses incurred in connection therewith, shall be deposited in the Collection Account in accordance with Section 3.4(a).

(f)        Within 30 days of the sale of the Foreclosed Property, the Special Servicer shall provide to the Trustee, the Certificate Administrator and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Servicer, Other Special Servicer, Other Trustee and Other Certificate Administrator under the related Other Pooling and Servicing Agreement) a statement of accounting for the Foreclosed Property, including, without limitation, (i) the date the Foreclosed Property was acquired in foreclosure or by deed-in-lieu of foreclosure or otherwise, (ii) the date of disposition of the Foreclosed Property, (iii) the gross sale price and related selling and other expenses, (iv) accrued interest with respect to the Repurchase Price of the Foreclosed Property, calculated from the date of acquisition to the disposition date, and (v) such other information as the Trustee or the Certificate Administrator may reasonably request.

3.16.    Sale of the Mortgage Loan and the Companion Loans. (a)  (i) Within sixty (60) days after the occurrence of a Special Servicing Loan Event, the Special Servicer shall order (but shall not be required to have received) an Appraisal. The Servicer shall promptly notify in writing the Special Servicer, the Trustee, the Controlling Class Representative (during any Subordinate Control Period or any Subordinate Consultation Period), the Risk Retention Consultation Party and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer and Other Certificate Administrator under the related Other Pooling and Servicing Agreement) of the occurrence of such Special Servicing Loan Event. Upon delivery by the Special Servicer of the notice described in the preceding sentence, the Special Servicer may offer to sell to any Person the Whole Loan or may offer to purchase the Whole Loan, if and when the Special Servicer determines, consistent with Accepted Servicing Practices, that no satisfactory arrangements can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and the Companion Loan Holders on a net present value basis. The Special Servicer shall provide the Trustee, the Certificate Administrator, the Controlling Class Representative (during any Subordinate Control Period or any Subordinate Consultation Period), the Risk Retention Consultation Party and the Companion Loan Holders (or, to the extent a Companion Loan is included in an Other Securitization Trust, the Other Depositor, Other Servicer and Other Certificate Administrator under the related Other Pooling and Servicing Agreement), not less than five (5) Business Days’ prior written notice of its intention to sell the Whole Loan, in which case the Special Servicer is required to accept the highest offer

119

received from any Person (other than any Interested Person) for the Whole Loan in an amount at least equal to the Repurchase Price or, at its option, if it has received no offer at least equal to the Repurchase Price therefor, the Special Servicer may purchase the Whole Loan at the Repurchase Price, subject to any consent or consultation rights of the Controlling Class Representative to the extent set forth in this Agreement. For the avoidance of doubt the Special Servicer shall be required to sell the Mortgage Loan together with the Companion Loans, as one whole loan.

(ii)       In the absence of any offer at least equal to the Repurchase Price (or purchase by the Special Servicer for the Repurchase Price), the Special Servicer shall accept the highest offer received from any Person that is determined by the Special Servicer to be a fair price for the Whole Loan, if the highest offeror is a Person other than an Interested Person. If the highest bidder is an Interested Person, the Trustee shall determine the fairness of the highest bid based upon an Appraisal (which may be an Appraisal obtained in the last nine (9) months by the Special Servicer) obtained at the expense of the Trust Fund (unless such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement), and the Trustee may conclusively rely on the opinion of such Appraisal and such determination shall be binding upon all parties. All reasonable costs and fees of the Trustee in making such determination will be reimbursable to it first, by the Servicer as an Advance, subject to the Servicer’s determination that such amounts are not Nonrecoverable Advances, and then as an expense of the Trust (unless such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement). Neither the Trustee nor any of its affiliates, in their individual capacity, may make an offer for or purchase the Whole Loan. In addition, if the Trustee shall be required to determine the fairness of the highest bid by an Interested Person, the Trustee may (at its option at the expense of the Trust Fund (unless such expense is reimbursed with funds otherwise paid from amounts allocable to the Companion Loan Holders pursuant to the terms of the Intercreditor Agreement)) designate an Independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ of experience in valuing or investing in loans similar to the Whole Loan, that has been selected with reasonable care by the Trustee to determine if such bid constitutes a fair price for the Whole Loan. The Trustee shall be entitled to conclusively rely upon any such third party determination, and all reasonable fees and costs of any Appraisals, inspection reports, and broker opinions of value incurred by any such third party shall be covered by, and be reimbursable from, the Trust (unless such expenses are reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement). If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such fees and costs, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the

120

portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

(iii)      The Special Servicer shall not be obligated to accept the highest offer if the Special Servicer determines, in accordance with Accepted Servicing Practices, that the rejection of such offer would be in the best interests of the Holders of the Certificates and the Companion Loan Holders (as a collective whole as if such Certificateholders and the Companion Loan Holders constituted a single lender). In addition, the Special Servicer may accept a lower offer if it determines, in accordance with Accepted Servicing Practices, that the acceptance of such offer would be in the best interests of the Holders of the Certificates and the Companion Loan Holders (as a collective whole as if such Certificateholders and the Companion Loan Holders constituted a single lender), provided that the offeror is not the Special Servicer or a Person that is an Affiliate of the Special Servicer. The Special Servicer shall use efforts consistent with Accepted Servicing Practices to sell the Whole Loan prior to the Rated Final Distribution Date.

(iv)      Unless and until the Whole Loan is sold pursuant to this Section 3.16(a), the Special Servicer shall pursue such other resolution strategies with respect to the Whole Loan, including, without limitation, workout and foreclosure, as the Special Servicer may deem appropriate, consistent with the Asset Status Report, Accepted Servicing Practices and the REMIC Provisions.

(b)       The right of the Special Servicer to purchase or sell the Whole Loan after the occurrence of a Special Servicing Loan Event shall terminate, and shall not be exercisable as set forth in clause (a) above (or if exercised but the purchase of the Whole Loan has not yet occurred, the Special Servicer’s right shall terminate and such exercise shall be of no further force or effect) if the Whole Loan is no longer delinquent as a result of any of the following: (i) the Special Servicing Loan Event has ceased to exist pursuant to the terms of this Agreement, (ii) the Whole Loan has become subject to a fully executed agreement reflecting the terms of the workout arrangement or (iii) the Whole Loan has otherwise been resolved (including by a full or discounted pay-off).

(c)       Any sale of the Whole Loan shall be for cash only.

(d)       Notwithstanding anything contained herein to the contrary, the Special Servicer shall not sell the Whole Loan pursuant to this Section 3.16 without the written consent of the Companion Loan Holders unless the Special Servicer has delivered to the Companion Loan Holders: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Whole Loan; (b) at least 10 days prior to the permitted sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent Appraisal for the Whole Loan, and any documents in the Servicer Mortgage File reasonably requested by a Companion Loan Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special

121

Servicer in connection with the proposed sale. Any Companion Loan Holder will be permitted to submit an offer at any sale of the Whole Loan.

3.17.    Servicing Compensation. The Servicer shall be entitled to receive the Master Servicing Fee with respect to the Mortgage Loan and the Primary Servicing Fee with respect to the Whole Loan and any Foreclosed Property payable monthly from the Collection Account or otherwise in accordance with and subject to Section 3.4(c). The Servicer shall be entitled to retain as compensation any late payment charges and certain other customary charges and fees to the extent described below, as well as reimbursement for all other costs or expenses incurred by it in performing its duties hereunder, in each case, to the extent actually received from the Borrower and permitted to be allocated to such amounts by the terms of the Loan Documents, this Agreement and the Intercreditor Agreement and subject in all cases to the rights of the Companion Loan Holders to any such amounts as may be set forth in the Intercreditor Agreement, other than: (i) fees of any sub-servicer and the expenses of any sub-servicer that would not be reimbursable to Servicer if such expenses were incurred by the Servicer; (ii) the cost of any fidelity bond or errors and omissions policy required by Section 3.11(d); (iii) overhead expenses of the Servicer including but not limited to those which may properly be allocable under the Servicer’s accounting system or otherwise to the Servicer’s activities under this Agreement or the income derived by it hereunder including the costs to the Servicer associated with employees of the Servicer performing services in connection with the obligations of the Servicer hereunder; and (iv) costs and expenses arising from the negligence, bad faith or willful misconduct of the Servicer in performing its obligations hereunder (the “Servicer Customary Expenses”). So long as no Special Servicing Loan Event has occurred and is continuing and subject to the terms of the Intercreditor Agreement, the Servicer shall also be entitled to retain as additional servicing compensation any late payment fees and Default Interest (including any late payment fees and Default Interest collected after the occurrence of a Special Servicing Loan Event but accrued prior to such Special Servicing Loan Event) (to the extent not applied pursuant to Section 3.4(c)), assumption fees, assumption application fees, substitution fees, release fees (including, without limitation, any fees payable in connection with a defeasance), Modification Fees (subject to the second to last paragraph of this Section 3.17), loan service transaction fees, insufficient funds fees and consent fees and other similar fees and expenses to the extent, with respect to any such amounts, collected and allocated to such amounts as permitted by (or not otherwise prohibited by) the terms of the Loan Documents, this Agreement and the Intercreditor Agreement; provided, that the Servicer shall not be entitled to apply or retain any Default Interest or any late payment charges, with respect to the Mortgage Loan or the Companion Loans, with respect to which a default thereunder or Event of Default is continuing unless and until such default or Event of Default has been cured and all delinquent amounts (including any Default Interest) due with respect to the Mortgage Loan or the Companion Loans have been paid in full and all interest on Advances has been paid in full. In addition, the Servicer, subject to the terms of the Intercreditor Agreement, shall be entitled to retain as additional servicing compensation release fees (including, without limitation, any fees payable in connection with a defeasance of the Whole Loan), charges for beneficiary statements or demands to the extent the related items are prepared by it and any income earned (net of losses to the extent provided in this Agreement) on the investment of funds deposited in the Collection Account and any Reserve Account (to the extent not payable to the Borrower).

122

With respect to any fees as to which both the Servicer and the Special Servicer are entitled to receive a portion thereof, the Servicer and the Special Servicer shall each have the right in its sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided that (A) neither the Servicer nor the Special Servicer shall have the right to reduce or elect not to charge the portion of any such fee due to the other and (B) to the extent either the Servicer or the Special Servicer exercises its right to reduce or elect not to charge its respective portion in any such fee, the party that reduced or elected not to charge its respective portion of such fee shall not have any right to share in any part of the other party’s portion of such fee. If the Servicer decides not to charge any fee, the Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which the Special Servicer would have been entitled if the Servicer had charged a fee and the Servicer shall not be entitled to any of such fee charged by the Special Servicer. If the Special Servicer decides not to charge any fee, the Servicer shall nevertheless be entitled to charge its portion of the related fee to which the Servicer would have been entitled if the Special Servicer had charged a fee and the Special Servicer shall not be entitled to any of such fee charged by the Servicer.

If a Special Servicing Loan Event occurs and is continuing, the Special Servicer shall be entitled to receive a Special Servicing Fee with respect to the Mortgage Loan and the Companion Loans for so long as such Special Servicing Loan Event continues as well as reimbursement for all other costs or expenses incurred by it in performing its duties hereunder other than: (i) the cost of any fidelity bond or errors and omissions policy required by Section 3.11(d); (ii) overhead expenses of the Special Servicer including but not limited to those which may properly be allocable under the Special Servicer’s accounting system or otherwise to the Special Servicer’s activities under this Agreement or the income derived by it hereunder including the costs to the Special Servicer associated with employees of the Special Servicer performing services in connection with the obligations of the Special Servicer hereunder; and (iii) costs and expenses arising from the negligence, bad faith or willful misconduct of the Special Servicer in performing its obligations hereunder (the “Special Servicer Customary Expenses”). If at any time the Mortgage Loan or a Companion Loan becomes a Specially Serviced Mortgage Loan, the Special Servicer shall use efforts consistent with Accepted Servicing Practices and the REMIC Provisions, to collect the amount of any Special Servicing Fee, Liquidation Fee and/or Workout Fee from the Borrower pursuant to the Designated Expense Reimbursement Section, including (i) exercising all remedies available under the Loan Agreement that would be in accordance with Accepted Servicing Practices, specifically taking into account the costs or likelihood of success of any such collection efforts and the Non-Retained Certificate Realized Loss or Retained Certificate Realized Loss or related loss that would be incurred by Certificateholders or the Companion Loan Holders, as applicable, in connection therewith as opposed to the Non-Retained Certificate Realized Loss or Retained Certificate Realized Loss that would be incurred as a result of not collecting such amounts from the Borrower and (ii) applying any sums then present in the Trust Fund Expense Account to the payment of any unpaid Borrower Reimbursable Trust Fund Expenses due as of the preceding Loan Payment Date. Notwithstanding anything herein to the contrary, with respect to any amount received during a Collection Period, the Special Servicer shall only be entitled to receive a Workout Fee or a Liquidation Fee, but not both.

If a Special Servicing Loan Event is terminated following resolution of such Special Servicing Loan Event by a written agreement with the Borrower negotiated by the

123

Special Servicer, the Special Servicer shall be entitled to receive the Work-out Fee. If (i) the Controlling Class Representative sends notice to the Trustee pursuant to Section 7.1(d), directing the Trustee to terminate the Special Servicer, or (ii) the Special Servicer resigns or has been terminated, and in each case of clauses (i) and (ii), prior or subsequent to such resignation or termination, either (A) the Specially Serviced Mortgage Loan or the related Property was liquidated or modified, as applicable, pursuant to an action plan submitted by the initial Special Servicer or (B) the Specially Serviced Mortgage Loan was being monitored by the initial Special Servicer and the related Special Servicing Loan Event is terminated following resolution of such Special Servicing Loan Event by a written agreement with the Borrower negotiated by the initial Special Servicer, then in the case of either clause (A) or (B), the Special Servicer (and not the successor special servicer) shall be paid the related Work-out Fee or Liquidation Fee, as applicable.

The Special Servicing Fee and any Liquidation Fee payable from Liquidation Proceeds (and not the Borrower) shall be payable from funds on deposit in the Collection Account as provided in Section 3.4(c). The Special Servicer during the continuance of a Special Servicing Loan Event shall also be entitled to retain as additional servicing compensation, solely to the extent such amounts are received from the Borrower, any late payment fees (to the extent not applied pursuant to Section 3.4(c)), Default Interest (to the extent not applied pursuant to Section 3.4(c)), assumption fees, assumption application fees, substitution fees, release fees, Modification Fees (subject to the second to last paragraph of this Section 3.17), loan service transaction fees, insufficient funds fees, charges for beneficiary statements to the extent the related beneficiary statement is prepared by the Special Servicer and consent fees and other similar fees and expenses and any income earned (net of losses to the extent provided in this Agreement) on the investment of funds deposited in the Foreclosed Property Account.

Notwithstanding any other provision in this Agreement, neither the Servicer nor the Special Servicer, as applicable, shall be entitled to reimbursement for an expense incurred under this Agreement or in connection with the performance of its duties hereunder unless (i) the amount of such payment to the Servicer or the Special Servicer, as the case may be, is reimbursed to the Trust Fund by the Borrower (to the extent the Borrower is required to do so under the Loan Agreement); (ii) failure of the Borrower to reimburse for such payment constitutes an Event of Default; (iii) such expense would qualify as an “unanticipated expense incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) (it being understood that the Servicer Customary Expenses and the Special Servicer Customary Expenses are not unanticipated); or (iv) such reimbursement is expressly provided for herein or such expense is expressly described herein as an expense of the Trust Fund or as an Advance.

Except as otherwise expressly provided herein, no transfer, sale, pledge or other disposition of the Servicer’s right to receive all or any portion of the Servicing Fee (or the Special Servicer’s right to receive all or any portion of the Special Servicing Fee) or other servicing compensation provided for herein shall be made, and any such attempted transfer, sale, pledge or other disposition shall be void, unless such transfer is made to a successor Servicer or successor Special Servicer, as applicable, in connection with the assumption by such successor of the duties hereunder pursuant to Section 7.2.

124

With respect to each Collection Period during which the Special Servicer or any of its Affiliates receives any Disclosable Special Servicer Fees, the Special Servicer shall deliver or cause to be delivered to the Servicer on or prior to the related Determination Date, and the Servicer (if it has received such report from the Special Servicer) shall deliver such report to the Certificate Administrator without charge on or prior to the Remittance Date with respect to such Determination Date, an electronic report that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period. The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any Disclosable Special Servicer Fees.

Notwithstanding anything herein to the contrary, (i) the Servicer and the Special Servicer shall each be entitled to 50% of any Modification Fees received in connection with the extension of the Maturity Date of the Mortgage Loan to which Special Servicer’s consent is required pursuant to clause (vii)(c) of the definition of Special Servicing Loan Event and (ii) the Servicer and Special Servicer shall each be entitled to 50% of any Modification Fees, assumption fees (excluding assumption application fees) or consent fees related to Major Decisions to the extent the Mortgage Loan is not a Specially Serviced Mortgage Loan.

3.18.    Reports to the Certificate Administrator; Account Statements. (a)  The Servicer shall prepare, or cause to be prepared, and deliver to the Certificate Administrator, in an electronic format which format is reasonably acceptable to the Certificate Administrator, consistent with Accepted Servicing Practices, not later than (i) 3:00 p.m. (New York time) two Business Days prior to each Distribution Date, the CREFC^® Loan Periodic Update File and (ii) 2:00 p.m. (New York time) on the Remittance Date immediately preceding each Distribution Date, the remaining CREFC^® Reports (except the CREFC^® Bond Level File, the CREFC^® Special Servicer Loan File, the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheet). The Certificate Administrator shall prepare the CREFC^® Bond Level File and the CREFC^® Collateral Summary File.

The Servicer shall make the CREFC^® Reports (except the CREFC^® Bond Level File, the CREFC^® Collateral Summary File, the CREFC^® Special Servicer Loan File, the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheet) available (i) prior to the securitization of a Companion Loan, to the related Companion Loan Holder on each Distribution Date; and (ii) following the securitization of a Companion Loan, to the master servicer of the Other Securitization Trust no later than two Business Days after the Determination Date (but not later than one Business Day following the “determination date” (or other analogous term) for any Other Securitization Trust) (provided, that such “determination date” must in no event occur prior to the 5th day of each month or the preceding Business Day and is at least one (1) Business Day after the Loan Payment Date under the Loan Agreement).

The CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheet shall be made available on the Servicer’s internet website (www.wellsfargo.com/com/comintro) on a calendar quarterly basis within 30 days after the Servicer’s (or, with respect to a Specially Serviced Mortgage Loan, the Special Servicer who shall promptly provide the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheet to the Servicer) receipt of the Borrower’s quarterly financials (commencing with the quarter ending March 31, 2022) and annually within 45 days after receipt

125

of the Borrower’s annual financials for the year ending December 31, 2022); provided, with respect to any obligation of the Servicer or the Special Servicer to provide year-end or quarterly analysis or updates, such analysis or updates shall not be required to the extent not required to be provided in the then current applicable CREFC^® guidelines.

Additionally, the Servicer shall deliver the CREFC^® Operating Statement Analysis Report and CREFC^® NOI Adjustment Worksheet on a monthly basis to the Certificate Administrator; provided, the Servicer shall have no obligation to update such reports except as set forth in the immediately preceding paragraphs, and no analysis or update shall be required to the extent such analysis or update is not required to be provided under the then-current applicable CREFC^® guidelines.

For the avoidance of doubt, to the extent financial statements, rent rolls and other information prepared by the Borrower was prepared on a consolidated basis, each of the CREFC^® reports to be delivered by the Servicer shall be prepared on a consolidated basis with respect to the Property and not with respect to individual properties that constitute the Property. The Certificate Administrator shall not be obligated to separate any such report into individual reports reflecting information at an individual property level.

(b)       The Servicer shall furnish to the Certificate Administrator in electronic format which format is reasonably acceptable to the Servicer and the Certificate Administrator, the CREFC^® Reports produced by it pursuant to this Agreement not later than the time period specified in Section 3.18(a), and thereafter, subject to Section 12.18, if requested by the Rating Agencies pursuant to Section 12.18, furnish to the 17g-5 Information Provider the CREFC^® Reports produced by it pursuant to this Agreement (which shall promptly post the same to the 17g-5 Information Provider’s Website).

(c)       The Servicer shall produce the reports described in this Section 3.18 solely from information provided to the Servicer by the Borrower pursuant to the Loan Agreement (without modification, interpretation or analysis) or by the Special Servicer, the Mortgage Loan Seller or Depositor pursuant to this Agreement. None of the Trustee, the Certificate Administrator, the Servicer, or the Special Servicer shall be responsible for the completeness or accuracy of such information (except that the Servicer shall use efforts consistent with Accepted Servicing Practices to correct patent errors).

(d)       Notwithstanding anything contained herein to the contrary, the Servicer and the Special Servicer, as applicable, shall provide to the Companion Loan Holders: (i) all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Whole Loan that such party would be required to deliver to any Controlling Class Certificateholder or Controlling Class Representative pursuant to the terms of this Agreement, (ii) all CREFC^® Reports that such party delivers to any other party to this Agreement at the times set forth above, and (iii) any annual statements as to compliance delivered pursuant to Sections 10.8 and 10.9 and any annual independent public accountants’ servicing reports delivered pursuant to Section 10.10.

3.19.    Certain Matters Relating to the Intercreditor Agreement. The Master Servicer (if the Mortgage Loan is not a Specially Serviced Mortgage Loan) or the Special

126

Servicer (if the Mortgage Loan is a Specially Serviced Mortgage Loan), in each case, consistent with Accepted Servicing Practices, shall be entitled to exercise any consent or consultation rights of the holder of such Mortgage Loan in its capacity as a “Controlling Note Holder” (or any similar term identified in the Intercreditor Agreement) under the Intercreditor Agreement.

3.20.    [Reserved].

3.21.    Access to Certain Documentation Regarding the Mortgage Loan and Other Information. (a)  The Servicer and the Special Servicer shall provide or cause to be provided to the Certificate Administrator, and the Certificate Administrator shall afford access to the Initial Purchaser, the Depositor, any Certificateholders that are federally insured financial institutions, the Federal Reserve Board, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency and the supervisory agents and examiners of such boards and such corporations, and any other governmental or regulatory body to the jurisdiction of which any Certificateholder is subject, access to the documentation regarding the Mortgage Loan required by applicable regulations of the Federal Reserve Board, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency or any such governmental or regulatory body, such access being afforded without charge but only upon reasonable prior request and during normal business hours at the offices of the Certificate Administrator, Servicer or Special Servicer, as applicable. At the election of the Servicer, the Special Servicer or the Certificate Administrator, such access may be afforded to such Person identified above by the delivery of copies of information as requested by such Person and the Servicer, the Special Servicer or the Certificate Administrator shall be permitted to require payment (other than from the Controlling Class Representative and the Trustee and the Certificate Administrator on its own behalf or on behalf of the Certificateholders, as applicable) of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it in making such copies.

The failure of the Servicer, Special Servicer or Certificate Administrator or Trustee to provide access as provided in this Section 3.21 as a result of a confidentiality obligation shall not constitute a breach of this Section 3.21. In connection with providing information pursuant to this Section 3.21, such party may (i) affix a reasonable disclaimer to any information provided by it for which it is not the original source (without suggesting liability on the part of any other party hereto); (ii) affix to any information provided by it a reasonable statement regarding securities law restrictions on such information and/or condition access to information on (x) the execution of a confidentiality agreement substantially in the form of Exhibit X, or (y) execution of a “click-through” confidentiality agreement if such information is being provided through the Servicer’s, Special Servicer’s or Certificate Administrator’s website; (iii) withhold access to confidential information or any intellectual property; and/or (iv) withhold access to items of information contained in the Servicer Mortgage File for the Whole Loan if the disclosure of such items is prohibited by applicable law or the provisions of any related Loan Documents or would constitute a waiver of the attorney-client privilege. Notwithstanding any provision of this Agreement to the contrary, the failure of such party to disclose any information otherwise required to be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement to the extent that such party determines, in its reasonable good faith judgment consistent with the applicable Accepted Servicing Practices, or in the Certificate Administrator’s or Trustee’s good faith judgment, that such disclosure would violate applicable law or any provision of a Loan Document prohibiting disclosure of information with respect to the Whole

127

Loan or the Property, constitute a waiver of the attorney-client privilege on behalf of the Trust or otherwise materially harm the Trust. Without limiting the generality of the foregoing, the Servicer or Special Servicer may refrain from disclosing information that it reasonably determines would prejudice the interest of the Certificateholders with respect to a workout or exercise of remedies as to the Whole Loan.

(b)       The Depositor hereby authorizes the Certificate Administrator to, and the Certificate Administrator shall, make available to BlackRock Financial Management, Markit, CMBS.com, Inc., Bloomberg, L.P., Trepp, LLC, Thomson Reuters Corporation, Moody’s Analytics, ICE Data Services and Intex Solutions, Inc. or such other vendor chosen by the Depositor that submits to the Certificate Administrator a certification in the form of Exhibit K-5 to this Agreement, all the Distribution Date Statements, CREFC^® Reports and supplemental notices delivered or made available pursuant to Section 8.14(c) to Privileged Persons.

3.22.    Inspections. The Servicer shall inspect or cause to be inspected the Property not less frequently than once each year commencing in 2023, so long as a Special Servicing Loan Event is not then continuing; provided, that the Servicer shall not be required to inspect the Property if it has been inspected by the Special Servicer in the preceding 12 months. The Special Servicer shall inspect or cause to be inspected the Property as applicable and as soon as practicable following the occurrence of a Special Servicing Loan Event and annually thereafter so long as the Whole Loan is a Specially Serviced Mortgage Loan. The Servicer or the Special Servicer, as applicable, shall also inspect, or cause to be inspected, the Property whenever it receives information that the Property has been damaged, left vacant, or abandoned, or if waste is being committed on the Property. All such inspections shall be performed in a manner consistent with Accepted Servicing Practices. The cost of the annual inspections referred to in the first sentence of this paragraph shall be an expense of the Servicer; the cost of all additional inspections referred to in this paragraph shall be a Trust Fund Expense (unless such expense is required to be borne by the Companion Loans pursuant to the terms of the Intercreditor Agreement) and, if paid by the Servicer or Special Servicer, shall constitute a Property Protection Advance, subject to the Reimbursement Deferral Obligation. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any such Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, will be required, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order. The Servicer or Special Servicer, as the case may be, shall prepare a written report of inspection and deliver it to the Certificate Administrator and the Companion Loan Holders. The Certificate Administrator shall post such report on the Certificate Administrator’s Website pursuant to Section 8.14(b).

3.23.    Advances. (a)  If a Monthly Payment (or an Assumed Monthly Payment, as applicable) (other than the Balloon Payment) or any portion of a Monthly Payment (or an

128

Assumed Monthly Payment, as applicable) (other than any Balloon Payment) on the Mortgage Loan has not been received by the close of the Business Day immediately prior to the Remittance Date (to the extent such Monthly Payment or Assumed Monthly Payment would be allocable to the Mortgage Loan pursuant to the Intercreditor Agreement), the Servicer, subject to its determination that such amounts would not be Nonrecoverable Advances, shall make an advance to the Certificate Administrator for deposit into the Distribution Account on such Remittance Date, in an amount equal to the Monthly Payment or an Assumed Monthly Payment, as applicable, or any such portion of the Monthly Payment or an Assumed Monthly Payment, as applicable, on such Mortgage Loan that was delinquent as of the close of the Business Day immediately prior to such Remittance Date, in each case, net of the Servicing Fee (which will not be paid to the Servicer until the funds in the Collection Account are available for payment of such fee). The portion of any such Advance that is equal to any accrued and unpaid CREFC^® Intellectual Property Royalty License Fee shall not be deposited into the Distribution Account but shall instead be remitted directly to CREFC^® by the Servicer. For the avoidance of doubt, in the event that the amount of interest on the Mortgage Loan is reduced as a result of any modification to the Mortgage Loan, any future Monthly Payment Advance made with respect to such modified Mortgage Loan shall be in such amounts as may be required as a result of such reduction. Neither the Servicer nor the Trustee shall be entitled to interest on any Monthly Payment Advance on the Mortgage Loan until the related Loan Payment Date has passed and any grace period for late payments applicable to the Mortgage Loan has expired. The Servicer shall maintain a record of each Monthly Payment Advance it has made pursuant to this Section 3.23(a) on the Mortgage Loan and shall notify the Certificate Administrator thereof in the appropriate CREFC^® Reports in order to permit allocation thereof pursuant to Sections 3.4 and 3.5. In the event that the Servicer does not remit any amounts required to be remitted to the Certificate Administrator on each Remittance Date (including any amounts required to be remitted pursuant to Section 3.5 and any required Monthly Payment Advance) to the Certificate Administrator for deposit in the Distribution Account on the Remittance Date, the Servicer shall pay to the Certificate Administrator interest on such amounts at the federal funds rate for the period from and including the Remittance Date to but excluding the Distribution Date or, if earlier, the actual remittance date.

The Servicer and the Trustee, as applicable, shall each be entitled to reimbursement for a Monthly Payment Advance (and interest thereon) and any Administrative Advance (and interest thereon) from any collections on the Whole Loan prior to any distributions to the Certificateholders or the Companion Loan Holders; provided that such reimbursement shall be deemed allocable first, from amounts due to the Junior Note, and then from amounts due to the Senior Notes on a Pro Rata and Pari Passu Basis (based on the outstanding principal balances of the Senior Notes).

To the extent that the reimbursement of any Administrative Advance during any Collection Period would result in an Interest Shortfall on the Class A or Class B Certificates on the related Distribution Date, the Servicer or the Trustee, as applicable, shall defer such portion of the reimbursement of the subject Administrative Advance as shall be necessary so as not to cause such an Interest Shortfall to the Class A or Class B Certificates on such Distribution Date; provided, however, that neither the Servicer nor the Trustee shall defer reimbursement of any Administrative Advance for the foregoing reason for a period exceeding twelve (12) months; and provided, further, that if such Administrative Advance has been determined to be, or would by

129

virtue of such deferral become, a Nonrecoverable Advance, then neither the Servicer nor the Trustee shall defer reimbursement.

At any time that an Appraisal Reduction Amount exists, the amount that would otherwise be required to be advanced by the Servicer in respect of delinquent payments of interest on the Mortgage Loan shall be reduced by multiplying such amount by a fraction, the numerator of which is the then outstanding principal balance of the Mortgage Loan minus the applicable Appraisal Reduction Amount allocated to the Mortgage Loan and the denominator of which is the then outstanding principal balance of the Mortgage Loan.

For the avoidance of doubt, the Servicer shall make Monthly Payment Advances on the basis of the original terms of the Mortgage Loan, including if the Mortgage Loan is subject to a forbearance agreement or other temporary deferral or payment accommodation, unless (a) the terms of the Mortgage Loan have been permanently modified to reduce or forgive a monetary obligation or (b) such advance has been determined to be non-recoverable.

(b)       Subject to Section 3.23(e), the Servicer shall advance, to the extent it determines that such amount is recoverable, all customary and reasonable out-of-pocket costs and expenses incurred by the Servicer or the Special Servicer in the performance of its servicing obligations, including, but not limited, to the costs and expenses incurred in connection with (i) the preservation, restoration, operation and protection of the Property which, in the Servicer’s or the Special Servicer’s, as applicable, sole discretion, exercised in accordance with Accepted Servicing Practices, are necessary to prevent an immediate or material loss to the Trust Fund’s interest in the Property, (ii) the payment of (A) real estate taxes, assessments and governmental charges that may be levied or assessed against the Borrower or any of its affiliates or the Property or revenues therefrom or which become liens on the Property, (B) insurance premiums and (C) the out-of-pocket costs and expenses of the Servicer or the Special Servicer, as applicable (including, without limitation, reasonable attorneys’ fees and expenses) to the extent not paid by the Borrower that are incurred in connection with assumption of the Whole Loan or a release of the Property securing the Whole Loan from the lien of the Mortgage, (iii) any enforcement or judicial proceedings, including foreclosures and including, but not limited to, court costs, reasonable attorneys’ fees and expenses and costs for third-party experts, including appraisers and environmental and engineering consultants, and (iv) the management, operation and liquidation of the Property if the Property is acquired by the Special Servicer or its affiliate in the name of the Trustee on behalf of the Trust and the Companion Loan Holders (collectively, “Property Protection Advances”). In addition, subject to Section 3.23(e), the Servicer shall advance, solely with respect to the Mortgage Loan for the benefit of the Certificateholders, to the extent it determines such amount is recoverable and to the extent required to be paid by the Borrower (but not so paid and such failure to pay would result in a shortfall in the amounts distributable to the Certificateholders), the amount of any Borrower Reimbursable Trust Fund Expenses that would be allocated to the Mortgage Loan pursuant to the terms of the Intercreditor Agreement; provided, that in no event will Administrative Advances include advances for such amounts that are otherwise required to be advanced as Property Protection Advances (collectively, “Administrative Advances”). During the continuation of a Special Servicing Loan Event, the Special Servicer shall give the Servicer and the Trustee not less than five Business Days’ written notice before the date on which the Servicer is requested to make any Property Protection Advance with respect to the Whole Loan or the Foreclosed Property; provided, that

130

only three Business Days’ written notice shall be required in respect of Property Protection Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Protection Advances required to make tax or insurance payments). In addition, the Special Servicer shall provide the Servicer with such information in its possession as the Servicer may reasonably request to enable the Servicer to determine whether a requested Property Protection Advance would constitute a Nonrecoverable Advance.

Any determination by the Servicer that a Property Protection Advance, if made, will be, or any Property Protection Advance previously made, is, a Nonrecoverable Advance, will be conclusive and binding on the holder of each Companion Loan (and related Other Servicer or Other Trustee).

With respect to a Property Protection Advance, the Servicer shall be entitled to reimbursement from any collections on the Whole Loan prior to any distributions to the Certificateholders or the Companion Loan Holders; provided that, to the extent that the reimbursement of any Property Protection Advance during any Collection Period would result in an Interest Shortfall on the Class A or Class B Certificates on the related Distribution Date, the Servicer shall defer such portion of the reimbursement of the subject Property Protection Advance as shall be necessary so as not to cause such an Interest Shortfall to the Class A or Class B Certificates on such Distribution Date (provided, however, that the Servicer will not be required to defer reimbursement of any Property Protection Advance for the foregoing reason for a period exceeding 12 months and provided, further, that if such Property Protection Advance has been determined to be, or would by virtue of such deferral become, a Nonrecoverable Advance, then neither the Servicer nor the Trustee shall defer reimbursement) (this proviso, the “Reimbursement Deferral Obligation”); provided any such reimbursement will be deemed allocable first from amounts due to the Trust (and therefor the Certificateholders as beneficial owners thereof) as holder of the Junior Note, and then, from amounts due to the Trust (and therefore the Certificateholders as beneficial owners thereof) and the Senior Non-Trust Note holders as holders of the Senior Notes, on a Pro Rata and Pari Passu Basis (based on the principal balances of the Senior Notes); and provided further, that the Servicer will be required, after receiving payment from amounts on deposit in the Collection Account, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

In connection with the Reimbursement Deferral Obligation and the third paragraph of Section 3.23, the Servicer and the Trustee may request information from the Certificate Administrator as may be necessary to determine whether any proposed Administrative Advance or Property Protection Advance reimbursement would trigger the Reimbursement Deferral Obligation or the third paragraph of Section 3.23 and the Certificate Administrator shall cooperate with the Servicer and/or Trustee in connection with any such reasonable request. Following receipt of the CREFC^® Loan Periodic Update File for the related Distribution Date and upon the request from the Servicer regarding the Reimbursement Deferral Obligation or the third paragraph of Section 3.23 referenced in the preceding sentence, the Certificate Administrator shall notify the Servicer upon a mutually agreed upon time if reimbursement of any Property Protection Advance or Administrative Advance indicated therein

131

would cause an Interest Shortfall to the Class A or Class B Certificates. Any such notification shall be in a manner mutually agreed upon by the Servicer and the Certificate Administrator.

(c)       To the extent the Servicer fails to make an Advance that it is required to make under this Agreement, the Trustee shall be required to make such Advance pursuant to Section 7.6. It is understood that the obligation of the Servicer and the Trustee (pursuant to Section 7.6) to make such Advances is mandatory, subject to the limitations set forth in this Agreement, and shall continue to apply after any modification or amendment of the Mortgage Loan pursuant to Section 3.24 hereof, beyond the Maturity Date of the Mortgage Loan if a payment default shall have occurred on such date and through any court appointed stay period or similar payment delay resulting from any insolvency of the Borrower or related bankruptcy, notwithstanding any other provision of this Agreement, other than the requirement of recoverability, and shall continue, subject to the requirement of recoverability, until the earlier of (i) the payment in full of the Mortgage Loan and (ii) the date on which the Property becomes liquidated.

(d)       Interest on each Advance made by the Servicer or the Trustee shall accrue for each day that such Advance is outstanding at a rate of interest equal to the Prime Rate (the “Advance Rate”) for each such day (or the most recent day on which the Prime Rate was reported, if not reported on such day) on the basis of a year of 360 days and the actual number of days elapsed in a month. Interest on the Advances shall compound annually.

(e)       Notwithstanding any other provision in this Agreement, the Servicer or the Trustee, as applicable, shall be obligated to make an Advance only to the extent that the Servicer, the Special Servicer or the Trustee, as applicable, has determined that such Advance, together with any previous unreimbursed Advances and interest on all those Advances at the Advance Rate, would not constitute a Nonrecoverable Advance if made. The Trustee and the Servicer, in that order, shall be entitled to reimbursement for any such Advances from the Collection Account (provided that, in the case of interest on Property Protection Advances, the Servicer shall, after receiving payment from amounts on deposit in the Collection Account, if any, promptly notify the Companion Loan Holders (or, to the extent that a Companion Loan is included in an Other Securitization Trust, the Other Servicer under the related Other Pooling and Servicing Agreement)) and shall obtain such reimbursement in accordance with Section 3.4(c). If the context requires, each reference to the reimbursement or payment of an Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate through the date of payment or reimbursement.

(f)        The determination by the Servicer or the Trustee, as applicable, that it has made a Nonrecoverable Advance or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced by the delivery of an Officer’s Certificate to the Certificate Administrator, the Trustee (if such determination is made by the Servicer), the Controlling Class Representative (during any Subordinate Control Period and any Subordinate Consultation Period) and the Companion Loan Holders (or, to the extent that a Companion Loan is included in an Other Securitization Trust, the related Other Servicer and Other Trustee) detailing the reasons for such determination together with, to the extent such information, report or document is in the Servicer’s possession, and, if such information, reports or documents are used by the Servicer to determine that an Advance would be a Nonrecoverable Advance, any

132

related financial information such as related income and expense statements, rent rolls, occupancy status, property inspections and any Appraisals performed within the last twelve (12) months on the Property, any engineers’ reports, environmental surveys, internal final valuations or other information relevant thereto which support such determination. The determination by the Special Servicer that an Advance is Nonrecoverable or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate to the Servicer, the Certificate Administrator, the Trustee, the Controlling Class Representative (during any Subordinate Control Period or Subordinate Consultation Period) and the Companion Loan Holders (or, to the extent that a Companion Loan is included in an Other Securitization Trust, the related Other Servicer and Other Trustee) detailing the reasons for such determination together with, to the extent such information, report or document is in the Special Servicer’s possession, and, if such information, reports or documents are used by the Special Servicer to determine that an Advance would be a Nonrecoverable Advance, any related financial information such as related income and expense statements, rent rolls, occupancy status, property inspections and any Appraisals performed within the last twelve (12) months on the Property, any engineers’ reports, environmental surveys, internal final valuations or other information relevant thereto which support such determination. Such Officer’s Certificate shall be made available to any Privileged Person by the Certificate Administrator posting such Officer’s Certificate to the Certificate Administrator’s Website pursuant to Section 8.14(b). The Servicer or the Trustee, as applicable, shall be entitled to rely conclusively on the Special Servicer’s determination that an Advance is a Nonrecoverable Advance. The costs of any appraisals, reports or surveys and other information requested by the Servicer or the Trustee establishing an Advance as a Nonrecoverable Advance shall be treated as Trust Fund Expenses (unless such expenses are reimbursed with funds otherwise paid from amounts allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement), payable from the Collection Account pursuant to Section 3.4(c), and shall constitute a Property Protection Advance if paid by the Servicer or the Trustee from its funds, subject to the Reimbursement Deferral Obligation. If funds in the Collection Account allocable to the Junior Note pursuant to the terms of the Intercreditor Agreement are insufficient to reimburse any Property Protection Advance, then any deficiency shall be paid from amounts on deposit in the Collection Account allocable to the Senior Notes, on a Pro Rata and Pari Passu Basis, pursuant to the terms of the Intercreditor Agreement. If such amounts are reimbursed from amounts allocable to the Mortgage Loan, the Servicer or the Special Servicer, as applicable, shall, after receiving payment from amounts on deposit in the Collection Account allocable to the Mortgage Loan, if any, (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Issuing Entity the rights of the Issuing Entity under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order (including, if such amounts cannot be recovered from the Whole Loan, from general collections of the related Other Securitization Trust, if applicable). The Servicer’s determination of nonrecoverability in accordance with the above provisions shall be conclusive and binding on the Trustee and the Certificateholders and the Trustee shall be entitled to rely conclusively thereupon. In addition, if the Special Servicer determines that the Servicer or the Trustee has made a Nonrecoverable Advance or that any proposed Advance, if made, would constitute a Nonrecoverable Advance, the Servicer and the Trustee shall be entitled to rely conclusively thereupon. If the Special Servicer requests that the Servicer make an Advance, the Trustee and the Servicer may (but shall not be obligated to) conclusively rely on

133

such request as evidence that such advance is not a Nonrecoverable Advance. The Trustee, in determining whether or not a proposed Advance would be a Nonrecoverable Advance, shall make such determination in its good faith business judgment.

(g)       The Servicer and the Trustee are not obligated to advance (i) the Balloon Payment with respect to the Mortgage Loan (but are required to advance the Assumed Monthly Payment) or the Balloon Payment with respect to any Companion Loan, (ii) any Default Interest, (iii) amounts required to cure any damages resulting from Uninsured Causes (except as required pursuant to Section 3.12(c)), any failure of the Property to comply with any applicable law, including any environmental law, or (except in connection with the foreclosure or other acquisition of the Property in accordance with Section 3.12 upon the occurrence of an Event of Default) to investigate, test, monitor, contain, clean up, or remedy an environmental condition present at the Property, (iv) any losses arising with respect to defects in the title to the Property, (v) any costs of capital improvements to the Property other than those necessary to prevent an immediate or material loss to the Trust’s interest in the Property, (vi) any yield maintenance amounts or prepayment premiums, including any Yield Maintenance Premiums, (vii) any monthly payment advances of principal or interest with respect to the Companion Loans or (viii) any administrative advances with respect to the Companion Loans.

(h)       Notwithstanding anything contained herein to the contrary, the Servicer and the Trustee shall each be entitled to make its own determination that a Monthly Payment Advance previously made with respect to the Mortgage Loan is a Nonrecoverable Advance or that any proposed Monthly Payment Advance, if made, would constitute a Nonrecoverable Advance with respect to the Mortgage Loan in accordance with the terms of this Agreement, independently of any determination made by any Other Servicer or Other Trustee under any related Other Pooling and Servicing Agreement in respect of a Companion Loan following the deposit of such Companion Loan into an Other Securitization Trust, and each Other Servicer and Other Trustee, as applicable, shall each make its own determination that a Monthly Payment Advance is or, if made, will be a Nonrecoverable Advance (both as defined in the related Other Pooling and Servicing Agreement) or that any proposed Monthly Payment Advance, if made, would constitute a Nonrecoverable Advance (both as defined in the related Other Pooling and Servicing Agreement) with respect to such Companion Loan, in accordance with the related Other Pooling and Servicing Agreement. No determination by the Servicer or the Trustee that any such Monthly Payment Advance is a Nonrecoverable Advance shall be binding on the Other Servicer or the Other Trustee or the holders of any Companion Loan Securities. No determination by the Other Servicer or the Other Trustee that any Monthly Payment Advance (as defined in the related Other Pooling and Servicing Agreement) is nonrecoverable shall be binding on the Servicer, the Trustee or the Certificateholders.

If the Servicer determines that a Monthly Payment Advance would be (if made), or any outstanding Monthly Payment Advance previously made is, a Nonrecoverable Advance, the Servicer shall provide the Other Servicer written notice of such determination. If the Servicer or Trustee receives written notice by the Other Servicer or the Other Trustee that it has determined, with respect to the Mortgage Loan, that any proposed future Monthly Payment Advance would be, or any outstanding Monthly Payment Advance is, a Nonrecoverable Advance, the Servicer shall use reasonable efforts to consult on a non-binding basis with the Other Servicer or the Other Trustee, as applicable, regarding the circumstances with respect to

134

the Mortgage Loan, but the Servicer or Trustee, as applicable, shall be allowed to make its own recoverability determination.

Following a securitization of a Companion Loan, the Servicer shall be required to deliver to the related Other Servicer the following information in accordance with the Intercreditor Agreement: (i) any loan related information (in the form received), including without limitation CREFC^® Reports relating to the Mortgage Loan, applicable to a determination that an Advance is or would be a Nonrecoverable Advance, on the same day such information is provided to the Certificate Administrator, (ii) notice of any Monthly Payment Advance, Property Protection Advance or Administrative Advance it or the Trustee makes with respect to the Mortgage Loan (in the case of any Monthly Payment Advance or Administrative Advance) or the Whole Loan (with respect to any Property Protection Advance) within two (2) Business Days of the making of such Advance and (iii) notice of any determination that any Monthly Payment Advance, Property Protection Advance or Administrative Advance is a Nonrecoverable Advance within two (2) Business Days of the notice provided under Section 3.23(f) above.

3.24.    Modifications of Loan Documents. (a)  (i) The Servicer (if no Special Servicing Loan Event has occurred and is continuing) or the Special Servicer (during the existence of a Special Servicing Loan Event) may, subject to the rights of the Controlling Class Representative (during any Subordinate Control Period or Subordinate Consultation Period), modify, waive or amend any term of the Mortgage Loan or the Companion Loans if such modification, waiver or amendment (A) is consistent with Accepted Servicing Practices and (B) does not either (1) cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code or (2) constitute a “significant modification” of the Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) (and the Servicer or the Special Servicer, as applicable, may obtain and be entitled to rely upon an Opinion of Counsel in connection with such determination). Notwithstanding anything herein to the contrary, in no event may the Servicer or the Special Servicer permit an extension of the Maturity Date beyond the date that is the earlier of (i) seven (7) years prior to the latest Rated Final Distribution Date and (ii) 20 years prior to the end of the term of the earliest terminating ground lease (including any extensions that are exercisable unilaterally at the option of the Borrower).

In connection with the taking of the Property or any portion thereof by exercise of the power of eminent domain or condemnation, if the Loan Documents require the Servicer or the Special Servicer, as applicable, to calculate the loan-to-value ratio of the remaining Property or the fair market value of the real property constituting the remaining Property, for purposes of REMIC qualification of the Mortgage Loan, then, unless then permitted by the REMIC Provisions, such calculation shall exclude the value of personal property and going concern value, if any.

Additionally, the Servicer or Special Servicer, as applicable, may grant a forbearance on the Mortgage Loan related to the global COVID-19 emergency if (i) such forbearance is permitted under another provision of the TSA and the requirements under such provision are satisfied or (ii) an opinion of counsel is delivered to the effect that such forbearance will not result in an Adverse REMIC Event.

135

(b)       All modifications, waivers or amendments of the Mortgage Loan or the Companion Loans shall be in writing and shall be effected in a manner consistent with Accepted Servicing Practices, the REMIC Provisions and the provisions of the Intercreditor Agreement. The Servicer or the Special Servicer, as applicable, shall notify the Servicer (if notice is from the Special Servicer), the Special Servicer (if such notice is from the Servicer), the Trustee, the Certificate Administrator, the Depositor and the Companion Loan Holders (or, to the extent that a Companion Loan is included in an Other Securitization Trust, the Other Depositor and Other Servicer under the related Other Pooling and Servicing Agreement), in writing, of any modification, waiver or amendment of any term of the Mortgage Loan or a Companion Loan and the date thereof, and shall deliver to the Certificate Administrator (or the Custodian on its behalf) an original recorded (if applicable) counterpart of the agreement relating to such modification, waiver or amendment within ten (10) Business Days following the execution (with a copy thereof to the Servicer) and, if applicable, within ten (10) Business Days of the recordation thereof (with a copy thereof to the Servicer, the Special Servicer and the Companion Loan Holders, as applicable). If the Servicer or Special Servicer modifies the interest rate applicable to the Mortgage Loan or a Companion Loan, any aggregate adverse economic effect of the modification shall be borne first by the Junior Note and then by the Senior Notes on a Pro Rata and Pari Passu Basis, and any such adverse economic effect allocable to the Mortgage Loan shall be applied to the Certificates in reverse order of priority. If the Mortgage Loan is modified, the Mortgage Rate shall not change for purposes of calculating distributions on the Certificates. Notwithstanding the foregoing, neither the Servicer nor the Special Servicer shall modify the Mortgage Rate, the Maturity Date or the timing of payments on the Whole Loan (or any Note forming a part thereof) unless the Whole Loan is in default or default is reasonably foreseeable.

(c)       Any modification, extension, waiver or amendment of the payment terms of the Mortgage Loan and the Companion Loans will be required to be structured to be consistent with the allocation and payment priorities in the related Loan Documents and the Intercreditor Agreement, such that neither the Trust as holder of the Mortgage Loan nor any Companion Loan Holder gains a priority over the other such holder that is not reflected in the related Loan Documents and the Intercreditor Agreement. Neither the Servicer nor the Special Servicer shall enter into, or structure (including, without limitation, by way of the application of credits, discounts, forgiveness or otherwise), any modification, waiver, amendment, work-out, consent or approval with respect to the Whole Loan in a manner that would have the effect of placing amounts payable as compensation, or otherwise reimbursable, to the Servicer or the Special Servicer in a higher priority than the allocation and payment priorities set forth in Section 1.3 of this Agreement or in the Intercreditor Agreement. Any modification, waiver or amendment with respect to a Companion Loan may be subject to the consent of the related Companion Loan Holder(s) and the Special Servicer as described pursuant to the terms of the Intercreditor Agreement and this Agreement.

(d)       Subject to Section 3.26, any modification of the Loan Documents that requires a Rating Agency Confirmation (including a Companion Loan Rating Agency Confirmation) pursuant to the Loan Documents, or any modification that would eliminate, modify or alter the requirement of obtaining such Rating Agency Confirmation (or Companion Loan Rating Agency Confirmation) in the Loan Documents, shall not be made without the Servicer’s or the Special Servicer’s, as applicable, first receipt of such Rating Agency Confirmation (or Companion Loan Rating Agency Confirmation). Such Rating Agency

136

Confirmation shall be obtained at the Borrower’s expense in accordance with the Loan Agreement or, if not so provided in the Loan Agreement or if the Borrower does not pay, at the expense of the Trust Fund.

(e)       Subject to Section 3.26, prior to implementing any of the actions or decisions contemplated by clauses (vi)-(x) of the definition of “Major Decision” or the assumption of the Whole Loan by a “Qualified Transferee” (as defined in the Loan Agreement) pursuant to Section 7.1(b)(iv) of the Loan Agreement, the Servicer or the Special Servicer shall obtain a Rating Agency Confirmation with respect to such action or decision. In addition: (i) upon the execution of any assumption agreement, or any amendment, termination or other modification of any ground lease or condominium documentation related to the Property, the Servicer or the Special Servicer, as applicable, shall notify the Rating Agencies of the completion of such action; and (ii) with respect to any incurrence of mezzanine financing by any beneficial owner of the Borrower, to the extent that the lender has consent rights pursuant to the Loan Documents (for purposes of the determination whether the lender has such consent rights pursuant to the Loan Documents, any provision in the Loan Documents that requires that an intercreditor agreement be reasonably or otherwise acceptable to the lender will constitute such consent rights)), the Servicer or Special Servicer, as applicable, shall not consent to such mezzanine financing unless a Rating Agency Confirmation has been obtained.

(f)        Notwithstanding the foregoing, the Servicer and Special Servicer (if a Special Servicing Loan Event is continuing) may, if in accordance with the Accepted Servicing Practices (but without any Rating Agency Confirmation or consent of the Controlling Class Representative), grant the Mortgage Loan Borrower’s request for consent to subject the Property to an easement, right-of-way or similar agreement for utilities, access, parking, public improvements or another similar purpose and may consent to subordination of the Mortgage Loan or a Companion Loan to such easement, right-of-way or similar agreement.

(g)       If the Mortgage Loan permits release of the Property through defeasance:

(i)        If the Mortgage Loan requires that the Mortgage Loan Lender purchase the required government securities, then the Servicer shall purchase, or shall cause the purchase of, such obligations on behalf of the Trust, at the Borrower’s expense, in accordance with the terms of the Mortgage Loan; provided, that the Servicer shall not accept the amounts paid by the Borrower to effect defeasance until acceptable government securities have been identified;

(ii)       To the extent not inconsistent with the Mortgage Loan, the Servicer shall require the Borrower to provide an Opinion of Counsel (which shall be an expense of the Borrower) to the effect that the Trustee has a first priority perfected security interest in the defeasance collateral (including the government securities) and the assignment of the defeasance collateral is valid and enforceable;

(iii)      To the extent not inconsistent with the Mortgage Loan, the Servicer shall require a certificate at the Borrower’s expense from an Independent certified public accountant certifying to the effect that the government securities will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity)

137

on the Mortgage Loan in compliance with the requirements of the terms of the related Loan Documents;

(iv)      Prior to permitting release of the Property through defeasance, the Servicer shall require an Opinion of Counsel to the effect that such release will not cause either the Lower Tier REMIC or the Upper Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or cause a tax to be imposed on the Trust Fund under the REMIC Provisions; provided, that to the extent not inconsistent with the Mortgage Loan, the Borrower shall pay the cost related to the Opinion of Counsel (and shall otherwise be a Property Protection Advance);

(v)       No defeasance shall occur on or prior to the second anniversary of the startup date of any REMIC established in connection with the last securitization involving any Note;

(vi)      The Servicer shall, at the expense of the Borrower (to the extent not inconsistent with the related Loan Documents), cause the U.S. government securities to be held for the benefit of the Certificateholders, and apply payments of principal and interest received on the government obligations in respect of the defeased Mortgage Loan in accordance with the terms of the Loan Documents;

(vii)     The Servicer shall, in accordance with Accepted Servicing Practices, enforce any provisions in the Mortgage Loan requiring the Borrower to pay all reasonable expenses associated with a defeasance;

(viii)    To the extent not inconsistent with the Mortgage Loan, or to the extent the Loan Documents provide the Mortgage Loan Lender with discretion, the Servicer shall require a single purpose entity, formed solely for the purpose of owning and pledging the government securities related to the Mortgage Loan, to act as a successor borrower;

(ix)       To the extent not inconsistent with the Mortgage Loan, each Rating Agency must provide a Rating Agency Confirmation; and

(x)       To the extent not required or permitted to be placed in a separate account, the Servicer shall deposit all payments received by it from defeasance collateral substituted for the Property into the Collection Account and treat any such payments as payments made on the Mortgage Loan in advance of its Loan Payment Date in accordance with clause (i) of the definition of Regular Principal Distribution Amount, and not as a prepayment of the Mortgage Loan. Notwithstanding anything herein to the contrary, in no event shall the Servicer permit such amounts to be maintained in the Collection Account for a period in excess of 365 days.

Notwithstanding the foregoing, the Servicer shall not permit the substitution of the Property pursuant to the defeasance provisions of the Mortgage Loan (or any portion thereof), if any, unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)(ii) and satisfies the conditions set forth in this Section 3.24(g). In addition, notwithstanding anything herein or in the Loan Documents to the contrary, the Servicer may permit the substitution of direct, non-callable “government securities” within the meaning of Section 2(a)(16) of the

138

Investment Company Act of 1940, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) (including U.S. government agency securities if such securities are eligible defeasance collateral under then current guidelines of the Rating Agencies) for the Property pursuant to the defeasance provisions of the Mortgage Loan (or any portion thereof) in lieu of the defeasance collateral specified in the Loan Documents; provided that, the Servicer receives an Opinion of Counsel (at the expense of the Borrower to the extent permitted under the Loan Documents) to the effect that such use would not be and would not constitute a “significant modification” of the Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or result in the imposition of a tax upon the Lower-Tier REMIC, the Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”).

3.25.    Servicer and Special Servicer May Own Certificates. The Servicer, the Special Servicer and any agent thereof in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Servicer, the Special Servicer or such agent except as otherwise provided herein subject to the restrictions on voting set forth in the definition of Certificateholder.

3.26.    Rating Agency Confirmations; Companion Loan Rating Agency Confirmations. (a)  Notwithstanding the terms of any Loan Documents or other provisions of this Agreement, if any action under any Loan Documents or this Agreement requires a Rating Agency Confirmation as a condition precedent to such action, if the party (the “Requesting Party”) attempting to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any such Rating Agency for such Rating Agency Confirmation and, within 10 Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, and such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for a Rating Agency Confirmation, then such Requesting Party shall be required (without providing notice to the 17g-5 Information Provider) to (i) confirm that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again and (ii) if there is no response to either Rating Agency Confirmation request within 5 Business Days of such confirmation or such second request (after seeking to confirm that the applicable Rating Agency received such second Rating Agency Confirmation request), as applicable, then (x) with respect to any condition in the Loan Documents requiring a Rating Agency Confirmation or any other matter under this Agreement relating to the servicing of the Mortgage Loan or the Whole Loan (other than as set forth in clause (y) below), the Requesting Party (or, if the Requesting Party is the Borrower, then the Servicer or the Special Servicer, as applicable) will be required to determine, in accordance with its duties under this Agreement and in accordance with Accepted Servicing Practices, whether or not such action would be in the best interest of Certificateholders and the Companion Loan Holders, and if the Requesting Party (or, if the Requesting Party is the Borrower, then the Servicer or the Special Servicer, as applicable) determines that such action would be in the best interest of the Certificateholders and the Companion Loan Holders, then the requirement for a Rating Agency Confirmation shall not apply, for such agency and such matter at such time

139

(provided, that with respect to defeasance, any Rating Agency Confirmation requirement that the Servicer or Special Servicer would have been permitted to waive pursuant to this Agreement will not apply without any such determination by the Requesting Party (or the Servicer or the Special Servicer, as applicable) (it being understood that the Requesting Party (or the Servicer, or the Special Servicer, as applicable) will in any event review the conditions required under the Loan Documents with respect to such defeasance and confirm to its satisfaction in accordance with the Accepted Servicing Practices that such conditions (other than the requirement for a Rating Agency Confirmation) have been satisfied)), and (y) with respect to a replacement of the Servicer or Special Servicer, such condition will not apply if such replacement Servicer or Special Servicer is a Qualified Servicer (provided, that such Servicer or Special Servicer shall be required to certify to the parties hereto as to its status as a Qualified Servicer). For all other matters or actions (a) not specifically discussed above in clauses (x) or (y) or (b) that are not the subject of a Rating Agency Declination, the applicable Requesting Party shall be required to obtain a Rating Agency Confirmation from each of the Rating Agencies.

(b)       Any Rating Agency Confirmation requests made by the Servicer, Special Servicer, Certificate Administrator or the Trustee, as applicable, pursuant to this Agreement, shall be made in writing (an email shall be sufficient as a writing), which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material the Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, deems necessary for the Rating Agency to process such request. Subject to Section 12.18, the Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, shall furnish such written Rating Agency Confirmation to the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website).

(c)       Each Certificateholder, by its acceptance of the Certificates, acknowledges and agrees to the foregoing with respect to Rating Agency Confirmations.

(d)       Promptly following the Servicer’s or Special Servicer’s determination to take any action discussed in this Section 3.26 following any requirement to obtain a Rating Agency Confirmation being considered satisfied, the Servicer or Special Servicer, as the case may be, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 12.18 of this Agreement.

(e)       Notwithstanding the terms of the related Loan Documents, the other provisions of this Agreement or the Intercreditor Agreement, with respect to the Companion Loans as to which there exists Companion Loan Securities, if any action relating to the servicing and administration of the Whole Loan or any Foreclosed Property (the “Relevant Action”), including, without limitation, the termination, resignation and/or replacement of the Servicer or Special Servicer, requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then, except as set forth below in this paragraph, such action will also require delivery of a Companion Loan Rating Agency Confirmation as a condition precedent to such action from each Companion Loan Rating Agency. Each Companion Loan Rating Agency Confirmation shall be sought by the party that is seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action. The

140

requirement to obtain a Companion Loan Rating Agency Confirmation with respect to any Companion Loan Securities will be subject to, will be permitted to be waived by the Servicer and the Special Servicer on, and will be deemed not to apply on, the same terms and conditions applicable to obtaining Rating Agency Confirmations, as set forth in this Agreement; provided, that the party that is seeking the subject Companion Loan Rating Agency Confirmation, shall forward to the Other Servicer and the Other Special Servicer, as applicable, the 17g-5 Information Provider’s counterpart, or such other party or parties (as are agreed to by the Servicer or the Special Servicer, as applicable, and the applicable parties for the related Other Securitization Trust), at the expense of the Other Securitization Trust to the extent not borne by the Borrower, and in such format as the sender and recipient may reasonably agree, (i) the request for such Companion Loan Rating Agency Confirmation at the same time (or prior to the time) that it is sent to the applicable Companion Loan Rating Agency, (ii) all materials forwarded to the 17g-5 Information Provider under this Agreement in connection with seeking the Rating Agency Confirmation(s) for the applicable Relevant Action at approximately the same time that such materials are forwarded to the 17g-5 Information Provider, and (iii) any other materials that the applicable Companion Loan Rating Agency may reasonably request in connection with such Companion Loan Rating Agency Confirmation promptly following such request.

(f)        The Certificate Administrator shall, promptly following the written request from the Servicer or the Special Servicer, provide to the Servicer or the Special Servicer, as applicable, the contact information for the related Other Servicer, Other Special Servicer, Other Certificate Administrator, Other Trustee any other 17g-5 information provider for the Other Securitization Trust related to a Companion Loan, solely to the extent actually known to a Responsible Officer of the Certificate Administrator.

(g)       To the extent the Loan Documents permit the incurrence of a PACE Loan, the Servicer and Special Servicer, prior to permitting the incurrence of such PACE Loan, shall receive a Rating Agency Confirmation in accordance with Section 3.26(a) and approval of the Controlling Class Representative if required pursuant to Section 9.3. The Servicer and Special Servicer, as applicable, shall take all reasonable actions to collect all expenses accrued in connection with such request for a Rating Agency Confirmation from the Borrower on behalf of the Trust Fund.

3.27.    Other Asset Representations Reviewer. If a Companion Loan becomes the subject of an Asset Review pursuant to an Other Pooling and Servicing Agreement, the Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the related Other Asset Representations Reviewer or any other party to the related Other Pooling and Servicing Agreement in connection with such Asset Review by providing such Other Asset Representations Reviewer or such other requesting party any documents reasonably requested by such Other Asset Representations Reviewer or such other requesting party, but only to the extent such documents are in the possession of the Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be.

141

4.            PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS

4.1.      Distributions. (a)  On each Distribution Date, to the extent of Non-Retained Certificate Available Funds, amounts held in the Distribution Account shall be withdrawn and paid in the following amounts:

first, to the Class A and Class X Certificates, on a pro rata basis on each such Class’s respective Interest Distribution Amount for such Distribution Date, in respect of interest, up to the Interest Distribution Amount for each such Class and such Distribution Date;

second, to the Class A Certificates, in reduction of the Certificate Balance of such Class, up to the Principal Distribution Amount for such Distribution Date until the Certificate Balance of such Class is reduced to zero;

third, to the Class A Certificates, up to the amount of all Applied Realized Loss Amounts previously allocated to such Class and not reimbursed on prior Distribution Dates;

fourth, to the Class B Certificates, in respect of interest, up to the Interest Distribution Amount for such Class and such Distribution Date;

fifth, to the Class B Certificates, in reduction of the Certificate Balance of such Class, up to the Principal Distribution Amount for such Distribution Date (reduced by any portion thereof distributed to a more senior Class) until the Certificate Balance of such Class is reduced to zero;

sixth, to the Class B Certificates, up to the amount of all Applied Realized Loss Amounts previously allocated to such Class and not reimbursed on prior Distribution Dates;

seventh, to the Class C Certificates, in respect of interest, up to the Interest Distribution Amount for such Class and such Distribution Date;

eighth, to the Class C Certificates, in reduction of the Certificate Balance of such Class, up to the Principal Distribution Amount for such Distribution Date (reduced by any portion thereof distributed to a more senior Class) until the Certificate Balance of such Class is reduced to zero;

ninth, to the Class C Certificates, up to the amount of all Applied Realized Loss Amounts previously allocated to such Class and not reimbursed on prior Distribution Dates; and

tenth, to the Class R Certificates (in respect of the Class UT-R Interest), any remaining amounts.

In no event will any Class of Certificates receive distributions in reduction of its Certificate Balance (i) that in the aggregate exceed the original Certificate Balance of such Class or (ii) subject to the immediately preceding paragraph, prior to the reduction of the Certificate Balance of each Class of Certificates with an earlier alphabetical and/or numerical designation to such Class to zero.

142

(b)       On each Distribution Date, to the extent of the Retained Certificate Available Funds for such Distribution Date, amounts held in the Distribution Account shall be withdrawn and paid in the following amounts:

(i)        first, to the Holders of the RR Interest, in respect of interest, up to an amount equal to the Retained Certificate Interest Distribution Amount for such Distribution Date;

(ii)       second, to the Holders of the RR Interest, in reduction of the Certificate Balance thereof, up to an amount equal to the Retained Certificate Principal Distribution Amount for such Distribution Date, until the outstanding Certificate Balance of the RR Interest has been reduced to zero; and

(iii)      third, to the RR Interest, as reimbursement for any unreimbursed Retained Certificate Realized Losses previously allocated to the Holders of the RR Interest, up to an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of reimbursed Applied Realized Loss Amounts distributed to the holders of the Sequential Pay Certificates pursuant to clauses third, sixth and ninth in clause (a) above;

provided, that to the extent any Retained Certificate Available Funds remain in the Distribution Account after applying amounts as set forth in clauses (i) – (iii) above, any such amounts so remaining shall be disbursed to the Holders of the Class R Certificates (in respect of the Class UT-R Interest).

(c)       On each Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed to receive distributions in respect of principal or reimbursement of Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, in an amount equal to the amount of principal or reimbursement of Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, actually distributable to its respective Related Certificates as provided in Sections 4.1(a), 4.1(b) and 4.1(h). On each Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed to receive distributions in respect of interest in an amount equal to the Interest Distribution Amount or Retained Certificate Interest Distribution Amount, as applicable, in respect of the Class of Related Certificates, plus, in the case of the Class LA Uncertificated Interest, the Interest Distribution Amount in respect of the Class X Certificates, in each case to the extent actually distributable thereon as provided in Section 4.1(a) and 4.1(b). Amounts distributable pursuant to this paragraph and any Yield Maintenance Premium distributed pursuant to Section 4.3(b) are referred to herein collectively as the “Lower-Tier Distribution Amount”, and shall be deemed to be made by the Certificate Administrator by being deemed to deposit such Lower-Tier Distribution Amount into the Upper-Tier Distribution Account on each Distribution Date.

As of any date, the principal balance of each Uncertificated Lower-Tier Interest shall equal its Lower-Tier Principal Amount. The Pass-Through Rate with respect to each Uncertificated Lower-Tier Interest shall be the rate per annum set forth in the Introductory Statement hereto.

143

Any amount that remains in the Lower-Tier Distribution Account on each Distribution Date after distribution of the Lower-Tier Distribution Amount shall be distributed to the Holders of the Class R Certificates (in respect of the Class LT-R Interest, but only to the extent of the amount remaining in the Lower-Tier Distribution Account, if any).

Distributions to the Class R Certificateholders (in respect of the Class LT-R Interest) from the Lower-Tier Distribution Account and to the Class R Certificateholders (in respect of the Class UT-R Interest) and to other Certificateholders from the Upper-Tier Distribution Account on each Distribution Date shall be made by the Certificate Administrator to each Certificateholder of record on the related Record Date (other than as provided in Section 11.1 in respect of the final distribution), by wire transfer in immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor; provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date.

(d)       All amounts distributable to a Class of Certificates pursuant to this Section 4.1 on each Distribution Date shall be allocated pro rata among the outstanding Certificates in each such Class based on their respective Percentage Interests. Such distributions shall be made on each Distribution Date to each Certificateholder of record on the related Record Date by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

(e)       The Certificate Administrator shall, as soon as reasonably possible after notice thereof by the Servicer to the Certificate Administrator that the final distribution with respect to any Class of Certificates is expected to be made, mail to each Holder of such Class of Certificates on such date a notice to the effect that:

(i)        the Certificate Administrator reasonably expects based upon information previously provided to it that the final distribution with respect to such Class of Certificates shall be made on such Distribution Date, but only upon presentation and surrender of such Certificates at the office of the Certificate Administrator therein specified; and

(ii)       if such final distribution is made on such Distribution Date, no interest shall accrue on such Certificate from and after the Interest Accrual Period related to such Distribution Date.

(f)        Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their

144

Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation to receive the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. All such amounts shall be held by the Certificate Administrator in trust in accordance herewith until the expiration of a two-year period following such second notice, notwithstanding any termination of the Trust Fund. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Certificate Administrator shall hold all amounts distributable to the Holders thereof for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator hereunder and the transfer of such amounts to a successor Certificate Administrator and (ii) the termination of the Trust Fund, at which time all unclaimed funds shall be distributed, subject to applicable escheatment law, to the Depositor. No interest shall accrue or be payable to any Certificateholder on any amount held in trust hereunder or by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.1(f). Any such amounts transferred to the Certificate Administrator will remain uninvested. In the event the Certificate Administrator is permitted or required to invest any amounts in Permitted Investments under this Agreement in the event of its assumption of the duties of, or becoming the successor to, the Servicer or the Special Servicer, as applicable, in accordance with the terms of this Agreement, it shall invest such amounts in Permitted Investments under clause (i) of the definition of Permitted Investments.

(g)       Subject to the following sentence, the Certificate Administrator shall be responsible for the calculations with respect to distributions from the Trust so long as the Trust Fund has not been terminated in accordance with this Agreement; provided, that the Certificate Administrator shall have no duty to recompile, recalculate or verify the accuracy of information provided to it by the Servicer pursuant to Section 3.18(a) and, in the absence of manifest error in such information, may conclusively rely upon it.

(h)       On each Distribution Date, Non-Retained Certificate Realized Losses with respect to the Mortgage Loan shall be allocated to and applied as a reduction of the Certificate Balance of each Class of Sequential Pay Certificates in the following order: first, to the Class C Certificates, second, to the Class B Certificates; and third, to the Class A Certificates, in each case to reduce the Certificate Balance of that Class of Certificates, until the Certificate Balance of such Class or Classes has been reduced to zero. On each Distribution Date, Retained Certificate Realized Losses on the Mortgage Loan will be allocated to the RR Interest to reduce the Certificate Balance thereof until such Certificate Balance has been reduced to zero.

On any Distribution Date, allocations of Applied Realized Loss Amounts or Retained Certificate Realized Losses, as applicable, to the Class A Certificates shall result in a corresponding reduction in the Notional Amount of the Class X Certificates on the same

145

Distribution Date. Allocations of Applied Realized Loss Amounts or Retained Certificate Realized Losses, as applicable, to any Class of Sequential Pay Certificates or the RR Interest shall be deemed to result in a corresponding reduction of the Lower-Tier Principal Amount of the Related Uncertificated Lower-Tier Interest.

To the extent any Non-Retained Certificate Realized Losses are subsequently recovered, the amount of such recovery shall be reimbursed to the applicable Certificateholders in the following order: first, to the Class A Certificates, second, to the Class B Certificates, and third, to the Class C Certificates (and the Related Uncertificated Lower-Tier Interests), in each case up to the amount of unreimbursed Applied Realized Loss Amounts, if any, that have been allocated to such Class of Certificates. To the extent any Retained Certificate Realized Losses are subsequently recovered, the amount of such recovery will be reimbursed with respect to the RR Interest in accordance with the payment priorities set forth in Section 4.1(b).

4.2.      Withholding Tax. Notwithstanding any other provision of this Agreement, the Certificate Administrator shall comply with all federal withholding requirements with respect to payments to Certificateholders or payees that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for any such withholding, and each Certificateholder or payee shall be deemed by the acceptance of its Certificate to agree to provide the Certificate Administrator information relating to such Certificateholder or payee solely to the extent necessary for the Certificate Administrator to determine any required withholding amounts. In the event the Certificate Administrator withholds any amount from interest payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, amounts so withheld shall be treated as having been entirely distributed to such Certificateholder or payee, and the Certificate Administrator shall indicate the amount withheld to such Certificateholder or payee through a report.

For the avoidance of doubt, the Collection Account and the Lower-Tier Distribution Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC, and the Upper-Tier Distribution Account (including interest, if any, earned on the investment of funds such account) and the Interest Reserve Account, will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

4.3.      Allocation and Distribution of Yield Maintenance Premiums. Any Yield Maintenance Premiums collected with respect to prepayments of the Mortgage Loan during any particular Collection Period shall be distributed by the Certificate Administrator on the following Distribution Date as follows:

(a)      The respective Classes of Sequential Pay Certificates then entitled to distributions of principal for such Distribution Date and the RR Interest shall be entitled to, and the Certificate Administrator shall distribute (i) to each Class of Sequential Pay Certificates, in an amount equal to the product of (A) the Non-Retained Percentage of such Yield Maintenance Premium and (B) a fraction, the numerator of which is the amount distributed as principal to that Class on that Distribution Date, and the denominator of which is the total amount distributed as principal to all Classes of Sequential Pay Certificates on that Distribution Date; and (C) the Base

146

Interest Fraction for the related principal prepayment and that Class. Any portion of the non-Retained Percentage of such Yield Maintenance Premium described in the prior sentence that is remaining after the distributions in the preceding sentence shall be distributed to the holders of the Class X Certificates. The Required Credit Risk Retention Percentage of such Yield Maintenance Premium will be distributed to the holders of the RR Interest.

(b)       All Yield Maintenance Premiums distributable pursuant to Section 4.3(a) shall first be deemed to have been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Related Uncertificated Interest (whether or not the Lower-Tier Principal Amount of such Uncertificated Lower-Tier Interest has been reduced to zero).

(c)       Yield Maintenance Premiums shall first be allocated to the Whole Loan pursuant to the terms of the Intercreditor Agreement and any such amount allocable to the Companion Loans pursuant to the terms of the Intercreditor Agreement shall be distributed to the Companion Loan Holders in accordance with the terms of the Intercreditor Agreement.

4.4.      Statements to Certificateholders. (a)  On each Distribution Date, based in part on information provided by the Servicer or the Special Servicer, as applicable, the Certificate Administrator shall prepare and make available on the Certificate Administrator’s Website pursuant to Section 8.14(b) to any Privileged Person (including the Guarantor, the Sponsor, the Property Manager or any Affiliate of any of the foregoing, a Borrower Party, or any agent of any of the foregoing) that certifies that it is a Certificateholder or Beneficial Owner of a Certificate, a statement in respect of the distributions made on such Distribution Date (a “Distribution Date Statement”) setting forth, among other things:

(i)        for each Class of Certificates (other than the Class R Certificates), (a) the amount of the distributions made on such Distribution Date allocable to interest at the Pass-Through Rate and/or the amount allocable to principal (separately identifying the amount of any principal payments (specifying the source of such payments)), (b) the amount of any Yield Maintenance Premiums collected on the Mortgage Loan allocable to each Class of Certificates and (c) the amount of interest paid on Advances from Default Interest and allocable to such Class of Certificates;

(ii)       if the amount of the distributions to the Holders of each Class of Certificates was less than the full amount that would have been distributable to such holders if there had been sufficient Non-Retained Certificate Available Funds and Retained Certificate Available Funds, the amount of the shortfall allocable to such Class of Certificates, stating separately the amounts allocable to interest and principal;

(iii)      the amount of any Monthly Payment Advance, Property Protection Advance or Administrative Advance for such Distribution Date;

(iv)      the Certificate Balance or Notional Amount, as applicable, of each Class of Certificates (other than the Class R Certificates) after giving effect to any distribution in reduction of the Certificate Balance or Notional Amount, as applicable, on such Distribution Date, the allocation of Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, on such Distribution Date, and the amount of

147

Non-Retained Certificate Realized Losses or Retained Certificate Realized Losses, as applicable, allocated to each Class;

(v)       the principal balance of the Mortgage Loan and each Companion Loan as of the end of the Collection Period for such Distribution Date;

(vi)      the aggregate amount of unscheduled payments made during the related Collection Period;

(vii)     a statement as to whether the Mortgage Loan was modified, extended or waived during the related Collection Period (including a description of any material modifications, extensions or waivers to Mortgage Loan terms, fees, penalties or payments during the Collection Period or that have cumulatively become material over time);

(viii)    the amount of the servicing compensation (other than the Servicing Fee) paid to the Servicer and the Special Servicer with respect to such Distribution Date, separately listing any Liquidation Fees or Workout Fees and any other Borrower charges retained by the Servicer or Special Servicer and the amount of compensation paid to the Servicer, the Special Servicer and the Certificate Administrator, separately listing the Certificate Administrator Fee and the Special Servicing Fee, and the amount of compensation paid to CREFC^® listing the CREFC^® Intellectual Property Royalty License Fee with respect to such Distribution Date;

(ix)       the number of days the Borrower is delinquent in the event that the Borrower is delinquent at least 30 days and the date upon which any foreclosure proceedings have been commenced;

(x)        whether the Property as of the close of business on the Loan Payment Date immediately preceding such Distribution Date had become a Foreclosed Property;

(xi)       information with respect to any declared bankruptcy of the Borrower or the Property Manager;

(xii)      as to any item of Collateral released, liquidated or disposed of during the preceding Collection Period, the identity of such item and the amount of proceeds of any liquidation or other amounts, if any, received therefrom during the related Collection Period;

(xiii)     statement as to whether the Mortgage Loan was defeased since the previous Determination Date;

(xiv)     the aggregate amount of all Advances, if any, not yet reimbursed;

(xv)      the amount of any reimbursement of Nonrecoverable Advances paid to the Servicer;

148

(xvi)     any Appraisal Reduction Amount or Collateral Deficiency Amount and the amount of the Appraisal Reduction Amount or Collateral Deficiency Amount allocated to the Mortgage Loan as of such Distribution Date;

(xvii)    an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period;

(xviii)   the amount of Default Interest, if any, and late payment charges, if any, paid by the Borrower during the related Collection Period;

(xix)      the original rating of each Class of Certificates and the current rating of each Class of Certificates;

(xx)       the aggregate amount of Borrower Reimbursable Trust Fund Expenses;

(xxi)      a statement that there is available on the Certificate Administrator’s Website information regarding ongoing compliance by the Retaining Party with certain specified provisions of the Credit Risk Retention Rules, which will be posted on the “U.S. Risk Retention Special Notices” tab of the Certificate Administrator’s website; and

(xxii)     in connection with the EU/UK Risk Retention Agreement, a statement that there is available on the website of the Certificate Administrator information regarding ongoing compliance by MSBNA with the EU/UK Retention Covenant and the EU/UK Hedging Covenant, which will be posted on the “EU Risk Retention Notices” tab of the Certificate Administrator’s Website.

The Depositor, the Trustee, the Certificate Administrator, the Servicer and the Special Servicer may agree to enhance the reporting requirements of the Distribution Date Statement without Certificateholder approval. Assistance in using the Certificate Administrator’s Website can be obtained by calling the Certificate Administrator’s customer service desk at (866) 846-4526.

The Certificate Administrator shall promptly post on its website under the “U.S. Risk Retention Special Notices” tab any notice received from the Retaining Sponsor that it has determined that the Retaining Party no longer complies with certain specified provisions of the Credit Risk Retention Rules.

Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Certificateholder, a statement containing the information set forth in clauses (i), (ii), (vi) and (xviii) above as to the applicable Class, aggregated for such calendar year or applicable portion of such year during which such Person was a Certificateholder, together with such other information as the Certificate Administrator deems necessary or desirable, or that a Certificateholder or Beneficial Owner of a Certificate reasonably requests, to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.

149

Absent manifest error, the Certificate Administrator will be entitled to rely on all information provided to it by the Servicer or the Special Servicer without independent verification, and the Servicer, the Special Servicer, the Trustee and the Certificate Administrator will be entitled to rely on information supplied by the Borrower without independent verification.

The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder and Beneficial Owner of Certificates may access any notice of a request of a vote to terminate and replace the Special Servicer on the Certificate Administrator’s Website, and each Certificateholder and Beneficial Owner of Certificates may register to receive email notifications when such notices are posted on the Certificate Administrator’s Website. The Certificate Administrator will be entitled to reimbursement from the requesting Certificateholders for the reasonable expenses of posting notices of such requests.

The Certificate Administrator and the Trustee are hereby directed to enter into the EU/UK Risk Retention Agreement, which agreement makes certain provision with regard to the SR Rules (as defined therein). The Certificate Administrator shall establish a page on its website on which there will be included: (x) a statement provided by MSBNA that MSBNA is the registered holder of the RR Interest; (y) unless MSBNA has provided notice to the contrary, a statement (without verification) that the Retaining Party is complying with the EU/UK Retention Covenant and the EU/UK Hedging Covenant (together with any affirmative notices of compliance provided by MSBNA); and (z) in the case that the Certificate Administrator receives a notification from MSBNA that it has failed to comply with the EU/UK Retention Covenant or the EU/UK Hedging Covenant, a statement of such non-compliance and all details in relation to the same contained in such notification. In each case, MSBNA shall provide all such certifications and notifications, if any, by email with the subject reference “EU/UK Risk Retention Statement” and in a document suitable for posting. Upon receipt of any such “EU/UK Risk Retention Statement,” the Certificate Administrator shall promptly post the same to the “EU Risk Retention Notices” tab on the Certificate Administrator’s Website.

(b)       The Certificate Administrator shall, on each Distribution Date make the Distribution Date Statement available to Privileged Persons pursuant to Section 8.14(b). The Certificate Administrator’s obligation to provide such information to Certificateholders and others shall be contingent on the Certificate Administrator’s receipt of such information from the Servicer and the Special Servicer, as applicable. The Certificate Administrator shall be entitled to rely on such information provided to it by the Servicer or the Special Servicer without independent verification. To the extent that the information required to be furnished by the Servicer is based on information required to be provided by the Borrower or the Special Servicer, the Servicer’s obligation to furnish such information to the Certificate Administrator shall be contingent on its receipt of such information from the Borrower or the Special Servicer, as applicable. To the extent that information required to be furnished by the Special Servicer is based on information required to be provided by the Borrower, the Special Servicer’s obligation to furnish such information shall be contingent upon its receipt of such information from the Borrower. The Servicer, the Special Servicer, the Trustee and the Certificate Administrator shall be entitled to rely on information supplied by the Borrower without independent verification.

150

The Certificate Administrator shall, to the extent provided to it by the Servicer in electronic format, make available to Privileged Persons pursuant to Section 8.14(b) reports or analyses of net operating income from the Property. Such net operating income reports or analyses shall be prepared pursuant to Section 3.18 hereof by the Servicer in CREFC^® format based on the quarterly, annual and periodic statements and rent rolls with respect to the Property obtained by the Servicer from the Borrower.

If so authorized by the Depositor, the Certificate Administrator may make available on the Certificate Administrator’s Website to any Privileged Person certain other information with respect to the Mortgage Loan (subject to the limitations of Section 8.14).

In addition, the Certificate Administrator shall make available on the Certificate Administrator’s Website such information as set forth in Section 8.14(b) herein. The Certificate Administrator may require payment for the reasonable costs and expenses of providing the copies and may also require a confirmation executed by the requesting Person, in a form reasonably acceptable to the Certificate Administrator, to the effect that the Person making the request is a Beneficial Owner or prospective purchaser of Certificates, is requesting the information solely for use in evaluating its investment in the Certificates and will otherwise keep the information confidential. Certificateholders, by the acceptance of their Certificates, shall be deemed to have agreed to keep this information confidential.

4.5.       Investor Q&A Forum and Investor Registry. (a) The Certificate Administrator shall make available to Privileged Persons only, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where Privileged Persons may (i) submit questions to the Certificate Administrator relating to the Distribution Date Statement, or submit questions to be forwarded to the Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to Section 8.14(b)(ii)(B) and 8.14(b)(iii)(A), (B) and (C), the Mortgage Loan, the Companion Loans or the Property (each, an “Inquiry”), and (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the Servicer or the Special Servicer, the Certificate Administrator shall forward the Inquiry to the appropriate person at the Servicer or the Special Servicer, as applicable, in each case via email within a reasonable period of time following receipt thereof. Following receipt of an Inquiry, the Certificate Administrator, the Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which in the case of a reply of the Servicer or Special Servicer shall be by email to the Certificate Administrator. The Certificate Administrator shall post (within a commercially reasonable period of time following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, Servicer or Special Servicer determines, in its respective sole discretion, that (i) any Inquiry is not of a type described above, (ii) answering any Inquiry would not be in the best interests of the Trust Fund and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, the Loan Documents or this Agreement, (iv) answering any Inquiry would, or is, reasonably expected to result in a waiver of attorney client privilege or the disclosure of attorney work-product; (v) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, Servicer or Special Servicer, as applicable, (vi) answering any Inquiry would require the disclosure of Privileged

151

Information (subject to the Privileged Information Exception) or (vii) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the Servicer or Special Servicer, shall promptly notify the Certificate Administrator. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. Any notice by the Certificate Administrator to the Person who submitted an Inquiry that will not be answered shall include the following statement: “Because the Trust and Servicing Agreement provides that the Certificate Administrator, Servicer or Special Servicer shall not answer an Inquiry if it determines, in its respective sole discretion, that (i) any Inquiry is not of a type described in the Trust and Servicing Agreement, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law or the Loan Documents, (iv) answering any Inquiry would, or is, reasonably expected to result in a waiver of attorney client privilege or the disclosure of attorney work-product, (v) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, Servicer or Special Servicer, as applicable, (vi) answering any Inquiry would require the disclosure of Privileged Information (subject to the Privileged Information Exception) or (vii) answering any Inquiry is otherwise, for any reason, not advisable to answer, no inference should be drawn from the fact that the Certificate Administrator, Servicer or Special Servicer has declined to answer the Inquiry.” Answers posted on the Investor Q&A Forum will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Initial Purchaser or the Certificate Administrator (as applicable) or any of their respective affiliates. None of the Initial Purchaser, the Depositor, or any of their respective affiliates will certify to any of the information posted in the Investor Q&A Forum and no such party shall have any responsibility or liability for the content of any such information. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. No party shall post or otherwise disclose information known to such party to be Privileged Information; provided, that the Certificate Administrator shall have no obligation to review any inquiry or answer received by it for posting to the Investor Q&A Forum to determine if such inquiry or answer contains any Privileged Information, or otherwise to consult with the party from whom such Inquiry or answer is received to confirm the same, and the Certificate Administrator shall have no liability in connection with its posting to the Investor Q&A Forum of any Inquiry or answer containing such direct communication. The Investor Q&A Forum will not reflect questions, answers and other communications that are not submitted via the Certificate Administrator’s Website. In addition to the Certificate Administrator’s receipt of the Investor Certification to confirm that such Person is a Privileged Person, the Certificate Administrator may require acceptance of an additional waiver and disclaimer for access to the Investor Q&A Forum.

(b)       The Certificate Administrator shall make available to any Certificateholder and any Beneficial Owner, the Investor Registry. The “Investor Registry” shall be a voluntary service via the Certificate Administrator’s Website, where Certificateholders and Beneficial Owners can register and thereafter obtain information with respect to any other Certificateholder or Beneficial Owner that has so registered. Any Person registering to use the Investor Registry shall certify that (a) it is a Certificateholder or a Beneficial Owner and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such

152

certification to other registered Certificateholders and registered Beneficial Owners and such other certifications as the Certificate Administrator may require. Such Person shall then be asked to provide certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Beneficial Owner notifies the Certificate Administrator in writing that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. In addition to the Certificate Administrator’s receipt of the Investor Certification to confirm that such Person is a Privileged Person, the Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.

(c)       An Investor Certification is required for any Person to access the Certificate Administrator’s Website and to receive other information available pursuant to this Agreement, and the Investor Certification will be substantially in the form of one or more exhibits to this Agreement or may be in the form of an electronic certification contained on the Certificate Administrator’s Website. Investor Certifications may be submitted electronically via the Certificate Administrator’s Website. The Certificate Administrator may require that Investor Certifications be resubmitted from time to time in accordance with its policies and procedures.

5.       THE CERTIFICATES

5.1.       The Certificates. (a) The Certificates shall be issued in substantially the respective forms set forth as Exhibits A-1 through A-6 hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may, in the reasonable judgment of the Certificate Registrar, be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required by law, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof.

(b)       The Certificates of each Class of Sequential Pay Certificates shall be issued in minimum denominations of $10,000 initial Certificate Balance and integral multiples of $100 initial Certificate Balance in excess of $10,000. If the Original Certificate Balance of any Class of Sequential Pay Certificates does not equal an integral multiple of $100, then a single additional Certificate of such Class may be issued in a minimum denomination of authorized Original Certificate Balance that includes the excess of (i) the Original Certificate Balance of such Class over (ii) the largest integral multiple of $100 that does not exceed such amount. The Certificates of the Class X Certificates shall be issued in minimum denominations of $1,000,000 initial Notional Amount and integral multiples of $1 initial Notional Amount in excess of $1,000,000. The RR Interest will be issuable in minimum denominations of authorized initial Certificate Balance of not less than $1.00, and in integral multiples of $0.01 in excess thereof. The Class R Certificates shall be issued, maintained and transferred in minimum percentage interests of 10% of each such Class R Certificates and in integral multiples of 1% in excess of 10%.

153

(c)       One authorized signatory shall sign the Certificates for the Certificate Registrar by manual or facsimile signature. If an authorized signatory whose signature is on a Certificate no longer holds that office at the time the Certificate Registrar countersigns the Certificate, the Certificate shall be valid nevertheless. A Certificate shall not be valid until an authorized signatory of the Certificate Registrar (who may be the same officer who executed the Certificate) manually countersigns the Certificate. The signature shall be conclusive evidence that the Certificate has been executed and countersigned under this Agreement.

5.2.       Form and Registration. (a) Each Class of the Certificates (other than the Class R Certificates) sold to non-U.S. persons (within the meaning of Regulation S under the Act) in offshore transactions in reliance on Regulation S under the Act shall be initially be represented by a temporary global certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each a “Temporary Regulation S Global Certificate”), which shall be deposited on the Closing Date on behalf of the purchasers of the Certificates represented thereby with the Certificate Registrar, at its Corporate Trust Office, as custodian, for the Depository, and registered in the name of the Depository or the nominee of the Depository for the account of designated agents holding on behalf of the Euroclear System (“Euroclear”) and/or Clearstream Banking, société anonyme (“Clearstream”). Prior to the expiration of the 40-day period commencing on the later of the commencement of the offering and the Closing Date (the “Restricted Period”), beneficial interests in each Temporary Regulation S Global Certificate may be held only through Euroclear or Clearstream. After the expiration of the Restricted Period, a beneficial interest in a Temporary Regulation S Global Certificate may be exchanged for a beneficial interest in the related permanent global certificate of the same Class (a “Regulation S Global Certificate”) in definitive, fully registered form without interest coupons as set forth as an exhibit hereto in accordance with the procedures set forth in Section 5.3(f). During the Restricted Period, distributions due in respect of a beneficial interest in a Temporary Regulation S Global Certificate shall only be made upon delivery to the Certificate Registrar by Euroclear or Clearstream, as applicable, of a Non-U.S. Beneficial Ownership Certification. After the expiration of the Restricted Period, distributions due in respect of any beneficial interests in a Temporary Regulation S Global Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the Regulation S Global Certificate of the same Class is improperly withheld or refused. The aggregate Certificate Balance of a Temporary Regulation S Global Certificate or a Regulation S Global Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

On the Closing Date, the Certificate Administrator shall execute, the Authenticating Agent shall authenticate, and the Certificate Administrator shall deliver to the Certificate Registrar the Regulation S Global Certificates, which shall be held by the Certificate Registrar for purposes of effecting the exchanges contemplated by the preceding paragraph.

(b)       Certificates of each Class (other than the Class R Certificates and the RR Interest during the RR Interest Transfer Restriction Period or EU/UK Transfer Restriction Period) offered and sold to QIBs in reliance on Rule 144A under the Act (“Rule 144A”) shall be represented by a single, global certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each, a “Rule 144A Global Certificate” and, together with the Temporary Regulation S Global Certificates and the

154

Regulation S Global Certificates, the “Global Certificates”), which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Balance of a Rule 144A Global Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

(c)       (i) Certificates of each Class that are initially offered and sold to investors that are Institutional Accredited Investors that are not QIBs, (ii) the Class R Certificates and (iii) the RR Interest at all times during the RR Interest Transfer Restriction Period and the EU/UK Transfer Restriction Period (collectively, the “Non-Book Entry Certificates”) shall be in the form of Definitive Certificates, substantially in the applicable form set forth as an exhibit hereto, and shall be registered in the name of such investors or their nominees by the Certificate Registrar who shall deliver the certificates for such Non-Book Entry Certificates to the respective beneficial owners or owners.

(d)       Owners of beneficial interests in Global Certificates of any Class shall not be entitled to receive physical delivery of certificated Certificates unless: (i) the Depository advises the Certificate Registrar in writing that the Depository is no longer willing or able to discharge properly its responsibilities as depository with respect to the Global Certificates of such Class or ceases to be a Clearing Agency, and the Certificate Registrar and the Depository are unable to locate a qualified successor within 90 days of such notice or (ii) the Trustee has instituted or has been directed to institute any judicial proceeding to enforce the rights of the Holders of such Class and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Certificate Registrar to obtain possession of the Certificates of such Class; provided, that under no circumstances will certificated Certificates be issued to beneficial owners of a Temporary Regulation S Global Certificate. Upon notice of the occurrence of any of the events described in clause (i) or (ii) above with respect to any Certificates of a Class that are in the form of Global Certificates and upon surrender by the Depository of any Global Certificate of such Class and receipt from the Depository of instructions for reregistration, the Certificate Registrar shall issue Certificates of such Class in the form of Definitive Certificates (bearing, in the case of a Definitive Certificate issued for a Rule 144A Global Certificate, the same legends regarding transfer restrictions borne by such Global Certificate), and thereafter the Certificate Registrar shall recognize the holders of such Definitive Certificates as Certificateholders under this Agreement.

(e)       During the RR Interest Transfer Restriction Period and the EU/UK Transfer Restriction Period, the RR Interest shall only be held as one or more Definitive Certificates in the Retained Interest Safekeeping Account by the Certificate Administrator (and the Retaining Party’s interest therein shall be tracked in the form of an entry in the Certificate Administrator’s trust accounting system under the Retained Interest Safekeeping Account), for the benefit of the Holder of the related Certificate. The Certificate Administrator shall hold the RR Interest in safekeeping and shall release or transfer (subject to Section 5.3(i)) any Definitive Certificate evidencing the same (and, in the case of a transfer, replace or substitute the physical certificate being held by the Certificate Administrator) only upon receipt of written instructions from the Holder thereof with the consent of the Retaining Sponsor and the Depositor, and in accordance with any authentication procedures as may be utilized by the Certificate

155

Administrator and in accordance with this Agreement. In connection with the release of any Definitive Certificate evidencing the RR Interest, the Certificate Administrator shall deliver such Definitive Certificate to (or at the direction of) the Holder thereof, via overnight delivery, by any nationally recognized courier, to the location designated by such Holder. After the release of any such Definitive Certificate, the Certificate Administrator shall have no liability with respect to the safekeeping of such Definitive Certificate. The Certificate Administrator shall be indemnified and held harmless for any such release in accordance with Section 8.12 hereof. There shall be, and hereby is, established by the Certificate Administrator an account which will be designated the “Retained Interest Safekeeping Account” and into which the RR Interest shall be held and which shall be governed by and subject to this Agreement. In addition, on and after the date hereof, the Certificate Administrator may establish any number of subaccounts to the Retained Interest Safekeeping Account for the Retaining Party. The RR Interest to be delivered in physical form to the Certificate Administrator shall be delivered as set forth herein. No amounts distributable to the RR Interest shall be remitted to the Retained Interest Safekeeping Account, but shall be remitted directly to the Retaining Party in accordance with written instructions provided separately by the Retaining Party to the Certificate Administrator. Under no circumstances by virtue of safekeeping the RR Interest shall the Certificate Administrator be obligated to bring legal action or institute proceedings against any person on behalf of the Retaining Party. During the RR Interest Transfer Restriction Period and the EU/UK Transfer Restriction Period and for such longer time as the Retaining Party may request, the Certificate Administrator shall hold the Definitive Certificate representing the RR Interest at the below location, or any other location; provided the Certificate Administrator has given notice to the Retaining Party of such new location:

Wells Fargo Bank, N.A.

Attn: Security Control and Transfer (SCAT) – MAC N9345-010

425 E Hennepin Avenue

Minneapolis, Minnesota 55414

On the Closing Date and upon the transfer of the RR Interest pursuant to Section 5.3(i), the Certificate Administrator shall deliver written confirmation to the Depositor, the Retaining Sponsor and the initial RR Interest holders substantially in the form of Exhibit V to this Agreement that it is in possession of the Definitive Certificates evidencing the RR Interest.

The Certificate Administrator shall make available to the Retaining Party its account information as mutually agreed upon by the Certificate Administrator and the Retaining Party, and in accordance with the Certificate Administrator’s policies and procedures. Any transfer of the RR Interest shall be subject to Section 5.3(g) and Section 5.3(i).

Notwithstanding anything to the contrary, the provisions of this Section 5.2(e) shall only apply while the Certificate Administrator holds the Definitive Certificate evidencing the RR Interest in the Retained Interest Safekeeping Account.

5.3.       Registration of Transfer and Exchange of Certificates. (a) The Certificate Administrator shall keep or cause to be kept at the Corporate Trust Office books (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Administrator shall provide for the registration of Certificates and of transfers and exchanges of

156

Certificates as herein provided (the Certificate Administrator, in such capacity, being the “Certificate Registrar”). In such capacity, the Certificate Administrator shall be responsible for, among other things, (i) maintaining the Certificate Register and a record of the aggregate holdings of Certificates of each Class represented by a Temporary Regulation S Global Certificate, a Regulation S Global Certificate and a Rule 144A Global Certificate and accepting Certificates for exchange and registration of transfer, (ii) holding the RR Interest as Definitive Certificates on behalf of each Holder of such Class and (iii) transmitting to the Depositor, the Trustee, the Servicer and the Special Servicer any notices from the Certificateholders.

(b)       Subject to the restrictions on transfer set forth in this Article 5, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

(c)       Rule 144A Global Certificate to Temporary Regulation S Global Certificate. If a holder of a beneficial interest in the Rule 144A Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Rule 144A Global Certificate for an interest in the Temporary Regulation S Global Certificate of the same Class, or to transfer its interest in such Rule 144A Global Certificate to an entity that is required to take delivery thereof in the form of an interest in the Temporary Regulation S Global Certificate of the same Class, such holder may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in such Temporary Regulation S Global Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.7 hereof, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit, or cause to be credited, a beneficial interest in the Temporary Regulation S Global Certificate in an amount equal to the beneficial interest in the Rule 144A Global Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account and (3) a certificate in the form of Exhibit C hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Certificates and pursuant to and in accordance with Regulation S, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Global Certificate and to increase, or cause to be increased, the Certificate Balance of the Temporary Regulation S Global Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Global Certificate to be exchanged, to credit or cause to be credited to the account of the entity specified in such instructions (who shall be the agent member of Euroclear or Clearstream, or both) a beneficial interest in the Temporary Regulation S Global Certificate equal to the reduction in the Certificate Balance of the Rule 144A Global Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Global Certificate that is being exchanged or transferred.

(d)       Rule 144A Global Certificate to Regulation S Global Certificate. If a holder of a beneficial interest in the Rule 144A Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such

157

Rule 144A Global Certificate for an interest in the Regulation S Global Certificate of the same Class, or to transfer its interest in such Rule 144A Global Certificate to an entity that is required to take delivery thereof in the form of an interest in a Regulation S Global Certificate, such holder may, subject to the rules and procedures of the Depository, exchange, or cause the exchange of, such interest for an equivalent beneficial interest in such Regulation S Global Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.7 hereof, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Certificate in an amount equal to the beneficial interest in the Rule 144A Global Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with such increase and (3) a certificate in the form of Exhibit D hereto given by the holder of such beneficial interest stating (A) that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Certificates and pursuant to and in accordance with Regulation S or (B) that the transferee is otherwise entitled to hold its interest in the applicable Certificates in the form of an interest in the Regulation S Global Certificate, without any registration of such Certificates under the Act (in which case such certificate shall enclose an Opinion of Counsel to such effect and such other documents as the Certificate Registrar may reasonably require), then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Global Certificate and to increase, or cause to be increased, the Certificate Balance of the Regulation S Global Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Global Certificate to be exchanged, to credit or cause to be credited to the account of the entity specified in such instructions a beneficial interest in the Regulation S Global Certificate equal to the reduction in the Certificate Balance of the Rule 144A Global Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Global Certificate that is being exchanged or transferred.

(e)       Temporary Regulation S Global Certificate or Regulation S Global Certificate to Rule 144A Global Certificate. If a holder of a beneficial interest in a Temporary Regulation S Global Certificate or Regulation S Global Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Temporary Regulation S Global Certificate or Regulation S Global Certificate for an interest in the Rule 144A Global Certificate of the same Class, or to transfer its interest in such Temporary Regulation S Global Certificate or Regulation S Global Certificate to a Person who is required to take delivery thereof in the form of an interest in the Rule 144A Global Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, as the case may be, and the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in the Rule 144A Global Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.7 hereof, of (1) instructions from Euroclear or Clearstream, if applicable, and the Depository, directing the Certificate Registrar, as registrar, to credit or cause to be credited a beneficial interest in the Rule 144A Global Certificate equal to the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, (2) with respect to a transfer of an interest in the Regulation S Global Certificate, information regarding the participant account of

158

the Depository to be debited with such decrease and (3) with respect to a transfer of an interest in the Temporary Regulation S Global Certificate (but not the Regulation S Global Certificate) for an interest in the Rule 144A Global Certificate, a certificate in the form of Exhibit E hereto given by the holder of such beneficial interest and stating that the entity transferring such interest in the Temporary Regulation S Global Certificate reasonably believes that the Person acquiring such interest in the Rule 144A Global Certificate is a QIB and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Temporary Regulation S Global Certificate or Regulation S Global Certificate and to increase, or cause to be increased, the Certificate Balance of the Rule 144A Global Certificate by the aggregate Certificate Balance of the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate to be exchanged, and the Certificate Registrar shall instruct the Depository, concurrently with such reduction, to credit, or cause to be credited, to the account of the Person specified in such instructions, a beneficial interest in the Rule 144A Global Certificate equal to the reduction in the Certificate Balance of the Temporary Regulation S Global Certificate or Regulation S Global Certificate and to debit, or cause to be debited, from the account of the entity making such transfer the beneficial interest in the Temporary Regulation S Global Certificate or Regulation S Global Certificate that is being transferred.

(f)       Temporary Regulation S Global Certificate to Regulation S Global Certificate. Interests in a Temporary Regulation S Global Certificate as to which the Certificate Registrar has received from Euroclear or Clearstream, as the case may be, a certificate (a “Non-U.S. Beneficial Ownership Certification”) to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit F hereto from the holder of a beneficial interest in such Temporary Regulation S Global Certificate, shall be exchanged after the Restricted Period, for interests in the Regulation S Global Certificate of the same Class. The Certificate Registrar shall effect such exchange by delivering to the Depository for credit to the respective accounts of such holders, a duly executed and authenticated Regulation S Global Certificate, representing the aggregate Certificate Balance of interests in the Temporary Regulation S Global Certificate initially exchanged for interests in the Regulation S Global Certificate. The delivery to the Certificate Registrar by Euroclear or Clearstream of the certificate or certificates referred to above may be relied upon by the Depositor and the Certificate Registrar as conclusive evidence that the certificate or certificates referred to therein has or have been delivered to Euroclear or Clearstream pursuant to the terms of this Agreement and the Temporary Regulation S Global Certificate. Upon any exchange of interests in the Temporary Regulation S Global Certificate for interests in the Regulation S Global Certificate, the Certificate Registrar shall endorse the Temporary Regulation S Global Certificate to reflect the reduction in the Certificate Balance represented thereby by the amount so exchanged and shall endorse the Regulation S Global Certificate to reflect the corresponding increase in the amount represented thereby. Until so exchanged in full and except as provided therein, the Temporary Regulation S Global Certificate, and the Certificates evidenced thereby, shall in all respects be entitled to the same benefits under this Agreement as the Regulation S Global Certificate and Rule 144A Global Certificate authenticated and delivered hereunder.

(g)       Non-Book Entry Certificate to Global Certificate. If a Holder of a Non-Book Entry Certificate (other than (a) a Class R Certificate or (b) the RR Interest during the RR Interest Transfer Restriction Period or the EU/UK Transfer Restriction Period) wishes at any

159

time to exchange its interest in such Non-Book Entry Certificate for an interest in a Global Certificate of the same Class, or to transfer all or part of such Non-Book Entry Certificate to a Person who is entitled to take delivery thereof in the form of an interest in a Global Certificate, such Holder may, subject to the rules and procedures of Euroclear or Clearstream, if applicable, and the Depository, cause the exchange of all or part of such Non-Book Entry Certificate for an equivalent beneficial interest in the appropriate Global Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.7 hereof, of (1) such Non-Book Entry Certificate, duly endorsed as provided herein, (2) instructions from such Holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Global Certificate equal to the portion of the Certificate Balance of the Non-Book Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase and (3) a certificate in the form of Exhibit G hereto (in the event that the applicable Global Certificate is the Temporary Regulation S Global Certificate), in the form of Exhibit H hereto (in the event that the applicable Global Certificate is the Regulation S Global Certificate) or in the form of Exhibit I hereto (in the event that the applicable Global Certificate is the Rule 144A Global Certificate), then the Certificate Registrar, as registrar, shall cancel, or cause to be canceled, all or part of such Non-Book Entry Certificate, shall, if applicable, execute, authenticate and deliver to the transferor a new Non-Book Entry Certificate equal to the aggregate Certificate Balance of the portion retained by such transferor and shall instruct the Depository to increase, or cause to be increased, such Global Certificate by the aggregate Certificate Balance of the portion of the Non-Book Entry Certificate to be exchanged and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Global Certificate equal to the Certificate Balance of the portion of the Non-Book Entry Certificate so canceled.

(h)       Non-Book Entry Certificates on Initial Issuance Only. Subject to the issuance of Definitive Certificates, if and when permitted by Section 5.2(d), and subject to the issuance and transfer of the RR Interest during the RR Interest Transfer Restriction Period in accordance with Section 5.3(i), no Non-Book Entry Certificate shall be issued to a transferee of an interest in any Rule 144A Global Certificate, Temporary Regulation S Global Certificate or Regulation S Global Certificate (or any portion thereof).

(i)       Transfers of RR Interest. At all times, if a Transfer of the RR Interest after the Closing Date is to be made, then the following documents shall be provided to the Certificate Administrator, which shall facilitate the transfer in conjunction with the Certificate Registrar and shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon) (i) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit J-3, which such certification must be countersigned by the Retaining Sponsor, (ii) a certification executed by the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit J-4, which such certification must be countersigned by the Retaining Sponsor, (iii) an IRS Form W-9 completed by the prospective transferee and (iv) wire instructions and contact information of the prospective transferee. In addition to the foregoing, for so long as the RR Interest is held in the Retained Interest Safekeeping Account, in order to effectuate a transfer of the RR Interest, the RR Interest holder must provide the Certificate Administrator written instructions requesting such transfer, with the consent of the Retaining Sponsor and the Depositor. Upon receipt of the

160

foregoing certifications, the Certificate Registrar shall, subject to Section 5.2(e) and Section 5.3(a), reflect such RR Interest in the name of the prospective Transferee. For the avoidance of doubt, in no event shall the RR Interest be held as a Book-Entry Certificate during the RR Interest Transfer Restriction Period or the EU/UK Transfer Restriction Period. If the RR Interest is no longer held in the Retained Interest Safekeeping Account, the Certificate Registrar shall refuse to register and transfer the RR Interest unless it receives (and upon receipt may conclusively rely upon) certificates substantially in the forms of Exhibit J-3 and Exhibit J-4 hereto, provided, that following the expiration of the RR Interest Transfer Restriction Period and the EU/UK Transfer Restriction Period, the countersignature of the Retaining Sponsor to such certifications shall not be required.

(j)       Other Exchanges. In the event that a Global Certificate is exchanged for a Definitive Certificate, such Certificates may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of clauses (c) through (f) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S under the Act, at the case may be) and such other procedures as may from time to time be adopted by the Certificate Registrar.

(k)       Restricted Period. Prior to the termination of the Restricted Period with respect to the issuance of the Certificates, transfers of interests in the Temporary Regulation S Global Certificate to U.S. persons (as defined in Regulation S) shall be limited to transfers made pursuant to the provisions of clause (e) above.

(l)       Restrictive Legend. If Certificates are issued upon the transfer, exchange or replacement of Certificates bearing a restrictive legend relating to compliance with the Act, or if a request is made to remove such legend on Certificates, the Certificates so issued shall bear the restrictive legend, or such legend shall not be removed, as the case may be, unless there is delivered to the Certificate Registrar such satisfactory evidence, which may include an Opinion of Counsel that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Regulation S under the Act. Upon provision of such satisfactory evidence, the Certificate Registrar shall authenticate and deliver Certificates that do not bear such legend.

(m)       All Certificates surrendered for registration of transfer and exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with the Certificate Registrar’s customary procedures.

(n)       Except as provided in this Section 5.3(n), no ERISA Restricted Certificate may be purchased by or transferred to any prospective purchaser or transferee that is or will be an employee benefit plan or other plan subject to the fiduciary responsibility provisions of ERISA or Section 4975 of the Code (each, an “ERISA Plan”) or a governmental plan (as defined in Section 3(32) of ERISA) that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (together with ERISA Plans, “Plans”), or any Person acting on behalf of any such Plan or using the assets of a Plan to purchase such ERISA Restricted Certificate. Each purchaser of an ERISA Restricted Certificate shall represent and warrant (or, if it takes delivery of an ERISA Restricted Certificate in the form of a beneficial interest in a Global Certificate, shall be deemed to have represented

161

and warranted) that it is not a Plan and is not acting on behalf of or using the assets of a Plan to purchase the ERISA Restricted Certificate. Each prospective transferee of an ERISA Restricted Certificate shall deliver to the transferor, the Certificate Registrar and the Certificate Administrator a representation letter, substantially in the form of Exhibit J-5, stating that the prospective transferee is not a Plan or a Person acting on behalf of or using the assets of a Plan. Any attempted or purported transfer in violation of these transfer restrictions shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

(o)       Each Person who has or acquires any Residual Ownership Interest shall be deemed by the acceptance or acquisition of such Residual Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Residual Ownership Interest are expressly subject to the following provisions:

(i)       Each Person acquiring or holding any Residual Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Residual Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Residual Ownership Interest) as a Permitted Transferee. Any acquisition of a Residual Ownership Interest by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void ab initio and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Residual Ownership Interest as soon and as fully as possible.

(ii)       No Residual Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar, and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Residual Ownership Interest, other than in connection with the initial Transfer thereof to the Initial Purchaser, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached as Exhibit J-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a

162

Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of this Section 5.3(o) and (y) other than in connection with the initial issuance of a Class R Certificate, require a statement from the proposed transferor substantially in the form attached as Exhibit J-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in the preceding clauses (x)(B)(1), (3) and (4) are false.

(iii)       Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee. Upon notice to the Certificate Registrar that there has occurred a Transfer to any Person that is a Disqualified Organization or an agent thereof (including a broker, nominee or middleman) in contravention of the foregoing restrictions, and in any event not later than 60 days after a request for information from the transferor of such Residual Ownership Interest or such agent, the Certificate Registrar and the Certificate Administrator agree to furnish to the IRS and the transferor of such Residual Ownership Interest or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code, including, but not limited to, the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar, the Certificate Registrar may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, that such Persons shall in no event be excused from furnishing such information.

(iv)       The Class R Certificates may only be issued as Definitive Certificates, and transferred to and owned by QIBs.

5.4.       Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of actual notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust Fund. In connection with the issuance of any new Certificate under this Section 5.4, the Certificate Registrar may require the payment of a sum sufficient to cover any expenses (including the fees and expenses of the Certificate Registrar) connected therewith and such evidence as may be reasonably requested by it to establish the identity and or signatures of the transferor and transferee. Any replacement Certificate issued pursuant to this Section 5.4 shall constitute complete and indefeasible evidence

163

of ownership in the Trust Fund, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

5.5.       Persons Deemed Owners. The Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and none of the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Certificate Registrar, nor any agent of any of them shall be affected by any notice to the contrary; provided, that to the extent that a party to this Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to this Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

5.6.       Access to List of Certificateholders’ Names and Addresses; Special Notices. The Certificate Registrar shall maintain in as current form as is reasonably practicable the most recent list available to it of the names and addresses of the Certificateholders. If any Certificateholder that has provided an Investor Certification (a) requests in writing from the Certificate Registrar a list of the names and addresses of Certificateholders, (b) states that such Certificateholder desires to communicate with other Certificateholders with respect to its rights under this Agreement or under the Certificates and (c) provides a copy of the communication which such Certificateholder proposes to transmit, then the Certificate Registrar shall, within ten Business Days after the receipt of such request, afford such Certificateholder access during normal business hours to a current list of the Certificateholders. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which such information was derived. The Servicer, the Special Servicer, the Trustee and the Depositor shall be entitled to a list of the names and addresses of Certificateholders from time to time upon request therefor.

Upon the written request of any Certificateholder that (a) has provided an Investor Certification, (b) states that such Certificateholder desires the Certificate Administrator to transmit a notice to all Certificateholders stating that such Certificateholder wishes to be contacted by other Certificateholders, setting forth the relevant contact information and briefly stating the reason for the requested contact (a “Special Notice”) and (c) provides a copy of the Special Notice which such Certificateholder proposes to transmit, the Certificate Administrator shall post such Special Notice to the Certificate Administrator’s Website pursuant to Section 8.14(b) and shall mail such Special Notice to all Certificateholders at their respective addresses appearing on the Certificate Register. The costs and expenses of the Certificate Administrator associated with delivering any such Special Notice shall be borne by the party requesting such Special Notice. Every Certificateholder, by receiving and holding a Certificate, agrees that neither the Certificate Administrator nor the Certificate Registrar shall be held accountable by reason of the disclosure of any such Special Notice to Certificateholders, regardless of the information set forth in such Special Notice.

164

5.7.       Maintenance of Office or Agency. The Certificate Registrar shall maintain or cause to be maintained an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Certificates and this Agreement may be served. The Certificate Registrar initially designates its office at Wells Fargo Bank, National Association, 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415, Attention: Certificate Transfer Services (CMBS) – MSC 2021-PLZA as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Certificateholders and the Borrower of any change in the location of the Certificate Register or any such office or agency.

6.       THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER

6.1.       Respective Liabilities of the Depositor, the Servicer and the Special Servicer. The Depositor, the Servicer and the Special Servicer each shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.

6.2.       Merger or Consolidation of the Servicer or the Special Servicer. Each of the Servicer and the Special Servicer shall keep in full effect its existence and rights as an entity under the laws of the jurisdiction of its organization, and shall be in compliance with the laws of all jurisdictions to the extent necessary to perform its duties under this Agreement.

Any Person into which the Servicer or the Special Servicer may be merged or consolidated, as applicable, or any Person resulting from any merger or consolidation to which the Servicer or the Special Servicer, as applicable, shall be a party, or any Person succeeding to all of the business (or, if applicable, the portion of its business germane to this securitization) of the Servicer or the Special Servicer (which, in the case of the Servicer or the Special Servicer may be limited to all or substantially all of its assets relating to acting as a servicer for commercial mortgage backed securitization transactions), as applicable, shall be the successor of the Servicer or the Special Servicer, as the case may be, hereunder, and shall be deemed to have assumed all of the liabilities and obligations of the Servicer or the Special Servicer, as the case may be, hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, that (except if the successor or surviving Person is the Servicer or the Special Servicer, as the case may be) each of the Certificate Administrator and the Trustee has received a Rating Agency Confirmation with respect to such successor or surviving Person.

6.3.       Limitation on Liability of the Depositor, the Servicer, the Special Servicer and Others. (a) None of the Depositor, the Servicer or the Special Servicer or any of their respective directors, officers, members, managers, partners, employees, Affiliates or agents shall be under any liability to the Trust, the Certificateholders or the Companion Loan Holders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, actions taken or not taken at the direction of Certificateholders or the Companion Loan Holders, or for errors in judgment; provided, that this provision shall not protect the Depositor, the Servicer, the Special Servicer or any such other person against any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of its duties or by

165

reason of negligent disregard of its obligations and duties hereunder. The Depositor, the Servicer, the Special Servicer and any of their respective directors, officers, employees, members, managers, partners, Affiliates or agents may reasonably rely on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor, the Servicer, the Special Servicer and any of their respective directors, officers, members, managers, partners, employees, agents, Affiliates or other “controlling persons” within the meaning of the Act (“Controlling Persons”), shall be indemnified by the Trust (in accordance with the procedures set forth in Section 3.4(c)) and held harmless against any loss, liability, claim, demand or expense (including, without limitation, reasonable attorneys’ fees and any expenses incurred in connection with the pursuit of enforcement of any indemnity afforded to the applicable party hereunder) incurred in connection with any legal action or other claims, losses, penalties, fines, foreclosures, judgments or liabilities relating to this Agreement, the Intercreditor Agreement, the Mortgage Loan, a Companion Loan, the Property, or the Certificates (except as any such loss, liability or expense shall be otherwise reimbursable and reimbursed pursuant to this Agreement), other than any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence by it in the performance of its duties hereunder or by reason of its negligent disregard of its obligations and duties hereunder. None of the Depositor, the Servicer or the Special Servicer shall be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its respective duties under this Agreement and which in its opinion may involve it in any expense or liability; provided, that the Depositor, the Servicer or the Special Servicer may, in its discretion, undertake any such action which it may deem necessary or desirable in accordance with Accepted Servicing Practices in respect of this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders and the Companion Loan Holders hereunder. In such event, the legal expenses and costs of such action and any liabilities of the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall be entitled to be reimbursed therefor pursuant to Section 3.4(c) from funds on deposit in the Collection Account, first, from amounts allocable to the Junior Note, and then, from amounts allocable to the Senior Notes on Pro Rata and Pari Passu Basis.

With respect to a Companion Loan, the expenses, costs and liabilities described in the above paragraph that are allocable to such Companion Loan pursuant to the terms of the Intercreditor Agreement shall be paid out of amounts allocated to such Companion Loan in accordance with the expense allocation provision of the Intercreditor Agreement. If such amounts relating to a Companion Loan are insufficient, the Servicer or the Special Servicer, as applicable, shall, after receiving payment from amounts on deposit in the Collection Account with respect to the Mortgage Loan, if any, (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Trust the rights of the Trust under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

(b)       The Depositor shall not be obligated to monitor or supervise the performance of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator under this Agreement. The Depositor may, but shall not be obligated to, enforce the obligations of the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator under this Agreement.

166

(c)       In no event shall the Depositor be obligated to cause any party to perform or comply with the obligations to remit the CREFC^® Intellectual Property Royalty License Fee to CREFC^®, to report any such CREFC^® Intellectual Property Royalty License Fee so paid or to make available any Distribution Date Statement to any party (or in particular, CREFC^®).

(d)       In order to comply with Applicable Laws, the Servicer and the Special Servicer may be required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Servicer or the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Servicer and the Special Servicer, upon its respective request from time to time, such identifying information and documentation as may be available for such party in order to enable the Servicer and the Special Servicer to comply with Applicable Laws.

6.4.       Servicer and Special Servicer Not to Resign. (a) Each of the Servicer and Special Servicer may resign and assign its respective rights and delegate its duties and obligations under this Agreement to any Person or to an entity, provided that:

(i)        the Person accepting such assignment and delegation (A) shall be an established mortgage finance institution, bank or mortgage servicing institution having a net worth of not less than $25,000,000, organized and doing business under the laws of the United States or of any state of the United States or the District of Columbia, authorized under such laws to perform the duties of the Servicer or Special Servicer, as the case may be, (B) shall execute and deliver to the Trustee an agreement in form and substance reasonably satisfactory to the Trustee, which contains an assumption by such Person of the performance and observance of each covenant and condition to be performed or observed by the Servicer or the Special Servicer, as the case may be, under this Agreement from and after the date of such agreement; provided, that to the extent such agreement modifies in any respect any of the covenants, terms or conditions in this Agreement to be performed by the Servicer or Special Servicer, as the case may be, such agreement shall be subject to the approval of the Trustee, such approval not to be unreasonably withheld, (C) shall make such representations and warranties of the Servicer or Special Servicer, as the case may be, as provided in Section 2.6, (D) (x) during any Subordinate Control Period, with respect to the Special Servicer, is reasonably acceptable to the Controlling Class Representative, (y) during any Subordinate Consultation Period, with respect to the Special Servicer, is reasonably acceptable to the Controlling Class Representative, and (z) is reasonably acceptable to the Depositor and the Trustee, in each case such approval not to be unreasonably withheld or delayed;

(ii)       Rating Agency Confirmation has been received (or the requirements of Section 3.26 with respect to a Rating Agency Confirmation are otherwise satisfied);

(iii)       the Servicer or Special Servicer, as the case may be, shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 6.4(a);

(iv)      the rate at which the Servicing Fee or Special Servicing Fee, as applicable (or any component thereof) is calculated shall not exceed the rate then in effect; and

167

(v)       the Servicer or Special Servicer, as the case may be, shall reimburse the Trustee, the Certificate Administrator, the Trust, and the Rating Agencies for any expenses of such assignment, sale or transfer.

Upon satisfaction of the foregoing requirements and acceptance of such assignment, such Person shall be the successor Servicer or Special Servicer, as the case may be, hereunder.

(b)       Subject to the provisions of Sections 6.2 and 6.4(a), none of the Servicer and the Special Servicer shall resign from its obligations and duties hereby imposed on it, except upon determination that performance of its duties hereunder is no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it. Any such determination permitting the resignation of the Servicer or the Special Servicer, as the case may be, shall be evidenced by an Opinion of Counsel delivered to the Depositor and the Trustee. No resignation by the Servicer or the Special Servicer, as applicable, under this Agreement shall become effective until a successor Servicer or Special Servicer, as applicable, shall have assumed the responsibilities and obligations of the Servicer or the Special Servicer, as applicable, under this Agreement in accordance with Section 7.2. In connection with any such resignation, the successor special servicer shall be appointed by the Trustee, and otherwise satisfy the requirements for a successor special servicer set forth in Section 6.4(a)(i); provided that in either case the Trustee shall have obtained a Rating Agency Confirmation from each Rating Agency. Notwithstanding the previous sentence, each of the Servicer or Special Servicer may assign its duties and obligations under this Agreement under certain limited circumstances as described herein.

6.5.       Indemnification by the Servicer, the Special Servicer and the Depositor. Each of the Servicer, the Special Servicer and the Depositor, severally and not jointly, shall indemnify and hold harmless the Trust and each other party to this Agreement and the Companion Loan Holders from and against any claims, losses, liabilities, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments and other costs (including, without limitation, reasonable attorneys’ fees and any expenses incurred in connection with the pursuit and enforcement of any indemnity afforded to such party hereunder) and expenses incurred by the Trust, the Trustee, the Certificate Administrator, the Servicer, the Special Servicer, the Depositor or the Companion Loan Holders, as applicable, that arise out of or are based upon (i) a breach by the Servicer, the Special Servicer or the Depositor, as the case may be, of its representations and warranties under this Agreement or (ii) negligence, bad faith or willful misconduct on the part of the Servicer, the Special Servicer or the Depositor, as the case may be, in the performance of its obligations and duties under this Agreement (or for or its negligent disregard thereof).

7.       SERVICER TERMINATION EVENTS; SPECIAL SERVICER TERMINATION EVENTS; TERMINATION OF SPECIAL SERVICER WITHOUT CAUSE

7.1.       Servicer Termination Events; Special Servicer Termination Events. (a) “Servicer Termination Event,” or “Special Servicer Termination Event” wherever used herein with respect to the Servicer or the Special Servicer, as the case may be, means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of

168

law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

(i)        any failure by the Servicer or Special Servicer, as applicable, to remit any payment required to be made or remitted by it (other than Advances or remittances described under clause (ii) below), when required to be remitted under the terms of this Agreement, which failure is not cured by 11:00 a.m., New York time, on the first Business Day following the date on which such remittance was required to be made;

(ii)       any failure of the Servicer (a) to make any Monthly Payment Advance required to be made pursuant to this Agreement on or prior to the applicable Remittance Date that is not cured by 11:00 a.m., New York time, on the related Distribution Date, (b) to make any Administrative Advance or Property Protection Advance required to be made pursuant to this Agreement when the same is due and such failure continues unremedied for 10 Business Days (or such shorter period (not less than one Business Day) as would prevent a lapse in insurance or a delinquent payment of real estate taxes or ground rents) following the date on which the Servicer receives notice thereof or should have had notice thereof if it had been acting in accordance with Accepted Servicing Practices or (c) to remit to any Companion Loan Holder, as and when required by this Agreement or the Intercreditor Agreement, any amount required to be so remitted which failure is not cured within two (2) Business Days following the date on which such remittance was required to be made;

(iii)      any failure by the Servicer or the Special Servicer, as applicable, to observe or perform in any material respect any other of its covenants or agreements or the material breach of its representations or warranties under this Agreement, which failure or breach shall continue unremedied for a period of 30 days after the date on which written notice of such failure or breach is given to the Servicer or Special Servicer, as applicable, by the Trustee or to the Servicer or Special Servicer, as applicable, and the Trustee by the Holders of Certificates having greater than 25% of the aggregate Voting Rights of all then outstanding Certificates or by the Companion Loan Holders; provided, that with respect to any such failure or breach that is not curable within such 30-day period, the Servicer or the Special Servicer, as applicable, will have an additional cure period of 30 days to effect such cure so long as the Servicer or the Special Servicer, as appropriate, has commenced to cure such failure within the initial 30-day period and has provided the Trustee with an officer’s certificate certifying that it has diligently pursued, and is continuing to diligently pursue, such cure;

(iv)      a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer or the Special Servicer, as applicable, and such decree or order has remained in force undischarged or unstayed for a period of sixty (60) days; provided, that, with respect to any such decree or order that cannot be discharged, dismissed or stayed within such sixty (60) day period, the Servicer or the Special

169

Servicer, as appropriate, will have an additional period of thirty (30) days to effect such discharge, dismissal or stay so long as it has commenced proceedings to have such decree or order dismissed, discharged or stayed within the initial sixty (60) day period and has diligently pursued, and is continuing to pursue, such discharge, dismissal or stay;

(v)       the Servicer or the Special Servicer, as applicable, shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Servicer or the Special Servicer or of or relating to all or substantially all of its property;

(vi)      the Servicer or the Special Servicer, as applicable, shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;

(vii)     (a) Moody’s has (1) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or (2) placed one or more Classes of Certificates on “watch status” in contemplation of a rating downgrade or withdrawal (and, in the case of either of clause (1) or (2), such qualification, downgrade or withdrawal or “watch status” placement has not been withdrawn by Moody’s within sixty (60) days), and, in the case of either of clause (1) or (2), publicly citing servicing concerns with the Servicer or the Special Servicer, as applicable, as the sole or a material factor in such rating action or (b) (I) the Servicer or the Special Servicer, as applicable, has failed to maintain a rating by DBRS Morningstar equal to or higher than “MOR CS3” as a master servicer or a special servicer, as applicable, and such rating is not reinstated within 60 days of such event (if the Servicer or the Special Servicer, as applicable, has or had a DBRS Morningstar rating on or after the Closing Date) or (II) if the Servicer or the Special Servicer, as the case may be, has not been rated by DBRS Morningstar on or after the Closing Date, and DBRS Morningstar has (1) qualified, downgraded or withdrawn the then-current rating or ratings of one or more Classes of Certificates or (2) placed one or more Classes of Certificates on “watch status” in contemplation of a rating downgrade or withdrawal and, in the case of either of clauses (1) or (2), has publicly cited servicing concerns with the Servicer or the Special Servicer, as applicable, as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by DBRS Morningstar within 60 days of such event);

(viii)    a Companion Loan Rating Agency has (A) qualified, downgraded or withdrawn its rating or ratings of one or more classes of Companion Loan Securities, or (B) placed one or more classes of Companion Loan Securities on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (A) or (B), publicly citing servicing concerns with the Servicer or the Special Servicer, as applicable, as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by such Companion Loan Rating Agency within sixty (60) days of such event); and

170

(ix)       if and for so long as a Companion Loan is included in an Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the Servicer or the Special Servicer, as applicable, or any primary servicer, Sub-Servicer or Servicing Function Participant (such entity, the “Sub-Servicing Entity”) retained by the Servicer or the Special Servicer, as applicable, shall fail to deliver the items required to be delivered by this Agreement (including any applicable grace periods) to enable such Other Securitization Trust to comply with its reporting obligations under the Exchange Act (any Sub-Servicing Entity that defaults in accordance with this clause (ix) shall be terminated at the direction of the Depositor) or, in the case of such failure by a Sub-Servicing Entity, the failure of the Servicer or Special Servicer, as applicable to terminate such Sub-Servicing Entity for such failure; provided, that the Depositor may waive any such Servicer Termination Event or Special Servicer Termination Event, as applicable, under this clause (ix) in its sole discretion without the consent of the Trustee or any Certificateholders.

(b)       Upon written notice or receipt by a Responsible Officer of the Trustee of actual knowledge of the occurrence of any Servicer Termination Event or Special Servicer Termination Event, unless such Servicer Termination Event or Special Servicer Termination Event has been cured or waived, the Trustee shall promptly notify the Certificate Administrator in writing. The Certificate Administrator shall, upon receipt of such notice, (i) provide written notice to the Depositor and post notice of the same upon its receipt thereof on the Certificate Administrator’s Website; (ii) provide written notice to the 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website) pursuant to Section 12.18; and (iii) provide notice thereof to all Certificateholders and the Companion Loan Holders by mail to the addresses set forth on the Certificate Register or, in the case of the Companion Loan Holders, otherwise provided to the Certificate Administrator. For avoidance of doubt, (i) the occurrence of a Servicer Termination Event with respect to the Servicer shall not cause there to have occurred a Special Servicer Termination Event with respect to the Special Servicer unless the relevant event also constitutes a Special Servicer Termination Event and (ii) the occurrence of a Special Servicer Termination Event with respect to the Special Servicer shall not cause there to have occurred a Servicer Termination Event with respect to the Servicer unless the relevant event also constitutes a Servicer Termination Event.

(c)       If a Servicer Termination Event or Special Servicer Termination Event shall occur then, and in each and every such case, so long as such Servicer Termination Event or Special Servicer Termination Event shall not have been remedied, either (i) the Trustee may, or (ii) upon the written direction of Holders of Certificates having at least 25% of the Voting Rights (taking into account the application of the Appraisal Reduction Amount and Collateral Deficiency Amounts allocated to the Mortgage Loan and allocated to the Non-Retained Certificates to notionally reduce the Certificate Balances of the Certificates) of the Certificates, or if affected thereby (and solely with respect to a termination of the Special Servicer), by any Companion Loan Holder, the Trustee shall terminate all of the rights and obligations of the Servicer or the Special Servicer, as applicable, under this Agreement, other than rights and obligations accrued prior to such termination, and in and to the Mortgage Loan or the Whole Loan and the proceeds thereof by notice in writing to the Servicer or the Special Servicer, as applicable; provided that, notwithstanding anything to the contrary, if a Servicer Termination Event or Special Servicer Termination Event, as applicable, under clauses (i), (ii), (iii), (viii)

171

and/or (ix) of Section 7.1(a) only has an adverse effect on a Companion Loan, a Companion Loan Holder or a rating on any Companion Loan Securities, but has no adverse effect on the Mortgage Loan, the Certificateholders or a rating on any of the Certificates, then (A) the Servicer or the Special Servicer, as applicable, shall not be terminated by the Trustee pursuant to clause (i) above of this sentence or upon the written direction of the Holders of Certificates pursuant to clause (ii) above of this sentence, but (B) (x) with respect to a Servicer Termination Event or Special Servicer Termination Event under clause (ix) of Section 7.1(a), the related Other Depositor or (y) with respect to a Servicer Termination Event or Special Servicer Termination Event under clauses (i), (ii), (iii) and/or (viii) of Section 7.1(a), the related affected Companion Loan Holder, shall be able to require termination of the Servicer or Special Servicer, as applicable, pursuant to clause (ii) above of this sentence. Upon any termination of the Servicer or the Special Servicer, as applicable, and appointment of a successor to the Servicer or the Special Servicer, as applicable, the Trustee shall notify the Servicer or the Special Servicer, to the extent it is not the party being terminated, and the Certificate Administrator who shall post to the Certificate Administrator’s Website such written notice thereof, and forward the same to the Depositor, the Certificateholders and the Companion Loan Holders and, comply with giving notice to the Rating Agencies pursuant to Section 12.18. Notwithstanding anything herein to the contrary, the Depositor shall have the right, but not the obligation, to notify the Trustee of any Servicer Termination Event or Special Servicer Termination Event of which the Depositor becomes aware.

(d)       Notwithstanding the foregoing, if a Servicer Termination Event on the part of the Servicer affects only a Companion Loan, any holder thereof or the rating on a class of Companion Loan Securities, then the Servicer may not be terminated at the direction of the Holders of any Certificates (acting in such capacity); however, the related Companion Loan Holder may direct the Trustee to direct the Servicer to appoint a sub-servicer (or if the Whole Loan is currently being sub-serviced, then such Companion Loan Holder may direct the Trustee to direct the Servicer to replace such sub-servicer with a new sub-servicer but only if such original sub-servicer is in default (beyond any applicable cure periods) under the related sub-servicing agreement, and the Servicer may terminate the sub-servicing agreement due to such default) that will be responsible for servicing the Whole Loan.

(e)       During any Subordinate Control Period, the Controlling Class Representative shall have the right to direct the Trustee to terminate the Special Servicer (subject to such terminated Special Servicer’s rights to indemnification, payment of outstanding fees, and other rights set forth in this Agreement which survive termination) at any time, with or without cause, and the Controlling Class Representative shall have the right to, and shall, appoint a successor Special Servicer who shall execute and deliver to the other parties hereto an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; provided that the Trustee (who shall provide it to the Certificate Administrator) shall have received a Rating Agency Confirmation from each Rating Agency prior to the termination of the Special Servicer. The Special Servicer shall not be terminated pursuant to this paragraph until a successor Special Servicer shall have been appointed. All costs and expenses of any such removal made by the Controlling Class Representative without cause shall be paid by the Holders of the Controlling Class. Notwithstanding anything to the contrary in this Agreement, no successor Special Servicer appointed by the Controlling Class

172

Representative pursuant to Section 6.4 or 7.1(c) or this Section 7.1(e) or otherwise pursuant to this Agreement will be required to meet any net worth requirements.

(f)       If the Special Servicer becomes a Borrower Party, the Special Servicer shall resign at its own expense. If such resignation occurs during a Subordinate Control Period or Subordinate Consultation Period, the Controlling Class Representative (so long as it is not also a Borrower Party) shall be entitled to appoint a successor Special Servicer that is not a Borrower Party. If such Controlling Class Representative is a Borrower Party, then the largest Holder of the Controlling Class, by Certificate Balance, that is not a Borrower Party shall be entitled to appoint a successor Special Servicer that is not also a Borrower Party. If each such Holder of the Controlling Class is also a Borrower Party, then the successor Special Servicer shall be appointed in accordance with the provisions in the next paragraph.

Other than during a Subordinate Control Period or Subordinate Consultation Period (or under the circumstances described in the last sentence of the preceding paragraph), in connection with any resignation by the Special Servicer because it is a Borrower Party, at the expense of the resigning Special Servicer, the Certificate Administrator, upon receipt of a written notice from the Special Servicer, shall promptly provide written notice of such pending resignation to all Certificateholders by posting the Special Servicer’s notice on the Certificate Administrator’s Website. Following such notice, a successor Special Servicer that is not also a Borrower Party may be appointed upon the written direction of more than 50% of the Voting Rights of the Certificates that exercise their right to vote (provided that Holders of at least 20% of the Voting Rights of the Certificates exercise their right to vote). If a successor Special Servicer that is not a Borrower Party has not been appointed pursuant to the preceding sentence within thirty (30) days after the Special Servicer provides its written notice of resignation, the Certificate Administrator shall provide written notice to the resigning Special Servicer that an Independent successor Special Servicer has not been appointed, and the resigning Special Servicer shall appoint a successor Special Servicer that is not a Borrower Party.

If any party referred to in the two preceding paragraphs is entitled (but not required) to appoint the successor Special Servicer but does not so appoint within thirty (30) days, the resigning Special Servicer shall be required to appoint a successor Special Servicer that is not a Borrower Party.

(g)       At any time other than during a Subordinate Control Period, upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the aggregate Voting Rights allocable to the Sequential Pay Certificates and the RR Interest (taking into account Non-Retained Certificate Realized Losses and Retained Certificate Realized Losses, principal payments and the application of any Appraisal Reduction Amount or Collateral Deficiency Amount allocated to the Mortgage Loan to notionally reduce the Certificate Balances of the Certificates) requesting a vote to terminate and replace the Special Servicer with a proposed successor Special Servicer meeting the requirements of Section 6.4(a)(i), (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any legal fees and any Rating Agency fees and expenses) to be incurred by the Certificate Administrator in connection with administering such vote, (iii) delivery by such holders to the certificate administrator (if any) and the trustee for each Other Securitization Trust (with a copy to the Certificate Administrator and the Trustee) of a Companion Loan Rating Agency Confirmation

173

with respect to the appointment of such new special servicer (which Companion Loan Rating Agency Confirmations shall be obtained at the expense of such holders) and (iv) delivery by such Certificateholders to the Certificate Administrator of a Rating Agency Confirmation from each Rating Agency with respect to the appointment of such new special servicer (which Rating Agency Confirmations shall be obtained at the expense of those Holders requesting such vote), the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders by posting such notice on the Certificate Administrator’s Website pursuant to Section 8.14(b) and by mailing at their addresses appearing in the Certificate Register and shall conduct the solicitation of votes of all Certificates in such regard. Upon the written direction of (x) Holders of Sequential Pay Certificates or the RR Interest evidencing at least 75% of a Certificateholder Quorum or (y) Holders of Non-Reduced Certificates evidencing more than 50% of the Voting Rights allocable to each Class of Non-Reduced Certificates, the Trustee shall terminate all of the rights and obligations of the Special Servicer under this Agreement by written notice to the Special Servicer and appoint the successor Special Servicer designated by such Certificateholders; provided, that if such written direction is not provided within 180 days of the notice from the Certificate Administrator of the request for a vote to terminate and replace the Special Servicer, then such written direction shall have no force and effect. Upon any such termination of the Special Servicer and appointment of a successor to the Special Servicer, the Certificate Administrator shall, as soon as possible, post written notice of such event on the Certificate Administrator’s Website and give written notice of such termination and appointment to the Servicer, the Depositor, the Certificateholders, the Companion Loan Holders and the 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website). The Certificateholders that initiated the vote to replace the Special Servicer shall pay the costs and expenses incurred in connection with the removal and replacement of the Special Servicer pursuant to this paragraph. The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder may access such notices on the Certificate Administrator’s Website and that each Certificateholder may register to receive email notifications when such notices are posted thereon. The Certificate Administrator shall be entitled to reimbursement from the requesting Certificateholders or the Companion Loan Holders for the reasonable expenses of posting notices of such requests. The Special Servicer shall not be terminated pursuant to this paragraph until a successor Special Servicer shall have been appointed.

(h)       Any termination of the Special Servicer under this Section 7.1 and appointment of a successor special servicer shall not be effective until (i) the delivery of a Rating Agency Confirmation from each Rating Agency and a Companion Loan Rating Agency Confirmation from each Companion Loan Rating Agency to the Trustee and the Certificate Administrator, (ii) the assumption by the successor special servicer of all of the responsibilities, duties and liabilities of the Special Servicer under this Agreement pursuant to a writing reasonably satisfactory to the Trustee and the Certificate Administrator and (iii) receipt by the Trustee and the Certificate Administrator of an opinion of counsel to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with this Agreement, (y) such replacement will be bound by the terms of this Agreement and (z) this Agreement will be enforceable against such replacement in accordance with its terms.

(i)       In the event that the Servicer or Special Servicer is terminated pursuant to this Section 7.1, the Trustee (the “Terminating Party”) shall, by notice in writing to the Servicer

174

or Special Servicer, as the case may be (the “Terminated Party”) (with a copy to the Borrower), terminate all of its rights and obligations under this Agreement and in and to the Mortgage Loan and the Companion Loans and the proceeds thereof, other than any rights the Terminated Party may have hereunder as a Certificateholder and any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued or owing to it under this Agreement with respect to periods prior to the date of such termination (including, to the extent described in Section 3.17, any Liquidation Fee or Workout Fees relating to a written agreement entered into by the Terminated Party prior to the earlier of (i) notice from the Controlling Class Representative under Section 7.1(e) directing the Trustee to terminate the Special Servicer, or (ii) termination) and the right to the benefits of Section 6.3 notwithstanding any such termination). On or after the receipt by the Terminated Party of such written notice, subject to the foregoing, all of its authority and power under this Agreement, whether with respect to the Certificates (except that the Terminated Party shall retain its rights as a Certificateholder in the event and to the extent that it is a Certificateholder) or the Whole Loan or otherwise, shall pass to and be vested in the Terminating Party pursuant to and under this Section (absent the appointment of a successor, and such successor’s assumption of obligations hereunder) and the Terminated Party shall reasonably cooperate with the Terminating Party to execute and deliver, on behalf of and at the expense of the Terminated Party, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the servicing rights with respect to the Mortgage Loan and related documents, or otherwise; provided, that if the Terminated Party fails to reasonably cooperate in executing such power of attorney, then the Terminating Party, without limitation, is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Terminated Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the servicing rights with respect to the Mortgage Loan and related documents, or otherwise. The Servicer and the Special Servicer, as applicable, each agrees that, in the event it is terminated pursuant to this Section 7.1, or resigns under Section 6.4(b), to promptly (and in any event no later than ten Business Days subsequent to such notice) provide, at its own expense, the Terminating Party (which term shall include for the purposes of the remainder of this Section 7.1(i), the Trustee (or a successor Servicer or Special Servicer) in connection with a resignation of the Servicer or the Special Servicer under Section 6.4(b)) with all documents and records requested by the Terminating Party to enable the Terminating Party to assume its functions hereunder, and to cooperate with the Terminating Party and the successor to its responsibilities hereunder in effecting the termination of its responsibilities and rights hereunder, including, without limitation, the transfer to the successor Servicer or Special Servicer, as applicable, or the Terminating Party, as applicable, for administration by it of all cash amounts which shall at the time be or should have been credited by the Terminated Party (which term shall include, for the purposes of the remainder of this Section 7.1(i), the resigning party in connection with a resignation of the Servicer or the Special Servicer under Section 6.4(b)) to the Collection Account, any Foreclosed Property Account or shall thereafter be received with respect to the Whole Loan, and shall promptly provide the Terminating Party or such successor Servicer or Special Servicer, as applicable (which may include the Trustee), as applicable, all documents and records reasonably requested by it, such documents and records to be provided in such form

175

as the Terminating Party or such successor Servicer or the Special Servicer, as applicable, shall reasonably request (including electronic form), to enable it to assume the function of the Servicer or Special Servicer, as applicable, hereunder. All reasonable out-of-pocket costs and expenses of the Terminating Party or the successor Servicer or Special Servicer, as applicable, incurred in connection with transferring the Mortgage File to the Terminating Party or to the successor Servicer or Special Servicer, as applicable, and amending this Agreement to reflect such succession pursuant to this Section 7.1 shall be paid by the Terminated Party upon presentation of reasonable documentation of such costs and expenses. If the Terminated Party has not reimbursed the Terminating Party or such successor Servicer or Special Servicer, as applicable, for such expenses within 90 days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust pursuant to Section 3.4(c); provided that the Terminated Party shall not thereby be relieved of its liability for such expenses. Notwithstanding the foregoing, in the event that the Special Servicer is terminated by the Controlling Class Representative without cause pursuant to Section 7.1(e), all out-of-pocket costs and expenses incurred or payable by the terminated Special Servicer under this Section 7.1 shall be paid by the Holders of the Controlling Class.

(j)       Notwithstanding anything herein to the contrary, the Depositor shall have the right, but not the obligation, to notify the Trustee of any Servicer Termination Event or Special Servicer Termination Event of which the Depositor becomes aware. In no event shall the Trustee be deemed to have knowledge of or be aware of any Servicer Termination Event or Special Servicer Termination Event until a Responsible Officer of the Trustee has received written notice thereof or has actual knowledge thereof.

7.2.       Trustee to Act; Appointment of Successor. On and after the time the Servicer or Special Servicer, as the case may be, receives a notice of termination pursuant to Section 7.1, or resigns pursuant to Section 6.4(b), the Terminating Party (which term shall include, for the purposes of the remainder of this Section 7.2, the Trustee (or a successor Servicer or Special Servicer including a successor appointed under Section 6.4(a)) in connection with a resignation of the Servicer or the Special Servicer under Section 6.4(b)) shall, unless prohibited by law, be the successor to the Terminated Party (which term shall include, for the purposes of the remainder of this Section 7.2, the resigning party in connection with a resignation of the Servicer of the Special Servicer under Section 6.4(b)) in all respects under this Agreement and the transactions set forth or provided for herein and, except as provided herein, shall be subject to all the responsibilities, duties, limitations on liability and liabilities relating thereto and arising thereafter placed on the Terminated Party by the terms and provisions hereof; provided, that (i) neither the Trustee nor the Terminating Party (nor any successor Servicer or Special Servicer, as the case may be) shall have any responsibilities, duties, liabilities or obligations with respect to any act or omission of the Terminated Party and (ii) any failure to perform, or delay in performing, such duties or responsibilities caused by the Terminated Party’s failure to provide, or delay in providing, records, tapes, disks, information or monies or failure to cooperate as required by this Agreement shall not be considered a default by the Terminating Party or such successor hereunder. The Trustee, as successor Servicer or Special Servicer, and any other successor Servicer or Special Servicer, as the case may be, shall be indemnified to the full extent provided to the Trustee under this Agreement. The appointment of a successor Servicer or Special Servicer, as the case may be, shall not affect any liability of the Terminated Party that may have arisen prior to its termination as such. The Terminating Party shall not be

176

liable for any of the representations and warranties of the Terminated Party herein or in any related document or agreement, for any acts or omissions of the Terminated Party or for any losses incurred in respect of any Permitted Investment by the Terminated Party nor shall the Terminating Party or any successor Servicer or Special Servicer be required to purchase the Mortgage Loan hereunder. None of the Terminating Party, the Trustee or the successor Servicer or successor Special Servicer will be responsible for delays attributable to Terminated Party’s failure to deliver information, defects in the information supplied by the Terminated Party or other circumstances beyond the control of the Terminating Party, the Trustee or the successor Servicer. The Terminating Party (or any successor Servicer or Special Servicer) will make arrangements with the Terminated Party for the prompt and safe transfer of, and the Terminated Party shall use commercially reasonable efforts to provide to the successor Servicer and Special Servicer, all necessary servicing files and records on the close of business on the day immediately preceding the assumption of the servicing or special servicing by the successor Servicer or Special Servicer (but in any event such necessary servicing files and records shall be provided by the close of business on the 5^th Business Day following the assumption of the servicing or special servicing by the successor Servicer or Special Servicer). None of the Trustee, the Terminating Party, the successor Servicer or the Special Servicer shall have any responsibility nor shall any of them be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of its duties under this Agreement if any such failure or delay results from the Trustee, the Terminating Party, successor Servicer or successor Special Servicer acting in accordance with information prepared or supplied by any other Person or the failure of any such Person to prepare or provide such information. None of the Trustee, the Terminating Party, the successor Servicer or the successor Special Servicer shall have any responsibility, shall be in default or shall incur any liability (i) for any act or failure to act by any third party, including the predecessor Servicer, the predecessor Special Servicer, the current Servicer or Special Servicer (if the successor is not succeeding to such capacities), the Depositor or the Trustee or for any inaccuracy or omission in a notice or communication received by the successor from any third party or (ii) which is due to or results from the invalidity, unenforceability of the Whole Loan, Loan Agreement or any other agreement with applicable law or the breach or the inaccuracy of any representation or warranty made with respect thereto. As compensation therefor, the Terminating Party as successor Servicer or Special Servicer, as the case may be, shall be entitled to all compensation with respect to the Whole Loan to which the Terminated Party would have been entitled that accrues after the date of the Terminating Party’s succession to which the Terminated Party would have been entitled if it had continued to act hereunder and, in the case of a successor Special Servicer, the Special Servicing Fee. Notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so act, or if the Holders of Certificates having greater than 25% of the aggregate Voting Rights of all then outstanding Certificates so request in writing to the Trustee, or the Trustee is not approved by the Rating Agencies as a Servicer or Special Servicer, as the case may be, as evidenced by a Rating Agency Confirmation, or if the Rating Agencies do not provide written confirmation that the succession of the Trustee as Servicer or Special Servicer, as the case may be, will not cause a downgrade, qualification or withdrawal of the then current ratings of the Certificates, promptly appoint, or petition a court of competent jurisdiction to appoint, any established loan servicing institution reasonably satisfactory to the Trustee the appointment for which a Rating Agency Confirmation is obtained, as the successor to the Servicer or Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities,

177

duties or liabilities of the Servicer or Special Servicer, as applicable, hereunder. No appointment of a successor to a Terminated Party hereunder shall be effective until the assumption by such successor of all the Terminated Party’s responsibilities, duties and liabilities hereunder. Pending appointment of a successor to a Terminated Party hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in the applicable capacity as herein above provided. Any appointment or succession by the Trustee to the rights and obligations of the Special Servicer hereunder shall be subject to the right of the Controlling Class Representative to replace the Special Servicer during any Subordinate Control Period. In connection with such appointment and assumption described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on the Whole Loan as it and such successor shall agree; provided, that no such compensation shall be in excess of that permitted the Terminated Party hereunder, except that if no successor to the Terminated Party can be obtained to perform the obligations of such Terminated Party hereunder, additional amounts shall be paid to such successor and such amounts in excess of that permitted the Terminated Party shall be paid pursuant to Section 3.4(c) (subject to the terms of the Intercreditor Agreement). The Depositor, the Trustee, the Certificate Administrator, the Servicer (as applicable), the Special Servicer (as applicable) and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.

7.3.       Notification to Certificateholders, the Depositor and the Rating Agencies.

(a)       Upon any termination of the Servicer or the Special Servicer, as the case may be, pursuant to Section 7.1 or appointment of a successor to the Servicer or Special Servicer, as the case may be, the Certificate Administrator shall, as soon as practicable, give written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register, the Companion Loan Holders and to the Depositor and 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website).

(b)       Within 30 days after the occurrence of any Servicer Termination Event or Special Servicer Termination Event of which a Responsible Officer of the Certificate Administrator has actual knowledge, the Certificate Administrator shall transmit by mail to all Holders of Certificates, the Companion Loan Holders and to the Depositor and 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website) notice of such Servicer Termination Event or Special Servicer Termination Event, as the case may be, unless such Servicer Termination Event or Special Servicer Termination Event shall have been cured or waived.

7.4.       Other Remedies of Trustee. During the continuance of any Servicer Termination Event or Special Servicer Termination Event, as the case may be, or so long as such Servicer Termination Event or Special Servicer Termination Event shall not have been remedied, the Trustee, in addition to the rights specified in Section 7.1, shall have the right, in its own name as trustee of an express trust, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies, of the Certificateholders and the Companion Loan Holders (including the institution and prosecution of all judicial, administrative and other proceedings and the filing of proofs of claim and debt in connection therewith). In such event, the legal fees, expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust,

178

and the Trustee shall be entitled to be reimbursed therefor pursuant to Section 3.4(c) from the Collection Account. Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Servicer Termination Event or Special Servicer Termination Event.

7.5.       Waiver of Past Servicer Termination Events and Special Servicer Termination Events. The Holders of Certificates evidencing not less than 66 2/3% of the aggregate Voting Rights of all then outstanding Certificates and the Companion Loan Holders may, on behalf of all Certificateholders and the Companion Loan Holders and upon adequate indemnification of the Trustee by the requesting Holders of Certificates and the Companion Loan Holders, waive any Servicer Termination Event or Special Servicer Termination Event (other than with respect to clause (ix) of the applicable definition thereof) and its consequences, except a failure to make any required deposits (including Monthly Payment Advances) to or payments from the Collection Account, the Distribution Account or any Foreclosed Property Account or in remitting payments as received, in each case in accordance with this Agreement. Upon any such waiver of a past Servicer Termination Event or Special Servicer Termination Event, such event shall cease to exist, and the related Servicer Termination Event or Special Servicer Termination Event arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other Servicer Termination Event or Special Servicer Termination Event or impair any right related thereto.

7.6.       Trustee as Maker of Advances. In the event that the Servicer fails to fulfill its obligations hereunder to make any Advances (other than any Advance which has been determined, in accordance with this Agreement, to be a Nonrecoverable Advance if made), the Trustee shall perform such obligations (w) within five Business Days (or such shorter period (but not less than one Business Day) as may be required, if applicable, to avoid any lapse in insurance coverage required under the Loan Documents or this Agreement with respect to the Property or to avoid any foreclosure or similar action with respect to the Property by reason of failure to pay real estate taxes, assessments, ground rents or governmental charges) of a Responsible Officer of the Trustee obtaining knowledge of such failure by the Servicer or the Special Servicer with respect to Property Protection Advances and Administrative Advances and (x) by 12:00 noon New York time on the related Distribution Date with respect to Monthly Payment Advances. With respect to any such Advance made by the Trustee, the Trustee shall succeed to all of the Servicer’s and/or the Special Servicer’s rights, as applicable, with respect to Advances hereunder, including, without limitation, the rights of reimbursement and interest on each Advance at the Advance Rate, and rights to determine that a proposed Advance is a Nonrecoverable Advance (without regard to any impairment of any such rights of reimbursement caused by such Servicer’s and/or the Special Servicer’s default in its obligations hereunder and further subject to the Trustee’s standard of good faith business judgment); provided, that if Advances made by the Trustee, the Servicer and/or the Special Servicer shall at any time be outstanding, or any interest on any Advance shall be accrued and unpaid, all amounts available to repay such Advances and the interest thereon hereunder shall be applied entirely to the Advances outstanding to the Trustee until such Advances shall have been repaid in full, together with all interest accrued thereon, prior to reimbursement of the Servicer and/or the Special Servicer, as applicable, for such Advances and interest accrued thereon. The Trustee shall be

179

entitled to conclusively rely on any notice given by the Servicer and/or the Special Servicer, as applicable, with respect to a Nonrecoverable Advance hereunder. The Trustee shall notify the Other Servicer and Other Trustee with respect to each Other Securitization Trust of the amount of any Monthly Payment Advance made by it pursuant to this Section 7.6 within two (2) Business Days of making such Advance.

8.       THE TRUSTEE, THE CUSTODIAN AND THE CERTIFICATE ADMINISTRATOR

8.1.       Duties of the Trustee, the Custodian and the Certificate Administrator. (a) The Trustee, the Custodian and the Certificate Administrator undertake with respect to the Trust Fund to perform such duties and only such duties as are specifically set forth in this Agreement. None of the Depositor, the Servicer or the Special Servicer shall be obligated to monitor or supervise the performance by any such party of its duties hereunder. In case a Servicer Termination Event or Special Servicer Termination Event has occurred (that has not been cured or waived), the Trustee, subject to the provisions of Section 7.2, Section 7.4 and Section 9.5(m), shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent institution would exercise or use under the circumstances in the conduct of such institution’s own affairs. Any permissive right of the Trustee, the Custodian or the Certificate Administrator set forth in this Agreement shall not be construed as a duty and such party shall not be answerable for other than its negligence or willful misconduct in performance of such right.

(b)       Subject to Sections 8.2(a) and 8.3, each of the Trustee, the Custodian and the Certificate Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to such party that are specifically required to be furnished to it pursuant to any provision of this Agreement, shall examine, or cause to be examined, such instruments to determine whether they conform to the requirements of this Agreement to the extent specifically set forth herein. If any such instrument is found on its face not to conform to the requirements of this Agreement in a material manner, the Trustee, the Custodian and the Certificate Administrator shall make a request to the Depositor to have the instrument corrected, and if the instrument is not corrected to the Trustee’s, the Custodian’s or the Certificate Administrator’s reasonable satisfaction, the Trustee, the Custodian or the Certificate Administrator shall provide notice thereof to the Certificateholders. None of the Trustee, the Custodian or the Certificate Administrator shall be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, the Servicer or the Special Servicer and accepted by the Trustee, the Custodian or the Certificate Administrator, as the case may be, in good faith, pursuant to this Agreement.

(c)       Subject to Section 8.3, no provision of this Agreement shall be construed to relieve the Trustee, the Custodian or the Certificate Administrator from liability for its own negligent action, its own negligent failure to act, its own willful misconduct or bad faith or for any failure to perform its obligations in compliance with this Agreement, provided, that:

(i)        no implied covenants or obligations shall be read into this Agreement against the Trustee, the Custodian or the Certificate Administrator and each such party may conclusively rely, as to the truth of the statements and the correctness of the opinions

180

expressed therein, upon any certificates or opinions furnished to such party (including those provided pursuant to Section 11.1) and conforming to the requirements of this Agreement which it reasonably believes in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder;

(ii)       none of the Trustee, the Custodian or the Certificate Administrator shall be liable for an error of judgment made in good faith by a Responsible Officer of such party unless it shall be proved that such party or such Responsible Officer, as applicable, was negligent in ascertaining the pertinent facts;

(iii)      none of the Trustee, the Custodian or the Certificate Administrator shall be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with this Agreement or at the direction of Holders of Certificates evidencing, in the aggregate, not less than 25% of the Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to such party, or exercising any trust or power conferred upon such party, under this Agreement;

(iv)      none of the Trustee, the Custodian or the Certificate Administrator shall be charged with knowledge of any failure by the Servicer or the Special Servicer to comply with any of their respective obligations referred to in Section 7.1 or any other act or circumstance upon the occurrence of which the Trustee, the Custodian or the Certificate Administrator, as applicable, may be required to take action unless a Responsible Officer of the Trustee, the Custodian or the Certificate Administrator, as applicable, obtains actual knowledge of such failure, act or circumstance or the Trustee, the Custodian or the Certificate Administrator, as applicable, receives written notice of such failure from the Servicer, the Special Servicer, the Depositor, the Borrower or Holders of the Certificates evidencing, in the aggregate, not less than 25% of the Voting Rights of the Certificates. In the absence of receipt of such notice or actual knowledge of a Responsible Officer, the Trustee may conclusively assume that there is no Servicer Termination Event, Special Servicer Termination Event or any other act or circumstance described in Section 7.1 has occurred.

(v)       subject to the other provisions of this Agreement and without limiting the generality of Sections 8.1 and 8.2, none of the Trustee, the Custodian or the Certificate Administrator shall have any duty except, in the case of the Trustee, in its capacity as a successor Servicer or successor Special Servicer (A) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any re-recording, refiling or redepositing thereof (except as set forth in Section 2.1(b)), (B) to see to any insurance, and (C) to confirm or verify the contents of any reports or certificates of the Servicer or the Special Servicer delivered to the Trustee, the Custodian or the Certificate Administrator pursuant to this Agreement reasonably believed by such party to be genuine and to have been signed or presented by the proper party or parties; and

181

(vi)      for all purposes under this Agreement, none of the Trustee, the Custodian or the Certificate Administrator shall be required to take any action with respect to, or be deemed to have notice or knowledge of any Event of Default, Servicer Termination Event or Special Servicer Termination Event unless a Responsible Officer of such party has actual knowledge thereof or shall have received written notice thereof. In the absence of receipt of such notice and such actual knowledge otherwise obtained, the Trustee, the Custodian and the Certificate Administrator may conclusively assume that there is no Event of Default, Servicer Termination Event or Special Servicer Termination Event.

(d)       None of the provisions contained in this Agreement shall in any event require the Trustee, the Custodian or the Certificate Administrator to (i) expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder if, in the opinion of the Trustee, the Custodian or the Certificate Administrator, as the case may be, there are reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, or (ii) perform, or be responsible for the manner of performance of, any of the obligations of the Servicer or the Special Servicer under this Agreement, except with respect to the Trustee, during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer or the Special Servicer in accordance with the terms of this Agreement. Notwithstanding anything contained herein, none of the Trustee, the Custodian or the Certificate Administrator shall be responsible or shall have any liability in connection with the duties assumed by the Authenticating Agent and the Certificate Registrar hereunder, unless the Trustee, the Custodian or the Certificate Administrator is acting in any such capacity hereunder; provided, further, that in any such capacity the Trustee, the Custodian and the Certificate Administrator shall have all of the rights, protections and indemnities provided to it as Trustee, Custodian and Certificate Administrator hereunder, as applicable.

In no event shall the Trustee, the Custodian or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond such party’s control, including, but not limited to force majeure.

8.2.       Certain Matters Affecting the Trustee, the Custodian and the Certificate Administrator. (a) Except as otherwise provided in Section 8.1:

(i)        each of the Trustee, the Custodian and the Certificate Administrator may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, auditor’s certificate or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(ii)       each of the Trustee, the Custodian and the Certificate Administrator may consult with any nationally recognized counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;

182

(iii)       none of the Trustee, the Custodian or the Certificate Administrator shall be under any obligation to exercise the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee, the Custodian or the Certificate Administrator, as applicable, security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities, including reasonable legal fees, which may be incurred therein or thereby; provided, that nothing contained herein shall relieve the Trustee, the Custodian or the Certificate Administrator of the obligation, upon the occurrence of a Servicer Termination Event or Special Servicer Termination Event (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and, with respect to the Trustee, to use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs;

(iv)      none of the Trustee, the Custodian or the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

(v)       prior to the occurrence of a Servicer Termination Event or Special Servicer Termination Event hereunder and after the curing or waiver of such Servicer Termination Event or Special Servicer Termination Event that may have occurred, none of the Trustee, the Custodian or the Certificate Administrator shall be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein (except as specifically required by this Agreement) or to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates evidencing, in the aggregate, not less than 25% of the Voting Rights of the outstanding Certificates; provided, that if the payment within a reasonable time to the such party of the costs, expenses or liabilities likely to be incurred by either party in the making of such investigation is, in the opinion of such party, not reasonably assured to it by the security afforded to it by the terms of this Agreement, such party may require indemnity satisfactory to it against such costs, expenses or liabilities as a condition to taking any such action. The reasonable expense of every such investigation shall be paid by the Trust pursuant to Section 3.4(c) in the event that such investigation relates to a Servicer Termination Event or Special Servicer Termination Event, if such an event shall have occurred and is continuing, and otherwise by the Certificateholders requesting the investigation;

(vi)      each of the Trustee, the Custodian and the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, Affiliates or attorneys selected by it with due care; provided, however, that the appointment of such agents, Affiliates or attorneys shall not relieve the Trustee, the Custodian or the Certificate Administrator of its duties or obligations hereunder;

183

(vii)     none of the Trustee, the Custodian or the Certificate Administrator shall be required to post any kind of bond or surety in connection with the execution and performance of its duties hereunder, and except in the event of actual fraud (as determined by a final non-appealable court order), in no event shall the Trustee, the Custodian or the Certificate Administrator be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee, the Custodian or the Certificate Administrator, as applicable, has been advised of the likelihood of such loss or damage;

(viii)    notwithstanding anything to the contrary herein, any and all communications (both text and attachments, excluding any notice to the Servicer or the Special Servicer under Section 7.1(a)) by or from the Trustee, the Custodian or the Certificate Administrator, as the case may be, in any of its capacities, that it in its sole discretion deems to contain confidential, proprietary, and/or sensitive information and sent by electronic mail will be encrypted. The recipient of the email communication will be required to complete a one-time registration process. Information and assistance on registering and using the email encryption technology can be found at the Certificate Administrator’s Website or by calling the Certificate Administrator’s customer support desk at (866) 846-4526;

(ix)       for as long as the Person that serves as the Certificate Administrator hereunder also serves as Custodian, 17g-5 Information Provider, Authenticating Agent and/or Certificate Registrar, the protections, immunities and indemnities afforded to that Person in its capacity as Certificate Administrator hereunder shall also be afforded to such Person in its capacity as Custodian, 17g-5 Information Provider, Authenticating Agent and/or Certificate Registrar, as the case may be; and

(x)       no provision of this Agreement or any other transaction document shall be deemed to impose any duty or obligation on the Trustee, the Custodian or the Certificate Administrator to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of its duties or obligations under the transaction documents, or to exercise any right or power thereunder, to the extent that taking or omitting to take such action or suffering such action to be taken or omitted would violate applicable law binding upon it (which determination may be based on the advice or opinion of counsel).

(b)       Following the Closing Date, none of the Trustee, the Custodian or the Certificate Administrator shall accept any contribution of assets to the Trust Fund not specifically contemplated by this Agreement.

(c)       All rights or actions under this Agreement or under any of the Certificates, enforceable by the Trustee, the Custodian or the Certificate Administrator may be enforced by such party without the possession of any of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by such party shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.

184

(d)       In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Trustee, the Custodian and the Certificate Administrator are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with such party. Accordingly, each of the parties agrees to provide to the Trustee, the Custodian and the Certificate Administrator, upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee, the Custodian and the Certificate Administrator to comply with Applicable Laws.

8.3.       None of the Trustee, the Custodian or the Certificate Administrator is Liable for Certificates or the Mortgage Loan. The recitals contained herein and in the Certificates (other than the signature and authentication of the Certificate Administrator on the Certificates) shall not be taken as the statements of the Trustee, the Custodian or the Certificate Administrator and no such party assumes responsibility for their correctness. The Trustee, the Custodian and the Certificate Administrator make no representations as to the validity or sufficiency of this Agreement, the Certificates, the Mortgage Loan or of the Whole Loan or related documents except as expressly set forth herein. The Trustee, the Custodian and the Certificate Administrator shall not be liable for any action or failure to take any action by the Depositor, the Servicer or the Special Servicer hereunder or any action or failure to take any action by the Mortgage Loan Seller under the Mortgage Loan Purchase Agreement, including, without limitation, in connection with (i) any failure of the Mortgage Loan Seller to properly prepare the Assignment of the Mortgage, assignment of the Collateral Security Document and UCC-3 financing statements pursuant to the Mortgage Loan Purchase Agreement or (ii) any failure of the Special Servicer or any sub-servicer, agent of or counsel to the Special Servicer to conduct a Foreclosure in accordance with the terms of this Agreement and applicable law, and none of the Trustee, the Custodian or the Certificate Administrator shall be required to take any action in connection with any of the foregoing matters referred to in clauses (i) and (ii) above (except to the extent otherwise expressly required pursuant to this Agreement). The Trustee, the Custodian and the Certificate Administrator shall not at any time have any responsibility or liability for or with respect to the legality, ownership, title, validity or enforceability of the Mortgage or Collateral Security Documents or the Mortgage Loan or the Companion Loans, or the perfection, sufficiency and priority of the Mortgage or Collateral Security Documents or the maintenance of any such perfection and priority, or for or with respect to the efficacy of the Trust Fund or its ability to generate the payments to be distributed to Certificateholders under this Agreement, including, without limitation, the existence, condition and ownership of the Property; the existence and enforceability of any hazard insurance thereon; the validity of the assignment of the Mortgage Loan to the Trust; the performance or enforcement of the Mortgage Loan (other than with respect to the Servicer or the Special Servicer, if the Trustee shall assume the duties of the Servicer and/or the Special Servicer, respectively, pursuant to Section 7.2 and then only to the extent of the obligations of the Servicer or the Special Servicer, as applicable, hereunder); the compliance by the Depositor, the Borrower, the Servicer or the Special Servicer with any warranty or representation made under this Agreement or in any related document or the accuracy of any such warranty or representation made under this Agreement or in any related document prior to the Trustee’s, the Custodian’s or the Certificate Administrator’s, as applicable, receipt of notice or actual knowledge of any noncompliance therewith or any breach thereof (provided, that the Trustee, the Custodian and the Certificate Administrator shall have no

185

obligation to investigate a breach of any such warranty or representation); any investment of monies by or at the direction of the Servicer or the Special Servicer or any loss resulting therefrom; the failure of the Servicer or the Special Servicer or any sub-servicer to act or perform any duties required of it hereunder; or any action by the Trustee, the Custodian or the Certificate Administrator taken at the direction of the Servicer or the Special Servicer (other than with respect to the Trustee, if the Trustee shall assume the duties of the Servicer or the Special Servicer, respectively); provided, that the foregoing shall not relieve the Trustee, the Custodian or the Certificate Administrator, as applicable, of its obligation to perform its duties under this Agreement. Except with respect to a claim based on the Trustee’s, the Custodian’s or the Certificate Administrator’s negligent action, negligent failure to act or willful misconduct (or such other standard of care as may be provided herein with respect to any particular matter), no recourse shall be had for any claim based on any provisions of this Agreement, the Certificates, the Mortgage, the Property, the Collateral Security Documents or the Mortgage Loan or assignment thereof against the Trustee, the Custodian or the Certificate Administrator, as applicable, in its respective individual capacity, and none of the Trustee, the Custodian or the Certificate Administrator shall have any personal obligation, liability or duty whatsoever to any Certificateholder or any other Person with respect to any such claim, and any such claim shall be asserted solely against the Trust Fund or any indemnitor who shall furnish indemnity as provided in this Agreement. None of the Trustee, the Custodian or the Certificate Administrator shall have any responsibility for filing any financing or continuation statements in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder or to record this Agreement (unless, with respect to the Trustee, the Trustee shall have become the successor Servicer or Special Servicer). None of the Trustee, the Custodian or the Certificate Administrator shall be accountable for the use or application by the Depositor of any of the Certificates issued to it or of the proceeds of such Certificates, or for the use or application of any funds paid to the Depositor in respect of the assignment of the Mortgage Loan to the Trust Fund, or any funds deposited in or withdrawn from the Collection Account or any account maintained by or on behalf of the Servicer or the Special Servicer, as applicable (except to the extent that the Collection Account is held by the Trustee, the Custodian or the Certificate Administrator in its commercial capacity), or for investment of such amounts (other than investments made with the Trustee, the Custodian or the Certificate Administrator in their commercial capacity).

The Trustee, the Custodian and the Certificate Administrator, by reason of the action or inaction of its directors, officers, members, managers, partners, employees or agents shall have no liability to the Trust, the Certificateholders or the Companion Loan Holders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement or for actions taken or not taken at the direction of Certificateholders or the Companion Loan Holders, or for errors in judgment; provided, that this provision shall not protect the Trustee, the Custodian, the Certificate Administrator or any such Person against any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence of the Trustee, the Custodian, the Certificate Administrator or any such Person. The Trustee, the Custodian, the Certificate Administrator in each of its capacities under this Agreement and any of their respective directors, officers, members, managers, partners, employees, Affiliates, agents or Controlling Persons shall be indemnified by the Trust Fund pursuant to Section 3.4(c) out of amounts on deposit in the Collection Account, and held harmless against any loss, liability, claim, demand or expense (including, without limitation,

186

reasonable attorneys’ fees and any expenses incurred in connection with the pursuit of enforcement of any indemnity afforded to such party hereunder) incurred in connection with or related to the Trustee’s, the Custodian’s or the Certificate Administrator’s performance of its powers and duties under this Agreement (including, without limitation, performance under Section 8.1 hereof), the Mortgage Loan, the Companion Loans, the Property or the Certificates; provided, that this provision shall not protect the Trustee, the Custodian, the Certificate Administrator or any such Person against any breach of its representations or warranties made in this Agreement or any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence of the Trustee, the Custodian, the Certificate Administrator or any such Person. The indemnification provided hereunder shall survive the resignation or removal of the Trustee, the Custodian or the Certificate Administrator and the termination of this Agreement. Anything herein to the contrary notwithstanding, the Trustee shall be responsible for its acts or failure to act as Servicer and/or Special Servicer during the time the Trustee is serving as such pursuant and subject to the terms of this Agreement.

With respect to a Companion Loan, the expenses, costs and liabilities described in the previous paragraph that are allocable to such Companion Loan pursuant to the terms of the Intercreditor Agreement shall be paid out of amounts allocated to such Companion Loan in accordance with the expense allocation provision of the Intercreditor Agreement. If such amounts relating to such Companion Loan are insufficient, then any deficiency shall be paid from amounts on deposit in the Collection Account with respect to the Mortgage Loan; provided that the Servicer or the Special Servicer, as applicable, shall, after receiving payment from amounts on deposit in the Collection Account with respect to the Mortgage Loan, if any, to (i) promptly notify the Companion Loan Holders and (ii) use commercially reasonable efforts to exercise on behalf of the Trust the rights of the Trust under the Intercreditor Agreement to obtain reimbursement for the portion of such amount allocable to the Companion Loans in Note Reverse Sequential Order.

8.4.       Trustee, Custodian and Certificate Administrator May Own Certificates. The Trustee, the Custodian and the Certificate Administrator in their individual or any other capacity may become the owner or pledgee of Certificates with the same rights, powers, and privileges as it would have if it were not the Trustee, the Custodian or the Certificate Administrator, as applicable.

8.5.       Trustee’s, Custodian’s and Certificate Administrator’s Fees and Expenses. The Trustee and the Certificate Administrator shall be entitled to the Trustee Fee and the Certificate Administrator Fee, respectively payable pursuant to Section 3.4(c). The Certificate Administrator Fee and the Trustee Fee (which shall not be limited to any provision of law in regard to the compensation of a trustee of an express trust) shall constitute the Certificate Administrator’s and the Trustee’s sole form of compensation, respectively (unless otherwise set forth herein) for all services rendered by it in the execution of the trust hereby created and in the exercise and performance of any of the powers and duties of the Certificate Administrator and the Trustee hereunder. The Trustee Fee shall be paid monthly by the Certificate Administrator out of amounts received by the Certificate Administrator as the Certificate Administrator Fee. The Trustee, the Custodian and the Certificate Administrator shall be entitled to be reimbursed for all reasonable expenses, disbursements and advances incurred or made by it in accordance with any of the provisions of this Agreement (including the fees and expenses of its counsel and

187

of all Persons not regularly in its employ), provided such cost would qualify as an “unanticipated expense incurred by the REMIC” within the meaning of the REMIC Provisions, except any such expense, disbursement or advance as may arise from its negligence, willful misconduct or bad faith or which is expressly the responsibility of a Certificateholder or Certificateholders hereunder, all of which reimbursements to be paid from amounts on deposit in the Collection Account pursuant to Section 3.4(c); provided, that none of the Trustee, the Custodian or the Certificate Administrator shall refuse to perform any of its obligations hereunder solely as a result of the failure to be paid any fees and expenses so long as (a) payment of such fees and expenses are reasonably assured to it or (b) to the extent that the Trustee’s obligation hereunder is expressly contingent upon receipt of an indemnity from the Certificateholders, that it has received that indemnity. The Trustee, the Custodian and the Certificate Administrator shall provide the Servicer with an invoice, on or prior to each Loan Payment Date, setting forth the actual expenses incurred in connection with the performance of its duties hereunder for which it seeks payment or reimbursement. Notwithstanding any other provision of this Agreement, none of the Trustee, the Custodian or the Certificate Administrator shall be entitled to reimbursement from the Trust for an expense incurred under this Agreement in connection with the performance of its ordinary and regularly recurring duties hereunder unless such reimbursement is expressly provided for herein or otherwise permitted hereunder.

8.6.       Eligibility Requirements for the Trustee and the Certificate Administrator; Errors and Omissions Insurance. (a) Each of the Trustee and the Certificate Administrator hereunder shall at all times be a corporation, association or trust company organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement, which has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority, and (i) in the case of the Trustee, which has a rating on its long-term senior unsecured debt of at least “A2” by Moody’s or a long-term counterparty risk assessment of at least “A2(cr)” by Moody’s (provided that the Trustee maintain a long-term unsecured debt rating of at least “Baa3” by Moody’s if the Servicer maintains a rating of at least “A2” by Moody’s), and a long-term unsecured debt rating by DBRS Morningstar of “A” (or, in the case of this clause (i), which has such other rating as acceptable to the Rating Agencies, as evidenced by the receipt of a Rating Agency Confirmation), (ii) in the case of the Certificate Administrator, which has a rating on its long-term senior unsecured debt of at least “Baa3” by Moody’s (or, in the case of this clause (ii), which has such other rating as acceptable to the Rating Agencies, as evidenced by the receipt of a Rating Agency Confirmation); and (iii) in the case of the Trustee, which shall not be an Affiliate of the Servicer or the Special Servicer (except, with respect to the Servicer and/or Special Servicer, during any period when the Trustee has assumed the duties of the Servicer and/or Special Servicer pursuant to Section 7.2). If a corporation, association or trust company publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for purposes of this Section the combined capital and surplus of such entity shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In the event that the place of business from which the Trustee, the Custodian or the Certificate Administrator, as applicable, administers the Trust Fund is a state or local jurisdiction that imposes a tax on the Trust, the Trustee, the Custodian or the Certificate Administrator, as applicable, shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.7, (ii) pay such tax from its own funds and continue as Trustee, Custodian or

188

Certificate Administrator, as applicable, or (iii) administer the Trust Fund from a state and local jurisdiction that does not impose such a tax. In case at any time the Trustee, the Custodian or the Certificate Administrator, as applicable, shall cease to be eligible in accordance with the provisions of this Section, the Trustee, the Custodian or the Certificate Administrator, as applicable, shall resign immediately in the manner and with the effect specified in Section 8.7.

(b)       The Trustee, the Custodian and the Certificate Administrator shall each obtain and maintain at its own expense, and keep in full force and effect throughout the term of this Agreement, a blanket fidelity bond and an errors and omissions insurance policy covering the Trustee’s, the Custodian’s or Certificate Administrator’s, as applicable, directors, officers and employees acting on behalf of the Trustee, the Custodian or the Certificate Administrator, as applicable, in connection with its activities under this Agreement; provided that such applicable error and omissions insurance policy must be issued by an insurer with Qualified Insurer Ratings. Such insurance policy shall protect the Trustee, the Custodian and the Certificate Administrator, as applicable, against losses, forgery, theft, embezzlement, fraud, errors and omissions of such covered Persons. The amount of coverage shall be at least equal to the coverage that is required by applicable governmental authorities having regulatory power over the Trustee, the Custodian or the Certificate Administrator, as applicable. If any such bond or policy ceases to be in effect, the Trustee, the Custodian or the Certificate Administrator, as applicable, shall obtain a comparable replacement bond or policy. In lieu of the foregoing, the Trustee, the Custodian and the Certificate Administrator shall each be entitled to self-insure with respect to such risks so long as the Trustee, the Custodian or the Certificate Administrator, as applicable, is rated at least “A3” by Moody’s and the equivalent rating by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent rating by at least two NRSROs).

8.7.       Resignation and Removal of the Trustee, the Custodian or the Certificate Administrator. Each of the Trustee, the Custodian and the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by (i) giving written notice of resignation to the Depositor, the Borrower, the Servicer, the Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (if other than the Certificate Administrator), the Custodian (if other than the Certificate Administrator), the Certificate Registrar (if other than the Certificate Administrator), the Companion Loan Holders and the 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website) and by mailing notice of resignation by first Class mail, postage prepaid, to the Certificateholders and the Companion Loan Holders at their addresses appearing on the Certificate Register or, in the case of the Companion Loan Holders, otherwise provided to the Certificate Administrator, not less than 60 days before the date specified in such notice when, subject to Section 8.8, such resignation is to take effect, and (ii) acceptance by a successor Trustee, successor Custodian or successor Certificate Administrator, as applicable, appointed by the Depositor in accordance with Section 8.8 meeting the qualifications set forth in Section 8.6. Upon such notice of resignation, the Depositor shall promptly appoint a successor Trustee, successor Custodian or successor Certificate Administrator, as applicable. If no successor Trustee, successor Custodian or successor Certificate Administrator shall have been so appointed and shall have accepted appointment within 60 days after the giving of such notice of resignation, the resigning Trustee, Custodian or Certificate Administrator, as applicable, may petition any court of competent jurisdiction for the appointment of a successor Trustee, Custodian or Certificate Administrator, as applicable.

189

If at any time any of the following occur: (x) the Trustee, the Custodian or the Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 8.6 and shall fail to resign after written request for such party’s resignation by the Depositor, the Servicer or the Special Servicer, as applicable; (y) the Trustee, the Custodian or the Certificate Administrator shall materially default in the performance of its obligations under this Agreement; or (z) if at any time the Trustee, the Custodian or the Certificate Administrator shall become incapable of action, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee, the Custodian or the Certificate Administrator or of either of their property shall be appointed, or any public officer shall take charge or control of the Trustee, the Custodian or Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation then, in any such case, (1) the Depositor may remove the Trustee, the Custodian or the Certificate Administrator, as applicable, and appoint a successor Trustee, Custodian or Certificate Administrator, as applicable, by written instrument, in duplicate, executed by an authorized officer of the Depositor, one copy of which instrument shall be delivered to the Trustee, the Custodian or the Certificate Administrator, as applicable, so removed and one copy to the successor Trustee, Custodian or Certificate Administrator, as applicable, or (2) any Certificateholder who has been a bona fide Certificateholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee, the Custodian or the Certificate Administrator and the appointment of a successor thereto. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee, the Custodian or the Certificate Administrator, as applicable, which removal and appointment shall become effective upon acceptance of appointment by a successor thereto as provided in Section 8.8. The successor Trustee, Custodian or Certificate Administrator, as applicable so appointed by such court shall immediately and without further act be superseded by any successor Trustee, Custodian or Certificate Administrator, as applicable, appointed by the Certificateholders as provided below within one year from the date of appointment by such court. Holders of Certificates evidencing, in the aggregate, not less than a majority of the Voting Rights of the outstanding Certificates, may at any time upon not less than 30 days’ written notice remove the Trustee, the Custodian or the Certificate Administrator and appoint a successor Trustee, Custodian or Certificate Administrator, as applicable, by written instrument or instruments, in triplicate, signed by such Holders or their attorney-in-fact duly authorized, one complete set of which instrument or instruments shall be delivered to the Depositor (with a copy to the Servicer or the Special Servicer), one complete set to the Trustee, the Custodian or the Certificate Administrator, as applicable, so removed and one complete set to the successor(s) so appointed; provided, that the costs and expenses associated with such removal of the Trustee, the Custodian or the Certificate Administrator without cause shall be paid by such Holders. Notice of any removal of the Trustee, the Custodian or the Certificate Administrator and acceptance of appointment by the successor thereto shall be given to the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website) by the successor Certificate Administrator. No removal of the Trustee, the Custodian or the Certificate Administrator shall be effective until all reasonable fees, costs, expenses and Advances (including interest thereon), together with any other amounts owing to such party have been paid to such party in full. If no successor Trustee, successor Custodian or successor Certificate Administrator shall have been so appointed and shall have accepted appointment within 90 days after the giving of such notice of removal, the removed Trustee,

190

Custodian or Certificate Administrator, as applicable, may petition any court of competent jurisdiction for the appointment of a successor Trustee, Custodian or Certificate Administrator, as applicable, at the expense of the Trust Fund.

Any resignation or removal of the Trustee, the Custodian or Certificate Administrator and appointment of a successor trustee, successor custodian or successor certificate administrator shall not become effective until acceptance of the appointment by the successor Trustee, successor Custodian or successor Certificate Administrator, as applicable, as provided in Section 8.8. Upon any resignation or removal of the Certificate Administrator, the Certificate Administrator shall also resign or be removed in its capacity as Custodian hereunder.

8.8.       Successor Trustee, Successor Custodian or Successor Certificate Administrator. Any successor Trustee or Certificate Administrator appointed as provided in Section 8.7 shall execute, acknowledge and deliver to each other party to this Agreement and to its predecessor trustee or certificate administrator an instrument (i) accepting such appointment hereunder and (ii) making the representations and warranties of the Trustee, Certificate Administrator or Custodian, as applicable, as provided in Section 2.3, 2.4 and 2.5, respectively, and thereupon the resignation or removal of the predecessor trustee, certificate administrator or custodian, as applicable, shall become effective and such successor Trustee, Certificate Administrator or Custodian, as applicable, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as trustee, certificate administrator or custodian herein. The predecessor custodian shall deliver or cause to be delivered to the successor Custodian the Mortgage File and related documents and statements held by it hereunder, and the Depositor, the Servicer, the Special Servicer and the predecessor trustee, custodian or certificate administrator shall execute and deliver such instruments and do such other things as may reasonably be required for more fully and certainly vesting and confirming in the successor Trustee, Custodian or Certificate Administrator all such rights, powers, duties and obligations.

No successor Trustee, Custodian or Certificate Administrator shall accept appointment as provided in this Section unless at the time of such acceptance such successor Trustee, Custodian or Certificate Administrator shall be eligible under the provisions of Section 8.6 and its appointment shall not result in the qualification, downgrading, or withdrawal of the current rating of any Class of the Certificates (prior to the resignation or termination of the Trustee, Custodian or Certificate Administrator).

Upon acceptance of appointment by a successor Trustee, Custodian or Certificate Administrator as provided in this Section, the successor Trustee, Custodian or Certificate Administrator shall mail notice of the succession of such entity hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register, the Companion Loan Holders, the Depositor, the Borrower and the Rating Agencies.

8.9.       Merger or Consolidation of the Trustee, the Custodian or the Certificate Administrator. Any Person into which the Trustee, the Custodian or the Certificate Administrator may be merged or converted or with which either may be consolidated or any Person resulting from any merger, conversion or consolidation to which the Trustee, the

191

Custodian or the Certificate Administrator shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee, the Custodian or the Certificate Administrator shall be the successor of such party hereunder; provided that such Person shall be eligible under the provisions of Section 8.6, without the execution or filing of any paper or further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.

8.10.       Appointment of Co-Trustee or Separate Trustee. (a) At any time or times, for the purpose of meeting any legal requirements of any jurisdiction in which the Property may at the time be located or in which any action of the Trustee may be required to be performed or taken, the Trustee, the Depositor or the Holders of Certificates evidencing, in the aggregate, a majority of the Voting Rights of the outstanding Certificates, by an instrument in writing signed by it or them, may appoint one or more individuals or corporations to act as separate trustee or separate trustees or co-trustees, acting jointly with the Trustee, of all or any part of the Property, to the full extent that local law makes it necessary for such separate trustee or separate trustees or co-trustee acting jointly with the Trustee to act. The fees and expenses of any separate trustee or co-trustee shall be paid by the Trust Fund pursuant to Section 3.4(c).

(b)       The Trustee shall execute, acknowledge and deliver all such instruments as may be required by the legal requirements of any jurisdiction or by any such separate trustee or separate trustees or co-trustee for the purpose of more fully conferring such title, rights or duties to such separate trustee or separate trustees or co-trustee, it, he, she or they shall be vested with such title to the Property or any part thereof, and with such rights, powers, duties and obligations as shall be specified in the instrument of appointment, and such rights, powers, duties and obligations shall be conferred or imposed upon and exercised or performed by the Trustee, or the Trustee and such separate trustee or separate trustees or co-trustees jointly with the Trustee subject to all the terms of this Agreement, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed shall be exercised and performed by such separate trustee or separate trustees or co-trustee, as the case may be. Any separate trustee or separate trustees or co-trustee may, at any time by an instrument in writing, constitute the Trustee, its attorney-in-fact and agent with full power and authority to do all acts and things and to exercise all discretion on its behalf and in its, her or his name. In the event that any such separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, the title to the Property and all assets, property, rights, powers, duties and obligations of such separate trustee or co-trustee shall, so far as permitted by law, vest in and be exercised by the Trustee, without the appointment of a successor to such separate trustee or co-trustee unless and until a successor is appointed.

(c)       All provisions of this Agreement which are for the benefit of the Trustee and the Certificate Administrator shall extend to and apply to each separate trustee or co-trustee appointed pursuant to the foregoing provisions of this Section 8.10, and to the Trustee and Certificate Administrator in each capacity that either may assume hereunder, including without limitation, the Certificate Administrator’s capacity as Certificate Administrator, Custodian, Certificate Registrar, 17g-5 Information Provider and Authenticating Agent, as applicable.

(d)       Every co-trustee and separate trustee hereunder shall, to the extent permitted by law, be appointed and act and the Trustee shall act, subject to the following

192

provisions and conditions: (i) all powers, duties, obligations and rights conferred upon the Trustee in respect of the receipt, custody, investment and payment of monies shall be exercised solely by the Trustee; (ii) all other rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed and exercised or performed by the Trustee and such co-trustee or trustees and separate trustee or trustees jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or trustees; (iii) no power hereby given to, or exercisable by, any such co-trustee or separate trustee shall be exercised hereunder by such co-trustee or separate trustees except jointly with, or with the consent of, the Trustee; and (iv) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustees hereunder.

If, at any time, the Trustee shall deem it no longer necessary or prudent in order to conform to any such law, the Trustee shall execute and deliver all instruments and agreements necessary or proper to remove any co-trustee or separate trustee. Notwithstanding the foregoing, the appointment of a co-trustee or separate trustee by the Trustee shall not relieve the Trustee of its obligations, duties, or responsibilities in any way or to any degree.

(e)       Any request, approval or consent in writing by the Trustee to any co-trustee or separate trustee shall be sufficient warrant to such co-trustee or separate trustee, as the case may be, to take such action as may be so required, approved or consented to.

(f)       Notwithstanding any other provision of this Section 8.10, the powers of any co-trustee or separate trustee shall not exceed those of the Trustee hereunder, and such co-trustee or separate trustee must meet the eligibility requirements set forth in Section 8.6.

8.11.       Appointment of Authenticating Agent. (a) The Certificate Administrator may appoint an agent or agents which shall be authorized to act on behalf of the Certificate Administrator to authenticate Certificates (each such agent, an “Authenticating Agent”), and Certificates so authenticated shall be entitled to the benefits of this Agreement and shall be valid and obligatory for all purposes as if authenticated by the Certificate Administrator hereunder. Wherever a reference is made in this Agreement to the authentication and delivery of Certificates by the Certificate Administrator or the Certificate Administrator’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Certificate Administrator by an Authenticating Agent and a certificate of authentication executed on behalf of the Certificate Administrator by an Authenticating Agent. Each Authenticating Agent shall, at all times, be a corporation or association organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such law to act as Authenticating Agent, having a combined capital and surplus of not less than $15,000,000, authorized under such laws to do trust business and subject to supervision or examination by federal or state authorities. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If, at any time, an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent

193

shall resign immediately in the manner and with the effect specified in this Section. The initial Authenticating Agent shall be the Certificate Administrator.

(b)       Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to the corporate agency business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the Authenticating Agent.

(c)       An Authenticating Agent may resign at any time by giving at least 30 days’ advance written notice thereof to the Certificate Administrator, the Servicer or Special Servicer, as applicable and the Depositor. The Certificate Administrator may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Servicer or Special Servicer, as applicable and the Depositor. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Certificate Administrator may appoint a successor Authenticating Agent and shall mail written notice of such appointment by first class mail, postage prepaid to all Certificateholders as their names and addresses appear in the Certificate Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

8.12.       Indemnification by Trustee, Custodian and the Certificate Administrator. The Trustee, the Custodian and the Certificate Administrator, as applicable, severally and not jointly, shall indemnify and hold harmless the Trust, each other party to this Agreement and the Companion Loan Holders from and against any claims, losses, liabilities, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs (including, without limitation, reasonable attorneys’ fees and any expenses incurred in connection with the pursuit of enforcement of any indemnity afforded to such party hereunder), judgments and other costs and expenses incurred by the Trust, the Servicer, the Special Servicer, the Depositor or the Companion Loan Holders, as applicable, that arise out of or are based upon (i) a breach by the Trustee, the Custodian or the Certificate Administrator, as applicable, of its representations and warranties under this Agreement or (ii) negligence, bad faith or willful misconduct on the part of the Trustee, the Custodian or the Certificate Administrator, as applicable, in the performance of its obligations under this Agreement or its negligent disregard of its obligations and duties under this Agreement.

8.13.       Certificate Administrator and Servicer Not Responsible for Inconsistent Payment Information. In connection with any Distribution Date and a voluntary prepayment or the payment at maturity by the Borrower of the Mortgage Loan or any portion thereof, the Certificate Administrator shall report the amount of such prepayment or payment to the Depository based on information received from the Servicer or Special Servicer in reliance on notices received from the Borrower. In the event of any inconsistencies in payments or

194

prepayments made by the Borrower with the previously delivered notices by the Borrower, all costs and expenses incurred as a result of a failure by the Borrower to make any such payments or prepayment, shall be paid by the Borrower in accordance with the Loan Agreement provided that the amount of payment reported to the Depository by the Certificate Administrator was consistent with the information received from the Servicer or Special Servicer. If the Borrower fails to do so, such costs and expenses shall be reimbursed to the Certificate Administrator and to the Servicer or Special Servicer, as applicable, by the Trust pursuant to Section 3.4(c) from funds on deposit in the Collection Account. Neither the Certificate Administrator, the Servicer nor the Special Servicer shall be liable for any inability or delay of the Depository to make a distribution as a result of such inconsistencies. Notwithstanding the foregoing, the Certificate Administrator shall notify the Depository on the Remittance Date or as soon as reasonably possible of any such inconsistencies.

8.14.     Access to Certain Information. (a) The Certificate Administrator shall afford to any Privileged Person and to the Office of the Comptroller of the Currency, the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder, access to any documentation regarding the Mortgage Loan or the other assets of the Trust Fund that are in its possession or within its control (or, upon request, make copies thereof available to any Privileged Person at the reasonable cost and expense of such Privileged Person). Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator.

(b)       The Certificate Administrator shall make available to Privileged Persons, via the Certificate Administrator’s Website, the following items (provided that with respect to items not prepared by the Certificate Administrator, the Certificate Administrator shall make such items available only to the extent it has received such items in a readable, uploadable and unlocked electronic format (including, HTML, Word, Excel or searchable PDF)):

(i)       The following “deal documents”:

(A)       the Offering Circular;

(B)       this Agreement, each sub-servicing agreement delivered to the Certificate Administrator since the Closing Date (if any), the Mortgage Loan Purchase Agreement and any amendments and exhibits hereto or thereto; and

(C)       the CREFC^® Loan Setup File delivered by the Servicer to the Certificate Administrator;

(ii)       The following “periodic reports”:

(A)       all Distribution Date Statements prepared by the Certificate Administrator pursuant to Section 4.4(a); and

(B)       all CREFC^® Reports prepared by, or delivered to, the Certificate Administrator pursuant to Section 3.18(a) (other than the CREFC^® Loan Setup File and CREFC^® Special Servicer Loan File);

195

(iii)       The following “additional documents”:

(A)       summaries of Asset Status Reports delivered to the Certificate Administrator pursuant to Section 3.10;

(B)       all inspection reports delivered to the Certificate Administrator pursuant to Section 3.22;

(C)       all Appraisals delivered to the Certificate Administrator pursuant to Section 3.7(a); and

(D)       the CREFC^® Appraisal Reduction Template;

(iv)       The following “special notices”:

(A)       any notice of final payment on the Certificates delivered to the Certificate Administrator pursuant to Section 4.1(e);

(B)       any notice of termination of the Servicer or the Special Servicer delivered by the Certificate Administrator pursuant to Section 7.1(c);

(C)       any notice of a Servicer Termination Event or Special Servicer Termination Event delivered by the Certificate Administrator pursuant to Section 7.1(b);

(D)       any request by the requisite percentage of Certificateholders for a vote to terminate the Special Servicer pursuant to Section 7.1(g);

(E)       any notice of resignation of the Trustee, Custodian or Certificate Administrator and any notice of the acceptance of appointment by the successor Trustee, successor Custodian or successor Certificate Administrator pursuant to Section 8.7, as applicable;

(F)       any and all Officer’s Certificates and other evidence delivered to or by the Certificate Administrator to support its or the Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, pursuant to Section 3.23(f);

(G)       any notice that a Subordinate Control Period has ended or has been reinstated or that a Subordinate Consultation Period has occurred or is terminated;

(H)       any Special Notice delivered to the Certificate Administrator pursuant to Section 5.6;

(I)        any Assessment of Compliance delivered to the Certificate Administrator;

(J)        any Attestation Reports delivered to the Certificate Administrator;

196

(K)       any amendment to this Agreement pursuant to Section 12.1(f).

(L)       any amendment to the Intercreditor Agreement;

(M)     [Reserved];

(N)       notice of any request by the holders of Certificates evidencing at least 25% of the Voting Rights of the Certificates to terminate and replace the Special Servicer;

(O)       any notice of prepayment from the Borrower that has been delivered to the Certificate Administrator; and

(P)       any notice or documents provided to the Certificate Administrator by the Depositor or the Servicer directing the Certificate Administrator to post to the “Special notices” tab; and

(v)       the “Investor Q&A Forum” pursuant to Section 4.5(a);

(vi)       solely to Certificateholders and Beneficial Owner of Certificates, the “Investor Registry” pursuant to Section 4.5(b);

(vii)       the “U.S. Risk Retention Special Notices” tab relating to any notices as to ongoing compliance by the Retaining Party with the retention and hedging covenants in any agreement between the Retaining Party and the Retaining Sponsor in respect of compliance with credit risk retention regulations. The Certificate Administrator shall, in addition to posting any applicable notices on the “U.S. Risk Retention Special Notices” tab as described in this clause (vii), provide email notification to any Privileged Person (other than the financial market information providers specified in Section 3.21(b)) that has registered to receive access to the Certificate Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab. In the event that the Retaining Sponsor determines that any Retaining Party no longer complies with the provisions of the Credit Risk Retention Rules specified in an agreement with such Retaining Party, it shall send a written notice of such non-compliance to the Certificate Administrator, who shall post such notice on the Certificate Administrator’s Website under the “U.S. Risk Retention Special Notices” tab; and

(viii)       in connection with the EU/UK Risk Retention Agreement, the “EU Risk Retention Notices” tab relating to any notices relating to ongoing compliance by MSBNA with the EU/UK Retention Covenant and the EU/UK Hedging Covenant.

The Certificate Administrator shall, in addition to posting the applicable notices on the “U.S. Risk Retention Special Notices” tab, provide e-mail notification to any Privileged Person (other than certain financial market information providers set forth in Section 3.21(b)) that has registered to receive access to the Certificate Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab. In the event that the Retaining Sponsor determines that the Retaining Party no longer complies with certain specified provisions of the Credit Risk Retention Rules, it will be required to send written notice of such

197

non-compliance to the Certificate Administrator, who shall post such notice on its website under the “U.S. Risk Retention Special Notices” tab.

In connection with providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 8.14(b), the Certificate Administrator shall require: (a) in the case of Certificateholders, an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein or a licensed or registered investment advisor acting on behalf of such purchaser, an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential.

Except as otherwise provided in this Agreement and subject to Section 6.3(a), the Certificate Administrator shall not be liable for providing or disseminating information in accordance with the terms of this Agreement. The Certificate Administrator shall not be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 8.14(b) unless such information was produced by the Certificate Administrator. The Certificate Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information solely by virtue of its receipt and posting of information to the Certificate Administrator’s Website, unless the Certificate Administrator is the original source of such information. The obligations of the Certificate Administrator to provide access to those certain documents, information and other items described in this Section 8.14 shall extend only to those such documents, information and other items actually in possession of the Certificate Administrator. The Certificate Administrator may deny any of the foregoing Privileged Persons access to confidential information with respect to which the Certificate Administrator is restricted from disclosing by applicable law.

(c)       The Servicer and the Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also make available through its website or otherwise, any CREFC^® Reports and any additional information relating to the Mortgage Loan, the Companion Loans, the Property or the Borrower, for review by any Privileged Person, and subject to Section 12.17 and Section 12.18, the Rating Agencies, in each case except to the extent doing so is prohibited by this Agreement, the Intercreditor Agreement, applicable law or by the Loan Documents. Each of the Servicer and Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor and the Certificate Administrator, enter into an Investor Certification or other confidentiality agreement acceptable to the Servicer or Special Servicer, as the case may be, and (B) acknowledge that the Servicer or the Special Servicer may contemporaneously provide such information to any other Privileged Person. In addition, to the extent access to such information is provided via the Servicer’s or the Special Servicer’s website, the Servicer and the Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer

198

and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the items described in this Section 8.14(c) to current and prospective Certificateholders the form of confidentiality agreement used by the Servicer or the Special Servicer, as applicable, shall require: (a) in the case of a Certificateholder or a licensed or registered investment advisor acting on behalf of such Certificateholder, an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of Certificates or interests therein or a licensed or registered investment advisor acting on behalf of such prospective purchaser, an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential.

Except as otherwise provided in this Agreement and subject to Section 6.3(a), none of the Trustee, the Servicer or the Special Servicer shall be liable for the dissemination of information in accordance with this Agreement. None of the Trustee, the Certificate Administrator, the Servicer or the Special Servicer shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 8.14(c) unless such information was produced by the Trustee, the Certificate Administrator, the Servicer or the Special Servicer, as applicable.

9.       Certain matters relating to the controlling class representative AND THE RISK RETENTION CONSULTATION PARTY

9.1.       Selection and Removal of the Controlling Class Representative.

(a)       The Majority Controlling Class Certificateholders may elect the Controlling Class Representative.

(b)       The Controlling Class Representative shall be the representative selected by the Majority Controlling Class Certificateholders; provided that (A) if a majority of the Controlling Class, by Certificate Balance in the aggregate, is not directly or indirectly held by the Guarantor, the Sponsor, the Property Manager, an Affiliate of the Guarantor, the Sponsor or the Property Manager, or the Borrower or Borrower Party or any agent of the foregoing, then (i) absent such selection, (ii) until a Controlling Class Representative is so selected and is identified (with contact information) to the Servicer, the Special Servicer, the Certificate Administrator and the Trustee, or (iii) upon receipt by the Servicer, the Special Servicer, the Certificate Administrator and the Trustee of notice from the Majority Controlling Class Certificateholders that a Controlling Class Representative is no longer so designated, the Controlling Class Certificateholder that owns, and is identified (with contact information) to the Servicer, the Special Servicer, the Certificate Administrator and the Trustee as owning, the largest aggregate Certificate Balance of Certificates of the Controlling Class and represents that it is not the Guarantor, the Property Manager, the Sponsor, an Affiliate of any of the foregoing,

199

the Borrower, a Borrower Party, or any agent of any of the foregoing shall be the Controlling Class Representative, and (B) if a majority of the Controlling Class by Certificate Balance in the aggregate, is directly or indirectly held by the Guarantor, the Sponsor, the Property Manager, an Affiliate of the Guarantor, Sponsor or Property Manager, or the Borrower or Borrower Party or any agent of the foregoing, then there shall be no Controlling Class Representative and a Subordinate Control Period and a Subordinate Consultation Period shall be deemed not to be in effect such that no Holder of the Controlling Class shall have any consent or consultation rights with respect to Major Decisions or any other matter under this Agreement. Each Holder of the Certificates of the Controlling Class shall be entitled to vote in each election of the Controlling Class Representative; provided that, for the avoidance of doubt, the Controlling Class Representative cannot be the Property Manager, the Guarantor, the Sponsor, an Affiliate of any of the foregoing, the Borrower, a Borrower Party, or an agent of any of the foregoing.

(c)       The Majority Controlling Class Certificateholders shall give written notice (which shall be required to include a statement that each Majority Controlling Class Certificateholder and the Controlling Class Representative is not the Property Manager, the Guarantor, the Sponsor, an Affiliate of any of the foregoing, the Borrower, a Borrower Party, or an agent of any of the foregoing) to the Servicer, the Special Servicer, the Certificate Administrator and the Trustee of the appointment of any initial and any subsequent Controlling Class Representative (in order to receive notices hereunder).

Prior to being recognized as the Controlling Class Representative, the initial Controlling Class Representative shall execute and deliver a certification substantially in the form of Exhibit K-3 to this Agreement certifying that it, and each of the Majority Controlling Class Certificateholders that appointed such Controlling Class Representative, is not the Guarantor, the Sponsor, the Property Manager, an affiliate of any of the Guarantor, the Sponsor or the Property Manager, or the Borrower or a Borrower Party. Upon the resignation or removal of the existing Controlling Class Representative, any successor Controlling Class Representative shall also deliver a certification substantially in the form of Exhibit K-3 to this Agreement prior to being recognized as the new Controlling Class Representative.

The Certificate Administrator, the Servicer and the Special Servicer shall not be charged with knowledge of any affiliation of the Controlling Class Certificateholder or a majority of the Controlling Class by Certificate Balance with a Borrower Party unless and until it shall have received notice of such affiliation from the Controlling Class Certificateholder or a majority of the Controlling Class Certificateholders by Certificate Balance substantially in the form of Exhibit W, upon which each party hereto may conclusively rely.

(d)       The Controlling Class Representative may be removed at any time by the written vote of the Majority Controlling Class Certificateholders, with or without cause, and a copy of the results of such vote must be delivered to the Trustee, the Certificate Administrator, the Servicer and the Special Servicer.

(e)       Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator in writing of the transfer of any Certificate of the Controlling Class, the selection of a Controlling Class Representative or the

200

resignation or removal thereof. Any Certificateholder or its designee at any time is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the Certificate Administrator in writing when such Certificateholder or its designee is appointed Controlling Class Representative and when it is removed or resigns or if it becomes the Property Manager, the Guarantor, the Sponsor, an Affiliate of any of the foregoing, the Borrower, a Borrower Party, or an agent of any of the foregoing. Upon receipt of such notice, the Certificate Administrator shall forward such notice to the Special Servicer and the Servicer, indicating the identity of the Controlling Class Representative and any resignation or removal thereof or if such Person has become the Property Manager, the Guarantor, the Sponsor, an Affiliate of any of the foregoing, the Borrower, a Borrower Party, or an agent of any of the foregoing. In addition, upon the request of the Servicer, the Special Servicer, the Certificate Administrator or the Trustee shall provide the name of the then-current Controlling Class and a list of the Certificateholders (or Beneficial Owners, if applicable, at the expense of the requesting party) of the Controlling Class to such requesting party.

(f)       Once a Controlling Class Representative has been selected, each of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless the Majority Controlling Class Certificateholders shall have notified each other party to this Agreement and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Controlling Class Representative or the selection of a new Controlling Class Representative.

(g)       Until it receives written notice to the contrary, each party to this Agreement shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the Controlling Class Representative and the Risk Retention Consultation Party and any such party’s status as the Property Manager, the Guarantor, the Sponsor, an affiliate of the foregoing, the Borrower, a Borrower Party, or any agent of the foregoing.

(h)       The Controlling Class Representative shall be responsible for its own expenses.

9.2.       Limitation on Liability of Controlling Class Representative; Acknowledgements of the Certificateholders.

(a)       The Controlling Class Representative will have no liability to the Trust or Certificateholders for having acted in accordance with or as permitted by this Agreement.

(b)       Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Controlling Class Representative and/or any Controlling Class Certificateholder may each have special relationships and interests that conflict with those of Holders of one or more other Classes of Certificates; (ii) the Controlling Class Representative and/or any Controlling Class Certificateholder may act solely in the interests of the Controlling Class; (iii) the Controlling Class Representative and the Controlling Class Certificateholders do not have any duties to the Trust or to the Holders of any Class of Certificates; (iv) the Controlling Class Representative and/or any Controlling Class Certificateholder may take actions

201

that favor interests of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates; (v) neither the Controlling Class Representative nor any Controlling Class Certificateholder shall have any liability whatsoever to the Trust, the other parties to this Agreement, the Certificateholders or any other Person for having acted in accordance with or as permitted under the terms of this Agreement; and (vi) the Holders of the Certificates may not take any action whatsoever against the Controlling Class Representative or any Controlling Class Certificateholder or any of their respective affiliates, directors, officers, shareholders, members, partners, agents or principals as a result of the Controlling Class Representative or the Controlling Class Certificateholders having acted in accordance with the terms of and as permitted under this Agreement.

9.3.       Rights and Powers of the Controlling Class Representative.

(a)       Notwithstanding anything herein to the contrary, (i) the Servicer shall not take any action constituting a Major Decision unless it has obtained the consent of the Special Servicer (which approval shall be deemed given if the Special Servicer does not object within five (5) Business Days (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) days) of receipt of the Servicer’s written analysis and recommendation together with any information in the possession of the Servicer that is reasonably required to make a decision regarding the subject action) and (ii) during any Subordinate Control Period, the Special Servicer shall not consent to the Servicer’s taking any action constituting a Major Decision, nor shall the Special Servicer itself take any such action, as to which the Controlling Class Representative has objected in writing within five (5) Business Days (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) days) after receipt of the written recommendation and analysis from the Special Servicer, together with any information in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the subject action (provided that if such written objection has not been received by the Special Servicer within such five (5) Business Day (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) day) period, then the Controlling Class Representative shall be deemed to have approved such action); provided, that if the Special Servicer or the Servicer (if the Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of, or consultation with, the Controlling Class Representative during any Subordinate Control Period, is necessary to protect the interests of the Certificateholders, the Special Servicer or Servicer, as applicable, may take any such action without waiting for a response from the Controlling Class Representative (during any Subordinate Control Period) or Special Servicer, as applicable; provided, further, that the Special Servicer shall consult, solely on a non-binding basis (and consider alternative actions recommended by each such party), during any Subordinate Consultation Period, with the Controlling Class Representative with respect to any Major Decision.

(b)       In addition, during any Subordinate Control Period, subject to this Section 9.3(b) and the immediately following paragraph, the Controlling Class Representative may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Class Representative may deem advisable. Notwithstanding anything herein to the contrary, the Special Servicer shall not follow any advice, direction or consultation provided by the Controlling Class Representative that would

202

require or cause the Special Servicer to violate any provision of the Loan Documents, applicable law or this Agreement, including without limitation the Special Servicer’s obligation to act in accordance with Accepted Servicing Practices, or expose any Certificateholder, the Trust, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or their affiliates, officers, directors or agents to any claim, suit or liability, result in the imposition of a tax upon the Trust, cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code or materially expand the scope of the Servicer’s or Special Servicer’s responsibilities hereunder. Furthermore, in addition to the rights of consent and consultation (as applicable) of the Controlling Class Representative as set forth in Section 9.3(a) above, it is understood and agreed that to the extent any other provision of this Agreement requires the provision of notice to, the obtaining of consent of, and/or consultation with, the Controlling Class Representative or otherwise provides for any right of the Controlling Class Representative thereunder, then none of the Trustee, the Certificate Administrator, the Servicer or the Special Servicer shall be entitled to take any action (or omit to take any action) in contravention of the applicable rights of the Controlling Class Representative contained in such provision; provided, that this sentence is not intended to in any way (i) expand the rights of the Controlling Class Representative, (ii) limit the application of the immediately preceding sentence, (iii) remove any limitations on the exercise of such rights set forth in such other provisions, or (iv) require the Certificate Administrator, the Servicer and/or the Special Servicer to send a notice to, obtain the consent of, or consult with a new Controlling Class Representative whose name and contact information have not yet been provided to the Certificate Administrator, the Servicer and/or the Special Servicer; and provided, further, that if such other provisions are in any way subject to this Section 9.3, then the exercise of such rights shall be subject to this Section 9.3(b) and the immediately following paragraph.

(c)       If the Special Servicer or Servicer, as applicable, determines that a refusal to consent by the Controlling Class Representative or any direction or advice from the Controlling Class Representative or the Risk Retention Consultation Party would otherwise cause the Special Servicer or the Servicer, as applicable, to violate the terms of the Loan Documents, applicable law, provisions of the Code (resulting in the imposition of federal income tax on the Trust or causing either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code) or this Agreement, including without limitation, Accepted Servicing Practices or materially expand the scope of the Servicer’s or Special Servicer’s responsibilities under this Agreement, the Special Servicer or Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Controlling Class Representative or the Risk Retention Consultation Party, respectively, the Certificate Administrator and the 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Servicer or Special Servicer in accordance with the direction of or approval of the Controlling Class Representative or the Risk Retention Consultation Party that does not violate the Loan Documents, any applicable law, provisions of the Code (resulting in the imposition of federal income tax on the Trust or causing either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code) or violate Accepted Servicing Practices or any other provisions of this Agreement, shall not result in any liability on the part of the Servicer or the Special Servicer.

203

(d)       At any time other than during a Subordinate Control Period or a Subordinate Consultation Period, the Controlling Class Representative shall have no consultation rights under this Agreement and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Controlling Class Representative; provided, that the Controlling Class Representative (if and to the extent that it is a Certificateholder) will maintain the right to exercise its Voting Rights for the same purposes as any other Certificateholder under this Agreement.

(e)       [Reserved].

(f)       In the event that no Controlling Class Representative has been appointed or identified to the Servicer or the Special Servicer, as applicable, and the Servicer or the Special Servicer, as applicable, has attempted to obtain such information from the Certificate Administrator and no such entity has been identified to the Servicer or the Special Servicer, as applicable, then until such time as the new Controlling Class Representative is identified, the Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Controlling Class Representative.

(g)       With respect to any action requiring Controlling Class Representative consent or consultation under this Agreement, where a time period is not otherwise specified, such consent shall be deemed given (or consultation deemed completed) if the Controlling Class Representative does not respond to the applicable request for consent or consultation within 5 Business Days (or 30 days with respect to an Acceptable Insurance Default).

(h)       The Certificate Administrator shall notify the Servicer and the Special Servicer within ten (10) Business Days of the existence or cessation of any Subordinate Consultation Period or Subordinate Control Period and the Servicer and the Special Servicer shall be entitled to conclusively rely on such notice. Upon the Certificate Administrator’s determination that a Subordinate Consultation Period or Subordinate Control Period has occurred or is terminated, the Certificate Administrator shall, within ten (10) Business Days, post a “special notice” on the Certificate Administrator’s Website.

9.4.       Controlling Class Representative Contact with Servicer and Special Servicer.

(a)       Upon reasonable request, each of the Servicer and the Special Servicer shall, without charge, make a Servicing Officer available to answer questions from the Controlling Class Representative (during any Subordinate Control Period and any Subordinate Consultation Period) regarding the performance and servicing of the Mortgage Loan (or, in the case of the Special Servicer, the Special Servicer’s operational activities on a platform level basis related to the servicing of the Mortgage Loan after a Special Servicing Loan Event and the servicing of any Foreclosed Property) for which the Servicer or the Special Servicer, as the case may be, is responsible.

(b)       Notwithstanding any provision of this Agreement to the contrary, the failure of the Servicer or the Special Servicer to disclose any information otherwise required to

204

be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement if the Servicer or the Special Servicer, as applicable, determines, in its reasonable and good faith judgment and consistent with Accepted Servicing Practices, that such disclosure would constitute a waiver of the attorney-client privilege on behalf of the Trust or otherwise materially harm the Trust or the Trust Fund.

9.5.       The Risk Retention Consultation Party.

(a)       If the Mortgage Loan becomes a Specially Serviced Mortgage Loan, the Special Servicer shall consult, solely on a non-binding basis with the Risk Retention Consultation Party (and consider alternative actions recommended by such party) with respect to the same matters as to which the Special Servicer is required to consult with the Controlling Class Representative as set forth in Section 9.3 (as if a Subordinate Consultation Period were in effect) and in the same manner as set forth in Section 9.3 with respect to the consultation rights of the Controlling Class Representative during a Subordinate Consultation Period. In the event the Special Servicer receives no response from a Risk Retention Consultation Party within 10 calendar days following the later of (i) the Special Servicer’s written request for input on any requested consultation and (ii) delivery of all such additional information reasonably requested by such Risk Retention Consultation Party related to the subject matter of such consultation and in the Special Servicer’s possession, the Special Servicer shall not be obligated to consult with such Risk Retention Consultation Party solely with respect to the specific matter. For the avoidance of doubt, there is no Controlling Class Representative with respect to the Trust, but for the purposes of determining the Risk Retention Party’s rights and obligations under this Agreement, this Agreement shall be read as if there were a Controlling Class Representative with respect to the Trust and such Controlling Class Representative is not a Borrower or a Borrower Party.

(b)       If the Risk Retention Consultation Party is, or a majority of the RR Interest (by Certificate Balance) is directly or indirectly held by, a Guarantor, the Sponsor, the Property Manager, an affiliate of any Guarantor, the Sponsor or the Property Manager, or the Borrower or a Borrower Party, then (i) the Special Servicer shall have no obligation to consult with such Risk Retention Consultation Party, (ii) such Risk Retention Consultation Party shall have none of the consultation rights set forth above in subsection (a) and (iii) such Risk Retention Consultation Party shall certify that it shall forego access to any information with respect to the Whole Loan and the Property for so long as it (or the majority owner of the RR Interest (by Certificate Balance)) remains directly or indirectly held by the applicable party or parties listed above.

(c)       On the Closing Date, the initial Risk Retention Consultation Party shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit K-4 to this Agreement. Upon the resignation or removal of the existing Risk Retention Consultation Party, any successor Risk Retention Consultation Party shall also deliver to the parties to this Agreement a certification substantially in the form of Exhibit K-4 to this Agreement prior to being recognized as the new Risk Retention Consultation Party. The parties to this Agreement shall be entitled to assume that the identity of the Risk Retention Consultation Party has not changed until such time as a successor Risk Retention Consultation Party delivers a certification substantially in the form of Exhibit K-4 to this Agreement.

205

Notwithstanding anything herein to the contrary, if the Servicer or Special Servicer determines that immediate action with respect to any action requiring the consent of the Risk Retention Consultation Party is necessary to protect the interest of the Certificateholders, the Servicer or Special Servicer may take such action without waiting for a response.

(d)       The Risk Retention Consultation Party will have no liability to the Trust or Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, that this provision shall not protect the Risk Retention Consultation Party against any liability to the Holders of the RR Interest that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in the performance of its duties or by reason of reckless disregard of its obligations and duties owed to the Holders of the RR Interest.

(e)       Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Risk Retention Consultation Party may act solely in the interests of the Holders of the RR Interest; (iii) the Risk Retention Consultation Party does not have any liability or duties to the Holders of any Class of Certificates other than the RR Interest; (iv) the Risk Retention Consultation Party may take actions that favor interests of the Holders of one or more Classes including the RR Interest over the interests of the Holders of one or more other Classes of Certificates; and (v) the Risk Retention Consultation Party shall have no liability whatsoever (other than to a Holder of the RR Interest) for having so acted as set forth in clauses (i) through (iv) above, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal of the Risk Retention Consultation Party for having so acted.

10.       EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

10.1.       Intent of the Parties; Reasonableness. Except with respect to Section 10.8, Section 10.9 and Section 10.10, the parties hereto acknowledge and agree that the purpose of this Article 10 is to facilitate compliance by any Other Depositor subject to Exchange Act reporting requirements with the provisions of Regulation AB and related rules and regulations of the Commission. Neither the Depositor nor the Certificate Administrator shall, and no Other Depositor or Other Certificate Administrator may, exercise its right to request delivery of information or other performance under these provisions other than in reasonable good faith, or (except with respect to Section 10.8, Section 10.9 or Section 10.10) for purposes other than compliance with the Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, or otherwise, and agree to comply with reasonable requests made by the Depositor, the Certificate Administrator, any Other Depositor or any Other Certificate Administrator in good faith for delivery of information under these provisions on the basis of such evolving interpretations of the requirements of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered” and do not mandate compliance). In connection with the Morgan Stanley Capital I Trust 2021-PLZA transaction, each of the parties to this Agreement shall cooperate fully with the Depositor, the Certificate Administrator, any Other Depositor and any Other Certificate Administrator, as

206

applicable, to deliver or make available to any such party (including any of their assignees or designees), any and all statements, reports, certifications, records and any other information in its possession and necessary in the reasonable good faith determination of such party to permit any Other Depositor to comply with the provisions of Regulation AB, together with such disclosure relating to the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Whole Loan, reasonably believed by the Depositor, the Certificate Administrator, an Other Depositor or an Other Certificate Administrator, as applicable, to be necessary in order to effect such compliance. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 10.1, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor, the Certificate Administrator, any Other Depositor or any Other Certificate Administrator, as applicable, to satisfy any related filing requirements. For purposes of this Article 10, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.

10.2.       Information to be Provided by the Servicer, the Special Servicer, any Primary Servicer and the Certificate Administrator. (a) For so long as an Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall (and each of the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, as applicable, shall cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship with respect to the Whole Loan after the Closing Date, to) (i) notify each Other Depositor in writing of (A) any litigation or governmental proceedings of the type described in Item 1117 of Regulation AB pending against such party, or with respect to any of its property, that, in each such case, would be material to Certificateholders and (B) any affiliations of the type described in Item 1119 of Regulation AB or relationships of the type described in Item 1119 of Regulation AB that develop following the Closing Date between the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator (or, if applicable, any Sub-Servicer) (and any other parties identified in writing by the requesting party), on the one hand, and any other such party on the other, as the case may be, as such affiliation or relationship relates to any Other Securitization Trust, and (ii) provide to each Other Depositor a description of such legal proceedings, affiliations or relationships, in each case, in a form that would enable such Other Depositor to satisfy its reporting obligations under Item 1117 or 1119 of Regulation AB, as applicable.

(b)       In connection with the succession to the Servicer, the Special Servicer, any Additional Servicer, any Sub-Servicer, the Certificate Administrator, the Custodian or the Trustee as servicer or trustee under this Agreement by any Person (i) into which the Servicer, the Special Servicer, any Additional Servicer, any Sub-Servicer, the Certificate Administrator, the Custodian or the Trustee, as the case may be, may be merged or consolidated, or (ii) which may be appointed as a successor to the Servicer, the Special Servicer, any Additional Servicer, any Sub-Servicer, the Certificate Administrator, the Custodian or the Trustee, as the case may be, the person removing and replacing the Servicer, the Special Servicer, any Additional Servicer, any Sub-Servicer, the Certificate Administrator, the Custodian or the Trustee, as the case may be, shall (and each of the Servicer, the Special Servicer, the Certificate Administrator, the Custodian

207

or the Trustee, as applicable, shall cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to) provide to each Other Depositor, at least fifteen (15) calendar days prior to the effective date of such succession or appointment, as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, otherwise no later than the first Business Day after the effective date of such succession or appointment, (x) written notice to each Other Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to each Other Depositor, all information relating to such successor reasonably requested by any Other Depositor so that it may comply with its reporting obligation under Item 6.02 of Form 8-K as it relates to the Servicing Function with respect to any class of certificates related to an Other Securitization Trust.

(c)       With respect to any Companion Loan that is deposited into an Other Securitization Trust, the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, to the extent the out-of-pocket cost thereof (including any reasonable attorney fees) is paid or caused to be paid by the applicable party set forth below in this Section 10.2(c), take all actions reasonably requested of it to enable such Other Securitization Trust to comply with Regulation AB. For the avoidance of doubt and without limiting the foregoing, the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator shall, if requested by an Other Depositor, provide disclosure (in substantially the same form as the disclosure provided by it in the Offering Circular, to the extent reasonably necessary to comply with Regulation AB) regarding such party as reasonably and in good faith determined by an Other Depositor to be required by Regulation AB for inclusion in disclosure documents with respect to such Other Securitization Trust, together with an opinion of counsel as to the compliance of such disclosure with the requirements of Regulation AB and indemnification substantially similar to that provided in connection with the offering of the Certificates regarding damages incurred in connection with the non-compliance with the requirements of Regulation AB relating to the disclosure referred to in this sentence.

The out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to this Section 10.2(c) shall be paid or caused to be paid (pursuant to a payment arrangement reasonably acceptable to the delivering party and the receiving party) by the Mortgage Loan Seller if it transferred a Companion Loan to the related Other Depositor for inclusion in such Other Securitization Trust; provided, that if any such information is provided in connection with the termination, removal, resignation or any other replacement of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator under this Agreement, the out-of-pocket cost of the information, opinion(s) of counsel, certifications and indemnification agreement(s) provided by or on behalf of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, pursuant to this Section 10.2(c) shall be paid or caused to be paid by the same party or parties required to pay the costs and expenses relating to such termination, removal, resignation or other replacement pursuant to this Agreement.

(d)       If any Person appointed as a subcontractor or agent of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator (whether appointed

208

directly by such party or by a Sub-Servicer or subcontractor or agent) would be a Servicing Function Participant, the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator, as the case may be, shall promptly following request provide to each Other Depositor and Other Certificate Administrator a written description (in form and substance satisfactory to each Other Depositor) of the role and function of such Person, which description shall include (i) the identity of such subcontractor, and (ii) which elements of the Servicing Criteria will be addressed in the assessments of compliance to be provided by such subcontractor or agent. In addition, if any Sub-Servicer, or any subcontractor or agent described above, would be a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, the engagement of such Person in such capacity shall not be effective unless and until five (5) Business Days have elapsed following the delivery of notice of the proposed engagement and the related agreement to each Other Depositor and Other Certificate Administrator. Such notice shall contain all information reasonably necessary, and in such form as may be necessary, to enable each Other Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant the related Other Pooling and Servicing Agreement (if such reports under the Exchange Act are required to be filed under the Exchange Act).

(e)       Each of the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall (i) terminate, in accordance with the related sub-servicing agreement, any Sub-Servicer with which it has entered into such sub-servicing agreement, if such Sub-Servicer is in breach of any of its obligations under such sub-servicing agreement whose purpose is to facilitate compliance by any Other Depositor with the reporting requirements of the Exchange Act or with the provisions of Regulation AB and the related rules and regulations of the Commission; and (ii) cause each such sub-servicing agreement to entitle the Depositor or any Other Depositor to terminate such sub-servicing agreement upon any such breach without the consent of any other Person. The Depositor and each Other Depositor are hereby authorized to exercise the rights described in the preceding clause (ii) in its sole discretion.

10.3.       Filing Obligations. The Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer shall (and the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee and each Sub-Servicer, as applicable, shall cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to) reasonably cooperate with each Other Depositor in connection with the satisfaction of the related Other Securitization Trust’s reporting requirements under the Exchange Act.

10.4.       Form 10-D Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date, each Person identified on Exhibit O shall provide (or, with respect to any such Person identified on Exhibit O that is not a party to this Agreement, the applicable party to this Agreement that engaged such party shall cause such party to provide) to each Other Depositor and Other Certificate Administrator (a) to the extent known by a Servicing Officer or Responsible Officer, as applicable, of such Person, the form and substance of any Additional Form 10-D Disclosure as set forth on Exhibit O, if applicable, and in a form readily convertible

209

to an EDGAR-compatible format (to the extent available to such party in such format), or in such other form as otherwise agreed by the related Other Depositor, the related Other Certificate Administrator and such party; provided, that information relating to any REO Account to be reported under Item 8: Other Information on Exhibit O shall be reported by the Special Servicer to the Servicer within four (4) calendar days after the related Distribution Date, and (b) an Additional Disclosure Notification. The Certificate Administrator shall provide prompt notice to each Other Depositor to the extent the Certificate Administrator is notified of an event reportable on Form 10-D for which it has not received the necessary Additional Form 10-D Disclosure from such party. The Certificate Administrator shall have no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit O (other than itself and any such party engaged by it) of their duties under this paragraph or proactively solicit or procure from any such parties any Additional Form 10-D Disclosure information.

10.5.       Form 10-K Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, no later than March 1 of each year subsequent to the fiscal year that such Other Securitization Trust is subject to the Exchange Act reporting requirements, commencing in 2022, each Person identified on Exhibit P shall provide (or, with respect to any such Person identified on Exhibit P that is not a party to this Agreement, the applicable party to this Agreement that engaged such party shall cause such party to provide) to each Other Depositor and Other Certificate Administrator (a) to the extent known by a Servicing Officer or Responsible Officer, as applicable, of such Person, the form and substance of the corresponding Additional Form 10-K Disclosure as set forth on Exhibit P, if applicable, and in a form that is readily convertible to an EDGAR-compatible form (to the extent available to such party in such format), or in such other form as otherwise agreed by the related Other Depositor, the related Other Certificate Administrator and such party, and (b) an Additional Disclosure Notification. The Certificate Administrator shall, at any time prior to filing the related Form 10-K, provide prompt notice to each Other Depositor to the extent the Certificate Administrator is notified of an event reportable on Form 10-K for which it has not received the necessary Additional Form 10-K Disclosure from such party. The Certificate Administrator shall have no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit P (other than itself and any such party engaged by it) of their duties under this paragraph or to proactively solicit or procure from such parties any Additional Form 10-K Disclosure information.

10.6.       Sarbanes-Oxley Certification. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each Reporting Servicer shall provide, and each Reporting Servicer shall cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan to provide, to each Other Depositor (addressed to the Person who signs the Sarbanes-Oxley Certification with respect to the related Other Securitization Trust) a performance certification in the form attached as Exhibit S on March 1 (with no grace period) of each year subsequent to the fiscal year in which the related Other Securitization Trust is subject to the reporting requirements of the Exchange Act, upon which such certifying person, the entity for which the certifying person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the certifying person and the Other Depositor, the “Certification Parties”) can reasonably rely. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing

210

agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a performance certification and a reliance certificate to the certifying person pursuant to this Section 10.6 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be.

Each such performance certification shall include a reasonable reliance provision enabling the related Certification Parties to rely upon each (i) annual compliance statement (as applicable) provided pursuant to Section 10.8, (ii) annual report on assessment of compliance with Servicing Criteria provided pursuant to Section 10.9 and (iii) registered public accounting firm attestation report provided pursuant to Section 10.10 and shall include a certification that each such annual report on assessment of compliance discloses any material instances of noncompliance described to the registered public accountants of such Reporting Servicer to enable such accountants to render the attestation provided for in Section 10.10.

10.7.       Form 8-K Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, no later than close of business (New York City time) on the second (2^nd) Business Day after the occurrence of an event requiring disclosure under Form 8-K (each, a “Reportable Event”) the applicable Person identified on such Exhibit Q shall provide (or, with respect to any such Person identified on Exhibit Q that is not a party to this Agreement, the applicable party to this Agreement that engaged such party shall cause such party to provide) to each Other Depositor and Other Certificate Administrator (a) to the extent known by a Servicing Officer or Responsible Officer, as applicable, of such Person, the form and substance of the corresponding Form 8-K Disclosure Information as set forth on Exhibit Q, if applicable, and in a form that is readily convertible to an EDGAR-compatible format (to the extent available to such party in such format), or in such other form as otherwise agreed by the related Other Depositor, the related Other Certificate Administrator and such party, and (b) an Additional Disclosure Notification.

10.8.       Annual Compliance Statements. The Servicer, the Special Servicer and, only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Custodian, and, if it has made an Advance during the applicable calendar year, the Trustee (each a “Certifying Servicer”; provided, that the Certificate Administrator and the Custodian shall only be Certifying Servicers on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized) shall (and each such party shall cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to) deliver electronically to the Depositor, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website), the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website) and to the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor), on or before March 1 (with no cure period), commencing in March 2022, an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s or Additional Servicer’s, as the case may be, activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s or Additional Servicer’s, as the case may be, performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of

211

such officer’s knowledge, based on such review, such Certifying Servicer or Additional Servicer, as the case may be, has fulfilled all its obligations under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Promptly after receipt of each such Officer’s Certificate, the Depositor and any Other Depositor shall have the right to review such Officer’s Certificate and, if applicable, consult with each Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer in the fulfillment of any of the Certifying Servicer’s obligations hereunder, or any failures by an Additional Servicer retained by such Certifying Servicer in the fulfillment of any of such Additional Servicer’s obligations under the applicable sub-servicing or primary servicing agreement.

10.9.       Annual Reports on Assessment of Compliance with Servicing Criteria. By March 1 of each year (with no cure period), commencing in March 2022, the Servicer, the Special Servicer, the Certificate Administrator (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act), the Custodian (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act) and, if it has made an Advance during the applicable calendar year, the Trustee (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act), each at its own expense, shall furnish electronically (and each of the preceding parties, as applicable, shall cause, by March 1, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to furnish, each at its own expense), to the Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website), the Custodian, the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website) and to the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor), a report on an assessment of compliance with the Applicable Servicing Criteria with respect to commercial mortgage backed securities transactions taken as a whole involving such party that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Applicable Servicing Criteria, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the Applicable Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Applicable Servicing Criteria as of and for the period ending the end of the fiscal year, including, if there has been any material instance of noncompliance with the Applicable Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Applicable Servicing Criteria as of and for such period. Copies of all compliance reports delivered pursuant to this Section 10.9 shall be provided via the Certificate Administrator’s Website to all Privileged Persons by the Certificate Administrator.

212

If any party’s assessment of compliance or the related attestation report identifies any material instance of noncompliance with the Applicable Servicing Criteria, such party will also be required to provide a discussion of (1) the relationship, if any, between the identified instance and the servicing of the Whole Loan and (2) any steps taken to remedy such identified instance to the extent related to its activities with respect to asset-backed securities transactions taken as a whole involving such party and that are backed by the same asset type backing the Certificates.

No later than the earlier of (i) ten (10) Business Days after the end of each fiscal year for the Trust and (ii) ten (10) Business Days after the end of each fiscal year for which any Other Securitization Trust is required to file a Form 10-K, the Servicer, the Special Servicer, and the Trustee (if applicable) shall each forward to the Certificate Administrator, the Depositor, the Mortgage Loan Seller, the Companion Loan Holders, the Other Depositor and the Other Certificate Administrator, and the Certificate Administrator and the Depositor shall each forward to the Mortgage Loan Seller, the Other Depositor and the Other Certificate Administrator, the name and address of each Additional Servicer and each Servicing Function Participant engaged by it and (other than with respect to a notice to the Mortgage Loan Seller) what Applicable Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Additional Servicer or Servicing Function Participant. When the Servicer, the Special Servicer, the Trustee (if applicable) and each Sub-Servicer submit their respective assessments by March 1, as set forth in the preceding paragraph, each such party shall also at such time include, in its submission the assessment (and attestation pursuant to Section 10.10) of each Servicing Function Participant engaged by it. Not later than the end of each fiscal year for which any Other Securitization Trust is required to file a Form 10-K and upon written request, the Certificate Administrator shall provide to the Mortgage Loan Seller written notice of any change in the identity of any party to this Agreement, including the name and address of any new party to this Agreement.

Promptly after receipt of each such report on assessment of compliance, (i) the Depositor and any Other Depositor shall have the right to review each such report and, if applicable, consult with the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee (if applicable) and any Servicing Function Participant as to the nature of any material instance of noncompliance with the Applicable Servicing Criteria by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee (if applicable) or any Servicing Function Participant, respectively, and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Applicable Servicing Criteria for each party as set forth on Exhibit L and notify the Depositor and each Other Depositor of any exceptions. If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide the reports and statements pursuant to this Section 10.9 (coupled with an attestation statement pursuant to Section 10.10) with respect to the period of time it was subject to this Agreement or the applicable sub-servicing agreement or primary servicing agreement, as the case may be. The parties hereto acknowledge that a material instance of noncompliance with the Applicable Servicing Criteria reported on an assessment of compliance pursuant to this Section 10.9 by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee shall not, as a result of being so reported, in and of

213

itself, constitute a breach of such parties’ obligations, as applicable, under this Agreement unless otherwise provided for in this Agreement.

10.10.       Annual Independent Public Accountants’ Servicing Report. By March 1 of each year (with no cure period), commencing in March 2022, the Servicer, the Special Servicer, the Certificate Administrator (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act), the Custodian (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act) and, if it has made an Advance during the applicable calendar year, the Trustee (on and after the date on which such party receives written notice that a Companion Loan (or any portion thereof) is securitized and only for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act), each at its own expense, shall cause (and each of the preceding parties, shall cause, by March 1, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to cause, each at its own expense) a registered public accounting firm (which may also render other services to the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, such Sub-Servicer or such other Servicing Function Participant, as the case may be) that is a member of the American Institute of Certified Public Accountants to furnish electronically a report to the Depositor, the Trustee, the Certificate Administrator (who shall promptly upon receipt post it to the Certificate Administrator’s Website), the Custodian, the 17g-5 Information Provider (who shall promptly post it to the 17g-5 Information Provider’s Website) and to the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor), to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assessment from such Reporting Servicer of its compliance with the Applicable Servicing Criteria, and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such Reporting Servicer’s compliance with the Applicable Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such Reporting Servicer’s assessment of compliance with the Applicable Servicing Criteria. If an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each accountant’s attestation report required hereunder shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. Copies of all statements delivered pursuant to this Section 10.10 shall be made available to any Privileged Person by the Certificate Administrator posting such statement to the Certificate Administrator’s Website pursuant to Section 8.14(b).

Promptly after receipt of such report from the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee (if applicable) (or any Sub-Servicer or Servicing Function Participant with which the Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee (if applicable) has entered into a servicing relationship after the Closing Date with respect to the Whole Loan (other than a party to this

214

Agreement)), (i) the Depositor and each Other Depositor shall have the right to review the report and, if applicable, consult with the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee (if applicable), any Sub-Servicer or any such Servicing Function Participant as to the nature of any material instance of noncompliance by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee or any such Servicing Function Participant with the Servicing Criteria applicable to such Person, and (ii) the Certificate Administrator shall confirm that each assessment submitted pursuant to Section 10.9 is coupled with an attestation meeting the requirements of this Section and notify the Depositor and each Other Depositor of any exceptions.

10.11.       Indemnification. Each of the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator (each an “Indemnifying Party”) shall indemnify and hold harmless each Certification Party, their respective directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act (each a “Certification Indemnitee”), against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon: (i) a failure of the information provided by such Indemnifying Party pursuant to Section 10.2(c) to comply with the requirements of the items of Regulation AB applicable to such Indemnifying Party; (ii) the failure of any Indemnifying Party to perform its obligations under this Article 10; (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it to perform its obligations to the Depositor, the Certificate Administrator, any Other Depositor or any Other Certificate Administrator under this Article 10 by the time required after giving effect to any applicable grace period and cure period; (iv) any untrue statement or alleged untrue statement of a material fact contained in any information (x) regarding the Indemnifying Party or any Servicing Function Participant, Additional Servicer or subcontractor engaged by it, (y) prepared by any such party described in clause (x) or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such Indemnifying Party in connection with the performance of such Indemnifying Party’s obligations described in this Article 10, or the omission or alleged omission to state in any such information a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that such Indemnifying Party shall be entitled to participate in any action arising out of the foregoing and the Depositor shall consult with such Indemnifying Party with respect to any litigation or audit strategy, as applicable, in connection with the foregoing and any potential settlement terms related thereto; (v) negligence, bad faith or willful misconduct on the part of the Indemnifying Party in the performance of such obligations; or (vi) any Deficient Exchange Act Deliverable with respect to such Indemnifying Party.

In addition, each of the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall cooperate (and require each Servicing Function Participant and Sub-Servicer retained by it to cooperate under the applicable subservicing agreement) with the Depositor and any Other Depositor as necessary for the Depositor or such Other Depositor to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).

215

In connection with comments provided to the Depositor or any Other Depositor from the Commission regarding information (x) delivered by the Servicer, the Special Servicer, the Certificate Administrator, the Custodian, the Trustee, a Servicing Function Participant or a Sub-Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information, which information is contained in a report (an “ARP Report”) filed by the Depositor or an Other Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s or Other Depositor’s, as applicable, filing of such report, the Depositor or the Other Depositor, as applicable, shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission for inclusion in the Depositor’s or Other Depositor’s, as applicable, response to the Commission, unless such Affected Reporting Party elects, with the consent of the Depositor or Other Depositor, as applicable (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission and negotiate a response and/or resolution with the Commission; provided, that if an Affected Reporting Party is a Servicing Function Participant or Sub-Servicer retained by the Servicer or the Special Servicer, as applicable, the Servicer or the Special Servicer, as applicable, shall require the Servicing Function Participant or Sub-Servicer to provide it with, and the Servicer or the Special Servicer, as applicable, shall be entitled to receive, copies of all material communications pursuant to this paragraph. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission in a timely manner; provided, that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor or Other Depositor, as applicable, informed of its progress with the Commission and copy the Depositor or Other Depositor, as applicable, on all correspondence with the Commission and provide the Depositor or Other Depositor, as applicable, with the opportunity to participate (at the Depositor’s or Other Depositor’s, as applicable, expense) in any telephone conferences and meetings with the Commission and (ii) the Depositor or Other Depositor, as applicable, shall cooperate with such Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission with respect to any comments from the Commission relating to such Affected Reporting Party and to notify the Commission of such authorization. The Depositor or Other Depositor, as applicable, and such Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor or Other Depositor (including reasonable legal fees and expenses of outside counsel to such party) in connection with the circumstances described in the first sentence of this paragraph (other than those costs and expenses required to be at the Depositor’s or Other Depositor’s expense as set forth above) and any amendments to any ARP Reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor or Other Depositor, as applicable. Each of the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall use commercially reasonable efforts to cause any Servicing Function Participant or Sub-Servicer retained by it to comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.

216

The Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan, to indemnify and hold harmless each Certification Party from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual assessment of servicing criteria or attestation reports pursuant to this Agreement, or the applicable sub-servicing or primary servicing agreement, as applicable, (ii) negligence, bad faith or willful misconduct on its part in the performance of such obligations thereunder or (iii) any Deficient Exchange Act Deliverable with respect to such Additional Servicer.

If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the Servicer, the Special Servicer, the Trustee, the Custodian and the Certificate Administrator, each Additional Servicer or other Servicing Function Participant (the “Performing Party”) shall (and the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan (other than a party to this Agreement), to) contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to this Article 10 (or breach of its representations or obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports or otherwise comply with the requirements of this Article 10) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Whole Loan (other than a party to this Agreement), to agree to the foregoing indemnification and contribution obligations.

Promptly after receipt by the Certification Party of notice of the commencement of any action, such Certification Party shall, if a claim in respect thereof is to be made against an Indemnifying Party hereunder, notify in writing the Indemnifying Party of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability which it may have to the Certification Party under this Agreement except to the extent that such omission to notify materially prejudices the Indemnifying Party. In case any such action is brought against the Certification Party, after the Indemnifying Party has been notified of the commencement of such action, such Indemnifying Party shall be entitled to participate therein (at its own expense) and shall be entitled to assume the defense thereof (jointly with any other Indemnifying Party similarly notified) with counsel reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed), and after notice from the Indemnifying Party to the Certification Party of its election to so assume the defense thereof, the Indemnifying Party shall not be liable to the Certification Party for any expenses subsequently incurred in connection with the defense thereof other than reasonable costs of investigation. In

217

any such proceeding, the Certification Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of the Certification Party unless (i) the Indemnifying Party and the Certification Party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties and, in the case of an investigation by the Commission, any parties that are, or whose reporting materials are, the subject of such investigation) include both the Indemnifying Party and the Certification Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the Indemnifying Party fails within a reasonable period of time to designate counsel that is reasonably satisfactory to the Certification Party (which approval shall not be unreasonably withheld or delayed). In no event shall the Indemnifying Parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) in any one jurisdiction separate from their own counsel for the Certification Party in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent. However, if settled with such consent, the Indemnifying Party shall indemnify the Certification Party from and against any loss or liability by reason of such settlement to the extent that the Indemnifying Party is otherwise required to do so under this Agreement. If an Indemnifying Party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the Certification Party (which consent shall not be unreasonably withheld or delayed) or, if such settlement (i) provides for an unconditional release of the Certification Party in connection with all matters relating to the proceeding that have been asserted against the Certification Party in such proceeding by the other parties to such settlement and (ii) does not require an admission of fault by the Certification Party, without the consent of the Certification Party.

In addition, if any Companion Loan is securitized, the Depositor shall be responsible for fees, costs and expenses of the Trustee (to the extent that it is not acting as the Servicer), the Certificate Administrator and the Custodian in connection with such parties providing the information and reports described in Sections 10.4, 10.5, 10.6, 10.7, 10.8, 10.9 and 10.10, in such amounts to be mutually agreed upon by such parties. None of the Trustee, the Certificate Administrator or the Custodian shall be required to provide the information or reports described in Sections 10.4, 10.5, 10.6, 10.7, 10.8, 10.9 and 10.10 until such time as the agreement referred to in the previous sentence is reached.

10.12.       Amendments. This Article 10, Exhibit L, Exhibit O, Exhibit P and Exhibit Q may be amended by the written consent of all of the parties hereto, each affected Other Depositor and, if any such amendment to Exhibit L, Exhibit O, Exhibit P or Exhibit Q adds additional reporting obligations for the Mortgage Loan Seller, with the consent of the Mortgage Loan Seller, pursuant to Section 12.1 (without, in each case, any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement) for purposes of complying with Regulation AB or an Other Securitization Trust’s Exchange Act reporting obligations.

10.13.       Significant Obligors. If an Other Depositor has notified the Servicer in writing that the Property is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB), along with the related Relevant Distribution Date, with respect to the related

218

Other Securitization Trust that includes a Companion Loan, the Servicer shall, if the Servicer is in receipt of (i) the updated financial statements of such “significant obligor” for any calendar quarter (other than the fourth calendar quarter of any calendar year), beginning with the first calendar quarter following receipt of such notice from the Other Depositor, or (ii) the updated financial statements of such “significant obligor” for any calendar year, beginning with the calendar year following such notice from the Other Depositor, deliver to the Other Depositor and Other Trustee, on or prior to the day that occurs two (2) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seven (7) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs twelve (12) or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seventeen (17) or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of such “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as calculated by the Servicer in accordance with CREFC^® guidelines or (B) if such financial statement receipt occurs less than twelve (12) Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than seventeen (17) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of such “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as reported by the related Mortgagor in such financial statement.

If the Servicer does not receive financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten Business Days after the date such financial information is required to be delivered under the related Loan Documents, the Servicer shall notify the Other Depositor with respect to such Other Securitization Trust (or the Servicer shall cause a Sub-Servicer to notify such Other Depositor) that it has not received them. The Servicer shall use efforts consistent with the Accepted Servicing Practices (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements of the Borrower under the related Loan Documents.

The Servicer shall (or shall cause a Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the borrower related to such “significant obligor” to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed by the Other Securitization, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the related Other Depositor and Other Certificate Administrator. This Officer’s Certificate should be addressed to such Other Certificate Administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.

10.14.       Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan. Any other provision of this Article 10 to the contrary notwithstanding, including, without limitation, any deadlines for delivery set forth in this Article 10, in connection with the requirements contained in this Article 10 that provide for the delivery of information and other items to, and the cooperation with, an Other Depositor of any Other Securitization Trust, a party hereunder shall not be obligated to provide any such items to or

219

cooperate with such Other Depositor (i) until the Other Depositor has provided such party hereto with not less than 10 Business Days’ (or such shorter period as required for such Other Depositor to comply with related filing obligations, provided that (a) such Other Depositor has provided written notice as soon as reasonably practicable and, concurrently with such written notice, obtained verbal confirmation of receipt of such written notice, in each case, in accordance with Section 12.5 of this Agreement and (b) such period shall not be less than 3 Business Days) written notice (which shall only be required to be delivered once), except as regards the deliveries and cooperation contemplated by Section 10.8, Section 10.9 and Section 10.10 of this Agreement, written notice that (i) such Other Securitization Trust is subject to Regulation AB and that the Other Securitization Trust is subject to Exchange Act reporting, and (ii) specifying in reasonable detail the information and other items not otherwise specified in this Agreement that are requested to be delivered. Any reasonable cost and expense of the Depositor, Servicer, Special Servicer, Trustee and Certificate Administrator in cooperating with such Other Depositor (above and beyond their expressed duties hereunder) shall be the responsibility of such Other Depositor or Other Securitization Trust. The parties hereto shall have the right to confirm in good faith with such Other Depositor as to whether applicable law requires the delivery of the items identified in this Article 10 to such Other Depositor prior to providing any of the reports or other information required to be delivered under this Article 10 in connection therewith and (i) upon such confirmation, the parties shall comply with the deadlines for delivery set forth in this Article 10 with respect to such Other Securitization Trust or (ii) in the absence of such confirmation, the parties shall not be required to deliver such items; provided that no such confirmation will be required in connection with any delivery of the items contemplated by Section 10.8, Section 10.9 and Section 10.10 of this Agreement. Such confirmation shall be deemed given if the related Other Depositor provides a written statement to the effect that the Other Securitization Trust is subject to the reporting requirements of the Exchange Act and the appropriate party hereto receives such written statement. The parties hereunder shall also have the right to require that such Other Depositor provide them with the contact details of such Other Depositor and any other parties to the related Other Pooling and Servicing Agreement.

11.       Termination.

11.1.       Termination.

(a)       The respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator, the Custodian and the Trustee created hereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties hereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to this Article 11 following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to this Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date hereof.

220

Upon termination of the Trust pursuant to clause (i) of the immediately preceding sentence, the Custodian shall release or cause to be released to the Servicer, at the address provided in Section 12.5 of this Agreement or to such other address designated by it in writing, all or any portion of the Mortgage File remaining in its possession, and the Trustee shall execute and deliver all assignments, endorsements and other instruments furnished to it by the Servicer or Special Servicer, as applicable, as shall be necessary to effectuate the transfer of the Mortgage Loan, any Foreclosed Property and any other collateral for the Mortgage Loan, as applicable.

(b)       On the final Distribution Date, all amounts on deposit in the Collection Account and not otherwise payable to a Person other than the Certificateholders, shall be applied generally as described in Section 4.1.

(c)       Notice of any termination, specifying the final Distribution Date (which shall be a date that would otherwise be a Distribution Date) upon which the Certificateholders of any Class may surrender their Certificates to the Certificate Administrator for payment of the final distribution and cancellation, shall be given promptly by the Certificate Administrator by letter to Certificateholders mailed as soon as practicable specifying (A) the final Distribution Date upon which final payment of the Certificates shall be made upon presentation and surrender of Certificates at the office or agency of the Certificate Administrator therein designated, (B) the amount of any such final payment and (C) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Certificates at the office or agency of the Certificate Administrator therein specified.

11.2.       Additional Termination Requirements.

In connection with any termination pursuant to Section 11.1 other than final payment on the Mortgage Loan, the Trust Fund shall be terminated in accordance with the following additional requirements, unless the Certificate Administrator and the Trustee have obtained at the expense of the Trust Fund, an Opinion of Counsel that any other manner of terminating either the Lower-Tier REMIC or the Upper-Tier REMIC will not subject the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to federal income tax:

(i)       Within 89 days prior to the final Distribution Date, the Certificate Administrator shall designate the first day of the 90-day liquidation period of the Lower-Tier REMIC and the Upper-Tier REMIC which shall be specified in a notice from the Certificate Administrator to the Certificateholders as soon as practicable prior to such final Distribution Date, and shall specify such date in the final tax return of each such REMIC;

(ii)       At or after the time of adoption of such plan of complete liquidation and at or prior to the final scheduled Distribution Date, the Servicer shall sell any remaining assets (other than cash) of the Trust Fund and credit the proceeds thereof to the Trust Fund; and

(iii)      At or after such time as the proceeds from the disposition of the remaining assets of the Trust Fund shall have been credited to the Trust Fund, the Certificate Administrator shall cause all remaining amounts held (A) as part of the Lower-Tier

221

REMIC to be distributed to the Trustee as holder of the Uncertificated Lower-Tier Interests and to the Holders of the Class R Certificates (in respect of the Class LT-R Interest) in accordance with Section 4.1(c) and (B) as part of the Upper-Tier REMIC to be distributed to the Holders of the Regular Certificates and the Class R Certificates (in respect of the Class UT-R Interest) in accordance with Section 4.1(a), Section 4.1(b) and Section 4.1(f).

11.3.    Trusts Irrevocable. Except as expressly provided herein, all trusts created hereby are irrevocable.

12.       MISCELLANEOUS PROVISIONS

12.1.    Amendment. (a) This Agreement may be amended from time to time by the parties hereto, without the consent of any of the Certificateholders or the Companion Loan Holders:

(i)        to correct any inconsistency, defect or ambiguity in this Agreement or to correct any manifest error in any provision of this Agreement;

(ii)       to cause the provisions in this Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or this Agreement to correct or supplement any of its provisions which may be inconsistent with any other provisions in this Agreement, or to correct any error;

(iii)      to change the timing and/or nature of deposits in the Collection Account, the Distribution Account or the Foreclosed Property Account, provided that (A) the Remittance Date may in no event be later than the Business Day prior to the related Distribution Date and (B) (1) the change would not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of the RR Interest), as evidenced by an Opinion of Counsel (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee or the Certificate Administrator) or (2) a Rating Agency Confirmation is obtained (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee or the Certificate Administrator);

(iv)      to modify, eliminate or add to any of its provisions (A) to the extent necessary to maintain the qualification of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Lower-Tier REMIC or the Upper-Tier REMIC that would be a claim against the Lower-Tier REMIC or the Upper-Tier REMIC; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee or the Certificate Administrator) to the effect that (A) the action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of imposition of any such tax and (B) the action will not

222

adversely affect in any material respect the interests of any holder of the Certificates (including, for the avoidance of doubt, any Holder of the RR Interest);

(v)       to modify, eliminate or add to any of its provisions to restrict (or to remove any existing restrictions with respect to) the transfer of the Class R Certificates; provided that the Depositor has determined that the amendment will not give rise to any tax with respect to the transfer of the Class R Certificates to a non-Permitted Transferee; provided, further, that the Depositor may conclusively rely upon an Opinion of Counsel to such effect;

(vi)      to make any other provisions with respect to matters or questions arising under this Agreement or any other change, provided that the required action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of the RR Interest) not consenting to such amendment, as evidenced by (a) an Opinion of Counsel (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the Trustee, the Custodian or the Certificate Administrator is the requesting party) and (b) a Rating Agency Confirmation (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee, the Custodian or the Certificate Administrator); provided, that any amendment pursuant to this clause (vi) that would adversely affect the rights of the Controlling Class or the Controlling Class Representative shall be subject to the consent of such affected party, parties or Certificateholders, as applicable;

(vii)     to amend or supplement any provision of this Agreement to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee, the Custodian or the Certificate Administrator); provided, that any amendment pursuant to this clause (vii) that would adversely affect the rights of the Controlling Class or the Controlling Class Representative shall be subject to the consent of such affected party, parties or Certificateholders, as applicable;

(viii)    to modify the provisions of this Agreement with respect to reimbursement of Nonrecoverable Advances if (A) the Depositor, the Servicer, the Certificate Administrator and the Trustee, determine that the commercial mortgage-backed securities industry standard for such provisions has changed, in order to conform to such industry standard, (B) such modification does not adversely affect the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC, as evidenced by an Opinion of Counsel (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee or the Certificate Administrator), (C) a Rating Agency Confirmation is obtained from each Rating Agency (at the expense of the party requesting the amendment or at the expense of the Trust Fund if the requesting party is the Trustee or the Certificate Administrator), and (D) during any Subordinate Control Period, the Controlling Class Representative consents to such modification;

223

(ix)       to modify the procedures set forth in this Agreement relating to compliance with Exchange Act Rule 17g-5, Rule 15Ga-1 or Rule 15Ga-2;

(x)       to the extent determined in good faith by the Depositor as necessary to comply with the Exchange Act or other applicable laws and regulations or to conform to guidance provided by any applicable governmental authority or to standards developed within the CMBS industry;

(xi)       to modify, eliminate or add to any of its provisions to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules or to modify, eliminate or add any corresponding provisions in the event that any or all of the Credit Risk Retention Rules are withdrawn, repealed or modified to be less restrictive; and

(xii)      pursuant to, and in accordance with, Article 10 of this Agreement.

(b)       This Agreement may also be amended by the parties to this Agreement with the consent of the Holders of Certificates of each Class adversely affected by such amendment evidencing, in each case, not less than 51% of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of the Certificates, except that the amendment may not (1) reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loan or the Companion Loans that are required to be distributed on any Certificate or any Companion Loan, respectively; (2) alter in any manner the liens on any Collateral securing payments of the Mortgage Loan, (3) alter the obligations of the Servicer or the Trustee to make an Advance or alter Accepted Servicing Practices; (4) change the percentages of Voting Rights or Percentage Interests of Certificateholders or the Companion Loan Holders that are required to consent to any action or inaction under this Agreement; or (5) amend this Section 12.1.

(c)       Notwithstanding the foregoing, no amendment to this Agreement may be made that (i) would cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for federal income tax purposes, (ii) changes in any manner the obligations of the Mortgage Loan Seller under the Mortgage Loan Purchase Agreement without the consent of the Mortgage Loan Seller, and the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer may, but will not be obligated to, enter into any amendment to this Agreement that it determines affects its rights, duties or immunities or creates any additional liability for the Trustee, the Certificate Administrator, the Custodian, the Servicer or the Special Servicer under this Agreement or (iii) impairs the rights of any Companion Loan Holder under this Agreement without the consent of such Companion Loan Holder.

(d)       It shall not be necessary for the consent of Certificateholders under this Section 12.1 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Certificate Administrator may prescribe.

224

(e)       Notwithstanding the foregoing, no amendment may be made to this Agreement unless the Trustee, the Certificate Administrator, the Servicer, and the Special Servicer have first received (i) an Opinion of Counsel (at the expense of the party requesting the amendment, or at the Trust Fund’s expense if the Trustee or the Certificate Administrator is the requesting party) to the effect that the amendment is authorized or permitted under this Agreement and that the amendment or the exercise of any power granted to the Servicer, the Special Servicer, the Depositor, the Certificate Administrator, the Trustee or any other specified Person in accordance with the amendment, will not result in the imposition of a tax on any portion of the Trust or cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC under the Code and (ii) an Officer’s Certificate from the party requesting the amendment to the effect that all conditions precedent to such amendment set forth herein have been satisfied.

(f)       Promptly after the execution of any amendment to this Agreement, the Certificate Administrator shall post a copy of such amendment on the Certificate Administrator’s Website and furnish written notification of the substance of such amendment to each Certificateholder, the Depositor, the Servicer, the Special Servicer, the Initial Purchaser, the Companion Loan Holders and the 17g-5 Information Provider (who shall promptly post to the 17g-5 Information Provider’s Website).

(g)       In the event that neither the Depositor nor any successor thereto is in existence, any amendment under this Section 12.1 shall be effected with the consent of the Trustee, the Certificate Administrator, the Servicer, and the Special Servicer, as applicable, and, to the extent required by this Section 12.1, the required Certificateholders and/or Companion Loan Holders, as applicable.

(h)       Unless otherwise specified in Section 12.1(a), the costs and expenses associated with any such amendment, including without limitation, Opinions of Counsel and a Rating Agency Confirmations, shall be borne by the party requesting such amendment (or, if such amendment is required by any of the Rating Agencies to maintain the rating issued by it or requested by the Trustee or the Certificate Administrator for any purpose described in Section 12.1(a) (which do not modify or otherwise relate solely to the obligations, duties or rights of the Trustee or the Certificate Administrator), then at the expense of the Depositor and, if neither the Depositor nor any successor thereto is in existence, the Trust Fund).

(i)       No amendment to this Agreement that is materially adverse to the interests of the Initial Purchaser or any other third party beneficiary under Section 12.13(ii) or (iii) shall be effected unless such party provides written consent to such amendment. In addition, no amendment to this Agreement that increases the obligations or impairs the rights of the Mortgage Loan Seller shall be effected unless the Mortgage Loan Seller provides written consent to such amendment.

(j)       No amendment to this Agreement that materially adversely affects any Companion Loan Holder in its capacity as a Companion Loan Holder shall be effected without such Companion Loan Holder’s prior written consent.

225

12.2.       Recordation of Agreement; Counterparts. (a) This Agreement or an abstract hereof, if acceptable by the applicable recording office, is subject to recordation in all appropriate public offices for real property records in the county in which the Property subject to the Mortgage is situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Trustee or the Certificate Administrator at the expense of the Trust upon its receipt of an Opinion of Counsel to the effect that such recordation materially and beneficially affects the interests of the Certificateholders of the Trust.

(b)       For the purpose of facilitating the recordation of this Agreement as herein provided and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.

12.3.       Governing Law; Submission to Jurisdiction. THIS AGREEMENT AND Any claim, controversy or dispute arising under or related to this AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.

12.4.       Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A

226

JURY. WITHOUT LIMITING THE FOREGOING, EACH PARTY HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.

12.5.       Notices. All demands, notices and communications hereunder shall be in writing, shall be deemed to have been given upon receipt (except that notices to Holders of any Class of Certificates held in registered, definitive form shall be deemed to have been given upon being sent by first class mail, postage prepaid) as follows:

If to the Depositor, to:

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and

cmbs_notices@morganstanley.com

If to the Servicer, to:

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager
Facsimile number: (704) 715-0036

With a copy by email to: commercial.servicing@wellsfargo.com

and with respect to any notice relating to Rating Agency requests:

227

RAInvRequests@wellsfargo.com

and with respect to any notice relating to investor requests:

REAM_InvestorRelations@wellsfargo.com

with a copy to:

Wells Fargo Bank, National Association
Legal Department
301 South College Street
Charlotte, North Carolina 28202-0166
Attention: Commercial Mortgage Servicing Legal Support
Facsimile number: (704) 383-0353
Reference: MSC 2021-PLZA Trust

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

If to the Special Servicer, to:

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084, 401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Special Servicing – Daniel Marthinsen
Facsimile number: (704) 715-0055

with a copy to:

Wells Fargo Bank, National Association
Legal Department, D1053-300
301 South College Street, 30th Floor
Charlotte, North Carolina 28202
Attention: Commercial Mortgage Servicing Legal Support
Facsimile number: (704) 383-0353
Reference: MSC 2021-PLZA Trust

with a copy to:

228

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

If to the Trustee, to:

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee MSC 2021-PLZA

with a copy to:

CMBSTrustee@wilmingtontrust.com

Facsimile No.: (302) 636-4140

If to the Certificate Administrator, to:

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
MSC 2021-PLZA

with a copy to be sent contemporaneously via email to: cts.cmbs.bond.admin@wellsfargo.com, and to trustadministrationgroup@wellsfargo.com, except as otherwise set forth herein

If to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website: 17g5informationprovider@wellsfargo.com

If to the Certificate Registrar, with respect to Certificate transfers other than the RR Interest to:

Wells Fargo Bank, N.A.
600 South 4th St., 7th Floor
MAC: N9300-070
Minneapolis, Minnesota 55415
Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

or in the case of a transfer of the RR Interest:

229

Wells Fargo Bank, N.A.
9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Risk Retention Custody (CMBS) – MSC 2021-PLZA

with a copy to:

riskretentioncustody@wellsfargo.com

If to the Custodian, to:

Wells Fargo Bank, N.A.
1055 10th Avenue SE
Minneapolis, Minnesota 55414
Attention: Document Custody Group (CMBS) MSC 2021-PLZA

with a copy to:

cmbscustody@wellsfargo.com

If to MSMCH, to:

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and

cmbs_notices@morganstanley.com

If to any Certificateholder, to:

the address set forth in the Certificate Register,

If to the Borrower:

at the respective addresses therefor set forth in the Loan Agreement

or, in the case of the parties to this Agreement, to such other address as such party shall specify by written notice to the other parties hereto.

230

12.6.       Notices to the Rating Agencies. None of the Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator shall provide any information regarding the Trust Fund to the Rating Agencies upon receipt of a request by the Rating Agencies therefor but shall, upon receipt of a reasonable request for information pertaining to this transaction, to the extent such party has or can obtain such information without unreasonable effort or expense, provide such information to the Depositor in accordance with the procedures set forth in Sections 12.16 and 12.17; provided, that the Depositor shall not disclose which Rating Agency has requested such information. Notwithstanding the foregoing, the failure to deliver such information shall not constitute a Servicer Termination Event or Special Servicer Termination Event, as the case may be, under this Agreement. Any confirmation of the rating by the Rating Agencies required hereunder shall be in writing.

Any notices to the Rating Agencies shall be sent to the following addresses:

Moody’s Investors Service, Inc.

7 World Trade Center

250 Greenwich Street

New York, New York 10007

Attention: Commercial Mortgage Surveillance Group
Email: CMBSSurveillance@moodys.com

DBRS, Inc.

22 West Washington Street

Chicago, Illinois 60602

Attention : CMBS Surveillance

Email: CMBS.surveillance@morningstar.com

Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then, to the extent permitted by applicable law, such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

12.7.       Limitation on Rights of Certificateholders. The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust Fund, nor entitle such Certificateholder’s legal representative or heirs to claim an accounting or to take any action or to commence any proceeding in any court for a petition or winding up of the Trust Fund, or otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.

No Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right to vote (except as provided herein) or in any manner otherwise control the operation and management of the Trust Fund, or the obligations of the parties hereto, nor shall anything herein set forth or contained in the terms of the Certificates be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholders be under any liability to any third party by reason of any action by the parties to this Agreement pursuant to any provision hereof.

231

No Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right by virtue or by availing itself of any provisions of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, unless such Holder previously shall have given to the Trustee and the Certificate Administrator a written notice of a Servicer Termination Event or Special Servicer Termination Event, as the case may be, and of the continuance thereof, as herein before provided, and unless the Holders of Certificates aggregating not less than 25% of the Voting Rights of the Certificates shall also have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses, and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue or by availing itself or themselves of any provisions of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of the Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder except as provided herein with respect to entitlement to payments or to enforce any right under this Agreement, except in the manner herein provided and for the common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

12.8.       Certificates Nonassessable and Fully Paid. The Certificateholders shall not be personally liable for obligations of the Trust Fund, the interests in the Trust Fund represented by the Certificates shall be nonassessable for any reason whatsoever, and the Certificates, upon due authentication thereof by the Certificate Administrator pursuant to this Agreement, are and shall be deemed fully paid.

12.9.       Reproduction of Documents. This Agreement and all documents relating thereto, including, without limitation, (i) consents, waivers and modifications which may hereafter be executed, (ii) documents received by any party at the closing, and (iii) financial statements, certificates and other information previously or hereafter furnished, may be reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

12.10.       No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the parties hereto.

12.11.       Actions of Certificateholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Certificateholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Certificateholders in person or by agent duly appointed

232

in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and the Certificate Administrator and, where required, to the Depositor, the Servicer or the Special Servicer. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and conclusive in favor of the Certificate Administrator, the Trustee, the Depositor, the Servicer, and the Special Servicer if made in the manner provided in this Section.

(b)       The fact and date of the execution of any Certificateholder of any such instrument or writing may be proved in any reasonable manner which the Trustee or the Certificate Administrator deems sufficient.

(c)       Any request, demand, authorization, direction, notice, consent, waiver, or other act by a Certificateholder shall bind every Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, or omitted to be done, by the Trustee, the Certificate Administrator, the Depositor, the Servicer, or the Special Servicer in reliance thereon, whether or not notation of such action is made upon such Certificate.

(d)       The Trustee and the Certificate Administrator may require additional proof of any matter referred to in this Section as it shall deem reasonably necessary.

12.12.  Successors and Assigns. The rights and obligations of any party hereto shall not be assigned (except pursuant to Sections 6.2, 6.4, 8.7 or 8.9 hereof) by such party without the prior written consent of the other parties hereto. This Agreement shall inure to the benefit of and be binding upon the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee and their respective permitted successors and assigns. No Person other than a party to this Agreement, the Initial Purchaser and any Certificateholder shall have any rights with respect to the enforcement of any of the rights or obligations hereunder; provided that the parties to this Agreement specifically agree that (i) each Companion Loan Holder and the Mortgage Loan Seller shall be a third party beneficiary of this Agreement with respect to the rights afforded it under this Agreement, including, without limitation, the rights specified under Section 12.1(i) and (j), (ii) each Other Depositor, Other Servicer, Other Special Servicer, Other Trustee and Other Exchange Act Reporting Party shall be a third party beneficiary of this Agreement with respect to all rights of cooperation, compensation and reimbursement, together with any other rights, afforded to it hereunder, including, without limitation, under Section 3.4, Section 3.24, Section 12.1, Article 7 and Article 10, (iii) each Other Asset Representations Reviewer shall be a third party beneficiary of this Agreement with respect to all rights of cooperation, compensation and reimbursement afforded to it hereunder, including, without limitation, under Section 3.27, and (iv) no Borrower, property manager or other party to the Mortgage Loan is an intended third-party beneficiary of this Agreement (provided that the Borrower shall be entitled to notices to the extent expressly provided herein).

12.13.  Acceptance by Authenticating Agent, Certificate Registrar. The Certificate Administrator hereby accepts its appointment as Authenticating Agent and Certificate

233

Registrar and agrees to perform the obligations required to be performed by it in each such capacity pursuant to the terms of this Agreement.

12.14.   Streit Act. Any provisions required to be contained in this Agreement by Section 126 and/or Section 130-k or Article 4-A of the New York Real Property Law are hereby incorporated herein, and such provisions shall be in addition to those conferred or imposed by this Agreement; provided, that to the extent that such Section 126 and/or 130-k shall not have any effect, and if said Section 126 and/or Section 130-k should at any time be repealed or cease to apply to this Agreement or be construed by judicial decision to be inapplicable, said Section 126 and/or Section 130-k shall cease to have any further effect upon the provisions of this Agreement. In a case of a conflict between the provisions of this Agreement and any mandatory provisions of Article 4-A of the New York Real Property Law, such mandatory provisions of said Article 4-A shall prevail, provided that if said Article 4-A shall not apply to this Agreement, should at any time be repealed, or cease to apply to this Agreement or be construed by judicial decision to be inapplicable, such mandatory provisions of such Article 4-A shall cease to have any further effect upon the provisions of this Agreement.

12.15.   Assumption by Trust of Duties and Obligations of the Mortgage Loan Seller Under the Loan Documents. The Trustee on behalf of the Trust as assignee of the Mortgage Loan and the Certificate Administrator, the Servicer and Special Servicer hereby acknowledge that the Trust assumes all of the rights and obligations of the Mortgage Loan Seller as lender under the Loan Documents and agrees to be bound thereby, and in accordance with the terms thereof. Such acknowledgement on behalf of the Trust is made by the Trustee in the exercise of the powers and authority conferred and vested in it and is intended for the purpose of binding only the Trust. Nothing contained in this Section shall be construed as creating any liability on the part of the Trustee, individually or personally, it being agreed that all liabilities and obligations being acknowledged as assumed are solely those of the Trust, and under no circumstances shall the Trustee be liable personally for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement, any Loan Document or any related document.

12.16.   Notice to the 17g-5 Information Provider and Each Rating Agency. (a) The Certificate Administrator shall promptly furnish to the 17g-5 Information Provider by electronic delivery each of the following of which a Responsible Officer of the Certificate Administrator has actual knowledge, and the 17g-5 Information Provider shall promptly upload such notice or information to the 17g-5 Information Provider’s Website (but in no event later than five (5) Business Days after receipt thereof):

(i)       any material change or amendment to this Agreement, the Mortgage Loan Purchase Agreement, the Loan Agreement or the Intercreditor Agreement;

(ii)      notice of the merger, consolidation, resignation or termination of the Servicer, Special Servicer, the Certificate Administrator or the Trustee;

(iii)     notice of the repurchase of, or substitution of, the Mortgage Loan pursuant to Sections 2.2 and 2.9;

234

(iv)     the final payment to any Class of Certificateholders;

(v)      any change in the location of the Interest Reserve Account or the Distribution Account;

(vi)     any change in the lien priority of the Mortgage Loan; and

(vii)    each Distribution Date Statement described in Section 4.4(a).

(b)       The Servicer and the Special Servicer shall promptly furnish to the 17g-5 Information Provider by electronic delivery copies of the following (to the extent not already delivered or made available pursuant to the terms of this Agreement), and the 17g-5 Information Provider shall promptly upload such documents to the 17g-5 Information Provider’s Website within the timeframes contemplated in the second paragraph of Section 12.18(g):

(i)        each of its annual statements as to compliance described in Section 10.9;

(ii)       each of its annual independent public accountants’ servicing reports described in Section 10.10; and

(iii)      each Appraisal obtained pursuant to Section 3.7.

12.17.       Exchange Act Rule 17g-5 Procedures. (a) Except as otherwise expressly and specifically provided in Section 12.17 of this Agreement or Section 12.18 of this Agreement or otherwise in this Agreement or as required by law, none of the Depositor, the Servicer, the Special Servicer or the Trustee shall provide any information relevant to the Rating Agencies’ surveillance of the Certificates or the Mortgage Loan directly to, or communicate with, either orally or in writing, any Rating Agency regarding the Certificates or the Mortgage Loan, including, but not limited to, providing responses to inquiries from a Rating Agency regarding the Certificates or the Mortgage Loan relevant to such Rating Agency’s surveillance of the Certificates. To the extent that a Rating Agency makes an inquiry or initiates communications with any such party regarding the Certificates or the Mortgage Loan relevant to such Rating Agency’s surveillance of the Certificates, all responses to such inquiries or communications from such Rating Agency shall be made in writing by the responding party and delivered to the 17g-5 Information Provider electronically as provided in Section 12.18(g), which written response the 17g-5 Information Provider shall post to the 17g-5 Information Provider’s Website within the timeframes contemplated in the second paragraph of Section 12.18(g).

(b)       To the extent that any party to this Agreement is required to provide any information to, or communicate with, any Rating Agency in accordance with its obligations under this Agreement or applicable law, such party shall provide such information or communication to the 17g-5 Information Provider electronically for posting as provided in Section 12.18(g) and the 17g-5 Information Provider shall post such information or communication on the same Business Day as it was received (if such information is received by 2:00 p.m. (Eastern time)) or by 12:00 p.m. (Eastern time) on the following Business Day (if such information is received after 2:00 p.m.). The 17g-5 Information Provider shall notify each other party to this Agreement in writing of any change in the identity or contact information of the 17g-5 Information Provider. Any Rating Agency Confirmation request shall be made in

235

accordance with Section 3.26. In connection with the delivery by the Servicer or Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify (which may include automatically generated electronic notifications) the Servicer or Special Servicer when such information, report, notice or document has been posted. The Servicer or the Special Servicer, as applicable, may, but shall not be obligated to, send such information, report, notice or other document to the applicable Rating Agency or Rating Agencies so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided to the 17g-5 Information Provider.

(c)       Each 17g-5 Indemnifying Party hereby expressly agrees to indemnify and hold harmless the Depositor and its respective Affiliates, directors, officers, employees, members, managers and agents, and the Trust (each, for purposes of this Section 12.18(c), a “17g-5 Indemnified Party”), from and against any and all losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses), to which any such 17g-5 Indemnified Party may become subject, under the Act, the Exchange Act, by contract or otherwise, insofar as such losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses) arise out of or are based upon (i) such 17g-5 Indemnifying Party’s breach of Section 12.18(a), Section 12.18(b), Section 12.18(f) or Section 3.26 or any other provision of this Agreement relating to the delivery of any information or communication for posting on, or the posting of any information or communication to, the 17g-5 Information Provider’s Website, or (ii) if the 17g-5 Indemnifying Party is the 17g-5 Information Provider, any negligence, willful misconduct or bad faith on its part in connection with establishing, posting information and communications to, granting access to, and otherwise performing its obligations and duties hereunder with respect to, the 17g-5 Information Provider’s Website, or (iii) a determination by any Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Exchange Act Rule 17g-5(a)(3), to the extent caused by any such breach referred to in clause (i) above by, or any negligence, willful misconduct or bad faith referred to in clause (ii) above on the part of, the applicable 17g-5 Indemnifying Party, and will reimburse such 17g-5 Indemnified Party for any legal or other expenses reasonably incurred by such 17g-5 Indemnified Party in connection with investigating or defending any such action or claim, as such expenses are incurred.

(d)       None of the Depositor, the Mortgage Loan Seller, the Servicer, the Special Servicer or the Trustee (if it is not also the 17g-5 Information Provider) shall have any liability for (i) the 17g-5 Information Provider’s failure to post information provided by the Depositor, the Servicer, the Special Servicer or the Trustee (if it is not also the 17g-5 Information Provider) in accordance with the terms of this Agreement, or (ii) any malfunction or disabling of the 17g-5 Information Provider’s Website.

(e)       The Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall be permitted to (but shall not be obligated to) orally communicate with the Rating Agencies provided that such party summarizes the information provided to the Rating Agencies in such communication and provides the 17g-5 Information Provider with such summary in accordance with the procedures set forth in Section 12.17(g) on the same day such communication takes place; provided that the summary of such oral communications shall not be

236

attributed to the Rating Agency with which such party communicated. The 17g-5 Information Provider shall post such summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 12.17(g). None of the foregoing restrictions in this Section 12.18 prohibit or restrict oral or written communications, or providing information, between the Servicer or the Special Servicer, on the one hand, and any Rating Agency, on the other hand, with regard to (i) such Rating Agency’s review of the ratings it assigns to the Servicer or the Special Servicer, as applicable, (ii) such Rating Agency’s approval of the Servicer or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s evaluation of the Servicer’s or the Special Servicer’s, as applicable, servicing operations in general; provided that the Servicer or the Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loan to such Rating Agency in connection with such review and evaluation by such Rating Agency unless (x) borrower, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on the 17g-5 Information Provider’s Website or the Servicer or the Special Servicer, as applicable, has in fact provided such information to such Rating Agency in accordance with Section 12.18(b); or (z) the Rating Agency has confirmed in writing to the Servicer or the Special Servicer, as applicable, that it will not use such information in undertaking credit rating surveillance for any Class of Certificates (and the party providing such information to a Rating Agency shall, upon request, certify to the Depositor that it received the confirmation described in this clause (z) or provide the Depositor with a copy of such confirmation from the applicable Rating Agency); provided, that a Rating Agency may use information delivered under this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement) or comprised of information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that they have access to) other than pursuant to this Section 12.18(e).

(f)       The 17g-5 Information Provider shall, at all times that any Certificates are outstanding and rated by a Rating Agency, maintain the 17g-5 Information Provider’s Website, and grant access thereto to the Rating Agencies and the other NRSROs, in accordance with this Agreement.

(g)       The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website and make available solely to the Rating Agencies and other NRSROs the following items, to the extent such items are delivered to it in an electronic document format suitable for website posting (and the parties required to deliver the following information to the 17g-5 Information Provider agree to do so) via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “MSC 2021-PLZA” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:

(i)        any and all notices or items delivered to it pursuant to Section 12.17;

237

(ii)       any requests for a Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.26; and

(iii)      any other information delivered to the 17g-5 Information Provider pursuant to this Agreement, including pursuant to Section 12.18(a) and Section 12.18(b).

The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website. Information will be posted on the same Business Day of receipt provided that such information is received by 2:00 p.m. (eastern time) or, if received after 2:00 p.m., on the next Business Day by 12:00 p.m. (eastern time). The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. If any information is delivered or posted in error, the 17g-5 Information Provider may remove it from the 17g-5 Information Provider’s Website. The 17g-5 Information Provider has not obtained and shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the 17g-5 Information Provider’s Website. Access will be provided by the 17g-5 Information Provider to the Rating Agencies, and to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit M hereto (which certification may be submitted electronically via the 17g-5 Information Provider’s Website). Access will be provided by the 17g-5 Information Provider on the same Business Day if such Exhibit M is submitted prior to 2:00 p.m. on such Business Day, or, if such Exhibit M is received after 2:00 p.m., on the following Business Day. Questions regarding delivery of information to the 17g-5 Information Provider may be directed to 17g5informationprovider@wellsfargo.com.

Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 12.18 (which may include pre-closing materials). In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website which Rating Agency requested such additional information.

The 17g-5 Information Provider shall provide a mechanism to notify each Rating Agency or other NRSRO each time the 17g-5 Information Provider posts an additional document to the 17g-5 Information Provider’s Website.

The 17g-5 Information Provider shall make available, only to the Rating Agencies and NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where Rating Agencies and NRSROs may (i) submit questions to the Certificate Administrator relating to the Distribution Date Statement, or submit questions to the Servicer or the Special Servicer, as applicable, relating to the reports being prepared by such parties, the Whole Loan or the Property (each such submission, a “Rating Agency Inquiry”), (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the answers thereto and (iii) submit requests for loan-level reports and information. Upon receipt of a Rating Agency Inquiry for the Certificate Administrator, the Servicer or the

238

Special Servicer, the 17g-5 Information Provider shall forward the Rating Agency Inquiry to the Certificate Administrator, the Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of a Rating Agency Inquiry or request relating to the subject matters described in clauses (i) or (iii) above, the Certificate Administrator, the Servicer or the Special Servicer, as applicable, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply to the Rating Agency Inquiry, which reply of the Certificate Administrator, the Servicer or the Special Servicer shall be by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Rating Agency Inquiry and the related answer (or reports, as applicable) to the 17g-5 Information Provider’s Website. Any report posted by the 17g-5 Information Provider in response to a request may be posted on a page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Servicer or the Special Servicer determines, in its respective sole discretion, that (i) the Rating Agency Inquiry is beyond the scope outlined above, (ii) answering any Rating Agency Inquiry would be in violation of applicable law, the Accepted Servicing Practices, this Agreement or the applicable Loan Documents, (iii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or is not otherwise advisable to answer or (iv)(A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator, the Servicer or the Special Servicer, as applicable, determines in accordance with the Accepted Servicing Practices (or in good faith, in the case of the Certificate Administrator) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Rating Agency Inquiry and, in the case of the Certificate Administrator, Servicer or the Special Servicer, shall promptly notify the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such Rating Agency Inquiry on the Rating Agency Q&A Forum and Document Request Tool together with a statement that such Rating Agency Inquiry was not answered. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Initial Purchaser, the Servicer, the Special Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications between the 17g-5 Information Provider and any Person which are not submitted via the 17g-5 Information Provider’s Website.

In connection with providing access to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The 17g-5 Information Provider shall not be liable for the dissemination of information in accordance with the terms of this Agreement, makes no representations or warranties as to the accuracy or completeness of such information being made available, and assumes no responsibility for such

239

information. The 17g-5 Information Provider shall not be liable for its failure to make any information available to the Rating Agencies or other NRSROs unless such information was delivered to the 17g-5 Information Provider at the email address set forth herein, with a subject heading of “MSC 2021-PLZA” and sufficient detail to indicate that such information is required to be posted on the 17g-5 Information Provider’s Website.

(h)       The costs and expenses of compliance with this Section by any party hereto shall not be expenses of the Trust Fund.

(i)        The 17g-5 Information Provider shall not be obligated to determine whether any information submitted or delivered to it constitutes Privileged Information, and shall not have any liability for posting to the 17g-5 Information Provider’s Website any Privileged Information received from a third party in accordance with this Agreement, unless such Privileged Information is clearly identified as such to the 17g-5 Information Provider upon delivery thereto. The Servicer and the Special Servicer shall not deliver any Privileged Information to the 17g-5 Information Provider.

12.18.  Wells Fargo Bank.

Except as otherwise expressly set forth in this Agreement, knowledge or information acquired by Wells Fargo Bank, National Association, in any particular capacity hereunder, shall not be imputed to (a) Wells Fargo Bank, National Association acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided, that the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions and vice versa.

13.       REMIC ADMINISTRATION

13.1.    REMIC Administration. (a) The parties intend that each of the Lower-Tier REMIC and the Upper-Tier REMIC shall constitute, and that the affairs of each of the Lower-Tier REMIC and the Upper-Tier REMIC shall be conducted so as to qualify it as, a REMIC, and the provisions hereof shall be interpreted consistently with this intention.

(b)       The Certificate Administrator shall make or cause to be made an election on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC to treat the segregated pool of assets constituting such REMIC as a REMIC under the Code. Each such election shall be made on IRS Form 1066 or other appropriate federal tax or information return for the taxable year ending on the last day of the calendar year in which the Certificates are issued.

(c)       The Closing Date is hereby designated as the “Startup Day” of each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The “latest possible maturity date” of the Certificates and the Uncertificated Lower-Tier Interests for the purposes of Section 860G(a)(1) of the Code is the Rated Final Distribution Date.

240

(d)       The Certificate Administrator shall prepare or cause to be prepared, and file or cause to be filed with the IRS, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such REMIC on IRS Form SS-4 or obtain such number by other permissible means. Within thirty days of the Closing Date, the Certificate Administrator shall furnish or cause to be furnished to the Internal Revenue Service, on IRS Form 8811 or as otherwise may be required by the Code, the name, title and address of the Persons that Holders of the Certificates may contact for tax information relating thereto (and the Certificate Administrator shall act as the representative of each of the Lower-Tier REMIC and the Upper-Tier REMIC for this purpose), together with such additional information as may be required by such Form, and shall update such information at the time or times and in the manner required by the Code (and the Depositor agrees within (10) Business Days of the Closing Date to provide any information reasonably requested by the Certificate Administrator and necessary to make such filing).

(e)       The Certificate Administrator shall pay without any right of reimbursement the ordinary and usual expenses in connection with the preparation, filing and mailing of tax information reports and returns that are incurred by it in the ordinary course of its business, but extraordinary or unusual expenses, costs or liabilities incurred in connection with its tax-related duties under this Agreement, including without limitation any expenses, costs or liabilities associated with audits or any administrative or judicial proceedings with respect to the Lower-Tier REMIC or the Upper-Tier REMIC that involve the IRS or state tax authorities, shall be reimbursable from the Trust Fund.

(f)       The Certificate Administrator shall prepare, or cause to be prepared, timely furnish or cause to be furnished to the Trustee to sign (and the Trustee shall timely sign), and the Certificate Administrator shall timely file or cause to be timely filed all federal, state and local income or franchise or other tax and information returns for each of the Lower-Tier REMIC and the Upper-Tier REMIC as the direct representative for such REMIC. Except as provided in Section 13.1(e), the expenses of preparing and filing such returns shall be borne by the Certificate Administrator. The Depositor shall provide on a timely basis to the Certificate Administrator or its designee such information with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC as is in its possession, and is reasonably requested by the Certificate Administrator to enable it to perform its obligations under this subsection (f), and the Certificate Administrator shall be entitled to rely on such information in the performance of its obligations hereunder.

(g)       The Certificate Administrator shall perform on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC all reporting and other tax compliance duties that are the responsibility of such REMIC under the Code, the REMIC Provisions, or other compliance guidance issued by the IRS or any state or local taxing authority. Among its other duties, the Certificate Administrator shall provide (i) to the IRS or other Persons (including, but not limited to, the transferor of a Class R Certificate to a Disqualified Organization or to an agent that has acquired a Class R Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class R Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or REMIC Provisions. The Depositor shall provide on a timely basis (and in no event later than 30 days after the Certificate Administrator’s request) to

241

the Certificate Administrator or its designee such information with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC as is in its possession and is reasonably requested in writing by the Certificate Administrator to enable it to perform its obligations under this subsection (g).

(h)       The Certificate Administrator shall be designated as the “partnership representative” (as defined in Section 6223 of the Code) of the Lower-Tier REMIC and the Upper-Tier REMIC, and the Class R Certificateholders, by acceptance of the Class R Certificates, agree, on behalf of themselves and all successor holders of such Class R Certificates, to such designation.

(i)       The Certificate Administrator shall make any elections allowed under the Code (i) to avoid the application of Section 6221 (or successor provision) to each of the Lower-Tier REMIC and the Upper-Tier REMIC and (ii) to avoid payment by the Lower-Tier REMIC, the Upper-Tier REMIC, or both, under Section 6225 of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any Class R Certificateholder, past or present. The Class R Certificateholders, by acceptance of the Class R Certificates, agree, on behalf of themselves and all successor holders of such Class R Certificates, to such elections, to the Certificate Administrator being designated as the representative of the Lower-Tier REMIC and the Upper-Tier REMIC under Section 6223 of the Code.

(j)       The Trustee, the Certificate Administrator, the Holders of the Class R Certificates, the Servicer and the Special Servicer shall perform their obligations under this Agreement and the REMIC Provisions in a manner consistent with the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC.

(k)       The Trustee, the Certificate Administrator, any Holder of the Class R Certificates, the Servicer and the Special Servicer shall not take any action or cause either the Lower-Tier REMIC or the Upper-Tier REMIC to take any action, within their respective control and the scope of their specific respective duties under this Agreement that, under the REMIC Provisions, could reasonably be expected to (i) endanger the status of either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (ii) unless permitted under Section 13.2(a), result in the imposition of a tax upon either the Lower-Tier REMIC or the Upper-Tier REMIC (including but not limited to the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on prohibited contributions as defined in Section 860G(d) of the Code) (any such result in clause (i) or (ii), an “Adverse REMIC Event”) unless (A) the Trustee, the Certificate Administrator and the Servicer have received a Nondisqualification Opinion (at the expense of the party seeking to take such action or of the Trust Fund if taken for the benefit of the Certificateholders) with respect to such action or (B) the Trustee, the Certificate Administrator and the Servicer have received an opinion (at the expense of the party seeking to take such action or of the Trust Fund if taken for the benefit of the Certificateholders) to the effect that such action will not cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC and that no tax will actually be imposed.

(l)       Any and all federal, state and local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC or its assets or transactions, including, without limitation, “prohibited transaction” taxes as defined in Section 860F of the Code, and any tax on

242

contributions imposed by Section 860G(d) of the Code, shall be paid from the Collection Account; provided that the Servicer, upon two (2) days prior written notice, shall remit from the Collection Account to the Certificate Administrator the amount of any such tax that the Certificate Administrator notifies the Servicer is due; provided, further, that if such taxes shall have been imposed on account of the willful misconduct, bad faith or negligence of any party hereto, or in connection with the breach of any representation or warranty made by any party hereto in this Agreement, then such taxes shall be paid by such party.

(m)       The Certificate Administrator shall, for federal income tax purposes, maintain books and records with respect to the Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual basis. Notwithstanding anything to the contrary contained herein or in the Loan Documents (but subject to Section 1.3), all amounts collected on the Mortgage Loan shall, for federal income tax purposes, be allocated first to interest due and payable on the Mortgage Loan (including interest on overdue interest) other than Default Interest. The books and records must be sufficient concerning the nature and amount of the investments of the Lower-Tier REMIC and the Upper-Tier REMIC to show that such REMIC has complied with the REMIC Provisions.

(n)       None of the Certificate Administrator, the Trustee, the Servicer or the Special Servicer shall enter into any arrangement by which either the Lower-Tier REMIC or the Upper-Tier REMIC will receive a fee or other compensation for services.

(o)       In order to enable the Certificate Administrator to perform its duties as set forth herein, the Depositor shall provide, or cause to be provided, to the Certificate Administrator within 10 days after the Closing Date, all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes on the valuations and offering prices of the Certificates, including, without limitation, the yield, issue prices, pricing prepayment assumption and projected cash flows of the Certificates and the Class R Certificates, as applicable, and the projected cash flows on the Mortgage Loan. Thereafter, the Depositor, the Servicer and the Special Servicer shall provide to the Certificate Administrator, promptly upon request therefor, any such additional information or data that the Certificate Administrator may, from time to time, reasonably request in order to enable the Certificate Administrator to perform its duties as set forth herein. The Certificate Administrator is hereby directed to use any and all such information or data provided by the Depositor, the Servicer and the Special Servicer in the preparation of all federal, state or local income, franchise or other tax and information returns and reports for each of the Lower-Tier REMIC and the Upper-Tier REMIC to Certificateholders as required herein. The Depositor hereby indemnifies the Certificate Administrator for any losses, liabilities, damages, claims or expenses of the Certificate Administrator arising from any errors or miscalculations of the Certificate Administrator pursuant to this Section 13.1 that result from any failure of the Depositor to provide, or to cause to be provided, accurate information or data to the Certificate Administrator (but not resulting from the methodology employed by the Certificate Administrator) on a timely basis and such indemnifications shall survive the termination of this Agreement and the termination of the Certificate Administrator.

The Certificate Administrator agrees that all such information or data so obtained by it shall be regarded as confidential information and agrees that it shall use its best reasonable efforts to retain in confidence, and shall ensure that its officers, employees and representatives

243

retain in confidence, and shall not disclose, without the prior written consent of the Depositor, any or all of such information or data, or make any use whatsoever (other than for the purposes contemplated by this Agreement) of any such information or data without the prior written consent of the Depositor, unless such information is generally available to the public (other than as a result of a breach of this Section 13.1) or is required by law or applicable regulations to be disclosed.

The Certificate Administrator shall be responsible for obtaining a tax identification number for any REMIC specified herein, and shall be responsible for the preparation of the related IRS Form W-9, if such form is requested. The Trustee shall be entitled to rely on the information contained therein, and is hereby directed to execute such IRS Form W-9; provided, the Certificate Administrator shall also be directed to execute such IRS Form W-9 (in lieu of the Trustee) if permitted by IRS regulations.

13.2.       Foreclosed Property. (a) The parties hereto acknowledge and understand that if the Trust Fund were to acquire the Property as Foreclosed Property and were to own and operate such Property in a manner consistent with the manner in which such Property is currently owned and operated by the Borrower, through a Successor Manager, some portion or all of the income derived in the Lower-Tier REMIC from such Foreclosed Property may be considered “net income from foreclosure property” for purposes of Section 860G(c) of the Code and subject to tax at the highest corporate income tax rate.

In determining whether to acquire and hold any Foreclosed Property, the Special Servicer, acting on behalf of the Trust Fund hereunder, shall take these circumstances into account and shall only acquire any such Foreclosed Property if it determines, in its reasonable judgment (after, consultation with counsel, at the expense of the Trust Fund), that either (i) there is a commercially feasible alternative method of administering such Foreclosed Property that would not result in such tax, e.g., a net lease that results in Rents from Real Property or (ii) the likely recovery with respect to operating the Foreclosed Property on behalf of the Trust Fund, after taking into account any such taxes that might be imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC, will exceed the likely recovery to the Trust Fund if the Trust Fund were to net lease the Foreclosed Property or were not to acquire and hold the Foreclosed Property. If the Trust Fund acquires any Foreclosed Property, the Special Servicer, acting on behalf of the Trust Fund, if the Manager would not be considered an Independent Contractor, shall either renegotiate the Management Agreement or replace the Manager with a Successor Manager (as appropriate and to the extent permitted under such Management Agreement) so that the Foreclosed Property would be considered to be operated by an Independent Contractor. If, after making the foregoing reasonable efforts, the Special Servicer determines that it is in the best interests of Certificateholders on a net after-tax basis to operate the Foreclosed Property in a manner such that the Lower-Tier REMIC or Upper-Tier REMIC shall receive, based upon an Opinion of Counsel, “net income from foreclosure property” under the REMIC Provisions, the Special Servicer shall maintain or cause to be maintained such records of income and expense as to enable such amounts to be computed accurately, and shall pay or retain or cause to be paid or retained from Foreclosure Proceeds such amounts as are necessary to pay such tax or, to the extent such amounts are insufficient, from the Collection Account pursuant to Section 3.4(c)(xii).

244

Without limiting the generality of the foregoing, the Special Servicer shall not, to the extent within its power:

(i)        permit the Trust Fund to enter into, renew or extend any new lease with respect to the Foreclosed Property, if the new lease by its terms will give rise to any income that does not constitute Rents from Real Property;

(ii)       permit any amount to be received or accrued under any new lease other than amounts that will constitute Rents from Real Property;

(iii)      authorize or permit any construction on the Foreclosed Property, other than the completion of a building or other improvement thereon, and then only if more than ten percent of the construction of such building or other improvements was completed before default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

(iv)      Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through the Manager or an Independent Contractor, the Foreclosed Property on any date more than 90 days after its acquisition date.

(b)       The Special Servicer, acting on behalf of the Trust Fund hereunder, shall make reasonable efforts to sell the Foreclosed Property for its fair market value in accordance with Section 3.15. In any event, however, the Special Servicer, acting on behalf of the Trust Fund hereunder, shall dispose of any Foreclosed Property as soon as is practicable but in no event later than the close of the third calendar year following the year in which the Acquisition Date occurs unless the Special Servicer, on behalf of the Trust Fund, has received (or has not been denied) an extension of time (an “Extension”) by the Internal Revenue Service to sell such Foreclosed Property or an opinion of counsel to the effect that the holding by the Trust Fund of the Foreclosed Property for an additional specified period will neither result in the imposition of taxes on “prohibited transactions” of the Trust Fund as defined in Section 860F of the Code, nor cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, in which event such period shall be extended by such additional specified period, with the expenses of obtaining any such extension of time being an expense of the Trust Fund. If the Special Servicer, on behalf of the Trust Fund, has received (or has not been denied) such Extension, then the Special Servicer, acting on behalf of the Trust Fund hereunder, shall continue to attempt to sell the Foreclosed Property for its fair market value for such longer period as such Extension permits (the “Extended Period”). If the Special Servicer, acting on behalf of the Trust Fund, has not received such an Extension and the Special Servicer, acting on behalf of the Trust Fund hereunder, is unable to sell the Foreclosed Property, within the foregoing period or if the Special Servicer, acting on behalf of the Trust Fund hereunder, has received such an Extension, and the Special Servicer, acting on behalf of the Trust Fund hereunder, is unable to sell the Foreclosed Property within the Extended Period, the Special Servicer shall, before the end of the above-referenced period or the Extended Period, as the case may be, auction the Foreclosed Property to the highest bidder (which may be the Special Servicer) in accordance with Accepted Servicing Practices.

245

(c)       Within 30 days of the sale of a Foreclosed Property, the Special Servicer shall provide to each of the Certificate Administrator and the Trustee a statement of accounting for the Foreclosed Property, including, without limitation, (i) the date the applicable Property was acquired in foreclosure or by deed in lieu of foreclosure, (ii) the date of disposition of such Foreclosed Property, (iii) the gross sale price and related selling and other expenses, (iv) accrued interest calculated from the date of acquisition to the disposition date, and (v) such other information as the Certificate Administrator or the Trustee may reasonably request.

13.3.    Prohibited Transactions and Activities. The Special Servicer, on behalf of the Trust Fund, shall not permit the sale or disposition of the Mortgage Loan at a time when the Mortgage Loan is not the subject of a breach of a representation or is not in default or default with respect thereto is not reasonably foreseeable (except in a disposition pursuant to (i) the bankruptcy or insolvency of the Lower-Tier REMIC or (ii) the termination of the Lower-Tier REMIC in a “qualified liquidation” as defined in Section 860F(a)(4) of the Code), nor acquire any assets for either the Lower-Tier REMIC or the Upper-Tier REMIC (other than Foreclosed Property), nor sell or dispose of any investments in the Collection Account or Distribution Account for gain, nor receive any amount representing a fee or other compensation for services, nor accept any contributions to either the Lower-Tier REMIC or the Upper-Tier REMIC (other than a cash contribution during the three-month period beginning on the Startup Day), unless it has received an Opinion of Counsel (at the expense of the Person requesting it to take such action) to the effect that such disposition, acquisition, substitution or acceptance will not (a) affect adversely the status of either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC, or of the Certificates as representing regular interests therein, (b) affect the distribution of interest or principal on the Regular Certificates, (c) result in the encumbrance of the assets transferred or assigned to either the Lower-Tier REMIC or the Upper-Tier REMIC (except pursuant to the provisions of this Agreement), or (d) cause either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a tax on “prohibited transactions” or “prohibited contributions” pursuant to the REMIC Provisions.

13.4.    Indemnification with Respect to Certain Taxes and Loss of REMIC Status. (a) If either the Lower-Tier REMIC or the Upper-Tier REMIC fails to qualify as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or a tax as a result of a prohibited transaction or contribution subject to taxation under the REMIC Provisions due to the willful misconduct, bad faith or negligent performance by the Trustee or the Certificate Administrator of its duties and obligations specifically set forth herein, or by reason of the Trustee’s or the Certificate Administrator’s negligent disregard of its obligations and duties thereunder, the Trustee or the Certificate Administrator shall indemnify the Trust against any and all losses, claims, damages, liabilities or expenses (“Losses”) resulting therefrom; provided, that the Trustee or the Certificate Administrator shall not be liable for any such Losses attributable to the action or inaction of the Servicer, the Special Servicer, the Depositor, or the Holders of the Class R Certificates nor for any such Losses resulting from misinformation provided by the Holders of the Class R Certificates, the Servicer, the Special Servicer or the Depositor, on which the Trustee or the Certificate Administrator has relied. The foregoing shall not be deemed to limit or restrict the rights and remedies of successor Holders of the Class R Certificates at law or in equity.

246

If either the Lower-Tier REMIC or the Upper-Tier REMIC fails to qualify as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or a tax as a result of a prohibited transaction or contribution subject to taxation under the REMIC Provisions due to the willful misconduct, bad faith or negligent performance of the Servicer or the Special Servicer in the performance of its duties and obligations set forth herein, or by reason of the Servicer’s or Special Servicer’s negligent disregard of its obligations and duties thereunder, the Servicer or the Special Servicer, as the case may be, shall indemnify the Trust against any and all losses resulting therefrom; provided, that the Servicer or the Special Servicer, as the case may be, shall not be liable for any such losses attributable to the action or inaction of the Trustee, the Depositor, the Holders of the Class R Certificates nor for any such losses resulting from misinformation provided by the Trustee, the Certificate Administrator, the Depositor or the Holders of the Class R Certificates on which the Servicer or the Special Servicer, as the case may be, has relied. The foregoing shall not be deemed to limit or restrict the rights and remedies of any successor Holders of the Class R Certificates at law or in equity.

[signature page follows]

247

IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.

MORGAN STANLEY CAPITAL I INC., as Depositor
By:	/s/ Jane Lam
	Name:	Jane Lam
	Title:	President

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Servicer and Special Servicer
By:	/s/ Nachette Hadden
	Name:	Nachette Hadden
	Title:	Director

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
By:	/s/ Beverly D. Capers
	Name:	Beverly D. Capers
	Title:	Assistant Vice President

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator and Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact

MSC 2021-PLZA – Trust and Servicing Agreement

248

By:	/s/ Jessica Wuomos
	Name:	Jessica Wuomos
	Title:	Vice President

MSC 2021-PLZA – Trust and Servicing Agreement

249

STATE OF DELAWARE	)
	)	ss:
COUNTY OF NEW CASTLE	)

On this 12th day of November 2021, before me, the undersigned, a Notary Public in and for the State of Delaware, duly commissioned and sworn, personally appeared Beverly D. Capers, to me known who, by me duly sworn, did depose and acknowledge before me and say that she resides at 1100 North Market Street, Wilmington, DE ; that she is the Assistant Vice President of Wilmington Trust, National Association, a national banking association, the entity described in and that executed the foregoing instrument; and that she signed her name thereto under authority of the board of directors of said entity and on behalf of such entity.

WITNESS my hand and seal hereto affixed the day and year first above written.

/s/ Christina Bader

NOTARY PUBLIC in and for the State of Delaware

[SEAL]	CHRISTINA BADER
	NOTARY PUBLIC
My Commission expires:	STATE OF DELAWARE
	MY COMMISSION EXPIRES 02/24/2022

MSC 2021-PLZA – Trust and Servicing Agreement

250

STATE OF Minnesota	)
	) ss:
COUNTY OF Hennepin	)

On this 12 day of November 2021, before me, the undersigned, a Notary Public in and for the State of Minnesota, duly commissioned and sworn, personally appeared Jessica Wuomos, to me known who, by me duly sworn, did depose and acknowledge before me and say that s/he resides at Minneapolis, MN; that s/he is the VP of  Computershare, a Corporation. the entity described in and that executed the foregoing instrument; and that s/he signed her/his name thereto under authority of the board of directors of said entity and on behalf of such entity.

WITNESS my hand and seal hereto affixed the day and year first above written.

Thomas Brian Walker
NOTARY PUBLIC
MINNESOTA	/s/ Thomas Brian Walker
My Commission Expires Jan. 31, 2026	NOTARY PUBLIC in and for the State of Minnesota

[SEAL]

My Commission expires:

01/31/2026

MSC 2021-PLZA – Trust and Servicing Agreement

251

EXHIBIT A-1

FORM OF CLASS A CERTIFICATES

CLASS A

[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE TRUST AND SERVICING AGREEMENT.]¹

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]²

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSOR, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES.

¹ Temporary Regulation S Global Certificate legend.

² Legend required as long as DTC is the Depository under the Trust and Servicing Agreement.

NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.

Exhibit A-1-2

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, CLASS A

Pass-Through Rate:  Class A Pass-Through Rate
First Distribution Date: December 10, 2021
Aggregate Initial Certificate Balance of the Class A Certificates as of the Closing Date:  $151,211,500	Rated Final Distribution Date: November 2043
Certificate Balance of this Class A Certificate as of the Closing Date: $[_] [(subject to the Schedule of Exchanges attached as Schedule A hereto)]3 CUSIP:     [61773PAA9]4 [U7504PAA5]5 [61773PAB7]6
ISIN:         [US61773PAA93]7 [USU7504PAA58]8 [US61773PAB76]9
No.:  A-[1]

This certifies that [FOR DEFINITIVE CERTIFICATES: [NAME OF HOLDER]][FOR BOOK-ENTRY CERTIFICATES: Cede & Co.] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the Class A Certificates. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined

³ For Global Certificate only.

⁴ For Rule 144A Certificates

⁵ For Regulation S Certificates

⁶ For IAI Certificates

⁷ For Rule 144A Certificates

⁸ For Regulation S Certificates

⁹ For IAI Certificates

Exhibit A-1-3

below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Certificate is a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator will distribute, on the 4^th Business Day after the Determination Date, commencing in December 2021 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement.

All distributions will be made to the Persons entitled thereto by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location that is specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated

Exhibit A-1-4

transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature,

Exhibit A-1-5

this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-1-6

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Class A Certificates referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-1-7

SCHEDULE A

SCHEDULE OF EXCHANGES

The following payments of principal and exchanges of a part of this [Rule 144A Global Certificate] [Temporary Regulation S Global Certificate] [Regulation S Global Certificate] [Definitive Certificate] have been made:

Date of Exchange or Payment of Principal Certificate Balance Prior to Exchange or Payment Certificate Balance Exchanged or Principal Payment Made Type of Certificate Exchanged for Remaining Certificate Balance Following Such Exchange or Payment Notation Made by

Exhibit A-1-8

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-1-9

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: __________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-1-10

EXHIBIT A-2

FORM OF CLASS X CERTIFICATES

CLASS X

[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE TRUST AND SERVICING AGREEMENT.]¹⁰

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]¹¹

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSORS, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR

¹⁰ Temporary Regulation S Global Certificate legend.

¹¹ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement.

Exhibit A-2-1

GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS A CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT.

THIS CLASS X CERTIFICATE WILL NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT

Exhibit A-2-2

CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.

Exhibit A-2-3

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, CLASS X

Pass-Through Rate:  Class X Pass-Through Rate
First Distribution Date:  December 10, 2021
Aggregate Initial Notional Amount of the Class X Certificates as of the Closing Date:  $151,211,500	Rated Final Distribution Date: November 2043
Notional Amount of this Class X Certificate as of the Closing Date: $[____ ] [(subject to the Schedule of Exchanges attached as Schedule A hereto)]12 CUSIP:     [61773PAC5]13 [U7504PAB3]14 [61773PAD3]15
ISIN:         [US61773PAC59]16 [USU7504PAB32]17 [US61773PAD33]18
No.:  X-[1]

This certifies that [FOR DEFINITIVE CERTIFICATES: [NAME OF HOLDER]][FOR BOOK-ENTRY CERTIFICATES: Cede & Co.] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the Class X Certificates. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined

¹² For Global Certificate only.

¹³ For Rule 144A Certificates

¹⁴ For Regulation S Certificates

¹⁵ For IAI Certificates

¹⁶ For Rule 144A Certificates

¹⁷ For Regulation S Certificates

¹⁸ For IAI Certificates

Exhibit A-2-4

below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Certificate is a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator will distribute, on the 4th Business Day after the Determination Date, commencing in December 2021 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class X Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement.

All distributions will be made to the Persons entitled thereto by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location that is specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated

Exhibit A-2-5

transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature,

Exhibit A-2-6

this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-2-7

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Class X Certificates referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-2-8

SCHEDULE A

SCHEDULE OF EXCHANGES

The following payments of principal and exchanges of a part of this [Rule 144A Global Certificate] [Temporary Regulation S Global Certificate] [Regulation S Global Certificate] [Definitive Certificate] have been made:

Date of Exchange or Payment of Principal Certificate Balance Prior to Exchange or Payment Certificate Balance Exchanged or Principal Payment Made Type of Certificate Exchanged for Remaining Certificate Balance Following Such Exchange or Payment Notation Made by

Exhibit A-2-9

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-2-10

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: ______________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-2-11

EXHIBIT A-3

FORM OF CLASS B CERTIFICATES

CLASS B

[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE TRUST AND SERVICING AGREEMENT.]¹⁹

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]²⁰

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSOR, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES.

¹⁹ Temporary Regulation S Global Certificate legend.

²⁰ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement.

Exhibit A-3-1

NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CLASS B CERTIFICATE IS SUBORDINATED TO CERTAIN OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

Exhibit A-3-2

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.

Exhibit A-3-3

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, CLASS B

Pass-Through Rate:  Class B Pass-Through Rate
First Distribution Date: December 10, 2021
Aggregate Initial Certificate Balance of the Class B Certificates as of the Closing Date:  $72,133,500	Rated Final Distribution Date: November 2043
Certificate Balance of this Class B Certificate as of the Closing Date: $[_____] [(subject to the Schedule of Exchanges attached as Schedule A hereto)] 21 CUSIP:     [61773PAE1]22 [U7504PAC1]23 [61773PAF8]24
ISIN:         [US61773PAE16]25 [USU7504PAC15]26 [US61773PAF80]27
No.:  B-[1]

This certifies that [FOR DEFINITIVE CERTIFICATES: [NAME OF HOLDER]][FOR BOOK-ENTRY CERTIFICATES: Cede & Co.] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the Class B Certificates. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined

²¹ For Global Certificate only.

²² For Rule 144A Certificates

²³ For Regulation S Certificates

²⁴ For IAI Certificates

²⁵ For Rule 144A Certificates

²⁶ For Regulation S Certificates

²⁷ For IAI Certificates

Exhibit A-3-4

below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Certificate is a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator will distribute, on the 4^th Business Day after the Determination Date, commencing in December 2021 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class B Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement.

All distributions will be made to the Persons entitled thereto by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location that is specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated

Exhibit A-3-5

transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature,

Exhibit A-3-6

this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-3-7

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Class B Certificates referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-3-8

SCHEDULE A

SCHEDULE OF EXCHANGES

The following payments of principal and exchanges of a part of this [Rule 144A Global Certificate] [Temporary Regulation S Global Certificate] [Regulation S Global Certificate] [Definitive Certificate] have been made:

Date of Exchange or Payment of Principal Certificate Balance Prior to Exchange or Payment Certificate Balance Exchanged or Principal Payment Made Type of Certificate Exchanged for Remaining Certificate Balance Following Such Exchange or Payment Notation Made by

Exhibit A-3-9

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-3-10

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: _____________________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-3-11

EXHIBIT A-4

FORM OF CLASS C CERTIFICATES

CLASS C

[THIS CERTIFICATE IS A TEMPORARY REGULATION S GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE TRUST AND SERVICING AGREEMENT.]²⁸

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]²⁹

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSOR, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES.

²⁸ Temporary Regulation S Global Certificate legend.

²⁹ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement.

Exhibit A-4-1

NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CLASS C CERTIFICATE IS SUBORDINATED TO CERTAIN OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

Exhibit A-4-2

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.

Exhibit A-4-3

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, CLASS C

Pass-Through Rate:  Class C Pass-Through Rate
First Distribution Date: December 10, 2021
Aggregate Initial Certificate Balance of the Class C Certificates as of the Closing Date:  $42,655,000	Rated Final Distribution Date: November 2043
Certificate Balance of this Class C Certificate as of the Closing Date: $[_____] [(subject to the Schedule of Exchanges attached as Schedule A hereto)]30 CUSIP:     [61773PAG6]31 [U7504PAD9]32 [61773PAH4]33
ISIN:         [US61773PAG63]34 [USU7504PAD97]35 [US61773PAH47]36
No.:  C-[1]

This certifies that [FOR DEFINITIVE CERTIFICATES: [NAME OF HOLDER]][FOR BOOK-ENTRY CERTIFICATES: Cede & Co.] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the Class C Certificates. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined

³⁰ For Global Certificate only.

³¹ For Rule 144A Certificates

³² For Regulation S Certificates

³³ For IAI Certificates

³⁴ For Rule 144A Certificates

³⁵ For Regulation S Certificates

³⁶ For IAI Certificates

Exhibit A-4-4

below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Certificate is a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator will distribute, on the 4^th Business Day after the Determination Date, commencing in December 2021 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class C Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement.

All distributions will be made to the Persons entitled thereto by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location that is specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated

Exhibit A-4-5

transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature,

Exhibit A-4-6

this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-4-7

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Class C Certificates referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-4-8

SCHEDULE A

SCHEDULE OF EXCHANGES

The following payments of principal and exchanges of a part of this [Rule 144A Global Certificate] [Temporary Regulation S Global Certificate] [Regulation S Global Certificate] [Definitive Certificate] have been made:

Date of Exchange or Payment of Principal Certificate Balance Prior to Exchange or Payment Certificate Balance Exchanged or Principal Payment Made Type of Certificate Exchanged for Remaining Certificate Balance Following Such Exchange or Payment Notation Made by

Exhibit A-4-9

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-4-10

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: _____________________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-4-11

EXHIBIT A-5

FORM OF CLASS R CERTIFICATES

CLASS R

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSOR, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

THIS CERTIFICATE IS A “RESIDUAL INTEREST” IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. TAX PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 5.3 OF THE TRUST AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT IN THE FORM ATTACHED AS AN EXHIBIT TO THE TRUST AND SERVICING AGREEMENT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. TAX PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AB INITIO AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS

Exhibit A-5-1

CERTIFICATE REPRESENTS ONE OR MORE “NON-ECONOMIC RESIDUAL INTERESTS”, AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO THE DESIGNATION OF THE CERTIFICATE ADMINISTRATOR AS THE “PARTNERSHIP REPRESENTATIVE” OF EACH TRUST REMIC WITHIN THE MEANING OF SECTION 6223 OF THE CODE.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT

Exhibit A-5-2

INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE CUSTODIAN, THE SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LOSS, LIABILITY OR EXPENSE THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

Exhibit A-5-3

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, CLASS R

Pass-Through Rate:  N/A	Rated Final Distribution Date:  N/A
CUSIP:  [61773PAJ0]	Percentage Interest of the Class R Certificates:  [_]%
ISIN: [US61773PAJ03]
No.:  R-[1]

This certifies that [____________] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the Class R Certificates. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Class R Certificate represents the sole “residual interest” in two “real estate mortgage investment conduits”, as those terms are defined, respectively, in Sections 860G(a)(2) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator is also hereby irrevocably designated as the “partnership representative” of the Upper-Tier REMIC and the Lower-Tier REMIC under Section 6223 of the Code.

Exhibit A-5-4

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holders, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the

Exhibit A-5-5

liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-5-6

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Class R Certificates referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-5-7

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-5-8

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: _____________________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-5-9

EXHIBIT A-6

FORM OF RR INTEREST

RR INTEREST

THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER, HEDGING AND PLEDGING PURSUANT TO THE CREDIT RISK RETENTION RULES. THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH THE TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. THE CERTIFICATE REGISTRAR SHALL REFUSE TO REGISTER THE TRANSFER OF THIS CERTIFICATE UNLESS SUCH TRANSFER IS IN ACCORDANCE WITH SECTION 5.3(i) OF THE TRUST AND SERVICING AGREEMENT.

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWER SPONSOR, THE GUARANTOR, THE BORROWER, THE SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE CUSTODIAN, THE TRUSTEE, THE INITIAL PURCHASER, THE MORTGAGE LOAN SELLER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (A) IN THE UNITED STATES ONLY (1) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

Exhibit A-6-1

AND (2) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (B) IN THE CASE OF THE REGULAR CERTIFICATES, TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (C) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.

Exhibit A-6-2

MORGAN STANLEY CAPITAL I TRUST 2021-PLZA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2021-PLZA, RR INTEREST

Pass-Through Rate:  NAP
First Distribution Date: December 10, 2021
Aggregate Initial Certificate Balance of the RR Interest Certificates as of the Closing Date:  $14,000,000	Rated Final Distribution Date: N/A
Certificate Balance of this RR Interest Certificate as of the Closing Date: $[__] CUSIP:   [_]
No.:  RR-[1]

This certifies that [____________] is the registered owner of the Percentage Interest evidenced by this Certificate in the distributions to be made from a Trust Fund with respect to the RR Interest. The Trust Fund consists primarily of one or more separate promissory notes held in trust by the Trustee, issued by a special purpose entity and evidencing a fixed-rate mortgage loan (the “Mortgage Loan”). The Trust Fund was created, and the Mortgage Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

This Certificate is issued pursuant to, and in accordance with, the terms of a Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

This Certificate is a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Exhibit A-6-3

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator will distribute, on the 4^th Business Day after the Determination Date, commencing in December 2021 (each such date, a “Distribution Date”), to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the RR Interest for such Distribution Date, all as more fully described in the Trust and Servicing Agreement.

All distributions will be made to the Persons entitled thereto by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity located in the United States and having appropriate facilities therefor provided that the Certificate Administrator has received appropriate wire transfer instructions therefrom, or by check by first class mail to the address set forth therefor in the Certificate Register if wiring instructions have not been received at least five (5) Business Days prior to the Distribution Date. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the location that is specified by the Certificate Administrator in the notice to Certificateholders of such final distribution.

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the parties thereto.

As provided in the Trust and Servicing Agreement, subject to certain restrictions on transfer set forth therein, this Certificate may only be transferred upon receipt by the Certificate Administrator of (i) a certificate executed by the prospective Transferee in the form set forth in the Trust and Servicing Agreement, countersigned by the Retaining Sponsor and (ii) a certificate from the prospective Transferor in the form set forth in the Trust and Servicing Agreement.

Prior to due presentation of this Certificate for registration of transfer, the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, and any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in the Trust and Servicing Agreement and for all other purposes whatsoever, and none of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer, the Certificate Registrar, nor any agent of the Certificate Administrator, the Trustee, the Servicer, the Special Servicer or the Certificate Registrar shall be affected by any notice to the contrary; provided, that to the extent that a party to the Trust and Servicing Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to the Trust and Servicing Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

The Trust and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the

Exhibit A-6-4

Certificateholders under the Trust and Servicing Agreement at any time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than 51% of the aggregate Percentage Interests constituting the Class. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon the Certificate. The Trust and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.

The Trust and Servicing Agreement provides that the respective obligations and responsibilities of the Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee created thereby (other than the obligation to make certain payments to the Companion Loan Holder, other than the obligation of the Certificate Administrator to make certain payments to Certificateholders after the final Distribution Date and other than the indemnification rights and obligations of the parties thereto) shall terminate upon the last action required to be taken by the Certificate Administrator on the final Distribution Date pursuant to Article 11 of the Trust and Servicing Agreement following the later of (i) the final payment on the Certificates or (ii) the liquidation of the Mortgage Loan (including, without limitation, the sale of the Mortgage Loan pursuant to the Trust and Servicing Agreement, as applicable) or the liquidation or abandonment of the Property and all other Collateral for the Mortgage Loan; provided, that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date of execution of the Trust and Servicing Agreement.

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.

Exhibit A-6-5

IN WITNESS WHEREOF, the Certificate Administrator has caused this Certificate to be duly executed.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Certificate of Authentication

This is one of the Definitive Certificates evidencing the RR Interest referred to in the Trust and Servicing Agreement.

Dated: November 17, 2021

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit A-6-6

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned (“Assignor(s)”) hereby sell(s), assign(s) and transfer(s) unto __________________________________________ (please print or typewrite name(s) and address(es), including postal zip code(s) of assignee(s)) (“Assignee(s)”) the entire Percentage Interest represented by the within Certificate and hereby authorize(s) the registration of transfer of such interest to Assignee(s) on the Certificate Register of the Trust.

I (we) further direct the Certificate Registrar to issue a new Certificate of the entire Percentage Interest represented by the within Certificate to the above-named Assignee(s) and to deliver such Certificate to the following address:

Date: __________________

Signature by or on behalf of
Assignor(s):

Taxpayer Identification Number:  _________

Exhibit A-6-7

DISTRIBUTION INSTRUCTIONS

The Assignee(s) should include the following for purposes of distribution:

Address of the Assignee(s) for the purpose of receiving notices and distributions: _____________________________________________________________________.

Distributions, if being made by wire transfer in immediately available funds, to ____________________________ for the account of __________________________ account number ____________________.

This information is provided by _______________________________________ the Assignee(s) named above, or ________________________________________________ as its (their) agent.

By:
	[Please print or type name(s)]
Title:
Taxpayer Identification Number:

Exhibit A-6-8

EXHIBIT B

FORM OF REQUEST FOR RELEASE
(for Custodian)

Mortgage Loan Information
	Name of Mortgagor:
Custodian
	Name:	Wells Fargo Bank, National Association
	Address:	1055 10th Avenue SE Minneapolis, Minnesota 55414 Attention: Document Custody Group – MSC 2021-PLZA
	Custodian/Certificate Administrator Mortgage File No.:
Depositor
	Name:	Morgan Stanley Capital I Inc.
	Address:	1585 Broadway New York, New York 10036
	Certificates:	Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

The undersigned [Servicer] [Special Servicer] hereby requests delivery from Wells Fargo Bank, National Association, as custodian (the “Custodian”), for the Holders of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, of the documents referred to below (the “Documents”). All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Trust and Servicing Agreement, dated as of November 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian (the “Trust and Servicing Agreement”).

( ) Note dated [          ], 2021, in the original principal sum of $________, made by _______, payable to, or endorsed to the order of, the Trustee.

Exhibit B-1

( ) Mortgage(s) recorded on ____________ as instrument no. ________ in the County Recorder’s Office of the County of _________, State of ___________ in book/reel/docket ___________ of official records at page/image ________.

( ) Deed of Trust(s) recorded on __________ as instrument no. ________ in the County Recorder’s Office of the County of ___________, State of _______ in book/reel/docket ____________ of official records at page/image.

( ) Deed to Secure Debt recorded on __________ as instrument no. ________ in the County Recorder’s Office of the County of ___________, State of _______ in book/reel/docket ____________ of official records at page/image.

( ) Other documents, including any amendments, assignments or other assumptions of the Note or Mortgages.

( ) ___________________________

( ) ___________________________

( ) ___________________________

( ) ___________________________

The undersigned [Servicer] [Special Servicer] hereby acknowledges and agrees as follows:

(1)       Once received, the [Servicer] [Special Servicer] shall hold and retain possession of the Documents in accordance with the provisions of the Trust and Servicing Agreement and the Documents will be returned to you, except if the Mortgage Loan has been paid in full or repurchased and the proceeds thereof have been remitted to the Collection Account except as expressly provided in the Trust and Servicing Agreement (in which case the Documents will be retained by us permanently or, in the case of a repurchase, sent to the designee of the Mortgage Loan Seller, as the case may be), when the need therefor no longer exists.

(2)       The [Servicer] [Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claims, liens, security interests, charges, writs of attachment or other impositions nor shall the [Servicer] [Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof except as otherwise provided in the Trust and Servicing Agreement.

(3)       The Documents, coming into the possession or control of the [Servicer] [Special Servicer] shall at all times be earmarked for the account of the Custodian, and the [Servicer] [Special Servicer] shall keep the Documents separate and distinct from all other property in the [Servicer’s] [Special Servicer’s] possession, custody or control.

Exhibit B-2

[SERVICER][SPECIAL SERVICER]
By:
	Name:
	Title:

Date: _________

Exhibit B-3

EXHIBIT C

FORM OF TRANSFER CERTIFICATE
FOR RULE 144A GLOBAL CERTIFICATE
TO TEMPORARY REGULATION S GLOBAL CERTIFICATE

(Exchanges or transfers pursuant to
Section 5.3(c) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC: N9300-070

Minneapolis, Minnesota 55415

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with the Depository in the name of [Euroclear] [Clearstream]^* (Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Trust and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States;

^* Select appropriate depository.

Exhibit C-1

[(2)      at the time the buy order was originated, the transferee was an institution outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was an institution outside the United States;]^**

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]^**

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Servicer, the Special Servicer and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Morgan Stanley Capital I Inc.

^** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit C-2

EXHIBIT D

FORM OF TRANSFER CERTIFICATE
FOR RULE 144A GLOBAL CERTIFICATE
TO REGULATION S GLOBAL CERTIFICATE

(Exchange or transfers pursuant to
Section 5.3(d) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC: N9300-070

Minneapolis, Minnesota 55415

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Regulation S Global Certificate of such Class (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Trust and Servicing Agreement and, with respect to transfers made in reliance on Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit D-1

[(2)     at the time the buy order was originated, the transferee was an institution outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was an institution outside the United States,]^*

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Servicer, the Special Servicer and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Morgan Stanley Capital I Inc.

^* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit D-2

EXHIBIT E

FORM OF TRANSFER CERTIFICATE
FOR TEMPORARY REGULATION S GLOBAL CERTIFICATE
TO RULE 144A GLOBAL CERTIFICATE DURING RESTRICTED PERIOD

(Exchange or transfers pursuant to
Section 5.3(e) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC: N9300-070

Minneapolis, Minnesota 55415

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

^* Select appropriate depository.

Exhibit E-1

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Servicer, the Special Servicer and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Morgan Stanley Capital I Inc.

Exhibit E-2

EXHIBIT F

FORM OF CERTIFICATION TO BE GIVEN BY
BENEFICIAL OWNER OF TEMPORARY
REGULATION S GLOBAL CERTIFICATE

(Exchanges pursuant to
Section 5.3(f) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar

600 South 4th Street, 7th Floor

MAC: N9300-070

Minneapolis, Minnesota 55415

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

[For purposes of acquiring a beneficial interest in a Regulation S Global Certificate of the Class specified above after the expiration of the Restricted Period,] [For purposes of receiving payments under a Temporary Regulation S Global Certificate of the Class specified above,]^* the undersigned holder of a beneficial interest in a Temporary Regulation S Global Certificate of the Class specified above issued under the Trust and Servicing Agreement certifies that it is not a U.S. Person as defined by Regulation S under the Securities Act of 1933, as amended.

We undertake to advise you promptly by facsimile on or prior to the date on which you intend to submit your corresponding certification relating to the Certificates of the Class specified above held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we

^* Select, as applicable.

Exhibit F-1

irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian and the Initial Purchaser.

Dated:______________

By:
	as, or as agent for, the holder of a beneficial interest in the Certificates to which this certificate relates.

Exhibit F-2

EXHIBIT G

FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO TEMPORARY REGULATION S GLOBAL CERTIFICATE

(Exchanges or transfers pursuant to
Section 5.3(g) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

MAC: N9300-070 

Minneapolis, Minnesota 55415 

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Temporary Regulation S Global Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository.

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Trust and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States;

* Select appropriate depository. 

Exhibit G-1

[(2)      at the time the buy order was originated, the transferee was an institution outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was an institution outside the United States;]^**

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;] ^**

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Morgan Stanley Capital I Inc.

** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. 

Exhibit G-2

EXHIBIT H

FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO REGULATION S GLOBAL CERTIFICATE

(Exchange or transfers pursuant to
Section 5.3(g) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

MAC: N9300-070 

Minneapolis, Minnesota 55415 

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Regulation S Global Certificate (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Trust and Servicing Agreement and, with respect to transfers made in reliance on Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit H-1

[(2)     at the time the buy order was originated, the transferee was an institution outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was an institution outside the United States,]^*

[(2)     the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,] ^*

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Morgan Stanley Capital I Inc.

^* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. 

Exhibit H-2

EXHIBIT I

FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO RULE 144A GLOBAL CERTIFICATE

(Exchange or transfers pursuant to
Section 5.3(g) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

MAC: N9300-070 

Minneapolis, Minnesota 55415 

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance][Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Global Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding.

Exhibit I-1

This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian and the Initial Purchaser.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Morgan Stanley Capital I Inc.

Exhibit I-2

EXHIBIT J-1

FORM OF AFFIDAVIT PURSUANT TO
SECTION 860(E)(e) OF THE INTERNAL REVENUE CODE OF 1986

AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED

STATE OF ___________	)
	) ss:
COUNTY OF ____________	)

                                     , being first duly sworn, deposes and says:

1.       That he/she is a                                       of                                       (the “Purchaser”), a                                       duly organized and existing under the laws of the State of                                       on behalf of which he/she makes this affidavit.

2.       That the Purchaser’s Taxpayer Identification Number is                             .

3.       That the Purchaser is acquiring a Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class R (the “Residual Certificate”) and, further, that the Purchaser is a Permitted Transferee (as defined in Article 1 of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), entered into between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian, or is acquiring the Residual Certificate for the account of, or as agent (including as a broker, nominee, or other middleman) for, a Permitted Transferee and has received from such person or entity an affidavit substantially in the form of this affidavit.

4.       That the Purchaser historically has paid its debts as they have come due, intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Residual Certificate as they become due.

5.       That the Purchaser understands that it may incur tax liabilities with respect to the Residual Certificate in excess of any cash flow generated by the Residual Certificate.

6.       That the Purchaser will not transfer the Residual Certificate to any person or entity from which the Purchaser has not received an affidavit substantially in the form of this affidavit or as to which the Purchaser (i) has actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or paragraph 7 hereof are not satisfied, (ii) has reason to know does not satisfy the requirements set forth in paragraph 4 hereof or (iii) has actual knowledge that such person or entity is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a person or entity that is not a Permitted Transferee.

Exhibit J-1-1

7.       That the Purchaser is not a Disqualified Non-U.S. Person and is not purchasing the Residual Certificate for the account of, or as an agent (including as a broker, nominee or other middleman) for, a Disqualified Non-U.S. Person and is otherwise a Permitted Transferee, and attached hereto is an Internal Revenue Service (“IRS”) Form W-9 (or successor form).

8.       That the Purchaser agrees to such amendments of the Trust and Servicing Agreement as may be required to further effectuate the restrictions on transfer of the Residual Certificate to a “disqualified organization,” an agent thereof, or a person that does not satisfy the requirements of paragraph 4, paragraph 7 and paragraph 11 hereof. For the purposes hereof, a “disqualified organization” is any of the following: (a) the United States, a State, or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except in the case of FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1)) of the Code with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2) of the Code or (e) any other person so designated by the Certificate Registrar based upon an Opinion of Counsel to the effect that any transfer of a Residual Certificate to such person may cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding. The terms “United States,” “State” and “International Organization” have the meanings set forth in Section 7701 of the Code or successor provisions.

9.       The Purchaser agrees (a) that the Certificate Administrator shall make any elections allowed to avoid (i) the application of Code Section 6221 to the Trust REMIC and (ii) payment by the Trust REMIC under Code Section 6225 of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on the holders of the Residual Certificates and (b) to the Certificate Administrator being designated pursuant to Section 13.1(h) of the Trust and Servicing Agreement as the “partnership representative” of the Upper-Tier REMIC and the Lower-Tier REMIC under Section 6223 of the Code.

10.       The Purchaser agrees to be bound by and to abide by the provisions of Section 5.3 of the Trust and Servicing Agreement concerning registration of the transfer and exchange of the Residual Certificate.

11.       The Purchaser will not cause income from the Residual Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other U.S. Person.

12.       Check the applicable paragraph:

☐       The present value of the anticipated tax liabilities associated with holding the Residual Certificate, as applicable, does not exceed the sum of:

Exhibit J-1-2

(i)         the present value of any consideration given to the Purchaser to acquire such Residual Certificate;

(ii)        the present value of the expected future distributions on such Certificate; and

(iii)       the present value of the anticipated tax savings associated with holding such Residual Certificate as the related REMIC generates losses.

For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the highest rate currently specified in Code Section 11(b) (but the tax rate in Code Section 55(b)(1)(B) may be used in lieu of the highest rate specified in Code Section 11(b) if the Purchaser has been subject to the alternative minimum tax under Code Section 55 in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short term Federal rate prescribed by Code Section 1274(d) for the month of the transfer and the compounding period used by the Purchaser.

☐           The transfer of the Residual Certificate complies with U.S. Treasury Regulations Section 1.860E-1(c)(5) and (6) and, accordingly,

(i)         the Purchaser is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Residual Certificate will only be taxed in the United States;

(ii)        at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;

(iii)       the Purchaser will transfer the Residual Certificate only to another “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Section 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and

(iv)       the Purchaser determined the consideration paid to it to acquire the Residual Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.

☐            None of the above.

Capitalized terms used but not defined herein have the respective meanings ascribed to such terms in the Trust and Servicing Agreement.

Exhibit J-1-3

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on its behalf by its                                       this      day of               , 20    .

[The Purchaser]
By:
	Name:
	Title:

Exhibit J-1-4

Personally appeared before me the above named ___________________, known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.

Subscribed and sworn before me this      day of               , 20    .

NOTARY PUBLIC 

COUNTY OF ____________

STATE OF ______________

My commission expires the    __  day of              __ , 20    .

Exhibit J-1-5

EXHIBIT J-2

FORM OF TRANSFEROR LETTER

[Date]

Wells Fargo Bank, National Association,
as Certificate Registrar 

600 South 4th Street, 7th Floor 

MAC: N9300-070 

Minneapolis, Minnesota 55415
Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class R

Ladies and Gentlemen:

[Transferor] has reviewed the attached affidavit of [Transferee], and has no actual knowledge that such affidavit is not true or that [Transferee] is not a Permitted Transferee (as defined in the Trust and Servicing Agreement defined in the attached affidavit) and has no actual knowledge that the Transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the information contained in paragraphs 4, 7 and 11 thereof is not true. No purpose of [Transferor] relating to the transfer of the Class R Certificate by [Transferor] to [Transferee] is or will be to impede the assessment of any tax.

Very truly yours,
[Transferor]
By:
	Name:
	Title:

Exhibit J-2-1

EXHIBIT J-3

Form of Transferee CERTIFICATE FOR TRANSFERS
OF RR Interest

[Date]

Wells Fargo Bank, National Association 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Risk Retention Custody (CMBS) – MSC 2021-PLZA

[OR OTHER CERTIFICATE REGISTRAR]

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

Morgan Stanley Capital I Inc.  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

Morgan Stanley Capital I Inc.  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

With a copy via email to: cmbs_notices@morganstanley.com

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”) issued pursuant to the Trust and Servicing Agreement (the “Trust and Servicing Agreement”), dated as of November 1, 2021, between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian.

Exhibit J-3-1

[_________] (the “Purchaser”) hereby certifies, represents and warrants to each of the addressees hereto, as Depositor, and as “retaining sponsor”, as such term is defined in Regulation RR, that:

1. The Purchaser is acquiring $[_____] Certificate Balance of the RR Interest from [_____] (the “Transferor”).

2. The Purchaser is aware that the Certificate Registrar will not register any transfer of an RR Interest by the Purchaser unless the Purchaser’s transferee, or such transferee’s agent, delivers to the Certificate Registrar, among other things, a certificate in substantially the same form as this certificate. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such certificate is false.

3. The transfer is in compliance with the EU/UK Retention Agreement, dated and effective as of November 17, 2021, between Morgan Stanley Bank, N.A., Morgan Stanley Capital I Trust 2021-PLZA, Morgan Stanley Capital I Inc., Wilmington Trust, National Association, as Trustee on behalf of the holders of the Certificates pursuant to the Trust and Servicing Agreement, and Wells Fargo Bank, National Association, as Certificate Administrator under the Trust and Servicing Agreement, and the Transferor has satisfied all requirements pursuant to that agreement.

4. If the Purchaser is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the transfer of the RR Interest will be effected through Morgan Stanley & Co. LLC or an affiliate thereof.

5. Check one of the following:

☐       The transfer will occur during the RR Interest Transfer Restriction Period, and the Purchaser certifies, represents and warrants to each of the addressees hereto, that:

A. It is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

B. It is not acquiring the RR Interest as a nominee, trustee or agent for any person that is not a Majority-Owned Affiliate, and that for so long as it retains its interest in the RR Interest, it will remain a Majority-Owned Affiliate.

C. It will be bound by the U.S. Credit Risk Retention Agreement, between Morgan Stanley Mortgage Capital Holdings LLC and Morgan Stanley Bank, N.A., dated and effective as of November 17, 2021 (the “U.S. Credit Risk Retention Agreement”) as if it were party to such agreement.

Exhibit J-3-2

D. It consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that its ownership of the RR Interest will satisfy the risk retention requirements of the Transferor, in its capacity as [retaining sponsor][originator] under Regulation RR.

☐       The transfer will occur after the expiration of the RR Interest Transfer Restriction Period.

Capitalized terms used but not defined herein have the meanings assigned thereto in the Trust and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

[PURCHASER]
By:
	Name:
	Title:

Exhibit J-3-3

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]
By:
	Name:
	Title:

Exhibit J-3-4

EXHIBIT J-4

FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF RR INTEREST

[Date]

Wells Fargo Bank, National Association 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Risk Retention Custody (CMBS) – MSC 2021-PLZA

[OR OTHER CERTIFICATE REGISTRAR]

Morgan Stanley Mortgage Capital Holdings LLC,
as Retaining Sponsor  

1585 Broadway 

New York, New York 10036 

Attention: Jane Lam

Morgan Stanley Capital I Inc.  

1633 Broadway, 29th Floor 

New York, New York 10019 

Attention: Legal Compliance Division

With a copy via email to: cmbs_notices@morganstanley.com

[EACH OTHER HOLDER OF AN RR INTEREST]

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”)

Ladies and Gentlemen:

This is delivered to you in connection with the transfer by [____] (the “Transferor”) to [____] (the “Transferee”) of $[____] aggregate Certificate Balance of the RR Interest. The Certificates were issued pursuant to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Trust and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you that:

1. The transfer is in compliance with the Trust and Servicing Agreement.

2. The transfer is in compliance with the EU/UK Retention Agreement, dated and effective as of November 17, 2021, between Morgan Stanley Bank, N.A., Morgan Stanley Capital

Exhibit J-4-1

I Trust 2021-PLZA, Morgan Stanley Capital I Inc., Wilmington Trust, National Association, as Trustee on behalf of the holders of the Certificates pursuant to the Trust and Servicing Agreement, and Wells Fargo Bank, National Association, as Certificate Administrator under the Trust and Servicing Agreement, and the Transferor has satisfied all requirements pursuant to that agreement.

3. If the Transferee is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the RR Interest, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the RR Interest and (b) the acquisition of the RR Interest will be effected through Morgan Stanley & Co. LLC or an affiliate thereof.

4. Check one of the following:

☐     The transfer will occur during the RR Interest Transfer Restriction Period, and the Transferor certifies, represents and warrants to each of the addressees hereto, that:

A. The transfer is in compliance with the U.S. Credit Risk Retention Agreement, between Morgan Stanley Mortgage Capital Holdings LLC and Morgan Stanley Bank, N.A., dated and effective as of November 17, 2021 (the “Credit Risk Retention Agreement”).

B. The Transferee is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor.

C. The Transferee has complied in all material respects with all of the covenants in the U.S. Credit Risk Retention Agreement during the period from the date of the U.S. Credit Risk Retention Agreement through and including the date of this transfer.

D. All of the applicable representations and warranties made by the Transferor in the U.S. Credit Risk Retention Agreement are true and correct as of the date of the transfer.

E. All of the requirements set forth in Section 3(c) of the U.S. Credit Risk Retention Agreement have been complied with through and including the date of the transfer.

☐           The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

5. The Transferor understands that the Transferee has delivered to you a Transferee Certificate in the form attached to the Trust and Servicing Agreement as Exhibit J-3. The Transferor does not have knowledge (after due inquiry) that any representation contained therein is false.

Exhibit J-4-2

IN WITNESS WHEREOF, the Transferor has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

	[TRANSFEROR]
By:
	Name:
	Title:

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]
By:
	Name:
	Title:

Exhibit J-4-3

EXHIBIT J-5

FORM OF ERISA REPRESENTATION LETTER

[Date]

Wells Fargo Bank, National Association,

as Certificate Registrar

600 South 4th Street, 7th Floor

MAC: N9300-070

Minneapolis, Minnesota 55415

Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Capital I Inc.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

With a copy via email to: cmbs_notices@morganstanley.com

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, [Class R][RR Interest]

Ladies and Gentlemen:

(the “Purchaser”) intends to purchase from ________ (the “Seller”) [       ]% Percentage Interest of Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [ ], CUSIP No. [ ] (the “Certificates”), issued pursuant to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), entered into between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian. All capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Trust and Servicing Agreement. The Purchaser hereby certifies, represents and warrants to, and covenants with, the Depositor, the Certificate Administrator and the Certificate Registrar that:

1.       The Purchaser is not and will not become (a) an employee benefit plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) for which no election has been made under Section

Exhibit J-5-1 

410(d) of the Code, or any other plan subject to any federal, state or local law (“Similar Law”) which is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each a “Plan”) or (b) a person acting on behalf of or using the assets of any such Plan (within the meaning of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA)[TO BE DELETED FOR CLASS R CERTIFICATES AND THE RR INTEREST: , other than an insurance company using the assets of its “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60) under circumstances whereby the purchase and holding of Certificates by such insurance company would be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of PTCE 95-60 (or a Plan subject to Similar Law purchasing under circumstances that would not constitute or result in a non-exempt violation of applicable Similar Law)].

2.       [TO BE DELETED FOR CLASS R CERTIFICATES AND THE RR INTEREST: The Purchaser understands that if the Purchaser is or becomes a Person referred to in 1(a) or (b) above, such Purchaser is required to provide to the Trustee and Certificate Administrator an Opinion of Counsel in form and substance satisfactory to the Trustee and Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a “prohibited transaction” within the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Servicer, the Special Servicer, the Initial Purchaser or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Trust and Servicing Agreement, which Opinion of Counsel shall not be at the expense of the Depositor, the Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Initial Purchaser or the Trust.]

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on this       day of ____, 20 __.

Very truly yours,
[Purchaser]
By:
	Name: Title:

Exhibit J-5-2 

EXHIBIT K-1

FORM OF INVESTOR CERTIFICATION

[Date]

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) Morgan Stanley Capital I Trust 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

In accordance with the requirements for obtaining certain information under, or the exercise of Voting Rights pursuant to, the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.             The undersigned is either (a) a Certificateholder (or representative thereof), a Beneficial Owner or a prospective purchaser of the Class ___ Certificates, (b) Companion Loan Holder (or a party to an Other Pooling and Servicing Agreement on its behalf) or (c) the Mortgage Loan Seller if it has repurchased the Mortgage Loan.

2.             The undersigned is not the Guarantor, the Borrower Sponsor, the Property Manager, a foreclosing mezzanine lender or an Affiliate of any of the foregoing, a Borrower Party, or any agent of any of the foregoing.

3.             The undersigned is requesting access pursuant to the Trust and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s website and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Trust and Servicing Agreement.

In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Certificate Administrator, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.

The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require

Exhibit K-1-1 

registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

4.             If the undersigned intends to exercise Voting Rights under the Trust and Servicing Agreement, please check one of the following:

___ The undersigned is not the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Guarantor, the Borrower Sponsor, the Property Manager, a foreclosing mezzanine lender or an Affiliate of any of the foregoing, a Borrower Party, or an agent of any of the foregoing; and the undersigned [is] [is not] the Servicer, the Special Servicer, or an Affiliate of any of the foregoing;

___ The undersigned is an Affiliate of the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian and hereby certifies to the existence of an Affiliate Ethical Wall between it and the Depositor, the Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Custodian, as applicable.

5.             If the undersigned intends to become the Controlling Class Representative, exercising any rights of the Controlling Class or Risk Retention Consultation Party or receiving Asset Status Reports or any other information under the Trust and Servicing Agreement (other than the Distribution Date Statement), the undersigned is not the Guarantor, the Borrower Sponsor, the Property Manager, a foreclosing mezzanine lender or an Affiliate of any of the foregoing, a Borrower Party, or an agent of any of the foregoing.

6.             The undersigned shall be fully liable for any breach of this certificate by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.             The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.

8.             Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.

[Entity Name]

By:

Name:

Exhibit K-1-2 

Title:

Company:

Phone:

Exhibit K-1-3 

EXHIBIT K-2

FORM OF INVESTOR CERTIFICATION

FOR

BORROWER, BORROWER PARTIES, GUARANTOR, BORROWER SPONSOR AND PROPERTY MANAGER (AND THEIR RESPECTIVE AFFILIATES)

[Date]

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) Morgan Stanley Capital I Trust 2021-PLZA

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, Class [__]

In accordance with the requirements for obtaining certain information under, or the exercise of Voting Rights pursuant to, the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.            The undersigned is either (a) a Certificateholder (or representative thereof), a Beneficial Owner or a prospective purchaser of the Class ___ Certificates, (b) Companion Loan Holder (or a party to an Other Pooling and Servicing Agreement on its behalf) or (c) the Mortgage Loan Seller if it has repurchased the Mortgage Loan.

2.            The undersigned is the Guarantor, the Borrower Sponsor, the Property Manager, a foreclosing mezzanine lender or an Affiliate of any of the foregoing, the Borrower or a Borrower Party, or any agent of any of the foregoing

3.            The undersigned is requesting access to the Distribution Date Statement information in accordance with the Trust and Servicing Agreement (the “Information”) and agrees to keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Certificate Administrator, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.

Exhibit K-2-1 

The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

4.            The undersigned shall be fully liable for any breach of this certificate by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Custodian, the Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5.            Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust Agreement.

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.

[Entity Name]

By:

Name:

Title:

Company:

Phone:

Exhibit K-2-2 

EXHIBIT K-3

FORM OF CERTIFICATION OF THE CONTROLLING CLASS REPRESENTATIVE

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo 401 South Tryon Street, 8th Floor MAC D1050-084 Charlotte, North Carolina 28202 Attention: MSC 2021-PLZA Asset Manager Facsimile number: (704) 715-0036 With a copy by email to: commercial.servicing@wellsfargo.com	Morgan Stanley Capital I Inc. 1585 Broadway New York, New York 10036 Attention: Jane Lam Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Corporate Trust Services (CMBS) MSC 2021-PLZA (with a copy sent via email to: trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com)
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee MSC 2021-PLZA (with a copy sent contemporaneously via email to CMBSTrustee@wilmingtontrust.com)

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

In accordance with Section 9.1(c) of the Trust and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.       The undersigned has been appointed to act as the Controlling Class Representative.

2.       Each of the undersigned and the Majority Controlling Class Certificateholders that appointed it to act as the Controlling Class Representative is not the Guarantor, the Borrower Sponsor, the Property Manager, an Affiliate of any of the Guarantor, the Borrower Sponsor or the Property Manager, or the Borrower or a Borrower Party or any agent of the foregoing.

3.       The undersigned hereby certifies that an executed copy of this certification has been delivered in accordance with the notice provisions of the Trust and Servicing Agreement to each of the addressees listed above.

4.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

Exhibit K-3-1 

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.

[Controlling Class Representative]

By:

Title:

Company:

Phone:

Exhibit K-3-2 

EXHIBIT K-4

Form of Certification of the RISK RETENTION CONSULTATION PARTY

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo 401 South Tryon Street, 8th Floor MAC D1050-084 Charlotte, North Carolina 28202 Attention: MSC 2021-PLZA Asset Manager Facsimile number: (704) 715-0036 With a copy by email to: commercial.servicing@wellsfargo.com	Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Corporate Trust Services (CMBS) MSC 2021-PLZA (with a copy sent via email to: trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com) Morgan Stanley Capital I Inc. 1585 Broadway New York, New York 10036 Attention:  Jane Lam
Wells Fargo Bank, National Association, 600 South 4th Street, 7th Floor MAC: N9300-070 Minneapolis, Minnesota 55415 Attention: Certificate Transfer Services – CTS (CMBS) – MSC 2021-PLZA	Morgan Stanley Capital I Inc. 1633 Broadway, 29th Floor New York, New York 10019 Attention: Legal Compliance Division With a copy via email to: cmbs_notices@morganstanley.com
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee MSC 2021-PLZA (with a copy sent contemporaneously via email to CMBSTrustee@wilmingtontrust.com)

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, RR Interest

In accordance with Section 9.5(c) of the Trust and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.        The undersigned has been appointed to act as the Risk Retention Consultation Party.

[To be included if delivered after the Closing Date: 2. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Trust and Servicing Agreement to each of the

Exhibit K-4-1 

addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.]

[2][3]. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.

[RISK RETENTION CONSULTATION PARTY]
By:
	Name: Title:

Dated: _______

cc: Morgan Stanley Capital I Inc.

Exhibit K-4-2 

EXHIBIT K-5

FORM OF FINANCIAL MARKET PUBLISHER CERTIFICATION

(Pursuant to Section 3.21(b) of the Trust and Servicing Agreement)

[Date]

This Certification has been prepared for provision of information to the market data providers listed in the second paragraph below pursuant to the direction of the Depositor. If you represent a Financial Market Publisher not listed herein and would like access to the information, please contact Wells Fargo Bank, National Association at www. ctslink.com.

In connection with the Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”), the undersigned hereby certifies and agrees as follows:

The undersigned is an employee or agent of BlackRock Financial Management, Markit, CMBS.com, Inc., Bloomberg, L.P., Trepp, LLC, Thomson Reuters Corporation, Moody’s Analytics, ICE Data Services or Intex Solutions, Inc. or a market data provider that has been given access to the Distribution Date Statements, CREFC^® reports and supplemental notices on www. ctslink.com by request of the Depositor.

The undersigned agrees that each time it accesses www. ctslink.com the undersigned is deemed to have recertified that the representation above remains true and correct.

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the agreement pursuant to which the Certificates were issued.

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.

[______________________]

By:
	Name: Title: Phone: E-mail:
Dated:

Exhibit K-5-1 

EXHIBIT L

APPLICABLE SERVICING CRITERIA

The assessment of compliance to be delivered by the referenced party shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria” applicable to such party, as such criteria may be updated or limited by the Commission or its staff (including, without limitation, not requiring the delivery of certain of the items set forth on this Exhibit based on interpretive guidance provided by the Commission or its staff relating to Item 1122 of Regulation AB). For the avoidance of doubt, for purposes of this Exhibit L, other than with respect to Item 1122(d)(2)(iii), references to Servicer below shall include any Sub-Servicer engaged by a Servicer or Special Servicer.

APPLICABLE Servicing Criteria		applicable PARTY
Reference	Criteria
	General Servicing Considerations
1122(d)(1)(i)	Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.	Servicer Special Servicer Cert. Admin.
1122(d)(1)(ii)	If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.	Servicer Special Servicer Cert. Admin.  Custodian (if such entity is not also the Cert. Admin.)
1122(d)(1)(iii)	Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.	N/A
1122(d)(1)(iv)	A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.	Servicer  Special Servicer Cert. Admin. Trustee1 Custodian (if such entity is not also the Cert. Admin.)
1122(d)(1)(v)	Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.	Servicer Special Servicer Cert. Admin.
	Cash Collection and Administration
1122(d)(2)(i)	Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.	Servicer Special Servicer
1122(d)(2)(ii)	Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.	Cert. Admin.
1122(d)(2)(iii)	Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.	Servicer Trustee1

¹ Solely in the event that such entity has made an Advance with respect to a Companion Loan.

Exhibit L-1 

APPLICABLE Servicing Criteria		applicable PARTY
Reference	Criteria
1122(d)(2)(iv)	The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.	Servicer Special Servicer Cert. Admin.
1122(d)(2)(v)	Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Exchange Act.	Servicer Special Servicer Cert. Admin.
1122(d)(2)(vi)	Unissued checks are safeguarded so as to prevent unauthorized access.	Servicer Special Servicer Cert. Admin.
1122(d)(2)(vii)	Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	Servicer Special Servicer Cert. Admin.
	Investor Remittances and Reporting
1122(d)(3)(i)	Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer.	Cert. Admin.
1122(d)(3)(ii)	Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.	Cert. Admin.
1122(d)(3)(iii)	Disbursements made to an investor are posted within two business days to the Cert. Admin.’s investor records, or such other number of days specified in the transaction agreements.	Cert. Admin.
1122(d)(3)(iv)	Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.	Cert. Admin.
	Pool Asset Administration
1122(d)(4)(i)	Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.	Servicer Special Servicer Custodian
1122(d)(4)(ii)	Mortgage loan and related documents are safeguarded as required by the transaction agreements	Custodian
1122(d)(4)(iii)	Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.	Servicer Special Servicer
1122(d)(4)(iv)	Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.	Servicer
1122(d)(4)(v)	The Reporting Servicer’s records regarding the mortgage loans agree with the Reporting Servicer’s records with respect to an obligor’s unpaid principal balance.	Servicer

Exhibit L-2 

APPLICABLE Servicing Criteria		applicable PARTY
Reference	Criteria
1122(d)(4)(vi)	Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.	Servicer Special Servicer
1122(d)(4)(vii)	Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.	Special Servicer
1122(d)(4)(viii)	Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).	Servicer Special Servicer
1122(d)(4)(ix)	Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.	Servicer
1122(d)(4)(x)	Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.	Servicer
1122(d)(4)(xi)	Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.	Servicer
1122(d)(4)(xii)	Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.	Servicer
1122(d)(4)(xiii)	Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.	Servicer
1122(d)(4)(xiv)	Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.	Servicer
1122(d)(4)(xv)	Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.	N/A

At all times that the Servicer and the Special Servicer are the same entity, the Servicer and the Special Servicer may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit L-3 

EXHIBIT M

FORM OF NRSRO CERTIFICATION

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) Morgan Stanley Capital I Trust 2021-PLZA

Attention: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”)

In accordance with the requirements for obtaining certain information under the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian, executed in connection with the above-referenced transaction with respect to Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.  (a) the undersigned is a Rating Agency; or (b) the undersigned is an NRSRO that either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Trust and Servicing Agreement to certain information (the “Information”) on the 17g-5 Information Provider’s Website pursuant to the provisions of the Trust and Servicing Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y) if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement provided by the 17g-5 Information Provider and executed and delivered in connection with this certification hereto which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s website that hosts the Depositor’s 17g-5 website related to the Certificates after the Closing Date.

2. The undersigned either (a) has not accessed information pursuant to Rule 17g–5(a)(3) ten (10) or more times during the most recently ended calendar year, or (b) has determined and maintained credit ratings for at least 10% of the issued securities and money market instruments for which it accessed information pursuant to Rule 17g–5(a)(3)(iii) in the calendar year prior to the year covered by the SEC Certification, if it accessed such information for 10 or more issued securities or money market instruments;

Exhibit M-1 

3.  The undersigned has access to the Depositor’s 17g-5 website, and any confidentiality agreement applicable to the undersigned with respect to information obtained from the Depositor’s 17g-5 website shall also be applicable to information obtained from the 17g-5 Information Provider’s Website; and

4.  The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the 17g-5 Information Provider’s Website.

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

[NRSRO]

By:

Name:

Title:

Company:

Exhibit M-2 

ANNEX A

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with Morgan Stanley Capital I Inc. (together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA (the “Certificates”) pursuant to the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Wells Fargo Bank, National Association, as 17g-5 Information Provider under the Trust and Servicing Agreement, including the [section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Trust and Servicing Agreement)]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.

Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y)  any of the terms, conditions or other facts with respect to the transactions contemplated by the Trust and Servicing Agreement, including the status thereof; provided, that the term Confidential Information shall not include information which:

was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;

was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or

is independently developed by the NRSRO without reference to any Confidential Information.

Information to Be Held in Confidence.

You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).

You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.

You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:

Exhibit M-3 

- disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;

- solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5),post the Confidential Information to the NRSRO’s password protected website; and

- use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.

Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.

Obligation to Return Evaluation Material. Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.

Exhibit M-4 

Violations of this Confidentiality Agreement.

The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.

You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.

You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.

Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.

Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.

Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.

Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.

Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention: Jane Lam

Exhibit M-5 

EXHIBIT N

FORM OF POWER OF ATTORNEY BY TRUSTEE
FOR SERVICER AND SPECIAL SERVICER

RECORDING REQUESTED BY:

{insert address}

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890 as Trustee (the “Trustee”) pursuant to that Trust and Servicing Agreement dated as of November 1, 2021 (the “Agreement”) by and among Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as servicer (in such capacity, the “Servicer”) and as special servicer (in such capacity, the “Special Servicer”), Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator and custodian, and the Trustee hereby constitutes and appoints the [Servicer] [Special Servicer], by and through the [Servicer] [Special Servicer] officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the Servicer and all properties (“REO Properties”) administered by the [Servicer] [Special Servicer] pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the Mortgage Loans and REO Properties; provided however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that (i) said modification or re-recording, in either instance, does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

Exhibit N-1 

3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5. The completion of loan assumption agreements.

6. The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7. The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the mortgage loan secured and evidenced thereby.

8. The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9. The full enforcement of and preservation of the Trustee’s interests in the Mortgage Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

Exhibit N-2 

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and

i. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property.

12. The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties

Exhibit N-3 

(including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [Servicer] [Special Servicer] has the power to delegate its rights or obligations under the Agreement, the [Servicer] [Special Servicer] also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [Servicer] [Special Servicer]’s attorneys-in-fact shall have no greater authority than that held by the [Servicer] [Special Servicer].

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [Servicer] [Special Servicer] the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [Servicer] [Special Servicer] receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [Servicer] [Special Servicer] shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [Servicer] [Special Servicer] under the Agreement or to allow the [Servicer] [Special Servicer] to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [Servicer] [Special Servicer] hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or

Exhibit N-4 

disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [Servicer] [Special Servicer]. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

Wilmington Trust, National Association,
as Trustee for Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA
By:
	Name:
	Title:

Exhibit N-5 

State of Delaware}

County of ____}

On ________________________, before me, _________________________________Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

_________________________________

Notary signature

Exhibit N-6 

EXHIBIT O

Additional Form 10-D Disclosure

The parties identified in the “Party Responsible” column are obligated pursuant to Section 10.4 of the Trust and Servicing Agreement to disclose to each Other Depositor and each Other Certificate Administrator any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Offering Circular (other than information with respect to itself that is set forth in or omitted from the Offering Circular), in the absence of specific notice to the contrary from the Depositor or the Mortgage Loan Seller. For this Trust and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular.

Item on Form 10-D	Party Responsible
Item 1: Distribution and Pool Performance Information: ●     Item 1121 of Regulation AB (other than information contained in the Distribution Date Statement)	●     Servicer (only with respect to Item 1121(a)(12) of Regulation AB as to the non-Specially Serviced Mortgage Loan) ●     Special Servicer (only with respect to 1121(a)(12) as to Specially Serviced Loans) ●     Certificate Administrator ●     Depositor
Item 2: Legal Proceedings: ●     Item 1117 of Regulation AB (to the extent material to Certificateholders)	●     Servicer (as to itself) ●     Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Custodian (as to itself) (if such entity is not also the Certificate Administrator) ●     Depositor (as to itself) ●     Any other Reporting Servicer (as to itself) ●     Trustee/Certificate Administrator/ Servicer/Depositor/Special Servicer as to the Trust ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB
Item 3: Sale of Securities and Use of Proceeds	●     Depositor

 Exhibit O-1

Item 4: Defaults Upon Senior Securities	●     Certificate Administrator ●     Trustee
Item 5: Submission of Matters to a Vote of Security Holders	●     Certificate Administrator ●     Trustee ●     Depositor
Item 6: Significant Obligors of Pool Assets	●     Depositor ●     Sponsor ●     Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Special Servicer (as to a Specially Serviced Mortgage Loan and any Foreclosed Property)
Item 8: Significant Enhancement Provider Information	●     Depositor
Item 9: Other Information	●     Certificate Administrator (including the balances of the Distribution Account and the Interest Reserve Account as of the related Distribution Date and the preceding Distribution Date) ●     Servicer (with respect to the balances of the Foreclosed Property Account (to the extent the related information has been received from the Special Servicer as specified in Section 10.4 of the Trust and Servicing Agreement) and the Collection Account as of the related Distribution Date and the preceding Distribution Date) ●     Special Servicer (with respect to the balance of the Foreclosed Property Account as of the related Distribution Date and the preceding Distribution Date) ●     Any other party responsible for Form 8-K Disclosure information
Item 10: Exhibits	●     Certificate Administrator ●     Depositor ●     Servicer (but only with respect to Exhibit No. 10 of Item 601 of Regulation S-K and only to the extent that any contract satisfies all the following conditions: (a) such contract relates to an Other Securitization Trust or the Mortgage Loan or Foreclosed Property, and (b) such contract is a contract to which such party (or a subcontractor or

 Exhibit O-2

vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the such Other Securitization Trust)

●     Special Servicer

 Exhibit O-3

EXHIBIT P

Additional Form 10-K Disclosure

The parties identified in the “Party Responsible” column are obligated pursuant to Section 10.5 of the Trust and Servicing Agreement to disclose to each Other Depositor and each Other Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Offering Circular (other than information with respect to itself that is set forth in or omitted from the Offering Circular), in the absence of specific notice to the contrary from the Depositor or the Mortgage Loan Seller. For this Trust and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular.

Item on Form 10-K	Party Responsible
Item 1B: Unresolved Staff Comments	●     Depositor
Item 9B: Other Information	●     Certificate Administrator ●     Any other party responsible for Form 8-K Disclosure information
Item 15: Exhibits, Financial Statement Schedules	●     Certificate Administrator ●     Depositor
Additional Item: Disclosure per Item 1117 of Regulation AB (to the extent material to Certificateholders)	●     Servicer (as to itself) ●     Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Custodian (as to itself) (if such entity is not also the Certificate Administrator) ●     Depositor (as to itself) ●     Any other Reporting Servicer (as to itself) ●     Trustee/Certificate Administrator/ Servicer/Depositor/Special Servicer as to the Trust ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB
Additional Item: Disclosure per Item 1119 of Regulation AB	●     Servicer (as to itself) (to the extent material to Certificateholders and only as to

 Exhibit P-1

	affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Special Servicer, significant obligor contemplated by Item 1112, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) ●     Special Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under Item 1119(a) with the Trustee, the Custodian (if such entity is not also the Certificate Administrator), the Certificate Administrator, the Servicer, significant obligor contemplated by Item 1112, any sub-servicer meeting any of the descriptions in Item 1108(a)(3) or any enhancement or support provider contemplated by Items 1114 or 1115) ●     Certificate Administrator (as to itself) (to the extent material to Certificateholders) ●     Trustee (as to itself) (to the extent material to Certificateholders) ●     Custodian (as to itself, if such entity is not also the Certificate Administrator) (to the extent material to Certificateholders) ●     Depositor (as to itself and the Trust) ●     Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/ Servicer/Depositor/Special Servicer as to the Trust ●     Originators under Item 1110 of Regulation AB (to be provided by the Depositor) ●     Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor)
Additional Item: Disclosure per Item 1112(b) of Regulation AB	●     Depositor ●     Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Special Servicer (as to a Specially Serviced Mortgage Loan and any Foreclosed Property)
Additional Item: Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB	●     Depositor

 Exhibit P-2

EXHIBIT Q

Form 8-K Disclosure Information

The parties identified in the “Party Responsible” column are obligated pursuant to Section 10.7 of the Trust and Servicing Agreement to report to each Other Depositor and each Other Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Offering Circular (other than information with respect to itself that is set forth in or omitted from the Offering Circular), in the absence of specific notice to the contrary from the Depositor or a Seller. For this Trust and Servicing Agreement, each of the Certificate Administrator, the Trustee, the Servicer and the Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular.

Item on Form 8-K	Party Responsible
Item 1.01- Entry into a Material Definitive Agreement Disclosure is required regarding entry into or amendment of any definitive agreement that is material to the securitization, even if depositor is not a party. Examples: servicing agreement, custodial agreement. Note: disclosure not required as to definitive agreements that are fully disclosed in the prospectus	●     Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust)
Item 1.02- Termination of a Material Definitive Agreement Disclosure is required regarding termination of any definitive agreement that is material to the securitization (other than expiration in accordance with its terms), even if depositor is not a party. Examples: servicing agreement, custodial agreement.	●     Trustee/Certificate Administrator/Custodian (if such entity is not also the Certificate Administrator)/Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust)
Item 1.03- Bankruptcy or Receivership	●     Depositor
Item 2.04- Triggering Events that Accelerate	●     Depositor

 Exhibit Q-1

or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement Includes an early amortization, performance trigger or other event, including event of default, that would materially alter the payment priority/distribution of cash flows/amortization schedule. Disclosure will be made of events other than waterfall triggers which are disclosed in the monthly statements to the certificateholders.	●     Certificate Administrator (with respect to an Obligation under an Off-Balance Sheet Arrangement, if any)
Item 3.03- Material Modification to Rights of Security Holders Disclosure is required of any material modification to documents defining the rights of Certificateholders, including the Trust and Servicing Agreement.	●     Certificate Administrator
Item 5.03- Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year Disclosure is required of any amendment “to the governing documents of the issuing entity”.	●     Depositor
Item 5.06- Change in Shell Company Status	●     Depositor
Item 5.07- Submission of Matters to a Vote of Security Holders	●     Certificate Administrator ●     Trustee ●     Depositor
Item 6.01- ABS Informational and Computational Material	●     Depositor
Item 6.02- Change of Servicer or Trustee Requires disclosure of any removal, replacement, substitution or addition of any master servicer, affiliated servicer, other servicer servicing 10% or more of pool assets at time of report, other material servicers or trustee.	●     Servicer (as to itself or a servicer retained by it) ●     Special Servicer (as to itself or a servicer retained by it) ●     Certificate Administrator (as to itself as Certificate Administrator) ●     Custodian (as to itself as Custodian) (if such entity is not also the Certificate Administrator) ●     Trustee (as to Trustee)

 Exhibit Q-2

	●     Depositor
Reg AB disclosure about any new servicer or master servicer is required.	●     Servicer or Special Servicer, as applicable (in each case, as to itself, or a sub ●      ●      -servicer retained by it)
Reg AB disclosure about any new Trustee is required.	●     Trustee
Reg AB disclosure about any new Certificate Administrator is required.	●     Certificate Administrator
Reg AB disclosure about any new Custodian is required.	●     Custodian (if such entity is not also the Certificate Administrator)
Item 6.03- Change in Credit Enhancement or Other External Support	●     Depositor ●     Certificate Administrator
Item 6.04- Failure to Make a Required Distribution	●     Certificate Administrator
Item 6.05- Securities Act Updating Disclosure If any material pool characteristic differs by 5% or more at the time of issuance of the securities from the description in the final prospectus, provide updated Reg AB disclosure about the actual asset pool. If there are any new servicers or originators required to be disclosed under Regulation AB as a result of the foregoing, provide the information called for in Items 1108 and 1110 respectively.	●     Depositor
Item 7.01- Regulation FD Disclosure	●     Depositor
Item 8.01 – Other Events Any event, with respect to which information is not otherwise called for in Form 8-K, that the registrant deems of importance to certificateholders.	●     Depositor ●     Special Servicer
Item 9.01 - Financial Statements and Exhibits	●     Responsible party for reporting/disclosing the financial statement or exhibit

 Exhibit Q-3

EXHIBIT R

Additional Disclosure Notification

INSTRUCTIONS:

FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO CMBS_NOTICES@morganstanley.com, VIA FIRST CLASS MAIL TO MORGAN STANLEY CAPITAL I INC. AND VIA EMAIL TO CTS.SEC.NOTIFICATIONS@WELLSFARGO.COM

FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT MAIL TO THE ADDRESSES IMMEDIATELY BELOW AND IF TO THE CERTIFICATE ADMINISTRATOR, SEND VIA FAX TO 410-715-2380, VIA EMAIL TO CTS.SEC.NOTIFICATIONS@WELLSFARGO.COM AND VIA MAIL TO THE ADDRESS IMMEDIATELY BELOW

Morgan Stanley Capital I Inc., as Depositor

1585 Broadway

New York, New York 10036

Attn: Jane Lam

Facsimile: (646) 435-2881

Email: cmbs_notices@morganstanley.com

Wells Fargo Bank, National Association

as Certificate Administrator

9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Corporate Trust Services (CMBS) – MSC 2021-PLZA

[OTHER DEPOSITOR]

[OTHER EXCHANGE ACT REPORTING PARTY]

RE:   **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section [ ] of the Trust and Servicing Agreement, dated as of [            ][ ], 2021, among [              ], as [              ], [              ], as [              ], [              ], as [              ] and [              ], as [              ]. the undersigned, as [              ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

Exhibit R-1 

[With respect to Collection Account and Foreclosed Property Account balance information:

Account Name	Beginning Balance as of MM/DD/YYYY	Ending Balance as of MM/DD/YYYY
Collection Account
Foreclosed Property Account

]

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [                   ], phone number: [                   ]; email address: [                   ].

[NAME OF PARTY],
as [role]
By:
	Name:
	Title:

Exhibit R-2 

EXHIBIT S

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY SERVICER

MSC 2021-PLZA

(the “Trust”)

I, [identify the certifying individual], a [_______________] of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Servicer under that certain Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), relating to Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA, on behalf of the Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification] and to Morgan Stanley Capital I Inc. and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), and assuming the accuracy of the statements required to be made by the Special Servicer in the special servicer backup certificate delivered by the Special Servicer relating to the Relevant Period, all servicing information and all reports (the “Servicer Reports”) required to be submitted by the Servicer to the Certificate Administrator pursuant to Section 10.6 of the Trust and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the Servicer to the Certificate Administrator for inclusion in these reports;

2. Based on my knowledge, and assuming the accuracy of the statements required to be made by the Special Servicer in the special servicer backup certificate delivered by the Special Servicer relating to the Relevant Period, the master servicing information contained in the Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the Servicer under the Trust and Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required to be delivered under Article X of the Trust and Servicing Agreement for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB with respect to the Servicer, and except as disclosed in the compliance certificate delivered by the Servicer under Section 10.08 of the Trust and Servicing Agreement, the Servicer has fulfilled its obligations under the Trust and Servicing Agreement in all material respects during the Relevant Period;

Exhibit S-1 

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the Servicer with respect to the Relevant Period have been provided all information relating to the Servicer’s assessment of compliance with the Relevant Servicing Criteria in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the Servicer for asset-backed securities with respect to the Servicer or any Servicing Function Participant retained by the Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator, the Depositor and each Other Depositor for disclosure in such annual report on Form 10-K.

[In giving the certification above, I have reasonably relied on and make no certification as to information provided to me by the following unaffiliated parties: [name(s) of third parties (including the Special Servicer, but other than a Sub-Servicer, Additional Servicer or any other third party retained by the Servicer that is not a Sub-Servicer appointed pursuant to Section 3.2 of the Pooling and Servicing Agreement) and, notwithstanding the foregoing certifications, neither I nor the Servicer makes any certification under the foregoing clauses (2) and (3) with respect to the information in the Servicer Reports that is in turn dependent upon information provided by the Special Servicer under the Trust and Servicing Agreement. Solely with respect to the completeness of information and reports, I do not certify anything other than that all fields of information called for in written reports prepared by the Servicer have been properly completed and that any fields that have been left blank on their face have been done so in accordance with the CREFC procedures for such report.]

Capitalized terms used but not defined herein have the meanings set forth in the Trust and Servicing Agreement.

Date:

WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit S-2 

EXHIBIT T-1

[reserved]

Exhibit T-1-1 

EXHIBIT T-2

[reserved]

Exhibit T-2-1 

EXHIBIT U-1

FORM OF CLOSING DATE CUSTODIAN REPORT

[Date]

To the Persons Listed on the attached Schedule A

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

Ladies and Gentlemen:

In accordance with Section 2.2 of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), and executed in connection with the above-referenced transaction, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, (i) the original Trust Notes specified in clause (b)(i) of the definition of “Mortgage File” and all allonges thereto, if any, have been received and reviewed by the Custodian on behalf of the Trustee; and (ii) each such original Trust Note has been reviewed by the Custodian and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed and (C) purports to relate to the Mortgage Loan.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Trust and Servicing Agreement.

WELLS FARGO BANK, NATIONAL ASSOCIATION,
	as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit U-1-1 

EXCEPTIONS

[_____]

Exhibit U-1-2 

SCHEDULE A

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Bank, N.A.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

With a copy by email to: cmbs_notices@morganstanley.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager
Facsimile number: (704) 715-0036

With a copy by email to: commercial.servicing@wellsfargo.com

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084, 401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Special Servicing – Daniel Marthinsen
Facsimile number: (704) 715-0055

with a copy to:

Exhibit U-1-3 

 
K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee MSC 2021-PLZA

with a copy to:

CMBSTrustee@wilmingtontrust.com

Facsimile No.: (302) 636-4140

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services - CMBS – MSC 2021-PLZA

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

Exhibit U-1-4 

EXHIBIT U-2

FORM OF INITIAL CUSTODIAN REPORT

[Date]

To the Persons Listed on the attached Schedule A

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

Ladies and Gentlemen:

In accordance with Section 2.2 of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), and executed in connection with the above-referenced transaction, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, the Custodian has, subject to Section 2.2(b) of the Trust and Servicing Agreement, reviewed the documents delivered to it pursuant to Section 2.1 of the Trust and Servicing Agreement and has determined that, subject to any exceptions found by it in such review, (A) all documents referred to in Section 2.1(b) of the Trust and Servicing Agreement have been received, and (B) that each such document (i) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (ii) appears to have been executed and (iii) purports to relate to the Mortgage Loan.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Trust and Servicing Agreement.

WELLS FARGO BANK, NATIONAL ASSOCIATION,
	as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit U-2-1 

EXCEPTIONS

[_____]

Exhibit U-2-2 

SCHEDULE A

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Bank, N.A.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

With a copy by email to: cmbs_notices@morganstanley.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager
Facsimile number: (704) 715-0036

With a copy by email to: commercial.servicing@wellsfargo.com

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084, 401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Special Servicing – Daniel Marthinsen
Facsimile number: (704) 715-0055

with a copy to:

Exhibit U-2-3 

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee MSC 2021-PLZA

with a copy to:

CMBSTrustee@wilmingtontrust.com

Facsimile No.: (302) 636-4140

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services - CMBS – MSC 2021-PLZA

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

Exhibit U-2-4 

EXHIBIT U-3

FORM OF FINAL CUSTODIAN REPORT

[DATE]

To the Persons Listed on the attached Schedule A

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

Ladies and Gentlemen:

In accordance with Section 2.2 of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), and executed in connection with the above-referenced transaction, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, the Custodian has, subject to Section 2.2(c) of the Trust and Servicing Agreement, reviewed the documents delivered to it pursuant to Section 2.1 of the Trust and Servicing Agreement and has determined that subject to any exceptions found by it in such review, (A) all documents referred to in Section 2.1(b) of the Trust and Servicing Agreement have been received, and (B) that each such document (i) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by Borrower), (ii) appears to have been executed and (iii) purports to relate to the Mortgage Loan.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Trust and Servicing Agreement.

WELLS FARGO BANK, NATIONAL ASSOCIATION,
	as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name:
	Title:

Exhibit U-3-1 

EXCEPTIONS

[_____]

Exhibit U-3-2 

SCHEDULE A

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Bank, N.A.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

With a copy by email to: cmbs_notices@morganstanley.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager
Facsimile number: (704) 715-0036

With a copy by email to: commercial.servicing@wellsfargo.com

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084, 401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Special Servicing – Daniel Marthinsen
Facsimile number: (704) 715-0055

with a copy to:

K&L Gates LLP

Exhibit U-3-3 

300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee MSC 2021-PLZA

with a copy to:

CMBSTrustee@wilmingtontrust.com

Facsimile No.: (302) 636-4140

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services - CMBS – MSC 2021-PLZA

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

Exhibit U-3-4 

EXHIBIT V

FORM OF CERTIFICATE ADMINISTRATOR RECEIPT OF THE RR INTEREST

November 17, 2021

Morgan Stanley Capital I Inc.

1585 Broadway

New York, New York 10036

Attention:  Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York  10036
Attention:  Jane Lam

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway
New York, New York 10019
Attention: Legal Compliance Division

with a copy via email to: cmbs_notices@morganstanley.com

Morgan Stanley Bank, N.A.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Bank, N.A.

1633 Broadway, 29th Floor

New York, New York 10019

Attention: Legal Compliance Division

with a copy via email to: cmbs_notices@morganstanley.com

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

In accordance with Section 5.2(e) of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), the Certificate Administrator hereby acknowledges receipt and possession of, and further agrees that it will hereafter hold in the Retained Interest Safekeeping Account, the RR Interest in the form of a Definitive Certificate, for the benefit of Morgan Stanley Bank, National Association, the Retaining Party, as the registered holder thereof. A copy of the RR Interest is attached hereto as Exhibit A-1.

Exhibit V-1 

Payments on the RR Interest will be made to the registered holder thereof in accordance with the Trust and Servicing Agreement.

Capitalized terms used but not defined herein shall the respective meanings set forth in the Trust and Servicing Agreement.

Exhibit V-2 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
	not in its individual capacity but solely as Certificate Administrator
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
Name:
Title:

Exhibit V-3 

EXHIBIT A-1

Exhibit V-4 

EXHIBIT W

FORM OF NOTICE TO PARTIES OF A BORROWER AFFILIATION

[Date]

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager (with respect to the servicer) and MSC 2021-PLZA Special Servicing – Daniel Marthinsen (with respect to the special servicer)
Facsimile number: (704) 715-0036 with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Fax Number: (704) 353-3190
Email: stacy.ackermann@klgates.com Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Corporate Trust Services (CMBS) MSC 2021-PLZA (with a copy sent via email to: trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com) Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee MSC 2021-PLZA (with a copy sent contemporaneously via email to CMBSTrustee@wilmingtontrust.com)

Re: Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

THIS NOTICE IDENTIFIES THE AFFILIATION OF THE CONTROLLING CLASS REPRESENTATIVE OR A HOLDER OF THE MAJORITY OF THE CONTROLLING CLASS WITH A BORROWER PARTY RELATING TO THE MORGAN STANLEY CAPITAL I TRUST 2021-PLZA, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-PLZA, REQUIRING ACTION BY YOU AS THE RECIPIENT PURSUANT TO SECTION 9.1(C) OF THE TRUST AND SERVICING AGREEMENT.

In accordance with Section 9.1(c) of the Trust and Servicing Agreement, dated as of November 1, 2021 (the “Trust and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, Wells Fargo Bank, National Association, as Servicer and Special Servicer, Wilmington Trust, National Association, as Trustee, and Wells Fargo Bank, National Association, as Certificate Administrator and Custodian, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

Exhibit W-1 

1.                  The undersigned is [the Controlling Class Representative] [a holder of [__]% of the Controlling Class, by Certificate Balance,] as of the date hereof.

2.                  The undersigned has become a Borrower Party with respect to the Mortgage Loan.

3.                  The undersigned agrees to indemnify and hold harmless each party to the Trust and Servicing Agreement, the Initial Purchaser and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any information made available to Privileged Persons.

4.                  The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.

5.                  The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Trust and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

Capitalized terms used but not defined herein have the respective meanings given to them in the Trust and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Controlling Class Representative] [a Controlling Class Certificateholder]

By:

Name:

Title:

Phone:

Email:

Address

Exhibit W-2 

EXHIBIT X

Form of CONFIDENTIALITY Agreement

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
401 South Tryon Street, 8th Floor
MAC D1050-084
Charlotte, North Carolina 28202
Attention: MSC 2021-PLZA Asset Manager
Facsimile number: (704) 715-0036

Re: Access to Certain Information Regarding Morgan Stanley Capital I Trust 2021-PLZA, Commercial Mortgage Pass-Through Certificates, Series 2021-PLZA

Ladies and Gentlemen:

Reference is hereby made to that certain Trust and Servicing Agreement dated as of November 1, 2021 (the “Trust and Servicing Agreement”), and executed in connection with the above-referenced transaction. Defined terms used herein and not otherwise defined shall have the meanings set forth in the Trust and Servicing Agreement.

Wells Fargo Bank, National Association (“Wells Fargo Bank”) understands that [____] (the “Company”) is requesting certain confidential or non-public information relating to the Mortgage Loan to which the Company has continuing rights as a Certificateholder. The Company is requesting such information for the purpose of analyzing asset performance and evaluating any continuing rights the Company may have under the Trust (the “Permitted Purpose”). The Company agrees that the Permitted Purpose shall not include the use or disclosure of the Confidential Information (as defined below) in any manner that violates any applicable law, the Trust and Servicing Agreement or the related mortgage loan documents.

Wells Fargo Bank will provide the Company with certain confidential, non-public servicing information (the “Confidential Information”) pertaining to the Mortgage Loan and the related Mortgaged Property and borrowers. The Company acknowledges that the Confidential Information (a) includes or may be based upon information provided to Wells Fargo Bank by third parties, (b) may not have been verified by Wells Fargo Bank, and (c) may be incomplete or contain inaccuracies. The Company agrees that Wells Fargo Bank, the [“Servicer”/“Special Servicer”] (as defined in the Trust and Servicing Agreement) and its respective Representatives (as defined below) shall not have any liability to the Company or its Representatives resulting from (x) any inaccuracies or omissions in the Confidential Information, (y) any use of the Confidential Information, or (z) Wells Fargo Bank’s failure or inability to provide the Confidential Information to the Company for any reason. Notwithstanding the foregoing, the following will not constitute “Confidential Information” for purposes of this letter agreement:

Exhibit X-1 

[_____] [__], 20[__]
Page 2

(a) information that was already in Company’s possession prior to its receipt from Wells Fargo Bank; (b) information that is obtained by Company from a third person who, insofar as is known to Company, is not prohibited from transmitting the information to Company by a contractual, legal or fiduciary obligation to Wells Fargo Bank; (c) information that is or becomes publicly available through no fault of Company; and (d) information that is independently developed by Company. The term “Representatives” with respect to any entity shall mean the officers, directors, general partners, employees, agents, affiliates, auditors and legal counsel (which may be internal counsel) of that entity.

The Company may have access to the Confidential Information through (at Wells Fargo Bank’s election): (i) responses to reasonable written inquiries received from the Company, (ii) conference calls conducted on a reasonably scheduled basis with Wells Fargo Bank’s surveillance group, or (iii) direct on-line access (read-only capacity) to the information available on the applicable [____] system or any successor or replacement system (“System”). Wells Fargo Bank may cease or defer providing the Company with Confidential Information in the event that (a) the Company or its Representatives violate any provision hereof, or (b) Wells Fargo Bank determines (in its sole discretion) that such termination is necessary for any reason, including its determination that such action is required pursuant to the terms of the Trust and Servicing Agreement, the related Mortgage Loan documents, or any applicable law. Wells Fargo Bank shall cease to provide the Company with Confidential Information if Wells Fargo Bank has actual knowledge that the Company or its Representatives are affiliates of any borrower under the Mortgage Loan documents and Wells Faro Bank determines that the provision, notice or access to such Confidential Information would violate the accepted servicing practices or servicing standards as defined in the Trust and Servicing Agreement. The Company’s obligations and the restrictions applicable to the protection of the Confidential Information hereunder shall survive the termination of the Company’s access to the Confidential Information. Wells Fargo Bank’s remedies hereunder, at law or at equity, are cumulative and may be combined.

The Company agrees that it will not, and it shall not permit its Representatives, to disclose the Confidential Information in any manner whatsoever to any other person or entity, other than its Representatives (but only to the extent necessary to accomplish the Permitted Purpose) who have a need to know the information, or as otherwise required by applicable law, court order or any governmental agency or regulator. The Company acknowledges (i) its obligations under the U.S. federal securities laws, and (ii) that any disclosure of the Confidential Information by it or its Representatives for any purpose other than a Permitted Purpose, in addition to being a breach of this letter agreement, may constitute a violation of federal and state securities laws. The Company will take reasonable measures to ensure that each Representative is advised of this letter agreement and agrees to keep the Confidential Information confidential. The Company shall be liable for any breach of this letter agreement by its Representatives. Notwithstanding the foregoing, the Company may subsequently provide all or any part of such Confidential Information to any other person or entity that holds or is contemplating the purchase of any Certificate or interest therein, but only if such person or entity confirms such ownership interest or prospective ownership interest and provided that, prior to the delivery of such Confidential Information, such persons shall have executed and delivered to the Company an agreement that is substantially similar in form and substance to this agreement.

Exhibit X-2 

[_____] [__], 20[__]
Page 3

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York without the application of conflict of laws principles. Anything herein to the contrary notwithstanding, Wells Fargo Bank intends at all times to comply with the terms and provisions of the Trust and Servicing Agreement and nothing in this letter agreement should be construed to limit or qualify any of Wells Fargo Bank’s rights or obligations under the Trust and Servicing Agreement. This letter agreement may be executed in counterparts and by facsimile/Portable Document Format (PDF); each such counterpart shall be deemed to be an original instrument, and all such counterparts together shall constitute one agreement.

This agreement shall terminate with respect to the information received by the Company one year after the Company receives such information or ceases to be a Certificateholder. Company agrees that this letter agreement supersedes and replaces and survives any click-through agreement regarding confidentiality of Confidential Information agreed to in connection with accessing the System whether agreed to in accessing the System before or after signing this letter agreement.

Exhibit X-3 

[_____] [__], 20[__]
Page 4

Please have an authorized signatory countersign in the space provided below to indicate the Company’s confirmation of, and agreement to, the matters set forth herein.

Very truly yours,
WELLS FARGO BANK, NATIONAL ASSOCIAION
By:
	Name:
	Title:

CONFIRMED AND AGREED TO:
[COMPANY NAME]
By:
	Name:
	Title:

Exhibit X-4 

EX-4.4

Exhibit 4.4 

EXECUTION VERSION

 

 

DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor,

 

KEYBANK NATIONAL ASSOCIATION,
Master Servicer,

 

SITUS HOLDINGS, LLC,
Special Servicer,

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
Trustee,

 

Wells Fargo bank, national association,
Certificate Administrator, Paying Agent and Custodian,

 

and

 

PARK BRIDGE LENDER SERVICES LLC,
Operating Advisor

 

 

 

TRUST AND SERVICING AGREEMENT
Dated as of November 9, 2021

 

 

 

CAMB 2021-CX2 Mortgage Trust
Commercial Mortgage Pass-Through Certificates

 

 

 

 

 

 

TABLE OF CONTENTS

  

		Page
ARTICLE I    DEFINITIONS
Section 1.01	Defined Terms	3
Section 1.02	Certain Calculations	77
Section 1.03	Certain Constructions	81
ARTICLE II   CONVEYANCE OF the MORTGAGE LOAN; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01	Conveyance of the Trust Loan; Assignment of Trust Loan Purchase Agreements	82
Section 2.02	Acceptance by Custodian and the Trustee	88
Section 2.03	Representations, Warranties and Covenants of the Depositor; Repurchase of Trust Loan	90
Section 2.04	Representations, Warranties and Covenants of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor	97
Section 2.05	Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests; Issuance of Upper-Tier Interests	103
Section 2.06	Miscellaneous REMIC and Grantor Trust Provisions	104
Section 2.07	Creation of the Grantor Trust	104
ARTICLE III   ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01	The Master Servicer to Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Whole Loan	105
Section 3.02	Liability of the Master Servicer and the Special Servicer When Sub-Servicing	109
Section 3.03	Collection of Whole Loan Payments	109
Section 3.04	Collection of Taxes, Assessments and Similar Items; Escrow Accounts	110
Section 3.05	Collection Account; Distribution Accounts and Interest Reserve Account	112
Section 3.06	Permitted Withdrawals from the Collection Account and the Distribution Accounts; Trust Ledger	115

 

-ii-

 

Section 3.07	Investment of Funds in the Collection Account, the REO Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts	125
Section 3.08	Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage	126
Section 3.09	Enforcement of Due-on-Sale Clauses; Assumption Agreements; Defeasance Provisions	131
Section 3.10	Appraisals; Realization upon Defaulted Mortgage Loan	136
Section 3.11	Custodian to Cooperate; Release of Mortgage File	143
Section 3.12	Servicing Fees, Trustee/Certificate Administrator Fees and Special Servicing Compensation	143
Section 3.13	Reports to the Certificate Administrator; Collection Account Statements	150
Section 3.14	Access to Certain Documentation	155
Section 3.15	Title and Management of REO Property and REO Accounts	163
Section 3.16	Sale of a Specially Serviced Loan or the REO Property	167
Section 3.17	Additional Obligations of the Master Servicer and the Special Servicer; Inspections	171
Section 3.18	Authenticating Agent	173
Section 3.19	Appointment of Custodians	174
Section 3.20	Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve Accounts	174
Section 3.21	Property Advances	175
Section 3.22	Appointment of Special Servicer	178
Section 3.23	Transfer of Servicing Between the Master Servicer and the Special Servicer; Record Keeping; Asset Status Report	182
Section 3.24	Special Instructions for the Master Servicer and/or Special Servicer	187
Section 3.25	Certain Rights and Obligations of the Master Servicer and/or the Special Servicer	188
Section 3.26	Modification, Waiver, Amendment and Consents	188
Section 3.27	[Reserved][Reserved][Reserved]	190
Section 3.28	No Downgrade Confirmation	190
Section 3.29	Certain Co-Lender Matters Relating to the Whole Loan	192
Section 3.30	Horizontal Credit Risk Retention	196
Section 3.31	Resignation Upon Prohibited Credit Risk Retention Affiliation.	196
ARTICLE IV   DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01	Distributions	197
Section 4.02	Statements to Certificateholders; Reports by Certificate Administrator; Other Information Available to the Holders and Others	202
Section 4.03	Compliance with Withholding Requirements	213
Section 4.04	REMIC Compliance	213
Section 4.05	Imposition of Tax on the Trust Fund	216
Section 4.06	Remittances	217

 

-iii-

 

Section 4.07	P&I Advances and Administrative Advances	217
Section 4.08	Appraisal Reductions; Collateral Deficiency Amounts	222
Section 4.09	Grantor Trust Reporting	224
ARTICLE V   THE CERTIFICATES
Section 5.01	The Certificates	226
Section 5.02	Registration, Transfer and Exchange of Certificates	229
Section 5.03	Mutilated, Destroyed, Lost or Stolen Certificates	242
Section 5.04	Appointment of Paying Agent	242
Section 5.05	Access to Certificateholders’ Names and Addresses; Special Notices	243
Section 5.06	Actions of Certificateholders	243
Section 5.07	Rule 144A Information	244
ARTICLE VI   THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE OPERATING ADVISOR AND THE DIRECTING HOLDER
Section 6.01	Liability of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor	244
Section 6.02	Merger or Consolidation of either the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor	244
Section 6.03	Limitation on Liability of the Depositor, the Master Servicer and Others	245
Section 6.04	Limitation on Resignation of the Master Servicer and the Special Servicer; Termination of the Master Servicer and the Special Servicer	247
Section 6.05	Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special Servicer	248
Section 6.06	The Master Servicer or Special Servicer as Owners of a Certificate	249
Section 6.07	Selection and Removal of the Directing Holder	249
Section 6.08	Limitation on Liability of Directing Holder; Acknowledgements of the Certificateholders	252
Section 6.09	Rights and Powers of the Directing Holder	252
Section 6.10	Directing Holder and Operating Advisor Contact with Master Servicer and Special Servicer	255
Section 6.11	The Operating Advisor	256
ARTICLE VII   TERMINATION EVENTS
Section 7.01	Servicer Termination Events	263
Section 7.02	Trustee to Act; Appointment of Successor	272
Section 7.03	Notification to Certificateholders and Other Persons	274

 

-iv-

 

Section 7.04	Other Remedies of Trustee	274
Section 7.05	Waiver of Past Servicer Termination Events; Termination	274
Section 7.06	Trustee as Maker of Advances	275
ARTICLE VIII   CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR
Section 8.01	Duties of Trustee and Certificate Administrator	275
Section 8.02	Certain Matters Affecting the Trustee and the Certificate Administrator	278
Section 8.03	Trustee and Certificate Administrator Not Liable for Certificates or the Trust Loan	281
Section 8.04	Trustee and Certificate Administrator May Own Certificates	282
Section 8.05	Payment of Trustee’s and Certificate Administrator’s Fees and Expenses; Indemnification	283
Section 8.06	Eligibility Requirements for Trustee and Certificate Administrator	285
Section 8.07	Resignation and Removal of Trustee and Certificate Administrator	286
Section 8.08	Successor Trustee and Certificate Administrator	288
Section 8.09	Merger or Consolidation of Trustee or Certificate Administrator	289
Section 8.10	Appointment of Co-Trustee or Separate Trustee	289
ARTICLE IX   TERMINATION
Section 9.01	Termination	290
ARTICLE X   MISCELLANEOUS PROVISIONS
Section 10.01	Counterparts	295
Section 10.02	Limitation on Rights of Certificateholders	296
Section 10.03	Governing Law	297
Section 10.04	Waiver of Jury Trial; Consent to Jurisdiction	297
Section 10.05	Notices	297
Section 10.06	Severability of Provisions	302
Section 10.07	Notice to the Depositor and Each Rating Agency	303
Section 10.08	Amendment	305
Section 10.09	Confirmation of Intent	308
Section 10.10	No Intended Third-Party Beneficiaries	309
Section 10.11	Entire Agreement	309
Section 10.12	Third Party Beneficiaries	309

 

-v-

 

ARTICLE XI   EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01	Intent of the Parties; Reasonableness	309
Section 11.02	Succession; Sub-Servicers; Subcontractors	310
Section 11.03	Other Securitization Trust’s Filing Obligations	312
Section 11.04	Form 10-D Disclosure	312
Section 11.05	Form 10-K Disclosure	313
Section 11.06	Form 8-K Disclosure	313
Section 11.07	Annual Compliance Statements	314
Section 11.08	Annual Reports on Assessment of Compliance with Servicing Criteria	315
Section 11.09	Annual Independent Public Accountants’ Servicing Report	316
Section 11.10	Significant Obligor	317
Section 11.11	Sarbanes-Oxley Backup Certification	318
Section 11.12	Indemnification	319
Section 11.13	Amendments	322
Section 11.14	Termination of the Certificate Administrator	322
Section 11.15	Termination of Sub-Servicing Agreements	322
Section 11.16	Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan	323

 

TABLE OF SCHEDULES
Schedule I	Servicing Criteria to Be Addressed in Assessment of Compliance
Schedule II	Initial Companion Loan Holders
TABLE OF EXHIBITS
Exhibit A-1	Form of Class A Certificate
Exhibit A-2	Form of Class X Certificate
Exhibit A-3	Form of Class B Certificate
Exhibit A-4	Form of Class C Certificate
Exhibit A-5	Form of Class D Certificate
Exhibit A-6	Form of Class HRR Certificate
Exhibit A-7	Form of Class S Certificate
Exhibit A-8	Form of Class LR Certificate
Exhibit A-9	Form of Class R Certificate
Exhibit B	Mortgage Loan Schedule
Exhibit C-1	Form of Transferee Affidavit
Exhibit C-2	Form of Transferor Certificate
Exhibit C-3	Form of Transferee Certificate for Transfer of Risk Retained Certificates
Exhibit C-4	Form of Transferor Certificate for Transfer of Risk Retained Certificates
Exhibit D-1	Form of Investment Representation Letter
Exhibit D-2	Form of ERISA Representation Letter
Exhibit E	Form of Request for Release

 

-vi-

 

Exhibit F	Securities Legend
Exhibit G	Form of Regulation S Transfer Certificate
Exhibit H	Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate during the Restricted Period
Exhibit I	Form of Transfer Certificate for Exchange or Transfer from Rule 144A Global Certificate to Regulation S Global Certificate after the Restricted Period
Exhibit J	Form of Transfer Certificate for Exchange or Transfer from Regulation S Global Certificate to Rule 144A Global Certificate
Exhibit K	Form of Distribution Date Statement
Exhibit L-1-A	Form of Investor Certification for Non-Borrower Related Parties
Exhibit L-1-B	Form of Investor Certification for Borrower Related Parties
Exhibit L-1-C	Form of Certification of the Directing Holder
Exhibit L-1-D	Form of Notice of Conflicted Controlling Class Holder Who Becomes a Borrower Related Party
Exhibit L-2	Form of Investor Certification to Exercise Voting Rights
Exhibit L-3	Form of Online Vendor Certification
Exhibit L-4	Form of CREFC® Certification
Exhibit M	Form of Notification from Custodian
Exhibit N-1	Form of Closing Date Custodian Certification
Exhibit N-2	Form of Post-Closing Custodian Certification
Exhibit O	Form of NRSRO Certification
Exhibit P-1	Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit P-2	Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
Exhibit Q	Form of Power of Attorney to the Master Servicer and Special Servicer
Exhibit R	[Reserved]
Exhibit S	Form of Operating Advisor Annual Report
Exhibit T	Form of Notice from Operating Advisor Recommending Replacement of Special Servicer
Exhibit U	[Reserved]
Exhibit V	Form of Certificate Administrator Receipt of Class HRR Certificates
Exhibit W	Additional Form 10-D Disclosure
Exhibit X	Additional Form 10-K Disclosure
Exhibit Y	Form 8-K Disclosure Information
Exhibit Z	Additional Disclosure Notification
Exhibit AA	Initial Sub-Servicers
Exhibit BB	Form of Backup Certification
Exhibit CC	Form of Companion Loan Holder Certification

 

-vii-

 

 

Trust and Servicing Agreement, dated as of November 9, 2021, between Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, Situs Holdings, LLC, as Special Servicer, Wilmington Trust, National Association, as Trustee, Wells Fargo Bank, National Association, as Certificate Administrator, as Paying Agent and as Custodian, and Park Bridge Lender Services LLC, as Operating Advisor.

 

PRELIMINARY STATEMENT:

 

(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)

 

The Depositor intends to sell pass-through certificates to be issued hereunder in multiple Classes which in the aggregate will evidence the entire beneficial ownership interest in the Trust Fund consisting primarily of the Trust Loan.

 

The Trust Fund will consist of two REMICs, the “Lower-Tier REMIC” and the “Upper-Tier REMIC.” The Lower-Tier REMIC will hold the Trust Loan and certain other related assets subject to this Agreement (exclusive of Excess Interest and the proceeds thereof in the Excess Interest Distribution Account), and will issue (i) the Lower-Tier Regular Interests set forth in the table below (the “Lower-Tier Regular Interests”), as classes of “regular interests” in the Lower-Tier REMIC and (ii) the Class LR Certificates, as the sole class of residual interests in the Lower-Tier REMIC.

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and certain other related assets subject to this Agreement and will issue (i) the Class A, Class X, Class B, Class C, Class D and Class HRR Certificates, each of which is a “regular interests” in the Upper-Tier REMIC and (ii) the Class R Certificates, as the sole class of residual interests in the Upper-Tier REMIC.

 

In addition, the parties intend that the portions of the Trust Fund consisting of Excess Interest and distributions thereon, shall be treated as a grantor trust under subpart E, part I of subchapter J of the Code for federal income tax purposes (the “Grantor Trust”). As provided herein, the Certificate Administrator shall take all actions expressly required hereunder to ensure that the portion of the Trust Fund consisting of the Grantor Trust maintains its status as a grantor trust under federal income tax law and not be treated as part of the Trust REMICs. The Class S Certificates shall represent undivided beneficial interests in the Grantor Trust as described herein.

 

The following table sets forth the designation and Certificate Balance or Notional Amount, as applicable, of each Class of Certificates (other than the Class R and Class LR Certificates) (collectively, the “Corresponding Certificates”), and the corresponding Lower-Tier Regular Interest (the “Corresponding Lower-Tier Regular Interest”) and the Corresponding

 

 

 

 

Component of the Class X Certificates (the “Corresponding Component”) for each Class of Corresponding Certificates and each Corresponding Lower-Tier Regular Interest.

 

Class of Certificates		Certificate Balance or Notional Amount		Corresponding Lower-Tier Regular Interests(1)		Lower-Tier Principal Balance		Corresponding Component
Class A		$   200,690,000.00		LA		$   200,690,000.00		XA
Class X		$   200,690,000.00		LA		N/A		N/A
Class B		$     57,945,000.00		LB		$     57,945,000.00		N/A
Class C		$   258,191,000.00		LC		$   258,191,000.00		N/A
Class D		$   138,174,000.00		LD		$   138,174,000.00		N/A
Class HRR		$     41,000,000.00		LHRR		$     41,000,000.00		N/A

 

 

⁽¹⁾ The Lower-Tier Regular Interest and the Component of the Class X Certificates that correspond to any particular Class of Certificates also correspond to each other and, accordingly, constitute the (i) “Corresponding Lower-Tier Regular Interest” and (ii) “Corresponding Component” respectively, with respect to each other. The Component Notional Amount for each such Corresponding Component of the Class X Certificates shall at all times equal the then Lower-Tier Principal Balance of the Corresponding Lower-Tier Regular Interest.

  

The initial Certificate Balance of each of the Class R and Class LR Certificates is zero. Additionally, the Class R and Class LR Certificates do not have a Notional Amount. The Certificate Balance of any Class of Certificates outstanding at any time represents the maximum amount which holders thereof are entitled to receive as distributions allocable to principal from the cash flow on the Trust Loan and the other assets in the Trust Fund; provided, however, that in the event that amounts previously allocated as Realized Losses to a Class of Certificates in reduction of the Certificate Balance thereof are subsequently recovered (including, without limitation, after the reduction of the Certificate Balance of such Class to zero), such Class may receive distributions in respect of such recoveries in accordance with the priorities set forth in Section 4.01 of this Agreement.

 

The foregoing REMIC structure is intended to cause all of the cash from the Trust Loan to flow through to the Upper-Tier REMIC as cash flow on the Upper-Tier REMIC regular interests, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interests. To the extent that the structure is believed to diverge from such intention, the parties identifying such ambiguity shall notify the other parties hereto and the parties involved will resolve such ambiguities to accomplish the intended result and will, to the extent necessary, rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of counsel) to accomplish such intention, including, to the extent necessary, making any amendments in accordance with Section 10.08.

 

As of the Cut-off Date, the Trust Loan has a Stated Principal Balance equal to approximately $696,000,000.

 

In consideration of the mutual agreements herein contained, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and the other parties hereto hereby agree as follows:

 

 -2-

 

 

ARTICLE I

DEFINITIONS

 

Section 1.01    Defined Terms  Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Article.

 

“17g-5 Information Provider”: The Certificate Administrator.

 

“17g-5 Information Provider’s Website”: The internet website of the 17g-5 Information Provider, initially located at www.ctslink.com, under the “NRSRO” tab of the respective transaction, access to which is limited to NRSROs who have provided an NRSRO Certification to the 17g-5 Information Provider.

 

“30/360 Basis”: The accrual of interest calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

“3650 Cal Bridge”: 3650 Cal Bridge Lending, LLC, and its successors in interest.

 

“3650 Cal Bridge Indemnification Agreement”: The agreement dated as of the Pricing Date, among 3650 Cal Bridge, the Depositor and the Initial Purchasers.

 

“3650 Cal Bridge Trust Loan Purchase Agreement”: The Trust Loan Purchase Agreement dated and effective the Pricing Date, between 3650 Cal Bridge and the Depositor.

 

“AB Modified Loan”: Any Corrected Mortgage Loan (1) that became a Corrected Mortgage Loan due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Trust Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

 

“Acceptable Insurance Default”: With respect to the Whole Loan, any Default arising when the Loan Documents require that the Borrowers must maintain standard extended coverage casualty insurance or other insurance that covers acts of terrorism and the Special Servicer has determined, in accordance with the Servicing Standard, that either (i) such insurance is not available at commercially reasonable rates and the subject hazards are not at the time commonly insured against for properties similar to the Mortgaged Properties and located in or around the geographic region in which the Mortgaged Properties are located (but only by reference to such insurance that has been obtained by such owners at current market rates), or (ii) such insurance is not available at any rate. In making this determination, the Special Servicer, to the extent consistent with the Servicing Standard, may rely on the opinion of an insurance consultant (such expense to be advanced as a Property Advance).

 

“Accrued AB Loan Interest”: With respect to any AB Modified Loan and any date of determination, accrued and unpaid interest that remains unpaid with respect to the new junior note(s) of such AB Modified Loan.

 

 -3-

 

 

“Act”: The Securities Act of 1933, as it may be amended from time to time.

 

“Actual/360 Basis”: The accrual of interest calculated on the basis of the actual number of days elapsed during any calendar month (or other applicable accrual period) in a year assumed to consist of 360 days.

 

“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached to this Agreement as Exhibit Z.

 

“Additional Form 10-D Disclosure”: The information described in the Form 10-D items set forth under the “Item on Form 10-D” column on Exhibit W hereto.

 

“Additional Form 10-K Disclosure”: The information described in the Form 10-K items set forth under the “Item on Form 10-K” column on Exhibit X hereto.

 

“Additional Servicer”: Each Affiliate of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Trust Loan Sellers or the Initial Purchasers (other than an Affiliate of any such party acting in the capacity of a Sub-Servicer), that Services the Trust Loan, and each Person, other than the Special Servicer, who is not an Affiliate of any of the Master Servicer, the Certificate Administrator, the Trustee, the Trust Loan Sellers or the Initial Purchasers, who Services 10% or more of the Trust Loan (based on its Stated Principal Balance).

 

“Additional Trust Fund Expense”: Any extraordinary expense incurred with respect to the Trust Fund (including interest on Advances (to the extent such amounts cannot be paid from Default Interest or late payment fees on the Whole Loan), Special Servicing Fees, Liquidation Fees and Workout Fees) and not otherwise treated as a Realized Loss that would result in the Holders of any Class of Regular Certificates receiving less than the full amount of principal and/or the Interest Distribution Amount to which they are entitled on any Distribution Date. Expenses incurred as a result of the exercise of the Master Servicer or Special Servicer, as applicable, of any right granted under the Loan Documents to obtain terrorism insurance in the event that the Borrowers (i) are not required to purchase such terrorism insurance or (ii) are only required to purchase terrorism insurance up to a cap shall be an Additional Trust Fund Expense.

 

“Administrative Advance”: As defined in Section 4.07(c) of this Agreement.

 

“Administrative Fee Rate”: The percentage rate per annum equal to the sum of (i) the Servicing Fee Rate, (ii) the Trustee/Certificate Administrator Fee Rate, (iii) the CREFC^® License Fee Rate and (iv) the Operating Advisor Fee Rate. The Administrative Fee Rate is equal to 0.0208% per annum and accrues on the same basis as interest accrues on the Whole Loan.

 

“Advance”: Any P&I Advance, Property Advance or Administrative Advance.

 

“Advance Interest Amount”: Interest at the Advance Rate on the aggregate amount of P&I Advances, Property Advances and Administrative Advances for which the Master Servicer or the Trustee, as applicable, has not been reimbursed for the number of days from the date on which such Advance was made to the date of payment or reimbursement of the related Advance or other such amount, less any amount of interest previously paid on such Advance; provided that

 

 -4-

 

 

if, during any Collection Period in which an Advance was made, the Borrowers make a payment of an amount in respect of which such Advance was made with interest at the Default Rate or a late payment fee, the Advance Interest Amount payable to the Master Servicer or the Trustee shall be paid first, from Default Interest and late payment fees in the manner set forth in Section 9(d) of the Co-Lender Agreement, and then, upon determining in accordance with the Servicing Standard that such Advance Interest Amount is not recoverable from such amounts from other amounts on deposit in the Collection Account.

 

“Advance Rate”: A per annum rate equal to the greater of (i) 2% and (ii) the Prime Rate. Interest at the Advance Rate will accrue from (and including) the date on which the related Advance is made or the related expense incurred to (but excluding) the date on which such amounts are recovered out of amounts received on the Trust Loan as to which such Advances were made or servicing expenses incurred or the first Servicer Remittance Date after a determination of non-recoverability, as the case may be, is made; provided that such interest at the Advance Rate will continue to accrue to the extent funds are not available in the Collection Account for such reimbursement of such Advance.

 

“Adverse REMIC Event”: Any action, that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) cause either Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon either Trust REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”).

 

“Affected Reporting Party”: As defined in Section 11.12 of this Agreement.

 

“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. The Trustee and the Certificate Administrator may obtain and rely on an Officer’s Certificate of the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor to determine whether any Person is an Affiliate of such party.

 

“Affiliated Person”: Any Person (other than a Rating Agency) involved in the organization or operation of the Depositor or an affiliate, as defined in Rule 405 of the Act, of such Person.

 

“Agent Member”: Members of, or Depository Participants in, the Depository.

 

“Agreement”: This Trust and Servicing Agreement and all amendments hereof and supplements hereto.

 

“Annual Budget”: As defined in the Loan Agreement.

 

“Anticipated Final Termination Date”: Any Distribution Date on which it is anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c) of this Agreement.

 

 -5-

 

 

“Anticipated Repayment Date”: November 6, 2031.

 

“Applicable DBRS Morningstar Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “R1 (middle)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two NRSROs) or the long-term debt obligations of which are rated at least “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two NRSROs) and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “R1 (middle)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two NRSROs) or the long-term obligations of which are rated at least “AA(low)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least two NRSROs).

 

“Applicable Fitch Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “F1” by Fitch or the long-term debt obligations of which are rated at least “A” by Fitch, and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch or the long-term obligations of which are rated at least “AA-” by Fitch.

 

“Applicable Moody’s Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated in the highest short-term rating category by Moody’s or the long-term debt obligations of which are rated at least “A2” by Moody’s, (B) in the case of such investments with maturities of 3 months or less, but more than 30 days, the short-term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term debt obligations of which are rated at least “A1” by Moody’s, (C) in the case of such investments with maturities of 6 months or less, but more than 3 months, the short term obligations of which are rated in the highest short-term rating category by Moody’s or the long-term debt obligations of which are rated at least “Aa3” by Moody’s, and (D) in the case of such investments with maturities of more than 6 months, the short-term obligations of which are rated in the highest short term rating category by Moody’s or the long-term obligations of which are rated at least “Aaa” by Moody’s.

 

“Applicable Procedures”: As defined in Section 5.02(c)(ii)(A) of this Agreement.

 

“Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York and (b) such state or local tax laws whose applicability shall have been brought to the attention of the Certificate Administrator by either (i) an opinion of counsel delivered to it or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

“Appraisal”: With respect to each Mortgaged Property, an appraisal prepared by an Independent MAI appraiser with at least five years of experience in appraising properties of like kind, similar size, quality and condition and in the same area.

 

 -6-

 

 

“Appraisal Reduction Amount”: For any Distribution Date as to which an Appraisal Reduction Event has occurred, an amount calculated by the Master Servicer by the first Determination Date that is at least ten (10) Business Days following the date the Master Servicer receives from the Special Servicer the required Appraisal (and thereafter by the first Determination Date following any change in the amounts set forth in the following equation) and receipt of any additional relevant information from the Special Servicer equal to the excess, if any, of (a) the sum of (without duplication) (i) the Stated Principal Balance of the Whole Loan, plus (ii) to the extent not previously advanced by the Master Servicer, the Trustee, the Other Master Servicer or the Other Trustee, all unpaid interest on the Whole Loan at a per annum rate equal to the Whole Loan Rate, plus (iii) all unreimbursed Advances, and all unpaid interest on Advances at the Advance Rate in respect of the Trust Loan or the Companion Loan, plus (iv) any other unpaid Additional Trust Fund Expenses of the Issuing Entity and all unreimbursed monthly debt service advances made by the master servicer or the trustee under any Companion Loan securitization and interest thereon in respect of the Whole Loan, plus (v) all currently due and unpaid real estate taxes, ground rents and assessments and insurance premiums (net of any escrows and reserves therefor) and all other amounts (excluding principal, Default Interest, late charges, penalty charges, exit fees, Prepayment Charges and any similar amounts) due and unpaid with respect to the Whole Loan (which taxes, premiums (net of any escrows and reserves therefor) and other amounts that have not been the subject of an Advance by the Master Servicer or the Trustee, as applicable), over (b) the sum of (without duplication) (i) 90% of the appraised value (net of any prior mortgage liens) of the Mortgaged Properties as determined by an Updated Appraisal obtained by the Special Servicer (the costs of which shall be paid by the Master Servicer as a Property Advance) minus, solely for purposes of determining the amount by which P&I Advances or monthly debt service advances under any Companion Loan securitization made by the Master Servicer or Other Master Servicer with respect to the Trust Loan or the Companion Loan, as applicable, is to be reduced, any downward adjustments the Special Servicer deems appropriate in accordance with the applicable Servicing Standard (without implying any duty to do so) based upon its review of the Appraisal and any other information it may deem appropriate, plus (ii) all escrows, letters of credit and reserves (other than escrows and reserves for taxes, ground rents, assessments and insurance), plus (iii) all insurance and casualty proceeds and condemnation awards that constitute collateral for the Whole Loan (whether paid or then payable by any insurance company or government authority); provided, that the Appraisal Reduction Amount shall be reduced to zero as of the date the Whole Loan becomes a Corrected Mortgage Loan; provided, further, that without limiting the Special Servicer’s obligation to order and obtain such Appraisal, if the Special Servicer has not obtained an Appraisal or an Updated Appraisal, as applicable, referred to above within 60 days of the Appraisal Reduction Event (or in the case of an Appraisal Reduction Event occurring by reason of clause (ii) of the definition thereof, within 30 days of such Appraisal Reduction Event), solely for purposes of determining the amount by which P&I Advances or monthly debt service advances under any Companion Loan securitization made by the Master Servicer or Other Master Servicer with respect to the Trust Loan or the Companion Loan, as applicable, are to be reduced (and not for the purpose of determining whether a Subordinate Control Period or Subordinate Consultation Period has occurred and is continuing or for reducing the Voting Rights of Certificateholders), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the Whole Loan until such time as such Updated Appraisal referred to above is received and the Appraisal Reduction Amount is calculated (an “Assumed Appraisal Reduction Amount”).

 

 -7-

 

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to the Whole Loan or the REO Property will be reduced to zero as of the date the Whole Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust Fund. In addition, to the extent an Appraisal Reduction Event has occurred, the Whole Loan shall no longer be subject to the Appraisal Reduction Amount if (a) the Whole Loan has become a Corrected Whole Loan (if a Servicing Transfer Event had occurred with respect to the Whole Loan) or (b) an Updated Appraisal is obtained and after giving effect thereto, no Appraisal Reduction Amount exists; provided that in case of either of clause (a) or (b), no other Appraisal Reduction Event has occurred and is continuing. The Trust Loan and the Companion Loan shall be treated as a single mortgage loan for purposes of calculating an Appraisal Reduction Amount with respect to the mortgage loans that comprise such Whole Loan. Any Appraisal Reduction Amount in respect of the Whole Loan shall be allocated first, to the Junior Notes up to the full outstanding principal balances thereof, pro rata, and second, to the Senior Notes up to the full outstanding principal balances thereof, pro rata.

 

“Appraisal Reduction Event”: With respect to the Whole Loan, on the earliest of the following (i) the date on which the Whole Loan becomes a Modified Whole Loan, (ii) the 90th day following the occurrence of any uncured Delinquency in Monthly Payments, (iii) receipt of notice that a Borrower has filed a bankruptcy petition or the date on which a receiver is appointed and continues in such capacity in respect of the Mortgaged Properties or the 60th day after a Borrower becomes the subject of involuntary bankruptcy proceedings and such proceedings are not dismissed in respect of the Mortgaged Properties, (iv) the date on which the Mortgaged Properties become an REO Property and (v) a payment default shall have occurred with respect to the related Balloon Payment; provided, however, that for purposes of clause (v) above, if (a) such Borrower is diligently seeking a refinancing commitment or sale of the related Mortgaged Properties (and delivers a statement to that effect to the Master Servicer within 30 days after the default, which shall promptly deliver a copy to the Special Servicer), (b) such Borrower continues to make the Assumed Scheduled Payment and (c) no other Appraisal Reduction Event has occurred with respect to the Whole Loan, then an Appraisal Reduction Event will not occur until 60 days beyond the Maturity Date, unless extended by the Special Servicer in accordance with the Loan Documents or this Agreement; and provided, further, that if the Borrowers have delivered to the Master Servicer (which shall promptly deliver a copy to the Special Servicer) on or before the 60th day after the Maturity Date, a refinancing commitment, letter of intent or otherwise binding application for refinancing or similar document, in each case from a lender reasonably acceptable to the Master Servicer, or a signed purchase agreement reasonably acceptable to the Master Servicer, and the Borrowers continue to make the Assumed Scheduled Payments (and no other Appraisal Reduction Event has occurred with respect to the Whole Loan), an Appraisal Reduction Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date (or extended Maturity Date) and (2) the termination of such refinancing commitment, letter of intent or otherwise binding application for refinancing or similar document. The Special Servicer shall notify the Master Servicer promptly upon the occurrence of any of the foregoing events if the Whole Loan is a Specially Serviced Loan.

 

“Asset Status Report”: As defined in Section 3.23(e) of this Agreement.

 

“Assignment of Leases and Rents”: With respect to the Mortgaged Properties, any assignment of leases and rents or similar agreement executed by the Borrowers, assigning to the

 

 -8-

 

 

mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of a Mortgaged Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.

 

“Assignment of Management Agreement”: As defined in the Loan Agreement.

 

“Assignment of Mortgage”: An assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the Mortgaged Properties are located to reflect of record the sale of the Mortgage.

 

“Assumed Scheduled Payment”: If the Trust Loan is delinquent in respect of its Balloon Payment (including any REO Loan), an amount equal to the sum of (a) the principal portion, if any, of the Monthly Payment that would have been due on the Trust Loan on the related Due Date (or portion thereof not received), based on the constant payment required by the Trust Notes or, if applicable, the amortization or payment schedule thereof (as calculated with interest at the Trust Loan Rate), assuming such Balloon Payment had not become due, after giving effect to any prior modification, and (b) interest at the Trust Loan Rate (excluding any Excess Interest) minus the applicable Servicing Fee Rate.

 

“Assumption Fees”: Any fees (other than assumption application fees) collected by the Master Servicer or the Special Servicer in connection with an assumption of the Whole Loan or related substitution of a Borrower (or an interest therein) thereunder (in each case, as permitted or set forth in the Loan Documents or under the provisions of this Agreement).

 

“Authenticating Agent”: Any authenticating agent appointed by the Certificate Administrator pursuant to Section 3.18 of this Agreement.

 

“Available Funds”: For any Distribution Date the sum of (i) all previously undistributed Monthly Payments or other receipts on account of principal and interest on or in respect of the Trust Loan (including Unscheduled Payments and Net REO Proceeds, if any, transferred from an REO Account pursuant to Section 3.15(b) of this Agreement) received by or on behalf of the Master Servicer in the Collection Period relating to such Distribution Date, (ii) all P&I Advances made by the Master Servicer or the Trustee, as applicable, in respect of the Trust Loan as of such Distribution Date, (iii) all other amounts received by the Master Servicer in the Collection Period and required to be deposited in the Collection Account by the Master Servicer pursuant to Section 3.05 of this Agreement, (iv) without duplication, any late Monthly Payments on the Trust Loan received after the end of the Collection Period relating to such Distribution Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date, (v) any Master Servicer Prepayment Interest Shortfall Amount remitted by the Master Servicer to the Collection Account, and (vi) with respect to the Distribution Date in March of each calendar year (or February if the final Distribution Date occurs in such month), the Withheld Amounts then on deposit in the Interest Reserve Account by the Certificate Administrator in accordance with Section 3.05 of this Agreement; but excluding (without duplication) the following (in no order of priority):

 

 -9-

 

 

(a)       all amounts permitted to be used to reimburse the Master Servicer or the Trustee, as applicable, for previously unreimbursed Advances and interest thereon as described in Section 3.06 of this Agreement;

 

(b)       the aggregate amount of the Servicing Fee, the Trustee/Certificate Administrator Fee, the Operating Advisor Fee, the CREFC^® License Fee, the Special Servicing Fee, fees for primary servicing functions, Prepayment Interest Excess (net of any Prepayment Interest Shortfall), Net Default Interest, late payment fees (to the extent not applied to the reimbursement of Advance Interest Amounts and/or Additional Trust Fund Expenses as provided in Section 3.06 of this Agreement), Workout Fees, Liquidation Fees, Assumption Fees, Modification Fees, loan service transaction fees, Permitted Special Servicer/Affiliate Fees, defeasance fees, demand fees, beneficiary statement charges and similar fees on the Trust Loan payable to the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee, together with interest on Advances to the extent provided herein, and reinvestment earnings on payments received for the Trust Loan (in the case of all of the foregoing, which the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee is entitled to retain as Servicing Compensation, Special Servicing Compensation or other compensation, as applicable, and is allocable to the Trust Loan), in each case in respect of such Distribution Date;

 

(c)       to pay the Operating Advisor the Operating Advisor Consulting Fee (but only to the extent actually received from the Borrowers )

 

(d)       all amounts representing scheduled Monthly Payments on the Trust Loan due after the related Due Date;

 

(e)       to the extent permitted hereunder, that portion of Net Liquidation Proceeds, Net Insurance Proceeds and Net Condemnation Proceeds with respect to the Trust Loan which represents any unpaid Servicing Fee, Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fee, the Operating Advisor Fee and CREFC^® License Fee, to which the Master Servicer, the Special Servicer, any Sub-Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and/or CREFC^®, as the case may be, are entitled and is allocable to the Trust Loan;

 

(f)       all amounts representing certain fees and expenses, including indemnity amounts, reimbursable or payable to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator (in all of its capacities under this Agreement), the Custodian or the Trustee and other amounts permitted to be retained by the Master Servicer or withdrawn by the Master Servicer from the Collection Account to the extent expressly set forth in this Agreement (including, without limitation, as provided in Section 3.06 of this Agreement and including any indemnities provided for herein), including interest thereon as expressly provided in this Agreement (to the extent allocable to the Trust Loan);

 

(g)       any interest or investment income on funds on deposit in the Collection Account or any interest on Permitted Investments in which such funds may be invested;

 

 -10-

 

 

(h)       all amounts received with respect to the Trust Loan if previously purchased or repurchased from the Trust Fund pursuant to Section 2.03(e), Section 3.16 or Section 9.01 of this Agreement or the Trust Loan Purchase Agreements or any mezzanine loan intercreditor agreement during the related Collection Period and subsequent to the date as of when the Trust Loan was purchased or repurchased;

 

(i)        the amount reasonably determined by the Certificate Administrator to be necessary to pay any applicable federal, state or local taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to the extent described in Section 4.05 of this Agreement;

 

(j)        Excess Interest;

 

(k)       Prepayment Charges; and

 

(l)        with respect to the Distribution Date occurring in (A) January of each calendar year that is not a leap year and (B) February of each calendar year, in each case, unless such Distribution Date is the final Distribution Date, the Withheld Amounts deposited into the Interest Reserve Account by the Certificate Administrator in accordance with Section 3.05(f) of this Agreement.

 

For the avoidance of doubt, Available Funds will not include any amounts allocable to the Companion Loan under the Co-Lender Agreement.

 

“Balloon Payment”: With respect to the Trust Loan or Whole Loan, as applicable, the scheduled payment of principal due on the Maturity Date (less, principal included in the applicable amortization schedule or scheduled Monthly Payment).

 

“BANA”: Bank of America, N.A., and its successors in interest.

 

“BANA Indemnification Agreement”: The agreement dated as of the Pricing Date, among BANA, the Depositor and the Initial Purchasers.

 

“BANA Trust Loan Purchase Agreement”: The Trust Loan Purchase Agreement dated and effective the Pricing Date, between BANA and the Depositor.

 

“Base Interest Fraction”: With respect to any Principal Prepayment on the Trust Loan and for:

 

(A)      any of the Class A, Class B, Class C and Class D Certificates with a Pass-Through Rate equal to either the Net Mortgage Rate or the Net Mortgage Rate less a specified rate shall be a fraction (not greater than one) (a) the numerator of which is the greater of zero and the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates, exceeds (ii) the yield rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment and (b) the denominator of which is the amount, if any, by which (i) the Net Mortgage Rate exceeds (ii) the Discount Rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment; provided that if such Discount Rate is greater than or equal to the Net Mortgage Rate, then the

 

 -11-

 

 

Base Interest Fraction shall be zero; provided, further, that if such yield rate is greater than or equal to the Net Mortgage Rate, but less than the Pass-Through Rate described in clause (a)(i) above, then the Base Interest Fraction shall be one; and

 

(B)      any of the Class A, Class B, Class C and Class D Certificates with a Pass-Through Rate equal to a fixed per annum rate, shall be a fraction (not greater than one) (a) the numerator of which is the greater of zero and the amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates, exceeds (ii) the yield rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment and (b) the denominator of which is the amount, if any, by which (i) the Trust Loan Rate (net of the Administrative Fee Rate) multiplied by 365/360 exceeds (ii) the Discount Rate (as provided by the Master Servicer) used in calculating the Prepayment Charges with respect to such Principal Prepayment; provided that if such Discount Rate is greater than or equal to the amount set forth in clause (b)(i) above, then the Base Interest Fraction shall be zero; provided, further, that if such yield rate is greater than or equal to the amount set forth in clause (b)(i) above, but less than the Pass-Through Rate described in clause (a)(i) above, then the Base Interest Fraction shall be one.

 

To the extent that the “yield rate” referred to in the immediately preceding paragraph to be provided by the Master Servicer is not provided in the related Loan Documents, such “yield rate” shall be, when compounded monthly, equivalent to the yield, on the U.S. Treasury primary issue with a maturity date closest to the Maturity Date for the Trust Loan. If there are: (a) two or more U.S. Treasury issues with the same coupon the issue with the lower yield shall be selected and (b) two or more U.S. Treasury issues with maturity dates equally close to the Maturity Date for the Trust Loan, the issue with an earlier maturity date shall be selected.

 

“Beneficial Owner”: With respect to a Global Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or indirectly through a Depository Participant, in accordance with the rules of such Depository) with respect to such Classes. Each of the Trustee, the Certificate Administrator, the Operating Advisor and the Master Servicer shall have the right to require, as a condition to acknowledging the status of any Person as a Beneficial Owner under this Agreement, that such Person executes an Investor Certification.

 

“Book-Entry Certificate”: Any Certificate registered in the name of the Depository or its nominee.

 

“Borrowers”: DW Propco G, LLC and DW Propco H, LLC, each a Delaware limited liability company (or the respective successor in interest to the foregoing under the Loan Agreement).

 

“Borrower Accounts”: As defined in Section 3.07(a) of this Agreement.

 

“Borrower Related Party”: Any of (a) the Borrowers, the Borrower Sponsor, any guarantor, a Manager or a Restricted Holder, (b) any other Person controlling or controlled by or under common control with the Borrowers, the Borrower Sponsor, any guarantor, a Manager or a Restricted Holder, as applicable, or (c) any other Person owning, directly or indirectly, 25% or

 

 -12-

 

 

more of the beneficial interests in the Borrowers, the Borrower Sponsor, any guarantor, a Manager or a Restricted Holder, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing. As of the Closing Date, 3650 Cal Bridge Cambridge Crossing LLC is a Borrower Related Party and will remain a Borrower Related Party until such time it no longer satisfies the conditions of clauses (b) and (c) above.

 

“Borrower Sponsor”: Divco Real Estate Services, LLC, a Delaware limited liability company, the California State Teachers Retirement System, a public pension fund and Teacher Retirement System of Texas, a public pension fund, collectively.

 

“Breach”: As defined in Section 2.03(e) of this Agreement.

 

“Business Day”: Any day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in New York or any of the jurisdictions in which any of the respective primary servicing or corporate offices of either the Master Servicer or Special Servicer, the Corporate Trust Office of either the Certificate Administrator or the Trustee or the primary corporate office of any financial institution holding the Collection Account or other trust administration accounts are located, or (iii) a day on which the New York Stock Exchange or the Federal Reserve System of the United States of America, are authorized or obligated by law or executive order to remain closed.

 

“Calculation Rate”: A discount rate appropriate for the type of cash flows being discounted, namely (i) for principal and interest payment on the Trust Loan or Whole Loan or sale of a Defaulted Mortgage Loan, the highest of (1) the rate determined by the Master Servicer or Special Servicer, as applicable, that approximates the market rate that would be obtainable by the Borrower on similar non-defaulted debt of the Borrowers as of such date of determination, (2) the Trust Loan Rate or Whole Loan Rate, as applicable, and (3) the yield on 10-year U.S. treasuries as of such date of determination and (ii) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or Updated Appraisal).

 

“Cash Collateral Account”: Any account or accounts created pursuant to a Mortgage, Loan Agreement, Cash Collateral Account Agreement or other Loan Document into which the Lock-Box Account monies are swept on a regular basis for the benefit of the Trustee, on behalf of the Certificateholders and the Companion Loan Holders, as successor to the Trust Loan Sellers. Any Cash Collateral Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive all reinvestment income or gain thereon in accordance with the terms and provisions of the Loan Agreement and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon in accordance with the terms of the Loan Agreement. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the Collection Account. To the extent not inconsistent with the terms of the related Loan Documents, the Cash Collateral Account shall be an Eligible Account.

 

 -13-

 

 

“Cash Collateral Account Agreement”: The cash collateral account agreement between the Originators and the Borrowers, pursuant to which the Cash Collateral Account, if any, may have been established.

 

“Cash Management Agreement”: As defined in the Loan Agreement.

 

“Certificate”: Any Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R or Class LR Certificate issued, authenticated and delivered hereunder.

 

“Certificate Administrator”: Wells Fargo Bank, National Association, a national banking association, in its capacity as Certificate Administrator, or its successor in interest, or any successor certificate administrator appointed as herein provided. Wells Fargo Bank, National Association will perform the certificate administrator role through its Corporate Trust Services division (including, as applicable, any agents or affiliates utilized thereby).

 

“Certificate Administrator’s Website”: The internet website of the Certificate Administrator, initially located at www.ctslink.com.

 

“Certificate Balance”: With respect to any Class of Principal Balance Certificates (a) on or prior to the first Distribution Date, an amount equal to the aggregate initial Certificate Balance of such Class, as specified in the Preliminary Statement to this Agreement and (b) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Principal Balance Certificates on the Distribution Date immediately prior to such date of determination less any distributions allocable to principal and any allocations of Realized Losses made thereon on such prior Distribution Date.

 

“Certificate Custodian”: Initially, the Certificate Administrator performing its duties hereunder through its Document Custody division; thereafter, any other Certificate Custodian acceptable to the Depository and selected by the Certificate Administrator.

 

“Certificate Interest Accrual Period”: With respect to any Class of Certificates and any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs.

 

“Certificate Register” and “Certificate Registrar”: The register maintained and the registrar appointed pursuant to Section 5.02 of this Agreement.

 

“Certificateholder”: The Person whose name a Certificate is registered in the Certificate Register, subject to the following:

 

(a)       except as provided in clauses (b) and (d), solely for the purpose of giving any consent or taking any action pursuant to this Agreement, any Certificate beneficially owned by (x) the Depositor, the Master Servicer, the Special Servicer (in its individual capacity), the Operating Advisor, the Certificate Administrator, the Trustee (in its individual capacity) or any Person known to a Responsible Officer of the Certificate Registrar to be an Affiliate of any of the foregoing parties or (y) any Borrower Related Party, shall be deemed not to be outstanding and the Voting Rights to which it is entitled

 

 -14-

 

 

shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent or take any such action has been obtained;

 

(b)       for purposes of obtaining the consent of Certificateholders to an amendment of this Agreement, any Certificates beneficially owned by the Master Servicer or the Special Servicer or an Affiliate thereof shall be deemed to be outstanding for all purposes if such amendment does not relate to the increase in compensation or material reduction in obligations of the Master Servicer or the Special Servicer in any material respect, provided that if such amendment does relate to such matters, such Certificates shall be deemed not to be outstanding with respect to such matters;

 

(c)       for purposes of obtaining the consent of Certificateholders (other than the Controlling Class Certificateholders or the Directing Holder) to any action proposed to be taken by the Special Servicer with respect to the Whole Loan, any Certificates beneficially owned by the Special Servicer or an Affiliate thereof shall be deemed not to be outstanding; and

 

(d)       for purposes of providing or distributing any reports, statements or other information required or permitted to be provided to a Certificateholder hereunder, a Certificateholder shall include any Beneficial Owner, or (subject to the execution of an Investor Certification) any Person identified by a Beneficial Owner as a prospective transferee of a Certificate beneficially owned by such Beneficial Owner, but only if the Certificate Administrator or another party hereto furnishing such report, statement or information has been provided with the name of the Beneficial Owner of the related Certificate or the Person identified as a prospective transferee thereof.

 

Notwithstanding anything to the contrary in this paragraph, the limitations set forth in the foregoing clauses (a), (b), (c) and (d) shall not be construed so as to limit or prevent a Controlling Class Certificateholder or the Directing Holder, solely based on it being an Affiliate of the Special Servicer, from exercising any appointment, consent, consultation or any other rights (including, without limitation, Voting Rights) it may have under this Agreement solely in its capacity as Controlling Class Certificateholder or Directing Holder (unless, for the avoidance of doubt, the Controlling Class Certificateholder or Directing Holder is a Borrower Related Party).

 

For purposes of the foregoing, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor, the Trustee, the Paying Agent or other such Person may rely, without limitation, on a Depository Participant listing from the Depository or statements furnished by a Person that on their face appear to be statements from a Depository Participant to such Person indicating that such Person beneficially owns Certificates.

 

“Certificateholder Quorum”: In connection with any solicitation of votes in connection with the replacement of the Special Servicer pursuant to Section 3.22(b) (other than at the recommendation of the Operating Advisor), the holders of Principal Balance Certificates evidencing at least 66-⅔% of the aggregate Voting Rights (taking into account Realized Losses and the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Trust Loan to notionally reduce the Certificate Balances of the Principal Balance Certificates) of all Principal Balance Certificates on an aggregate basis.

 

 -15-

 

 

“Certifying Certificateholder”: A Certificateholder or Beneficial Owner of a Certificate that has provided the Certificate Administrator with an executed Investor Certification.

 

“Certifying Person”: As defined in Section 11.11 of this Agreement.

 

“Certifying Servicer”: As defined in Section 3.27 of this Agreement.

 

“Class”: All of the Certificates bearing the same alphabetical or alphanumeric Class designation or each separately designated Lower-Tier Regular Interest.

 

“Class A Certificate”: Any one of the Certificates with a “Class A” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-1 to this Agreement.

 

“Class A Pass-Through Rate”: A per annum rate equal to 2.700% for the related Distribution Date.

 

“Class B Certificate”: Any one of the Certificates with a “Class B” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-3 to this Agreement.

 

“Class B Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

“Class C Certificate”: Any one of the Certificates with a “Class C” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-4 to this Agreement.

 

“Class C Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

“Class D Certificate”: Any one of the Certificates with a “Class D” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-5 to this Agreement.

 

“Class D Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

“Class HRR Certificate”: Any one of the Certificates with a “Class HRR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-6 to this Agreement.

 

“Class HRR Pass-Through Rate”: A per annum rate equal to the Net Mortgage Rate for the related Distribution Date.

 

“Class Interest Shortfall”: With respect to any Distribution Date (subsequent to the initial Distribution Date) for any Class of Regular Certificates, the excess, if any, of (i) the Interest

 

 -16-

 

 

Distribution Amount and any Class Interest Shortfall for such Class of Regular Certificates for the immediately preceding Distribution Date over (ii) all distributions of interest made on such Class of Regular Certificates on the immediately preceding Distribution Date. No interest shall accrue on any Class Interest Shortfall. The Class Interest Shortfall for each Class of Regular Certificates for the initial Distribution Date shall be zero.

 

“Class LA Interest”, “Class LB Interest”, “Class LC Interest”, “Class LD Interest” and “Class LHRR Interest”: Each, a regular interest in the Lower-Tier REMIC entitled to monthly distributions payable thereto pursuant to Section 4.01 of this Agreement.

 

“Class LR Certificate”: Any one of the Certificates with a “Class LR” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-8 to this Agreement. The Class LR Certificates have no Pass-Through Rate, Certificate Balance.

 

“Class R Certificate”: Any one of the Certificates with a “Class R” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-9 to this Agreement. The Class R Certificates have no Pass-Through Rate or Certificate Balance.

 

“Class S Certificates”: Any one of the Certificates with a “Class S” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-7 to this Agreement.

 

“Class X Certificates”: Any one of the Certificates with a “Class X” designation on the face thereof, executed and authenticated by the Certificate Administrator or the Authenticating Agent on behalf of the Depositor in substantially the form of Exhibit A-2 to this Agreement.

 

“Class X Component”: Component XA.

 

“Class X Notional Amount”: As of any date of determination, the then Component Notional Amount of the Class X Component.

 

“Class X Pass-Through Rate”: With respect to any Distribution Date, a variable rate per annum equal to the Class X Strip Rate for the Class X Component for such Distribution Date (adjusted to accrue, if necessary, on a 30/360 Basis). The Class X Pass-Through Rate for the initial Distribution Date is approximately 0.071% per annum.

 

“Class X Strip Rate”: With respect to Class X Component for any Distribution Date, the excess, if any, of (i) the Net Mortgage Rate for such Distribution Date over (ii) the Pass-Through Rate of the Class of Corresponding Certificates.

 

“Clearstream”: Clearstream Banking, S.A.

 

“Closing Date”: November 9, 2021.

 

“CMBS”: Commercial mortgage-backed securities.

 

 -17-

 

 

“Co-Lender Agreement”: The co-lender agreement, dated as of October 14, 2021, between DBRI, BANA, JPMCB and 3650 Cal Bridge.

 

“Code”: The Internal Revenue Code of 1986, as amended from time to time, any successor statute thereto, and any temporary or final regulations of the United States Department of the Treasury promulgated pursuant thereto.

 

“Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, an amount equal to the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein), over (ii) the sum of (solely to the extent allocable to the Trust Loan) (x) the most recent appraised value for the Mortgaged Properties, plus (y) solely to the extent not reflected or taken into account in such appraised value and to the extent on deposit with, or otherwise under the control of, the lender as of the date of such determination, any capital or additional collateral contributed by the Borrowers at the time the Whole Loan became (and as part of the modification related to) such AB Modified Loan for the benefit of the Mortgaged Properties, plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y)) held by the lender in respect of such AB Modified Loan as of the date of such determination. The Special Servicer and the Certificate Administrator will be entitled to conclusively rely on the Master Servicer’s calculation or determination of any Collateral Deficiency Amount.

 

“Collection Account”: The trust account, accounts or sub-accounts created and maintained by the Master Servicer pursuant to Section 3.05(a) of this Agreement, which shall be entitled “KeyBank National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Collection Account” and “KeyBank National Association, as Master Servicer, for the benefit of the Companion Loan Holders, relating to the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Collection Account” and each of which must be an Eligible Account.

 

“Collection Period”: With respect to any Distribution Date, the period that begins immediately following the Determination Date in the calendar month preceding the month in which such Distribution Date occurs (or, in the case of the initial Distribution Date, immediately following the Cut-off Date) and ending at the close of business on such Determination Date in the calendar month in which the Distribution Date occurs.

 

“Commission”: The Securities and Exchange Commission.

 

“Companion Loan(s)”: That portion of the Whole Loan identified as Promissory Note A-1-2, Promissory Note A-1-3, Promissory Note A-1-4, Promissory Note A-1-5, Promissory Note A-1-6, Promissory Note A-1-7, Promissory Note A-1-8, Promissory Note A-1-9, Promissory Note A-2-2, Promissory Note A-2-3, Promissory Note A-2-4, Promissory Note A-2-5, Promissory Note A-3-2, Promissory Note A-3-3, Promissory Note A-4-2 and Promissory Note A-4-3, which are owned by DBRI, BANA, JPMCB and 3650 Cal Bridge, as applicable, as of the date hereof and which have an aggregate outstanding principal balance as of the Closing Date of $529,000,000.

 

 -18-

 

 

“Companion Loan Advance”: With respect to a Companion Loan that is part of an Other Securitization Trust, any advance of delinquent scheduled payments with respect to such Companion Loan made by the master servicer or trustee with respect to such Other Securitization Trust.

 

“Companion Loan Holder”: Any holder of a Companion Loan.

 

“Companion Loan Rating Agency”: With respect to a Companion Loan, any rating agency that was engaged by a participant in the securitization of such Companion Loan to assign a rating to the related Companion Loan Securities.

 

“Companion Loan Securities”: Any commercial mortgage-backed securities that evidence an interest in or are secured by the assets of an Other Securitization Trust, which assets include a Companion Loan (or a portion thereof or interest therein).

 

“Companion Loan Service Provider”: With respect to any Companion Loan that has been deposited into a securitization trust, the related Other Trustee, Other Servicer, Other Special Servicer, any sub-servicer and any other Person that makes principal and/or interest advances in respect of such Companion Loan pursuant to the related Other Pooling and Servicing Agreement.

 

“Component”: The Component XA.

 

“Component Notional Amount”: With respect to each Component and any date of determination, an amount equal to the then Lower-Tier Principal Balance of such Component’s Corresponding Lower-Tier Regular Interest.

 

“Component XA”: The component of the Class X Certificates having a Component Notional Amount equal to the then current Lower-Tier Principal Balance of Lower-Tier Regular Interest LA as of any date of determination.

 

“Condemnation Proceeds”: Any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to the Mortgaged Properties by or to any governmental, quasi-governmental authority or private entity with condemnation powers (other than amounts to be applied to the restoration, preservation or repair of the Mortgaged Properties or released to the Borrowers in accordance with the terms of the REMIC Provisions and the Whole Loan).

 

“Conflicted Controlling Class Holder”: The Directing Holder or any Controlling Class Certificateholder, as applicable, that becomes a Borrower Related Party. Immediately upon obtaining actual knowledge of any such party becoming a “Conflicted Controlling Class Holder”, the Directing Holder or Controlling Class Certificateholder, as applicable, shall not be considered a Privileged Person and shall provide notice in the form of Exhibit L-1-D hereto to the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which such notice shall be physically delivered in accordance with Section 10.05 of this Agreement and shall specifically identify the Conflicted Controlling Class Holder. As of the Closing Date, the Directing Holder is not a Conflicted Controlling Class Holder.

 

 -19-

 

 

“Controlling Class”: The Class HRR Certificates so long as such Class has an outstanding Certificate Balance (as reduced by any principal payments and Realized Losses and notionally reduced by any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Trust Loan and allocable to such Class) that is equal to or greater than 25% of the initial Certificate Balance of such Class. If the Class HRR Certificates does not satisfy the preceding requirement, then there will be no Controlling Class. No other Class of Certificates shall be eligible to act as the Controlling Class. No Holder of Certificates of the Controlling Class that is a Borrower Related Party shall (i) be permitted to appoint the Directing Holder or (ii) be entitled to exercise any consent, consultation or direction rights that may otherwise be exercised by a holder of Certificates of the Controlling Class. The Controlling Class as of the Closing Date will be the Class HRR Certificates. On the Closing Date, there will be no Directing Holder because 3650 Cal Bridge Cambridge Crossing LLC, the initial holder of the Class HRR Certificates, is a Borrower Related Party.

 

“Controlling Class Certificateholder”: Each Holder (or Beneficial Owner, if applicable) of the Controlling Class of Certificates, as determined by the Certificate Registrar from time to time in accordance with the terms of Section 6.07(a) of this Agreement.

 

“Corporate Trust Office”: (a) With respect to the Trustee, the corporate trust office of Wilmington Trust, National Association, initially located at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS – CAMB 2021-CX2, or the principal trust office of any successor trustee qualified and appointed pursuant to this Agreement; and (b) with respect to the Certificate Administrator, located at 9062 Old Annapolis Road, Columbia, Maryland 21045. Attention: Corporate Trust Services CAMB 2021-CX2, or, in the case of any surrender, transfer or exchange, at Wells Fargo Bank, National Association, 600 South 4^th Street, 7^th Floor, MAC: N9300-070, Minneapolis, Minnesota 55415, Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2 Mortgage Trust, or the principal trust office of any successor certificate administrator qualified and appointed pursuant to this Agreement.

 

“Corrected Mortgage Loan”: As defined under the definition of Specially Serviced Loan.

 

“Corresponding Certificates”: As defined in the Preliminary Statement with respect to any Corresponding Lower-Tier Regular Interest or any Corresponding Component.

 

“Corresponding Component”: As defined in the Preliminary Statement with respect to any Class of Corresponding Certificates or any Corresponding Lower Tier Regular Interest.

 

“Corresponding Lower-Tier Regular Interest”: As defined in the Preliminary Statement with respect to any Class of Corresponding Certificates or any Corresponding Component.

 

“Credit Risk Retention Affiliate” or “Credit Risk Retention Affiliated”: An “affiliate of” or “affiliated with”, as such terms are defined in the Credit Risk Retention Rule.

 

“Credit Risk Retention Agreement”: The agreement dated as of the Pricing Date among the Retaining Sponsor, the Retaining Party, the Other Sponsors and the Depositor.

 

 -20-

 

 

“Credit Risk Retention Rules”: The final rule that was promulgated to implement the credit risk retention requirements under Section 15G of the Exchange Act, as added by Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (79 F.R. 77601; pages 77740-77766), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Department of Treasury, the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development in the adopting release (79 F.R. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective from time to time.

 

“CREFC^®”: CRE Finance Council, formerly known as Commercial Mortgage Securities Association, or any association or organization that is a successor thereto. If neither such association nor any successor remains in existence, “CREFC^®” shall be deemed to refer to such other association or organization as may exist whose principal membership consists of servicers, trustees, certificateholders, issuers, placement agents and underwriters generally involved in the commercial mortgage loan securitization industry, which is the principal such association or organization in the commercial mortgage loan securitization industry and whose principal purpose is the establishment of industry standards for reporting transaction-specific information relating to commercial mortgage pass-through certificates and commercial mortgage-backed bonds and the commercial mortgage loans and foreclosed properties underlying or backing them to investors holding or owning such certificates or bonds, and any successor to such other association or organization. If an organization or association described in one of the preceding sentences of this definition does not exist, “CREFC^®” shall be deemed to refer to such other association or organization as shall be selected by the Master Servicer and reasonably acceptable to the Certificate Administrator, the Trustee and the Special Servicer.

 

“CREFC^® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Advance Recovery Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Bond Level File”: The data file in the “CREFC^® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Collateral Summary File”: The data file in the “CREFC^® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

 -21-

 

 

“CREFC^® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Whole Loan, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally. In connection with preparing the CREFC^® Comparative Financial Status Report, the Master Servicer shall process (a) interim financial statements beginning with interim financial statements for the fiscal quarter ending March 2022, and (b) annual financial statements beginning with annual financial statements for the 2021 fiscal year (for the 2021 fiscal year, to the extent the Borrowers provide sufficient information to report in accordance with CREFC^® guidelines).

 

“CREFC^® Delinquent Loan Status Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CREFC^® Website, or no later than 90 days after its adoption, such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Financial File”: The data file in the “CREFC^® Financial File” format substantially in the form of and containing the information called for therein for the Whole Loan, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally. The initial data for this report shall be provided by the Trust Loan Sellers.

 

“CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Whole Loan, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

 -22-

 

 

“CREFC^® Investor Reporting Package (CREFC^® IRP)”:

 

(a)       The following seven electronic files: (i) CREFC^® Loan Setup File, (ii) CREFC^® Loan Periodic Update File, (iii) CREFC^® Property File, (iv) CREFC^® Bond Level File, (v) CREFC^® Financial File, (vi) CREFC^® Collateral Summary File and (vii) CREFC^® Special Servicer Loan File;

 

(b)       The following eleven supplemental reports: (i) CREFC^® Delinquent Loan Status Report, (ii) CREFC^® Historical Loan Modification and Corrected Mortgage Loan Report, (iii) CREFC^® REO Status Report, (iv) CREFC^® Operating Statement Analysis Report, (v) CREFC^® Comparative Financial Status Report, (vi) CREFC^® Servicer Watch List, (vii) CREFC^® Loan Level Reserve/LOC Report, (viii) CREFC^® NOI Adjustment Worksheet, (ix) CREFC^® Advance Recovery Report, (x) CREFC^® Total Loan Report and (xi) CREFC^® Reconciliation of Funds Report;

 

(c)       the following eight templates: (i) CREFC^® Appraisal Reduction Template, (ii) CREFC^® Servicer Realized Loss Template, (iii) CREFC^® Reconciliation of Funds Template, (iv) CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template, (v) CREFC^® Historical Liquidation Loss Template, (vi) CREFC^® Interest Shortfall Reconciliation Template, (vii) CREFC^® Servicer Remittance to Trustee Template and (viii) CREFC^® Significant Insurance Event Template; and

 

(d)       such other reports and data files as CREFC^® may designate as part of the “CREFC^® Investor Reporting Package (CREFC^® IRP)” from time to time generally.

 

“CREFC^® License Agreement”: The License Agreement, in the form set forth on the website of CREFC^® on the Closing Date, relating to the use of the CREFC^® trademarks and trade names.

 

“CREFC^® License Fee”: With respect to the Trust Loan (including any REO Loan or the Trust Loan if it has been defeased) for any related Certificate Interest Accrual Period, the amount of interest accrued during such related Certificate Interest Accrual Period at the CREFC^® License Fee Rate on the same balance, in the same manner and for the same number of days as interest at the applicable Trust Loan Rate accrued with respect to the Trust Loan during such related Certificate Interest Accrual Period is computed. Any payments of the CREFC^® License Fee shall be made to “CRE Finance Council” and delivered by wire transfer pursuant to the instructions furnished by CREFC^® to the Master Servicer in writing at least two Business Days prior to the Servicer Remittance Date.

 

“CREFC® License Fee Rate”: 0.00050% per annum.

 

“CREFC^® Loan Level Reserve/LOC Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Loan Periodic Update File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “CREFC^® Loan Periodic Update File” available and effective from time to time on the CREFC^® Website

 

 -23-

 

 

and; provided that each CREFC^® Loan Periodic Update File shall be accompanied by a CREFC^® Advance Recovery Report, if such report is required for a particular month, and all references herein to “CREFC^® Loan Periodic Update File” shall be construed accordingly.

 

“CREFC^® Loan Setup File”: The data file substantially in the form of, and containing the information called for in, the downloadable form of the “CREFC^® Loan Setup File” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® NOI Adjustment Worksheet”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Operating Statement Analysis Report”: A report prepared in the aggregate for the Mortgaged Properties substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Property File”: The monthly data file substantially in the form of, and containing the information called for, in the downloadable form of the “CREFC^® Property File” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® REO Status Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Watch List”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Watch List” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Special Servicer Loan File”: The monthly data file substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Supplemental Servicer Reports”: The CREFC^® Delinquent Loan Status Report, the CREFC^® Historical Loan Modification and Corrected Mortgage Loan Report, the CREFC^® REO Status Report, the CREFC^® Servicer Watch List, the CREFC^® NOI Adjustment Worksheet, the CREFC^® Comparative Financial Status Report, the CREFC^® Operating Statement

 

 -24-

 

 

Analysis Report, the CREFC^® Loan Level Reserve/LOC Report, the CREFC^® Advance Recovery Report and the CREFC^® Total Loan Report.

 

“CREFC^® Total Loan Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Website”: The CREFC^®’s Website located at “www.crefc.org” or such other primary website as the CREFC^® may establish for dissemination of its report forms.

 

“Current Interest Distribution Amount”: With respect to any Distribution Date for any Class of Regular Certificates is equal to the related Regular Interest Distribution Amount.

 

“Custodial Agreement”: The Custodial Agreement, if any, from time to time in effect between the Custodian named therein and the Certificate Administrator, in the form agreed to by the Certificate Administrator and the Custodian, as the same may be amended or modified from time to time in accordance with the terms thereof. No Custodial Agreement will be required if the Custodian is the same party as the Certificate Administrator.

 

“Custodian”: Any Custodian appointed pursuant to Section 3.19 of this Agreement. If a Custodian is not so appointed, then the Custodian shall be the Certificate Administrator. The Custodian may (but need not) be the Certificate Administrator, the Trustee or the Master Servicer or any Affiliate of the Certificate Administrator, the Trustee or the Master Servicer. Wells Fargo Bank, National Association will perform its duties as Custodian hereunder through its Document Custody Group (including, as applicable, any agents or affiliates utilized thereby).

 

“Cut-off Date”: November 6, 2021.

 

“DBRI”: DBR Investments Co. Limited, and its successors in interest.

 

“DBRS Morningstar”: DBRS, Inc., or any successor thereto. If neither DBRS Morningstar nor any successor remains in existence, “DBRS Morningstar” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of DBRS Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Debt Service Coverage Ratio”: As of any date of determination and for any period, the ratio calculated by dividing the net operating income or net cash flow, as applicable, of the Mortgaged Properties, for the most recently ended 12-month trailing or one-year period for which data is available from the Borrowers (or year-to-date until such time that data for the trailing 12-month period is available), before payment of any scheduled payments of principal and interest on the Trust Loan or Whole Loan, as applicable, but after funding of required reserves and “normalized” information from the CREFC^® NOI Adjustment Worksheet for the Mortgaged Properties by the Master Servicer or Special Servicer, if applicable, pursuant to Section 3.13 of this Agreement, by the annual debt service required by the Trust Loan or Whole Loan, as applicable. Annual debt service shall be calculated by multiplying the Monthly Payment in effect

 

 -25-

 

 

on such date of determination by 12 (or such fewer number of months for which related information is available).

 

“Default”: An event of default under the Loan Documents, or an event which, with the passage of time or the giving of notice, or both, would constitute an event of default under the Loan Documents.

 

“Default Interest”: Interest accrued on the Trust Loan or Whole Loan, as applicable, at the excess of (i) the Default Rate over (ii) the Trust Loan Rate or the Whole Loan Rate, as applicable.

 

“Default Rate”: The per annum rate at which interest accrues on the Trust Loan or Whole Loan, as applicable, following any Default thereunder, including a default in the payment of a Monthly Payment or a Balloon Payment.

 

“Defaulted Mortgage Loan”: The Whole Loan, if it is delinquent at least 60 days in respect of its Monthly Payments or more than 60 days delinquent in respect of its Balloon Payment, if any, in either case such Delinquency to be determined without giving effect to any grace period permitted by the Loan Documents and without regard to any acceleration of payments under the Whole Loan.

 

“Defect”: As defined in Section 2.03(e) of this Agreement.

 

“Deficient Exchange Act Deliverable”: With respect to the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant retained by it (other than a Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such item and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

 

“Delinquency”: Any failure of the Borrowers to make a scheduled Monthly Payment or Balloon Payment on a Due Date.

 

“Denomination”: As defined in Section 5.01(a) of this Agreement.

 

“Depositor”: Deutsche Mortgage & Asset Receiving Corporation, a Delaware corporation, and its successors and assigns.

 

“Depository”: The Depository Trust Company or a successor appointed by the Certificate Registrar (which appointment shall be at the direction of the Depositor if the Depositor is legally able to do so).

 

“Depository Participant”: A Person for whom, from time to time, the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

 -26-

 

 

“Determination Date”: With respect to each calendar month commencing in December 2021, the 6^th day of such calendar month or, if such 6th day is not a Business Day, then the immediately preceding Business Day.

 

“Directing Holder”: The representative selected or designated, as applicable, by the Certificateholders representing more than 50% of the Controlling Class (by Certificate Balance) in accordance with Section 6.07; provided that if no Certificateholder holds Certificates representing more than 50% of the Controlling Class (by Certificate Balance), then the Directing Holder shall be the representative appointed by the Controlling Class Certificateholder that owns, and is identified (with contact information) to the Master Servicer, the Special Servicer, the Trustee and the Certificate Administrator as owning, the largest aggregate Certificate Balance of Certificates of the Controlling Class.

 

“Directly Operate”: If the Mortgaged Properties become an REO Property, the furnishing or rendering of services to the tenants thereof that are not customarily provided to tenants in connection with the rental of space for occupancy only within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of the REO Property, the holding of the REO Property primarily for sale to customers in the ordinary course of a trade or business, or any use of the REO Property in a trade or business conducted by the Trust Fund, or the performance of any construction work on the REO Property other than through an Independent Contractor; provided, however, that the Special Servicer, on behalf of the Trust Fund, shall not be considered to Directly Operate the REO Property solely because the Special Servicer, on behalf of the Trust Fund, establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs or capital expenditures with respect to the REO Property or takes other actions consistent with Treasury Regulations Section l.856-4(b)(5)(ii).

 

“Discount Rate” As defined in the Loan Agreement.

 

“Disclosable Special Servicer Fees”: With respect to the Whole Loan or any REO Property, any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, and as a result of any other fee-sharing arrangement) received or retained by the Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, the Borrowers, any Borrower Related Party, any Manager, any guarantor or indemnitor in respect of the Whole Loan and any purchaser of the Whole Loan or the REO Property) in connection with the disposition, workout or foreclosure of the Whole Loan, the management or disposition of the REO Property, and the performance by the Special Servicer or any such Affiliate of any other special servicing duties under this Agreement; provided that any compensation and other remuneration that the Master Servicer or the Certificate Administrator is permitted to receive or retain pursuant to the terms of this Agreement in connection with its respective duties in such capacity as master servicer or certificate administrator under this Agreement shall not be Disclosable Special Servicer Fees.

 

“Disclosure Parties”: As defined in Section 3.14(e) of this Agreement.

 

“Disqualified Non-U.S. Person”: With respect to a Class R or Class LR Certificate any Non-U.S. Person or agent thereof other than (a) a Non-U.S. Person that holds the Class R or

 

 -27-

 

 

Class LR Certificate in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI (or applicable successor Form promulgated by the IRS for the purpose of providing and certifying the information provided on Form W-8ECI as of the Closing Date) or (b) a Non-U.S. Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R or Class LR Certificate to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R or Class LR Certificate will not be disregarded for federal income tax purposes.

 

“Disqualified Organization”: Any of (a) the United States, a State or any political subdivision thereof or any agency or instrumentality of any of the foregoing (other than an instrumentality that is a corporation if all of its activities are subject to tax and, except for FHLMC, a majority of its board of directors is not selected by any such governmental unit), (b) a foreign government, International Organization (as defined below) or agency or instrumentality of either of the foregoing, (c) an organization that is exempt from tax imposed by Code Chapter 1 (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R or Class LR Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (d) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, or (e) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel to the Certificate Registrar to the effect that any Transfer to such Person will not cause either Trust REMIC to be subject to tax or to fail to qualify as a REMIC at any time that the Certificates are outstanding. For the purposes of this definition, the terms “United States”, “State” and “International Organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

“Distribution Accounts”: Collectively, the Upper-Tier Distribution Account and the Lower-Tier Distribution Account, each of which may be a sub-account of a single Eligible Account.

 

“Distribution Date”: During each calendar month commencing in December 2021, the 4^th Business Day following the Determination Date in such calendar month.

 

“Distribution Date Statement”: As defined in Section 4.02(a) of this Agreement.

 

“Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicer, Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Sections 3.27, 3.28 or 3.29 of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any trust and servicing agreement relating to any other series of certificates offered by the Depositor.

 

“Due Date”: With respect to (i) the Whole Loan on or prior to its Maturity Date, the day of the month set forth in the Notes on which each Monthly Payment thereon is scheduled to be first due and (ii) the Whole Loan after the Maturity Date therefore or any REO Loan, the day

 

 -28-

 

 

of the month set forth in the Notes on which each Monthly Payment on the Whole Loan had been scheduled to be first due.

 

“Early Termination Notice Date”: Any date as of which the Stated Principal Balance of the Trust Loan is less than 1.0% of the Stated Principal Balance of the Trust Loan as of the Cut-off Date.

 

“Eligible Account”: Any of:

 

(i)      an account or accounts

 

(A)      maintained with a depository institution or trust company, (1) the short-term unsecured debt obligations or commercial paper of which are rated at least “P-1” by Moody’s, “F-1” by Fitch and “R-1 (middle)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) in the case of accounts in which funds are held for 30 days or less and (2) the long-term unsecured debt obligations of which are rated at least “A2” by Moody’s, “A” by Fitch and “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) in the case of accounts in which funds are held for more than 30 days,

 

(B)      maintained with Wells Fargo Bank, National Association, so long as (1) its long-term unsecured debt or deposit rating is at least “A2” by Moody’s, “A-” by Fitch and “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)) (if the deposits are to be held in the account for more than 30 days), or (2) its short-term deposit or short-term unsecured debt rating is at least “P-1” by Moody’s, “F-1” by Fitch and “R-1(low)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s and Fitch)), if the deposits are to be held in the account for 30 days or less,

 

(C)      maintained with Wells Fargo Bank, National Association, a wholly owned subsidiary of Wells Fargo & Co., so long as it meets the eligibility standards of the Certificate Administrator pursuant to Section 8.06,

 

(D)      maintained with KeyBank National Association, so long as (a) the short term debt obligations, deposits or commercial paper of KeyBank are rated at least “R-1 (low)” by DBRS Morningstar, (or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and Fitch) or such other rating confirmed in a No Downgrade Confirmation) and at least “P-1” by Moody’s and “F1” by Fitch in the case of letters of credit or accounts in which funds

 

 -29-

 

 

are held for thirty (30) days or less and (b) the long-term unsecured debt obligations, deposits or commercial paper of KeyBank are rated at least “BBB(high)” by DBRS Morningstar, (or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and Fitch) or such other rating confirmed in a No Downgrade Confirmation) and at least “A2” by Moody’s and “A” by Fitch, or

 

(ii)       a segregated trust account or accounts maintained with the trust department of a federal or state chartered depository institution, financial institution or trust company (which, subject to the remainder of this clause (ii), may include the Certificate Administrator or the Trustee) acting in its fiduciary capacity which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority and to regulations regarding fiduciary funds on deposit substantially similar to Title 12 of the Code of Federal Regulations, Section 9.10(b),

 

(iii)      such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i)-(ii) above, with respect to which a No Downgrade Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, or

 

(iv)      any other account for which the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer, as applicable, receives a No Downgrade Confirmation, which may be an account maintained by or with the Certificate Administrator, the Trustee, the Master Servicer or the Special Servicer.

 

Eligible Accounts may bear interest.

 

“Eligible Investor”: Any of (i) a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the offer, sale or transfer is being made in reliance on Rule 144A or (ii) (except with respect to the Class R and Class LR Certificates) an Institutional Accredited Investor that is not a Qualified Institutional Buyer.

 

“Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been special servicer or operating advisor on a transaction for which a Rating Agency has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction and cited servicing concerns with the special servicer or operating advisor as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 2.04(f); (c) that is not (and is not a Credit Risk Retention Affiliate of) the Successor Third Party Purchaser (if any), the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, any Originator, any guarantor, any Borrower Related Party, the Directing Holder, or any of their respective affiliates (including Credit

 

 -30-

 

 

Risk Retention Affiliates); (d) that has not been paid by the Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment of, or recommendation for replacement of the Special Servicer by, a successor special servicer; (e) that (x) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five (5) years of experience in collateral analysis and loss projections and (y) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets; and (f) that does not directly or indirectly, through one or more Affiliates or otherwise, own or have derivative exposure in any interest in any Certificates, the Trust Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Operating Advisor.

 

“Environmental Insurance Policy”: With respect to the Mortgaged Properties or REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect of the Mortgaged Properties or REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders and the Companion Loan Holders.

 

“Environmental Report”: The environmental audit report or reports with respect to the Mortgaged Properties delivered to the Trust Loan Sellers.

 

“ERISA”: The Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

 

“ERISA Plan”: As defined in Section 5.02(k) of this Agreement.

 

“Escrow Account”: As defined in Section 3.04(b) of this Agreement. Any Escrow Account may be a sub-account of the related Cash Collateral Account.

 

“Escrow Payment”: Any payment made by the Borrowers to the Master Servicer pursuant to the Mortgage, Cash Collateral Account Agreement, Lock-Box Agreement, Loan Agreement or other Loan Document for the account of the Borrowers for application toward the payment of taxes, insurance premiums, assessments, environmental remediation and similar items in respect of the Mortgaged Properties or related to the satisfaction of closing conditions for the Whole Loan.

 

“Euroclear”: Euroclear Bank, as operator of the Euroclear System and its successors in interest.

 

“Excess Interest”: The interest accrued at the Revised Rate from and after the Anticipated Repayment Date in respect of the Whole Loan in excess of the interest accrued at the related stated Trust Loan Rate set forth on the Mortgage Loan Schedule, plus any compound interest accrued on such amounts, to the extent permitted by applicable law and the related Loan Agreement.

 

“Excess Interest Distribution Account”: The trust account or subaccount created and maintained by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement in trust for the Holders of the Class S Certificates, which (subject to any changes in the identities of

 

 -31-

 

 

the Certificate Administrator and/or the Trustee) shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Excess Interest Distribution Account”. Any such account shall be an Eligible Account. The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the Class S Certificates. The Excess Interest Distribution Account shall not be an asset of any Trust REMIC, but rather shall be an asset of the Grantor Trust.

 

“Excess Prepayment Interest Shortfall”: With respect to any Distribution Date, any portion of the aggregate Prepayment Interest Shortfalls for such Distribution Date in excess of the sum of (i) the Master Servicer Prepayment Interest Shortfall Amount with respect to such Distribution Date and (ii) any Prepayment Interest Excess with respect to such Distribution Date.

 

“Excess Servicing Fee Rate”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), a rate per annum equal to 0.0060%; provided that such rate shall be subject to reduction at any time following any resignation of a Master Servicer pursuant to Section 6.04 of this Agreement (if no successor is appointed in accordance with Section 6.04 of this Agreement) or any termination of the Master Servicer pursuant to Section 7.01 of this Agreement, to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer (which successor may include the Trustee) that meets the requirements of Section 7.02 of this Agreement.

 

“Excess Servicing Fee Right”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), the right to receive Excess Servicing Fees. In the absence of any transfer of the Excess Servicing Fee Right, the Master Servicer shall be the owner of such Excess Servicing Fee Right.

 

“Excess Servicing Fees”: With respect to the Trust Loan and the Companion Loan (and the successor REO Loan, if applicable), that portion of the Servicing Fee that accrues at a per annum rate equal to the Excess Servicing Fee Rate.

 

“Exchange Act”: The Securities Exchange Act of 1934, as amended and the rules and regulations thereunder.

 

“FDIC”: The Federal Deposit Insurance Corporation or any successor thereto.

 

“FHLMC”: The Federal Home Loan Mortgage Corporation, or any successor thereto.

 

“Final Asset Status Report”: An Asset Status Report that is labeled as being a “Final Asset Status Report”, together with such other data or supporting information provided by the Special Servicer to the Directing Holder, which does not include any communications (other than the related Asset Status Report) between the Special Servicer and the Directing Holder; provided that no Asset Status Report shall be considered a Final Asset Status Report unless (i) the Directing Holder (during any Subordinate Control Period) has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval or consent pursuant to this Agreement in respect of such action, or has been

 

 -32-

 

 

deemed to approve or consent to such action or (ii) the Asset Status Report is otherwise implemented by the Special Servicer in accordance with the terms of this Agreement.

 

“Final Recovery Determination”: With respect to the Whole Loan or REO Loan, including after it becomes subject to repurchase by the Trust Loan Sellers pursuant to Section 2.03(e) of this Agreement or subject to purchase pursuant to any related mezzanine intercreditor agreement, the recovery of all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments or recoveries (including proceeds of the final sale of the REO Property) which the Master Servicer (or if the Whole Loan becomes a Specially Serviced Loan or an REO Loan, the Special Servicer), in its reasonable judgment, as evidenced by a certificate of a Servicing Officer delivered to the Trustee, the Certificate Administrator, the Custodian and the Operating Advisor (and the Master Servicer, if the certificate is from the Special Servicer), expects to be finally recoverable. The Master Servicer shall maintain records, prepared by a Servicing Officer, of each Final Recovery Determination until the earlier of (i) its termination as the Master Servicer hereunder and the transfer of such records to a successor servicer and (ii) five years following the termination of the Trust Fund.

 

“Financial Market Publisher”: BlackRock Financial Management, Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Moody’s Analytics, Interactive Data Corporation, Markit LLC, KBRA Analytics, LLC and Thomson Reuters Corporation, or any successor entities thereof.

 

“Fitch”: Fitch Ratings, Inc., or any of its successors in interest. If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Form 8-K Disclosure” The information described in the Form 8-K items set forth under the “Item on Form 8-K” column on Exhibit Y hereto.

 

“FNMA”: The Federal National Mortgage Association or any successor thereto.

 

“GACC”: German American Capital Corporation, and its successors in interest.

 

“GACC Indemnification Agreement”: The agreement dated as of the Pricing Date, among GACC, the Depositor and the Initial Purchasers.

 

“GACC Trust Loan Purchase Agreement”: The Trust Loan Purchase Agreement dated and effective the Pricing Date, between GACC and the Depositor.

 

“Global Certificates”: Each of the Regulation S Global Certificates or Rule 144A Global Certificates if and so long as such class of Regular Certificates is registered in the name of a nominee of the Depository.

 

“Grantor Trust”: A segregated asset pool within the Trust Fund treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement hereto.

 

 -33-

 

 

“Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes, or substances, including, without limitation, those so identified pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental laws now existing, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls (“PCBs”), radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

 

“Holder”: With respect to (i) any Certificate, a Certificateholder; and (ii) with respect to any Lower-Tier Regular Interest, the Trustee.

 

“Impermissible Credit Risk Retention Affiliate”: As defined in Section 3.31.

 

“Impermissible Operating Advisor Affiliate”: As defined in Section 3.31.

 

“Impermissible TPP Affiliate”: As defined in Section 3.31.

 

“Indemnified Party”: As defined in Section 8.05(d), Section 8.05(g) or Section 8.05(h), as applicable, of this Agreement, as the context requires.

 

“Indemnifying Party”: As defined in Section 8.05(d), Section 8.05(g) or Section 8.05(h), as applicable, of this Agreement, as the context requires.

 

“Independent”: When used with respect to any specified Person, any such Person who (i) does not have any direct financial interest, or any material indirect financial interest, in any of the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Directing Holder, the Operating Advisor, any Borrower or any Manager or any Affiliate thereof, and (ii) is not connected with any such Person thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.

 

“Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the applicable Trust REMIC within the meaning of Section 856(d)(3) of the Code if such Trust REMIC were a real estate investment trust (except that the ownership tests set forth in that section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class or 35% or more of the aggregate value of all Classes of Certificates); provided that such Trust REMIC does not receive or derive any income from such Person and the relationship between such Person and such Trust REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) addressed to the Master Servicer or the Special Servicer, as applicable, the Operating Advisor, the Certificate Administrator and the Trustee has been delivered to the Certificate Administrator to that effect) or (ii) any other Person (including the Master Servicer and the Special Servicer) if the Master Servicer or the Special Servicer, as applicable, on behalf of itself, the Operating Advisor, the Certificate Administrator and the Trustee has received an Opinion of Counsel (at the expense of the party seeking to be deemed an Independent Contractor) to the effect that the taking of any action in respect of the REO Property by such

 

 -34-

 

 

Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause the REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) or cause any income realized in respect of the REO Property to fail to qualify as Rents from Real Property (provided that such income would otherwise so qualify).

 

“Individual Certificate”: Any Certificate in definitive, fully registered physical form without interest coupons.

 

“Initial Purchasers”: Deutsche Bank Securities Inc., BofA Securities, Inc. and J.P. Morgan Securities LLC and their respective successors in interest.

 

“Initial Resolution Period”: As defined in Section 2.03(e) of this Agreement.

 

“Inquiries”: As defined in Section 4.02(c) of this Agreement.

 

“Institutional Accredited Investor”: An institution that is an “accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or (7) under the Act or any entity with respect to which the equity owners of which each qualify as an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Act.

 

“Insurance Proceeds”: Proceeds of any fire and hazard insurance policy, title policy or other insurance policy relating to the Whole Loan (including any amounts paid by the Master Servicer pursuant to Section 3.08 of this Agreement).

 

“Interest Distribution Amount”: With respect to any Distribution Date and any Class of Regular Certificates, an amount equal to the Current Interest Distribution Amount for such Class and such Distribution Date, less any Excess Prepayment Interest Shortfall allocable to such Class.

 

“Interest Reserve Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(e) of this Agreement; which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Interest Reserve Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Interest Reserve Account shall be an asset of the Lower-Tier REMIC.

 

“Interested Person”: As of any date of determination, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Directing Holder, any Certificateholder, any Companion Loan Holder, any Independent Contractor engaged by the Special Servicer pursuant to Section 3.15 of this Agreement, or any Person known to a Responsible Officer of the Trustee or the Certificate Administrator, or to a Servicing Officer of the Special Servicer, to be an Affiliate of any of them, or any Borrower Related Party.

 

 -35-

 

 

“Investment Account”: As defined in Section 3.07(a) of this Agreement.

 

“Investment Representation Letter”: As defined in Section 5.02(c)(i)(A) of this Agreement.

 

“Investor Certification”: A certificate (which may be in electronic form or “click-through format”) representing that such Person executing the certificate is a Certificateholder, a Directing Holder, a Beneficial Owner or a prospective purchaser of a Certificate and that (i) for purposes of obtaining certain information and notices (including access to information and notices on the Certificate Administrator’s Website) pursuant to this Agreement, such Person (a) is not a Borrower Related Party or (b) is a Borrower Related Party, substantially in the form of Exhibit L-1-A (in the case of clause (a)) or Exhibit L-1-B (in the case of clause (b)) to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website and/or (ii) for purposes of exercising Voting Rights, such Person is not the Depositor, the Certificate Administrator, the Trustee, the Operating Advisor, a Borrower Related Party, a Manager, a Restricted Holder or an Affiliate of any of the foregoing or an agent of any of the foregoing, substantially in the form of Exhibit L-2 to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website. The Certificate Administrator may require that Investor Certifications are resubmitted from time to time in accordance with its policies and procedures.

 

“Investor Q&A Forum”: As defined in Section 4.02(c) of this Agreement.

 

“Investor Registry”: As defined in Section 4.02(d) of this Agreement.

 

“IRS”: The Internal Revenue Service.

 

“JPMCB”: JPMorgan Chase Bank, National Association, and its successors in interest.

 

“JPMCB Indemnification Agreement”: The agreement dated as of the Pricing Date, among JPMCB, the Depositor and the Initial Purchasers.

 

“JPMCB Trust Loan Purchase Agreement”: The Trust Loan Purchase Agreement dated and effective the Pricing Date, between JPMCB and the Depositor.

 

“Junior Notes”: Promissory Note B-1, Promissory Note B-2, Promissory Note B-3 and Promissory Note B-4 in the aggregate original principal amount of $411,000,000.

 

“KBRA”: Kroll Bond Rating Agency, LLC, or any of its successors in interest. If neither such rating agency nor any successor remains in existence, “KBRA” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the other parties hereto, and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Late Collections”: With respect to the Whole Loan, all amounts received thereon during any Collection Period (or within the related grace period), whether as payments, Insurance

 

 -36-

 

 

Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of the Whole Loan (without regard to any acceleration of amounts due thereunder by reason of default) on a Due Date in a previous Collection Period and not previously recovered. If the Whole Loan becomes an REO Loan, all amounts received in connection with the REO Property during any Collection Period (including any grace period applicable under the original Whole Loan), whether as Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Proceeds or otherwise, which represent late collections of principal or interest due or deemed due in respect of the REO Loan or the predecessor Whole Loan (without regard to any acceleration of amounts due under the predecessor Whole Loan by reason of default) on a Due Date in a previous Collection Period and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges.

 

“Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in connection with the liquidation of the Whole Loan or the liquidation of the REO Property or the sale of the Whole Loan pursuant to Section 3.16 or Section 9.01 of this Agreement (including, without limitation, legal fees and expenses, committee or referee fees, and, if applicable, brokerage commissions, and conveyance taxes).

 

“Liquidation Fee”: A fee payable to the Special Servicer pursuant to Section 3.12(c) of this Agreement with respect to the Trust Loan (or any related allocable portion thereof) (if repurchased in accordance with Section 2.03(e) of this Agreement), Specially Serviced Loan or REO Loan (except as specified in the following paragraph), in each case as to which the Special Servicer obtains a full, partial or discounted payoff from the Borrowers, a loan purchaser or the Trust Loan Sellers, as applicable, or any Liquidation Proceeds with respect thereto (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), equal to the product of 0.50% and the proceeds of such full, partial or discounted payoff or the Net Liquidation Proceeds related to such liquidated or repurchased Whole Loan or Specially Serviced Loan, as the case may be, in each case exclusive of any portion of such full, partial or discounted payoff or Net Liquidation Proceeds that represents Penalty Charges; provided that with respect to any particular liquidation (or partial liquidation), as reduced by the amount of any and all related Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to the Specially Serviced Loan, REO Loan or Whole Loan.

 

No Liquidation Fee shall be payable (a) with respect to clause (v) of the definition of Liquidation Proceeds; (b) in the case of clause (vi) of the definition of Liquidation Proceeds if exercised within 90 days after the first time that such holder’s option to purchase the Whole Loan becomes exercisable, provided, however, that even if the purchase occurs before such expiration the Liquidation Fee will be payable to the extent paid by, and collected from, the related borrower or the mezzanine lender; (c) in the case of a repurchase of the related Trust Loan Seller Percentage Interest in the Trust Loan (or the REO Loan, if applicable) by a Trust Loan Seller pursuant to the related Trust Loan Purchase Agreement, if such Trust Loan Seller repurchases the related Trust Loan Seller Percentage Interest in the Trust Loan within the resolution time period set forth in Section 2.03(e) of this Agreement (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement); (d) in connection with the purchase of the Trust Loan if it has become a Defaulted Mortgage Loan by the Special Servicer or any Affiliate thereof within 90 days after the transfer of the Defaulted

 

 -37-

 

 

Mortgage Loan to special servicing; (e) in connection with any indemnification payment made by a Trust Loan Seller as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e), if such Trust Loan Seller makes such indemnification payment within the resolution time period set forth in Section 2.03(e) of this Agreement (and giving effect to any applicable extension period beyond the end of the Initial Resolution Period set forth in Section 2.03(e) of this Agreement); (f) if the Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” and the related Liquidation Proceeds are received within three months following the related maturity date as a result of the related Whole Loan being refinanced or otherwise repaid in full (provided that the Special Servicer may collect from the Borrowers and retain (x) a liquidation fee, (y) such other fees as are provided for in the Loan Documents, and (z) other appropriate fees in connection with such liquidation)s; (g) the purchase of the Trust Loan by the holder of the related mezzanine loan pursuant to the mezzanine intercreditor agreement within 90 days after the first time that such holder’s option to purchase the Whole Loan becomes exercisable (provided, that for the avoidance of doubt, if there are one or more purchase notices that are delivered subsequent to the initial purchase notice, as long as the event that resulted in the first purchase notice (or the preceding purchase notice) has, within the 90-day period from the date the applicable purchase notice was given to such holder of a mezzanine loan, ceased, been cured, been waived by the Master Servicer or the Special Servicer in writing, or otherwise was no longer in effect during such period, such 90-day period will commence on the date of any subsequent purchase notice given to such holder of a mezzanine loan) and (h) with respect to an Other Securitization Trust, in connection with (A) a repurchase or replacement of such Companion Loan by the applicable Trust Loan Seller due to a breach of a representation or warranty or a document defect under the related mortgage loan purchase agreement related to the Other Pooling and Servicing Agreement prior to the expiration of the cure period (including any applicable extension thereof) set forth therein or (B) a purchase of such Companion Loan pursuant to a clean-up call or similar liquidation under the related Other Pooling and Servicing Agreement

 

“Liquidation Proceeds”: Cash amounts (other than Insurance Proceeds and Condemnation Proceeds and REO Proceeds) received by or paid to the Master Servicer or the Special Servicer in connection with: (i) the liquidation of the Mortgaged Properties or other collateral constituting security for the Defaulted Mortgage Loan, through trustee’s sale, foreclosure sale, disposition of REO Property or otherwise, exclusive of any portion thereof required to be released to the Borrowers in accordance with applicable law and the terms and conditions of the Notes and the Mortgage; (ii) the realization upon any deficiency judgment obtained against the Borrowers; (iii) the sale of the Defaulted Mortgage Loan; (iv) a repurchase of the related Trust Loan Seller Percentage Interest in the Trust Loan (or REO Loan) by a Trust Loan Seller pursuant to the related Trust Loan Purchase Agreement; (v) the purchase of the Trust Loan and all property acquired in respect of the Trust Loan by the Sole Certificateholder, the Special Servicer or the Master Servicer pursuant to Section 9.01 of this Agreement; (vi) the purchase of the Whole Loan by the holder of the related mezzanine loan pursuant to the mezzanine intercreditor agreement; or (vii) the purchase of the Trust Loan by the Companion Loan Holders.

 

“Loan Agreement”: The Mortgage Loan Agreement, dated as of October 14, 2021, by and between the Borrowers, as borrowers, and DBRI, BANA, JPMCB and 3650 Cal Bridge, collectively, as lender.

 

 -38-

 

 

“Loan Documents”: The documents executed or delivered in connection with the origination or any subsequent modification of the Whole Loan or subsequently added to the Mortgage File.

 

“Lock-Box Account”: With respect to the Mortgaged Properties, if applicable, any account created pursuant to the Loan Documents to receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the related Cash Collateral Accounts in accordance with the terms of the Whole Loan.

 

“Lock-Box Agreement”: The lock-box agreement, if any, between the Originators and the Borrowers, pursuant to which the Lock-Box Account, if any, may have been established.

 

“Lower-Tier Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(b) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Lower-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.

 

“Lower-Tier Distribution Amount”: As defined in Section 4.01 of this Agreement.

 

“Lower-Tier Principal Balance”: With respect to any Class of Lower-Tier Regular Interest, initially will equal the original principal balance set forth in the Preliminary Statement herein, and from time to time will equal such amount reduced by the amount of distributions of the Lower-Tier Distribution Amount allocable to principal and Realized Losses allocable thereto in all prior periods as described in Section 4.01 of this Agreement, such that at all times the Lower-Tier Principal Balance of a Lower-Tier Regular Interest shall equal the Certificate Balance of its Corresponding Certificates.

 

“Lower-Tier Regular Interests”: The Class LA Interest, the Class LB Interest, the Class LC Interest, the Class LD Interest and the Class LHRR Interest issued by the Lower-Tier REMIC and held by the Trustee as assets of the Upper-Tier REMIC. Each Lower-Tier Regular Interest (i) is designated as a “regular interest” in the Lower-Tier REMIC (ii) relates to its Corresponding Class of Certificates, (iii) is uncertificated, (iv) has an initial Lower-Tier Principal Balance equal to the original Lower-Tier Principal Balance set forth in the Preliminary Statement herein, (v) has a Pass-Through Rate equal to the Net Mortgage Rate, (vi) has a “latest possible maturity date”, within the meaning of Treasury Regulations Section 1.860G-1(a), that is the Rated Final Distribution Date and (vii) is entitled to the distributions in the amounts and at the times specified in Section 4.01(a) of this Agreement.

 

 -39-

 

 

“Lower-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Trust Loan and collections thereon (exclusive of Excess Interest and the proceeds thereof in the Excess Interest Distribution Account), the Trust’s interest in any REO Property acquired in respect thereof, amounts related thereto held from time to time in the Collection Account and the Lower-Tier Distribution Account, any REO Account, related amounts in the Interest Reserve Account and all other property included in the Trust Fund that is not in the Upper-Tier REMIC, excluding any Excess Interest and any proceeds thereof in the Excess Interest Distribution Account.

 

“MAI”: Member of the Appraisal Institute.

 

“Major Decision”: Any of the following:

 

(a)       any substitution or release of real property collateral for the Whole Loan (other than substitutions or releases of immaterial and non-income producing real property collateral) except as expressly permitted by the Loan Documents without the consent of the lender;

 

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

 

(c)       any transfer of a Mortgaged Property or any portion of a Mortgaged Property, or any transfer of any direct or indirect ownership interest in the Borrowers to the extent lender consent under the Loan Documents is required, except in each case as expressly permitted by the Loan Documents and for which there is no lender discretion, or in connection with a pending or threatened condemnation;

 

(d)      any consent to the incurrence of additional debt by the Borrowers or mezzanine debt by a direct or indirect parent of a Borrower, including modification of the terms of any document evidencing or securing any such additional debt and of any intercreditor or subordination agreement executed in connection therewith and any waiver of or amendment or modification to the terms of, or any renewal, replacement, consolidation or supplement to, any mezzanine loan documents or any such document or agreement, in each case to the extent lender approval is required by the Loan Documents;

 

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

 

(f)       any modification, consent to a modification or waiver of any monetary term (other than late fees and Default Interest but including, without limitation, the timing of payments and the acceptance of discounted payoffs) or material non-monetary term (including, without limitation, the timing of payments and acceptance of discounted payoffs) of the Whole Loan or any extension of the maturity date of the Whole Loan to the extent lender approval is required by the Loan Documents;

 

 -40-

 

 

(g)       following a Default, any material exercise of remedies, including the acceleration of the Whole Loan or initiation of judicial, bankruptcy or similar proceedings under the Loan Documents or with respect to the Borrowers or the Mortgaged Properties;

 

(h)       any sale or other disposition of the Whole Loan or the Mortgaged Properties (including any REO Property) for less than the Repurchase Price;

 

(i)        any determination to bring the Mortgaged Properties or an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at the Mortgaged Properties or an REO Property;

 

(j)        any modification, waiver or amendment of an intercreditor agreement, co-lender agreement, participation agreement or similar agreement with any mezzanine lender, Companion Loan Holder or subordinate debt holder related to the Whole Loan, or an action to enforce rights with respect thereto, in each case in a manner that materially and adversely affects the Controlling Class (to the extent that neither the Directing Holder, the majority holder of the Controlling Class, nor any affiliate or agent thereof is a holder of the applicable mezzanine loan or any beneficial interest in such mezzanine loan);

 

(k)       any Manager changes with respect to the Whole Loan, to the extent lender approval is required by the Loan Documents;

 

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

 

(m)      any acceptance of an assumption agreement releasing the Borrowers or other obligor from liability under the Whole Loan or the Loan Documents other than as permitted pursuant to the specific terms of such Loan Documents and for which there is no lender discretion;

 

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

 

(o)       the execution, termination or renewal of any lease, to the extent lender approval is required under the Loan Documents and to the extent such lease constitutes a “major lease” as defined in the Loan Documents, including entering into any subordination, non-disturbance and attornment agreement;

 

(p)       any adoption or implementation of the Annual Budget for which lender consent is required under the Loan Documents; and

 

(q)       the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of the Borrowers.

 

“Majority Controlling Class Certificateholders”: The Holder(s) of Certificates representing more than 50% of the aggregate Certificate Balance of the Controlling Class.

 

 -41-

 

 

“Management Agreement”: With respect to each Mortgaged Property, the related property management agreement, if any, by and between a Manager and the related Borrower, or any successor property management agreement between such parties.

 

“Manager”: With respect to the Mortgaged Properties, any property manager for the Mortgaged Properties.

 

“Master Servicer”: KeyBank National Association, a national banking association, its successor in interest (in such capacity), or if any successor Master Servicer is appointed as herein provided, such successor Master Servicer or any successor master servicer appointed as herein provided.

 

“Master Servicer Prepayment Interest Shortfall Amount”: As defined in Section 3.17(c) of this Agreement.

 

“Master Servicer Termination Event”: As defined in Section 7.01(a) of this Agreement.

 

“Master Servicer’s Website”: Shall mean the internet website maintained by the Master Servicer; initially located at “www.key.com/key2cre”.

 

“Material Breach”: As defined in Section 2.03(e) of this Agreement.

 

“Material Document Defect”: As defined in Section 2.03(e) of this Agreement.

 

“Maturity Date”: The scheduled maturity date on the Due Date in November 6, 2036.

 

“Mezzanine Loan”: Any mezzanine indebtedness related to the Whole Loan.

 

“Modification Fees”: With respect to the Whole Loan, any and all fees with respect to a modification, restructure, extension, waiver or amendment that modifies, restructures, extends, amends or waives any term of the Loan Documents (as evidenced by a signed writing) agreed to by the Master Servicer or the Special Servicer (other than all loan service transaction fees, defeasance fees, Assumption Fees, consent fees, assumption application fees, and fees similar to the foregoing). For the avoidance of doubt, Special Servicing Fees, Workout Fees and Liquidation Fees due to the Special Servicer in connection with a modification, restructure, extension, waiver or amendment shall not be considered Modification Fees. For each modification, restructure, extension, waiver or amendment in connection with working out the Whole Loan after it has become a Specially Serviced Loan, the Modification Fees collected from the Borrowers shall be subject to a cap of 1.0% of the outstanding principal balance of the Whole Loan on the closing date of the related modification, restructure, extension, waiver or amendment (prior to giving effect to such modification, restructure, extension, waiver or amendment); provided that no aggregate cap exists in connection with the amount of Modification Fees which may be collected from the Borrowers with respect to a Specially Serviced Loan or REO Loan.

 

“Modified Mortgage Loan”: A Specially Serviced Loan which has been modified by the Special Servicer pursuant to Section 3.26 of this Agreement in a manner that:

 

 -42-

 

 

(a)       reduces or delays the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing current Monthly Payments with respect to the Trust Loan or Companion Loan), including any reduction in the Monthly Payment;

 

(b)       except as expressly contemplated by the Loan Documents, results in a release of the lien of the Mortgage on any material portion of the Mortgaged Properties without a corresponding Principal Prepayment in an amount not less than the fair market value (as is), as determined by an Appraisal delivered to the Special Servicer (at the expense of the Borrowers and upon which the Special Servicer may conclusively rely), of the property to be released; or

 

(c)       in the reasonable good faith judgment of the Special Servicer, otherwise materially impairs the value of the security for the Whole Loan or reduces the likelihood of timely payment of amounts due thereon.

 

“Monthly Payment”: With respect to the Trust Loan or Whole Loan (in each case, other than an REO Loan) and any Due Date, the scheduled monthly payment of principal (to the extent due, but excluding any Balloon Payment) and interest at the Trust Loan Rate or Whole Loan Rate, as applicable, due on such Due Date (but not excluding any constant Monthly Payment due on the Trust Loan). The Monthly Payment with respect to an REO Loan is the monthly payment that would otherwise have been payable on the Due Date had the Trust Loan not been discharged, determined as set forth in the preceding sentence and on the assumption that all other amounts, if any, due thereunder are paid when due.

 

“Moody’s”: Moody’s Investors Service, Inc., or any of its successors in interest. If neither Moody’s nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Mortgage”: The mortgage, deed of trust or other instrument creating a first lien on or first priority ownership interest in the Mortgaged Properties securing the Notes.

 

“Mortgage File”: Collectively, the mortgage documents listed in Section 2.01(a)(i) through Section 2.01(a)(xix) of this Agreement pertaining to the Whole Loan and any additional documents required to be added to the Mortgage File pursuant to the express provisions of this Agreement; provided that whenever the term “Mortgage File” is used to refer to documents actually received by the Depositor or the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually so received.

 

“Mortgage Loan Schedule”: The schedule attached as Exhibit B to this Agreement, which schedule shall set forth the following information:

 

(a)       the Trust Loan name;

 

 -43-

 

 

(b)       the street address (including city, state and zip code) of each Mortgaged Property;

 

(c)       the Trust Loan Rate and Whole Loan Rate in effect as of the Cut-off Date;

 

(d)       the original principal balance of the Whole Loan and the Trust Loan;

 

(e)       the Stated Principal Balance as of the Cut-off Date;

 

(f)       the Maturity Date for the Whole Loan;

 

(g)       the Due Date;

 

(h)       the amount of the Monthly Payment due on the first Due Date following the Cut-off Date;

 

(i)        the Servicing Fee Rate, the master servicing fee rate, the primary servicing fee rate, the Trustee/Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, CREFC^® License Fee Rate and the Administrative Fee Rate; and

 

(j)        whether any letter of credit is held by the lender as a beneficiary or is assigned as security for the Whole Loan.

 

“Mortgaged Properties”: As “Properties” is defined in the Loan Agreement.

 

“Net Condemnation Proceeds”: Condemnation Proceeds, to the extent such proceeds are not to be applied to the restoration, preservation or repair of the related Mortgaged Property or released to the related Borrower in accordance with the express requirements of the Loan Documents or other documents included in the Mortgage File or in accordance with the Servicing Standard.

 

“Net Default Interest”: With respect to any Distribution Date, an amount equal to the sum of (i) the amount of Default Interest received during the preceding Collection Period, minus (ii) any portions thereof withdrawn from the applicable Collection Account pursuant to Section 3.06(a)(vi) of this Agreement for Advance Interest Amounts and unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees) incurred on the Trust Loan or Whole Loan, as applicable, during or prior to such Collection Period.

 

“Net Insurance Proceeds”: Insurance Proceeds, to the extent such proceeds are not to be applied to the restoration of the related Mortgaged Property or released to the related Borrower in accordance with the express requirements of the Loan Documents or other documents included in the Mortgage File or in accordance with prudent and customary servicing practices.

 

“Net Liquidation Proceeds”: The Liquidation Proceeds received with respect to the Whole Loan net of the amount of (i) Liquidation Expenses incurred with respect thereto and (ii) with respect to proceeds received in connection with a taking of a Mortgaged Property (or portion thereof) by the power of eminent domain in condemnation, amounts required to be applied to the restoration or repair of the related Mortgaged Property.

 

 -44-

 

 

“Net Mortgage Rate”: With respect to any Distribution Date, the rate at which interest accrues on the Trust Loan (net of the Administrative Fee Rate and excluding Default Interest) during the related Whole Loan Interest Accrual Period. Notwithstanding the foregoing, the Net Mortgage Rate (which accrues interest on an Actual/360 Basis) for any Whole Loan Interest Accrual Period will be the annualized rate at which interest would have to accrue in respect of the Trust Loan on a 30/360 Basis in order to produce the aggregate amount of interest actually accrued in respect of the Trust Loan at the related Net Mortgage Rate during such Whole Loan Interest Accrual Period; provided that the Net Mortgage Rate for the one-month period (i) preceding the Distribution Dates in (a) January and February in each year that is not a leap year or (b) February only in each year that is a leap year (in either case, unless the related Distribution Date is the final Distribution Date) (commencing in 2022), shall be determined net of any Withheld Amounts from that month and (ii) preceding the Due Date in March (or February if the related Distribution Date is the final Distribution Date), shall be determined inclusive of the Withheld Amounts, if applicable, from the immediately preceding February, and, if applicable, January; provided, further, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate shall be determined without regard to any modification, waiver or amendment of the terms of the Trust Loan, whether agreed to by the Master Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the Borrowers or otherwise.

 

“Net REO Proceeds”: With respect to any REO Property, REO Proceeds net of any insurance premiums, taxes, assessments and other costs and expenses permitted to be paid therefrom pursuant to Section 3.15(b) of this Agreement.

 

“New Lease”: Any lease of an REO Property entered into on behalf of the Lower-Tier REMIC, if such Trust REMIC has the right to renegotiate the terms of such lease, including any lease renewed or extended on behalf of such Trust REMIC.

 

“No Downgrade Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form and may be in the form of a press release) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates if then rated by the Rating Agency (with respect to the Certificates) and the credit rating of any certificates, notes or other securities in connection with any single asset securitization or pooled asset securitization of a Companion Loan (or any portion thereof or interest therein) (in the case of a rating agency with respect to such certificates, notes or other securities); provided that a written waiver or other acknowledgment from any Rating Agency indicating its decision not to review the matter for which the No Downgrade Confirmation is sought shall be deemed to satisfy the requirement for the No Downgrade Confirmation from such Rating Agency with respect to such matter and the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, may proceed with the contemplated action(s) as if such party had received the No Downgrade Confirmation. At any time during which no Certificates are rated by a Rating Agency, no No Downgrade Confirmation shall be required from that Rating Agency.

 

“Non-Directing Holder”: With respect to the Companion Loan, the “Non-Controlling Holder” or any analogous concept under the Co-Lender Agreement.

 

 -45-

 

 

“Non-Reduced Certificates”: As of any date of determination, any Class of Principal Balance Certificates then outstanding for which (a)(1) the initial Certificate Balances of such Class of Principal Balance Certificates minus (2) the sum (without duplication) of, as such date of determination (x) the aggregate payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of such Class of Principal Balance Certificates, as of such date of determination, (y) any Appraisal Reduction Amounts and Collateral Deficiency Amounts then allocable to such Class of Principal Balance Certificates, as of such date of determination and (z) any Realized Losses previously allocated to such Class of Principal Balance Certificates as of such date of determination, is equal to or greater than (b) 25% of the remainder of (i) the initial Certificate Balance of such Class of Principal Balance Certificates, less (ii) any payments of principal (whether as principal prepayments or otherwise) previously distributed to the Holders of that Class of Principal Balance Certificates as of such date of determination.

 

“Non-U.S. Person”: A person that is not a U.S. Person.

 

“Nonrecoverable Administrative Advance”: Any Administrative Advance previously made or proposed to be made in respect of the Trust Loan or REO Loan which, as determined in the reasonable judgment of the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 4.07(d), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Trust Loan or REO Loan, which shall be evidenced by an Officer’s Certificate as provided by Section 4.07(d) of this Agreement.

 

“Nonrecoverable Advance”: Any Nonrecoverable P&I Advance, Nonrecoverable Property Advance or Nonrecoverable Administrative Advance.

 

“Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of the Trust Loan or REO Loan which, as determined in the reasonable judgment of the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 4.07(d) and Section 4.07(e), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Trust Loan or REO Loan, which shall be evidenced by an Officer’s Certificate as provided by Section 4.07(d) of this Agreement.

 

“Nonrecoverable Property Advance”: Any Property Advance previously made or proposed to be made in respect of the Whole Loan or REO Loan that, as determined by the Master Servicer, the Special Servicer, in each case in accordance with the Servicing Standard and Section 3.21(d), or the Trustee in its reasonable judgment, as applicable, would not be ultimately recoverable, together with any accrued and unpaid interest thereon, from late payments, Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other collections on or in respect of the Whole Loan or REO Loan, which shall be evidenced by an officer certificate as provided by Section 3.21(d) of this Agreement.

 

“Notes”: Collectively, as of any date of determination, the notes or other evidence of indebtedness and/or agreements evidencing the indebtedness of the Borrowers under the Whole

 

 -46-

 

 

Loan including any amendments or modifications, or any renewal or substitution note, as of such date.

 

“Notice of Termination”: Any of the notices given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer by the Special Servicer, the Master Servicer or the Certificateholder owning a majority of the Percentage Interest in the Class R and Class LR Certificates, as applicable, pursuant to Section 9.01(c) of this Agreement.

 

“Notional Amount”: As of any date of determination, with respect to the Class X Certificates as a Class, the Class X Notional Amount and, with respect to any of the Class X Certificates, the product of the Percentage Interest evidenced by such Certificate and the Class X Notional Amount.

 

“NRSRO”: Any nationally recognized statistical ratings organization within the meaning of Section 3(a)(62) of the Exchange Act.

 

“NRSRO Certification”: A certification (a) executed by a NRSRO in favor of the 17g-5 Information Provider substantially in the form attached hereto as Exhibit O or (b) provided electronically and executed by an NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website.

 

“Offering Circular”: That certain Offering Circular, dated October 22, 2021, relating to the offering of the Certificates.

 

“Officer’s Certificate”: A certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President (however denominated) and by the Treasurer, the Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Trust Officer or other officer of the Master Servicer, the Special Servicer or Operating Advisor customarily performing functions similar to those performed by any of the above designated officers, any Servicing Officer and also with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, or an authorized officer of the Depositor, and delivered to the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Special Servicer or the Master Servicer, as the case may be.

 

“Offsetting Modification Fees”: With respect to the Whole Loan or REO Loan and with respect to the Workout Fee or Liquidation Fee payable by the Trust, any and all Modification Fees collected by the Special Servicer as additional servicing compensation, but only to the extent that (1) such Modification Fees were earned and collected by the Special Servicer (A) in connection with the workout or liquidation (including partial liquidation) of a Specially Serviced Loan or REO Loan as to which the subject Workout Fee or Liquidation Fee became payable or (B) in connection with any workout of a Specially Serviced Loan that closed within the prior 18 months (determined as of the closing day of the workout or liquidation as to which the subject Workout Fee or Liquidation Fee became payable) and (2) such Modification Fees were earned in connection with a modification, restructure, extension, waiver or amendment of the Whole Loan or REO Loan at a time when the Whole Loan or REO Loan was a Specially Serviced Loan.

 

 -47-

 

 

“Operating Advisor”: Park Bridge Lender Services LLC, in its capacity as operating advisor, and its successors in interest, or any successor operating advisor appointed as herein provided.

 

“Operating Advisor Annual Report”: As defined in Section 6.11.

 

“Operating Advisor Consultation Period”: Any period when (i) the Certificate Balance of the Class HRR Certificates (taking into account the application of Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Certificates) is less than 25% of the initial Certificate Balance of the Class HRR Certificates or (ii) a Subordinate Consultation Period is in effect.

 

“Operating Advisor Consulting Fee”: A fee for each Asset Status Report and Major Decision as to which the Operating Advisor has consultation obligations and performed its duties with respect to such Asset Status Report or Major Decision equal to $10,000 (or such lesser amount that the Borrowers pay), payable pursuant to Section 6.11(l) of this Agreement; provided, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Asset Status Report or Major Decision; provided, further, that the Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the Borrowers if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the Master Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction), but may in no event take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection.

 

“Operating Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or expenses of the Trust Fund payable to the Operating Advisor pursuant to this Agreement (other than the Operating Advisor Fee and the Operating Advisor Consulting Fee).

 

“Operating Advisor Fee”: The fee payable to the Operating Advisor pursuant to Section 6.11(j).

 

“Operating Advisor Fee Rate”: With respect to each Certificate Interest Accrual Period related to any Distribution Date, a rate equal to 0.0023% per annum.

 

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust Fund and in the best interest of and for the benefit of the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) and not for the benefit of any particular Class of Certificateholders (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with any Borrower, any Manager of a Mortgaged Property, any guarantor, the Sponsors, the Depositor, the Master Servicer, the Special Servicer, the Directing Holder or any of their respective Affiliates.

 

“Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any

 

 -48-

 

 

judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(a)       any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the holders of Non-Reduced Certificates having greater than 25% of the aggregate Voting Rights, provided that with respect to any such failure which is not curable within such thirty (30) day period, the Operating Advisor shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an Officer’s Certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(b)       any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given in writing to the Operating Advisor by any party to this Agreement;

 

(c)       any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

 

(d)      a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against the Operating Advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(e)       the Operating Advisor consents to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Operating Advisor or of or relating to all or substantially all of its property; or

 

(f)       the Operating Advisor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations.

 

 -49-

 

 

“Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be counsel for the Depositor, the Operating Advisor, the Special Servicer or the Master Servicer, as the case may be, acceptable to the Certificate Administrator and the Trustee, except that any opinion of counsel relating to (a) qualification of either Trust REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any income or property of either Trust REMIC, (b) compliance with the REMIC Provisions (including application of the definition of “Independent Contractor”), or (c) a resignation of the Master Servicer or the Special Servicer pursuant to Section 6.04(b) of this Agreement, must be an opinion of counsel who is Independent of the Depositor, the Master Servicer and the Special Servicer.

 

“Originator”: Each of DBRI, BANA, JPMCB and 3650 Cal Bridge, in its capacity as co-originator of the Whole Loan under the Loan Agreement.

 

“Other Asset Representations Reviewer”: The applicable other “asset representations reviewer” under an Other Pooling and Servicing Agreement relating to a Companion Loan.

 

“Other Depositor”: With respect to any Other Securitization Trust, the related “depositor” (within the meaning of Item 1101(e) of Regulation AB).

 

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D and Form 10-K with respect to such Other Securitization Trust, as identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act and for the purposes of Section 11.07, Section 11.08, Section 11.09 and Section 11.16 only, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

“Other Pooling and Servicing Agreement”: The pooling and servicing agreement or other comparable agreement governing the creation of any Other Securitization Trust and the issuance of securities backed by the assets of such Other Securitization Trust.

 

“Other Securitization Trust”: Any “issuing entity” (within the meaning of Item 1101(f) of Regulation AB) that holds a Companion Loan (or any portion thereof or interest therein), as identified in writing to the parties to this Agreement.

 

“Other Servicer”: The applicable other “master servicer” under an Other Pooling and Servicing Agreement relating to a Companion Loan.

 

“Other Special Servicer”: The applicable other “special servicer” under an Other Pooling and Servicing Agreement relating to a Companion Loan.

 

“Other Sponsors”: GACC, BANA and JPMCB.

 

 -50-

 

 

“Other Trustee”: The applicable other “trustee” under an Other Pooling and Servicing Agreement relating to a Companion Loan.

 

“Ownership Interest”: Any record or beneficial interest in a Class R or Class LR Certificate.

 

“PACE Loan”: Any (x) “Property-Assessed Clean Energy loan” or (y) other indebtedness, without regard to the name given to such indebtedness, which is (i) incurred for improvements to a Mortgaged Property for the purpose of increasing energy efficiency, increasing use of renewable energy sources, resource conservation, or a combination of the foregoing, and (ii) repaid through multi-year assessments against such Mortgaged Property.

 

“P&I Advance”: Any advance made by the Master Servicer or the Trustee pursuant to Section 4.07 of this Agreement. Each reference to the payment or reimbursement of a P&I Advance shall be deemed to include, whether or not specifically referred to and without duplication, payment or reimbursement of interest thereon at the Advance Rate. Neither the Master Servicer nor the Trustee will be required to make P&I Advances with respect to any delinquent payment amounts due on the Companion Loan.

 

“P&I Advance Determination Date”: With respect to the Distribution Date, the second Business Day prior to such Distribution Date.

 

“Pass-Through Rate”: With respect to each Class of Regular Certificates, the rate for such Class as set forth below.

 

Class		Pass-Through Rate
Class A		Class A Pass-Through Rate
Class X		Class X Pass-Through Rate
Class B		Class B Pass-Through Rate
Class C		Class C Pass-Through Rate
Class D		Class D Pass-Through Rate
Class HRR		Class HRR Pass-Through Rate

 

With respect to each Class of Lower-Tier Regular Interests, the Net Mortgage Rate.

 

“Paying Agent”: The paying agent appointed pursuant to Section 5.04 of this Agreement.

 

“PCAOB”: The Public Company Accounting Oversight Board.

 

“Penalty Charges”: With respect to the Whole Loan (or successor REO Loan), any amounts collected thereon from the Borrowers that represent default charges, penalty charges, late fees and/or Default Interest, and excluding any Prepayment Charge.

 

“Percentage Interest”: As to any Certificate, the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (except the Class R and Class LR Certificates), the percentage interest is equal to the initial denomination of such Certificate as of the Closing Date divided by the initial Certificate

 

 -51-

 

 

Balance or Notional Amount, as applicable, of such Class of Certificates. With respect to any Class R or Class LR Certificate, the percentage interest is set forth on the face thereof.

 

“Performing Loan”: The Whole Loan if it is not a Specially Serviced Loan or REO Loan.

 

“Permitted Investments”: Any one or more of the following obligations or securities acquired at a purchase price of not greater than par, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Due Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:

 

(i)        direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, any agency or instrumentality of the United States of America shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Certificate as evidenced in writing, other than (a) unsecured senior debt obligations of the U.S. Treasury (direct or fully funded obligations), U.S. Department of Housing and Urban Development public housing agency bonds, Federal Housing Administration debentures, Government National Mortgage Association guaranteed mortgage-backed securities or participation certificates, RefCorp debt obligations and SBA-guaranteed participation certificates and guaranteed pool certificates and (b) Farm Credit System consolidated systemwide bonds and notes, Federal Home Loan Banks’ consolidated debt obligations, Freddie Mac debt obligations, and Fannie Mae debt obligations that satisfy the Applicable Fitch Permitted Investment Rating, the Applicable Moody’s Permitted Investment Rating, and the Applicable DBRS Morningstar Permitted Investment Rating;

 

(ii)       repurchase agreements on obligations specified in clause (a) of this definition, with a party agreeing to repurchase such obligations that, in each case, satisfy the Applicable DBRS Morningstar Permitted Investment Rating, the Applicable Moody’s Permitted Investment Rating, and the Applicable Fitch Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(iii)      federal funds, unsecured uncertificated certificates of deposit, time deposits, demand deposits and bankers’ acceptances of any bank or trust company organized under the laws of the United States or any state thereof, that, in each case, satisfy the Applicable DBRS Morningstar Permitted Investment Rating, the Applicable Moody’s Permitted Investment Rating, and the Applicable Fitch Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(iv)      commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that

 

 -52-

 

 

the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) provided, further that such investments, in each case, satisfy the Applicable DBRS Morningstar Permitted Investment Rating, the Applicable Moody’s Permitted Investment Rating, and the Applicable Fitch Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities);

 

(v)       (1) units of taxable money market mutual funds, issued by regulated investment companies, which seek to maintain a constant net asset value per share (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep or the Wells Fargo Money Market Funds) so long as any such fund is rated “Aaa-mf” by Moody’s and in the highest category by Fitch or otherwise acceptable to such Rating Agency, in any such case, as confirmed in a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities by such Rating Agency and DBRS Morningstar, and (2) units of money market funds that (A) have substantially all of its assets invested continuously in the types of investments referred to in clause (a) above, (B) has net assets of not less than $5,000,000,000, and (C) has a rating of “Aaa-mf” by Moody’s and in the highest category by Fitch and the highest rating obtainable from DBRS Morningstar (or, if not rated by such Rating Agency, an equivalent rating (or higher) by at least two (2) NRSROs); and;

 

(vi)      any other demand, money market or time deposit, demand obligation or any other obligation, security or investment, provided that the Master Servicer, Special Servicer or Certificate Administrator, as applicable, has received a No Downgrade Confirmation relating to the Certificates and any Companion Loan Securities.

 

Notwithstanding the foregoing, “Permitted Investments” (i) shall be limited to investments that have an unqualified rating (i.e., one with no qualifying suffix), with the exception of ratings with regulatory indicators, such as the (sf) subscript, and unsolicited ratings; (ii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; and (iii) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made that requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase and (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder. Permitted Investments may not be purchased at a price in excess of par.

 

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, banking fees, customary title agency fees and insurance commissions or fees received or retained by the Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to the Whole Loan or REO Property.

 

 -53-

 

 

“Permitted Transferee”: With respect to a Class R or Class LR Certificate, any Person or agent thereof that is a Qualified Institutional Buyer or an Affiliated Person, other than (a) a Disqualified Organization, (b) a Person that is a Disqualified Non-U.S. Person, (c) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the Transfer) to the effect that the Transfer of an Ownership Interest in any Class R or Class LR Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (d) an entity treated as a domestic partnership for U.S. federal income tax purposes, one or more of the direct or indirect beneficial owners (other than through a U.S. corporation) of which is (or is permitted under the applicable partnership agreement to be) a Disqualified Non-U.S. Person or (e) a U.S. Person with respect to whom income on the Class R or Class LR Certificate is attributable to a fixed base or foreign permanent establishment, within the meaning of an applicable income tax treaty, of such transferee or any other U.S. Person.

 

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

 

“Plan”: As defined in Section 5.02(k) of this Agreement.

 

“Prepayment Assumption”: The assumption that the Trust Loan does not prepay prior to its Maturity Date.

 

“Prepayment Charges”: Any prepayment premium, spread maintenance premium, yield maintenance premium or similar fee required to be paid under the Loan Documents in connection with a Principal Prepayment in respect of the Trust Loan and which are intended to compensate the mortgagee for an early and unscheduled receipt of principal. Any breakage costs payable to the “lender” (as such term is used in the related Loan Documents) under the Whole Loan and actually collected from the Borrowers in connection with a Principal Prepayment during or after a “lockout” period shall constitute Prepayment Charges.

 

“Prepayment Interest Excess”: With respect to any Distribution Date, if the Whole Loan was subject to Principal Prepayment in full or in part, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master Servicer or Special Servicer for application to the Whole Loan, in each case after the Due Date in the related Collection Period and on or prior to the close of business on the Business Day prior to the related Servicer Remittance Date, the aggregate amount of interest (net of any Excess Interest) accrued at the Mortgage Rate on the amount of such Principal Prepayments, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds after the Due Date in the related Collection Period and accruing in the manner set forth in the Loan Documents, to the extent such interest is collected by the Master Servicer or the Special Servicer (without regard to any Prepayment Charges actually collected).

 

“Prepayment Interest Shortfall”: With respect to any Distribution Date, if the Whole Loan was subject to a Principal Prepayment in full or in part which did not include a full month’s interest during the related Collection Period, or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by the Master

 

 -54-

 

 

Servicer or Special Servicer for application to the Whole Loan, in each case on or prior to the Due Date in the related Whole Loan Interest Accrual Period preceding such Distribution Date, the shortfall in the amount of interest (net of any Excess Interest) that would have accrued and been payable through the end of the Whole Loan Interest Accrual Period at the Mortgage Rate on the amount of such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds had such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds not been made (without regard to any Prepayment Charges actually collected).

 

“Pricing Date”: October 22, 2021.

 

“Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of The Wall Street Journal, Eastern edition (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time. The Certificate Administrator shall notify in writing the Master Servicer and the Special Servicer with regard to any determination of the Prime Rate in accordance with the parenthetical in the preceding sentence.

 

“Principal Balance Certificates”: The Class A, Class B, Class C, Class D and Class HRR Certificates.

 

“Principal Distribution Amount”: For any Distribution Date, an amount equal to (i) the sum of (without duplication and to the extent not already included in the Principal Distribution Amount, if any, for the prior Distribution Date and other than amounts received with respect to the Trust Loan as recoveries of Realized Losses):

 

(A)      the principal component, if any, of the scheduled Monthly Payment (other than any Balloon Payment) due on the Trust Loan on the Due Date in the related Collection Period (if received during the related Collection Period or advanced);

 

(B)      the principal component, if any, of the Assumed Scheduled Payment deemed due on the Due Date in the related Collection Period (if received during the related Collection Period or advanced) with respect to the Trust Loan if it is delinquent in respect of its Balloon Payment;

 

(C)      the Stated Principal Balance of the Trust Loan if it was, during the Collection Period, repurchased from the Trust Fund in connection with a Breach or Defect pursuant to Section 2.03 of this Agreement, purchased from the Trust Fund pursuant to Section 3.16 of this Agreement, or purchased from the Trust Fund pursuant to Section 9.01 of this Agreement;

 

(D)      the portion of Unscheduled Payments allocable to principal of the Trust Loan received during the Collection Period;

 

 -55-

 

 

(E)      the principal component of any Balloon Payment and any other principal payment on the Trust Loan received on or after the Maturity Date thereof, to the extent received during the Collection Period;

 

(F)      all other Principal Prepayments on the Trust Loan received in the related Collection Period;

 

(G)      any indemnification payment made by any Trust Loan Seller as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement to the extent that such amount was transferred into the Collection Account pursuant to Section 3.05(a)(xi) of this Agreement during the related Collection Period;

 

(H)      any other full or partial recoveries in respect of principal of the Trust Loan, including Net Insurance Proceeds, Net Liquidation Proceeds, Net Condemnation Proceeds and Net REO Proceeds received in the related Collection Period; and

 

(I)       the principal component of any late Monthly Payments or Unscheduled Payments on the Trust Loan received after the end of the Collection Period relating to such Distribution Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date;

 

as reduced by (ii) the principal portion of all previously unreimbursed P&I Advances that are paid or reimbursed from the principal collections on the Trust Loan described in clause (i) of this definition.

 

The principal component of the amounts set forth above shall be determined in accordance with Section 1.02 of this Agreement.

 

“Principal Prepayment”: Any payments of principal made by the Borrowers on the Whole Loan or Trust Loan, as applicable, that are received in advance of its scheduled Due Date and which are not accompanied by an amount of interest representing the full amount of scheduled interest due with respect to the related Whole Loan Interest Accrual Period. Principal Prepayments include any payment of principal on the Whole Loan that is made out of remaining funds in the Cash Management Account in accordance with the Loan Agreement and the Co-Lender Agreement.

 

“Privileged Information”: Any (i) correspondence or other communications between the Directing Holder (or the Controlling Class) on the one hand, and the Special Servicer (or the Master Servicer), on the other hand, related to the Whole Loan if the Whole Loan becomes a Specially Serviced Loan or the exercise of the consent or consultation rights of the Directing Holder under this Agreement and the Co-Lender Agreement, (ii) strategically sensitive information that the Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the Borrowers or other interested party and (iii) information subject to attorney-client privilege; provided that the summary of any Final Asset Status Report prepared pursuant to this Agreement is deemed not to be Privileged Information (although no such summary shall be made available to any Borrower Related Party).

 

 -56-

 

 

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available and known to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is required by law to disclose such information.

 

“Privileged Person”: A party to this Agreement, a Trust Loan Seller, a Rating Agency, a designee of the Depositor (including any financial market publisher), an Initial Purchaser, the Directing Holder (but only during any Subordinate Control Period and any Subordinate Consultation Period), a Companion Loan Holder or any other person who delivers a certification substantially in the form of Exhibit CC, any other person who delivers to the Certificate Administrator an Investor Certification (which may be provided by the Certificate Administrator upon request) and any NRSRO that delivers an NRSRO Certification to the 17g-5 Information Provider substantially in the form of Exhibit O to this Agreement, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website in a “click-through” format. For purposes of obtaining information or access to the Certificate Administrator’s Website, each Borrower Related Party shall be prohibited from obtaining such information or access pursuant to the terms of this Agreement (other than the Distribution Date Statement) and will not be considered Privileged Persons.

 

“Prohibited Party”: Any proposed Servicing Function Participant (i) that is listed on the Depositor’s Do Not Hire List or (ii) for which the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee that seeks to retain such Servicing Function Participant has actual knowledge obtained by written notice or through actual experience that such party at any point prior to such hiring, assignment or transfer failed to comply with the Servicing Function Participant’s reporting obligations under Regulation AB with respect to any other securitization.

 

“Property Advance”: Any advance made by the Master Servicer or the Trustee, as applicable, in respect of Property Protection Expenses or any expenses incurred to protect, preserve and enforce the security for the Whole Loan or to pay taxes and assessments or insurance premiums with respect to the Mortgaged Properties, to the extent the making of any such advance is specifically provided for in this Agreement, including, but not limited to, any advance made pursuant to Section 3.02 or Section 3.21 of this Agreement, as applicable. Each reference to the payment or reimbursement of a Property Advance shall be deemed to include, whether or not specifically referred to, payment or reimbursement of interest thereon at the Advance Rate. Notwithstanding anything to the contrary, “Property Advance” shall not include allocable overhead of the Master Servicer or the Special Servicer, as applicable, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of the Whole Loan or REO Property.

 

“Property Protection Expenses”: Any costs and expenses incurred by the Master Servicer or the Special Servicer pursuant to Section 3.04, Section 3.08(a), Section 3.10, Section

 

 -57-

 

 

3.11, Section 3.15(a), Section 3.15(b), Section 3.15(c), Section 3.16(c) or Section 3.24(a) of this Agreement or indicated herein as being payable as a Property Advance or as a cost or expense of the Trust Fund and the Companion Loan Holder but subject to the provisions of Section 1.02(e) or the Lower-Tier REMIC or Upper-Tier REMIC to be paid out of the Collection Account.

 

“PTCE”: Prohibited Transaction Class Exemption.

 

“Qualified Affiliate”: Any Person (a) that is organized and doing business under the laws of any state of the United States or the District of Columbia, (b) that is in the business of performing the duties of a servicer of mortgage loans, and (c) as to which 50% or greater of its outstanding voting stock or equity ownership interest are directly or indirectly owned by the Master Servicer or the Special Servicer, as applicable, or by any Person or Persons who directly or indirectly own equity ownership interests in the Master Servicer or the Special Servicer, as applicable.

 

“Qualified Institutional Buyer”: A “qualified institutional buyer” within the meaning of Rule 144A.

 

“Qualified Insurer”: As used in Section 3.08 of this Agreement:

 

(i)     an insurance company or security or bonding company qualified to write the related insurance policy in the relevant jurisdiction and whose claims paying ability is rated (a) at least “A (low)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by at least one NRSRO (which may include Moody’s and Fitch)), (b) at least “A-” by Fitch (or, if not rated by Fitch, an equivalent (or higher) rating by at least one NRSRO (which may include DBRS Morningstar and Moody’s)), and (c) “A3” by Moody’s (or, if not rated by Moody’s, an equivalent (or higher) rating by at least one NRSRO (which may include Fitch and/or DBRS Morningstar));

 

(ii)    in the case of the fidelity bond and the errors and omissions insurance required to be maintained pursuant to Section 3.08(d) of this Agreement, a company that shall have a claims paying ability rated at least equal to any one of the following: (1) “A-” or better by S&P, (2) “A3” or better by Moody’s, (3) “A-” or better by Fitch, (4) “A (low)” or better by DBRS Morningstar, (5) “A-:X” or better by A.M. Best or (6) an equivalent rating by KBRA; and

 

(iii)   in the case of clauses (i) and (ii), such other rating as to which a No Downgrade Confirmation has been obtained from each Rating Agency and, if applicable, each rating agency relating to a Companion Loan Securitization for which the minimum rating set forth in the applicable clause is not satisfied.

 

“Qualified Manager”: As defined in the Loan Agreement.

 

“Qualified Mortgage”: An obligation that is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective obligation as a qualified mortgage), or any substantially similar successor provision.

 

 -58-

 

 

“Qualified Replacement Special Servicer”: A replacement Special Servicer (i) that is a Qualified Servicer, (ii) that is not the Operating Advisor or an affiliate of the Operating Advisor, (iii) that is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, or (y) for the appointment of the successor Special Servicer or the recommendation by the Operating Advisor for the replacement Special Servicer to become the Special Servicer, (iv) that is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement Special Servicer, (v) that is not entitled to receive any fee from the Operating Advisor for its appointment as successor Special Servicer, in each case, unless expressly approved by 100% of the Certificateholders, and (vi) is a Qualified Servicer.

 

“Qualified Servicer”: As defined in Section 3.28 of this Agreement.

 

“Rated Final Distribution Date”: With respect to the Regular Certificates, the Distribution Date in November 2046.

 

“Rating Agency”: Any of Fitch and DBRS Morningstar.

 

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 3.14(d) of this Agreement.

 

“Realized Loss”: With respect to any Distribution Date, the amount, if any, by which the aggregate Certificate Balance of the Principal Balance Certificates after giving effect to distributions of principal on such Distribution Date exceeds the Stated Principal Balance of the Trust Loan immediately following the Determination Date preceding such Distribution Date.

 

“Record Date”: With respect to each Distribution Date, the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs.

 

“Regular Certificates”: The Class A, Class X, Class B, Class C, Class D and Class HRR Certificates.

 

“Regular Interest Distribution Amount”: With respect to any Distribution Date, an amount equal to, (i) for any Class of Principal Balance Certificates, interest for the related Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Class on the related Certificate Balance immediately prior to such Distribution Date; and (ii) for the Class X Certificates, interest for the related Certificate Interest Accrual Period at the applicable Pass-Through Rate for such Class on the related Notional Amount immediately prior to such Distribution Date.

 

“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.

 

 -59-

 

 

“Regulation D”: Regulation D under the Act.

 

“Regulation S”: Regulation S under the Act.

 

“Regulation S Global Certificate”: Each of the Class A, Class X, Class B, Class C and Class D Certificates issued as such on the Closing Date and registered in the name of a nominee of the Depository, interest in which is to be held by Regulation S Investors.

 

“Regulation S Investor”: With respect to a transferee of an interest in a Regulation S Global Certificate, a transferee that acquires such interest pursuant to Regulation S.

 

“Regulation S Transfer Certificate”: As defined in Section 5.02(c)(i)(B) of this Agreement.

 

“Relevant Servicing Criteria”: The Servicing Criteria applicable to each Reporting Servicer (as set forth, with respect to the Master Servicer and the Special Servicer, on Schedule I to this Agreement). For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers. With respect to a Servicing Function Participant engaged by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, the term “Relevant Servicing Criteria” refers to the items of the Relevant Servicing Criteria applicable to the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee that engaged such Servicing Function Participant that are applicable to such Servicing Function Participant based on the functions it has been engaged to perform.

 

“REMIC”: A “real estate mortgage investment conduit” within the meaning of Section 860D of the Code and the REMIC Provisions.

 

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

 

“Remittance Amount”: For each distribution date that a Master Servicer is required to make a distribution to the Companion Loan Holders pursuant to Section 3.05(h), the amounts received by the Master Servicer (or, with respect to a Serviced REO Property, the Special Servicer) during the related Collection Period pursuant to the Co-Lender Agreement and available for payment after withdrawals from the Collection Account payable to the Companion Loan Holder(s) pursuant to the Co-Lender Agreement.

 

“Rents from Real Property”: With respect to the REO Property, gross income of the character described in Section 856(d) of the Code, which income, subject to the terms and conditions of that Section of the Code in its present form, does not include:

 

(a)       except as provided in Section 856(d)(4) of the Code or (6), any amount received or accrued, directly or indirectly, with respect to the REO Property, if the determination of such amount depends in whole or in part on the income or profits derived

 

 -60-

 

 

by any Person from such property (unless such amount is a fixed percentage or percentages of receipts or sales and otherwise constitutes Rents from Real Property);

 

(b)       any amount received or accrued, directly or indirectly, from any Person if the Trust Fund owns directly or indirectly (including by attribution) a ten percent or greater interest in such Person determined in accordance with Sections 856(d)(2)(B) of the Code and (d)(5) of the Code;

 

(c)       any amount received or accrued, directly or indirectly, with respect to the REO Property if any Person Directly Operates the REO Property;

 

(d)      any amount charged for services that are not customarily furnished in connection with the rental of property to tenants in buildings of a similar class in the same geographic market as the REO Property within the meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such charges are separately stated); and

 

(e)       rent attributable to personal property unless such personal property is leased under, or in connection with, the lease of the REO Property and, for any taxable year of the Trust Fund, such rent is no greater than 15 percent of the total rent received or accrued under, or in connection with, the lease.

 

“REO Account”: As defined in Section 3.15(b) of this Agreement.

 

“REO Loan”: The Whole Loan if the Mortgaged Properties have become an REO Property.

 

“REO Proceeds”: With respect to the REO Property and the REO Loan, all revenues received by the Special Servicer with respect to the REO Property or REO Loan which do not constitute Liquidation Proceeds.

 

“REO Property”: The Mortgaged Properties, if title to which has been acquired by the Special Servicer on behalf of the Trust Fund through foreclosure, deed-in-lieu of foreclosure or otherwise.

 

“Reporting Servicer”: The Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of the Whole Loan) and each Servicing Function Participant.

 

“Repurchase Communication”: For purposes of Section 2.03(d) of this Agreement only, any communication, whether oral or written, which need not be in any specific form.

 

“Repurchase Price”: With respect to the Trust Loan if it is to be repurchased or purchased pursuant to Section 2.03(e) or Section 9.01 of this Agreement, or if the Trust Loan becomes a Specially Serviced Loan or REO Loan that is to be sold pursuant to Section 3.16 of this Agreement, an amount, calculated by the Master Servicer or the Special Servicer, as applicable, equal to:

 

 -61-

 

 

(a)       the outstanding principal balance of the Trust Loan as of the date of purchase; plus

 

(b)       all accrued and unpaid interest on the Trust Loan at the Trust Loan Rate in effect from time to time, to but not including the Due Date in the month of purchase (or, in the case of a purchase occurring after the Determination Date in the related month, to but not including the Due Date in the month immediately succeeding such purchase), but excluding any yield maintenance or other prepayment penalty; plus

 

(c)       all related unreimbursed Property Advances and Administrative Advances plus accrued and unpaid interest on related Advances at the Advance Rate, and all Special Servicing Fees and Workout Fees allocable to the Trust Loan; plus

 

(d)       any Liquidation Fee due pursuant to Section 3.12 of this Agreement allocable to the Trust Loan or Specially Serviced Loan; plus

 

(e)       all Additional Trust Fund Expenses; plus

 

(f)       if the Trust Loan (or REO Loan), or a portion thereof, is being purchased by a Trust Loan Seller pursuant to the related Trust Loan Purchase Agreement, to the extent not otherwise included in the amount described in clause (c) of this definition, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the Master Servicer, the Special Servicer, the Depositor, the Certificate Administrator and the Trustee in respect of the Breach or Defect giving rise to the repurchase obligation, including any such expenses arising out of the enforcement of the repurchase obligation, including, without duplication, any such expenses previously reimbursed from the Collection Account, plus accrued and unpaid interest thereon at the Advance Rate, to the extent payable to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee.

 

For purposes of this Agreement, the “Repurchase Price” (i) in respect of a Companion Loan that is purchased by the Trust Loan Seller shall be the repurchase price paid by the related Trust Loan Seller under the related Other Pooling and Servicing Agreement or the applicable servicing agreement and (ii) with respect to a sale of an REO Property, the term Whole Loan or REO Loan shall be construed to include the Companion Loan.

 

“Repurchase Request”: As defined in Section 2.03(d) of this Agreement.

 

“Repurchase Request Recipient”: As defined in Section 2.03(d) of this Agreement.

 

“Repurchase Request Rejection”: As defined in Section 2.03(d) of this Agreement.

 

“Repurchase Request Withdrawal”: As defined in Section 2.03(d) of this Agreement.

 

“Request for Release”: A request for a release signed by a Servicing Officer, substantially in the form of Exhibit E to this Agreement.

 

 -62-

 

 

“Requesting Party”: As defined in Section 3.28(a) of this Agreement.

 

“Reserve Accounts”: Reserve accounts, if any, established pursuant to the Mortgage or the Loan Agreement and any Escrow Account. Any Reserve Account may be a sub-account of a related Cash Collateral Account. Any Reserve Account shall be beneficially owned for federal income tax purposes by the Person who is entitled to receive the reinvestment income or gain thereon in accordance with the terms and provisions of the Whole Loan and Section 3.07 of this Agreement, which Person shall be taxed on all reinvestment income or gain thereon. The Master Servicer shall be permitted to make withdrawals therefrom for deposit into the related Cash Collateral Account, if applicable, or the Collection Account or for the purposes set forth under the Loan Documents for the Whole Loan.

 

“Residual Certificates”: The Class R and Class LR Certificates, collectively.

 

“Resolution Extension Period”:

 

(a)       For purposes of remediating a Material Breach with respect to the Trust Loan, the 90-day period following the end of the applicable Initial Resolution Period;

 

(b)       For purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is not a Specially Serviced Loan at the commencement of, and does not become a Specially Serviced Loan during, the applicable Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the earlier of (i) the 90th day following the end of such Initial Resolution Period and (ii) the 45th day following the Trust Loan Sellers’ receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of any Servicing Transfer Event with respect to the Trust Loan subsequent to the end of such Initial Resolution Period;

 

(c)       For purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is a not a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, but as to which a Servicing Transfer Event occurs during such Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the 90th day following the earlier of the end of such Initial Resolution Period and the Trust Loan Sellers’ receipt of written notice from the Master Servicer or the Special Servicer of the occurrence of such Servicing Transfer Event; and

 

(d)       For purposes of remediating a Material Document Defect with respect to the Trust Loan, if it is a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, zero (-0-) days; provided that, if the Trust Loan Sellers did not receive written notice from the Master Servicer or the Special Servicer of the relevant Servicing Transfer Event as of the commencement of the applicable Initial Resolution Period, then such Servicing Transfer Event shall be deemed to have occurred during such Initial Resolution Period and clause (c) of this definition will be deemed to apply.

 

“Responsible Officer”: When used with respect to the Trustee or the Certificate Administrator, any officer of the Trustee or the Certificate Administrator, as the case may be,

 

 -63-

 

 

assigned to the Corporate Trust Office of such party; in each case, with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Responsible Officer, such an officer whose name and specimen signature appears on a list of corporate trust officers furnished to the Master Servicer by the Trustee and the Certificate Administrator, as such list may from time to time be amended.

 

“Restricted Certificate”: As defined in Section 5.02(k) of this Agreement.

 

“Restricted Holder”: Any Certificateholder, beneficial owner of a Certificate or prospective purchaser of a Certificate (whether legally, beneficially or otherwise) or any other person that as of the time of the events in clauses (a) and (b) below is also a holder of a related mezzanine loan (or any affiliate or agent thereof) or an owner in any interest in any related mezzanine loan (whether legally, beneficially or otherwise, including as a holder of a note evidencing a related mezzanine loan, a holder of a participation interest in a related mezzanine loan or a beneficial owner of any securities collateralized by a related mezzanine loan) (a) as to which an event of default has occurred under such mezzanine loan giving rise to an automatic acceleration of such mezzanine loan or the right of the lender thereunder to accelerate such mezzanine loan, or (b) as to which foreclosure or enforcement proceedings against the related collateral have been initiated (and in respect of which, the Special Servicer has received notice thereof).

 

“Restricted Period”: The 40-day period prescribed by Regulation S commencing on the later of (a) the date upon which the Certificates are first offered to institutions that are persons other than the Initial Purchasers and any other distributor (as defined in Regulation S) of the Certificates and (b) the Closing Date.

 

“Retaining Party”: 3650 Cal Bridge Cambridge Crossing LLC, a majority-owned affiliate (as defined under the Credit Risk Retention Rules) of the Retaining Sponsor, or any successor Holder of all or part of the Class HRR Certificates.

 

“Retaining Sponsor”: 3650 Cal Bridge, acting as retaining sponsor as such term is defined in the Credit Risk Retention Rules.

 

“Risk Retained Certificates”: The Class HRR Certificates.

 

“Rule 144A”: Rule 144A under the Act.

 

“Rule 144A Global Certificate”: Each of the Class A, Class X, Class B, Class C and Class D Certificates issued as such on the Closing Date and registered in the name of a nominee of the Depository, interest in which is to be held by Qualified Institutional Buyers.

 

“Rule 15Ga-1 Notice”: As defined in Section 2.03(d) of this Agreement.

 

“Rule 15Ga-1 Notice Provider”: As defined in Section 2.03(d) of this Agreement.

 

 -64-

 

 

“Sarbanes Oxley Act” means the Sarbanes Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

“Sarbanes-Oxley Certification”: With respect to an Other Securitization Trust, the certification required to be filed together with such Other Securitization Trust’s Exchange Act report on Form 10-K pursuant to Rule 13a-14 and Rule 15d-14 of the Exchange Act.

 

“S&P”: S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, and its successors in interest, or any successor thereto. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other nationally recognized statistical rating agency or other comparable Person designated by the Depositor, notice of which designation shall be given to the other parties hereto and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Securities Legend”: As defined in Section 5.02(c)(iii) of this Agreement.

 

“Senior Non-Trust Notes”: The Companion Loans.

 

“Senior Notes”: The Senior Trust Notes and the Senior Non-Trust Notes.

 

“Senior Trust Notes”: Promissory Note A-1-1, Promissory Note A-2-1, Promissory Note A-3-1 and Promissory Note A-4-1 in the aggregate principal amount of $285,000,000.

 

“Service(s)(ing)”: In accordance with Regulation AB, the act of servicing and administering the Trust Loan or any other assets of the Trust by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is referenced in the disclosure requirements set forth in Item 1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities market.

 

“Servicer Remittance Date”: With respect to any Distribution Date, the Business Day preceding such Distribution Date.

 

“Servicer Termination Event”: A Master Servicer Termination Event or Special Servicer Termination Event, as applicable.

 

“Servicing Compensation”: With respect to any Collection Period, the related Servicing Fee, Prepayment Interest Excess (if any and to the extent any such Prepayment Interest Excess exceeds the amount of any Prepayment Interest Shortfalls) and any other fees, charges or other amounts payable to the Master Servicer under this Agreement for such period.

 

“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time.

 

“Servicing Fee”: With respect to the Trust Loan or the Whole Loan, as the case may be, and for any Distribution Date, an amount per Certificate Interest Accrual Period equal to interest at the Servicing Fee Rate accrued on the Stated Principal Balance of the Trust Loan or the

 

 -65-

 

 

Whole Loan, as the case may be, as of the Due Date immediately preceding such Distribution Date (without giving effect to payments of principal on the Trust Loan or the Whole Loan, as the case may be, on such Due Date). The Servicing Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. For the avoidance of doubt, the Servicing Fee shall be deemed for tax purposes as paid from the Lower-Tier REMIC.

 

“Servicing Fee Rate”: (a) With respect to the Trust Loan, a master servicing fee rate equal to 0.0075% per annum, and (b) with respect to the Whole Loan, a primary servicing fee rate equal to 0.0060% per annum.

 

“Servicing File”: As defined in the Trust Loan Purchase Agreements.

 

“Servicing Function Participant”: Any Person, other than the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Custodian or the Trustee, that, within the meaning of Item 1122 of Regulation AB, is performing activities that address the Servicing Criteria, unless the Master Servicer has assumed responsibility for the servicing activity, as provided for under Regulation AB.

 

“Servicing Officer”: Any officer or employee of the Master Servicer or the Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Trust Loan and/or a Companion Loan, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Operating Advisor, the Certificate Administrator and the Trustee by the Master Servicer or the Special Servicer, as applicable, as such list may from time to time be amended.

 

“Servicing Standard”: With respect to the Master Servicer (with respect to the Whole Loan while it is not a Specially Serviced Loan or REO Loan) and the Special Servicer (with respect to the Specially Serviced Loan or REO Loan) (in each case, directly or through one or more sub-servicers), to diligently service and administer the Whole Loan, Specially Serviced Loan or REO Loan for which each is responsible in the best interests of and for the benefit of all of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment, in accordance with applicable law, the terms of this Agreement, the Loan Documents and the Co-Lender Agreement, and, to the extent not inconsistent with the foregoing, in accordance with the higher of the following standards of care:

 

(a)       the same manner in which, and with the same care, skill, prudence and diligence with which, the Master Servicer or the Special Servicer, as the case may be, services and administers similar mortgage loans for other third-party portfolios, giving due consideration to the customary and usual standards of practice of prudent institutional commercial and multifamily mortgage loan servicers servicing their own mortgage loans with a view to the timely recovery of all payments of principal and interest under the Whole Loan or, if the Whole Loan is a Defaulted Mortgage Loan, the maximization of timely

 

 -66-

 

 

recovery of principal and interest on a net present value basis (determined in accordance with the Loan Documents or, in the event the Loan Documents are silent, at the Calculation Rate) on the Whole Loan, and the best interests of the Trust and the Certificateholders and the Companion Loan Holder (as a collective whole as if such Certificateholders and the Companion Loan Holder constituted a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment; and

 

(b)       the same care, skill, prudence and diligence with which the Master Servicer or the Special Servicer, as the case may be, services and administers commercial and multifamily mortgage loans owned, if any, by the Master Servicer or the Special Servicer, as the case may be, with a view to the timely recovery of all payments of principal and interest under the Whole Loan or, if the Whole Loan is a Defaulted Mortgage Loan, the maximization of timely recovery of principal and interest on a net present value basis (determined in accordance with the Loan Documents or, in the event the Loan Documents are silent, at the Calculation Rate) on the Whole Loan, and the best interests of the Trust and the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender), as determined by the Master Servicer or the Special Servicer, as the case may be, in the exercise of its reasonable judgment, but without regard to any potential conflict of interest arising from: (a) any relationship that the Master Servicer or the Special Servicer, as the case may be, or any Affiliate of the Master Servicer or the Special Servicer, may have with any Borrower, the Trust Loan Sellers, the Companion Loan Holders, any other party to this Agreement or any Affiliate of the foregoing; (b) the ownership of any Certificate, the Companion Loan, or any mezzanine loan related to the Whole Loan by the Master Servicer or the Special Servicer, as the case may be, or any Affiliate of the Master Servicer or the Special Servicer; (c) the Master Servicer’s obligation to make Advances; (d) the Master Servicer’s or the Special Servicer’s, as the case may be, right to receive compensation for its services hereunder or with respect to any particular transaction; (e) the ownership, servicing or management for others of the mezzanine loan or any other mortgage loans or mortgaged properties by the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable; and (f) any debt that the Master Servicer or the Special Servicer or any Affiliate of the Master Servicer or the Special Servicer, as applicable, has extended to the Borrowers or any Affiliate of a Borrower (including, without limitation, any mezzanine financing).

 

“Servicing Transfer Event”: An event specified in the definition of Specially Serviced Loan.

 

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is 15 days after the distribution date under the related Other Pooling and Servicing Agreement occurring on or immediately following the 30^th day after the end of such calendar quarter.

 

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the 90^th day after the end of such calendar year.

 

“Similar Law”: As defined in Section 5.02(k) of this Agreement.

 

 -67-

 

 

 

“Sole Certificateholder”: Any Holder (or Holders, provided they act in unanimity) holding 100% of the then outstanding Certificates (excluding the Class R and Class LR Certificates), or an assignment of the Voting Rights thereof.

 

“Special Notice”: Any (a) notice transmitted to Certificateholders pursuant to Section 5.05(c) of this Agreement, (b) notice of any request by at least 25% of the Voting Rights allocable to the Principal Balance Certificates to terminate and replace the Special Servicer pursuant to Section 3.22(b) of this Agreement and (c) notice of any request by at least 15% of the Voting Rights allocable to the Non-Reduced Certificates to terminate and replace the Operating Advisor pursuant to Section 6.11(m).

 

“Special Servicer”: Situs Holdings, LLC, a Delaware limited liability company, or if any successor special servicer is appointed as herein provided, such successor special servicer.

 

“Special Servicer Termination Event”: As defined in Section 7.01(b) of this Agreement.

 

“Special Servicing Compensation”: With respect to the Whole Loan, any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other fees, charges or other amounts which shall be due to the Special Servicer.

 

“Special Servicing Fee”: With respect to a Specially Serviced Loan (or REO Loan) for each calendar month (or portion thereof), the fraction of the Special Servicing Fee Rate applicable to such month, or portion thereof (determined using the same interest accrual methodology that is applied with respect to the Whole Loan Rate for such Specially Serviced Loan or REO Loan for such month) multiplied by the Stated Principal Balance of such Specially Serviced Loan as of the Due Date (without giving effect to all payments of principal on such Specially Serviced Loan or REO Loan on such Due Date) immediately preceding the applicable Distribution Date (or, in the event that a Principal Prepayment in full or an event described in clauses (i)-(vii) under the definition of Liquidation Proceeds has occurred with respect to a Specially Serviced Loan or REO Loan on a date that is not a Due Date, on the basis of the actual number of days to elapse from and including the most recently preceding related Due Date to but excluding the date of such Principal Prepayment or Liquidation Proceeds event in a month consisting of 30 days). For the avoidance of doubt, the Special Servicing Fee shall be deemed for tax purposes as paid from the Lower-Tier REMIC.

 

“Special Servicing Fee Rate”: A rate equal to 0.25% per annum.

 

“Specially Serviced Loan”: Subject to Section 3.23 of this Agreement, the Whole Loan if:

 

(a)       a payment default shall have occurred on the Whole Loan at its Maturity Date or, if the Maturity Date of the Whole Loan has been extended in accordance with this Agreement, a payment default occurs on the Whole Loan at such extended Maturity Date; provided that if (A) the Borrowers are diligently seeking a refinancing commitment or sale of the Mortgaged Properties (and delivers a statement to that effect, within 30 days after such default, to the Master Servicer, which shall promptly deliver a copy to the Special Servicer), (B) the Borrowers continue to make their Assumed Scheduled Payment, and

 

 -68-

 

 

(C) no other Servicing Transfer Event shall have occurred with respect to the Whole Loan, a Servicing Transfer Event will not occur until 60 days beyond the Maturity Date, unless extended by the Special Servicer in accordance with the Loan Documents, this Agreement and the Co-Lender Agreement; and provided, further, that if the Borrowers deliver to the Master Servicer (which shall promptly deliver a copy to the Special Servicer) on or before the 60th day after the related Maturity Date, a refinancing commitment, letter of intent or otherwise binding application for refinancing or similar document, in each case from a lender reasonably acceptable to the Master Servicer, or a signed purchase agreement reasonably acceptable to the Master Servicer, and the Borrowers continue to make their Assumed Scheduled Payments (and no other Servicing Transfer Event shall have occurred with respect to the Whole Loan), a Servicing Transfer Event will not occur until the earlier of (1) 120 days beyond the related Maturity Date or extended Maturity Date and (2) the termination of such refinancing commitment, letter of intent or otherwise binding application for refinancing or similar document;

 

(b)       any Monthly Payment (other than a Balloon Payment) or any amount due on a monthly basis as an Escrow Payment or reserve fund deposit, is 60 days or more delinquent;

 

(c)       the Master Servicer or Special Servicer determines in its reasonable business judgment, exercised in accordance with the Servicing Standard, that (x) a default consisting of a failure to make a payment of principal or interest is reasonably foreseeable or there is a significant risk of such default or (y) any other default that is likely to impair the use or marketability of the Mortgaged Properties or the value of the Mortgaged Properties as security for the Whole Loan is reasonably foreseeable or there is a significant risk of such default, which monetary or other default, in either case, would likely continue unremedied beyond the applicable grace period (or, if no grace period is specified, for a period of 60 days) and is not likely to be cured by the Borrowers within 60 days or, except as provided in clause (a) above, in the case of a Balloon Payment, for at least 30 days;

 

(d)      a Borrower has become a subject of a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law, or the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs;

 

(e)       a Borrower consents to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to such Borrower of or relating to all or substantially all of its property;

 

(f)       a Borrower admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations;

 

 -69-

 

 

(g)       a default, of which the Master Servicer or the Special Servicer has notice (other than a failure by a Borrower to pay principal or interest) and that in the opinion of the Master Servicer or Special Servicer materially and adversely affects the interests of the Certificateholders or the Companion Loan Holders, occurs and remains unremedied for the applicable grace period specified in the Loan Documents (or if no grace period is specified for those defaults which are capable of cure, 60 days);

 

(h)       the Master Servicer or the Special Servicer receives notice of the foreclosure or proposed foreclosure of any lien on the Mortgaged Properties; or

 

(i)        the Master Servicer or the Special Servicer receives actual notice that a Borrower has violated any “due-on-sale” or “due-on-encumbrance” provision in the related Loan Documents;

 

provided, however, that the Whole Loan will cease to be a Specially Serviced Loan (a “Corrected Mortgage Loan”) (i) with respect to the circumstances described in clauses (a) and (b) above, when the Borrowers have brought the Whole Loan current and thereafter made three consecutive full and timely Monthly Payments, including pursuant to any workout of the Whole Loan, (ii) with respect to the circumstances described in clauses (c), (d), (e), (f) and (h) above, when such circumstances cease to exist in the good faith judgment of the Special Servicer, or (iii) with respect to the circumstances described in clauses (g) and (i) above, when such default is cured (as determined by the Special Servicer in accordance with the Servicing Standard) or waived by the Special Servicer; provided, in each case, that at that time no circumstance exists (as described above) that would cause the Whole Loan to continue to be characterized as a Specially Serviced Loan.

 

“Sponsors”: The Trust Loan Sellers.

 

“Startup Day”: In the case of the Upper-Tier REMIC and Lower-Tier REMIC, the day designated as such pursuant to Section 2.06(a) of this Agreement.

 

“Stated Principal Balance”: With respect to the Trust Loan, the Companion Loan or the Whole Loan, on any date of determination, the principal balance as of the Cut-off Date of such Trust Loan, Companion Loan or Whole Loan, as reduced (to not less than zero) on each Distribution Date by (i) all payments (or P&I Advances or Companion Loan Advances in lieu thereof) of, and all other collections allocated as provided in Section 1.02 of this Agreement to, principal of or with respect to such Trust Loan, Companion Loan or Whole Loan, as applicable, that are distributed to Certificateholders on such Distribution Date or Companion Loan Holders on the related remittance date in the same calendar month as such Distribution Date or applied to any other payments required under this Agreement or the Co-Lender Agreement on or prior to such Distribution Date, and (ii) any principal forgiven by the Special Servicer and other principal losses realized in respect of such Trust Loan, Companion Loan or Whole Loan during the related Collection Period.

 

The Trust Loan or the REO Loan shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which Liquidation Proceeds, if any, are to be (or, if no such Liquidation Proceeds are received, would have been)

 

 -70-

 

 

distributed to Certificateholders. The Stated Principal Balance of the Whole Loan with respect to which the Master Servicer or Special Servicer has made a Final Recovery Determination is zero.

 

“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities market) of Whole Loan but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Whole Loan under the direction or authority of the Master Servicer or a Servicing Function Participant.

 

“Sub-Servicer”: Any Person engaged by the Master Servicer, the Special Servicer, the Custodian or the Certificate Administrator to perform Servicing with respect to the Whole Loan or REO Loan.

 

“Sub-Servicing Agreement”: The written contract between the Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the other hand, relating to servicing and administration of the Whole Loan as provided in Section 3.01(c) of this Agreement.

 

“Subordinate Consultation Period”: Any period when both (i) the Certificate Balance of the Class HRR Certificates (taking into account the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Trust Loan to notionally reduce the Certificate Balance of such Certificates) is less than 25% of the initial Certificate Balance of the Class HRR Certificates and (ii) the Certificate Balance of the Class HRR Certificates (without regard to the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Class HRR Certificates) is at least 25% of the initial Certificate Balance of the Class HRR Certificates. If the Directing Holder or the Majority Controlling Class Certificateholder become a Borrower Related Party, a Subordinate Consultation Period shall be deemed to be terminated (except for the purposes of determining whether the Directing Holder or a Controlling Class Certificateholder has the right to appoint the successor special servicer to a Special Servicer that has become a Borrower Related Party pursuant to Section 3.22(f)).

 

“Subordinate Control Period”: Any period when the Certificate Balance of the Class HRR Certificates (taking into account the application of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated to the Trust Loan to notionally reduce the Certificate Balance of such Certificates) is at least 25% of the initial Certificate Balance of the Class HRR Certificates; provided that if at any time the Certificate Balances of the Class A, Class B, Class C and Class D Certificates have been reduced to zero as a result of the allocation of principal payments on the Trust Loan, then a Subordinate Control Period shall be deemed to then be in effect. If the Directing Holder or the Majority Controlling Class Certificateholder become a Borrower Related Party, a Subordinate Control Period shall be deemed to be terminated (except for the purposes of determining whether the Directing Holder or a Controlling Class Certificateholder has the right to appoint the successor special servicer to a Special Servicer that has become a Borrower Related Party pursuant to Section 3.22(f)).

 

“Successor Third Party Purchaser”: A third party purchaser (as contemplated by the Credit Risk Retention Rules) that acquires all of the Class HRR Certificates from the Retaining Sponsor or a majority-owned affiliate (as defined in the Credit Risk Retention Rules) thereof in

 

 -71-

 

 

compliance with this Agreement, the Credit Risk Retention Agreement, an eligible subsequent credit risk retention agreement and Rule 7 of the Credit Risk Retention Rules.

 

“Tax Returns”: The federal income tax returns on IRS Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed by the Certificate Administrator on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC due to its classification as a REMIC under the REMIC Provisions, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the IRS or any other governmental taxing authority under any applicable provisions of federal law or Applicable State and Local Tax Law.

 

“Terminated Party”: As defined in Section 7.01(d) of this Agreement.

 

“Terminating Party”: As defined in Section 7.01(d) of this Agreement.

 

“Termination Date”: The Distribution Date on which the Trust Fund is terminated pursuant to Section 9.01 of this Agreement.

 

“Third Party Appraiser”: A Person performing an Appraisal.

 

“Third Party Reports”: With respect to each Mortgaged Property, the related Appraisal, Phase I Environmental Report, seismic report (if any), engineering report, structural report, property condition report or similar report, if any.

 

“Transfer”: Any direct or indirect transfer or other form of assignment of any Ownership Interest in a Class R or Class LR Certificate.

 

“Transferee Affidavit”: As defined in Section 5.02(l)(ii) of this Agreement.

 

“Transferor Certificate”: As defined in Section 5.02(l)(ii) of this Agreement.

 

“Transfer Restriction Period”: The period from the Closing Date to the earliest of (i) the date on which the Retaining Sponsor (or its “majority-owned affiliate” as defined in the Credit Risk Retention Rules) transfers all of the Class HRR Certificates to the Successor Third Party Purchaser in accordance with the Credit Risk Retention Agreement, (ii) the date that is the latest of: (A) the date on which the total unpaid principal balance of the Trust Loan has been reduced to 33% of the total unpaid principal balance of the Trust Loan as of the Cut-off Date; (B) the date on which the total outstanding Certificate Balance of the Certificates has been reduced to 33% of the total outstanding Certificate Balance of the Certificates as of the Closing Date; or (C) two years after the Closing Date, (iii) if the Class HRR Certificates have been transferred to a Successor Third Party Purchaser in accordance with the Credit Risk Retention Rules, the date on which all of the Trust Loan has been defeased in accordance with the applicable risk retention requirements set forth in paragraph (b)(8)(i) of §246.7 of the Credit Risk Retention Rules or (iv) subject to the consent of the Retaining Sponsor (which consent shall not be unreasonably withheld), the date on which the Credit Risk Retention Rules have been officially abolished or officially determined by the relevant regulatory authorities to be no longer applicable to this securitization or the Class HRR Certificates.

 

 -72-

 

 

“Trust” or “Trust Fund”: The corpus of the trust created hereby and to be administered hereunder, consisting of (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of the Companion Loan Holders therein): (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Properties; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Properties; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). The Trust shall be named “CAMB 2021-CX2 Mortgage Trust”.

 

“Trust Ledger”: Amounts deposited in the Collection Account attributable to the Whole Loan, which are maintained pursuant to Section 3.06(a) of this Agreement and held on behalf of the Trustee on behalf of the Certificateholders and the Companion Loan Holders.

 

“Trust Loan”: The portion of the Whole Loan evidenced by the Senior Trust Notes and the Junior Notes, which is transferred and assigned to the Trustee pursuant to Section 2.01 of this Agreement and held in the Trust Fund. The Trust Loan originally so transferred, assigned and held is identified on the Mortgage Loan Schedule as of the Closing Date. The term “Trust Loan” also includes an REO Loan, unless the context clearly indicates otherwise.

 

“Trust Loan Purchase Agreements”: Each of the GACC Trust Loan Purchase Agreement, the BANA Trust Loan Purchase Agreement, the JPMCB Trust Loan Purchase Agreement and the 3650 Cal Bridge Trust Loan Purchase Agreement.

 

“Trust Loan Rate”: With respect to the Trust Loan and any Whole Loan Interest Accrual Period, the weighted average (based on the outstanding principal balances of the Trust Notes) of the annual rates at which interest accrues on the Trust Notes during such period (in the absence of a default), as set forth in the related Trust Notes from time to time.

 

“Trust Loan Seller Percentage Interest”: As to GACC, an approximately 59.4% interest in the Trust Loan, as to BANA, an approximately 20.4% interest in the Trust Loan, as to JPMCB, an approximately 10.2% interest in the Trust Loan and as to 3650 Cal Bridge, an approximately 10.0% interest in the Trust Loan.

 

“Trust Loan Seller Transferred Interests”: (a) In the case of GACC, the portion of the Trust Loan evidenced by Note A-1-1 and Note B-1, (b) in the case of BANA, the portion of the Trust Loan evidenced by Note A-2-1 and Note B-2, (c) in the case of JPMCB, the portion of

 

 -73-

 

 

the Trust Loan evidenced by Note A-3-1 and Note B-3 and (d) in the case of 3650 Cal Bridge, the portion of the Trust Loan evidenced by Note A-4-1 and Note B-4.

 

“Trust Loan Sellers”: GACC, BANA, JPMCB and 3650 Cal Bridge.

 

“Trust Notes”: Collectively, as of any date of determination, the notes or other evidence of indebtedness and/or agreements evidencing the indebtedness of the Borrowers under the Trust Loan including any amendments or modifications, or any renewal or substitution note, as of such date. As of the Cut-off Date, the Senior Trust Notes and the Junior Notes constitute the Trust Notes.

 

“Trust REMICs”: The Lower-Tier REMIC and the Upper-Tier REMIC.

 

“Trustee”: Wilmington Trust, National Association, a national banking association, in its capacity as Trustee, or its successor in interest, or any successor Trustee appointed as herein provided.

 

“Trustee/Certificate Administrator Fee”: With respect to the Trust Loan and for any Distribution Date, an amount per Certificate Interest Accrual Period equal to interest at the Trustee/Certificate Administrator Fee Rate accrued on the Stated Principal Balance of the Trust Loan as of the Due Date in the related Collection Period (without giving effect to payments of principal on the Trust Loan on such Due Date). The Trustee/Certificate Administrator Fee shall be calculated in accordance with the provisions of Section 1.02(a) of this Agreement. A monthly fee shall be paid by the Certificate Administrator to the Trustee as the Trustee’s fee, which amount shall be paid from the Trustee/Certificate Administrator Fee.

 

“Trustee/Certificate Administrator Fee Rate”: A rate equal to 0.0045% per annum.

 

“Underwriter Exemption”: With respect to (i) Deutsche Bank Securities Inc., Department of Labor Final Authorization Number 97-03E (December 9, 1996), (ii) BofA Securities, Inc., Prohibited Transaction Exemption 93-31, 58 Fed. Reg. 28,620 (May 14, 1993) and (iii) J.P. Morgan Securities LLC, Prohibited Transaction Exemption 2002-19, 67 Fed. Reg 14,979 (March 28, 2002), each as most recently amended by Prohibited Transaction Exemption 2013-08 and as further amended by the Department of Labor from time to time.

 

“Unscheduled Payments”: With respect to the Whole Loan and a Collection Period, all Net Liquidation Proceeds, all Net Condemnation Proceeds and Net Insurance Proceeds payable under the Trust Loan or the Whole Loan, as applicable, the Repurchase Price or purchase price if the Trust Loan is repurchased or purchased pursuant to Section 2.03(e), Section 3.16 or Section 9.01 of this Agreement or by a mezzanine lender, any indemnification payment made by the Trust Loan Sellers as a result of a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement and any other payments under or with respect to the Trust Loan or the Whole Loan, as applicable, not scheduled to be made, including Principal Prepayments received by the Master Servicer (but excluding Prepayment Charges, if any) during such Collection Period.

 

“Updated Appraisal”: An Appraisal of the Mortgaged Properties or REO Property, as the case may be, conducted subsequent to any appraisal performed on or prior to the Cut-off Date and in accordance with Appraisal Institute standards, the costs of which shall be paid as a

 

 -74-

 

 

Property Advance by the Master Servicer. Updated Appraisals shall be conducted by an Independent MAI appraiser selected by the Special Servicer.

 

“Upper-Tier Distribution Account”: The segregated non-interest bearing trust account or sub-account created and maintained by the Certificate Administrator pursuant to Section 3.05(d) of this Agreement, which shall be entitled “Wells Fargo Bank, National Association, as Certificate Administrator, for the benefit of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Upper-Tier Distribution Account” and which must be an Eligible Account or a sub-account of an Eligible Account. The Upper-Tier Distribution Account shall be an asset of the Upper-Tier REMIC.

 

“Upper-Tier REMIC”: A segregated asset pool within the Trust Fund consisting of the Lower-Tier Regular Interests, the Upper-Tier Distribution Account and amounts held therein from time to time.

 

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

 

“Voting Rights”: The portion of the voting rights of all Certificates that is allocated to any Certificateholder or Class of Certificateholders. At all times during the term of this Agreement, the percentage of Voting Rights assigned to each Class (other than the Class R and Class LR Certificates) shall be: (a) 98% to be allocated among the Certificateholders of the respective Classes of Principal Balance Certificates in proportion to the Certificate Balances of their Certificates, (b) 2% to be allocated among the Certificateholders of the Class X Certificates for as long as any of the Class X Certificates are outstanding, and (c) except as otherwise set forth in this Agreement with respect to any particular matter, 0%, in the case of the Class S, Class R and Class LR Certificates. Voting Rights allocated to a Class of Certificates shall be allocated among Certificateholders of such Class in proportion to their respective Percentage Interests.

 

“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.

 

“WHFIT Regulations”: Treasury Regulations Section 1.671-5, as amended or successor provisions.

 

“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.

 

 -75-

 

 

“Whole Loan”: Collectively, the Trust Loan and the Companion Loan. References herein to the Whole Loan shall be construed to refer to the aggregate indebtedness under the Senior Trust Notes, the Senior Non-Trust Notes and the Junior Notes.

 

“Whole Loan Interest Accrual Period”: With respect to the Whole Loan, the period commencing on the 6^th day of each calendar month during the term of the Whole Loan and ending on and including the 5^th day of the next occurring calendar month.

 

“Whole Loan Rate”: With respect to the Whole Loan and any Whole Loan Interest Accrual Period, the weighted average (based on the outstanding principal balances of the Notes) of the annual rates at which interest accrues on the Notes during such period (in the absence of a default), as set forth in the Notes from time to time.

 

“Withheld Amount”: With respect to the Trust Loan and with respect to each Distribution Date occurring in January of each calendar year that is not a leap year and February of each calendar year, unless in either case such Distribution Date is the final Distribution Date, an amount equal to one day’s interest at the Net Mortgage Rate on the Stated Principal Balance as of the Due Date in the month preceding the month in which such Distribution Date occurs, to the extent that a Monthly Payment or a P&I Advance is made in respect thereof.

 

“Workout Fee”: An amount equal to 0.50% of each collection of interest and principal (including scheduled payments, prepayments (provided that a repurchase by a Trust Loan Seller of its respective Trust Loan Seller Transferred Interest in the Trust Loan due to a Material Document Defect or a Material Breach shall not be considered a prepayment for purposes of this definition), Balloon Payments and payments at maturity, but excluding late payment charges and Default Interest) received if the Whole Loan is a Specially Serviced Loan that becomes a Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan, pursuant to Section 3.12(c) of this Agreement; provided, further, that no Workout Fee shall be payable by the Trust with respect to any Corrected Mortgage Loan if and to the extent that the Corrected Mortgage Loan (1) became a Specially Serviced Loan under clause (c) of the definition of “Specially Serviced Loan” and no event of default actually occurs, unless the Whole Loan is modified by the Special Servicer in accordance with the terms of this Agreement or the Whole Loan subsequently qualifies as a Specially Serviced Loan for a reason other than under clause (c) of the definition thereof, or (2) in connection with the purchase of a Specially Serviced Mortgage Loan that is subject to mezzanine indebtedness by the holder of the related mezzanine loan within 90 days after the first time that such holder’s option to purchase the Whole Loan becomes exercisable (provided, that for the avoidance of doubt, if there are one or more purchase notices that are delivered subsequent to the initial purchase notice, as long as the event that resulted in the first purchase notice (or the preceding purchase notice) has, within the 90-day period from the date the applicable purchase notice was given to such holder of a mezzanine loan, ceased, been cured, been waived by the Master Servicer or the Special Servicer in writing, or otherwise was no longer in effect during such period, such 90-day period will commence on the date of any subsequent purchase notice given to such holder of a mezzanine loan); provided, further that if the Whole Loan becomes a Specially Serviced Loan only because of an event described in clause (a) of the definition of “Specially Serviced Loan” and the related collection of principal and interest is received within three (3) months following the related maturity date as a result of the Whole Loan being refinanced or otherwise repaid in full, the Special Servicer shall not be entitled to collect a Workout Fee out of

 

 -76-

 

 

the proceeds received in connection with such workout if such fee would reduce the amount available for distributions to Certificateholders, but the Special Servicer may collect from the Borrowers and retain (x) a workout fee, (y) such other fees as are provided for in the Loan Documents and (z) other appropriate fees in connection with such workout. The total amount of Workout Fees payable by the Trust with respect to the Corrected Mortgage Loan and with respect to any particular workout (assuming, for the purposes of this calculation, that the Corrected Mortgage Loan continues to perform throughout its term in accordance with the terms of the related workout) shall be reduced by the amount of any and all Offsetting Modification Fees received by the Special Servicer as additional servicing compensation relating to the Corrected Mortgage Loan; provided that the Special Servicer shall be entitled to collect such Workout Fees from the Trust until such time it has been fully paid such reduced amount. For the avoidance of doubt, the Trust Loan Sellers shall pay a Workout Fee in connection with a repurchase to the extent the Special Servicer was entitled to such a fee and such fee was unpaid immediately prior to such repurchase or was previously paid by the Trust and was not reimbursed by the Borrowers immediately prior to such repurchase. In furtherance of the foregoing, upon the Specially Serviced Loan becoming a Corrected Mortgage Loan, the Special Servicer shall provide the Master Servicer with a calculation of the total amount of Workout Fees expected to be payable by the Trust with respect to the Corrected Mortgage Loan throughout its term (which calculation shall be reasonably acceptable to the Master Servicer) and the total amount of Offsetting Modification Fees received by the Special Servicer.

 

Section 1.02   Certain Calculations. Unless otherwise specified herein, the following provisions shall apply:

 

(a)       All calculations of interest with respect to the Whole Loan (and of Advances in respect thereof) provided for herein shall be made on Actual/360 Basis. The Servicing Fee, the Trustee/Certificate Administrator Fee, the Operating Advisor Fee and the CREFC^® License Fee for the Trust Loan shall accrue on the same basis as interest accrues on the Whole Loan. Each Class of Regular Certificates will accrue interest on a 30/360 basis.

 

(b)       Any Whole Loan payment is deemed to be received on the date such payment is actually received by the Master Servicer or the Certificate Administrator; provided, however, that for purposes of calculating distributions on the Certificates and Prepayment Interest Excess, Principal Prepayments with respect to the Whole Loan are deemed to be received on the date they are applied in accordance with Section 3.01(b) of this Agreement to reduce the Stated Principal Balance of the Whole Loan on which interest accrues.

 

(c)       Except as otherwise provided in the Loan Documents or the Co-Lender Agreement, any amounts received in respect of the Whole Loan as to which a default has occurred and is continuing in excess of Monthly Payments shall be applied to Default Interest and other amounts due on the Whole Loan prior to the application to late fees.

 

(d)      Allocations of payments between the Trust Loan and the related Companion Loan shall be made in accordance with the Co-Lender Agreement.

 

(e)       All amounts collected by or on behalf of the Trust in respect of the Whole Loan in the form of payments from the Borrowers, Liquidation Proceeds, Condemnation Proceeds

 

 -77-

 

 

or Insurance Proceeds (exclusive of any amounts payable to the Companion Loan Holders pursuant to the Co-Lender Agreement) shall be allocated to amounts due and owing under the Loan Documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Loan Documents and the Co-Lender Agreement; provided, however, that absent such express provisions, all such amounts collected (exclusive of any amounts payable to the Companion Loan Holders pursuant to the Co-Lender Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Whole Loan in the following order of priority:

 

(i)      as a recovery of any unreimbursed Advances with respect to the Trust Loan or Whole Loan with respect to Property Advances or Nonrecoverable Advances and unpaid interest at the Advance Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to the Whole Loan (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust from general collections);

 

(ii)     as a recovery of Nonrecoverable Advances and any interest at the Advance Rate thereon, to the extent previously allocated to principal collections with respect to the Trust Loan or Whole Loan, as applicable;

 

(iii)    to the extent not previously allocated pursuant to clause (i) and clause (ii) above, as a recovery of accrued and unpaid interest on the Trust Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on the Trust Loan at the Trust Loan Rate to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment from the Borrowers, through the related Due Date), over (B) the sum of (1) after taking into account any allocations pursuant to Section 1.02(f)(v) on earlier dates, the aggregate portion of the accrued and unpaid interest described in subclause (A) of this Section 1.02(e)(iii) that (a)(x) was not advanced because of the reductions (if any) in the amount of the interest portion of the related P&I Advances for the Trust Loan that have theretofore occurred under Section 4.07(e) of this Agreement in connection with Appraisal Reduction Amounts with respect to any accrued and unpaid interest or (y) was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, but (in the case of this clause (y)) only up to the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would nonetheless not have been advanced because of the reductions in the amount of the related P&I Advances for the Trust Loan that would have occurred in connection with related Appraisal Reduction Amounts, and (b) Accrued AB Loan Interest allocable to the Trust Loan;

 

(iv)    to the extent not previously allocated pursuant to clause (i) and clause (ii) above, as a recovery of principal of the Trust Loan then due and owing, including by reason of acceleration of the Trust Loan following a default thereunder (or, if the Trust Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

 

(v)    as a recovery of (a) accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of the interest

 

 -78-

 

 

portion of P&I Advances for the Trust Loan that have occurred under Section 4.07(e) of this Agreement in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advances not having been made as a result of a determination that such P&I Advances would have been Nonrecoverable Advances, and (b) Accrued AB Loan Interest (in each of clause (a) and (b), to the extent that collections have not been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) on earlier dates);

 

(vi)         as a recovery of amounts to be currently allocated to the payment of, or escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to the Whole Loan (and allocable to the Trust Loan);

 

(vii)        as a recovery of any other reserves to the extent then required to be held in escrow with respect to the Whole Loan (and allocable to the Trust Loan);

 

(viii)       as a recovery of any Prepayment Charges then due and owing under the Trust Loan;

 

(ix)          as a recovery of any late payment charges and Default Interest then due and owing under the Whole Loan (and allocable to the Trust Loan);

 

(x)           as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under the Whole Loan;

 

(xi)          as a recovery of any other amounts then due and owing under the Trust Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees);

 

(xii)         as a recovery of any remaining principal of the Trust Loan to the extent of its entire remaining unpaid principal balance; and

 

(xiii)        after the Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess Interest;

 

provided that, to the extent required under the REMIC Provisions of the Code, payments or proceeds received with respect to any partial release of the Mortgaged Properties (including following a condemnation) at a time when the loan-to-value ratio of the Whole Loan exceeds 125% (based solely on the value of real property and excluding personal property and going concern value) must be allocated to reduce the principal balance of the Whole Loan in the manner permitted by such REMIC Provisions.

 

(f)           Collections by or on behalf of the Trust in respect of the REO Property (exclusive of amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of the REO Property and exclusive of any amounts payable to the Companion Loan Holders pursuant to the Co-Lender Agreement) shall be deemed to be allocated for purposes of collecting amounts due under the Whole Loan in the following order of priority:

 

 -79-

 

 

(i)            as a recovery of any unreimbursed Advances with respect to the Trust Loan or Whole Loan with respect to Property Advances or Nonrecoverable Advances and unpaid interest at the Advance Rate on such Advances and, if applicable, unreimbursed and unpaid Additional Trust Fund Expenses with respect to the Whole Loan (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust from general collections);

 

(ii)           as a recovery of Nonrecoverable Advances and any interest at the Advance Rate thereon to the extent previously allocated to principal collections with respect to the Trust Loan or Whole Loan, as applicable;

 

(iii)          to the extent not previously allocated pursuant to clause (i) and clause (ii) above, as a recovery of accrued and unpaid interest on the Trust Loan (exclusive of Default Interest and Excess Interest) to the extent of the excess of (A) accrued and unpaid interest on the Trust Loan at the Trust Loan Rate to, but not including, the date of receipt by or on behalf of the Trust (or, in the case of a full Monthly Payment from the Borrowers, through the related Payment Date), over (ii) the sum of (1) after taking into account any allocations pursuant to Section 1.02(f)(v) or Section 1.02(e)(v) on earlier dates, the aggregate portion of the accrued and unpaid interest described in subclause (i) of this Section 1.02(f)(iii) that (a)(x) was not advanced because of the reductions (if any) in the amount of the interest portion of the related P&I Advances for the Trust Loan that have occurred in connection with related Appraisal Reduction Amounts with respect to any accrued and unpaid interest or (y) was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, but (in the case of this clause (y)) only up to the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would nonetheless not have been advanced because of the reductions in the amount of the related P&I Advances for the Trust Loan that would have occurred in connection with related Appraisal Reduction Amounts, and (2) Accrued AB Loan Interest allocable to the Trust Loan;

 

(iv)          to the extent not previously allocated pursuant to clause (i) and clause (ii) above, as a recovery of principal of the Trust Loan to the extent of its entire unpaid principal balance;

 

(v)           as a recovery of (a) accrued and unpaid interest on the Trust Loan to the extent of the cumulative amount of the reductions (if any) in the amount of the interest portion of P&I Advances for the Trust Loan that have occurred under Section 4.07(e) of this Agreement in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advances not having been made as a result of a determination that such P&I Advances would have been Nonrecoverable Advances and (b) Accrued AB Loan Interest (in each of clause (a) and (b), to the extent that collections have not theretofore been allocated as a recovery of accrued and unpaid interest pursuant to this clause (v) or Section 1.02(e)(v) on earlier dates);

 

(vi)          as a recovery of any Prepayment Charge then due and owing under the Trust Loan;

 

 -80-

 

 

(vii)         as a recovery of any late payment charges and Default Interest then due and owing under the Whole Loan (and allocable to the Trust Loan);

 

(viii)       as a recovery of any Assumption Fees, assumption application fees and Modification Fees then due and owing under the Whole Loan;

 

(ix)          as a recovery of any other amounts then due and owing under the Trust Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

 

(x)           after the Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess Interest.

 

(g)           The applications of amounts received in respect of the Trust Loan pursuant to paragraph (e) of this Section 1.02 shall be determined by the Master Servicer in accordance with the Servicing Standard. The applications of amounts received in respect of the Trust Loan or any REO Property pursuant to paragraph (f) of this Section 1.02 shall be determined by the Special Servicer in accordance with the Servicing Standard.

 

(h)          All net present value calculations and determinations made hereunder with respect to the Trust Loan or the Mortgaged Properties or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made in accordance with the Loan Documents or, in the event the related Loan Documents are silent, using the Calculation Rate.

 

(i)            Neither the Master Servicer nor the Special Servicer shall enter into, or structure (including, without limitation, by way of the application of credits, discounts, forgiveness or otherwise), any modification, waiver, amendment, work-out, consent or approval with respect to the Whole Loan in a manner that would be inconsistent with the allocation and payment priorities set forth above in clauses (e) or (f) of this Section 1.02 or in the Co-Lender Agreement.

 

Section 1.03      Certain Constructions. For purposes of this Agreement, references to the most or next most subordinate Class of Certificates outstanding at any time shall mean the most or next most subordinate Class of Certificates then outstanding as among the Class A, Class X, Class B, Class C, Class D and Class HRR Certificates. For purposes of this Agreement, each Class of Certificates (other than the Class LR and Class R Certificates) shall be deemed to be outstanding only to the extent its respective Certificate Balance or Notional Amount, as applicable, has not been reduced to zero. For purposes of this Agreement, the Class R and Class LR Certificates shall be outstanding so long as the Trust Fund has not been terminated pursuant to Section 9.01 of this Agreement or any other Class of Certificates remains outstanding.

 

 -81-

 

 

ARTICLE II

CONVEYANCE OF the MORTGAGE LOAN;
ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01    Conveyance of the Trust Loan; Assignment of Trust Loan Purchase Agreements. (a) The Depositor, concurrently with the execution and delivery hereof on the Closing Date, does hereby establish a trust designated as “CAMB 2021-CX2 Mortgage Trust”, appoint the Trustee as trustee of the Trust Fund and sell, transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent herein provided) all the right, title and interest of the Depositor in and to the Trust Loan, including all rights to payment in respect thereof, except as set forth below, and any security interest thereunder (whether in real or personal property and whether tangible or intangible) in favor of the Depositor, and a security interest in all Reserve Accounts, Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent included or to be included in the Trust Fund for the benefit of the Certificateholders and the Companion Loan Holders. Such transfer and assignment includes all interest and principal due on or with respect to the Trust Loan after the Cut-off Date. The Depositor, concurrently with the execution and delivery hereof, does also hereby transfer, assign, set over and otherwise convey to the Trustee without recourse (except to the extent provided herein), for the benefit of the Certificateholders, all the right, title and interest of the Depositor in, to and under the Trust Loan Purchase Agreements as provided therein (excluding Sections 6(f)-(h) and 9 of the Trust Loan Purchase Agreements), and excluding the Depositor’s rights and remedies under the GACC Indemnification Agreement, BANA Indemnification Agreement, JPMCB Indemnification Agreement and the 3650 Cal Bridge Indemnification Agreement to the extent related to the Trust Loan. The Depositor shall cause the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts relating to the Whole Loan to be transferred to and held in the name of the Master Servicer on behalf of the Trustee as successor to the Trust Loan Sellers.

 

In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian, with copies to the Master Servicer and the Special Servicer, the following documents or instruments with respect to the Whole Loan so assigned (provided, however, that the original of documents specified in item (xix) shall be delivered to the Master Servicer):

 

(i)        each original Trust Note, evidencing a portion of the related Trust Loan Seller’s Trust Loan Seller Transferred Interest in the Trust Loan, bearing, or accompanied by, all prior or intervening endorsements, endorsed by the most recent endorsee prior to the Trustee or, if none, by the applicable Originator, without recourse, either in blank or to the order of the Trustee in the following form: “Pay to the order of Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, without recourse”;

 

(ii)       the original (or a copy thereof certified from the applicable recording office) (or a copy, if (to the knowledge of the Trust Loan Sellers or their respective third-party vendors, as certified by such party to the Custodian in writing) it is not the practice of such office to provide certified copies, provided that the Custodian may conclusively rely on any such certification by any Trust Loan Seller of third-party vendor and shall not be

 

 -82-

 

 

required to investigate whether any recording office cannot provide a certified copy) of the Mortgage and, if applicable, the originals (or copies thereof certified from the applicable recording office) of any intervening assignments thereof showing a complete chain of assignment from the Originators of the Whole Loan to the most recent assignee of record thereof prior to the Trustee, if any, in each case with evidence of recording indicated thereon;

 

(iii)      an original Assignment of Mortgage, in recordable form, executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originators, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holders)”;

 

(iv)      (A) an original or copy of any related security agreement (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the Originators of the Whole Loan to the most recent assignee thereof prior to the Trustee, if any; and (B) an original assignment of any related security agreement (if such item is a document separate from the Mortgage) executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originators, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates”, which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

(v)       (A) stamped or certified copies of any UCC financing statements and continuation statements which were filed in order to perfect (and maintain the perfection of) any security interest held by the Originators of the Whole Loan (and each assignee of record prior to the Trustee) in and to the personalty of the Borrowers at the Mortgaged Properties (in each case with evidence of filing or recording thereon) and which were in the possession of the Trust Loan Sellers (or their agents) at the time the Mortgage File was delivered to the Custodian, together with original UCC-2 or UCC-3 assignment of financing statements showing a complete chain of assignment from the secured party named in such UCC-1 financing statement to the most recent assignee of record thereof prior to the Trustee, if any, and (B) if any such security interest is perfected and the earlier UCC financing statements and continuation statements were in the possession of the Trust Loan Sellers, an assignment of UCC financing statement by the most recent assignee of record prior to the Trustee or, if none, by the Originators, evidencing the transfer of such security interest, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holders)”; provided that other evidence of filing or recording reasonably acceptable to the Trustee may be delivered in lieu of delivering such UCC financing statements including, without limitation, evidence of such filed or recorded UCC financing statement as shown on a written UCC search report from a reputable search firm, such as CSC/LexisNexis Document Solutions, Corporation Service Company, CT

 

 -83-

 

 

Corporation System and the like or printouts of on-line confirmations from such UCC filing or recording offices or authorized agents thereof;

 

(vi)      the original or a copy of the Loan Agreement relating to the Whole Loan;

 

(vii)     the original or a copy of the lender’s title insurance policy issued in connection with the origination of the Whole Loan, together with all endorsements or riders (or copies thereof) that were issued with or subsequent to the issuance of such policy, insuring the lien of the Mortgage on the Mortgaged Properties, or, subject to Section 2(d) of the Trust Loan Purchase Agreements, a “marked up” commitment to insure marked as binding and countersigned by the related insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company), or, subject to Section 2(d) of the Trust Loan Purchase Agreements, an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company;

 

(viii)    (A) the original or a copy of the related Assignment of Leases and Rents (if such item is a document separate from the Mortgage) and, if applicable, the originals or copies of any intervening assignments thereof showing a complete chain of assignment from the Originators of the Whole Loan to the most recent assignee of record thereof prior to the Trustee, if any, in each case with evidence of recording thereon; and (B) an original or copy of an assignment of any related Assignment of Leases and Rents (if such item is a document separate from the Mortgage), in recordable form (except for missing recording information and, if delivered in blank, except for the name of the assignee), executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originators, either in blank or in favor of the Trustee in the following form: “Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holders)”, which assignment may be included as part of the corresponding Assignment of Mortgage referred to in clause (iii) above;

 

(ix)      the original or a copy of any environmental indemnity agreements and copies of any environmental insurance policies pertaining to the Mortgaged Properties required in connection with origination of the Whole Loan, if any;

 

(x)        an original or a copy of each Assignment of Management Agreement (including any assignment of any management agreement, development management agreement or assignment of leasing agreement) and originals or copies of each currently effective Management Agreement (or any development management agreement and/or leasing agreement then in effect), if any, for the Mortgaged Properties;

 

(xi)       the original or copy of any ground leases, if applicable, and any related lessor estoppel or similar agreement or a copy thereof, if any;

 

(xii)     an original Assignment of Agreements, Licenses, Permits and Contracts, executed by the most recent assignee of record thereof prior to the Trustee or, if none, by the Originators, either in blank or in favor of the Trustee in the following form:

 

 -84-

 

 

“Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (and the Companion Loan Holders)”;

 

(xiii)    if the related assignment of contracts is separate from the Mortgage the original executed version of such assignment of contracts or a copy thereof and the assignment thereof to the Trustee (in such capacity, for the benefit of the Certificateholders and the Companion Loan Holders);

 

(xiv)    if any related Lock-Box Agreement or Cash Collateral Account Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts, if any, (A) a copy of the UCC-1 financing statements, if any, submitted for filing with respect to the related mortgagee’s security interest in the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts and all funds contained therein, and (B) UCC-3 assignments of financing statements assigning such UCC-1 financing statements to the Trustee (in such capacity, for the benefit of the Certificateholders and the Companion Loan Holders);

 

(xv)     originals or copies of all assumption, modification, written assurance and substitution agreements, with evidence of recording thereon if appropriate, in those instances where the terms or provisions of the Mortgage, Trust Notes or any related security document have been modified or the Whole Loan has been assumed;

 

(xvi)    the original or a copy of any guaranty of the obligations of the Borrowers under the Whole Loan together with, as applicable, (A) the original or copies of any intervening assignments of such guaranty showing a complete chain of assignment from the Originators of the Whole Loan to the most recent assignee thereof prior to the Trustee, if any, and (B) an original assignment of such guaranty executed by the most recent assignee thereof prior to the Trustee or, if none, by the Originators;

 

(xvii)   a copy of the Co-Lender Agreement and any mezzanine loan intercreditor agreement;

 

(xviii)  the original (or copy, if the original is held by the Master Servicer pursuant to Section 2.01(c)) of any letter of credit held by the lender as beneficiary or assigned as security for the Whole Loan;

 

(xix)     an original or a copy of the Cash Management Agreement; and

 

(xx)     an original or copy of any consent and certification of any general contractor and/or architect and the assignment thereof to the Trustee (in such capacity, for the benefit of the Certificateholders and the Companion Loan Holders);

 

provided that whenever the term “Mortgage File” is used to refer to documents actually received by the Depositor or the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually so received. The original assignments referred to in clauses (iii), (iv)(B), (viii)(B) and (xvi)(B) above, may be in the form of one or more instruments in recordable form in any applicable filing or recording offices.

 

 -85-

 

 

On or prior to the Closing Date, the Trust Loan Sellers shall retain a third party vendor (which may be the Trustee or the Custodian) to complete the assignment and recordation or filing of the Loan Documents in the name of the Trustee on behalf of the Certificateholders and the Companion Loan Holders. On or promptly following the Closing Date, the Trust Loan Sellers shall (A) promptly deliver or cause to be delivered to such third party vendor recorded copies of the Mortgage and the documents described in Section 2.01(a)(v)(A), (viii)(A) and (xiv)(A) and (B) cause such third party vendor, at the expense of the Trust Loan Sellers (in proportion to their respective Trust Loan Seller Percentage Interest in the Trust Loan), (1) to promptly prepare and record (in favor of the Trustee, for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates) in the appropriate public recording office in no event later than 30 Business Days following the receipt thereof, the Assignment of Mortgage referred to in Section 2.01(a)(iii) which has not yet been submitted for recording; and (2) to prepare and file in the appropriate public filing office each UCC assignment of financing statement referred to in Section 2.01(a)(v)(B) and (xiv)(B) which has not yet been submitted for filing or recording in no event later than 60 days following the receipt thereof. Each such document shall reflect that the recorded original should be returned by the public recording office to the Custodian or its designee following recording, and each such document shall reflect that the file copy thereof should be returned to the Custodian or its designee following filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage or Assignment of Leases and Rents, if applicable, the Custodian shall use commercially reasonable efforts to obtain therefrom a certified copy of the recorded original, at the expense of the Depositor. In the event that any such document or instrument in respect of the Whole Loan is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Trust Loan Sellers shall promptly prepare or cause the preparation of a substitute thereof or cure or cause the curing of such defect, as the case may be, and shall thereafter deliver the substitute or corrected document to or at the direction of the Custodian for recording or filing, as appropriate, at the expense of the Trust Loan Sellers (as set forth in the related Trust Loan Purchase Agreement). The Trust Loan Sellers shall, promptly upon receipt of the original recorded or filed copy (and in no event later than five Business Days following such receipt) deliver such original to the Custodian, with evidence of filing or recording thereon. Notwithstanding anything to the contrary contained in this Section 2.01, in those instances where the public recording office retains the original Mortgage, Assignment of Mortgage or Assignment of Leases and Rents, if applicable, after any has been recorded, the obligations of the Trust Loan Sellers under the Trust Loan Purchase Agreements shall be deemed to have been satisfied upon delivery to the Custodian of a copy of the recorded original of such Mortgage, Assignment of Mortgage or Assignment of Leases and Rents, if applicable.

 

If the Trust Loan Sellers cannot deliver, or cause to be delivered, as to the Whole Loan, the original or a copy of the related lender’s title insurance policy referred to in Section 2.01(a)(vii) solely because such policy has not yet been issued, the delivery requirements of this Section 2.01 will be deemed to be satisfied as to such missing item, and such missing item will be deemed to have been included in the Mortgage File by delivery to the Custodian of a binder marked as binding and countersigned by the title insurer or its authorized agent (which may be a pro forma or specimen title insurance policy which has been accepted or approved as binding in writing by the related title insurance company) or an acknowledged closing instruction or escrow letter, and the Trust Loan Sellers shall be required to deliver to the Custodian, promptly following the receipt thereof, the original related lender’s title insurance policy (or a copy thereof). Copies of recorded

 

 -86-

 

 

or filed Assignments of Mortgage and UCC assignments of financing statements shall be held by the Custodian.

 

Subject to the third preceding paragraph, all original documents relating to the Whole Loan which are not delivered to the Custodian are and shall be held by the Depositor or the Master Servicer (or a Sub-Servicer on its behalf), as the case may be, in trust for the benefit of the Certificateholders and the Companion Loan Holders. In the event that any such original document is required pursuant to the terms of this Section to be a part of the Mortgage File in order to effectuate the purposes of this Agreement, such document shall be delivered promptly to the Custodian.

 

(b)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Trust Loan Sellers pursuant to the Trust Loan Purchase Agreements to deliver to and deposit with or cause to be delivered to and deposited with, (i) the Custodian, on or before the Closing Date, for the Trust Loan so assigned, among other things, the original Trust Notes, the original or a copy of the Mortgage and any intervening assignments thereof, the original or a copy of the title policy for the Whole Loan, a copy of any ground lease, if applicable, for the Whole Loan and an original (or copy, if the original is held by the Master Servicer pursuant to Section 2.01(c)) of any letters of credit held by the lender as beneficiary or assigned as security for the Whole Loan, and, within 30 days following the Closing Date, the remaining applicable documents referred to in Section 2.01(a) for the Whole Loan, in each case with copies to the Master Servicer and (ii) the Master Servicer, on or before the Closing Date, all documents and records that are part of each applicable Servicing File. If the Trust Loan Sellers cannot deliver, or cause to be delivered, as to the Trust Loan, the original Trust Notes, the Trust Loan Sellers shall deliver a copy or duplicate original of such Trust Notes, together with an affidavit certifying that the original thereof has been lost or destroyed and an indemnification in favor of the Certificate Administrator, the Trustee and the Custodian.

 

If the Trust Loan Sellers or the Depositor cannot deliver, or cause to be delivered, as to the Whole Loan, the original or a copy of any of the documents and/or instruments referred to in Section 2.01(a)(ii), Section 2.01(a)(viii)(A) and Section 2.01(a)(xv) and the UCC financing statements and UCC assignments of financing statements referred to in Section 2.01(a)(v)(A) and Section 2.01(a)(xiv)(A), with evidence of recording or filing thereon, solely because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, or because such original recorded or filed document has been lost or returned from the recording or filing office and subsequently lost, as the case may be, the delivery requirements of Section 2.01 shall be deemed to have been satisfied as to such missing item, and such missing item shall be deemed to have been included in the Mortgage File, provided that a copy of such document or instrument (without evidence of recording or filing thereon, but certified (which certificate may relate to multiple documents and/or instruments) by the applicable public recording or filing office (if the applicable public filing or recording office is able to certify the duplicate original or photocopy), the applicable title insurance company or a Trust Loan Seller to be a true and complete copy of the original thereof submitted for recording or filing, as the case may be) has been delivered to the Custodian within 60 days after the Closing Date, and either the original of such missing document or instrument, or a copy thereof, with evidence of recording or filing, as the case may be, thereon, is delivered to the Custodian within 180 days after the Closing Date (or within such longer period after the Closing Date so long as the Trust Loan Sellers have

 

 -87-

 

 

provided the Custodian with evidence of such recording or filing, as the case may be, or has certified to the Custodian as to the occurrence of such recording or filing, as the case may be, and is, as certified to the Custodian and the Trustee no less often than quarterly, in good faith attempting to obtain from the appropriate county recorder’s or filing office such original or copy, provided such extensions do not exceed 24 months in the aggregate).

 

(c)       Notwithstanding anything herein to the contrary, with respect to the documents referred to in Section 2.01(a)(xviii) of this Agreement, the Master Servicer shall hold the original of each such document in trust on behalf of the Trust in order to draw on such letter of credit on behalf of the Trust and each Trust Loan Seller shall be deemed to have satisfied the delivery requirements of its respective Trust Loan Purchase Agreement and this Section 2.01 of this Agreement by delivering the original of each such document to the Master Servicer, which shall forward a copy of the applicable document to the Custodian. The Trust Loan Sellers shall pay any costs of assignment or amendment of such letter of credit (which amendment shall change the beneficiary of the letter of credit to the Trust in care of the Master Servicer) required in order for the Master Servicer to draw on such letter of credit on behalf of the Trust. In the event that the documents specified in clause (a)(xviii) of Section 2.01(a) of this Agreement are missing because the related assignment or amendment documents have not been completed, the Trust Loan Sellers shall take all necessary steps to enable the Master Servicer to draw on the related letter of credit on behalf of the Trust including, if necessary, drawing on the letter of credit in its own name pursuant to written instructions from the Master Servicer and immediately remitting such funds (or causing such funds to be remitted) to the Master Servicer.

 

Section 2.02   Acceptance by Custodian and the Trustee. By its execution and delivery of this Agreement, the Trustee (1) acknowledges the assignment to it of the Trust Loan in good faith without notice of adverse claims and (2) declares that the Custodian holds and will hold such documents and all others delivered to it constituting the Mortgage File (to the extent the documents constituting the Mortgage File are actually delivered to the Custodian) for the Trust Loan assigned to the Trustee hereunder in trust, upon the conditions herein set forth, for the use and benefit of all present and future Certificateholders and the Companion Loan Holders.

 

The Custodian hereby certifies to each of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Trust Loan Sellers that except as identified in the Custodian’s closing date certification, which shall be delivered no later than two Business Days after the Closing Date, and which is attached as Exhibit N-1 to this Agreement, each Trust Note is in its possession and has been reviewed by the Custodian and (A) appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the Borrower), (B) appears to have been executed (where appropriate) and (C) purports to relate to the Whole Loan and each of the documents specified in Section 2.01(a)(ii), Section 2.01(a)(vii), and, to the extent delivered, Section 2.01(a)(xviii) of this Agreement have been received, have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn or mutilated or otherwise defaced, and that such documents relate to the Whole Loan identified in the Mortgage Loan Schedule. If the Custodian does not send a certification on the Closing Date, it shall send an email confirmation to the Trustee and the Master Servicer on the Closing Date that it has received the Trust Notes (or a copy or a lost note affidavit, as permitted), subject to any exceptions noted therein.

 

 -88-

 

 

On or about the 60th day following the Closing Date (and, if any exceptions are noted, again on or about the 90th day following the Closing Date and monthly thereafter until the earliest of (i) the second anniversary of the Closing Date, (ii) the day on which all material exceptions have been removed and (iii) the day on which the Trust Loan Sellers have repurchased the Trust Loan), the Custodian shall review each Mortgage File and shall certify to each of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Sellers in the form attached as Exhibit N-2 to this Agreement that all documents (other than documents referred to in clauses Section 2.01(a)(xviii) and (xix) of Section 2.01(a) of this Agreement, which shall be delivered to the Master Servicer and the documents referred to in clauses (iii), (v)(B) and (viii) of Section 2.01(a) of this Agreement and the assignments of financing statements referred to in clause (xiv) of Section 2.01(a) of this Agreement, which shall be delivered for filing or recording by the Trust Loan Sellers as provided herein) referred to in Section 2.01(a) above (in the case of the documents referred to in Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii) and (ix) through (xix) of this Agreement, as identified to it in writing as a document required to be delivered by the Trust Loan Sellers) and any original recorded documents included in the delivery of the Mortgage File has been received, has been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and has not been torn in any materially adverse manner or mutilated or otherwise defaced, and that such documents relate to the Whole Loan. In so doing, the Custodian may rely on the purported due execution and genuineness of any such document and on the purported genuineness of any signature thereon.

 

If at the conclusion of such review any document or documents constituting a part of the Mortgage File has not been executed or received, has not been recorded or filed (if required), is unrelated to the Whole Loan, appear not to be what they purport to be or has been torn in any materially adverse manner or mutilated or otherwise defaced, the Custodian shall promptly so notify (in the form attached as Exhibit M to this Agreement) the Trustee, the Depositor, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Sellers by providing a written report, setting forth for the affected Whole Loan, with particularity, the nature of the defective or missing document. The Depositor shall or shall cause the Trust Loan Sellers to deliver to the Custodian an executed, recorded or undamaged document, as applicable, or, if the failure to deliver such document in such form constitutes a Material Document Defect, the Depositor shall cause the Trust Loan Sellers to cure, repurchase or make an indemnification payment with respect to the Trust Loan in the manner provided in Section 2.03(e) of this Agreement. None of the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian or the Trustee shall be responsible for any loss, cost, damage or expense to the Trust Fund resulting from any failure to receive any document constituting a portion of the Mortgage File noted on such a report or for any failure by the Depositor to use its best efforts to deliver any such document.

 

Contemporaneously with its execution of this Agreement, the Depositor shall cause each Trust Loan Seller to deliver, a power of attorney substantially in the form of Exhibit C to the Trust Loan Purchase Agreements to the Master Servicer and Special Servicer, to take such other action as is necessary to effect the delivery, assignment and/or recordation of any documents and/or instruments relating to the Trust Loan which has not been delivered, assigned or recorded at the time required for enforcement by the Trust Fund. Pursuant to each Trust Loan Purchase Agreement, the related Trust Loan Seller shall be required to effect (at the expense of the related

 

 -89-

 

 

Trust Loan Seller) the assignment and recordation of its interest under the Loan Documents until the assignment and recordation of all Loan Documents has been completed.

 

In reviewing any Mortgage File pursuant to the third preceding paragraph of Section 2.01 of this Agreement, the Master Servicer shall have no responsibility to cause the Custodian or Trustee to, and the Custodian or Trustee will have no responsibility to, examine any opinions or determine whether any document is legal, valid, binding, sufficient, duly authorized or enforceable, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, whether a blanket assignment is permitted in any applicable jurisdiction, or whether any Person executing any document or rendering any opinion is authorized to do so or whether any signature thereon is genuine.

 

Section 2.03   Representations, Warranties and Covenants of the Depositor; Repurchase of Trust Loan. (a) The Depositor hereby represents and warrants that:

 

(i)        The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;

 

(ii)       The Depositor has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Trust Loan in accordance with this Agreement;

 

(iii)      This Agreement has been duly and validly executed and delivered by the Depositor and assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting creditors’ rights generally, or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iv)      The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provision of its certificate of incorporation or bylaws, or any law or regulation to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under (or an event which with notice or lapse of time or both would constitute a default under) any of the terms, conditions or provisions of any agreement or instrument to which the Depositor is a party or by which it is bound, or any law, order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor’s assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement;

 

 -90-

 

 

(v)       The certificate of incorporation of the Depositor provides that the Depositor is permitted to engage in only the following activities:

 

(A)      to acquire, own, hold, sell, transfer, assign, pledge and otherwise deal with the following: (I) “fully-modified pass-through” certificates (“GNMA Certificates”) issued and guaranteed as to timely payment of principal and interest by the Government National Mortgage Association (“GNMA”), a wholly-owned corporate instrumentality of the United States within the Department of Housing and Urban Development organized and existing under Title III of the National Housing Act of 1934; (II) Guaranteed Mortgage Pass-Through Certificates (“FNMA Certificates”) issued and guaranteed as to timely payment of principal and interest by FNMA; (III) Mortgage Participation Certificates (“FHLMC Certificates”) issued and guaranteed as to timely payment of interest and ultimate or full payment of principal by FHLMC; (IV) any other participation certificates, pass-through certificates or other obligations or interests backed directly or indirectly by mortgage loans and issued or guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA Certificates, FNMA Certificates and FHLMC Certificates, the “Agency Securities”); (V) mortgage-backed securities, which securities need not be issued or guaranteed, in whole or in part, by any governmental entity, issued by one or more private entities (hereinafter referred to as “Private Securities”); (VI) mortgage loans secured by first, second or more junior liens on one-to-four family residential properties, multifamily properties that are either rental apartment buildings or projects containing five or more residential units or commercial properties, regardless of whether insured or guaranteed in whole or in part by any governmental entity, or participation interests or stripped interests in such mortgage loans (“Mortgage Assets”); (VII) conditional sales contracts and installment sales or loan agreements or participation interests therein secured by manufactured housing (“Contract”); and (VIII) receivables of third-parties or other financial assets of third-parties, either fixed or revolving, that by their terms convert into cash within a finite time period (“Other Assets”);

 

(B)      to loan its funds to any person under loan agreements and other arrangements which are secured by Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets;

 

(C)      to authorize, issue, sell and deliver bonds or other evidences of indebtedness that are secured by Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets;

 

(D)      to authorize, issue, sell and deliver certificates evidencing beneficial ownership interests in pools of Agency Securities, Private Securities, Mortgage Assets, Contracts and/or Other Assets; and

 

(E)      to engage in any activity and to exercise any powers permitted to corporations under the laws of the State of Delaware that are incident to the foregoing and necessary or convenient to accomplish the foregoing.

 

 -91-

 

 

Capitalized terms defined in this clause (v) shall apply only to such clause;

 

(vi)      There is no action, suit, proceeding or investigation pending or threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of the Depositor to carry out its obligations under this Agreement;

 

(vii)     No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Depositor of or compliance by the Depositor with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date; and

 

(viii)    The Trustee, if not the owner of the Trust Loan, will have a valid and perfected security interest of first priority in the Trust Loan and any proceeds thereof.

 

(b)       The Depositor hereby represents and warrants with respect to the Trust Loan that:

 

(i)        Immediately prior to the transfer and assignment to the Trustee, the Trust Notes and the Mortgage were not subject to an assignment or pledge, and the Depositor had good title to, and was the sole owner of, the Trust Loan and had full right to transfer and sell the Trust Loan to the Trustee free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest;

 

(ii)       The Depositor is transferring the Trust Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Trust Loan;

 

(iii)      The related Assignment of Mortgage constitutes the legal, valid and binding assignment of the Mortgage from the Depositor to the Trustee; and

 

(iv)      No claims have been made by the Depositor under the lender’s title insurance policy, and the Depositor has not done anything which would impair the coverage of such lender’s title insurance policy.

 

(c)       It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the Mortgage File to the Custodian until the termination of this Agreement, and shall inure to the benefit of the Certificateholders, the Companion Loan Holders, the Certificate Administrator, the Trustee, the Custodian, the Master Servicer and the Special Servicer.

 

(d)      If the Master Servicer or the Special Servicer (i) receives a Repurchase Communication of a request or demand for repurchase or replacement of the Trust Loan or any portion thereof because of a Breach or a Defect (each as defined below) (any such request or demand, a “Repurchase Request”, and the Master Servicer or the Special Servicer, as applicable, to the extent it receives a Repurchase Request, the “Repurchase Request Recipient” with respect to such Repurchase Request), (ii) receives a Repurchase Communication of a withdrawal of a Repurchase Request by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”), (iii) receives a Repurchase Communication that the Trust Loan Seller Transferred

 

 -92-

 

 

Interest of the Trust Loan that was subject to a Repurchase Request has been repurchased or replaced (a “Repurchase”), or (iv) receives a Repurchase Communication of the rejection of a Repurchase Request (a “Repurchase Request Rejection”), then such Person shall deliver written notice of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection (each such notice, a “Rule 15Ga-1 Notice”) to the Depositor and the related Trust Loan Seller, in each case within ten Business Days from such party’s receipt of a Repurchase Communication of such Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable; provided, however, that if the Master Servicer receives notice of a Repurchase Request Withdrawal or Repurchase Request Rejection from the Special Servicer, the Master Servicer shall have no obligation to deliver such notice to any other party.

 

Each Rule 15Ga-1 Notice shall include (i) the identity of the Trust Loan, (ii) the date the Repurchase Communication of the Repurchase Request, Repurchase Request Withdrawal, Repurchase or Repurchase Request Rejection, as applicable, was received and (iii) in the case of a Repurchase Request, (A) the identity of the Person making such Repurchase Request, (B) if known, the basis for the Repurchase Request (as asserted in the Repurchase Request) and (C) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such Repurchase Request.

 

No Person that is required to provide a Rule 15Ga-1 Notice pursuant to this Section 2.03(d) (a “Rule 15Ga-1 Notice Provider”) shall be required to provide any information in a Rule 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines. Each Trust Loan Purchase Agreement will provide that (i) any Rule 15Ga-1 Notice provided pursuant to this Section 2.03(d) is so provided only to assist the related Trust Loan Seller, the Depositor and its Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Rule 15Ga-1 Notice Provider and (B) no information provided pursuant to this Section 2.03(d) by a Rule 15Ga-1 Notice Provider, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Rule 15Ga-1 Notice Provider may have with respect to the related Trust Loan Purchase Agreement, including with respect to any Repurchase Request that is the subject of a Rule 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee, the Certificate Administrator or the Custodian receives a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, then such party shall promptly forward such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal to the Master Servicer, if relating to a Performing Loan, or to the Special Servicer, if relating to a Specially Serviced Loan or REO Property, and include the following statement in the related correspondence: “This is a “[Repurchase Request][Repurchase Request Withdrawal]” under Section 2.03(d) of the Trust and Servicing Agreement relating to the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates requiring action by you as the recipient of such Repurchase Request or Repurchase Request Withdrawal thereunder”. Upon receipt of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal by the Master Servicer or the Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient of such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal, and such party shall comply with the procedures set forth in this Section 2.03(d) with

 

 -93-

 

 

respect to such Repurchase Request or Repurchase Request Withdrawal. In no event shall the Custodian, by virtue of this provision, be required to provide any notice other than as set forth in Section 2.02 of this Agreement in connection with its review of the Mortgage File.

 

(e)       A “Defect” shall exist with respect to the Trust Loan if any document constituting a part of the Mortgage File and required to be delivered by a Trust Loan Seller has not been delivered within the time periods provided for in the related Trust Loan Purchase Agreement, has not been properly executed, is missing, does not appear to be regular on its face or contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule. A “Breach” shall mean a breach of any representation or warranty of a Trust Loan Seller made pursuant to the related Trust Loan Purchase Agreement with respect to the Trust Loan. If any party hereto discovers or receives notice of a Defect or a Breach, and if such Defect is a Material Document Defect or such Breach is a Material Breach, as applicable, then such party, on behalf of the Trust Fund, shall upon its actual knowledge thereof notify the Trust Loan Sellers, the other parties hereto and the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) and the Companion Loan Holders. If any such Defect or Breach materially and adversely affects the value of the Trust Loan, the value of the Mortgaged Properties or the interests of the Trust in the Trust Loan hereunder or causes the Trust Loan to be other than a Qualified Mortgage, then such Defect shall constitute a “Material Document Defect” or such Breach shall constitute a “Material Breach,” as the case may be; provided, however, that if any of the documents specified in clauses (i), (ii), (vii) and (xviii) of Section 2.01(a) of this Agreement are not delivered as required in each Trust Loan Purchase Agreement and certified as missing pursuant to Section 2.02 of this Agreement, it shall be deemed a Material Document Defect; provided, further, that no Defect (except as provided in the immediately preceding proviso and Defects that cause the Trust Loan to be other than a Qualified Mortgage) shall be considered to be a Material Document Defect unless the document with respect to which the Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the Trust Loan, defending any claim asserted by the Borrowers or a third party with respect to the Trust Loan, establishing the validity or priority of any lien on any collateral securing the Trust Loan or for any immediate significant servicing obligation. The Custodian, the Certificate Administrator and the Trustee shall not be required to make any such determination absent written notice or direction from Certificateholders in accordance with Section 8.02(a)(iii). Promptly upon receiving written notice of any such Material Document Defect or Material Breach with respect to the Trust Loan, accompanied by a written demand to take the actions contemplated by this sentence from the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Custodian, on behalf of the Trust Fund, the applicable Trust Loan Seller shall, not later than 90 days from such Trust Loan Seller’s receipt of such notice of, and such written demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (any such 90-day period, the “Initial Resolution Period”), (i) cure the same in all material respects, (ii) repurchase its Trust Loan Seller Transferred Interest in the Trust Loan at an amount equal to its Trust Loan Seller Percentage Interest of the Repurchase Price in conformity with the applicable Trust Loan Purchase Agreement or (iii) indemnify the Trust for its Trust Loan Seller Percentage Interest of the losses directly related to such Material Breach or Material Document Defect, subject to receipt of a No Downgrade Confirmation from each Rating Agency with respect to such action (or if each Rating Agency waives review or fails to respond to a request for a No Downgrade Confirmation, subject to (y) approval of the Directing Holder so

 

 -94-

 

 

long as a Subordinate Control Period is in effect and (z) consultation with the Directing Holder so long as a Subordinate Consultation Period is in effect (or if the Directing Holder is an Affiliate of the Trust Loan Seller, subject to the approval of the Special Servicer)); provided that if (i) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (ii) such Material Document Defect or Material Breach is not related to the Trust Loan not being a Qualified Mortgage and (iii) a Trust Loan Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within the Initial Resolution Period, then such Trust Loan Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such cure or, failing such cure, to repurchase its Trust Loan Seller Transferred Interest or indemnify the Trust in respect of its Trust Loan Seller Percentage Interest of losses. Notwithstanding the preceding sentence, if such Material Breach or Material Document Defect would cause the Trust Loan to be other than a Qualified Mortgage, then, within 90 days of the date of discovery of such Material Breach or Material Document Defect, the applicable Trust Loan Seller shall (i) cure the same in all material respects or (ii) repurchase its Trust Loan Seller Percentage Interest in the Trust Loan at an amount equal to its Trust Loan Seller Percentage Interest of the Repurchase Price. Any Breach or Defect that causes the Trust Loan not to be a Qualified Mortgage shall be deemed a Material Breach or Material Document Defect, as applicable. Notwithstanding the foregoing, the failure to deliver to the Trustee and the Custodian copies of the UCC financing statements with respect to the Trust Loan shall not be a Material Document Defect.

 

(f)       In connection with any repurchase of the Trust Loan contemplated by this Section 2.03, subject to Section 2.03(j), (A) the Custodian, the Master Servicer and the Special Servicer shall each tender to the Trust Loan Sellers or their designees all portions of the Mortgage File (in the case of the Custodian) and the Servicing File (in the case of the Master Servicer and the Special Servicer, as applicable) (including the original Trust Notes related to each Trust Loan Seller’s Trust Loan Seller Transferred Interest in the Trust Loan) and other documents pertaining to the Trust Loan possessed by it, upon delivery (i) to each of the Master Servicer or the Special Servicer, as applicable, of a trust receipt and (ii) to the Custodian by the Master Servicer or the Special Servicer, as applicable, of a Request for Release and an acknowledgement by the Master Servicer or Special Servicer, as applicable, of its receipt of each Trust Loan Seller Percentage Interest of the Repurchase Price from the Trust Loan Sellers, (B) each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned without recourse in the form of endorsement or assignment provided to the Custodian by the Trust Loan Sellers, as the case may be, to the Trust Loan Sellers as shall be necessary to vest in the Trust Loan Sellers the legal and beneficial ownership of each Trust Loan Seller’s respective repurchased Trust Loan Seller Transferred Interest in the Trust Loan to the extent such ownership was transferred to the Trustee (provided, however, that the Master Servicer or Special Servicer, as applicable, shall use reasonable efforts to cooperate in furnishing necessary information to the extent in its possession to the Trust Loan Sellers in connection with the preparation by the Trust Loan Sellers of such endorsement or assignment) and (C) the Certificate Administrator, the Master Servicer and the Special Servicer shall release, or cause the release of, any escrow payments and reserve funds held by or on behalf of the Certificate Administrator, the Master Servicer and the Special Servicer, as applicable, or on the Certificate Administrator’s, the Master Servicer’s and the Special Servicer’s, as applicable, behalf, in respect of the Trust Loan to the Trust Loan Sellers in accordance with their respective repurchased Trust Loan Seller Transferred Interests in the Trust Loan.

 

 -95-

 

 

(g)       The Master Servicer (with respect to a Performing Loan) and the Special Servicer (with respect to a Specially Serviced Loan) shall, for the benefit of the Certificateholders and the Trustee, use reasonable efforts to enforce the obligations of the related Trust Loan Seller(s) under Section 6 of the related Trust Loan Purchase Agreement(s). Such enforcement, including, without limitation, the legal prosecution of claims, shall be carried out in accordance with the Servicing Standard. The Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer, as the case may be, shall be reimbursed for the reasonable costs of such enforcement: first, pursuant to Section 3.06 of this Agreement (with respect to the Trust Loan), out of the related Repurchase Price or indemnification amounts to the extent that such expenses are a specific component thereof; and second, if at the conclusion of such enforcement action it is determined that the amounts described in clause first are insufficient, then pursuant to Section 3.06 of this Agreement, out of general collections on the Trust Loan on deposit in the Collection Account in each case with interest thereon at the Advance Rate from the time such expense was incurred to, but excluding, the date such expense was reimbursed. To the extent the Trust Loan Sellers prevail in such proceeding, the Trust Loan Sellers shall be entitled to reimbursement from the Trust for all necessary and reasonable costs and expenses incurred in connection with such proceeding.

 

So long as document exceptions are outstanding, on each anniversary of the Closing Date, the Custodian shall prepare and forward to the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and the Trust Loan Sellers, a document exception report setting forth the then current status of any Defects related to the Mortgage Files in a format mutually agreed upon between the Custodian and the Trustee.

 

It is understood and agreed that Section 6 of each Trust Loan Purchase Agreement provides the sole remedy available to the Certificateholders and the Trustee on behalf of the Certificateholders respecting any Breach (including a Breach with respect to the Trust Loan failing to constitute a Qualified Mortgage) or any Defect.

 

(h)       In the event that any litigation is commenced which alleges facts which, in the judgment of the Depositor, could constitute a breach of any of the Depositor’s representations and warranties relating to the Trust Loan, the Depositor hereby reserves the right to conduct the defense of such litigation at its expense and shall not be required to obtain any consent from the Master Servicer or the Special Servicer, unless such defense results in any liability of the Master Servicer or the Special Servicer, as applicable.

 

(i)        If for any reason any Trust Loan Seller fails to fulfill its obligations under the related Trust Loan Purchase Agreement with respect to the Trust Loan, the Master Servicer (with respect to a Performing Loan) and the Special Servicer (with respect to a Specially Serviced Loan) shall use reasonable efforts in enforcing any obligation of such Trust Loan Seller to cure or repurchase or make an indemnity payment with respect to its Trust Loan Seller Transferred Interest under the terms of their related Trust Loan Purchase Agreement all at the expense of the related Trust Loan Seller.

 

(j)        To the extent that not all of the Trust Loan Sellers repurchase their respective Trust Loan Seller Percentage Interests pursuant to the terms of the respective Trust Loan Purchase Agreements, the portion of the Trust Loan so repurchased shall be a Companion Loan

 

 -96-

 

 

subject in all respects to the Co-Lender Agreement. In addition, (i) the Trust Loan shall continue to be serviced by the Master Servicer and, as applicable, the Special Servicer, in accordance with the terms of this Agreement on behalf of each repurchasing Trust Loan Seller and the Certificateholders as a collective whole, and the Master Servicer or the Special Servicer, as applicable, shall be the sole representative of the lender in connection with any enforcement, bankruptcy or other proceeding, (ii) the Trustee, on behalf of the Trust, shall remain the mortgagee of record with respect to the Mortgage, (iii) the Servicing Fee and/or Special Servicing Fee shall continue to be calculated based on the entire Stated Principal Balance of the Trust Loan or Whole Loan, as applicable, (iv) the Custodian shall retain all portions of the Mortgage File other than the related Trust Notes corresponding to the repurchased Trust Loan Seller Transferred Interests, (v) each repurchasing Trust Loan Seller shall be entitled to remittances on or prior to the Distribution Date of its pro rata share, based upon its Trust Loan Seller Percentage Interest, of all amounts that would otherwise be available for distribution on such Distribution Date pursuant to Article IV hereof to Certificateholders (other than any amounts in respect of any P&I Advance) with respect to the Trust Loan less (A) fees and expenses with respect to servicing of such Trust Loan Seller’s Trust Loan Seller Percentage Interest and (B) all costs and expenses incurred in connection with the Trust Loan Seller’s repurchase obligations and such amounts shall be wired in accordance with the directions provided to the Trustee, the Certificate Administrator and the Master Servicer by the Trust Loan Seller to the extent such direction is received at least 10 Business Days prior to the related Distribution Date, (vi) each repurchasing Trust Loan Seller, provided that it is not a Borrower Related Party, shall be entitled to receive any and all reports and have access to any and all information as a Privileged Person under the terms of this Agreement, (vii) no amendment may be made to this Agreement that would materially and adversely affect the rights of a repurchasing Trust Loan Seller in respect of such repurchasing Trust Loan Seller’s Trust Loan Seller Transferred Interest without the consent of such repurchasing Trust Loan Seller, (viii) to the extent the Trustee, on behalf of the Trust, holds record or legal title to any Mortgage File document that relates to any Trust Loan Seller’s Trust Loan Seller Transferred Interest in the Trust Loan repurchased pursuant to this Section 2.03, the Trustee shall hold such title in trust for the use and benefit of the Trust and the related Trust Loan Seller collectively, (ix) to the extent this Agreement refers to the “Mortgage File,” such “Mortgage File” shall be construed to mean the Mortgage File for the entire Trust Loan (except that references to any Trust Note in favor of a repurchasing Trust Loan Seller shall be construed to instead refer to a photocopy of such Trust Note) and (x) the Master Servicer and the Special Servicer shall not be required to obtain the concurrence or consent of a repurchasing Trust Loan Seller prior to, or as a condition to, taking any action required of either of the Master Servicer or the Special Servicer pursuant to the terms of this Agreement, nor shall the repurchasing Trust Loan Seller have any right to direct the actions of the Master Servicer or Special Servicer, and the rights, duties and obligations of the Directing Holder under this Agreement shall not be altered or reduced in such event. Neither the Master Servicer nor the Trustee shall make any P&I Advance or Administrative Advance with respect to any Trust Loan Seller Transferred Interest of the Trust Loan which has been repurchased as described herein.

 

Section 2.04   Representations, Warranties and Covenants of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor. (a) KeyBank National Association, as the Master Servicer, hereby represents and warrants with respect to itself to the Trustee, for its own benefit and the benefit of the Certificateholders and the Companion Loan Holders, to the Depositor, to the Certificate Administrator, to the Special Servicer and to the Operating Advisor, as of the Closing Date, that:

 

 -97-

 

 

(i)        It is a national banking association, duly organized, validly existing, and is in good standing, under the laws of the United States of America and it is in compliance with the laws of the state (within the United States of America) in which the Mortgaged Properties are located to the extent necessary to perform its obligations under this Agreement;

 

(ii)       Its execution and delivery of this Agreement, and its performance and compliance with the terms of this Agreement, do not (A) violate its organizational documents or (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which it or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either its ability to perform its obligations under this Agreement or its financial condition;

 

(iii)      It has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)      This Agreement, assuming due authorization, execution and delivery by the Trustee, the Paying Agent, the Certificate Administrator, the Special Servicer and the Depositor, constitutes a valid, legal and binding obligation of it, enforceable against it in accordance with the terms hereof, subject to applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       It is not in default with respect to any law, any order or decree of any court, or any order, regulation or demand of any federal, state, municipal or governmental agency, which default in its reasonable judgment is likely to materially and adversely affect the financial condition or its operations or its properties taken as a whole or its ability to perform its duties and obligations hereunder;

 

(vi)      No litigation is pending or, to the best of its knowledge, threatened against it which would prohibit it from entering into this Agreement or, in its good faith and reasonable judgment is likely to materially and adversely affect either its ability to perform its obligations under this Agreement or its financial condition;

 

(vii)     No consent, approval, authorization or order of any court or governmental agency or body is required for its execution, delivery and performance of, or compliance by it, with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained, or which, if not obtained would not have a materially adverse effect on the ability of it to perform its obligations hereunder; and

 

 -98-

 

 

(viii)    Each of its officers and employees that has responsibilities concerning the servicing and administration of the Trust Loan is covered by errors and omissions insurance and the fidelity bond in the amounts and with the coverage required by this Agreement.

 

(b)       Situs Holdings, LLC, as Special Servicer, hereby represents and warranty with respect to itself to the Trustee, for its own benefit and the benefit of the Certificateholders, to the Depositor, to the Certificate Administrator, to the Master Servicer and to the Operating Advisor, as of the Closing Date, that:

 

(i)        it is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware; it is, and throughout the term of this Agreement shall remain, duly authorized and qualified to transact business in the jurisdiction where the Mortgaged Properties are located to the extent required by applicable law and necessary to ensure the enforceability of the Trust Loan in accordance with the terms thereof and hereof; it possesses and shall continue to possess all requisite authority, power, licenses, permits, franchise, and approvals to conduct its business and to execute, deliver, and comply with its obligations under this Agreement;

 

(ii)       the execution and delivery of this Agreement and its performance of and compliance with the terms hereof in the manner contemplated by this Agreement will not violate its articles of association or by-laws, or any other material instrument governing its operations, or any laws, regulations, orders or decrees of any governmental authority applicable to it and will not constitute a default (or any event which, with notice or lapse of time or both, would constitute a default) under any material contract, agreement, or other instrument to which it is a party or which may be applicable to any of its assets, which violation or default would have consequences that would materially and adversely affect its financial condition or operations or its properties taken as a whole or its ability to perform its obligations hereunder, or materially impair the ability of the Trust Fund to realize on the Trust Loan;

 

(iii)      this Agreement constitutes its valid, legal, and binding obligation enforceable against it in accordance with its terms, subject to bankruptcy and receivership laws and other similar laws of general application affecting rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance;

 

(iv)      it has the full power and authority to enter into and consummate the transactions contemplated by this Agreement; this Agreement has been duly executed and delivered by it;

 

(v)       all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by it have been obtained or made;

 

(vi)      there is no pending action, suit or proceeding, arbitration or governmental investigation against it, the outcome of which, in its reasonable judgment, could reasonably

 

 -99-

 

 

be expected to prohibit it from entering into this Agreement or materially and adversely affect its ability to perform its obligations under this Agreement; and

 

(vii)     it has errors and omissions insurance and fidelity bond coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case, complies with the requirements of Section 3.08 hereof.

 

(viii)    The representations and warranties of the Special Servicer set forth in this Section 2.04(b) shall survive until termination of this Agreement, and shall inure to the benefit of the parties hereto, the Certificateholders.

 

(c)       It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the Mortgage File to the Trustee or the Custodian on behalf of the Trustee until the termination of this Agreement, and shall inure to the benefit of the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor, the Companion Loan Holders and the Master Servicer or Special Servicer, as the case may be. Upon discovery by the Depositor, the Operating Advisor, the Master Servicer, the Special Servicer or a Responsible Officer of the Trustee or the Certificate Administrator (or upon written notice thereof from any Certificateholder) of a breach of any of the representations and warranties set forth in this Section which materially and adversely affects the interests of the Certificateholders, the Certificate Administrator, the Operating Advisor, the Master Servicer, Special Servicer, the Companion Loan Holders or the Trustee in the Trust Loan, the party discovering such breach shall give prompt written notice to the other parties hereto and the Trust Loan Sellers.

 

(d)      The Trustee hereby represents and warrants to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Certificateholders and the Companion Loan Holders as of the Closing Date, that:

 

(i)        The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America and has full power, authority and legal right to own its properties and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement;

 

(ii)       This Agreement has been duly authorized, executed and delivered by the Trustee and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding instrument enforceable against the Trustee in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(iii)      Neither the execution and delivery of this Agreement by the Trustee nor the consummation by the Trustee of the transactions herein contemplated to be performed by the Trustee, nor compliance by the Trustee with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any applicable law (subject to the appointment in accordance with such applicable law of any co-Trustee or separate Trustee required pursuant to this Agreement), governmental rule, regulation,

 

 -100-

 

 

judgment, decree or order binding on the Trustee or its properties or the organizational documents of the Trustee or the terms of any material agreement, instrument or indenture to which the Trustee is a party or by which it is bound which, in the Trustee’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Trustee to perform its obligations under this Agreement;

 

(iv)      The Trustee is not in violation of, and the execution and delivery of this Agreement by the Trustee and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court binding on the Trustee or any law, order or regulation of any federal, state, municipal or governmental agency having jurisdiction, or result in the creation or imposition of any lien, charge or encumbrance which, in any such event, would have consequences that would materially and adversely affect the condition (financial or otherwise) or operation of the Trustee or its properties or impair the ability of the Trust Fund to realize on the Trust Loan;

 

(v)       No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Trustee of or compliance by the Trustee with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date or which, if not obtained, would have a materially adverse effect on the Trustee’s ability to perform its obligations hereunder; and

 

(vi)      To the best of the Trustee’s knowledge, no litigation is pending or threatened against the Trustee which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement or the Indemnification Agreement, dated the Pricing Date, between the Trustee, the Depositor and the Initial Purchasers.

 

(e)       The Certificate Administrator hereby represents and warrants to the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificateholders and the Companion Loan Holders as of the Closing Date, that:

 

(i)        The Certificate Administrator is a national banking association, duly organized, validly existing, and is in good standing, under the laws of the United States of America and has full power, authority and legal right to own its property and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement.

 

(ii)       This Agreement has been duly authorized, executed and delivered by the Certificate Administrator and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding instrument enforceable against the Certificate Administrator in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).

 

 -101-

 

 

(iii)      Neither the execution and delivery of this Agreement by the Certificate Administrator nor the consummation by the Certificate Administrator of the transactions herein contemplated to be performed by the Certificate Administrator, nor compliance by the Certificate Administrator with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any applicable law, governmental rule, regulation, judgment, decree or order binding on the Certificate Administrator or its properties or the organizational documents of the Certificate Administrator or the terms of any material agreement, instrument or indenture to which the Certificate Administrator is a party or by which it is bound which, in the Certificate Administrator’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Certificate Administrator to perform its obligations under this Agreement.

 

(iv)      The Certificate Administrator is not in violation of, and the execution and delivery of this Agreement by the Certificate Administrator and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court binding on the Certificate Administrator or any law, order or regulation of any federal, state, municipal or governmental agency having jurisdiction, or result in the creation or imposition of any lien, charge or encumbrance which, in any such event, would have consequences that would materially and adversely affect the ability of the Certificate Administrator to perform its obligations under this Agreement;

 

(v)       No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Certificate Administrator of or compliance by the Certificate Administrator with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date or which, if not obtained, would have a materially adverse effect on the Certificate Administrator’s ability to perform its obligations hereunder; and

 

(vi)      To the best of the Certificate Administrator’s knowledge, no litigation is pending or threatened against the Certificate Administrator which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement or the Indemnification Agreement, dated the Pricing Date, among the Certificate Administrator, the Depositor and the Initial Purchasers.

 

(f)       The Operating Advisor hereby represents and warrants to the Depositor, the Trustee, the Master Servicer, the Special Servicer, the Certificate Administrator, the Certificateholders and the Companion Loan Holders as of the Closing Date, that:

 

(i)        The Operating Advisor is duly organized, validly existing and in good standing as a limited liability company under the laws of the State of New York and has full power, authority and legal right to own its property and conduct its business as presently conducted and to execute, deliver and perform the terms of this Agreement;

 

(ii)       This Agreement has been duly authorized, executed and delivered by the Operating Advisor and, assuming due authorization, execution and delivery by the other

 

 -102-

 

 

parties hereto, constitutes a legal, valid and binding instrument enforceable against the Operating Advisor in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);

 

(iii)      Neither the execution and delivery of this Agreement by the Operating Advisor nor the consummation by the Operating Advisor of the transactions herein contemplated to be performed by the Operating Advisor, nor compliance by the Operating Advisor with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any applicable law, governmental rule, regulation, judgment, decree or order binding on the Operating Advisor or its properties or the organizational documents of the Operating Advisor or the terms of any material agreement, instrument or indenture to which the Operating Advisor is a party or by which it is bound which, in the Operating Advisor’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Operating Advisor to perform its obligations under this Agreement;

 

(iv)      The Operating Advisor is not in violation of, and the execution and delivery of this Agreement by the Operating Advisor and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any court binding on the Operating Advisor or any law, order or regulation of any federal, state, municipal or governmental agency having jurisdiction, or result in the creation or imposition of any lien, charge or encumbrance which, in any such event, would have consequences that would materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement;

 

(v)       No consent, approval, authorization or order of, or registration or filing with, or notice to any court or governmental agency or body, is required for the execution, delivery and performance by the Operating Advisor of or compliance by the Operating Advisor with this Agreement, or if required, such approval has been obtained prior to the Cut-off Date or which, if not obtained, would have a materially adverse effect on the Operating Advisor’s ability to perform its obligations hereunder;

 

(vi)      To the best of the Operating Advisor’s knowledge, no litigation is pending or threatened against the Operating Advisor which would prohibit its entering into or materially and adversely affect its ability to perform its obligations under this Agreement or the Indemnification Agreement, dated the Pricing Date, among the Operating Advisor, the Depositor and the Initial Purchasers;

 

(vii)     it has errors and omissions insurance which is in full force and effect and complies with the requirements of Section 3.08(e); and

 

(viii)    the Operating Advisor is an Eligible Operating Advisor.

 

Section 2.05   Execution and Delivery of Certificates; Issuance of Lower-Tier Regular Interests; Issuance of Upper-Tier Interests. The Trustee acknowledges the assignment to

 

 -103-

 

 

it of the Trust Loan and the delivery of the Mortgage File to the Custodian (to the extent the documents constituting the Mortgage File is actually delivered to the Custodian), subject to the provisions of Section 2.01 and Section 2.02 of this Agreement and, concurrently with such delivery, (i) acknowledges and hereby declares that it holds the Trust Loan (other than Excess Interest) and the other assets included in the Lower-Tier REMIC on behalf of the Lower-Tier REMIC and the Holders of the Certificates; (ii) acknowledges the issuance of the Lower-Tier Regular Interests to the Depositor in exchange for the Trust Loan and other assets included in the Lower-Tier REMIC, (iii) acknowledges the contribution by the Depositor of the Lower-Tier Regular Interests to the Upper-Tier REMIC and hereby declares that it holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the Holders of the Certificates (other than the Class LR Certificates); and (iv) acknowledges the issuance of the Class LR Certificates and, in exchange for the Lower-Tier Regular Interests, acknowledges the issuance of the Certificates, in authorized Denominations, in each case registered in the names set forth in such order or as so directed in this Agreement and duly authenticated by the Authenticating Agent, which Certificates, along with the Class LR Certificates, evidence ownership of the entire Trust Fund.

 

Section 2.06  Miscellaneous REMIC and Grantor Trust Provisions. (a) The Lower-Tier Regular Interests issued hereunder are hereby designated as the “regular interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as the sole class of “residual interests” in the Lower-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

The Certificates (other than the Class S, Class R and Class LR Certificates) are hereby designated as “regular interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(1) of the Code, and the Class R Certificates are hereby designated as the sole Class of “residual interests” in the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code.

 

The Closing Date is hereby designated as the “Startup Day” of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The “latest possible maturity date” for purposes of Section 860G(a)(l) of the Code for the Lower-Tier Regular Interests and the Certificates (other than the Class R and Class LR Certificates) is the Rated Final Distribution Date.

 

(b)       The portion of the Trust Fund consisting of the Excess Interest and the Excess Interest Distribution Account, beneficial ownership of which will be represented by the Class S Certificates, will be treated as a grantor trust within the meaning of subpart E, part I of subchapter J of the Code.

 

(c)       None of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer shall enter into any arrangement by which the Trust Fund will receive a fee or other compensation for services other than as specifically contemplated herein.

 

Section 2.07   Creation of the Grantor Trust. The portion of the Trust Fund consisting of the Excess Interest with respect to the Trust Loan and related proceeds shall be treated

 

 -104-

 

 

as a grantor trust (the “Grantor Trust”) for federal income tax purposes, and the Class S Certificates will represent undivided beneficial interests in such Class’s entitlements to the Grantor Trust. As provided herein, the Certificate Administrator shall take all actions expressly required hereunder to ensure that the portion of the Trust Fund consisting of the Grantor Trust maintains its status as a grantor trust under federal income tax law and not be treated as part of the Trust REMICs.

 

ARTICLE III

ADMINISTRATION AND SERVICING
OF THE TRUST FUND

 

Section 3.01   The Master Servicer to Act as Master Servicer; Special Servicer To Act as Special Servicer; Administration of the Whole Loan. (a) The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), each as an independent contractor servicer, shall service and administer the Whole Loan on behalf of the Trust Fund and the Trustee (as Trustee for the Certificateholders) and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender), in accordance with the Servicing Standard.

 

The Master Servicer’s or Special Servicer’s liability for actions and omissions in its capacity as Master Servicer or Special Servicer, as the case may be, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.03 hereof). To the extent consistent with the foregoing and subject to any express limitations set forth in this Agreement, the Master Servicer and Special Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Notes; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer or Special Servicer of the collectability of the Whole Loan. Subject only to the Servicing Standard, the Master Servicer and Special Servicer shall have full power and authority, acting alone or through one or more Sub-Servicers (subject to paragraph (c) of this Section 3.01, to the related Sub-Servicing Agreement with each Sub-Servicer and to Section 3.02 of this Agreement), to do or cause to be done any and all things in connection with such servicing and administration that it may deem consistent with the Servicing Standard and, in its reasonable judgment, in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender), including, without limitation, with respect to the Whole Loan to prepare, execute and deliver, on behalf of the Certificateholders, the Companion Loan Holders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien on the Mortgaged Properties and related collateral; (ii) any modifications, waivers, consents or amendments to or with respect to any documents contained in the Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or release or discharge, and all other comparable instruments, with respect to the Whole Loan and the Mortgaged Properties. Notwithstanding the foregoing, neither the Master Servicer nor the Special Servicer shall modify, amend, waive or otherwise consent to any change of the terms of the Whole Loan except under the circumstances described in Section 3.03, Section 3.09, Section 3.10, Section 3.24, Section 3.25 and Section 3.26 hereof. The Master Servicer (with respect to the Whole Loan

 

 -105-

 

 

if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) shall provide to the Borrowers reports required to be provided to it pursuant to the Loan Documents. Subject to Section 3.11 of this Agreement, the Trustee shall, upon the receipt of a written request of a Servicing Officer, execute and deliver to the Master Servicer and Special Servicer, as applicable, any powers of attorney (substantially in the form attached hereto as Exhibit Q or such other form as mutually agreed to by the Trustee and the Master Servicer or the Special Servicer, as applicable) and other documents (including, but not limited to, other powers of attorney) prepared by the Master Servicer and Special Servicer, as applicable, and necessary or appropriate (as certified in such written request) to enable the Master Servicer and Special Servicer, as applicable, to carry out their servicing and administrative duties hereunder. The Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer and Special Servicer, as applicable. Notwithstanding anything contained herein to the contrary, none of the Master Servicer or the Special Servicer shall, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s, as applicable, representative capacity; provided, however, that in those jurisdictions in which the foregoing requirement would not be legally or procedurally permissible, the Master Servicer or the Special Servicer, as applicable, shall provide five (5) Business Days’ prior written notice to the Trustee of the initiation of such action, suit or proceeding (or provide such prior written notice as the Master Servicer or the Special Servicer, as applicable, shall determine in its reasonable judgment exercised in accordance with the Servicing Standard, to be reasonably practicable prior to filing such action, suit or proceeding) (and shall not be required to obtain the Trustee’s written consent or indicate the Master Servicer’s or the Special Servicer’s, as applicable, representative capacity) or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state.

 

(b)       Unless otherwise provided in the Notes, the Loan Agreement or the Co-Lender Agreement, the Master Servicer shall apply any partial Principal Prepayment received on the Whole Loan on a date other than a Due Date to the Stated Principal Balance of the Whole Loan as of the Due Date immediately following the date of receipt of such partial Principal Prepayment; provided that the Master Servicer shall use its best efforts to apply any total or partial Principal Prepayment received on the Whole Loan on a date following a Due Date but prior to the close of business on the Business Day prior to the related Servicer Remittance Date to the Stated Principal Balance of the Whole Loan as of the Due Date immediately preceding the date of receipt of such total or partial Principal Prepayment. Unless otherwise provided in the Notes, if the Whole Loan is defeased, the Master Servicer shall apply any amounts received on U.S. Treasury obligations pursuant to the terms of the Loan Documents to the Stated Principal Balance of and interest on the Whole Loan as of the Due Date immediately following the receipt of such amounts.

 

(c)       The Master Servicer and the Special Servicer, may enter into Sub-Servicing Agreements with third parties with respect to any of its respective obligations hereunder, provided that (i) any such agreement requires the Sub-Servicer to comply in all material respects with all of the applicable terms and conditions of this Agreement and shall be consistent with the provisions of this Agreement and the terms of the Loan Documents and the Co-Lender Agreement, (ii) if such Sub-Servicer is a Servicing Function Participant, any such agreement provides that (x) the failure of such Sub-Servicer to comply with any of the requirements under Section 3.27, Section 3.28 or Section 3.29 of this Agreement applicable to such Sub-Servicer, including the failure to deliver

 

 -106-

 

 

any reports or certificates at the time such report or certification is required under Section 3.27, Section 3.28 or Section 3.29 of this Agreement and (y) the failure of such Sub-Servicer to comply with any requirements to deliver any items required by Items 1122 and 1123 of Regulation AB under any other trust and servicing agreement relating to any other series of certificates offered by the Depositor shall constitute a termination event by such Sub-Servicer upon the occurrence of which the Master Servicer shall (and the Depositor may) immediately terminate the related Sub-Servicer under the related Sub-Servicing Agreement, which termination shall be deemed for cause, (iii) no Sub-Servicer retained by the Master Servicer or the Special Servicer, as applicable, shall grant any modification, waiver or amendment to the Whole Loan or foreclose on the Mortgage without the approval of the Master Servicer or the Special Servicer, as applicable, which approval shall be given or withheld in accordance with the procedures set forth in Section 3.09, Section 3.10, Section 3.24, Section 3.25 and Section 3.26 (as applicable), (iv) such agreement shall be consistent with the Servicing Standard, (v) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party and (ix) shall be terminable if at any time the related Sub-Servicer is a Credit Risk Retention Affiliate of a Successor Third Party Purchaser and such Sub-Servicer is a servicer as contemplated by Item 1108(a)(2) of Regulation AB. Any such Sub-Servicing Agreement may permit the Sub-Servicer to delegate its duties to agents or Subcontractors so long as the related agreements or arrangements with such agents or Subcontractors are consistent with the provisions of this Section 3.01(c) (including, for the avoidance of doubt, that no such agent or Subcontractor is a Prohibited Party, if such agent or Subcontractor would be a Servicing Function Participant, at the time the related Sub-Servicing Agreement is entered into). Any monies received by a Sub-Servicer pursuant to a Sub-Servicing Agreement (other than sub-servicing fees) shall be deemed to be received by the Master Servicer on the date received by such Sub-Servicer.

 

No party shall enter into a Sub-Servicing Agreement with a Sub-Servicer that is a Credit Risk Retention Affiliate of a Successor Third Party Purchaser if such Sub-Servicer would be a servicer as contemplated by Item 1108(a)(2) of Regulation AB. Notwithstanding the preceding sentence, the parties to this Agreement, absent actual knowledge to the contrary, may conclusively rely upon a representation of any “Initial Sub-Servicer” (as set forth on Exhibit AA) that such Sub-Servicer is not, to its actual knowledge, a Credit Risk Retention Affiliate of a Successor Third Party Purchaser. If at any time a party to this transaction obtains actual knowledge that such Sub-Servicer is a servicer as contemplated by Item 1108(a)(2) of Regulation AB and is a Credit Risk Retention Affiliate of a Successor Third Party Purchaser, such party shall terminate such Sub-Servicer in accordance with the related Sub- Servicing Agreement.

 

Any Sub-Servicing Agreement entered into by the Master Servicer or the Special Servicer, as applicable, shall provide that it may be assumed by the Trustee (in its sole discretion) if the Trustee has assumed the duties of the Master Servicer or the Special Servicer, respectively, or any successor Master Servicer or Special Servicer, as applicable, without cost or obligation to the assuming party or the Trust Fund, upon the assumption by such party of the obligations, except to the extent they arose prior to the date of assumption, of the Master Servicer or the Special Servicer, as applicable, pursuant to Section 7.02 (it being understood that any such obligations shall be the obligations of the terminated Master Servicer or Special Servicer, as applicable, only).

 

 -107-

 

 

Any Sub-Servicing Agreement, and any other transactions or services relating to the Whole Loan involving a Sub-Servicer, shall be deemed to be between the Master Servicer or the Special Servicer, as applicable, and such Sub-Servicer alone, and the Trustee, the Certificate Administrator, the Operating Advisor, the Trust Fund, Certificateholders and the Companion Loan Holders shall not be deemed parties thereto and shall have no claims, rights (except as specified below), obligations, duties or liabilities with respect to the Sub-Servicer, except as set forth in Section 3.01(c)(ii) and Section 3.01(d).

 

Notwithstanding the provisions of any Sub-Servicing Agreement and this Section 3.01, in no event shall the Trust Fund, the Trustee, the Certificate Administrator, the Depositor or the Companion Loan Holders bear any termination fee required to be paid to any Sub-Servicer as a result of the termination of any Sub-Servicing Agreement.

 

(d)      If the Trustee or any successor Master Servicer assumes the obligations of the Master Servicer, or if the Trustee or any successor Special Servicer assumes the obligations of the Special Servicer, in each case in accordance with Section 7.02, the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, to the extent necessary to permit the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, to carry out the provisions of Section 7.02, shall, without act or deed on the part of the Trustee, the successor Master Servicer or such successor Special Servicer, as applicable, succeed to all of the rights and obligations of the Master Servicer or the Special Servicer, as applicable, under any Sub-Servicing Agreement entered into by the Master Servicer or the Special Servicer, as applicable, pursuant to Section 3.01(c). In such event, such successor shall be deemed to have assumed all of the Master Servicer’s or the Special Servicer’s interest, as applicable, therein (but not any liabilities or obligations in respect of acts or omissions of the Master Servicer or the Special Servicer, as applicable, prior to such deemed assumption) and to have replaced the Master Servicer or the Special Servicer, as applicable, as a party to such Sub-Servicing Agreement to the same extent as if such Sub-Servicing Agreement had been assigned to such successor, except that the Master Servicer or the Special Servicer, as applicable, shall not thereby be relieved of any liability or obligations under such Sub-Servicing Agreement that accrued prior to the succession of such successor.

 

If the Trustee or any successor Master Servicer or successor Special Servicer, as applicable, assumes the servicing obligations of the Master Servicer or the Special Servicer, as applicable, then upon request of such successor, the Master Servicer or Special Servicer, as applicable, shall at its own expense (except in the event that the Special Servicer is terminated pursuant to Section 3.22, at the expense of the Certificateholders effecting such termination, as applicable) deliver to such successor all documents and records relating to any Sub-Servicing Agreement and the Trust Loan and/or the Companion Loan then being serviced thereunder and an accounting of amounts collected and held by it, if any, and shall otherwise use commercially reasonable efforts to effect the orderly and efficient transfer of any Sub-Servicing Agreement to such successor. The Master Servicer shall not be required to assume the obligations of the Special Servicer and nothing in this paragraph shall imply otherwise.

 

(e)       In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (for purposed of this clause (e), “Applicable Law”),

 

 -108-

 

 

the Master Servicer and the Special Servicer, as the case may be, are required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Master Servicer or the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Master Servicer and the Special Servicer, upon its respective request from time to time, such identifying information and documentation as may be available for such party in order to enable the Master Servicer and the Special Servicer to comply with Applicable Law.

 

(f)       The parties hereto acknowledge that the Whole Loan is subject to the terms and conditions of the Co-Lender Agreement. The parties hereto further recognize the rights and obligations of the Companion Loan Holders under the Co-Lender Agreement, including, without limitation with respect to (A) the allocation of collections (and all other amounts received in connection with the Whole Loan) on or in respect of the Whole Loan and (B) the allocation of Default Interest on or in respect of the Whole Loan. In the event of any inconsistency or discrepancy between the provisions, terms or conditions of the Co-Lender Agreement and the provisions, terms or conditions of this Agreement, the Co-Lender Agreement shall govern, and as to any matter on which the Co-Lender Agreement is silent or makes reference to this Agreement, this Agreement shall govern.

 

Section 3.02   Liability of the Master Servicer and the Special Servicer When Sub-Servicing. Notwithstanding any Sub-Servicing Agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer or Special Servicer, as applicable, and any Person acting as Sub-Servicer (or its agents or Subcontractors) or any reference to actions taken through any Person acting as Sub-Servicer or otherwise, the Master Servicer or the Special Servicer, as applicable, shall remain obligated and primarily liable to the Trustee (on behalf of the Certificateholders and the Companion Loan Holders) and the Certificateholders for the servicing and administering of the Whole Loan in accordance with the provisions of this Agreement without diminution of such obligation or liability by virtue of such Sub-Servicing Agreements or arrangements or by virtue of indemnification from the Depositor or any other Person acting as Sub-Servicer (or its agents or Subcontractors) to the same extent and under the same terms and conditions as if the Master Servicer or the Special Servicer, as applicable, alone was servicing and administering the Whole Loan. Each of the Master Servicer and the Special Servicer shall be entitled to enter into an agreement with any Sub-Servicer providing for indemnification of the Master Servicer or the Special Servicer, as applicable, by such Sub-Servicer, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification, but no such agreement for indemnification shall be deemed to limit or modify this Agreement.

 

Section 3.03   Collection of Whole Loan Payments. (a) The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan) shall use reasonable efforts to collect all payments called for under the terms and provisions of the Whole Loan, and shall follow the Servicing Standard with respect to such collection procedures; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer or the Special Servicer of the collectibility of the Whole Loan. With respect to the Performing Loan, the Master Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to collect income statements and rent rolls from the Borrowers as required by the Loan Documents and the terms hereof. The Master Servicer shall provide at least 90 days’ notice (with a copy to the Special

 

 -109-

 

 

Servicer) to the Borrowers of Balloon Payments coming due. Consistent with the foregoing, the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan) may in their discretion waive any late payment charge or Default Interest in connection with any delinquent Monthly Payment or Balloon Payment with respect to the Whole Loan. In addition, the Special Servicer shall be entitled to take such actions with respect to the collection of payments on the Whole Loan as is permitted or required under this Agreement.

 

Section 3.04   Collection of Taxes, Assessments and Similar Items; Escrow Accounts. (a) The Master Servicer shall maintain accurate records with respect to the Mortgaged Properties reflecting the status of taxes, assessments and other similar items that is or may become a lien thereon and the status of insurance premiums payable with respect thereto. If the Whole Loan is a Specially Serviced Loan, the Special Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to collect income statements and rent rolls from the Borrowers as required by the Loan Documents. The Special Servicer, in the case of an REO Loan, and the Master Servicer, in the case of the Whole Loan, shall use reasonable efforts consistent with the Servicing Standard to, from time to time, (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) effect, or, if the Special Servicer, to use reasonable efforts to cause the Master Servicer to effect, payment of all such bills with respect to the Mortgaged Properties prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Payments as allowed under the terms of the Loan Documents. If the Borrowers fail to make any such payment on a timely basis or collections from the Borrowers are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer shall advance the amount of any shortfall as a Property Advance unless the Master Servicer determines in accordance with the Servicing Standard that such Advance would be a Nonrecoverable Advance (provided that with respect to advancing insurance premiums or delinquent tax assessments the Master Servicer shall comply with the provisions of Section 3.21(d) of this Agreement). The Master Servicer shall be entitled to reimbursement of Property Advances, with interest thereon at the Advance Rate, that it makes pursuant to this Section 3.04 of this Agreement from amounts received on or in respect of the Whole Loan respecting which such Advance was made or if such Advance has become a Nonrecoverable Advance, to the extent permitted by Section 3.06 of this Agreement. No costs incurred by the Master Servicer in effecting the payment of taxes and assessments on the Mortgaged Properties shall, for the purpose of calculating distributions to Certificateholders, be added to the amount owing under the Whole Loan, notwithstanding that the terms of the Whole Loan so permit.

 

(b)       The Master Servicer shall segregate and hold all funds collected and received constituting Escrow Payments separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Payments shall be deposited within two (2) Business Days after receipt of properly identified funds and maintained in accordance with the requirements of the Whole Loan and in accordance with the Servicing Standard. The Master Servicer shall also deposit into each Escrow Account any amounts representing losses on Permitted Investments to the extent required pursuant to Section 3.07(b) of this Agreement and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the Whole Loan. Escrow Accounts shall be Eligible Accounts (except to the extent the Loan Documents require it to be held in an account that is not an Eligible Account);

 

 -110-

 

 

provided, however, that in the event the ratings of the financial institution holding such account are downgraded to a ratings level below that of an Eligible Account (except to the extent the Loan Documents require it to be held in an account that is not an Eligible Account), the Master Servicer shall have 30 Business Days (or such longer time as confirmed by a No Downgrade Confirmation, obtained at the expense of the Master Servicer relating to the Certificates) to transfer such account to an Eligible Account. Escrow Accounts shall be entitled, “KeyBank National Association, as Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, the Borrowers and the Companion Loan Holders”. Withdrawals from an Escrow Account may be made by the Master Servicer only:

 

(i)        to effect timely payments of items constituting Escrow Payments for the Mortgage;

 

(ii)       to transfer funds to the Collection Account (or any sub-account thereof) to reimburse the Master Servicer or the Trustee for any Property Advance (with interest thereon at the Advance Rate) relating to Escrow Payments, but only from amounts received with respect to the Whole Loan which represent late collections of Escrow Payments thereunder;

 

(iii)      for application to the restoration or repair of any Mortgaged Property in accordance with the Whole Loan and the Servicing Standard;

 

(iv)      to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the Whole Loan;

 

(v)       to pay from time to time to the Borrowers any interest or investment income earned on funds deposited in the Escrow Account if such income is required to be paid to the Borrowers under law or by the terms of the Loan Documents, or otherwise to the Master Servicer; or

 

(vi)      to remove any funds deposited in an Escrow Account that were not required to be deposited therein or to refund amounts to the Borrowers determined to be overages.

 

(c)       The Master Servicer shall, as to the Whole Loan (i) maintain accurate records with respect to the Mortgaged Properties reflecting the status of real estate taxes, assessments and other similar items that are or may become a lien thereon and the status of insurance premiums and any ground rents payable in respect thereof and (ii) use reasonable efforts to obtain, from time to time, all bills for (or otherwise confirm) the payment of such items (including renewal premiums) and, if the Whole Loan requires the Borrowers to escrow for such items, shall effect payment thereof prior to the applicable penalty or termination date. For purposes of effecting any such payment for which it is responsible, the Master Servicer shall apply Escrow Payments as allowed under the terms of the Loan Documents (or, if the Whole Loan does not require the Borrowers to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the Borrowers to comply with the requirement of the Mortgage that the Borrowers make payments in respect of such items at the

 

 -111-

 

 

time they first become due and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the Mortgaged Properties for nonpayment of such items). Subject to Section 3.21 of this Agreement, the Master Servicer shall timely make a Property Advance to cover any such item which is not so paid, including any penalties or other charges arising from the Borrower’s failure to timely pay such items.

 

Section 3.05   Collection Account; Distribution Accounts and Interest Reserve Account. (a) The Master Servicer shall establish and maintain a Collection Account, for the benefit of the Certificateholders, the Companion Loan Holders and the Trustee as the Holder of the Lower-Tier Regular Interests. The Collection Account shall be established and maintained as an Eligible Account.

 

The Master Servicer shall deposit or cause to be deposited in the Collection Account within two Business Days following receipt of properly identified funds of the following payments and collections received or made by or on behalf of it on or with respect to the Whole Loan subsequent to the Cut-off Date:

 

(i)        all payments on account of principal on the Whole Loan, including the principal component of all Unscheduled Payments;

 

(ii)       all payments on account of interest on the Whole Loan (net of the related Servicing Fee Rate), including Default Interest, Prepayment Charges and the interest component of all Unscheduled Payments;

 

(iii)      any amounts required to be deposited pursuant to Section 3.07(b) of this Agreement, in connection with net losses realized on Permitted Investments with respect to funds held in the Collection Account;

 

(iv)      all Net REO Proceeds withdrawn from the related REO Account pursuant to Section 3.15(b) of this Agreement;

 

(v)       any amounts received from the Borrowers which represent recoveries of Property Protection Expenses or items for which Administrative Advances were made and are allocable to the Whole Loan, to the extent not permitted to be retained by the Master Servicer as provided herein;

 

(vi)      all Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of the Whole Loan or REO Property, other than Liquidation Proceeds that are received in connection with a purchase of the Whole Loan or REO Property that are to be deposited in the Lower Tier Distribution Account pursuant to Section 9.01 of this Agreement, together with any amounts representing recoveries of Nonrecoverable Advances in respect of the Whole Loan;

 

(vii)     Penalty Charges on the Whole Loan to the extent required to offset interest on Advances and Additional Trust Fund Expenses pursuant Section 3.12(d) of this Agreement;

 

 -112-

 

 

(viii)    any amounts required to be deposited by the Master Servicer or the Special Servicer pursuant to Section 3.08(b) of this Agreement in connection with losses resulting from a deductible clause in a blanket or master force-placed policy in respect of the Mortgaged Properties;

 

(ix)      any other amounts required by the provisions of this Agreement (including without limitation, with respect to the Companion Loan or any mezzanine indebtedness that may exist on a future date, all amounts received pursuant to the cure and purchase rights or reimbursement obligations set forth in the Co-Lender Agreement, related mezzanine intercreditor agreement) to be deposited into the Collection Account by the Master Servicer or Special Servicer;

 

(x)       any Master Servicer Prepayment Interest Shortfall Amounts in respect of the Trust Loan pursuant to Section 3.17(c) of this Agreement; and

 

(xi)      any indemnity payment received from a Trust Loan Seller in connection with its indemnification of the Trust for losses directly related to a Material Breach or Material Document Defect pursuant to Section 2.03(e) of this Agreement.

 

The foregoing requirements for deposits in the Collection Account shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, payments in the nature of late payment charges (subject to Section 3.12 and the Co-Lender Agreement), Assumption Fees, Modification Fees, loan service transaction fees, consent fees, extension fees, demand fees, defeasance fees, beneficiary statement charges and similar fees need not be deposited in the Collection Account by the Master Servicer or the Special Servicer, as applicable, and, to the extent permitted by applicable law, the Master Servicer or the Special Servicer, as applicable, in accordance with Section 3.12 hereof, shall be entitled to retain any such charges and fees received with respect to the Whole Loan as additional compensation.

 

In the event that the Master Servicer deposits in the Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from the Collection Account, any provision herein to the contrary notwithstanding.

 

Upon receipt of any of the amounts described in clauses (i), (ii), (v), (vi), (vii) and (ix) above of this Section 3.05(a) with respect to the Whole Loan if it is a Specially Serviced Loan but is not an REO Loan, the Special Servicer shall remit such amounts within one Business Day after receipt thereof (except, if such amounts are not properly identified, the Special Servicer shall promptly identify such amounts and shall remit such amounts within one Business Day after such identification) to the Master Servicer for deposit into the Collection Account in accordance with the second paragraph of this Section 3.05 of this Agreement, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item should not be deposited because of a restrictive endorsement or other appropriate reason. Any such amounts received by the Special Servicer with respect to the REO Property shall be deposited by the Special Servicer into the REO Account and remitted to the Master Servicer for deposit into the Collection Account pursuant to Section 3.15(b) of this Agreement. With respect to any such amounts paid by check to the order of the Special Servicer, the Special Servicer shall endorse without recourse or warranty

 

 -113-

 

 

such check to the order of the Master Servicer and shall promptly deliver any such check to the Master Servicer by overnight courier.

 

(b)       The Certificate Administrator shall establish and maintain the Lower-Tier Distribution Account in its own name for the benefit of the Trustee, in trust for the benefit of the Certificateholders, the Companion Loan Holders and the Trustee as the Holder of the Lower-Tier Regular Interests. The Lower-Tier Distribution Account shall be established and maintained as an Eligible Account or as a sub-account of an Eligible Account.

 

(c)       With respect to each Distribution Date, the Master Servicer shall deliver to the Certificate Administrator, on or before the Servicer Remittance Date, Available Funds then on deposit in the Collection Account after giving effect to withdrawals of funds pursuant to Section 3.06(a) of this Agreement. Upon receipt from the Master Servicer of such amounts held in the Collection Account, the Certificate Administrator shall deposit in the Lower-Tier Distribution Account (A) the amount of Available Funds to be distributed pursuant to Section 4.01 of this Agreement hereof, (B) Prepayment Charges to be distributed pursuant to Section 4.01(c) of this Agreement and (C) in the Interest Reserve Account as part of the Lower-Tier REMIC, the amount of any Withheld Amounts to be deposited pursuant to Section 3.05(e) of this Agreement.

 

(d)      The Certificate Administrator shall establish and maintain the Upper-Tier Distribution Account in its own name for the benefit of the Trustee, in trust for the benefit of the Certificateholders. The Upper-Tier Distribution Account shall be established and maintained as an Eligible Account or a sub-account of an Eligible Account. Promptly on each Distribution Date, the Certificate Administrator shall withdraw or be deemed to withdraw from the Lower-Tier Distribution Account and deposit or be deemed to deposit in the Upper-Tier Distribution Account on or before such date the Lower-Tier Distribution Amount for such Distribution Date to be distributed in respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a) of this Agreement on such date.

 

The Certificate Administrator shall establish and maintain on behalf of the Trust and for the benefit of the Holders of the Class S Certificates, a segregated non-interest bearing reserve account (the “Excess Interest Distribution Account”). The Excess Interest Distribution Account must be an Eligible Account or a subaccount of an Eligible Account. The Excess Interest Distribution Account shall be an asset of the Grantor Trust and beneficially owned by the Holders of the Class S Certificates and shall not be an asset of any Trust REMIC. Funds on deposit in the Excess Interest Distribution Account shall be uninvested. Upon receipt from the Servicer of such amounts held in the Collection Account, the Certificate Administrator shall deposit in the Excess Interest Distribution Account any Excess Interest to be distributed to the Holders of the Class S Certificates.

 

(e)       The Certificate Administrator shall establish and maintain the Interest Reserve Account in its own name on behalf of the Trustee, in trust for the benefit of the Certificateholders and the Trustee as the holder of the Lower-Tier Regular Interests. The Interest Reserve Account shall be established and maintained as an Eligible Account or as a sub-account of an Eligible Account.

 

 -114-

 

 

(f)       On each Servicer Remittance Date occurring in (i) January of each calendar year that is not a leap year and (ii) February of each calendar year, unless in either case such Servicer Remittance Date is the final Servicer Remittance Date, the Certificate Administrator shall calculate the Withheld Amounts. On each such Servicer Remittance Date, the Certificate Administrator shall withdraw or be deemed to withdraw from the Lower-Tier Distribution Account and deposit or be deemed to deposit in the Interest Reserve Account an amount equal to the aggregate of the Withheld Amounts calculated in accordance with the previous sentence. If the Certificate Administrator shall deposit in the Interest Reserve Account any amount not required to be deposited therein, it may at any time withdraw such amount from the Interest Reserve Account any provision herein to the contrary notwithstanding. On or prior to the Servicer Remittance Date in March of each calendar year (or in February if the final Distribution Date will occur in such month), the Certificate Administrator shall transfer to the Lower-Tier Distribution Account the aggregate of all Withheld Amounts on deposit in the Interest Reserve Account.

 

(g)       Funds in the Collection Account and the REO Account may be invested in Permitted Investments in accordance with the provisions of Section 3.07 of this Agreement. Funds in the Distribution Account and the Interest Reserve Account shall remain uninvested.

 

The Master Servicer shall give written notice to the Depositor, the Trustee, the Certificate Administrator and the Special Servicer of the location and account number of the Collection Account as of the Closing Date and shall notify the Depositor, the Special Servicer, the Certificate Administrator and the Trustee, as applicable, in writing prior to any subsequent change thereof. The Certificate Administrator shall give written notice to the Depositor, the Trustee, the Special Servicer and the Master Servicer of the location and account number of each of the Distribution Accounts and the Interest Reserve Account as of the Closing Date and shall notify the Depositor, the Trustee, the Special Servicer and the Master Servicer, as applicable, in writing prior to any subsequent change thereof.

 

(h)       Notwithstanding anything to the contrary contained herein, with respect to each Due Date prior to contribution of a Companion Loan into a securitization, on the Servicer Remittance Date and following the contribution of a Companion Loan into a securitization, on the earlier of (a) the Servicer Remittance Date or (b) the first Business Day after the “determination date” as such term or similar term is defined in the Other Pooling and Servicing Agreement (provided, however, that in no event shall such “determination date” occur prior to (and any such otherwise earlier “determination date” shall be deemed to occur on) the 6th day of each month or, if such 6th day is not a Business Day, the next succeeding Business Day), the Master Servicer shall remit, from amounts on deposit in the Collection Account, to the Companion Loan Holders by wire transfer in immediately available funds to the respective accounts of the Companion Loan Holders or an agent therefor appearing on the respective Companion Loan Holder Register on the related date such amounts as are required to be remitted (or, if no such account so appears or information relating thereto is not provided at least five (5) Business Days prior to the date such amounts are required to be remitted, by check sent by first class mail to the address of such Companion Loan Holder or its agent appearing on the related Companion Loan Holder Register) the applicable Remittance Amount allocable to such Companion Loan Holder.

 

Section 3.06  Permitted Withdrawals from the Collection Account and the Distribution Accounts; Trust Ledger. (a) The Master Servicer shall maintain a separate Trust

 

 -115-

 

 

Ledger with respect to the Whole Loan on which it shall make ledger entries as to amounts deposited (or credited) or withdrawn (or debited) with respect thereto. On each Servicer Remittance Date (or such other date as specified below or on which funds are available for such purpose as specified below), with respect to the Whole Loan, the Master Servicer shall make withdrawals from amounts allocated thereto in the Collection Account (and may debit the Trust Ledger and any related sub-ledger) for the purposes listed below in accordance with the allocation priorities in the Co-Lender Agreement (the order set forth below not constituting an order of priority for such withdrawals):

 

(i)        on or before 3:00 p.m. (New York City Time) on each Servicer Remittance Date, to remit to the Certificate Administrator the amounts to be deposited into the Lower-Tier Distribution Account (including without limitation the aggregate of the Available Funds and Prepayment Charges) which the Certificate Administrator shall then deposit into the Upper-Tier Distribution Account and the Interest Reserve Account, pursuant to Section 3.05(d) and Section 3.05(c) of this Agreement, respectively;

 

(ii)       to pay (A) itself, unpaid Servicing Fees (or, with respect to any Excess Servicing Fee Rights, to pay any Excess Servicing Fees to the holder of such Excess Servicing Fee Rights pursuant to Section 3.12(a) of this Agreement); the Operating Advisor, unpaid Operating Advisor Fees; and the Special Servicer, unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of the Whole Loan, Specially Serviced Loan or REO Loan, as applicable, the Master Servicer’s, Operating Advisor’s or Special Servicer’s, as applicable, rights to payment of Servicing Fees, Operating Advisor Fees and Special Servicing Fees, Liquidation Fees and Workout Fees pursuant to this clause (ii)(A) with respect to the Whole Loan, Specially Serviced Loan or REO Loan, as applicable, being limited to amounts received on or in respect of the Whole Loan, Specially Serviced Loan or REO Loan, as applicable (whether in the form of payments, Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds), that are allocable as recovery of interest thereon; (B) the Special Servicer, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of a Specially Serviced Loan or an REO Loan, as applicable, remaining unpaid out of general collections on the Whole Loan, Specially Serviced Loan and REO Property and (C) the Operating Advisor, any unpaid Operating Advisor Consulting Fees (but only to the extent such Operating Advisor Consulting Fees were received from the Borrower);

 

(iii)     to reimburse itself or the Trustee, as applicable (in reverse of such order with respect to the Trust Loan), for unreimbursed P&I Advances with respect to the Trust Loan (other than Nonrecoverable Advances, which are reimbursable pursuant to clause (v) below) and to reimburse each related Companion Loan Service Provider for unreimbursed Companion Loan Advances with respect to a related Companion Loan (other than such advance which have been determined to be nonrecoverable, which are reimbursable pursuant to clause (v) below), the Master Servicer’s, the Trustee’s and the applicable Serviced Companion Loan Service Provider’s right to reimbursement pursuant to this clause (iii) being limited to amounts received which represent Late Collections for the Trust Loan or the related Companion Loan, as applicable (as allocated thereto pursuant to the Co-Lender Agreement), during the applicable period;

 

 -116-

 

 

(iv)      to reimburse itself or the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), for unreimbursed Property Advances and Administrative Advances, the Master Servicer’s or the Trustee’s respective rights to receive payment pursuant to this clause (iv) with respect to the Whole Loan or REO Property being limited to, as applicable, payments received from the Borrowers which represent reimbursements of such Property Advances or Administrative Advances, as applicable, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO Proceeds with respect to the Whole Loan or REO Property;

 

(v)      (A) first, to reimburse itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), with respect to Nonrecoverable Property Advances, second, to reimburse or itself and the Trustee, as applicable, and each related Companion Loan Service Provider (in reverse of such order with respect to the Whole Loan or REO Property) with respect to Nonrecoverable P&I Advances and nonrecoverable Companion Loan Advances with respect to the Senior Notes, on a pro rata and pari passu basis (based on the total outstanding principal balance of the Senior Notes), third to reimburse itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property) with respect to Nonrecoverable P&I Advances with respect to the Junior Notes, based on the outstanding principal balance of the Junior Notes, and fourth, to reimburse itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), with respect to Nonrecoverable Administrative Advances with respect to the Trust Notes, on a pro rata and pari passu basis (based on the total outstanding principal balance of the Trust Notes), first, out of Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO Proceeds received on the Whole Loan and REO Property, second, out of the principal portion of general collections on the Whole Loan and REO Property, and then, to the extent the principal portion of general collections is insufficient and with respect to such deficiency only, subject to any election at its sole discretion (or at the Trustee’s sole discretion for the reimbursement of the Trustee) to defer reimbursement thereof pursuant to this Section 3.06(a) of this Agreement, out of other collections on the Whole Loan and REO Property; provided that, in the case of Nonrecoverable Property Advances, only to the extent that amounts on deposit in the Collection Account are insufficient for reimbursement therefor, the Master Servicer shall use commercially reasonable efforts to exercise on behalf of the Trust the rights of the Trust under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holders and (B) to pay itself or the Special Servicer out of general collections on the Whole Loan and REO Property, with respect to the Whole Loan or REO Property any related earned Servicing Fee, Special Servicing Fee, Liquidation Fee or Workout Fee, as applicable, that remained unpaid in accordance with clause (ii) above following a Final Recovery Determination made with respect to the Whole Loan or REO Property and the deposit into the Collection Account of all amounts received in connection therewith;

 

(vi)     at such time as it reimburses itself and the Trustee, as applicable (in reverse of such order with respect to the Whole Loan or REO Property), for (A) any unreimbursed P&I Advance made with respect to the Trust Loan or any unreimbursed Companion Loan Advances made with respect to the Companion Loan pursuant to clause (iii) above, to pay

 

 

 -117-

 

 

itself, the Trustee or the applicable Companion Loan Service Provider, as applicable, any Advance Interest Amounts accrued and payable thereon, (B) any unreimbursed Property Advances made with respect to the Whole Loan or REO Property or Administrative Advances made with respect to the Trust Loan or REO Property pursuant to clause (iv) above, to pay itself or the Trustee, as the case may be, any Advance Interest Amounts accrued and payable thereon or (C) any Nonrecoverable Advances (or nonrecoverable Companion Loan Advances) made with respect to the Trust Loan or Whole Loan, as applicable, or REO Property pursuant to clause (v) above, to pay itself, the Trustee or the applicable Companion Loan Service Provider, as the case may be, any Advance Interest Amounts (or interest on Companion Loan Advances) accrued and payable thereon, in each case first from Penalty Charges as provided in Section 3.12(d) and then from general collections; provided that, in the case of (A) above, such party’s right to reimbursement pursuant to this clause (vi) shall be limited to amounts on deposit in the Collection Account allocable to the Trust Loan or the related Companion Loan for which the advance was made;

 

(vii)     to reimburse itself, the Special Servicer, the Custodian, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Breach or Defect giving rise to a repurchase obligation of a Trust Loan Seller under Section 6 of the related Trust Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase obligation, together with interest thereon at the Advance Rate, each such Person’s right to reimbursement pursuant to this clause (vii) with respect to the Trust Loan subject to the following: (a) if the Repurchase Price is paid for the Trust Loan, then such Person’s right to reimbursement shall be limited to that portion of the Repurchase Price that represents such expense in accordance with clause (e) of the definition of Repurchase Price, or (b) if no Repurchase Price or an indemnity payment pursuant to Section 2.03(e) is paid and proceedings are instituted to enforce the Trust Loan Sellers’ payment or performance pursuant to each Trust Loan Purchase Agreement, then such Person shall be entitled to reimbursement from the Trust following the adjudication of such proceedings in favor of the Trust Loan Sellers or settlement of the Breach or Defect claim with respect to collections relating to the Trust Loan;

 

(viii)    to pay itself all Prepayment Interest Excesses on the Whole Loan (if and to the extent any such Prepayment Interest Excess exceeds any Master Servicer Prepayment Interest Shortfall Amounts calculated pursuant to Section 3.17(c) of this Agreement);

 

(ix)      (A) to pay itself, as additional Servicing Compensation in accordance with Section 3.12(a) of this Agreement, (1) interest and investment income earned in respect of amounts relating to the Trust Fund held in the Collection Account as provided in Section 3.12(b) of this Agreement (but only to the extent of the net investment earnings with respect to such Collection Account for any period from any Distribution Date to the immediately succeeding Servicer Remittance Date) and (2) Penalty Charges on the Whole Loan so long as it is not a Specially Serviced Loan or REO Loan, but only to the extent collected from the Borrowers and only to the extent that all amounts then due and payable with respect to the Whole Loan have been paid and are not needed to pay interest on Advances or Companion Loan Advances in accordance with Section 3.12 and/or pay or reimburse the

 

 -118-

 

 

Trust for Additional Trust Fund Expenses incurred with respect to the Whole Loan during or prior to the related Collection Period (including Special Servicing Fees, Workout Fees or Liquidation Fees); and (B) to pay the Special Servicer, as additional servicing compensation in accordance with Section 3.12(c) of this Agreement, Penalty Charges on the Whole Loan so long as it is a Specially Serviced Loan or REO Loan, but only to the extent collected from the Borrowers and only to the extent that all amounts then due and payable with respect to the Specially Serviced Loan have been paid and are not needed to pay interest on Advances or Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees or Liquidation Fees), all in accordance with Section 3.12;

 

(x)       to pay itself, the Special Servicer, the Operating Advisor, the Depositor or any of their respective directors, officers, members, managers, employees and agents, as the case may be, any amounts payable to any such Person pursuant to Section 6.03(a) of this Agreement;

 

(xi)      to pay for the cost of the Opinions of Counsel contemplated by Sections 3.10(e), 3.10(f), 3.15(a), 3.15(b) and 10.08 of this Agreement;

 

(xii)     to pay out of general collections on the Whole Loan and REO Property any and all federal, state and local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any of their assets or transactions, together with all incidental costs and expenses, to the extent that none of the Master Servicer, the Special Servicer or the Trustee is liable therefor pursuant to this Agreement;

 

(xiii)    to reimburse the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator out of general collections on the Whole Loan and REO Property for expenses incurred by and reimbursable to it by the Trust Fund;

 

(xiv)    to pay any Person permitted to purchase the Trust Loan under Section 3.16 of this Agreement with respect to the Trust Loan, if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the date of purchase relating to periods after the date of purchase;

 

(xv)     to pay to itself, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, the Custodian or the Depositor, as the case may be, any amount specifically required to be paid to such Person at the expense of the Trust Fund under any provision of this Agreement to which reference is not made in any other clause of this Section 3.06(a), it being acknowledged that this clause (xv) shall not be construed to modify any limitation or requirement otherwise set forth in this Agreement as to the time at which any Person is entitled to payment or reimbursement of any amount or as to the funds from which any such payment or reimbursement is permitted to be made;

 

(xvi)    to withdraw from the Collection Account any sums deposited therein in error and pay such sums to the Persons entitled thereto;

 

(xvii)   to pay from time to time to itself in accordance with Section 3.07(b) of this Agreement any interest or investment income earned on funds deposited in the Collection Account;

 

 -119-

 

 

(xviii)  [Reserved];

 

(xix)    to pay itself, the Special Servicer or the Trust Loan Sellers, as the case may be, with respect to the Trust Loan, if any, previously purchased by such Person pursuant to or as contemplated by this Agreement, all amounts received on the Trust Loan subsequent to the date of purchase;

 

(xx)     to pay to the Certificate Administrator, the Trustee, the Custodian or any of their directors, officers, employees, representatives and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05(d) of this Agreement;

 

(xxi)    pursuant to the CREFC^® License Agreement, to pay the CREFC^® License Fee to CREFC^® on a monthly basis;

 

(xxii)   to clear and terminate the Collection Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement; and

 

(xxiii)  to make remittances each month in an aggregate amount of immediately available funds equal to the Remittance Amount to the Companion Loan Holders in accordance with Section 3.05(h) and in accordance with the Co-Lender Agreement, including amounts to be remitted to the Companion Loan Holders or the Companion Loan Servicer Providers under clauses (iii), (v) and (vi); provided that Liquidation Proceeds relating to the repurchase of the Companion Loan by the related seller thereof shall be remitted solely to the holder of the Companion Loan, as the case may be, and Liquidation Proceeds relating to the repurchase of a Trust Loan related to the Whole Loan by the related Trust Loan Seller shall be remitted solely to the Collection Account.

 

For the avoidance of doubt, and notwithstanding the foregoing provisions of this Section 3.06(a), any such amounts payable from the Collection Account to the Special Servicer, the Certificate Administrator, the Trustee or to itself for which the Master Servicer (or the Trustee) is required to advance as an Administrative Advance shall be paid from Administrative Advances therefor deposited into the Collection Account (or deemed deposited into the Collection Account if such payment is advanced by the Master Servicer (or the Trustee) directly to the party entitled to such payment).

 

Upon written request, the Master Servicer shall provide to the Certificate Administrator such records and any other information in the possession of the Master Servicer to enable the Certificate Administrator to determine the amounts attributable to the Lower-Tier REMIC.

 

The Master Servicer shall pay to the Trustee, the Operating Advisor, the Certificate Administrator or the Special Servicer from the Collection Account amounts permitted to be paid to the Trustee, the Operating Advisor, the Certificate Administrator or the Special Servicer therefrom, promptly upon receipt of a certificate of a Responsible Officer of the Trustee, a Responsible Officer of the Certificate Administrator, a Responsible Officer of the Operating Advisor or a Servicing Officer of the Special Servicer, as applicable, describing the item and amount to which such Person is entitled (unless such payment to the Trustee, the Operating

 

 -120-

 

 

Advisor, the Certificate Administrator or the Special Servicer, as the case may be, is specifically required pursuant to this Agreement and the timing and the amount of payment is specified in, or calculable pursuant to, this Agreement, in which case a certificate is not required). The Master Servicer may rely conclusively on any such certificate and shall have no duty to recalculate the amounts stated therein.

 

The Trustee, the Certificate Administrator, the Custodian, the Special Servicer, the Master Servicer, the Operating Advisor and CREFC^® shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of the Servicing Compensation (including investment income), Trustee/Certificate Administrator Fees, Special Servicing Compensation (including investment income), the Operating Advisor Fees, the CREFC^® License Fee, Advances, Advance Interest Amounts (for the Master Servicer or the Trustee), their respective indemnification payments (if any) pursuant to Section 6.03, Section 8.05 or Section 10.02 of this Agreement (for each of such Persons other than CREFC^®), their respective expenses hereunder to the extent such fees and expenses are to be reimbursed or paid from amounts on deposit in the Collection Account pursuant to this Agreement. For the avoidance of doubt, any fees or expenses (including legal fees) for which a party is to be indemnified pursuant to Section 6.03 herein may be submitted directly to the Trust Fund to be paid from amounts on deposit in the Collection Account. In addition, the Certificate Administrator, the Trustee, the Special Servicer, the Master Servicer and the Operating Advisor shall in all cases have a right prior to the Certificateholders to any funds on deposit in the Collection Account from time to time for the reimbursement or payment of any federal, state or local taxes imposed on either Trust REMIC.

 

Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Whole Loan deposited in the Collection Account and available for distribution on the next Distribution Date, the Master Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section 3.06(a) or Section 3.06(b) of this Agreement immediately, may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the Collection Period ending on the then-current Determination Date for successive one-month periods for a total period not to exceed 12 months. If the Master Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent Collection Period (subject, again, to the same sole discretion to elect to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from principal collections as described above prior to payment from other collections). In connection with a potential election by the Master Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the one-month Collection Period ending on the related Determination Date for any Distribution Date, the Master Servicer or the Trustee shall further be authorized (in its sole discretion) to wait for principal collections on the Trust Loan and the Companion Loan to be received before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance (or portion thereof) until the end of such Collection Period; provided, however, that the Master Servicer or the Trustee shall

 

 -121-

 

 

give notice of its election to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), at least 15 days prior to any reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Whole Loan unless (1) the Master Servicer or the Trustee determines in its sole discretion that waiting 15 days after such a notice could jeopardize its ability to recover Nonrecoverable Advances, (2) changed circumstances or new or different information becomes known to the Master Servicer or the Trustee that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (1) above, or (3) the Master Servicer or the Trustee has not timely received from the Certificate Administrator information requested by the Master Servicer or the Trustee to consider in determining whether to defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the Master Servicer or the Trustee shall give notice of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in the Collection Account allocable to interest on the Whole Loan as soon as reasonably practicable in such circumstances to the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement). Neither the Master Servicer nor the Trustee shall have any liability for any loss, liability or expense resulting from any notice provided to each Rating Agency contemplated by the immediately preceding sentence.

 

The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this Section 3.06(a) or to comply with the terms of this Section 3.06(a) and the other provisions of this Agreement that apply once such an election, if any, has been made. If the Master Servicer or the Trustee, as applicable, determines, in its sole discretion, that it should recover the Nonrecoverable Advances without deferral as described above, then the Master Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Advance Rate from all amounts in the Collection Account for such Distribution Date. Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more Collection Periods shall not limit the accrual of interest at the Advance Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The Master Servicer’s or the Trustee’s, as applicable, election to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and the Companion Loan Holders and shall not be construed as an obligation on the part of the Master Servicer or the Trustee, as applicable, or a right of the Certificateholders or the Companion Loan Holders. Nothing herein shall be deemed to create in the Certificateholders or the Companion Loan Holders a right to prior payment of distributions over the Master Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise). In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be (a) in accordance with the Servicing Standard with respect to the Master Servicer and (b) in accordance with good faith business judgment, with respect to the Trustee, and in each case, none of the Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or the Companion Loan Holders for any such election that such party makes as contemplated by this Section 3.06(a) or for any losses, damages or other adverse economic or other effects that may arise from such an election.

 

 -122-

 

 

None of the Master Servicer, the Special Servicer or the Trustee shall be permitted to reverse any other Person’s determination that an Advance is a Nonrecoverable Advance.

 

If the Master Servicer or the Trustee, as applicable, is reimbursed out of general collections for any unreimbursed Advances that are determined to be Nonrecoverable Advances (together with any interest accrued and payable thereon at the Advance Rate), then (for purposes of calculating distributions on the Certificates) such reimbursement and payment of interest shall be deemed to have been made: first, out of the Principal Distribution Amount, which, but for its application to reimburse a Nonrecoverable Advance and/or to pay interest thereon at the Advance Rate, would be included in Available Funds for any subsequent Distribution Date and, second, out of other amounts which, but for their application to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be included in Available Funds for any subsequent Distribution Date.

 

(b)       Notwithstanding anything to the contrary contained herein, with respect to the Companion Loan, the Master Servicer shall withdraw from the related Collection Account and remit to the Companion Loan Holders, within one (1) Business Day of receipt of properly identified funds, any amounts that represent Late Collections or Principal Prepayments on the Companion Loan or any successor REO Loan with respect thereto (exclusive of any portion of such amount payable or reimbursable to any third party in accordance with the Co-Lender Agreement or this Agreement), unless such amount would otherwise be included in the monthly remittance to the holder of the Companion Loan for such month; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such Late Collections or Principal Prepayments to the applicable Other Servicer within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds.

 

If the Master Servicer fails, as of 5:00 p.m. (New York City Time) on any Servicer Remittance Date or any other date a remittance is required to be made, to remit to the Certificate Administrator (in respect of the Trust Loan) or the Companion Loan Holders (in respect of the Companion Loan) any amounts required to be so remitted hereunder by such date (including any P&I Advance pursuant to Section 4.07), the Master Servicer shall pay to the Certificate Administrator (in respect of the Trust Loan) or the Companion Loan Holders (in respect of the Companion Loan), for the account of the Certificate Administrator (in respect of the Trust Loan) or Companion Loan Holders (in respect of the Companion Loan), interest, calculated at the Prime Rate, on such amount(s) not timely remitted, from the time such payment was required to be made (without regard to any grace period) until (but not including) the date such late payment is received by the Certificate Administrator or the Companion Loan Holders, as applicable.

 

(c)       On each Servicer Remittance Date, all net income and gain realized from investment of funds to which the Master Servicer or the Special Servicer is entitled pursuant to Section 3.07(b) of this Agreement shall be subject to withdrawal by the Master Servicer or the Special Servicer, as applicable.

 

(d)      If amounts required to pay the expenses allocable to the Companion Loan exceed amounts on deposit in the Collection Account and the Master Servicer, the Special

 

 -123-

 

 

Servicer, the Certificate Administrator or the Trustee, as applicable, shall have sought reimbursement from the Trust Fund with respect to such expenses allocable to the Companion Loan, the Master Servicer or Special Servicer, as applicable, shall seek (on behalf of the Trust Fund, subject to the Co-Lender Agreement) payment or reimbursement for the pro rata portion of such expenses allocable to the Companion Loan from the Companion Loan Holders or, if the Companion Loan has been deposited into a securitization, out of general collections in the collection account established pursuant to the related Other Pooling and Servicing Agreement.

 

(e)       [Reserved.]

 

(f)       The Certificate Administrator, may, from time to time, make withdrawals from the Lower-Tier Distribution Account for any of the following purposes (the order set forth below shall not indicate any order of priority), in each case to the extent not previously paid from the Collection Account:

 

(i)        to make deposits of the Lower-Tier Distribution Amount and the amount of any Prepayment Charges distributable pursuant to Section 4.01(a) of this Agreement in the Upper-Tier Distribution Account, and to make distributions on the Class LR Certificates pursuant to Section 4.01(a) of this Agreement;

 

(ii)       to pay itself, the Trustee and the Custodian respective portions of any accrued but unpaid Trustee/Certificate Administrator Fees;

 

(iii)      to pay itself an amount equal to all net income and gain realized from investment of funds in the Lower-Tier Distribution Account pursuant to Section 3.07(b) of this Agreement;

 

(iv)      to pay to itself, the Trustee, the Custodian or any of their directors, officers, employees, representatives and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05(c) and Section 8.05(d) of this Agreement;

 

(v)       to recoup any amounts deposited in the Lower-Tier Distribution Account in error; and

 

(vi)      to clear and terminate the Lower-Tier Distribution Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement.

 

(g)       The Certificate Administrator, may make withdrawals from the Upper-Tier Distribution Account for any of the following purposes:

 

(i)        to make distributions to Certificateholders (other than Holders of the Class LR Certificates) on each Distribution Date pursuant to Section 4.01 or 9.01 of this Agreement, as applicable;

 

(ii)       to recoup any amounts deposited in the Upper-Tier Distribution Account in error; and

 

 -124-

 

 

(iii)       to clear and terminate the Upper-Tier Distribution Account at the termination of this Agreement pursuant to Section 9.01 of this Agreement.

Section 3.07     Investment of Funds in the Collection Account, the REO Account, the Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts. (a)  The Master Servicer (with respect to the Collection Account and the Borrower Accounts (as defined below and subject to the second succeeding sentence)) and the Special Servicer (with respect to any REO Account) may direct any depository institution maintaining the Collection Account, the Borrower Accounts and the REO Account (each such account, for purposes of this Section 3.07, an “Investment Account”), to invest the funds in such Investment Account maintained by it in one or more Permitted Investments that bear interest or are sold at a discount, and that mature, unless payable on demand, no later than the Business Day preceding the date on which such funds are required to be withdrawn from such Investment Account pursuant to this Agreement. Any investment of funds on deposit in an Investment Account by the Master Servicer or the Special Servicer shall be documented in writing and shall provide evidence that such investment is a Permitted Investment which matures at or prior to the time required hereby or is payable on demand. In the case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve Account (the “Borrower Accounts”), the Master Servicer shall act upon the written request of the Borrowers or Manager to the extent that the Master Servicer is required to do so under the terms of the Loan Documents, provided that in the absence of appropriate written instructions from the Borrowers or Manager meeting the requirements of this Section 3.07, the Master Servicer shall have no obligation to, but will be entitled to, direct the investment of funds in such accounts in Permitted Investments. All such Permitted Investments shall be held to maturity, unless payable on demand. Any investment of funds in an Investment Account shall be made in the name of the Trustee (in its capacity as such) or in the name of a nominee of the Trustee. Neither the Certificate Administrator nor the Trustee shall have any responsibility or liability with respect to the investment directions of the Master Servicer, the Special Servicer, the Borrowers or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Master Servicer shall have no responsibility or liability with respect to the investment directions of the Special Servicer, the Certificate Administrator, the Trustee, the Borrowers or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. The Special Servicer shall have no responsibility or liability with respect to the investment directions of the Master Servicer, the Certificate Administrator, the Trustee, the Borrowers or Manager or any losses resulting therefrom, whether from Permitted Investments or otherwise. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the Master Servicer (or the Special Servicer) shall:

(x)       consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and

(y)       demand payment of all amounts due thereunder promptly upon determination by the Master Servicer (or the Special Servicer) that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the related Investment Account.

 -125-

 

(b)         All income and gain realized from investment of funds deposited in any Investment Account shall be for the benefit of the Master Servicer (except with respect to the investment of funds deposited in (i) the Borrower Accounts, which shall be for the benefit of the Borrowers to the extent required under the Loan Documents or applicable law or (ii) the REO Account, which shall be for the benefit of the Special Servicer) and, if held in the Collection Account or REO Account shall be subject to withdrawal by the Master Servicer or the Special Servicer, as applicable, in accordance with Section 3.06 or Section 3.15(b) of this Agreement, as applicable. The Master Servicer, or with respect to the REO Account, the Special Servicer, shall deposit from its own funds into the Collection Account or any REO Account, as applicable, the amount of any loss incurred in respect of any such Permitted Investment immediately upon realization of such loss; provided, however, that the Master Servicer or the Special Servicer, as applicable, may reduce the amount of such payment to the extent it forgoes any investment income in such Investment Account otherwise payable to it. The Master Servicer shall also deposit from its own funds in the Borrower Account immediately upon realization of such loss the amount of any loss incurred in respect of Permitted Investments, except to the extent that amounts are invested at the direction of or for the benefit of the Borrowers under the terms of the Loan Documents or applicable law; provided that neither the Master Servicer nor the Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company has satisfied the qualifications set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) 30 days prior to such insolvency.

(c)         Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, in either case as a result of an action or inaction of the Master Servicer or the Special Servicer, as applicable, the Trustee may, and upon the request of Holders of Certificates entitled to a majority of the Voting Rights allocated to any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. In the event the Trustee takes any such action, (i) the Master Servicer, if such Permitted Investment was for the benefit of the Master Servicer or (ii) the Special Servicer, if such Permitted Investment was for the benefit of the Special Servicer, shall pay or reimburse the Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in connection therewith.

(d)         For the avoidance of doubt, the Collection Account, each REO Account, the Interest Reserve Account and the Lower-Tier Distribution Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC, and the Upper-Tier Distribution Account shall be owned by the Upper-Tier REMIC, each for federal income tax purposes.

Section 3.08        Maintenance of Insurance Policies and Errors and Omissions and Fidelity Coverage. (a)  Unless the Whole Loan is an REO Loan, the Master Servicer shall use efforts consistent with the Servicing Standard to cause the Borrowers to maintain the following insurance coverage (including identifying the extent to which the Borrowers are maintaining insurance coverage and, if the Borrowers do not maintain such coverage, the Master Servicer will itself cause such coverage to be maintained with Qualified Insurers) for the Mortgaged Properties:

 -126-

 

(x) except where the Loan Documents permit the Borrowers to rely on self-insurance provided by a tenant, a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the full replacement cost of improvements securing the Whole Loan, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause and (y) all other insurance coverage (including, but not limited to, coverage for acts of terrorism) that is required, subject to applicable law, under the Loan Documents; provided that:

(i)           the Master Servicer shall not be required to maintain any earthquake or environmental insurance policy on the Mortgaged Properties unless the Trustee has an insurable interest and such insurance policy was (x) in effect at the time of the origination of the Whole Loan, or (y) was required by the Loan Documents and is available at commercially reasonable rates, provided that the Master Servicer shall require the Borrowers to maintain such insurance in the amount, in the case of clause (x), maintained at origination, and in the case of clause (y), required by the Whole Loan to the extent such amounts are available at commercially reasonable rates and to the extent the Trustee has an insurable interest;

(ii)          if and to the extent that the Loan Document grants the lender thereunder any discretion (by way of consent, approval or otherwise) as to the insurance provider from whom the Borrowers are to obtain the requisite insurance coverage, the Master Servicer shall (to the extent consistent with the Servicing Standard) require the Borrowers to obtain the requisite insurance coverage from Qualified Insurers;

(iii)         the Master Servicer shall have no obligation beyond using its efforts consistent with the Servicing Standard to cause the Borrowers to maintain the insurance required to be maintained under the Loan Documents; provided, however, that this clause shall not limit the Master Servicer’s obligation to obtain and maintain a force-placed insurance policy, as provided herein;

(iv)         except as provided below (including under clause (vi) below), in no event shall the Master Servicer be required to cause the Borrowers to maintain, or itself obtain, insurance coverage to the extent that the failure of the Borrowers to maintain insurance coverage is an Acceptable Insurance Default (as determined by the Special Servicer);

(v)          to the extent that the Master Servicer itself is required to maintain insurance that the Borrowers do not maintain, the Master Servicer will not be required to maintain insurance other than what is available to the Master Servicer on a force-placed basis at commercially reasonable rates, and only to the extent the Trustee as lender has an insurable interest thereon; and

(vi)         any explicit terrorism insurance requirements contained in the Loan Documents shall be enforced by the Master Servicer in accordance with the Servicing Standard, unless the Special Servicer has consented to a waiver (including a waiver to permit the Master Servicer to accept insurance that does not comply with specific requirements contained in the Loan Documents) in writing of that provision in accordance

 -127-

 

with the Servicing Standard; provided that the Special Servicer shall promptly notify the Master Servicer in writing of such waiver.

The Master Servicer shall notify the Special Servicer, the Certificate Administrator and the Trustee if the Master Servicer determines in accordance with the Servicing Standard that the Borrowers have failed to maintain insurance required under the Loan Documents and such failure materially and adversely affects the interests of the Certificateholders or if the Borrowers have notified the Master Servicer in writing that the Borrowers do not intend to maintain such insurance and that the Master Servicer has determined in accordance with the Servicing Standard that such failure materially and adversely affects the interests of the Certificateholders.

Subject to Section 3.15(b) of this Agreement, if the Mortgaged Properties are an REO Property, the Special Servicer shall use efforts, consistent with the Servicing Standard, to maintain (subject to the right of the Special Servicer to direct the Master Servicer to make a Property Advance for the costs associated with coverage that the Special Servicer determines to maintain, in which case the Master Servicer shall make such Property Advance) with Qualified Insurers to the extent reasonably available at commercially reasonable rates and to the extent the Trustee has an insurable interest, (a) a fire and casualty extended coverage insurance policy, which does not provide for reduction due to depreciation, in an amount that is at least equal to the lesser of the full replacement value of the Mortgaged Properties or the outstanding principal balance of the Mortgage Loan or REO Loan (or such greater amount of coverage required by the Loan Documents (unless such amount is not available)), but, in any event, in an amount sufficient to avoid the application of any co-insurance clause, (b) a comprehensive general liability insurance policy with coverage comparable to that which would be required under prudent lending requirements and in an amount not less than $1,000,000 per occurrence, and (c) to the extent consistent with the Servicing Standard, a business interruption or rental loss insurance covering revenues or rents for a period of at least 18 months; provided, however, that the Special Servicer shall not be required in any event to maintain or obtain insurance coverage described in this paragraph beyond what is reasonably available at a commercially reasonable rate and consistent with the Servicing Standard.

All such insurance policies maintained as described above shall contain (if they insure against loss to property) a “standard” mortgagee clause, with loss payable to the Master Servicer (on behalf of the Trustee on behalf of Certificateholders and the Companion Loan Holders), or shall name the Trustee as the insured, with loss payable to the Special Servicer on behalf of the Trustee (on behalf of Certificateholders and the Companion Loan Holders) (in the case of insurance maintained if the Mortgaged Properties are an REO Property). Any amounts collected by the Master Servicer or Special Servicer, as applicable, under any such policies (other than amounts to be applied to the restoration or repair of any Mortgaged Property or REO Property or amounts to be released to the Borrowers, in each case in accordance with the Servicing Standard) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.06 of this Agreement, in the case of amounts received in respect of the Whole Loan, or in the REO Account of the Special Servicer, subject to withdrawal pursuant to Section 3.15 of this Agreement, in the case of amounts received in respect of the REO Property. Any cost incurred by the Master Servicer or the Special Servicer in maintaining any such insurance shall not, for purposes hereof, including calculating monthly distributions to Certificateholders or the Companion Loan Holders, be added to the Stated Principal Balance of the Whole Loan,

 -128-

 

notwithstanding that the terms of the Loan Agreement may so permit; provided, however, that this sentence shall not limit the rights of the Master Servicer or Special Servicer on behalf of the Trust Fund to enforce any obligations of the Borrowers under the Whole Loan. Any costs incurred by the Master Servicer in maintaining insurance policies in respect of the Whole Loan or a Specially Serviced Loan (other than the REO Property) (i) if the Borrowers default on their obligation to do so, shall be advanced by the Master Servicer as a Property Advance and will be charged to the Borrowers and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the Stated Principal Balance of the Whole Loan, notwithstanding that the terms of the Whole Loan may so permit. Any cost incurred by the Special Servicer in maintaining any such insurance policies with respect to the REO Property shall be an expense of the Trust Fund (allocated in accordance with the allocation provisions of the Co-Lender Agreement) payable out of the REO Account or, if the amount on deposit therein is insufficient therefor, advanced by the Master Servicer as a Property Advance (or paid from the Collection Account if the Master Servicer determines such Advance would be a Nonrecoverable Advance, subject to Section 3.21(d) of this Agreement).

(b)               If either:

(x) the Master Servicer or Special Servicer obtains and maintains, or causes to be obtained and maintained, a blanket policy or master force-placed policy insuring against hazard losses on all of the Mortgaged Properties or REO Property, as applicable, then, to the extent such policy (i) is obtained from a Qualified Insurer, and (ii) provides protection equivalent to the individual policies otherwise required, or

(y) the Master Servicer or Special Servicer has long-term unsecured debt obligations or deposit accounts that are rated not lower than “A-” by Fitch and “A(low)” by DBRS Morningstar, and the Master Servicer or Special Servicer self-insures for its obligation to maintain the individual policies otherwise required,

then the Master Servicer or the Special Servicer, as the case may be, shall conclusively be deemed to have satisfied its obligation to cause hazard insurance to be maintained on the Mortgaged Properties or REO Property, as applicable.

Such a blanket or master force-placed policy may contain a deductible clause (not in excess of a customary amount), in which case the Master Servicer or the Special Servicer, as the case may be, that maintains such policy shall, if there shall not have been maintained on the Mortgaged Properties or REO Property thereunder a hazard insurance policy complying with the requirements of Section 3.08(a) of this Agreement, and there shall have been one or more losses that would have been covered by such an individual policy, promptly deposit into the Collection Account, from its own funds, the amount not otherwise payable under the blanket or master force-placed policy in connection with such loss or losses because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the Whole Loan (or, in the absence of any such deductible limitation, the deductible limitation for an individual policy which is consistent with the Servicing Standard). The Master Servicer and Special Servicer, as the case may be, shall prepare and present, on behalf of itself, the Trustee and the Certificateholders and the Companion Loan Holders claims under any such blanket or master force-placed policy maintained by it in a timely fashion in accordance with the terms of such policy. If the Master

 -129-

 

Servicer or Special Servicer, as applicable, causes the Mortgaged Properties or REO Property to be covered by such “force-placed” insurance policy, the incremental costs of such insurance applicable to the Mortgaged Properties or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not the Mortgaged Properties or REO Property are covered thereby) shall be paid as a Property Advance.

(c)           If the Whole Loan is subject to an Environmental Insurance Policy, and the Master Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, the Master Servicer shall notify the Special Servicer to such effect and the Master Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder. If the Whole Loan becomes a Specially Serviced Loan or an REO Loan and is subject to an Environmental Insurance Policy, if the Special Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, such Special Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust, on behalf of the Certificateholders and the Companion Loan Holders, is entitled thereunder. Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any claim under an Environmental Insurance Policy described above (whether by the Master Servicer or Special Servicer) shall be paid by, and reimbursable to, the Master Servicer as a Property Advance.

(d)           The Master Servicer and Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which the Whole Loan is a Specially Serviced Loan or an REO Loan) keep in force with a Qualified Insurer, a fidelity bond in such form and amount as are consistent with the Servicing Standard. The Master Servicer or Special Servicer, as applicable, shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Master Servicer or Special Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten days’ prior written notice to the Trustee. So long as the long-term unsecured debt obligations or deposit accounts of the Master Servicer (or its corporate parent if such insurance is guaranteed by its parent) or the Special Servicer (or its corporate parent if such insurance is guaranteed by its parent), as applicable, are rated not lower than “A-” by Fitch and at least its equivalent by DBRS Morningstar (if then rated by DBRS Morningstar), the Master Servicer or the Special Servicer, as applicable, may self-insure with respect to the fidelity bond coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

The Master Servicer and Special Servicer, as applicable, shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement during which the Whole Loan is a Specially Serviced Loan or an REO Loan) also keep in force with a Qualified Insurer a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with their servicing obligations hereunder, which policy or policies shall be in such form and amount as are consistent with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable, shall be

 -130-

 

deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Master Servicer or Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten days’ prior written notice to the Trustee. So long as the long-term unsecured debt obligations or deposit accounts of the Master Servicer (or its corporate parent if such insurance is guaranteed by its parent) or the Special Servicer (or its corporate parent), as applicable, are rated not lower than “A-” by Fitch and “A(low)” by DBRS Morningstar (if then rated by DBRS Morningstar), the Master Servicer or the Special Servicer, as applicable, may self-insure with respect to the errors and omissions coverage required as described above, in which case it shall not be required to maintain an insurance policy with respect to such coverage.

(e)           The Operating Advisor shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement an “errors and omissions” insurance policy, with a Qualified Insurer, covering losses that may be sustained as a result of an officer’s or employee’s errors or omissions.

Section 3.09     Enforcement of Due-on-Sale Clauses; Assumption Agreements; Defeasance Provisions. (a)  If the Whole Loan contains a provision in the nature of a “due-on-sale” clause (including, without limitation, sales or transfers of the Mortgaged Properties (in full or part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in a Borrower or its owners), which by its terms:

(i)            provides that the Whole Loan will (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the Mortgaged Properties (including, without limitation, the sale, transfer, pledge or hypothecation of direct or indirect interests in a Borrower or its owners),

(ii)           provides that the Whole Loan may not be assumed without the consent of the related mortgagee in connection with any such sale or other transfer, or

(iii)          provides that the Whole Loan may be assumed or transferred without the consent of the mortgagee, provided certain conditions set forth in the Loan Documents are satisfied,

then, for so long as the Trust Loan is included in the Trust Fund, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan), as applicable, on behalf of the Trust Fund, shall be required to enforce any such due-on-sale clauses and in connection therewith neither shall be required to (x) accelerate payments thereon or (y) withhold its consent to such an assumption if (1) such provision is not enforceable under applicable law or if the Master Servicer (with respect to the Whole Loan if it is a Performing Loan, and with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), as applicable, determines, that the enforcement of such provision is reasonably likely to result in meritorious legal action by a Borrower or (2) the Master Servicer (with the consent of the Special Servicer) or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that granting such

 -131-

 

consent would be likely to result in a greater recovery, on a present value basis (discounting at the related Calculation Rate), than would enforcement of such clause. If the Master Servicer (with respect to the Whole Loan if it is a Performing Loan and with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), as applicable, determines that (A) granting such consent would be likely to result in a greater recovery, (B) such provision is not legally enforceable, or (C) that the conditions described in clause (a)(iii) above relating to the assumption or transfer of the Whole Loan have been satisfied, the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan) is authorized to take or enter into an assumption agreement from or with the Person to whom the Mortgaged Properties have been or are about to be conveyed, and to release the original Borrowers from liability upon the Whole Loan and substitute the new borrower as obligor thereon; provided that (a) the credit status of the prospective new borrower is in compliance with the Master Servicer’s or the Special Servicer’s servicing standards and criteria and the terms of the Mortgage and consistent with the Servicing Standard and (b) the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan), as applicable, has received a No Downgrade Confirmation from each of the Rating Agencies (or has been deemed to satisfy such requirement). In addition, with respect to the Companion Loan, neither the Master Servicer nor the Special Servicer shall waive any rights under a due on sale clause unless it first obtains a No Downgrade Confirmation with respect to the Companion Loan Securities to the extent required under the related Other Securitization Trust. The Master Servicer and the Special Servicer shall be entitled to rely on the master servicer and/or the special servicer of the related Other Securitization Trust to determine whether a No Downgrade Confirmation is required with respect to any related Companion Loan under such Other Securitization Trust. In connection with each such assumption or substitution entered into by the Special Servicer, the Special Servicer shall give prior notice thereof to the Master Servicer. The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) shall notify the Trustee and the Certificate Administrator and the Master Servicer or the Special Servicer, as applicable, that any such assumption or substitution agreement has been completed by forwarding to the Custodian (with a copy to the Master Servicer, the Certificate Administrator and the Trustee, as applicable) the original copy of such agreement, which copies shall be added to the Mortgage File and shall, for all purposes, be considered a part of the Mortgage File to the same extent as all other documents and instruments constituting a part thereof. To the extent not otherwise precluded by the Loan Documents, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to a Specially Serviced Loan or an REO Loan) shall approve an assumption or substitution without requiring the Borrowers to pay any fees owed to the Rating Agencies associated with the approval of such assumption or substitution. However, in the event that the Borrowers are required but fail to pay such fees, such fees shall be an expense of the Trust Fund; provided that, with respect to the Companion Loan, the Master Servicer (if the Whole Loan is a Performing Loan) or the Special Servicer (if the Whole Loan is a Specially Serviced Mortgage Loan), shall, after receiving payment from amounts on deposit in the Collection Account, if any, (i) promptly notify the Companion Loan Holders and (ii) use efforts consistent with the Servicing Standard to exercise on behalf of the Trust Fund the rights of the Trust Fund under the Co-Lender Agreement to obtain

 -132-

 

reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holders.

(b)         If the Whole Loan contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:

(i)           provides that the Whole Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any lien or other encumbrance on the Mortgaged Properties or any direct or indirect ownership interest in any Borrower (including, unless specifically permitted, any additional mezzanine financing of any Borrower or any Mortgaged Property or any sale or transfer of preferred equity in any Borrower or its owners),

(ii)          requires the consent of the mortgagee to the creation of any such lien or other encumbrance on the Mortgaged Properties (including, without limitation, any additional mezzanine financing of any Borrower or any Mortgaged Property or any sale or transfer of preferred equity in any Borrower or its owners), or

(iii)         provides that the Mortgaged Properties may be further encumbered without the consent of the mortgagee (including, without limitation, any additional mezzanine financing of any Borrower or any Mortgaged Property or any sale or transfer of preferred equity in any Borrower or its owners), provided that certain conditions set forth in the Loan Documents are satisfied,

then, subject to the consent rights of the Directing Holder during a Subordinate Control Period, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) (with the consent of the Special Servicer) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan), on behalf of the Trust Fund, shall be required to enforce such due-on-encumbrance clauses and in connection therewith, will not be required to (i) accelerate the payments on the Whole Loan or (ii) withhold its consent to such lien or encumbrance, if the Master Servicer (with the consent of the Special Servicer) or the Special Servicer, as applicable, (x) determines, in accordance with the Servicing Standard, that such enforcement would not be in the best interests of the Certificateholders and the Companion Loan Holders, or that in the case of the circumstances described in clause (b)(iii) above, that the conditions to further encumbrance have been satisfied and (y) receives a No Downgrade Confirmation from the Rating Agencies (or has been deemed to satisfy such requirement). In addition, with respect to the Companion Loan, neither the Master Servicer nor the Special Servicer shall waive any rights under a due on encumbrance clause unless it first obtains a No Downgrade Confirmation with respect to the related Companion Loan Securities to the extent required under each related Other Securitization Trust. The Master Servicer and the Special Servicer shall be entitled to rely on the master servicer and/or the special servicer of the Other Securitization Trusts to determine whether a No Downgrade Confirmation is required with respect to the Companion Loan under the related Other Securitization Trust. To the extent not otherwise precluded by the Loan Documents, neither the Master Servicer (with respect to the Whole Loan if it is a Performing Loan and with the consent of the Special Servicer) nor the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or REO Loan) shall approve such lien or encumbrance without requiring the Borrowers to pay any fees owed to the Rating Agencies

 -133-

 

associated with the approval of such lien or encumbrance. However, in the event that the Borrowers are required but fail to pay such fees, such fees shall be an expense of the Trust Fund; provided that the Master Servicer (if the Whole Loan is a Performing Loan) or the Special Servicer (if the Whole Loan is a Specially Serviced Mortgage Loan), shall be required, after receiving payment from amounts on deposit in the Collection Account, if any, to (i) promptly notify the Companion Loan Holders and (ii) use efforts consistent with the Servicing Standard to exercise on behalf of the Trust Fund the rights of the Trust Fund under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holders.

(c)           [Reserved].

(d)           The Master Servicer and the Special Servicer, as applicable, shall each provide copies of any waivers it effects pursuant to Section 3.09(a) or (b) of this Agreement to the other party and the 17g-5 Information Provider (which shall promptly post such waivers to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) with respect to the Trust Loan.

(e)           Nothing in this Section 3.09 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of the Trust Loan, any sale or other transfer of any Mortgaged Property or the creation of any lien or other encumbrance with respect to the Mortgaged Properties.

(f)           In connection with the taking of, or the failure to take, any action pursuant to this Section 3.09, the Special Servicer shall not agree to modify, waive or amend, and no assumption or substitution agreement entered into pursuant to Section 3.09(a) of this Agreement shall contain any terms that are different from, any term of the Whole Loan or the Notes, other than pursuant to Section 3.26 hereof, as applicable.

(g)           When the Special Servicer’s consent is requested under this Section 3.09, such consent shall be deemed given 15 Business Days after receipt (unless earlier objected to) by the Special Servicer from the Master Servicer of the Master Servicer’s written analysis and recommendation with respect to such proposed action together with such other information reasonably required by the Special Servicer.

(h)           If the Whole Loan permits release of one or more Mortgaged Properties through defeasance:

(i)            subject to the consent rights and process set forth in Section 6.09 with respect to Major Decisions, the Master Servicer shall process all defeasances of the Whole Loan in accordance with the terms of the related Loan Documents, and shall be entitled to any defeasance fees paid relating thereto;

(ii)           if the Whole Loan requires that the lender purchase the required government securities, then the Master Servicer shall purchase, or shall cause the purchase of, such obligations on behalf of the Trust, at the Borrower’s expense, in accordance with the terms of the Whole Loan; provided that the Master Servicer shall not accept the amounts paid by

 -134-

 

the any Borrower to effect defeasance until acceptable government securities have been identified;

(iii)         to the extent not inconsistent with the Whole Loan, the Master Servicer shall require each related Borrower to provide an Opinion of Counsel (which shall be an expense of the Borrower) to the effect that the Trustee has a first priority perfected security interest in the defeasance collateral (including the government securities) and the assignment of the defeasance collateral is valid and enforceable;

(iv)         to the extent not inconsistent with the Whole Loan, the Master Servicer shall require a certificate at the Borrower’s expense from an Independent certified public accountant certifying to the effect that the government securities will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on the Whole Loan in compliance with the requirements of the terms of the related Loan Documents;

(v)          prior to permitting release of any Mortgaged Property through defeasance, the Master Servicer shall require an Opinion of Counsel to the effect that such release will not cause either Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding or cause a tax to be imposed on the Trust Fund under the REMIC Provisions; provided that to the extent not inconsistent with the Whole Loan, the related Borrower shall pay the cost related to the Opinion of Counsel (and shall otherwise be a Property Advance);

(vi)          no defeasance shall occur on or prior to the second anniversary of the Startup Day of the Trust REMICs or if the Companion Loan is held by a REMIC, on or prior to the second anniversary of the startup day of such REMIC;

(vii)         the Master Servicer shall, at the expense of the related Borrower (to the extent not inconsistent with the related Loan Documents), cause the U.S. government securities to be held for the benefit of the Certificateholders and the Companion Loan Holders, and apply payments of principal and interest received on the government obligations in respect of the defeased Whole Loan in accordance with the terms of the Loan Documents;

(viii)        the Master Servicer shall, in accordance with the Servicing Standard, enforce provisions in the Whole Loan requiring the Borrowers to pay all reasonable expenses associated with a defeasance;

(ix)           to the extent not inconsistent with the Whole Loan, or to the extent the Loan Documents provide the lender with discretion, the Master Servicer shall require a single purpose entity, formed solely for the purpose of owning and pledging the government securities related to the Whole Loan, to act as a successor borrower;

(x)           each Rating Agency and, to the extent required by the Other Securitization Trust, each rating agency relating to any Companion Loan Securities must provide a No Downgrade Confirmation; and

 -135-

 

(xi)           to the extent not required or permitted to be placed in a separate account, the Master Servicer shall deposit all payments received by it from defeasance collateral substituted for any Mortgaged Property into the Collection Account and treat any such payments as payments made on the Whole Loan in advance of its Due Date in accordance with clause (a) of the definition of Principal Distribution Amount, and not as a prepayment of the Whole Loan. Notwithstanding anything herein to the contrary, in no event shall the Master Servicer permit such amounts to be maintained in the Collection Account for a period in excess of 365 days.

(i)            Neither the Master Servicer nor the Special Servicer shall permit a “Permitted Assumption” (as defined under the Loan Agreement) pursuant to the terms of the Loan Agreement unless is has first obtained a No Downgrade Confirmation with respect to such assumption and relating to the Certificates.

Section 3.10     Appraisals; Realization upon Defaulted Mortgage Loan. (a) Contemporaneously with the earliest of (i) the effective date of any (A) modification of the Maturity Date or extended Maturity Date, the Whole Loan Rate, principal balance or amortization terms of the Whole Loan, (B) extension of the Maturity Date or extended Maturity Date of the Whole Loan as described below in Section 3.26 of this Agreement, or (C) consent to the release of any Mortgaged Property from the lien of the Mortgage other than pursuant to the terms of the Whole Loan, (ii) the occurrence of an Appraisal Reduction Event and (iii) a default in the payment of a Balloon Payment for which an extension is not granted, the Special Servicer shall use commercially reasonable efforts consistent with the Servicing Standard to obtain an Updated Appraisal (or a letter update for an existing appraisal which is less than two years old) within 60 days of such event, the cost of which shall constitute a Property Advance; provided, however, that the Special Servicer shall not be required to obtain an Updated Appraisal pursuant to clauses (i) through (iii) above with respect to the Mortgaged Properties for which there exists an Appraisal or Updated Appraisal which is less than nine months old unless the Special Servicer has actual knowledge of a material adverse change in circumstances that, consistent with the Servicing Standard, would call into question the validity of such Appraisal or Updated Appraisal. For so long as the Whole Loan is a Specially Serviced Loan, the Special Servicer shall obtain letter updates to an Updated Appraisal every nine months. The Master Servicer shall use all Updated Appraisals obtained by the Special Servicer to calculate any Appraisal Reduction Amount. Prior to the Special Servicer granting extensions beyond one year or any subsequent extension after granting a one year extension with respect to the Whole Loan, the Master Servicer shall recalculate any Appraisal Reduction Amount based on an Updated Appraisal. The Special Servicer shall obtain letter updates, every nine months, to an Updated Appraisal for so long as an Appraisal Reduction Event exists with respect to the Whole Loan and the Special Servicer shall recalculate the Appraisal Reduction Amount based on such Updated Appraisal. In addition, upon receipt of each Updated Appraisal, the Special Servicer shall re-compute the Appraisal Reduction Amount which shall be adjusted accordingly. If the Appraisal Reduction Amount is reduced as a result of any such adjustment then (a) each Class of Certificates that has been notionally reduced as a result of Appraisal Reduction Amounts shall have its related Certificate Balance notionally restored to the extent required by such adjustment, (b) the Special Servicer shall redetermine whether a Subordinate Control Period or a Subordinate Consultation Period is then in effect and which Class of Certificates is the then-Controlling Class, and (c) the Special Servicer shall notify the Master Servicer, the Operating Advisor and the Certificate Administrator of the amount of such

 -136-

 

adjustment. The aggregate Appraisal Reduction Amount allocable to the Trust Loan for any Distribution Date shall be applied by the Certificate Administrator to notionally reduce the Certificate Balances of the following Classes of Certificates in the following order of priority: first, to the Class HRR Certificates; second, to the Class D Certificates; third, to the Class C Certificates; fourth, to the Class B Certificates; and finally, to the Class A Certificates (provided in each case that no Certificate Balance in respect of any such Class may be notionally reduced below zero). The Special Servicer shall send all such letter updates and Updated Appraisals to the Master Servicer, the Trustee, the Certificate Administrator, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), the Operating Advisor and the 17g-5 Information Provider (who shall promptly post such materials to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement). During any Subordinate Control Period and any Subordinate Consultation Period, within 15 days after the occurrence of an Appraisal Reduction Event, the Special Servicer shall notify the Directing Holder and the Operating Advisor of the occurrence of such Appraisal Reduction Event. The Special Servicer shall send all such letter updates and Updated Appraisals to the Master Servicer, the Trustee, the Operating Advisor, the Certificate Administrator and the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

The Special Servicer shall monitor the Whole Loan so long as it is a Specially Serviced Loan, evaluate whether the causes of the default can be corrected over a reasonable period without significant impairment of the value of the Mortgaged Properties, initiate corrective action (with notification to and the consent of the Directing Holder during any Subordinate Control Period and upon consultation with the Directing Holder during any Subordinate Consultation Period) in cooperation with the Borrowers if, in the Special Servicer’s judgment a cure is likely, and take such other actions (including without limitation, negotiating and accepting a discounted payoff of the Whole Loan) as are consistent with the Servicing Standard. If, in the Special Servicer’s judgment, such corrective action has been unsuccessful, no satisfactory arrangement can be made for collection of delinquent payments, and the Specially Serviced Loan has not been released from the Trust Fund pursuant to any provision hereof, and except as otherwise specifically provided in Section 3.09(a) and (b) of this Agreement, the Special Servicer may, to the extent consistent with the Asset Status Report and with the Servicing Standard, accelerate the Specially Serviced Loan and commence a foreclosure or other acquisition with respect to the Mortgaged Properties; provided that the Special Servicer determines that such acceleration and foreclosure are more likely to produce a greater recovery to Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender) on a present value basis (discounting at the related Calculation Rate) than would a waiver of such default or an extension or modification in accordance with the provisions of Section 3.26 hereof. The Master Servicer shall pay the costs and expenses in any such proceedings as a Property Advance unless the Master Servicer or the Special Servicer, as applicable, determines, in its good faith judgment, that such Property Advance would constitute a Nonrecoverable Advance; provided, however, that if such Property Advance would constitute a Nonrecoverable Advance but the Special Servicer determines (with the Master Servicer permitted to conclusively rely upon any such determination) that such payment would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender) the Special Servicer shall direct the Master Servicer to make such payment from the Collection Account, which

 -137-

 

payment shall be an Additional Trust Fund Expense. The Trustee shall be entitled to conclusively rely upon any determination of the Master Servicer or Special Servicer that a Property Advance, if made, would constitute a Nonrecoverable Advance. If the Master Servicer does not make such Property Advance in violation of the second preceding sentence, the Trustee shall make such Property Advance, unless the Trustee determines that such Property Advance would be a Nonrecoverable Advance. The Master Servicer and the Trustee, as applicable, shall be entitled to reimbursement of Property Advances (with interest at the Advance Rate) made pursuant to this paragraph to the extent permitted by Section 3.06 of this Agreement.

The Special Servicer shall deliver by electronic mail (or via other means of electronic delivery reasonably acceptable to the Master Servicer and the Special Servicer) to the Master Servicer any information in the Special Servicer’s possession that is reasonably required to determine, calculate, redetermine or recalculate any Appraisal Reduction Amount or updated Appraisal Reduction Amount pursuant to the definition thereof, using reasonable best efforts to deliver such information, within four (4) Business Days following the Master Servicer’s written request therefor (which request shall be made promptly, but in no event later than ten (10) Business Days after the Special Servicer’s receipt of the applicable Appraisal); provided, however, that the Master Servicer’s failure to timely make such request shall not relieve the Special Servicer of its obligation to provide such information to the Master Servicer in the manner and timing set forth in this sentence; provided, further, that it shall not be a Master Servicer Termination Event if the Master Servicer fails to satisfy its obligation to determine, calculate, redetermine or recalculate an Appraisal Reduction Amount within the time periods set forth in this Agreement to the extent such failure is due to or caused by the Special Servicer’s failure to deliver the information reasonably required to make such determination, calculation, redetermination or recalculation within the time periods set forth in this Agreement. The Special Servicer shall not calculate Appraisal Reduction Amounts.

(b)         If the Special Servicer elects to proceed with a non-judicial foreclosure in accordance with the laws of the state where the Mortgaged Properties are located, the Special Servicer shall not be required to pursue a deficiency judgment against the Borrowers or any other liable party if (i) the laws of the state do not permit such a deficiency judgment after a non-judicial foreclosure or (ii) if the Special Servicer determines, in its best judgment, that the likely recovery if a deficiency judgment is obtained will not be sufficient to warrant the cost, time, expense and/or exposure of pursuing the deficiency judgment and such determination is evidenced by an Officer’s Certificate delivered to the Trustee and the Certificate Administrator.

(c)         Prior to any foreclosure or by transfer-in-lieu (or deed-in-lieu) of foreclosure, with respect to the Mortgaged Properties, the Special Servicer shall consider all information in its possession or provided by the Master Servicer from the Borrowers or of which the Special Servicer otherwise has actual knowledge with respect to any environmental matters with respect to the Mortgaged Properties, and based on such information shall determine in accordance with Servicing Standard if any independent site assessments of the Mortgaged Properties are advisable. The Special Servicer, in the case of any foreclosure with respect to the Mortgaged Properties will, prior to acquiring the Property consider the risks associated with the foreclosure and only take action in accordance with its established environmental review procedures and in any event in accordance with the Servicing Standard. The Special Servicer shall deliver a copy of any environmental assessment report to the 17g-5 Information Provider in

 -138-

 

electronic format and the 17g-5 Information Provider shall make such report available to the Rating Agencies and other NRSROs pursuant to Section 3.14(d).

If the Special Servicer has so determined based on satisfaction of the criteria in this Section 3.12(d) that it would be in the best economic interest of the Trust Fund (as determined in accordance with Servicing Standard) to institute a foreclosure or take any other actions described in the immediately preceding paragraph, pursuant to the terms hereof, the Special Servicer shall take such proposed action subject to the rights of the Directing Holder to consent to and/or consult in respect of such action, as applicable. The Special Servicer shall not foreclose upon or otherwise cause the Trust to acquire ownership of any Collateral (other than the Mortgaged Properties) on behalf of the Trust REMIC unless it receives an Opinion of Counsel (the cost of which shall be paid by the Master Servicer as an Administrative Advance unless the Master Servicer determines that such Administrative Advance would constitute a Nonrecoverable Advance) to the effect that such acquisition will not cause the imposition of a tax on the Trust REMIC (other than a tax on “net income from foreclosure property” under Code Section 860G(c)) under the REMIC Provisions or cause the Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding.

The Special Servicer shall direct the Master Servicer to, and the Master Servicer shall, advance the cost of any such compliance, containment, clean up or remediation as an Administrative Advance unless the Servicer determines that such Advance would constitute a Nonrecoverable Advance.

(d)         In the event that title to the Mortgaged Properties is acquired in foreclosure or by deed-in-lieu of foreclosure, the deed or certificate of sale shall be issued to the Trustee, or to its nominee (which shall not include the Special Servicer) or a separate Trustee or co-Trustee on behalf of the Trustee as Holder of the Lower-Tier Regular Interests and the Certificateholders and the Companion Loan Holder. Notwithstanding any such acquisition of title and cancellation or partial cancellation of the Whole Loan, the Whole shall (except for purposes of Section 9.01 of this Agreement) be considered to be an REO Loan until such time as the REO Property shall be sold by the Trust Fund and shall be reduced only by collections net of expenses. Consistent with the foregoing, for purposes of all calculations hereunder, so long as the Whole shall be considered to be an outstanding Whole, as applicable:

(i)           it shall be assumed that, notwithstanding that the indebtedness evidenced by the Notes shall have been discharged or partially discharged, the Notes and, for purposes of determining the Stated Principal Balance thereof, the related amortization schedule, if any, in effect at the time of any such acquisition of title shall remain in effect; and

(ii)          subject to Section 1.02(f) of this Agreement, Net REO Proceeds received in any month shall be applied to amounts that would have been payable under the Notes in accordance with the terms of the Notes and the Co-Lender Agreement. In the absence of such terms, Net REO Proceeds shall, subject to Section 1.02(f) of this Agreement, be deemed to have been received first, in payment of the accrued interest that remained unpaid on the date that the REO Property was acquired by the Trust Fund; second, in respect of the delinquent principal installments that remained unpaid on such date; and thereafter, Net REO Proceeds received in any month shall be applied to the payment of installments of

 -139-

 

principal, if any, and accrued interest on the Whole Loan deemed to be due and payable in accordance with the terms of the Notes and such amortization schedule, if any, until such principal has been paid in full and then to other amounts due under the Whole Loan. If such Net REO Proceeds exceed the Monthly Payment then payable, the excess shall be treated as a Principal Prepayment received in respect of the Whole Loan.

(e)           Notwithstanding any provision herein to the contrary, the Special Servicer shall not acquire for the benefit of the Trust Fund and the Companion Loan Holders any personal property pursuant to this Section 3.10 unless either:

(i)            such personal property is incident to real property (within the meaning of Section 856(e)(l) of the Code) so acquired by the Special Servicer for the benefit of the Trust Fund and the Companion Loan Holders; or

(ii)           the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Lower-Tier REMIC) to the effect that the holding of such personal property by the Lower-Tier REMIC will not cause an Adverse REMIC Event at any time that any Certificate is outstanding.

(f)           Notwithstanding any provision to the contrary in this Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain title to any direct or indirect partnership interest or other equity interest in the Borrowers pledged pursuant to any pledge agreement unless the Special Servicer shall have requested and received an Opinion of Counsel (which opinion shall be an expense of the Trust Fund and in accordance with the allocation provisions of the Co-Lender Agreement) to the effect that the holding of such partnership interest or other equity interest by the Trust Fund will not cause Adverse REMIC Event at any time that any Certificate is outstanding.

(g)           Notwithstanding any provision to the contrary contained in this Agreement, the Special Servicer shall not cause the Trustee, on behalf of the Trust Fund, to obtain title to the Mortgaged Properties as a result of or in lieu of foreclosure or otherwise, to obtain title to any direct or indirect partnership interest in the Borrowers pledged pursuant to a pledge agreement and thereby be the beneficial owner of the Mortgaged Properties, to have a receiver of rents appointed with respect to the Mortgaged Properties, and shall not otherwise cause the Trustee to acquire possession of, or take any other action with respect to, the Mortgaged Properties if, as a result of any such action, the Trustee, for the benefit of the Trust Fund or the Certificateholders or the Companion Loan Holders would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of the Mortgaged Properties within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time, or any comparable law, unless the Special Servicer has determined in accordance with the Servicing Standard, based on an updated environmental assessment prepared by an Independent Person who regularly conducts environmental audits (which report shall be an expense of the Trust), that:

(i)           each Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Certificateholders and the Companion Loan Holders, as a

 -140-

 

collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance therewith, and

(ii)        there are no circumstances present at any Mortgaged Property relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such Hazardous Materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the Certificateholders and the Companion Loan Holders, as a collective whole as if such Certificateholder and the Companion Loan Holders constituted a single lender, to take such actions with respect to such Mortgaged Property.

In the event that the environmental assessment first obtained by the Special Servicer with respect to any Mortgaged Property indicates that such Mortgaged Property may not be in compliance with applicable environmental laws or that Hazardous Materials may be present but does not definitively establish such fact, the Special Servicer shall cause such further environmental tests to be conducted by an Independent Person who regularly conducts such tests as the Special Servicer shall deem prudent to protect the interests of Certificateholders and the Companion Loan Holders. Any such tests shall be deemed part of the environmental assessment obtained by the Special Servicer for purposes of this Section 3.10.

(h)         The environmental assessment contemplated by Section 3.10(g) of this Agreement shall be prepared within three months (or as soon thereafter as practicable) of the determination that such assessment is required by any Independent Person who regularly conducts environmental audits for purchasers of commercial property where the Mortgaged Properties are located, as determined by the Special Servicer in a manner consistent with the Servicing Standard. Upon the written direction of the Special Servicer and delivery by the Special Servicer to the Master Servicer of pertinent back-up information the Master Servicer shall advance the cost of preparation of such environmental assessments as a Property Advance unless the Master Servicer determines, in its good faith judgment, that such Property Advance would be a Nonrecoverable Advance. The Master Servicer shall be entitled to reimbursement of Property Advances (with interest at the Advance Rate) made pursuant to the preceding sentence to the extent permitted by Section 3.06. The Special Servicer shall provide written reports and a copy of any environmental assessments in electronic format to the Master Servicer, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), monthly regarding any actions taken by the Special Servicer with respect to the Mortgaged Properties securing a Defaulted Mortgage Loan as to which the environmental testing contemplated by Section 3.10(g) of this Agreement has revealed that either of the conditions set forth in clause (i) and (ii) of the first sentence thereof has not been satisfied, in each case until the earlier to occur of (i) satisfaction of both such conditions, (ii) repurchase of the Trust Loan by the Trust Loan Sellers or (iii) release of the lien of the Mortgage on the Mortgaged Properties.

(i)          If the Special Servicer determines pursuant to Section 3.10(g)(i) that any Mortgaged Property is not in compliance with applicable environmental laws but that it is in the

 -141-

 

best economic interest of the Certificateholders and the Companion Loan Holders, as a collective whole as if the Certificateholders and the Companion Loan Holders constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance therewith, or if the Special Servicer determines pursuant to Section 3.10(g)(ii) that the circumstances referred to therein relating to Hazardous Materials are present but that it is in the best economic interest of the Certificateholders and the Companion Loan Holders, as a collective whole as if the Certificateholders and the Companion Loan Holders constituted a single lender, to take such action with respect to the containment, clean-up or remediation of Hazardous Materials affecting such Mortgaged Property as is required by law or regulation, the Special Servicer shall take such action (subject to the rights of the Directing Holder to consent to and/or consult in respect of such action and/or the Operating Advisor to consult in respect of such action) as it deems to be in the best economic interest of the Certificateholders and the Companion Loan Holders, as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender, but only if the Certificate Administrator has mailed notice to the Holders of the Principal Balance Certificates and the Companion Loan Holders of such proposed action, which notice shall be prepared by the Special Servicer, and only if the Certificate Administrator does not receive, within 30 days of such notification, instructions from the Holders of the Principal Balance Certificates entitled to a majority of the Voting Rights and the Companion Loan Holders directing the Special Servicer not to take such action. Notwithstanding the foregoing, if the Special Servicer reasonably determines that it is likely that within such 30-day period irreparable environmental harm to any Mortgaged Property would result from the presence of such Hazardous Materials and provides a prior written statement to the Trustee and the Certificate Administrator setting forth the basis for such determination, then the Special Servicer may take or cause to be taken such action to remedy such condition as may be consistent with the Servicing Standard. None of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall be obligated to take any action or not take any action pursuant to this Section 3.10(i) at the direction of the Certificateholders and the Companion Loan Holders unless the Certificateholders and the Companion Loan Holders agree to indemnify the Trustee, the Certificate Administrator, the Master Servicer and the Special Servicer with respect to such action or inaction. The Master Servicer shall advance the cost of any such compliance, containment, clean-up or remediation as a Property Advance unless the Master Servicer determines, in its good faith judgment, that such Advance would constitute a Nonrecoverable Advance.

(j)            The Special Servicer shall notify the Master Servicer if the Mortgaged Properties are abandoned or foreclosed and requires reporting to the IRS and shall provide the Master Servicer with all information regarding forgiveness of indebtedness and required to be reported with respect to the Whole Loan if it is abandoned or foreclosed and the Master Servicer shall report to the IRS and the Borrowers, in the manner required by applicable law, such information and the Master Servicer shall report, via Form 1099C or 1099A, all forgiveness of indebtedness, abandonment or foreclosure to the extent such information has been provided to the Master Servicer by the Special Servicer. The Master Servicer shall deliver a copy of any such report to the Trustee and the Certificate Administrator.

(k)           The costs of any Updated Appraisal obtained pursuant to this Section 3.10 shall be paid by the Master Servicer as a Property Advance and shall be reimbursable from the Collection Account.

 -142-

 

Section 3.11     Custodian to Cooperate; Release of Mortgage File. Upon the payment in full of the Whole Loan, or the receipt by the Master Servicer of a notification that payment in full has been escrowed in a manner customary for such purposes, the Master Servicer shall immediately notify the Custodian by a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the Collection Account pursuant to Section 3.05 of this Agreement have been or will be so deposited) of a Servicing Officer and shall request delivery to it of the Mortgage File. Any expense incurred in connection with any instrument of satisfaction or deed of reconveyance that is not paid by the Borrowers shall be chargeable to the Trust Fund. The Master Servicer agrees to use reasonable efforts in accordance with the Servicing Standard to enforce any provisions in the Loan Documents that require the Borrowers to pay such amounts. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be an expense of the Trustee or the Custodian or chargeable to the Collection Account.

From time to time upon request of the Master Servicer or the Special Servicer and delivery to the Custodian of a Request for Release, the Custodian shall promptly release the Mortgage File (or any portion thereof) designated in such Request for Release to the Master Servicer or the Special Servicer, as applicable. Upon return of the foregoing to the Custodian, or in the event of a liquidation or conversion of the Whole Loan into an REO Loan, or receipt by the Custodian of a certificate of a Servicing Officer stating that the Mortgaged Properties were liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the Collection Account have been so deposited, or that the Whole Loan has become an REO Loan, the Custodian shall deliver a copy of the Request for Release to the Master Servicer or the Special Servicer, as applicable.

Upon written certification of a Servicing Officer, the Trustee shall execute and deliver to the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan) any court pleadings, requests for a trustee’s sale or other documents prepared by the Special Servicer, its agents or attorneys, necessary to the foreclosure or trustee’s sale in respect of the Mortgaged Properties or to any legal action brought to obtain judgment against the Borrowers on the Notes or Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Notes or Mortgage or otherwise available at law or in equity. Each such certification shall include a request that such pleadings or documents be executed by the Trustee and a statement as to the reason such documents or pleadings are required, that the proposed action is consistent with the Servicing Standard and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the Mortgage, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale.

Section 3.12        Servicing Fees, Trustee/Certificate Administrator Fees and Special Servicing Compensation. (a)  As compensation for its activities hereunder, the Master Servicer shall be entitled to the Servicing Fee. The Master Servicer’s rights to the Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Master Servicer’s responsibilities and obligations under this Agreement or as provided in the following paragraph with respect to the Excess Servicing Fee. In addition, the Master Servicer shall be entitled to receive, as additional Servicing Compensation, to the extent permitted by applicable law, the Loan Documents and the Co-Lender Agreement, (i) all investment income earned on

 -143-

 

amounts on deposit in the Collection Account and certain Reserve Accounts (to the extent consistent with the Loan Documents), (ii) any Net Default Interest and any other Penalty Charges collected by the Master Servicer or the Special Servicer during a Collection Period accrued on the Whole Loan if it is a Performing Loan, in each case, remaining after application thereof during such Collection Period to pay the Advance Interest Amount relating to such Performing Loan and to pay or reimburse the Trust for any unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) relating to such Performing Loan incurred during or prior to such Collection Period, and as further described in Section 3.12(d), (iii) any amounts collected for checks returned for insufficient funds (with respect to the Whole Loan if it is Performing Loan or a Specially Serviced Loan), demand fees (with respect to the Whole Loan if it is a Performing Loan) or similar items (with respect to the Whole Loan if it is a Performing Loan) (but not including Prepayment Charges) and (iv) to the extent permitted by applicable law and the Loan Documents, 100% of any Modification Fees, loan service transaction fees and consent fees with respect to (and other similar fees relating to) the Whole Loan if it is a Performing Loan where the consent of the Special Servicer is not required (50% of such fees where the consent of the Special Servicer is required), 100% of any defeasance fees, 100% of Assumption Fees and consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement with respect to the Whole Loan if it is a Performing Loan where the consent of the Special Servicer is not required (50% of such fees where the consent of the Special Servicer is required), 100% of beneficiary statement charges, demand fees or similar items (but not including Prepayment Charges) with respect to the Whole Loan if it is a Performing Loan and 100% of assumption application fees with respect to the Whole Loan if it is a Performing Loan, in each case to the extent received and not required to be deposited or retained in the Collection Account pursuant to Section 3.05 of this Agreement. For the avoidance of doubt, with respect to any fee split between the Master Servicer and the Special Servicer pursuant to the terms of Section 3.12(a) or (b) hereof, the Master Servicer and the Special Servicer shall each have the right, but not any obligation, to reduce or elect not to charge its respective percentage interest in any such fee; provided, however, that (x) neither the Master Servicer nor the Special Servicer shall have the right to reduce or elect not to charge the percentage interest of any fee due to the other and (y) to the extent either of the Master Servicer or the Special Servicer exercises its right to reduce or elect not to charge its respective percentage interest in any fee, the party that reduced or elected not to charge such fee shall not have any right to share in any portion of the other party’s fee. For the avoidance of doubt, if the Master Servicer decides not to charge any fee, the Special Servicer shall still be entitled to charge the portion of the related fee the Special Servicer would have been entitled to if the Master Servicer had charged a fee and the Master Servicer shall not be entitled to any of such fee charged by the Special Servicer. The Master Servicer shall also be entitled pursuant to, and to the extent provided in, Section 3.06(a)(viii) or 3.07(b) of this Agreement, as applicable, to withdraw from the Collection Account and to receive from any Borrower Accounts (to the extent not payable to the Borrowers under the Whole Loan or applicable law), Prepayment Interest Excess (if any and to the extent any such Prepayment Interest Excess exceeds the amount of any Prepayment Interest Shortfalls), and Net Default Interest and any interest or other income earned on deposits therein.

KeyBank National Association and any successor holder of the Excess Servicing Fee Rights that relate to the Whole Loan (and a successor REO Loan) shall be entitled, at any time, at its own expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in either case, to any Qualified Institutional Buyer or Institutional

 -144-

 

Accredited Investor (other than a Plan); provided that no such transfer, sale, pledge or other assignment shall be made unless (i) that transfer, sale, pledge or other assignment is exempt from the registration and/or qualification requirements of the Act and any applicable state securities laws and is otherwise made in accordance with the Act and such state securities laws, (ii) the prospective transferor shall have delivered to the Depositor a certificate substantially in the form attached as Exhibit P-1 hereto, and (iii) the prospective transferee shall have delivered to the Master Servicer and the Depositor a certificate substantially in the form attached as Exhibit P-2 hereto. None of the Depositor, the Trustee, the Certificate Administrator or the Certificate Registrar is obligated to register or qualify an Excess Servicing Fee Right under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee Right without registration or qualification. KeyBank National Association and each holder of an Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other assignment of such Excess Servicing Fee Right shall, and the Master Servicer hereby agrees, and each such holder of an Excess Servicing Fee Right by its acceptance of such Excess Servicing Fee Right shall be deemed to have agreed, in connection with any transfer of such Excess Servicing Fee Right effected by such Person, to indemnify the Certificateholders, the Operating Advisor, the Trust, the Depositor, the Initial Purchasers, the Certificate Administrator, the Trustee, the Master Servicer, the Certificate Registrar and the Special Servicer against any liability that may result if such transfer is not exempt from registration and/or qualification under the Act or other applicable federal and state securities laws or is not made in accordance with such federal and state laws or in accordance with the foregoing provisions of this paragraph. By its acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed to have agreed not to use or disclose such information in any manner that could result in a violation of any provision of the Act or other applicable securities laws or that would require registration of such Excess Servicing Fee Right or any Certificate pursuant to the Act. From time to time following any transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the Master Servicer with respect to the Whole Loan or successor REO Loan with respect thereto to which the Excess Servicing Fee Right relates, shall pay, out of each amount paid to the Master Servicer as Servicing Fee with respect to the Whole Loan or REO Loan, as the case may be, the related Excess Servicing Fees to the holder of such Excess Servicing Fee Right within one Business Day following the payment of such Servicing Fee to the Master Servicer, in each case in accordance with payment instructions provided by such holder in writing to the Master Servicer. The holder of an Excess Servicing Fee Right shall not have any rights under this Agreement except as set forth in the preceding sentences of this paragraph. None of the Certificate Administrator, the Certificate Registrar, the Depositor, the Operating Advisor, the Special Servicer or the Trustee shall have any obligation whatsoever regarding payment of the Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee Right.

As compensation for its activities hereunder on each Distribution Date, the Certificate Administrator shall be entitled with respect to the Trust Loan to its portion of the Trustee/Certificate Administrator Fees, which shall be payable from amounts on deposit in the Lower-Tier Distribution Account. The Certificate Administrator shall pay the Trustee the Trustee’s portion of the Trustee/Certificate Administrator Fee and the routine fees of the Certificate Registrar, the Paying Agent and the Authenticating Agent. The Certificate Administrator’s and the Trustee’s rights to the Trustee/Certificate Administrator Fee may not be transferred in whole or in part except in connection with the transfer of all of its respective responsibilities and obligations under this Agreement.

 -145-

 

If the Master Servicer resigns or is terminated as the Master Servicer, then it will be entitled to retain the related excess servicing strip, except to the extent that any portion of such excess servicing strip is needed to compensate any replacement Master Servicer for assuming the duties of the Master Servicer, as the Master Servicer under this Agreement. The initial Master Servicer will be entitled to transfer any such excess servicing strip and/or primary servicing fees that may be retained by it in connection with its resignation or termination.

Except as otherwise provided herein, the Master Servicer shall pay all of its overhead expenses incurred by it in connection with its servicing activities hereunder, including all fees of any Sub-Servicers retained by it. Except as otherwise provided herein, the Trustee and the Certificate Administrator shall each pay all expenses incurred by it in connection with its activities hereunder.

(b)           As compensation for its activities hereunder, the Special Servicer shall be entitled with respect to a Specially Serviced Loan or an REO Loan to the Special Servicing Compensation, which shall be payable from amounts on deposit in the Collection Account as set forth in Section 3.06 of this Agreement. The Special Servicer’s rights to the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer’s responsibilities and obligations under this Agreement. In addition, the Special Servicer shall be entitled to receive, as Special Servicing Compensation, to the extent permitted by applicable law and the Loan Documents, (i) any late payment charges and any Net Default Interest and any other default charges and Penalty Charges collected by the Master Servicer or the Special Servicer during a Collection Period accrued on a Specially Serviced Loan remaining after application thereof during such Collection Period (subject to the terms of the Co-Lender Agreement) to pay the Advance Interest Amount relating to such Specially Serviced Loan and any unreimbursed Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) incurred during or prior to such Collection Period on a Specially Serviced Loan (but not NSF check fees and the like, which shall be paid to the Master Servicer) as further described below in subsection (c), (ii) 50% of any Assumption Fees, consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement, Modification Fees (and other similar fees) with respect to the Whole Loan if it is a Performing Loan, when the approval from the Special Servicer is required (and excluding any Prepayment Charges), (iii) any interest or other income earned on deposits in the REO Accounts and (iv) 100% of any Assumption Fees, assumption application fees, consent fees (or similar fees) relating to the transactions referred to in Section 3.09(b) of this Agreement, Modification Fees (and other similar fees), loan service transaction fees, beneficiary statement charges, demand fees or similar items relating to a Specially Serviced Loan or REO Loan. For the avoidance of doubt, with respect to any fee split between the Master Servicer and the Special Servicer pursuant to the terms of Section 3.12(a) or (b) hereof, the Master Servicer and the Special Servicer shall each have the right, but not any obligation, to reduce or elect not to charge its respective percentage interest in any such fee; provided, however (x) neither the Master Servicer nor the Special Servicer shall have the right to reduce or elect not to charge the percentage interest of any fee due to the other and (y) to the extent either of the Master Servicer or the Special Servicer exercises its right to reduce or elect not to charge its respective percentage interest in any fee, the party that reduced or elected not to charge such fee shall not have any right to share in any portion of the other party’s fee. For the avoidance of doubt, if the Master Servicer decides not to charge any fee, the Special Servicer shall still be entitled to charge the portion of the related fee the Special Servicer would have been entitled to if the Master

 -146-

 

Servicer had charged a fee and the Master Servicer shall not be entitled to any of such fee charged by the Special Servicer.

Except as otherwise provided herein, the Special Servicer shall pay all expenses incurred by it in connection with its servicing activities hereunder, including all fees of any Sub-Servicers retained by it.

(c)           In addition, a Workout Fee will be payable to the Special Servicer with respect to the Whole Loan if it ceases to be a Specially Serviced Loan pursuant to the definition thereof. The Workout Fee will be payable out of each collection of interest and principal (including scheduled payments, prepayments, Balloon Payments and payments at maturity) received on the Whole Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee will cease to be payable if the Whole Loan again becomes a Specially Serviced Loan or if the Mortgaged Properties become an REO Property; provided that a new Workout Fee will become payable if and when the Whole Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is terminated (other than for cause) or resigns with respect to any or all of its servicing duties, it shall retain the right to receive any and all Workout Fees payable with respect to a Corrected Mortgage Loan during the period that it had responsibility for servicing such Corrected Mortgage Loan (or the Specially Serviced Loan had not yet become a Corrected Mortgage Loan because as of the time that the Special Servicer is terminated, the Borrowers have not made three (3) consecutive monthly debt service payments and subsequently, the Specially Serviced Loan becomes a Corrected Mortgage Loan) at the time of such termination or resignation (and the successor Special Servicer shall not be entitled to any portion of such Workout Fees), in each case until the Workout Fee for any such loan ceases to be payable in accordance with the preceding sentence.

A Liquidation Fee will be payable to the Special Servicer with respect to (i) the Trust Loan if repurchased by the Trust Loan Sellers after the applicable time period (including any applicable extension thereof) in Section 2.03(e) of this Agreement, (ii) a Specially Serviced Loan as to which the Special Servicer obtains a full, partial or discounted payoff from the Borrowers and (iii) except as otherwise described below, with respect to a Specially Serviced Loan or REO Property as to which the Special Servicer recovered any Liquidation Proceeds. As to the Trust Loan repurchased by the Trust Loan Sellers after the applicable time period (including any applicable extension thereof) in Section 2.03(e) of this Agreement or a Specially Serviced Loan or an REO Property, the Liquidation Fee will be payable from the related payment or proceeds. Notwithstanding anything to the contrary described above, no Liquidation Fee will be payable based on, or out of, Liquidation Proceeds to the extent set forth in the definition of “Liquidation Fee” herein. With respect to any future mezzanine debt, to the extent not prohibited by the Loan Documents, the Master Servicer or Special Servicer, as applicable, shall require that the related mezzanine intercreditor agreement provide that in the event of a purchase of the Whole Loan by the related mezzanine lender after 90 days following the first time that such holder’s option to purchase the Whole Loan becomes exercisable (provided, however, that even if the purchase occurs before such expiration the Liquidation Fee will be payable to the extent paid by, and collected from, the related borrower or the mezzanine lender), such mezzanine lender shall be required to pay a Liquidation Fee equal to the amount that the Special Servicer would otherwise be entitled to under this Agreement with respect to a liquidation of the Whole Loan (provided, however, that such Liquidation Fee shall in all circumstances be payable by the related mezzanine

 -147-

 

lender and shall not, under any circumstances, be payable out of the Trust unless the Master Servicer fails to require the related mezzanine intercreditor agreement to require the mezzanine lender to pay such amounts in breach of its obligation to do so under this paragraph). If, however, Liquidation Proceeds are received with respect to a Specially Serviced Loan as to which the Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable based on and out of the portion of such Liquidation Proceeds that constitute principal and/or interest. Notwithstanding anything herein to the contrary, the Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to Liquidation Proceeds received on the Whole Loan or a Specially Serviced Loan. In the event that (i) the Special Servicer resigns or has been terminated, and (ii) prior or subsequent to such resignation or termination, either (A) a Specially Serviced Loan was liquidated or modified pursuant to an action plan submitted by the initial Special Servicer or the Special Servicer has determined to grant a forbearance, or (B) a Specially Serviced Loan being monitored by the Special Servicer subsequently became a Corrected Mortgage Loan, then in either such event the Special Servicer (and not the successor special servicer) shall be paid the related Workout Fee or Liquidation Fee, as applicable.

The Special Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts, other than management fees in respect of the REO Property, due and owing to any of its sub servicers, any amounts due and owing to any of its Affiliates, and the premiums for any blanket insurance policy obtained by it insuring against hazard losses pursuant to Section 3.08 of this Agreement, except to the extent such premiums are reimbursable pursuant to Section 3.08 of this Agreement), if and to the extent such expenses are not expressly payable directly out of the Collection Account or the REO Account or as a Property Advance, and the Special Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

The Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Borrower, any Borrower Related Party, any Manager, any guarantor or indemnitor in respect of the Whole Loan and any purchaser of the Whole Loan or REO Property) in connection with the disposition, workout or foreclosure of the Whole Loan, the management or disposition of the REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.12; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees; provided, further, that any compensation or other remuneration that the Master Servicer is permitted to receive or retain pursuant to this Agreement in connection with its duties in such capacity as the Master Servicer or the Certificate Administrator in connection with its duties in such capacity as the Certificate Administrator under this Agreement will not be Disclosable Special Servicer Fees.

(d)           [Reserved].

(e)           In determining the compensation of the Master Servicer or Special Servicer, as applicable, with respect to Penalty Charges, on any Distribution Date, the aggregate Penalty

 -148-

 

Charges collected in respect of the Whole Loan during the related Collection Period shall be applied (as between Default Interest and late payment charges, in the priority set forth in the definition of “Advance Interest Amount”) to reimburse (i) the Master Servicer or the Trustee for interest on Advances at the Advance Rate with respect to the Trust Loan or Whole Loan that accrued in the period that such Penalty Charges were collected and advance interest to any Companion Loan Service Provider for any debt service advance made by such party with respect to the related Companion Loan that accrued in the period that such Penalty Charges were collected, (ii) the Trust Fund for all interest on Advances with respect to the Trust Loan or Whole Loan previously paid to the Master Servicer, the Trustee or to any Companion Loan Service Provider pursuant to Section 3.06(a)(vi) of this Agreement and (iii) the Trust Fund for any Additional Trust Fund Expenses (including Special Servicing Fees, Workout Fees and Liquidation Fees) with respect to the Trust Loan or the Whole Loan paid during or prior to the Collection Period that such Penalty Charges were collected and not previously paid out of Penalty Charges, and any Penalty Charges remaining thereafter shall be distributed pro rata to the Master Servicer and the Special Servicer based upon the amount of Penalty Charges the Master Servicer or the Special Servicer would otherwise have been entitled to receive during such period with respect to the Whole Loan without any such application.

(f)           The Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee shall be entitled to reimbursement from the Collection Account in accordance with Section 3.06 for the costs and expenses incurred by them in the performance of their respective duties under this Agreement which are “unanticipated expenses incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and not by way of limitation, environmental assessments, Updated Appraisals and appraisals in connection with foreclosure, the fees and expenses of any administrative or judicial proceeding and expenses expressly identified as reimbursable in Section 3.06(a)(xv) of this Agreement. All such costs and expenses shall be treated as costs and expenses of the Lower-Tier REMIC and the Companion Loan, if applicable.

(g)           No provision of this Agreement or of the Certificates shall require the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder or thereunder, or in the exercise of any of their rights or powers, if, in the good faith business judgment of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, repayment of such funds would not be ultimately recoverable from late payments, Net Insurance Proceeds, Net Liquidation Proceeds, Net Condemnation Proceeds and other collections on or in respect of the Trust Loan or Whole Loan, as applicable, or from adequate indemnity from other assets comprising the Trust Fund against such risk or liability.

If the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee receives a request or inquiry from any Borrower, any Certificateholder or any other Person the response to which would, in the Master Servicer’s, the Special Servicer’s, the Operating Advisor’s, the Certificate Administrator’s or the Trustee’s good faith business judgment require the assistance of Independent legal counsel or other consultant to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, the cost of which would not be an expense of the Trust Fund or the Companion Loan

 -149-

 

Holders hereunder, then the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, shall not be required to take any action in response to such request or inquiry unless such Borrower, such Certificateholder, or such other Person, as applicable, makes arrangements for the payment of the Master Servicer’s, the Special Servicer’s, the Operating Advisor’s, the Certificate Administrator’s or the Trustee’s expenses associated with such counsel (including, without limitation, posting an advance payment for such expenses) satisfactory to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, in its sole discretion. Unless such arrangements have been made, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee, as the case may be, shall have no liability to any Person for the failure to respond to such request or inquiry.

Section 3.13     Reports to the Certificate Administrator; Collection Account Statements. (a)  The Master Servicer shall deliver to the Certificate Administrator no later than 3:00 p.m. (New York City Time) one Business Day prior to the Servicer Remittance Date prior to each Distribution Date, the CREFC^® Loan Periodic Update File and the CREFC^® Appraisal Reduction Template (or such other report mutually agreed to between the Master Servicer and the Certificate Administrator), if available, and to the extent required pursuant to Section 4.08 of this Agreement, with respect to the Trust Loan for the related Distribution Date (which shall include, without limitation, the amount of Available Funds allocable to all of the Trust Loan) including information therein that states the anticipated P&I Advances for the related Distribution Date and any CREFC^® License Fee Rate. The Master Servicer’s responsibilities under this Section 3.13(a) with respect to REO Loan shall be subject to the satisfaction of the Special Servicer’s obligations under Section 3.23 of this Agreement. In the event of the receipt by the Master Servicer of a Principal Prepayment or other Unscheduled Payment after a Determination Date but prior to the related Servicer Remittance Date, the Master Servicer shall be permitted to deliver to the Certificate Administrator a revised CREFC^® Loan Periodic Update File by no later than 10:00 a.m. (New York Time) on the Servicer Remittance Date. In connection with the delivery of any revised report, the Master Servicer shall not be required to pay the Certificate Administrator or any other party any “re-state fee” or any other fee for delivery of such revised report and shall not be required to bear any expenses or penalty charges in connection with the processing of such Principal Prepayment or Unscheduled Payment. With respect to the Companion Loan, the Master Servicer shall make available to the Companion Loan Holders on each Distribution Date or, if the Companion Loan is securitized, the applicable related Other Servicer no later than the time(s) that it is available to the Certificate Administrator, the CREFC^® Investor Reporting Package (excluding any templates) pursuant to the terms of this Agreement on a monthly basis. The Special Servicer shall provide any templates relating to the Companion Loan included in the CREFC^® Investor Reporting Package and prepared by the Special Servicer pursuant to the terms hereof to the Master Servicer promptly upon reasonable request. The Master Servicer shall provide any templates relating to the Companion Loan included in the CREFC^® Investor Reporting Package (with respect to templates required to be prepared by the Special Servicer pursuant to the terms hereof, to the extent received) to a related Other Servicer upon reasonable request.

(b)           For so long as the Master Servicer makes deposits into or credits to and withdrawals or debits from the Collection Account, not later than 15 days after each Distribution Date, the Master Servicer shall forward to the Certificate Administrator a statement prepared by the Master Servicer setting forth the status of the Collection Account as of the close of business

 -150-

 

on the last Business Day of the Collection Period related to such Distribution Date and showing the aggregate amount of deposits into and withdrawals from the Collection Account of each category of deposit (or credit) specified in Section 3.05 of this Agreement and each category of withdrawal (or debit) specified in Section 3.06 of this Agreement for the related Collection Period, in each case for the Trust Loan. The Trustee and the Certificate Administrator and its agents and attorneys may at any time during normal business hours, upon reasonable notice, inspect and copy the books, records and accounts of the Master Servicer solely relating to the Trust Loan and the performance of its duties hereunder.

(c)           Beginning in December 2021, no later than 4:00 p.m. (New York City Time) on each Servicer Remittance Date, the Master Servicer shall deliver or cause to be delivered to the Certificate Administrator (which shall promptly post such report to the Certificate Administrator’s Website pursuant to Section 4.02(b) of this Agreement), the Operating Advisor and the Companion Loan Holders, the following reports (in electronic form) with respect to the Trust Loan (and, if applicable, the REO Property), providing the required information as of the immediately preceding Determination Date: (i) to the extent the Master Servicer has received the most recent CREFC^® Special Servicer Loan File from the Special Servicer at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification and Corrected Mortgage Loan Report, the CREFC^® Loan Setup File (with respect to the first Distribution Date) and CREFC^® REO Status Report received from such Special Servicer, (ii) the most recent CREFC^® Property File, CREFC^® Financial File, CREFC^® Comparative Financial Status Report and the CREFC^® Loan Level Reserve/LOC Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File), (iii) the CREFC^® Servicer Watch List with information that is current as of such Determination Date and (iv) the CREFC^® Advance Recovery Report.

The information that pertains to a Specially Serviced Loan or REO Property reflected in such reports shall be based solely upon the reports delivered by the Special Servicer to the Master Servicer (other than information as to which the Master Servicer has the primary responsibility to generate) no later than the related Determination Date in the form required by Section 3.13(f) of this Agreement or shall be provided by means of such reports so delivered by the Special Servicer to the Master Servicer in the form so required. In the absence of manifest error, the Master Servicer shall be entitled to conclusively rely upon, without investigation or inquiry, the information and reports delivered to it by the Special Servicer, and the Certificate Administrator shall be entitled to conclusively rely upon the Master Servicer’s reports and the Special Servicer’s reports and any information provided by the Certificate Administrator or the Trustee without any duty or obligation to recompute, verify or recalculate any of the amounts and other information stated therein.

(d)           The Master Servicer shall deliver or cause to be delivered to the Trustee, the Certificate Administrator, the Companion Loan Holders, the Initial Purchasers and, upon request by any Rating Agency, the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s website), the following materials, in each case to the extent that such materials or the information on which they are based have been received by the Master Servicer with respect to the Trust Loan, which shall be made available by the Certificate Administrator on the Certificate Administrator’s Website:

 -151-

 

(i)           Within 45 days of receipt by the Master Servicer (or within 60 days of receipt by the Special Servicer with respect to a Specially Serviced Loan or REO Property pursuant to Section 3.13(g)(i)) of any annual year-end operating statements beginning with year-end 2022, on a consolidated basis for the Mortgaged Properties or REO Property (to the extent prepared by and received from the Special Servicer in the case of a Specially Serviced Loan or REO Property), a CREFC^® Operating Statement Analysis Report, together with copies of the related operating statements and rent rolls (but only to the extent the Borrowers are required by the Loan Documents to deliver, or otherwise agree to provide such information and, with respect to operating statements and rent rolls for such Specially Serviced Loan or REO Property, only to the extent received by the Special Servicer) for the current trailing 12 months, if available, or year-to-date. The Master Servicer (or the Special Servicer in the case of a Specially Serviced Loan or REO Property) shall use efforts consistent with the Servicing Standard to obtain said annual and other periodic operating statements and related rent rolls, which efforts shall include a letter sent to the Borrowers (followed up with telephone calls), requesting such annual and other periodic operating statements and related rent rolls until they are received to the extent such action is consistent with applicable law and the terms of the Whole Loan. Upon receipt of such annual and other periodic operating statements (including year-to-date statements) and related rent rolls the Master Servicer shall promptly update the Operating Statement Analysis Report, provided, however, that any analysis or update with respect to year-end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC^® guidelines.

(ii)           Within 45 days after receipt by the Master Servicer (or within 60 days of receipt by the Special Servicer in the case of a Specially Serviced Loan or REO Property pursuant to Section 3.13(g)(ii)) of any annual year-end operating statements beginning with year-end 2022, if any, on a consolidated basis for the Mortgaged Properties or REO Property (to the extent prepared by and received from the Special Servicer in the case of a Specially Serviced Loan or REO Property), a CREFC^® NOI Adjustment Worksheet for the Mortgaged Properties (with the annual year-end operating statements attached thereto as an exhibit). The Master Servicer will use the “Normalized” column from the CREFC^® NOI Adjustment Worksheet to update the full year-end data on any CREFC^® Operating Statement Analysis Report and will use any operating statements received with respect to the Mortgaged Properties (other than an REO Property or the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan) to update the CREFC^® Operating Statement Analysis Report for the Mortgaged Properties, provided, however, that any analysis or update with respect to year-end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC^® guidelines.

Additionally, the Master Servicer shall deliver the CREFC^® Operating Statement Analysis Report and CREFC^® NOI Adjustment Worksheet on a monthly basis to the Certificate Administrator; provided, however, the Master Servicer shall have no obligation to update such reports except as set forth in the immediately preceding paragraphs, and no analysis or update shall be required to the extent such analysis or update is not required to be provided under the then-current applicable CREFC^® guidelines. To the extent the Mortgage Loan Agreement permits lender discretion in selecting the accounting firm that audits the Borrower’s financial statements,

 -152-

 

the Master Servicer shall require a No Downgrade Confirmation if the Borrower proposed accounting firm is not a nationally recognized accounting firm.

The Master Servicer shall maintain one CREFC^® Operating Statement Analysis Report on a consolidated basis for the Mortgaged Properties or REO Property (to the extent prepared by and received from the Special Servicer in the case of an REO Property or the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan) relating to the Whole Loan. The CREFC^® Operating Statement Analysis Report for the Mortgaged Properties (other than an REO Property or the Mortgaged Properties while the Whole Loan is a Specially Serviced Loan) is to be updated with trailing 12-month information, as available (commencing with the year ending in December 2022) (to the extent the Borrowers provide sufficient information report in accordance with CREFC^® guidelines), or year-to-date information until 12-month trailing information is available by the Master Servicer and such updated report shall be delivered to the Trustee, the Operating Advisor, the Certificate Administrator and the Companion Loan Holders in the calendar month following receipt by the Master Servicer of such updated trailing or year-to-date operating statements and related rent rolls for the Mortgaged Properties.

The Special Servicer shall pursuant to Section 3.13(d) of this Agreement deliver to the Master Servicer the information required of it pursuant to this Section 3.13(d) with respect to a Specially Serviced Loan or REO Loan.

(e)           In connection with their servicing of the Whole Loan, the Master Servicer and the Special Servicer, as applicable, shall provide to each other and to the Operating Advisor, the Trustee and the Certificate Administrator, written notice of any event that comes to their knowledge with respect to the Whole Loan or REO Property that the Master Servicer or the Special Servicer, respectively, determines, in accordance with the Servicing Standard, would have a material adverse effect on the Whole Loan or REO Property, which notice shall include an explanation as to the reason for such material adverse effect.

(f)           On each Determination Date, the Special Servicer shall deliver, or cause to be delivered, to the Master Servicer and the Certificate Administrator, and upon the request of any of the Operating Advisor, the Trustee and the Depositor, to such requesting party, the CREFC^® Special Servicer Loan File with respect to a Specially Serviced Loan (and, if applicable, the REO Property), providing the required information as of the Business Day prior to such Determination Date (or, upon the reasonable request of any Master Servicer, data files in a form acceptable to the Master Servicer), which CREFC^® Special Servicer Loan File shall include data, to enable the Master Servicer to produce the CREFC^® Supplemental Servicer Reports. In addition, at least two Business Days prior to each Servicer Remittance Date, the Special Servicer shall deliver the CREFC^® Special Servicer Loan File to the 17g-5 Information Provider (which shall promptly post such item to the 17g-5 Information Provider’s Website). Such reports or data shall be presented in writing and in an electronic format acceptable to the Master Servicer.

(g)           The Special Servicer shall deliver or cause to be delivered to the Master Servicer and, upon the request of any of the Trustee, the Certificate Administrator, the Operating Advisor, the Depositor or any Rating Agency, to such requesting party, without charge, the following materials for a Specially Serviced Loan, in each case to the extent that such materials or the information on which they are based have been received by the Special Servicer:

 -153-

 

(i)           Beginning in 2022, within 60 days of receipt by the Special Servicer of any annual operating statements with respect to a Specially Serviced Loan, a CREFC^® Operating Statement Analysis Report for the Mortgaged Properties or REO Property as of the end of the preceding calendar year, together with copies of the operating statements and rent rolls for the Mortgaged Properties or REO Property as of the end of the preceding calendar year (but only to the extent the Borrowers are required by the Loan Documents to deliver, or otherwise agree to provide, such information) and for the current trailing 12 months, if available, or year-to-date. The Special Servicer shall use commercially reasonable efforts to obtain said annual and other periodic operating statements and related rent rolls with respect to the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan or REO Property, which efforts shall include a letter sent to the Borrowers or other appropriate party each quarter (followed up with telephone calls) requesting such annual and other periodic operating statements until they are received, provided, however, that any analysis or update with respect to year-end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC^® guidelines.

(ii)           Beginning in 2022, within 60 days of receipt by the Special Servicer of any annual operating statements with respect to the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan, a CREFC^® NOI Adjustment Worksheet for the Mortgaged Properties or REO Property (with the annual operating statements attached thereto as an exhibit); provided, however, that, with the consent of the Master Servicer, the Special Servicer may instead provide data files in a form acceptable to the Master Servicer. The Special Servicer will use the “Normalized” column from the CREFC^® NOI Adjustment Worksheet to update the full year-end data on any CREFC^® Operating Statement Analysis Report and will use any operating statements received with respect to the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan or an REO Property to update the CREFC^® Operating Statement Analysis Report for the Mortgaged Properties, provided, however, that any analysis or update with respect to year-end or the first calendar quarter of each year will not be required to the extent such analysis or update is not required under the then current CREFC^® guidelines.

Upon request for receipt of any such items from any Rating Agency, the Master Servicer shall forward such items to the 17g-5 Information Provider (who shall promptly post such items to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

The Special Servicer shall maintain one CREFC^® Operating Statement Analysis Report for the Mortgaged Properties for so long as the Whole Loan is a Specially Serviced Loan or the Mortgaged Properties are an REO Property. The CREFC^® Operating Statement Analysis Report for the Mortgaged Properties or REO Property is to be updated by the Special Servicer and such updated report delivered to the Master Servicer within 45 days after receipt by the Special Servicer of updated operating statements and related rent rolls for the Mortgaged Properties when the Whole Loan is a Specially Serviced Loan or the Mortgaged Properties are an REO Property; provided, that the Special Servicer may instead provide data files in an electronic form acceptable to the Special Servicer. The Special Servicer shall provide each such report to the Master Servicer in the then applicable CREFC^® format.

 -154-

 

(h)           If the Master Servicer or the Special Servicer, as applicable, is required to deliver any statement, report or information under any provision of this Agreement (including Section 3.14), the Master Servicer or the Special Servicer, as the case may be, may satisfy such obligation by (x) delivering such statement, report or information in a commonly used electronic format or (y) making such statement, report or information available on the Master Servicer’s Website, unless this Agreement expressly specifies a particular method of delivery; provided that all reports required to be delivered to the Certificate Administrator shall be delivered in accordance with clause (x) or (y). The Master Servicer or the Special Servicer may include appropriate disclaimers on any such statement, report or information and shall be entitled to withhold from disclosing any such information or documents that are or contain Privileged Information.

(i)            The Master Servicer may, but is not required to, make any of the reports or files it delivers pursuant to this Section 3.13 available each month on the Master Servicer’s Website only with the use of a password, in which case the Master Servicer shall provide such password to (i) the other parties to this Agreement and the Companion Loan Holders, who by their acceptance of such password shall be deemed to have agreed not to disclose such password to any other Person and (ii) each Certificateholder and prospective Certificateholder who requests such password, provided that any such Certificateholder or prospective Certificateholder, as the case may be, and has delivered an Investor Certification to the Trustee, the Certificate Administrator and the Master Servicer. In connection with providing access to the Master Servicer’s Website, the Master Servicer may require registration and the acceptance of a disclaimer and otherwise (subject to the preceding sentence) adopt reasonable rules and procedures, which may include, to the extent the Master Servicer deems necessary or appropriate, conditioning access on execution of an agreement governing the availability, use and disclosure of such information, and which may provide indemnification to the Master Servicer for any liability or damage that may arise therefrom.

(j)            With respect to each Collection Period, the Special Servicer shall deliver or cause to be delivered to the Master Servicer, without charge and on the related Determination Date, an electronic report which may include html, word or excel compatible format, clean and searchable pdf format or such other format as mutually agreeable between the Certificate Administrator and the Special Servicer that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period (and the Master Servicer, if it has received such information, shall forward such information to the Certificate Administrator no later than the Servicer Remittance Date); provided that no such report shall be required to be delivered if there is no Disclosable Special Servicer Fees for the related Collection Period. If no such report is delivered to the Master Servicer, the Master Servicer shall be entitled to assume no report was delivered because no Disclosable Special Servicer Fees existed for the related Collection Period. Such report to the Certificate Administrator may omit any information that has previously been delivered to the Certificate Administrator by the Master Servicer or the Special Servicer; provided that the Certificate Administrator shall include all such related information in the Distribution Date Statement regardless of how such information was conveyed to it.

Section 3.14     Access to Certain Documentation. (a)  The Master Servicer and Special Servicer, as applicable, shall provide to any Certificateholders and Companion Loan Holders that are federally insured financial institutions, the Federal Reserve Board, the FDIC and the OTS and the supervisory agents and examiners of such boards and such corporations, and any

 -155-

 

other federal or state banking or insurance regulatory authority that may exercise authority over any Certificateholder or any Companion Loan Holder is subject, access to the documentation regarding the Trust Loan required by applicable regulations of the Federal Reserve Board, FDIC, OTS or any such federal or state banking or regulatory authority, such access being afforded without charge but only upon reasonable written request and during normal business hours at the offices of the Master Servicer or Special Servicer, as applicable. In addition, upon reasonable prior written notice to the Master Servicer or the Special Servicer, as the case may be, the Trustee, the Certificate Administrator, the Operating Advisor, the Depositor or their accountants or other representatives shall have reasonable access to review the documents, correspondence and records in the possession of the Master Servicer or the Special Servicer, as the case may be, as they relate to the Mortgaged Properties and any REO Property during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be. Nothing in this Section 3.14 shall detract from the obligation of the Master Servicer and Special Servicer to observe any applicable law prohibiting disclosure of information with respect to the Borrowers, and the failure of the Master Servicer and Special Servicer to provide access as provided in this Section 3.14 as a result of such obligation shall not constitute a breach of this Section 3.14.

(b)           In connection with providing or granting any information or access pursuant to the prior paragraph to a Certificateholder, a Companion Loan Holder or any regulatory authority that may exercise authority over a Certificateholder, a Companion Loan Holder, the Master Servicer and the Special Servicer may each require payment from such Certificateholder of a sum sufficient to cover the reasonable costs and expenses of providing such information or access, including copy charges and reasonable fees for employee time and for space; provided that no charge may be made if such information or access was required to be given or made available under applicable law. In connection with providing Certificateholders or the Companion Loan Holders access to the information described in the preceding paragraph, the Master Servicer and the Special Servicer, as applicable, may require (prior to affording such access) a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to the Master Servicer or the Special Servicer, as the case may be, generally to the effect that such Person is a Holder of Certificates, a Companion Loan Holder or a beneficial holder of Book-Entry Certificates or a regulator or governmental body and will keep such information confidential.

(c)           Upon the reasonable request of any Certificateholder or any Companion Loan Holder identified to the Master Servicer to the Master Servicer’s reasonable satisfaction, the Master Servicer may provide (or forward electronically) (at the expense of such Certificateholder or Companion Loan Holder, as applicable) copies of any appraisals, operating statements, rent rolls and financial statements obtained by the Master Servicer or the Special Servicer; provided that, in connection therewith, the Master Servicer may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to the Master Servicer or Special Servicer, generally to the effect that such Person is a Holder of Certificates, a Companion Loan Holder or a beneficial holder of Book-Entry Certificates or a regulator or a governmental body and will keep such information confidential.

(d)           The 17g-5 Information Provider shall make available solely to the Depositor and to any NRSRO that delivers an NRSRO Certification to the 17g-5 Information Provider the following items to the extent such items are delivered to it via electronic mail at

 -156-

 

17g5informationprovider@wellsfargo.com (or such other address as the 17g-5 Information Provider shall specify by written notice to the other parties hereto) in an electronic format readable and uploadable (that is not locked or corrupted) on the 17g-5 Information Provider’s system, specifically with a subject reference of “CAMB 2021-CX2” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial (provided, however, if such information is not in electronic format readable and uploadable (that is not locked or corrupted), then the 17g-5 Information Provider shall immediately notify the applicable delivering party thereof, whereupon such party shall promptly deliver the subject information in such format):

(i)           any waivers delivered to the 17g-5 Information Provider pursuant to Section 3.09 of this Agreement;

(ii)          any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance delivered to the 17g-5 Information Provider pursuant to Section 3.21(d) or Section 4.07(d) of this Agreement and notice of determination not to refrain from reimbursement of all Nonrecoverable Advances;

(iii)         any Asset Status Report delivered by the Special Servicer pursuant to Section 3.23(e) of this Agreement;

(iv)         any environmental assessments delivered by the Special Servicer pursuant to Section 3.10(h) of this Agreement;

(v)          any annual statements as to compliance and related Officer’s Certificates delivered pursuant to Section 3.28 of this Agreement;

(vi)         any annual independent public accountants’ attestation reports delivered pursuant to Section 3.29 of this Agreement;

(vii)        any Appraisals delivered to the 17g-5 Information Provider pursuant to Section 3.10 of this Agreement;

(viii)       any notice to the Rating Agencies relating to the Special Servicer’s determination to take action without receiving a No Downgrade Confirmation from any Rating Agency as set forth in the definition of “No Downgrade Confirmation” pursuant to Section 3.28 of this Agreement;

(ix)          copies of any questions or requests submitted by the Rating Agencies directed toward the Master Servicer, Special Servicer, Certificate Administrator or Trustee;

(x)           any requests for a No Downgrade Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.28 of this Agreement;

 -157-

 

(xi)           any notice of resignation of the Trustee or Certificate Administrator and any notice of the acceptance of appointment by the successor Trustee or successor Certificate Administrator pursuant to Section 8.07 or Section 8.08, as applicable, of this Agreement;

(xii)          any notice of resignation or assignment of the rights of the Master Servicer or the Special Servicer pursuant to Section 6.04 of this Agreement;

(xiii)         any notice of Servicer Termination Event, Operating Advisor Termination Event or termination of the Master Servicer or the Special Servicer delivered pursuant to Section 7.03 of this Agreement;

(xiv)         any notice of the merger or consolidation of the Certificate Administrator or the Trustee pursuant to Section 8.09 of this Agreement;

(xv)          any notice of the merger or consolidation of the Master Servicer or the Special Servicer pursuant to Section 6.02 of this Agreement;

(xvi)         any notice of any amendment that modifies the procedures herein relating to Exchange Act Rule 17g-5 pursuant to Section 10.08 of this Agreement;

(xvii)        any notice or other information provided by the Master Servicer pursuant to Section 10.07 of this Agreement;

(xviii)       any summary of oral communication with the Rating Agencies delivered to the 17g-5 Information Provider pursuant to Section 3.14(f) of this Agreement; provided that the summary of such oral communication shall not attribute which Rating Agency the communication was with;

(xix)          the Rating Agency Q&A Forum and Document Request Tool; and

(xx)           such information as is delivered to the 17g-5 Information Provider by the Depositor in mutually agreeable electronic format within fifteen (15) days of the Closing Date.

The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website (a link to which shall be provided on the Depositor’s website at www.intralinks.com or such other website as the Depositor may notify the parties hereto in writing). Information will be posted on the same Business Day of receipt provided that such information is received by 2:00 p.m. (eastern time) or, if received after 2:00 p.m., on the next Business Day by 12:00 p.m. (eastern time). The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be or whether such information (other than (solely with respect to the 17g-5 Information Provider’s obligation to post such information) the information set forth in clauses (i) through (xix) above) is required to be posted on the 17g-5 Information Provider’s Website pursuant to this Agreement or Rule 17g-5. In the event that any information is delivered or posted in error, the 17g-5 Information Provider may remove it from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and

 -158-

 

shall not be deemed to have obtained actual knowledge of any information only by receipt and posting to the 17g-5 Information Provider’s Website. Access will be provided by the 17g-5 Information Provider to the Rating Agencies, and to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit O hereto (which certification may be submitted electronically via the 17g-5 Information Provider’s Website) on the same Business Day as the request if such certification is submitted by 2:00 p.m., and if such certification is submitted after 2:00 p.m., on the following Business Day. Questions regarding delivery of information to the 17g-5 Information Provider may be directed to 17g5informationprovider@wellsfargo.com (or such other address as the 17g-5 Information Provider shall specify by written notice to the other parties hereto).

Upon delivery by the Depositor to the 17g-5 Information Provider of information designated by the Depositor as pre-closing information from the Depositor’s 17g-5 Website (the “Pre-close Information”), the 17g-5 Information Provider shall make such information available only to the Depositor and to NRSROs via the 17g-5 Information Provider’s Website pursuant to this Section 3.13(d). Such information shall be provided to the 17g-5 Information Provider via electronic media and delivered to the 17g-5 Information Provider as mutually agreed. The Depositor shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-close Information or any other information on the 17g-5 Information Provider’s Website to any designee or third party. The Master Servicer or the Special Servicer, as applicable, may, but shall not be obligated to, provide information to the 17g-5 Information Provider that is neither specifically required hereunder, nor required by any Rating Agency, and the 17g-5 Information Provider shall post such information pursuant to the terms hereof.

The 17g-5 Information Provider shall notify (i) any party that delivers information to the 17g-5 Information Provider under this Agreement that such information was received and (ii) any party that delivers information to the 17g-5 Information Provider under this Agreement and each Person that has signed up for access to the 17g-5 Information Provider’s Website in respect of the transaction governed by this Agreement each time an additional document is posted to the 17g-5 Information Provider’s Website and such notice shall specifically identify such document. The 17g-5 Information Provider shall send such notice to such Persons to the email address that has been provided by and is used by such Person for the purpose of accessing the 17g-5 Information Provider’s Website, including a general email address if such general email address has been provided to the 17g-5 Information Provider in connection with a completed NRSRO Certification in the form of Exhibit O hereto.

The 17g-5 Information Provider shall make available, only to the Rating Agencies and NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where the Rating Agencies and NRSROs may (i) submit Inquiries to the Certificate Administrator relating to the Distribution Date Statement, or submit Inquiries to the Master Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to this Section 3.14(d), the Whole Loan or the Mortgaged Properties, (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto and (iii) submit requests for loan-level reports and information. Upon receipt of an Inquiry for the Certificate Administrator, the Master Servicer or the Special Servicer, the 17g-5 Information Provider shall forward the Inquiry to the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, in each case within a commercially reasonable period following

 -159-

 

receipt thereof. Following receipt of an Inquiry or request relating to the subject matters described in clauses (i) or (iii) above, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Certificate Administrator, Master Servicer or Special Servicer shall be by email to the 17g-5 Information Provider. The 17g-5 Information Provider shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer (or reports, as applicable) to the 17g-5 Information Provider’s Website. Any report posted by the 17g-5 Information Provider in response to a request may be posted on a page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the Master Servicer or the Special Servicer determines, in its respective sole discretion, that (i) the Inquiry is beyond the scope outlined above, (ii) answering any Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or the applicable Loan Documents, (iii) answering any Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product or is not otherwise advisable to answer or (iv)(A) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, and (B) the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator) that the performance of such duties or the payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Master Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Inquiry and, in the case of the Certificate Administrator, Master Servicer or the Special Servicer, shall promptly notify the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such Inquiry on the Rating Agency Q&A Forum and Document Request Tool together with a statement that such Inquiry was not answered. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Initial Purchasers, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee or any of their respective Affiliates and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications between the 17g-5 Information Provider and any Person which are not submitted via the 17g-5 Information Provider’s Website.

In connection with providing access to the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, the Certificate Administrator and/or the 17g-5 Information Provider may require registration and the acceptance of a disclaimer. The Certificate Administrator and the 17g-5 Information Provider, as the case may be, shall not be liable for the dissemination of information in accordance with the terms of this Agreement, make no representations or warranties as to the accuracy or completeness of such information being made available, and assume no responsibility for such information; provided that it is acknowledged and agreed that the 17g-5 Information Provider shall not be charged with knowledge of any of the contents of such information solely by virtue of its compliance with its obligations to post such information to the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall not be liable for its failure to make any information available to the NRSROs unless such

 -160-

 

information was delivered to the 17g-5 Information Provider at the email address set forth herein (or other form of electronic delivery reasonably acceptable to the 17g-5 Information Provider and Master Servicer or Special Servicer, as applicable) in an electronic format readable and uploadable (that is not locked or corrupted) on the 17g-5 Information Provider’s system, with a subject heading of “CAMB 2021-CX2” and sufficient detail to indicate that such information is required to be posted on the 17g-5 Information Provider’s Website; provided, however, that if such information is not in electronic format readable and uploadable (that is not locked or corrupted), then the 17g-5 Information Provider shall immediately notify the applicable delivering party thereof, whereupon such party shall promptly deliver the subject information in such format.

The 17g-5 Information Provider shall not be responsible or have any liability for any act, omission or delay attributable to the failure of any other party to this Agreement to timely deliver information to be posted on the 17g-5 Information Provider’s Website or for any errors or defects in the information supplied by any such party. Neither the Certificate Administrator nor the 17g-5 Information Provider has obtained and neither shall be deemed to have obtained actual knowledge of any information solely by receipt or posting to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website, as applicable.

The 17g-5 Information Provider’s obligations in respect of Rule 17g-5 or any other law or regulation related thereto shall be limited to the specific obligations contained in this Agreement and the 17g-5 Information Provider makes no representations or warranties as to the compliance of the Depositor with Rule 17g-5 or any other law or regulation related thereto.

(e)           Each of the Master Servicer and the Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also deliver, produce or otherwise make available through its website or otherwise, any additional information identified in Section 3.14(d) of this Agreement relating to the Whole Loan, the Mortgaged Properties or the Borrowers, for review by the Depositor, the Initial Purchasers and any other Persons who deliver an Investor Certification in accordance with this Section 3.14, the Companion Loan Holders and the Rating Agencies (collectively, the “Disclosure Parties”) (only to the extent such additional information is simultaneously or previously delivered to the 17g-5 Information Provider in accordance with the provisions of Section 3.14(d) of this Agreement, which shall post such additional information on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.14(d) of this Agreement), in each case, except to the extent doing so is prohibited by this Agreement, applicable law or by the Loan Documents. Each of the Master Servicer and the Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor, enter into an Investor Certification or other confidentiality agreement acceptable to the Master Servicer or the Special Servicer, as the case may be, and (B) acknowledge that the Master Servicer or the Special Servicer may contemporaneously provide such information to any other Disclosure Party. In addition, to the extent access to such information is provided via the Master Servicer’s or the Special Servicer’s website, the Master Servicer and the Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the information described in this Section 3.14(e) to current or prospective Certificateholders the form of confidentiality agreement used by the Master Servicer or the Special Servicer, as applicable, shall be: (i) in the case of a Certificateholder

 -161-

 

(or a licensed or registered investment advisor acting on behalf of such Certificateholder), an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (ii) in the case of a prospective purchaser of Certificates or interests therein (or a licensed or registered investment advisor acting on behalf of such prospective purchaser), an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential with no further dissemination (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators). In the case of a licensed or registered investment advisor acting on behalf of a current or prospective Certificateholder, the Investor Certification shall be executed and delivered by both the investment advisor and such current or prospective Certificateholder.

Neither the Master Servicer nor the Special Servicer shall be liable for its dissemination of information in accordance with this Agreement or by others in violation of the terms of this Agreement. Neither the Master Servicer nor the Special Servicer shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 3.14 unless (i) the Master Servicer or Special Servicer, as applicable, is the original source for such information and (ii) such failure to deliver complete and accurate information is by reason of such party’s willful misconduct, bad faith, fraud and/or negligence.

(f)           The Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee shall be permitted (but shall not be required) to orally communicate with the Rating Agencies regarding the Trust Loan, the Whole Loan, any Class of Certificates, the Companion Loan Holders, the Mortgaged Properties or any REO Property; provided that such party summarizes the information provided to the Rating Agencies in such communication in writing and provides the 17g-5 Information Provider with such written summary in accordance with the procedures set forth in Section 3.14(d) of this Agreement the same day such communication takes place; provided, further, that the summary of such oral communications shall not attribute which Rating Agency the communication was with. The 17g-5 Information Provider shall post such written summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 3.14(d) of this Agreement.

(g)           None of the foregoing restrictions in this Section 3.14 or otherwise in this Agreement shall prohibit or restrict oral or written communications, or providing information, between the Master Servicer or the Special Servicer, on the one hand, and any Rating Agency or NRSRO, on the other hand, with regard to (i) such Rating Agency’s or NRSRO’s review of the ratings it assigns to the Master Servicer or the Special Servicer, as applicable, (ii) such Rating Agency’s or NRSRO’s approval of the Master Servicer or the Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s or NRSRO’s evaluation of the Master Servicer’s or the Special Servicer’s, as applicable, servicing operations in general; provided that the Master Servicer or the Special Servicer, as applicable, shall

 -162-

 

not provide any information relating to the Certificates or the Trust Loan to any Rating Agency or NRSRO in connection with such review and evaluation by such Rating Agency or NRSRO unless (x) Borrowers, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider pursuant to the terms hereof; or (z) such Rating Agency confirms in writing that it does not intend to use such information in undertaking credit rating surveillance with respect to the Certificates; provided, however, that the Rating Agencies may use information delivered in reliance on the certification provided in this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement or any other confidentiality agreement to which such Rating Agency is subject) or comprises information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that such Rating Agency has access to) (in each case, subject to any agreement governing the use of such information, including any engagement letter with the Depositor or any other applicable depositor).

(h)           The costs and expenses of compliance with this Section 3.14 by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any other party hereto shall not be Additional Trust Fund Expenses.

(i)            If any of the parties to this Agreement receives a Form ABS Due Diligence-15E from any party in connection with any third-party due diligence services such party may have provided with respect to the Trust Loan (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website. The 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or from another party to this Agreement, promptly upon receipt thereof.

Section 3.15     Title and Management of REO Property and REO Accounts. (a) In the event that title to the Mortgaged Properties is acquired for the benefit of the Certificateholders and the Companion Loan Holders in foreclosure, by deed-in-lieu of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or certificate of sale shall be taken in the name of the Trustee, or its nominee (which shall not include the Master Servicer), or a separate Trustee or co-Trustee, in each case on behalf of the Trust Fund and the Companion Loan Holders. The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holders, shall dispose of any REO Property prior to the close of the third calendar year following the year in which the Trust Fund acquires ownership of the REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the Lower-Tier REMIC has applied for an extension of such period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special Servicer shall sell the REO Property within the applicable extension period or if the Special Servicer has applied for extension as provided in this clause (i) but such request has not yet been granted or denied, the additional time specified in such request, or (ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions set forth in the Co-Lender Agreement), addressed to the Special Servicer, the Certificate Administrator and the Trustee, to the effect that the holding by the Trust Fund of the REO Property for an additional specified period will not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception

 -163-

 

applicable for purposes of Section 860D(a) of the Code) at any time that any Certificate is outstanding, in which event such period shall be extended by such additional specified period subject to any conditions set forth in such Opinion of Counsel. The Special Servicer, on behalf of the Trust Fund and the Companion Loan Holders, shall dispose of any REO Property held by the Trust Fund prior to the last day of such period (taking into account extensions) by which the REO Property is required to be disposed of pursuant to the provisions of the immediately preceding sentence in a manner provided under Section 3.16 hereof. The Special Servicer shall manage, conserve, protect and operate the REO Property for the Certificateholders and the Companion Loan Holders solely for the purpose of its prompt disposition and sale in a manner which does not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) and such that income from the operation or sale of such property does not result in receipt by the Trust Fund of any income from non-permitted assets as described in Section 860F(a)(2)(B) of the Code with respect to such property.

(b)           The Special Servicer shall have full power and authority, subject only to the Servicing Standard and the specific requirements and prohibitions of this Agreement, to do any and all things in connection with any REO Property as are consistent with the manner in which the Special Servicer manages and operates similar property owned or managed by the Special Servicer or any of its Affiliates, all on such terms and for such period as the Special Servicer deems to be in the best interests of Certificateholders and the Companion Loan Holders, in connection therewith, the Special Servicer shall agree to the payment of management fees that are consistent with general market standards. Consistent with the foregoing, the Special Servicer shall cause or permit to be earned with respect to the REO Property any “net income from foreclosure property”, within the meaning of Section 860G(c) of the Code, which is subject to tax under the REMIC Provisions, only if it has determined, and has so advised the Trustee and the Certificate Administrator in writing, that the earning of such income on a net after-tax basis could reasonably be expected to result in a greater recovery on behalf of Certificateholders and the Companion Loan Holders than an alternative method of operation or rental of the REO Property that would not be subject to such a tax.

The Special Servicer shall segregate and hold all revenues received by it with respect to any REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to any REO Property a segregated custodial account (each, an “REO Account”), each of which shall be either (A) an Eligible Account and shall be entitled “Situs Holdings, LLC, on behalf of Wilmington Trust, National Association, as Trustee, in trust for the benefit of the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates and the Companion Loan Holders, REO Account” or (B) entitled in the name of the limited liability company formed to hold title to the REO Property for the benefit of the Trustee. Title of any REO Property may be taken in the name of a limited liability company wholly owned by the Lower-Tier Trust REMIC that is managed by the Special Servicer (the costs of which shall be advanced by the Master Servicer; provided that such Advance would not be a Nonrecoverable Advance); provided, further, that such limited liability company (a) shall not elect to be classified as anything other than an entity that is disregarded as separate from the Lower-Tier Trust REMIC for federal income tax purposes and (b) shall only hold assets permitted under the REMIC Provisions to be held by a REMIC. The Special Servicer shall be entitled to withdraw for its account any interest or investment income earned on funds deposited in the REO Account to the

 -164-

 

extent provided in Section 3.07(b) of this Agreement. The Special Servicer shall deposit or cause to be deposited REO Proceeds in the REO Account within two (2) Business Days after receipt of the REO Proceeds, and shall withdraw therefrom funds necessary for the proper operation, management and maintenance of the REO Property and for other Property Protection Expenses with respect to the REO Property, including:

(i)           all insurance premiums due and payable in respect of any REO Property;

(ii)          all real estate taxes and assessments in respect of any REO Property that may result in the imposition of a lien thereon;

(iii)         all costs and expenses reasonable and necessary to protect, maintain, manage, operate, repair and restore any REO Property; and

(iv)         any taxes imposed on the Lower-Tier REMIC in respect of net income from foreclosure property in accordance with Section 4.05.

To the extent that such REO Proceeds are insufficient for the purposes set forth in clauses (i) through (iii) above, the Master Servicer shall make such Advance unless the Master Servicer determines, in accordance with the Servicing Standard, that such Property Advance would constitute a Nonrecoverable Advance (provided that with respect to advancing insurance premiums or delinquent tax assessments the Master Servicer shall comply with the provisions of the second to last paragraph in Section 3.21(d) of this Agreement) and if the Master Servicer does not make any such Advance, the Trustee, to the extent the Trustee has actual knowledge of the Master Servicer’s failure to make such Advance, shall make such Advance, unless in each case, the Master Servicer or the Trustee, as applicable, determines that such Advance would be a Nonrecoverable Advance. The Trustee shall be entitled to rely, conclusively, on any determination by the Special Servicer or the Master Servicer, as applicable, that an Advance, if made, would be a Nonrecoverable Advance. The Trustee, when making an independent determination whether or not a proposed Advance would be a Nonrecoverable Advance, shall make such determination in accordance with Section 3.21(d) based on its reasonable judgment. The Master Servicer or the Trustee, as applicable, shall be entitled to reimbursement of such Advances (with interest at the Advance Rate) made pursuant to the preceding sentence, to the extent permitted by Section 3.06 of this Agreement. The Special Servicer shall withdraw from the REO Account and remit to the Master Servicer for deposit into the Collection Account on a monthly basis prior to or on the related Due Date the Net REO Proceeds received or collected from each REO Property, except that in determining the amount of such Net REO Proceeds, the Special Servicer may retain in each REO Account reasonable reserves for repairs, replacements and necessary capital improvements and other related expenses.

Notwithstanding the foregoing, the Special Servicer shall not:

(i) permit any New Lease to be entered into, renewed or extended, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;

	(ii)	permit any amount to be received or accrued under any New Lease, other than amounts that will constitute Rents from Real Property;

 -165-

 

(iii) authorize or permit any construction on any REO Property, other than the repair or maintenance thereof or the completion of a building or other improvement thereon, and then only if more than ten percent of the construction of such building or other improvement was completed before default on the Trust Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

(iv) Directly Operate or allow any Person to Directly Operate any REO Property on any date more than 90 days after its date of acquisition by the Trust Fund, unless such Person is an Independent Contractor;

unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel addressed to the Special Servicer, the Certificate Administrator and the Trustee (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement) to the effect that such action will not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code) at any time that it is held by the Trust Fund, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.

The Special Servicer shall be required to contract with an Independent Contractor, the fees and expenses of which shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement and payable out of REO Proceeds, for the operation and management of any REO Property, within 90 days of the Trust Fund’s acquisition thereof (unless the Special Servicer shall have provided the Trustee and the Certificate Administrator with an Opinion of Counsel that the operation and management of any REO Property other than through an Independent Contractor shall not cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code) (which opinion shall be an expense of the Trust Fund and allocated in accordance with the allocation provisions of the Co-Lender Agreement); provided that:

(i)           the terms and conditions of any such contract shall be reasonable and customary for the area and type of property and shall not be inconsistent herewith;

(ii)          any such contract shall require, or shall be administered to require, that the Independent Contractor pay all costs and expenses incurred in connection with the operation and management of the REO Property, including those listed above, and remit all related revenues (net of such costs and expenses) to the Special Servicer as soon as practicable, but in no event later than 30 days following the receipt thereof by such Independent Contractor;

(iii)         none of the provisions of this Section 3.15(b) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trust Fund, the Trustee on behalf of the Certificateholders and the Companion Loan Holders, with respect to the operation and management of any the REO Property; and

 -166-

 

(iv)           the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of the REO Property.

The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.

(c)           Promptly following any acquisition by the Special Servicer of an REO Property on behalf of the Trust Fund, the Special Servicer shall notify the Master Servicer thereof, and, the Special Servicer shall obtain an Updated Appraisal thereof, but only in the event that any Updated Appraisal with respect thereto is more than 9 months old and the Special Servicer has no actual knowledge of any material adverse change in circumstances that, consistent with the Servicing Standard, would call into question the validity of such Updated Appraisal, in order to determine the fair market value of the REO Property and shall notify the Depositor and the Master Servicer and the Companion Loan Holders of the results of such Appraisal. Any such Appraisal shall be conducted in accordance with Appraisal Institute standards and the cost thereof shall be advanced as a Property Advance. The Special Servicer shall obtain a new Updated Appraisal or a letter update every 9 months thereafter until the REO Property is sold.

(d)           When and as necessary, the Special Servicer shall send to the Certificate Administrator a statement prepared by the Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Sections 3.15(a) and 3.15(b) of this Agreement.

Section 3.16     Sale of a Specially Serviced Loan or the REO Property. (a)  The parties hereto may sell or purchase, or permit the sale or purchase of, the Whole Loan only on the terms and subject to the conditions set forth in this Section 3.16 or as otherwise expressly provided in or contemplated by Section 2.03(e) and Section 9.01 of this Agreement or in the Co-Lender Agreement.

(b)           If the Special Servicer determines in accordance with the Servicing Standard that it would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender) to attempt to sell the Whole Loan if it is a Defaulted Mortgage Loan, the Special Servicer shall use efforts consistent with the Servicing Standard to solicit offers for such Defaulted Mortgage Loan on behalf of the Certificateholders and the Companion Loan Holders in such manner as will be reasonably likely to realize a fair price if it sells such Defaulted Mortgage Loan. The Special Servicer shall accept the first (and, if multiple offers are received, the highest cash offer received in the solicitation process within the time frame set for such process by the Special Servicer) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan, subject to any consent or consultation rights of the Directing Holder during any Subordinate Control Period and any Subordinate Consultation Period or any consultation rights of the Operating Advisor during the Operating Advisor Consultation Period.

 -167-

 

The Special Servicer shall give the Operating Advisor, the Trustee, the Certificate Administrator, the Master Servicer, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period) and the Companion Loan Holders, not less than ten (10) Business Days’ (or five (5) Business Days’ notice in the case of the Directing Holder) prior written notice of its intention to sell a Defaulted Mortgage Loan (and the Certificate Administrator shall promptly forward such notice to the Certificateholders). Notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Defaulted Mortgage Loan pursuant to this Agreement. The notice provided to the Companion Loan Holders pursuant to the second previous sentence shall include notice of the Companion Loan Holders’ opportunity to bid on the Defaulted Mortgage Loan.

(c)           Whether any cash offer constitutes a fair price for such Defaulted Mortgage Loan, as the case may be, shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person. In determining whether any offer received from an Interested Person represents a fair price for a Defaulted Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or Updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or in the absence of any such Appraisal, on a narrative appraisal prepared by an Independent MAI appraiser selected by (i) the Special Servicer if the Special Servicer or an Affiliate of the Special Servicer is not making an offer with respect to a Defaulted Mortgage Loan, (ii) by the Master Servicer if the Special Servicer is making such an offer unless the Master Servicer and Special Servicer are Affiliates or (iii) the Trustee if the Master Servicer and Special Servicer are Affiliates and the Special Servicer is making an offer. The cost of any such Updated Appraisal or narrative appraisal shall be covered by, and shall be reimbursable as, a Property Advance. No offer from an Interested Person shall constitute a fair price unless (i) if the offer is equal to or greater than the applicable Repurchase Price, the offer is the highest offer received, or (ii) if the offer is less than the applicable Repurchase Price, (a) the offer is the highest offer received and (b) at least two other offers are received from independent third parties. In addition, the Trustee shall be permitted to retain, at the expense of the related Interested Person, an independent third party expert in real estate or commercial mortgage loan matters with at least five years’ experience in valuing or investing in loans similar to the Whole Loan that has been selected with reasonable care by the Trustee to determine such fair price and will be permitted to conclusively rely on the opinion of such third party’s determination. Any costs and fees of the Trustee in connection with an offer by an Interested Person and the Trustee’s duties therewith shall be paid in advance of such determination by such Interested Person; provided that the Trustee shall not engage an independent third party expert whose fees exceed a commercially reasonable amount, as determined by the Trustee.

In determining whether any offer from a Person other than an Interested Person constitutes a fair price for a Defaulted Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, Updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior nine (9) months), and in determining whether any offer from a Person other than an Interested Person constitutes a fair price for such Defaulted Mortgage Loan, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of the Delinquency on such Defaulted Mortgage Loan, the period and amount of the occupancy level and physical condition of the Mortgaged Properties, the state of the local economy in the area where the Mortgaged Properties are located, the expected

 -168-

 

recovery from such Defaulted Mortgage Loan if the Special Servicer were to pursue a workout strategy, and the time and expense associated with a purchaser’s foreclosing on the Mortgaged Properties. The Repurchase Price for a Defaulted Mortgage Loan shall in all cases be deemed a fair price.

In addition, the Special Servicer shall refer to all other relevant information obtained by it or otherwise contained in the Mortgage File; provided that the Special Servicer shall take account of any change in circumstances regarding the Mortgaged Properties known to the Special Servicer that has occurred subsequent to, and that would, in the Special Servicer’s reasonable judgment, materially affect the value of any Mortgaged Property reflected in the most recent related Appraisal. Furthermore, the Special Servicer may consider available objective third party information obtained from generally available sources, as well as information obtained from vendors providing real estate services to the Special Servicer, concerning the market for distressed real estate loans and the real estate market for the subject property type in the area where the Mortgaged Properties are located. The Special Servicer may, to the extent it is reasonable to do so in accordance with the Servicing Standard, conclusively rely on any opinions or reports of qualified Independent experts in real estate or commercial mortgage loan matters with at least five years’ experience in valuing or investing in loans similar to the subject Specially Serviced Loan, selected with reasonable care by the Special Servicer, in making such determination. All reasonable costs and expenses incurred by the Special Servicer pursuant to this Section 3.16(c) shall constitute, and be reimbursable as, Property Advances. The other parties to this Agreement shall cooperate with all reasonable requests for information made by the Special Servicer in order to allow the Special Servicer to perform its duties pursuant to this Section 3.16(c).

(d)           Subject to subsection (c) above, the Special Servicer shall act on behalf of the Trustee (for the benefit of the Certificateholders and the Companion Loan Holders) in negotiating and taking any other action necessary or appropriate in connection with the sale of a Defaulted Mortgage Loan, and the applicable collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge for its own account prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the REO Account or the Collection Account. Any sale of a Defaulted Mortgage Loan shall be final and without recourse to the Trustee or the Trust Fund (except such recourse to the Trust Fund imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Depositor, the Operating Advisor, the Certificate Administrator or the Trustee shall have any liability to any Certificateholder or Companion Loan Holders with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.

(e)           Any sale of a Defaulted Mortgage Loan shall be for cash only.

(f)           [Reserved].

(g)           The parties hereto may sell or purchase, or permit the sale or purchase of, an REO Property only on the terms and subject to the conditions set forth in this Section 3.16.

 -169-

 

(h)           The Special Servicer shall use efforts consistent with the Servicing Standard to solicit offers for an REO Property on behalf of the Certificateholders and the Companion Loan Holders in such manner as will be reasonably likely to realize a fair price within the time period provided for by Section 3.15(a) of this Agreement. The Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for the REO Property. If the Special Servicer determines, in its good faith and reasonable judgment, that it will be unable to realize a fair price for any REO Property within the time constraints imposed by Section 3.15(a) of this Agreement, then the Special Servicer shall dispose of the REO Property upon such terms and conditions as the Special Servicer shall deem necessary and desirable to maximize the recovery thereon under the circumstances and, in connection therewith, shall accept the highest outstanding cash offer, regardless of from whom received.

The Special Servicer shall give the Trustee, the Operating Advisor, the Certificate Administrator and the Master Servicer, not less than ten Business Days’ prior written notice of its intention to sell an REO Property, and notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any REO Property pursuant to this Agreement.

(i)            Whether any cash offer constitutes a fair price for an REO Property, as the case may be, shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person; provided, however, that no offer from an Interested Person shall constitute a fair price unless it is the highest offer received. In determining whether any offer received from an Interested Person represents a fair price for an REO Property, the Trustee shall be supplied with and shall rely on the most recent appraisal or Updated Appraisal conducted in accordance with this Agreement within the preceding 9-month period or in the absence of any such appraisal, on a narrative appraisal prepared by an Independent MAI Appraiser selected by the Special Servicer if the Special Servicer or an Affiliate of the Special Servicer is not making an offer with respect to the REO Property (or by the Trustee if the Special Servicer is making such an offer). The cost of any such Updated Appraisal or narrative appraisal and any related costs and fees of the Trustee shall be covered by, and shall be reimbursable as, a Property Advance. The Trustee shall be permitted to retain, at the expense of the related Interested Person, an independent third party to determine such fair price and shall be permitted to conclusively rely on the opinion of such third party’s determination. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for an REO Property, the Special Servicer shall take into account (in addition to the results of any appraisal, updated appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the REO Property, any appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Properties or REO Property, the state of the local economy and the obligation to dispose of the REO Property within the time period specified in Section 3.15(a) of this Agreement. The Repurchase Price for an REO Property shall in all cases be deemed a fair price.

(j)            Subject to subsections (h) and (i) above, the Special Servicer shall act on behalf of the Trustee (for the benefit of the Certificateholders and the Companion Loan Holders)

 -170-

 

in negotiating and taking any other action necessary or appropriate in connection with the sale of an REO Property, and the applicable collection of all amounts payable in connection therewith. In connection therewith, the Special Servicer may charge for its own account prospective offerors, and may retain, fees that approximate the Special Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or exchanging offers without obligation to deposit such amounts into the Collection Account. Any sale of an REO Property shall be final and without recourse to the Trustee or the Trust Fund (except such recourse to the Trust Fund imposed by those representations and warranties typically given in such transactions, any prorations applied thereto and any customary closing matters), and if such sale is consummated in accordance with the terms of this Agreement, none of the Special Servicer, the Master Servicer, the Operating Advisor, the Depositor or the Trustee shall have any liability to any Certificateholder or Companion Loan Holder with respect to the purchase price therefor accepted by the Special Servicer or the Trustee.

(k)           Any sale of an REO Property shall be for cash only.

(l)            Notwithstanding any of the foregoing paragraphs of this Section 3.16, the Special Servicer shall not be required to accept the highest cash offer if the Special Servicer determines, in its reasonable and good faith judgment, that rejection of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders, as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender, and the Special Servicer may accept a lower cash offer (from any Person other than itself or an Affiliate) if it determines, in its reasonable and good faith judgment, that acceptance of such offer would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations or the terms offered by the prospective buyer making the lower offer are more favorable).

(m)             The Special Servicer shall have the obligation to sell the Defaulted Mortgage Loan (including the Companion Loan) pursuant to the terms of the Co-Lender Agreement as if the Trust Loan and the Companion Loan were one whole loan on behalf of the Certificateholders and the Companion Loan Holders. The Special Servicer shall provide notice to the applicable Other Special Servicer (if any) and, to the extent it has received prior written notice, the controlling class representative of the related Other Securitization Trust as soon as practicable following its decision to attempt to sell, and prior to the commencement of marketing of, the Companion Loan.

Section 3.17        Additional Obligations of the Master Servicer and the Special Servicer; Inspections. (a)  The Master Servicer (at its own expense) (or, with respect to a Specially Serviced Loan or REO Property, the Special Servicer) shall inspect or cause to be inspected the Mortgaged Properties at such times and in such manner as is consistent with the Servicing Standard, but in any event shall inspect the Mortgaged Properties at least once every 12 months commencing in 2023 (or at such decreased frequency as each Rating Agency shall have provided a No Downgrade Confirmation relating to the Certificates and Companion Loan Securities); provided that if the Whole Loan becomes a Specially Serviced Loan, the Special Servicer shall inspect or cause to be inspected the Mortgaged Properties as soon as practicable after the Whole Loan becomes a Specially Serviced Loan and annually thereafter for so long as the Whole Loan remains a Specially Serviced Loan; provided, further, that the Master Servicer will not be required

 -171-

 

to inspect any Mortgaged Property that has been inspected in the previous 12 months. The cost of each such inspection performed in accordance with the Servicing Standard by the Special Servicer shall be paid by the Master Servicer as a Property Advance; provided, however, that if such Advance would be a Nonrecoverable Advance, then the cost of such inspections shall be an expense of the Trust payable from the Collection Account, which expense shall first be reimbursed to the Trust as an Additional Trust Fund Expense; provided, further, that in the case of any deficiency of amounts on deposit in the Collection Account, the Master Servicer shall, after receiving payment or making payments from amounts on deposit in the Collection Account, if any (i) promptly notify the Companion Loan Holders and (ii) use efforts consistent with the Servicing Standard to exercise on behalf of the Trust the rights of the Trust under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holders. The Master Servicer or the Special Servicer, as applicable, shall prepare a written report of the inspection describing, among other things, the condition of and any damage to the Mortgaged Properties and specifying the existence of any material vacancies in the Mortgaged Properties, any sale, transfer or abandonment of the Mortgaged Properties of which it has actual knowledge, any material adverse change in the condition of any Mortgaged Property, or any visible material waste committed on the Mortgaged Properties. Upon request of any Rating Agency, the Master Servicer or Special Servicer, as applicable, shall send such reports to the 17g-5 Information Provider (which shall promptly post such reports to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) and, upon request, to the Initial Purchasers within 20 days of completion, each inspection report.

(b)           The Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan), as applicable, shall exercise the Trustee’s rights, in accordance with the Servicing Standard, with respect to any Manager under the related Loan Documents and Management Agreements, if any.

(c)           If the Master Servicer has accepted a voluntary Principal Prepayment with respect to the Whole Loan (other than a Specially Serviced Loan or a previously Specially Serviced Loan with respect to which the Special Servicer has waived or amended the prepayment restrictions) (except (A) in accordance with the terms of the Loan Documents, (B) in connection with the payment of Insurance Proceeds or Condemnation Proceeds, (C) subsequent to a default under the Loan Documents (provided that the Master Servicer reasonably believes that acceptance of such prepayment is consistent with the Servicing Standard), (D) pursuant to applicable law or a court order, or (E) at the request of or with the consent of the Special Servicer), resulting in a Prepayment Interest Shortfall), then the Master Servicer shall deliver to the Certificate Administrator on each Servicer Remittance Date for deposit in the Lower-Tier Distribution Account (or with respect to the Companion Loan, remit to the holder of the Companion Loan a pro rata portion of the following amount), without any right of reimbursement therefor, a cash payment (a “Master Servicer Prepayment Interest Shortfall Amount”), in an amount equal to the lesser of (x) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with such voluntary Principal Prepayments received in respect of the Whole Loan (if it is a Performing Loan) during the related Collection Period, and (y) the sum of (A) the aggregate of that portion of its Servicing Fees that is the master servicing fee and that is being paid in such Collection Period (calculated for this purpose at a rate equal to 0.75 basis points (0.0075%) per annum) with respect to the Whole Loan if it is a Performing Loan and (B) any Prepayment Interest Excess received with respect to the related Collection Period. The Master Servicer’s obligations to pay any Master

 -172-

 

Servicer Prepayment Interest Shortfall Amount, and the rights of the Certificateholders to offset of the aggregate Prepayment Interest Shortfalls against those amounts, shall not be cumulative.

(d)           The Master Servicer shall, if the Whole Loan is secured by the interest of any Borrower under a ground lease, promptly (and in any event within 60 days) after the Closing Date deliver notice to the related ground lessor of the transfer of the Whole Loan to the Trust pursuant to this Agreement and inform such ground lessor that any notices of default under the related ground lease should thereafter be forwarded to the Master Servicer; provided that the Trust Loan Sellers shall cooperate with the Master Servicer with respect to such notices, including, without limitation, providing the form of notice to be delivered to such ground lessors.

(e)           The Master Servicer shall, to the extent consistent with the Servicing Standard and permitted by the Loan Documents, not apply any funds with respect to the Whole Loan (whether arising in the form of a holdback, earnout reserve, cash trap or other similar feature) to the prepayment of the Whole Loan prior to an event of default or reasonably foreseeable event of default with respect to the Whole Loan. Prior to an event of default or reasonably foreseeable event of default any such amounts described in the immediately preceding sentence shall be held by the Master Servicer as additional collateral for the Whole Loan.

Section 3.18     Authenticating Agent. The Certificate Administrator may appoint an Authenticating Agent to execute and to authenticate Certificates. The Authenticating Agent must be acceptable to the Depositor and must be a corporation organized and doing business under the laws of the United States of America or any state, having a principal office and place of business in a state and city acceptable to the Depositor, having a combined capital and surplus of at least $15,000,000, authorized under such laws to do a trust business and subject to supervision or examination by federal or state authorities. The Certificate Administrator shall serve as the initial Authenticating Agent.

Any corporation into which the Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Authenticating Agent shall be party, or any corporation succeeding to the corporate agency business of the Authenticating Agent, shall be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the Authenticating Agent.

The Authenticating Agent may at any time resign by giving at least 30 days’ advance written notice of resignation to the Certificate Administrator, the Trustee, the Operating Advisor, the Depositor and the Master Servicer. The Certificate Administrator may at any time terminate the agency of the Authenticating Agent by giving written notice of termination to the Authenticating Agent, the Operating Advisor, the Depositor and the Master Servicer. Upon receiving a notice of resignation or upon such a termination, or in case at any time the Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 3.18, the Certificate Administrator may appoint a successor Authenticating Agent, which shall be acceptable to the Depositor, and shall mail notice of such appointment to all Certificateholders. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with

 -173-

 

like effect as if originally named as Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 3.18.

The Authenticating Agent shall have no responsibility or liability for any action taken by it as such at the direction of the Certificate Administrator. Any compensation paid to the Authenticating Agent shall be an unreimbursable expense of the Certificate Administrator, as applicable.

Section 3.19     Appointment of Custodians. Wells Fargo Bank, National Association is hereby appointed as the initial Custodian. The Certificate Administrator may, at its own expense and with the consent of the Master Servicer, appoint one or more additional Custodians to hold all or a portion of the Mortgage Files on behalf of the Trustee and otherwise perform the duties set forth in Article II, by entering into a Custodial Agreement with any Custodian who is not the Depositor; provided that if the additional Custodian is an Affiliate of the Certificate Administrator such consent of the Master Servicer need not be obtained and the Certificate Administrator shall instead notify the Master Servicer of such appointment. The Certificate Administrator agrees to comply with the terms of each Custodial Agreement and to enforce the terms and provisions thereof against the Custodian for the benefit of the Certificateholders and the Companion Loan Holders. The Certificate Administrator shall not be liable for any act or omission of the Custodian under the Custodial Agreement, nor will the Certificate Administrator have any obligation to oversee the activities of a non-Affiliate Custodian. Each Custodian shall be a depository institution subject to supervision by federal or state authority, shall have a combined capital and surplus (or shall have its performance guaranteed by an Affiliate with a combined capital and surplus) of at least $10,000,000, shall have a long-term debt rating of at least “BBB” from Fitch and “A(low)” by DBRS Morningstar. Each Custodian shall be subject to the same obligations and standard of care as would be imposed on the Certificate Administrator hereunder in connection with the retention of the Mortgage File directly by the Certificate Administrator. The appointment of one or more Custodians shall not relieve the Certificate Administrator from any of its duties, liabilities or obligations hereunder. If the Custodian is an entity other than the Certificate Administrator, the Custodian shall maintain a fidelity bond in the form and amount that are customary for securitizations similar to the securitization evidenced by this Agreement. The Custodian shall be deemed to have complied with this provision if one of its Affiliates has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to the Custodian. In addition, the Custodian shall keep in force during the term of this Agreement a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its obligations hereunder in the form and amount that are customary for securitizations similar to the securitization evidenced by this Agreement. All fidelity bonds and policies of errors and omissions insurance obtained under this Section 3.19 shall be issued by a Qualified Insurer. For the avoidance of doubt, the Certificate Administrator shall bear no responsibility for any acts or omissions on the part of the Custodian.

Section 3.20     Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve Accounts. The Master Servicer shall administer each Lock-Box Account, Cash Collateral Account, Escrow Account and Reserve Account in accordance with the Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box Agreement, if any relating to the Whole Loan it is servicing.

 -174-

 

Section 3.21     Property Advances. (a)  The Master Servicer (or, to the extent provided in Section 3.21(c) of this Agreement, the Trustee) to the extent specifically provided for in this Agreement, shall make any Property Advances as and to the extent otherwise required pursuant to the terms hereof with respect to the Whole Loan. For purposes of distributions to Certificateholders and compensation to the Master Servicer, the Special Servicer or the Trustee, Property Advances shall not be considered to increase the Stated Principal Balance of the Whole Loan, notwithstanding that the terms of the Whole Loan so provide.

(b)           Notwithstanding anything in this Agreement to the contrary, the Special Servicer shall give the Master Servicer not less than five Business Days’ written notice with respect to any Property Advance to be made on a Specially Serviced Loan, before the date on which the Master Servicer is required to make such Property Advance with respect to a Specially Serviced Loan or an REO Loan; provided, however, that the Special Servicer shall be required to provide the Master Servicer with only two Business Days’ written notice in respect of Property Advances required to be made on an urgent or emergency basis (which may include, without limitation, Property Advances required to make tax or insurance payments). If the Master Servicer or the Trustee makes a Property Advance with respect to the Whole Loan, then it shall provide written notice to the related Other Servicer, Other Special Servicer and Other Trustee of the amount of such Property Advance with respect to the Whole Loan within two (2) Business Days of making such Property Advance.

(c)           The Master Servicer shall notify the Trustee and the Certificate Administrator in writing promptly upon, and in any event within one Business Day after, becoming aware that it will be unable to make any Property Advance required to be made pursuant to the terms hereof, and in connection therewith, shall set forth in such notice the amount of such Property Advance, the Person to whom it is to be paid, and the circumstances and purpose of such Property Advance, and shall set forth therein information and instructions for the payment of such Property Advance, and, on the date specified in such notice for the payment of such Property Advance, or, if the date for payment has passed or if no such date is specified, then within five Business Days following such notice, the Trustee, subject to the provisions of Section 3.21(d) of this Agreement, shall pay the amount of such Property Advance in accordance with such information and instructions.

(d)           The Special Servicer shall promptly furnish any party required to make Property Advances hereunder with any information in its possession regarding a Specially Serviced Loan or an REO Property as such party required to make Property Advances may reasonably request for purposes of making nonrecoverability determinations. Notwithstanding anything to the contrary in this Agreement, the Special Servicer shall have no obligation to make an affirmative determination that any Advance is, or would be, a Nonrecoverable Advance, and in the absence of a determination by the Special Servicer that such an Advance is a Nonrecoverable Advance, then all such decisions shall remain with the Master Servicer or the Trustee, as applicable.

Notwithstanding anything herein to the contrary, no Property Advance shall be required hereunder if the Person otherwise required to make such Property Advance determines that such Property Advance would, if made, constitute a Nonrecoverable Property Advance. In addition, the Master Servicer shall not make any Property Advance to the extent that it determines

 -175-

 

or has received written notice that the Special Servicer has determined that such Property Advance would, if made, constitute a Nonrecoverable Property Advance. In making such recoverability determination, such Person will be entitled to (i) give due regard to the existence of any Nonrecoverable Advance with respect to the Whole Loan, the recovery of which, at the time of such consideration, is being deferred or delayed by the Master Servicer or the Trustee, as applicable, in light of the fact that proceeds on the Whole Loan are a source of recovery not only for the Property Advance, Administrative Advance or P&I Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance which is being or may be deferred or delayed and (ii) consider (among other things) the obligations of the Borrowers under the terms of the Whole Loan as it may have been modified, (iii) consider (among other things) the Mortgaged Properties in their “as-is” or then-current condition and occupancy, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse changes with respect to the Mortgaged Properties, (iv) estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) (among other things) future expenses and (v) estimate and consider (among other things) the timing of recoveries.

If an Appraisal of any Mortgaged Property shall not have been obtained within the prior 9 month period (and the Master Servicer and the Trustee shall each request any such appraisal from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in the good faith determination of the Master Servicer, the Special Servicer or the Trustee, reflect current market conditions, and the Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to such Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund (and such expense shall be allocated in accordance with the allocation provision of the Co-Lender Agreement).

Any determination by the Master Servicer, Special Servicer or the Trustee that the Master Servicer or Trustee, as the case may be, has made a Property Advance that is a Nonrecoverable Property Advance or any determination by the Master Servicer, the Special Servicer or the Trustee that any proposed Property Advance, if made, would constitute a Nonrecoverable Property Advance shall be evidenced, in the case of the Master Servicer or the Special Servicer, by a certificate of a Servicing Officer delivered to the other, to the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor, the Companion Loan Holders and the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor, the Companion Loan Holders and the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), which in each case sets forth such recoverability determination and the considerations of the Master Servicer, the Special Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate to be accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the Master Servicer, the Special Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or

 -176-

 

any Updated Appraisal); provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Property Advance previously made or proposed to be made is nonrecoverable and shall deliver to the Master Servicer, the Certificate Administrator, the Trustee, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), the Operating Advisor, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), notice of such determination together with a certificate of a Servicing Officer and supporting information described above, if applicable. Any such determination shall be conclusive and binding on the Master Servicer, the Special Servicer and the Trustee. Notwithstanding the foregoing, the Special Servicer shall have no obligation to make an affirmative determination that any Advance is, or would be, a Nonrecoverable Advance, and in the absence of a determination by the Special Servicer that such an Advance is a Nonrecoverable Advance, then all such decisions shall remain with the Master Servicer.

Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that a Property Advance is a Nonrecoverable Advance) and (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) may obtain, at the expense of the Trust (and such expense shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement), any analysis, Appraisals or market value estimates or other information for such purposes. Absent bad faith, any such determination as to the recoverability of any Property Advance shall be conclusive and binding on the Certificateholders and the Companion Loan Holders.

Notwithstanding the above, the Trustee shall be entitled to rely conclusively on any determination by the Master Servicer and the Master Servicer and the Trustee shall be bound by any determination of the Special Servicer that a Property Advance, if made, would be a Nonrecoverable Property Advance. The Trustee, in determining whether or not a Property Advance previously made is, or a proposed Property Advance, if made, would be, a Nonrecoverable Property Advance shall be subject to the standards applicable to the Master Servicer hereunder.

With respect to the payment of insurance premiums and delinquent tax assessments, in the event that the Master Servicer determines that a Property Advance of such amounts would constitute a Nonrecoverable Advance, the Master Servicer shall deliver notice of such determination to the Trustee, the Certificate Administrator and the Special Servicer. Upon receipt of such notice, the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) and the Special Servicer (with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Property) shall determine (with the reasonable assistance of the Master Servicer) whether the payment of such amount (i) is necessary to preserve any Mortgaged Property and (ii) would be in the best interests of the Certificateholders and the Companion Loan Holders, as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender. If the Master Servicer or the Special Servicer determines that the payment of such amount (i) is necessary to preserve any Mortgaged Property and (ii) would be in the best interests of the Certificateholders and the Companion Loan Holders, as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender, the Master Servicer shall make such payment from the Collection Account to the extent of Available Funds or, in the

 -177-

 

case of a determination by the Special Servicer, the Special Servicer shall direct the Master Servicer in writing to make such payment and, in either case, the Master Servicer shall make such payment, to the extent of Available Funds, from amounts in the Collection Account.

Notwithstanding anything to the contrary contained in this Section 3.21, the Master Servicer may elect (but shall not be required) to make a payment out of the Collection Account to pay for certain expenses specified in this sentence notwithstanding that the Master Servicer has determined that a Property Advance with respect to such expenditure would be a Nonrecoverable Property Advance (unless, with respect to the Whole Loan if it is a Specially Serviced Loan or an REO Loan, the Special Servicer has notified the Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the Mortgaged Properties from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the Whole Loan; provided that in each instance, the Master Servicer determines in accordance with the Servicing Standard (as evidenced by a certificate of a Servicing Officer delivered to the Trustee and the Certificate Administrator) that making such expenditure is in the best interests of the Certificateholders and the Companion Loan Holders, all as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender. The Master Servicer may elect to obtain reimbursement of Nonrecoverable Property Advances from the Trust Fund in accordance with Section 3.06 of this Agreement.

(e)           The Master Servicer and/or the Trustee, as applicable, shall be entitled to the reimbursement of Property Advances made by it to the extent permitted pursuant to Section 3.06 of this Agreement, if applicable, of this Agreement, together with any related Advance Interest Amount in respect of such Property Advances, and the Master Servicer, the Special Servicer and the Trustee each hereby covenants and agrees to promptly seek and effect the reimbursement of such Property Advances from the Borrowers to the extent permitted by applicable law and the related Loan Documents.

(f)           If the Master Servicer, the Special Servicer or the Trustee, as applicable, determines that a proposed Property Advance, if made, or any outstanding Property Advance with respect to any such Whole Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance or if the Master Servicer, Special Servicer or Trustee, as applicable, subsequently determines that a proposed Property Advance would be a Nonrecoverable Advance or an outstanding Property Advance is or would be a Nonrecoverable Advance, the Master Servicer or Trustee, as applicable, shall provide the Other Servicer, Other Special Servicer and the Other Trustee under each related Other Pooling and Servicing Agreement with written notice of such determination, together with supporting evidence for such determination, promptly and in any event within two (2) Business Days after such determination or such longer time period permitted by the Co-Lender Agreement.

Section 3.22     Appointment of Special Servicer. (a)  Situs Holdings, LLC, is hereby appointed as the initial Special Servicer. During any Subordinate Control Period and subject to the right of the Operating Advisor to recommend the termination of the Special Servicer and recommend a replacement Special Servicer pursuant to Section 7.01(e), the Directing Holder

 -178-

 

shall have the right to direct the Trustee to terminate the Special Servicer as provided in Section 7.01(d) hereof.

(b)           At any time other than a Subordinate Control Period, the Special Servicer may be removed, and a successor Special Servicer appointed, at any time, upon (a) the written direction of holders of not less than 25% of the aggregate Voting Rights allocable to the Principal Balance Certificates requesting a vote to replace the Special Servicer with a new special servicer designated in such written direction, (b) payment by such holders to the Certificate Administrator of the reasonable fees and expenses (including any legal fees and any Rating Agency fees and expenses) to be incurred by the Certificate Administrator in connection with administering such vote and (c) delivery by such holders to the Certificate Administrator of a No Downgrade Confirmation (which No Downgrade Confirmations shall be obtained at the expense of those Holders requesting a vote), the Certificate Administrator shall promptly provide written notice to all Certificateholders of such request by posting such notice on its internet website, and by mail, and conduct the solicitation of votes of all Voting Rights in such regard. At any time other than during a Subordinate Control Period, upon the written direction of (i) Holders of Principal Balance Certificates evidencing at least 75% of a Certificateholder Quorum or (ii) Holders of Principal Balance Certificates evidencing more than 50% of the Voting Rights allocable to each Class of Non-Reduced Certificates, to remove the Special Servicer, the Trustee shall (x) terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint the successor Special Servicer designated by such Holders, provided that such termination is subject to the terminated Special Servicer’s rights to indemnification, payment of outstanding fees and other compensation, reimbursement of advances and other rights set forth in this Agreement which survive termination and (y) promptly notify such outgoing Special Servicer of the effective date of such termination; provided that if such written direction is not provided within 180 days of the notice from the Certificate Administrator of the request for a vote to terminate and replace the Special Servicer, then such written direction shall have no force and effect. The provisions set forth in the foregoing sentences of this paragraph shall be binding upon and inure to the benefit of solely the Certificateholders and the Trustee as between each other. The Special Servicer shall not have any cause of action based upon or arising from any breach or alleged breach of such provisions other than as may arise as a result of the failure to comply with the above described voting procedures. As between the Special Servicer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Special Servicer. The Holders of the Certificates and that initiated the vote to replace the Special Servicer shall pay the costs and expenses incurred in connection with the removal and replacement of the Special Servicer pursuant to this paragraph (including the costs associated with administering such vote). The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder and Beneficial Owner may access notices on the Certificate Administrator’s Website and each Certificateholder and Beneficial Owner may register to receive email notifications when such notices are posted on the Certificate Administrator’s Website; provided that the Certificate Administrator shall be entitled to reimbursement from the requesting Certificateholders or Beneficial Owner for the reasonable expenses of posting such notices.

(c)           The Trustee shall, promptly after receiving any removal notice pursuant to Section 3.22(b) of this Agreement or direction to terminate pursuant to Section 3.22(a) of this Agreement, so notify the Certificate Administrator, the Companion Loan Holders and the 17g-5

 -179-

 

Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement). The termination of the Special Servicer and appointment of a successor Special Servicer pursuant to this Section 3.22 shall not be effective until (i) the delivery of a No Downgrade Confirmation from each Rating Agency to the Trustee and a No Downgrade Confirmation with respect to the Companion Loan, (ii) the successor special servicer has assumed all of its responsibilities, duties and liabilities of the Special Servicer hereunder pursuant to a writing reasonably satisfactory to the Trustee, (iii) receipt by the Trustee of an Opinion of Counsel to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with this Agreement, (y) such replacement will be bound by the terms of this Agreement and (z) this Agreement will be enforceable against such replacement in accordance with its terms, (iv) the replacement Special Servicer certifies that such replacement special servicer satisfies all related qualifications set forth in the Co-Lender Agreement and (v) receipt by the Certificate Administrator (with a confirmation of such receipt delivered to the Trustee) of notice and information required to be delivered by the successor Special Servicer under Section 11.02 of this Agreement. Any successor Special Servicer shall make the representations and warranties provided for in Section 2.04(e) of this Agreement applicable to the Special Servicer mutatis mutandis. Further, such successor shall be a Person that satisfies all of the eligibility requirements applicable to special servicers contained in this Agreement; provided that the licensing requirements set forth in Section 2.04(e) may, with respect to any successor Special Servicer, be satisfied by a sub-servicer appointed by such successor Special Servicer in accordance with the terms of this Agreement.

The existing Special Servicer shall be deemed to have been removed simultaneously with such designated Person’s becoming the Special Servicer hereunder; provided, however, that the Special Servicer removed pursuant to this Section shall be entitled to receive, and shall have received, all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation and it shall continue to be entitled to any rights that accrued prior to the date of such resignation (including the right to receive all fees, expenses and other amounts accrued or owing to it under this Agreement, plus the right to receive any Workout Fee and/or Liquidation Fee specified in Section 3.12(c) of this Agreement in the event that the Special Servicer is terminated and any indemnification rights that the Special Servicer is entitled to pursuant to Section 6.03(a) of this Agreement) notwithstanding any such removal. Such removed Special Servicer shall cooperate with the Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer’s responsibilities and rights hereunder, including without limitation the transfer within two (2) Business Days to the successor Special Servicer for administration by it of all cash amounts that are thereafter received with respect to the Whole Loan.

(d)           The appointment of any such successor Special Servicer shall not relieve the Master Servicer or the Trustee of their respective obligations to make Advances as set forth herein; provided, however, that neither the Trustee nor the Master Servicer shall be liable for any actions or any inaction of such successor Special Servicer.

(e)           No penalty or fee shall be payable to the terminated Special Servicer with respect to any termination pursuant to this Section 3.22. All costs and expenses of any such termination made without cause shall be paid by the Trust as an Additional Trust Fund Expense.

 -180-

 

(f)           Notwithstanding anything to the contrary contained in this Section 3.22, if the Special Servicer becomes a Borrower Related Party, the Special Servicer shall resign as Special Servicer. In the event that the Special Servicer is required to resign as Special Servicer because it has become a Borrower Related Party, during any Subordinate Control Period or Subordinate Consultation Period, (i) if a Directing Holder has been appointed, the Directing Holder shall appoint a successor special servicer that is not a Borrower Related Party in accordance with this Agreement unless the Directing Holder is a Borrower Related Party, and (ii) if the Directing Holder is a Borrower Related Party or no Directing Holder has been appointed, then the largest Controlling Class Certificateholder (by Certificate Balance) that is not a Borrower Related Party shall be entitled to appoint a successor special servicer that is not a Borrower Related Party or (iii) if (a) the Directing Holder is a Borrower Related Party or no Directing Holder has been appointed and (b) there is no Controlling Class Certificateholder that is not a Borrower Related Party, then a successor special servicer shall be appointed as described in the next paragraph. None of the Master Servicer, the Depositor, the Operating Advisor, the Trustee or the Certificate Administrator shall have any obligation to determine if the Special Servicer is or has become a Borrower Related Party.

(g)           In the event that the Special Servicer is required to resign as Special Servicer because it has become a Borrower Related Party and either (i) a Subordinate Control Period or a Subordinate Consultation Period is in effect and (a) the Directing Holder is a Borrower Related Party or no Directing Holder has been appointed and (b) there is no Controlling Class Certificateholder that is not a Borrower Related Party or (ii) neither a Subordinate Control Period nor a Subordinate Consultation Period is in effect, then upon resignation of the Special Servicer, at the expense of the Trust, the Certificate Administrator shall promptly provide written notice of such resignation to all Certificateholders by posting such notice on the Certificate Administrator’s website and the successor special servicer shall be appointed upon the written direction of more than 50% of the Voting Rights of the Certificates that exercise their right to vote (provided that holders of at least 20% of the Voting Rights of the Certificates exercise their right to vote). If such successor special servicer has not been appointed pursuant to the immediately preceding sentence within 30 days after the Special Servicer has provided its written notice of resignation, the Certificate Administrator shall provide written notice to the resigning Special Servicer that such successor special servicer has not been appointed and such resigning Special Servicer shall use reasonable efforts to appoint such successor special servicer that is a Qualified Replacement Special Servicer and the agreement of a proposed successor to accept the same or lower compensation, and at the expense of the Trust, if such successor special servicer has not been appointed within 30 days after such notice by the Certificate Administrator to the resigning Special Servicer, the resigning Special Servicer shall petition any court of competent jurisdiction for the appointment of a successor special servicer.

(h)           Any appointment of a successor special servicer under clauses (f) or (g) of this Section 3.22 shall not be effective until the delivery of a No Downgrade Confirmation from each Rating Agency to the Trustee and a No Downgrade Confirmation with respect to the applicable Companion Loan(s).

(i)            The successor special servicer shall perform all of the obligations of the Special Servicer and will be entitled to all special servicing compensation earned during such time as the successor special servicer is acting as special servicer.

 -181-

 

Section 3.23        Transfer of Servicing Between the Master Servicer and the Special Servicer; Record Keeping; Asset Status Report. (a)  Upon the occurrence of any event specified in the definition of Specially Serviced Loan with respect to the Whole Loan of which the Master Servicer has notice, the Master Servicer shall promptly give notice thereof to the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Companion Loan Holders and the Trust Loan Sellers, and shall use efforts in accordance with the Servicing Standard to provide the Special Servicer with all information, documents (but excluding the original documents constituting the Mortgage File) and records (including records stored electronically) relating to the Whole Loan and reasonably requested by the Special Servicer to enable it to assume its duties hereunder with respect thereto without acting through a Sub-Servicer. The Master Servicer shall use efforts in accordance with the Servicing Standard to comply with the preceding sentence within five Business Days of the date it has notice of the occurrence of any event specified in the definition of Specially Serviced Loan and in any event shall continue to act as Master Servicer and administrator of the Whole Loan until the Special Servicer has commenced the servicing of the Whole Loan, which shall occur upon the receipt by the Special Servicer of the information, documents and records referred to in the preceding sentence. With respect to the Whole Loan that becomes a Specially Serviced Loan, the Master Servicer shall instruct the Borrowers to continue to remit all payments in respect of the Whole Loan to the Master Servicer. The Master Servicer shall forward any notices it would otherwise send to the Borrowers of a Specially Serviced Loan to the Special Servicer, which shall send such notice to the Borrowers.

Upon determining that a Specially Serviced Loan has become a Corrected Whole Loan, the Special Servicer shall immediately give notice thereof to the Master Servicer, and upon giving such notice, the Whole Loan shall cease to be a Specially Serviced Loan in accordance with the first proviso of the definition of Specially Serviced Loan, the Special Servicer’s obligation to service the Whole Loan shall terminate and the obligations of the Master Servicer to service and administer the Whole Loan as a Whole Loan that is not a Specially Serviced Loan shall resume.

(b)           In servicing a Specially Serviced Loan, the Special Servicer shall provide to the Custodian originals of documents included within the definition of “Mortgage File” for inclusion in the Mortgage File (to the extent such documents are in the possession of the Special Servicer) and copies of any additional Whole Loan information, including correspondence with the Borrowers, and the Special Servicer shall promptly provide copies of all of the foregoing to the Master Servicer as well as copies of any analysis or internal review prepared by or for the benefit of the Special Servicer.

(c)           Not later than two Business Days preceding each date on which the Master Servicer is required to furnish a report under Section 3.13(a) of this Agreement to the Certificate Administrator, the Special Servicer shall deliver to the Certificate Administrator, with a copy to the Trustee, the Operating Advisor and the Master Servicer, a written statement describing (i) the amount of all payments on account of interest received on a Specially Serviced Loan, the amount of all payments on account of principal, including Principal Prepayments, on a Specially Serviced Loan, the amount of Net Insurance Proceeds, Net Liquidation Proceeds and Net Condemnation Proceeds received with respect to a Specially Serviced Loan, and the amount of net income or net loss, as determined from management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any rental income that does not constitute Rents from Real Property with respect to the REO Property relating to a Specially Serviced Loan,

 -182-

 

in each case in accordance with Section 3.15 of this Agreement (it being understood and agreed that to the extent this information is provided in accordance with Section 3.13(f) of this Agreement, this Section 3.23(c) shall be deemed to be satisfied) and (ii) such additional information relating to a Specially Serviced Loan as the Master Servicer, the Certificate Administrator or the Trustee reasonably request, to enable it to perform its duties under this Agreement. Such statement and information shall be furnished to the Master Servicer in writing and/or in such electronic media as is acceptable to the Master Servicer.

(d)           Notwithstanding the provisions of the preceding Section 3.23(c), the Master Servicer shall maintain ongoing payment records with respect to a Specially Serviced Loan relating to the Trust Loan and shall provide the Special Servicer and the Operating Advisor with any information reasonably required by the Special Servicer or the Operating Advisor to perform its duties under this Agreement. The Special Servicer shall provide the Master Servicer with any information reasonably required by the Master Servicer to perform its duties under this Agreement.

(e)           No later than 60 days after the Whole Loan becomes a Specially Serviced Loan, the Special Servicer shall deliver to the Master Servicer, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), the Operating Advisor, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such report to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), a report (the “Asset Status Report”) with respect to the Whole Loan and the Mortgaged Properties. Such Asset Status Report shall set forth the following information to the extent reasonably determinable:

(i)           the date of transfer of servicing of the Whole Loan to the Special Servicer;

(ii)           a summary of the status of the Specially Serviced Loan and any negotiations with the Borrower;

(iii)           a discussion of the legal and environmental considerations reasonably known to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Whole Loan and whether outside legal counsel has been retained;

(iv)           the most current rent roll and income or operating statement available for the Mortgaged Properties;

(v)           (A) the Special Servicer’s recommendations on how the Specially Serviced Loan might be returned to performing status (including the modification of a monetary term, and any workout, restructure or debt forgiveness) and returned to the Master Servicer for regular servicing or foreclosed or otherwise realized upon (including any proposed sale of a Defaulted Mortgage Loan or REO Property), (B) a description of any such proposed or taken actions, and (C) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions;

(vi)           the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any

 -183-

 

negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the Whole Loan;

(vii)           a description of any amendment, modification or waiver of a material term of any ground lease;

(viii)           the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives;

(ix)           an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions;

(x)           the appraised value of the Mortgaged Properties together with the assumptions used in the calculation thereof, and a copy of the last obtained Appraisal of each Mortgaged Property; and

(xi)           such other information as the Special Servicer deems relevant in light of the Servicing Standard.

The Special Servicer shall, subject to the rights of the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period) and the Operating Advisor, take such actions consistent with the Servicing Standard and the Asset Status Report. The Special Servicer shall not take any action inconsistent with the Asset Status Report, unless such action would be required in order to act in accordance with the Servicing Standard, this Agreement, applicable law or the Loan Documents.

If, during any Subordinate Control Period, (i) the Directing Holder affirmatively approves in writing an Asset Status Report, (ii) after ten (10) Business Days from receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is reasonably necessary for the Directing Holder to make a decision regarding the Asset Status Report, the Directing Holder does not object to such Asset Status Report or (iii) within ten (10) Business Days after receipt of an Asset Status Report, together with all information in the possession of the Special Servicer that is reasonably necessary for the Directing Holder to make a decision regarding the Asset Status Report, the Directing Holder objects to such Asset Status Report and the Special Servicer makes a determination in accordance with the Servicing Standard that such objection is not in the best interest of all the Certificateholders, then the Special Servicer shall take the recommended actions described in the Asset Status Report. Within ten (10) Business Days after receipt of an Asset Status Report, together with all information reasonably requested by the Directing Holder in the possession of the Special Servicer that is reasonably necessary to make a decision regarding the Asset Status Report, the Directing Holder may object to such Asset Status Report; provided that following the occurrence of an extraordinary event with respect to any Mortgaged Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to any Mortgaged

 -184-

 

Property before the expiration of such ten (10) Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such action before the expiration of such ten (10) Business Day period would materially and adversely affect the interest of the Certificateholders, and, during any Subordinate Control Period, the Special Servicer has made a reasonable effort to contact the Directing Holder.

During any Subordinate Control Period, if the Directing Holder objects to an Asset Status Report within the above-referenced ten (10) Business Day period, then the Special Servicer (absent a determination set forth in clause (iii) of the first sentence of the immediately preceding paragraph) shall revise such Asset Status Report as soon as practicable thereafter, but in no event later than thirty (30) days after the objection to the Asset Status Report by the Directing Holder. During any Subordinate Control Period, the Special Servicer shall revise such Asset Status Report as provided in the prior paragraph until the earlier of (a) the delivery by the Directing Holder of an affirmative approval in writing of such revised Asset Status Report, (b) the failure of the Directing Holder to disapprove such revised Asset Status Report in writing within ten (10) Business Days of its receipt thereof and (c) the determination of the Special Servicer, consistent with the Servicing Standard, that the objection of the Directing Holder is not in the best interests of all the Certificateholders and the Companion Loan Holders. In any event, during any Subordinate Control Period, if the Directing Holder does not approve an Asset Status Report within ninety (90) days from the first submission of such Asset Status Report, or the Special Servicer’s determination to take the recommended action as provided in the immediately preceding paragraph, the Special Servicer shall take such action as set forth in the most recent Asset Status Report; provided that such action does not violate the Servicing Standard. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement the new action in such revised report so long as such revised report has been prepared, reviewed and either approved or not rejected as provided above. Upon request, each Initial Purchaser shall be entitled to a copy of any Asset Status Report.

During an Operating Advisor Consultation Period, the Special Servicer shall promptly deliver each Asset Status Report prepared for the Whole Loan and the Mortgaged Properties to the Operating Advisor and, during any Subordinate Consultation Period, the Directing Holder. The Operating Advisor shall provide comments to the Special Servicer in respect of the Asset Status Report, if any, within ten (10) Business Days following the later of receipt of (i) such Asset Status Report or (ii) such additional information reasonably requested by the Operating Advisor related thereto, and propose possible alternative courses of action to the extent it determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that are Holders of the Controlling Class) as a collective whole. The Special Servicer shall consider such alternative courses of action and any other feedback provided by the Operating Advisor (and, during any Subordinate Consultation Period, the Directing Holder) in connection with the Special Servicer’s preparation of any Asset Status Report. The Special Servicer may revise the Asset Status Report as it deems necessary to take into account any input and/or comments received in response from the Operating Advisor or the Directing Holder, to the extent the Special Servicer determines that the Operating Advisor’s and/or Directing Holder’s input and/or recommendations are consistent with the Servicing Standard and in the best interest of the Certificateholders as a collective whole. Promptly upon determining whether or not to revise any Asset Status Report to take into account any input and/or comments from the Operating Advisor or the Directing Holder, the Special Servicer shall revise the Asset Status Report, if

 -185-

 

applicable, and deliver to the Operating Advisor and the Directing Holder the revised Asset Status Report (until a Final Asset Status Report is issued).

The Asset Status Report is not intended to replace or satisfy any other specific consent or approval right which the Directing Holder may have.

The Special Servicer may not take any action inconsistent with an Asset Status Report that has been adopted as provided above, unless such action would be required in order to act in accordance with the Servicing Standard. During any Subordinate Control Period or any Subordinate Consultation Period, if the Special Servicer takes any action inconsistent with an Asset Status Report that has been adopted as provided above, the Special Servicer shall promptly notify the Directing Holder of such inconsistent action and provide a reasonably detailed explanation of the reasons therefor.

The Special Servicer shall deliver to the Master Servicer, the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period), the Operating Advisor, the 17g-5 Information Provider (which shall promptly post the same to the 17g-5 Information Provider’s Website), the Companion Loan Holders and, subject to Section 4.02(c), each Rating Agency a copy of each Final Asset Status Report, in each case with reasonable promptness following the adoption thereof.

Notwithstanding anything herein to the contrary: (i) the Special Servicer shall have no right or obligation to consult with or to seek and/or obtain consent or approval from the Directing Holder prior to acting (and provisions of this Agreement requiring such consultation, consent or approval shall be of no effect) during the period following any resignation or removal of the Directing Holder and before a replacement is selected and/or identified; and (ii) no advice, direction or objection from or by the Directing Holder or the Operating Advisor, as contemplated by Section 6.09 or pursuant to any other provision of this Agreement, as contemplated by this Agreement or any intercreditor agreement, may (and the applicable Special Servicer shall ignore and act without regard to any such advice, direction or objection that such Special Servicer has determined, in its reasonable, good faith judgment, would): (A) require or cause such Special Servicer to violate applicable law, the terms of the Loan Documents, any intercreditor agreement or any Section of this Agreement, including the Special Servicer’s obligation to act in accordance with the Servicing Standard, (B) result in the imposition of federal income tax on the Trust, cause any REMIC to fail to qualify as a REMIC, (C) expose the Trust, any Certificateholder, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, any Companion Loan Holder, any holders of Companion Loan Securities, any Other Depositor, any Other Servicers, any Other Special Servicer, any Other Operating Advisor or any of their respective Affiliates, members, managers, officers, directors, employees or agents, to any material claim, suit or liability or (D) materially expand the scope of the Master Servicer’s, Special Servicer’s, Certificate Administrator’s or Trustee’s responsibilities under this Agreement.

(f)           While the Whole Loan is a Specially Serviced Loan, the Special Servicer shall have the authority to meet with the Borrowers.

 -186-

 

(g)           The Special Servicer shall (x) deliver to the Certificate Administrator a proposed notice to Certificateholders that will include a summary of any Final Asset Status Report in an electronic format (which shall be a brief summary of the current status of the Mortgaged Properties and strategy with respect to the resolution and workout of the Trust Loan), and the Certificate Administrator shall post such summary on the Certificate Administrator’s Website pursuant to Section 4.02(b) and shall deliver such summary of any Asset Status Reports to the 17g-5 Information Provider (which shall post such summary to the website pursuant to Section 4.02(b)) and (y) implement the applicable Final Asset Status Report in the form delivered to the 17g-5 Information Provider pursuant to Section 3.23(e). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and, following the prompt delivery of such modified Asset Status Report to the 17g-5 Information Provider, which the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website pursuant to Section 4.02(b), implement such report.

Section 3.24           Special Instructions for the Master Servicer and/or Special Servicer. (a)  Prior to taking any action with respect to the Whole Loan secured by the Mortgaged Properties located in a “one-action” state, the Master Servicer or Special Servicer, as applicable, shall consult with legal counsel, the fees and expenses of which shall be an expense of the Trust Fund and shall be allocated in accordance with the allocation provisions of the Co-Lender Agreement.

(b)           The Master Servicer shall send written notice to the Borrowers and the Manager and clearing bank relating to the Whole Loan that, if applicable, it and/or the Trustee has been appointed as the “Designee” of the “Lender” under any related Lock-Box Agreement.

(c)           Without limiting the obligations of the Master Servicer hereunder with respect to the enforcement of the Borrower’s obligations under the Loan Documents, the Master Servicer agrees that it shall, in accordance with the Servicing Standard, enforce the provisions of the Loan Documents relating to the Whole Loan with respect to the collection of Prepayment Charges.

(d)           In the event that a Rating Agency shall charge a fee in connection with providing a No Downgrade Confirmation, the Master Servicer shall require the Borrowers to pay such fee to the extent not inconsistent with the applicable Loan Documents. In the event that such fee remains unpaid, such fee shall be an expense of the Trust Fund (allocated as an Additional Trust Fund Expense in the same manner as Realized Losses as set forth in Section 4.01(d) of this Agreement).

(e)           With respect to the Whole Loan, to the extent not inconsistent with the Whole Loan, neither the Master Servicer nor the Special Servicer, as applicable, shall consent to a change of franchise affiliation with respect to any Mortgaged Property, if applicable, or any property manager with respect to any Mortgaged Property or any material amendment to the Co-Lender Agreement or any mezzanine intercreditor agreement unless the Master Servicer or Special Servicer, as applicable, obtains a No Downgrade Confirmation relating to the Certificates and Companion Loan Securities, if any.

 -187-

 

(f)           To the extent not inconsistent with the Loan Agreement, the Master Servicer shall require a No Downgrade Confirmation if the Borrower proposed accounting firm is not a nationally recognized accounting firm, where lender has a right of approval under such Loan Agreement.

(g)           To the extent the Loan Agreement permits the lender to request an updated insolvency opinion, the Master Servicer or the Special Servicer, as applicable, shall request such insolvency opinion.

Section 3.25           Certain Rights and Obligations of the Master Servicer and/or the Special Servicer. In addition to its rights and obligations with respect to a Specially Serviced Loan, the Special Servicer has the right, whether or not the Whole Loan is a Specially Serviced Loan, to approve (i) Major Decisions to the extent described under Section 3.26 of this Agreement and (ii) certain waivers of due-on-sale or due-on-encumbrance clauses as described above under Section 3.09 of this Agreement. With respect to a Performing Loan, the Master Servicer shall promptly notify the Special Servicer of any request for approval (a “Request for Approval”) received relating to the Special Servicer’s above-referenced approval rights and forward to the Special Servicer written notice of any Request for Approval accompanied by its written recommendation and analysis and any other information or documents reasonably requested by the Special Servicer (to the extent such information or documents are in the Master Servicer’s possession). The Special Servicer shall have 15 Business Days (from the date that the Special Servicer receives the information it requested from the Master Servicer) to analyze and make a recommendation with respect to a Request for Approval with respect to a Performing Loan. If the Special Servicer does not respond within such 15 Business-Day period (or in connection with an Acceptable Insurance Default, 90 days) (unless earlier objected to), the Special Servicer’s consent shall be deemed given.

Section 3.26     Modification, Waiver, Amendment and Consents. (a)  Subject to Sections 3.25 and 3.26(f), and subject to the rights of the Directing Holder during any Subordinate Control Period or Subordinate Consultation Period and the Operating Advisor during any Operating Advisor Consultation Period (in the case of clause (ii) below), (i) the Master Servicer (subject to the Special Servicer’s consent if required pursuant to Sections 3.25 and Section 6.09(a)) or (ii) with respect to the Whole Loan if it is a Specially Serviced Loan, the Special Servicer may modify, waive or amend any term of the Whole Loan if such modification, waiver or amendment (A) is consistent with the Servicing Standard and (B) would not constitute a “significant modification” of the Whole Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise (1) cause either Trust REMIC to fail to qualify as a REMIC or (2) result in the imposition of a tax upon either Trust REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property” under Section 860G(c) of the Code). In order to meet the foregoing requirements in the case of a release of real property collateral securing the Whole Loan, the Master Servicer or Special Servicer, as applicable, shall observe the REMIC requirements of the Code with respect to a required payment of principal if the related loan-to-value ratio immediately after the release exceeds 125% with respect to the related real property.

 -188-

 

(b)           Neither the Master Servicer nor the Special Servicer shall extend the Maturity Date of the Whole Loan beyond the date that is the date occurring later than seven (7) years prior to the Rated Final Distribution Date.

(c)           Neither the Master Servicer nor the Special Servicer shall permit the Borrowers to add or substitute any collateral for the Whole Loan, which collateral constitutes real property, unless the Master Servicer or the Special Servicer, as applicable, shall have obtained a No Downgrade Confirmation relating to the Certificates and the Companion Loan Securities, if any.

(d)           Any payment of interest that is deferred pursuant to any modification, waiver or amendment permitted hereunder, shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders or Companion Loan Holders, be added to the unpaid principal balance of the Whole Loan, notwithstanding that the terms of the Whole Loan or such modification, waiver or amendment so permit.

(e)           Except for waivers of Penalty Charges and waivers of notice periods, all material modifications, waivers and amendments of the Whole Loan in accordance with this Section 3.26 of this Agreement shall be in writing.

(f)           The Master Servicer or the Special Servicer, as applicable, shall notify the Master Servicer (if the notice is given by the Special Servicer), the Trustee, the Certificate Administrator, the Depositor, the Directing Holder (during any Subordinate Control Period or any Subordinate Consultation Period), the Operating Advisor, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement), in writing, of any modification, waiver, material consent or amendment of any term of the Whole Loan and the date thereof, and shall deliver to the Custodian for deposit in the Mortgage File, an original counterpart of the agreement relating to such modification, waiver, material consent or amendment, promptly (and in any event within 10 Business Days) following the execution thereof.

(g)           The Master Servicer or the Special Servicer may (subject to the Servicing Standard), as a condition to granting any request by the Borrowers for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within its discretion pursuant to the terms of the instruments evidencing or securing the Whole Loan and is permitted by the terms of this Agreement and applicable law, require that the Borrowers pay to it (i) as additional servicing compensation, a reasonable and customary fee for the additional services performed in connection with such request (provided that the charging of such fee would not constitute a “significant modification” of the Whole Loan within the meaning of Treasury Regulations Section 1.860G-2(b)), and (ii) any related costs and expenses incurred by it. In no event shall the Master Servicer or the Special Servicer be entitled to payment for such fees or expenses unless such payment is collected from the Borrowers.

(h)           Notwithstanding the foregoing, the Master Servicer shall not permit the substitution of any Mortgaged Property pursuant to the defeasance provisions of the Whole Loan (or any portion thereof), if any, unless such defeasance complies with Treasury Regulations

 -189-

 

Section 1.860G-2(a)(8)(ii) and satisfies the conditions set forth in Section 3.09(h) of this Agreement.

(i)            Notwithstanding anything herein or in the Loan Documents to the contrary, the Master Servicer may permit the substitution of direct, non-callable “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, or any other securities that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) (including U.S. government agency securities if such securities are eligible defeasance collateral under then current guidelines of the Rating Agencies) for any Mortgaged Property pursuant to the defeasance provisions of the Whole Loan (or any portion thereof) in lieu of the defeasance collateral specified in the Loan Documents; provided that the Master Servicer receives an Opinion of Counsel (at the expense of the Borrowers to the extent permitted under the Loan Documents) to the effect that such use would not be and would not constitute a “significant modification” of the Whole Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or result in the imposition of a tax upon the Lower-Tier REMIC, the Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”).

(j)            Any modification, waiver or amendment of or consents or approvals relating to the Whole Loan that is a Specially Serviced Loan or an REO Loan shall be performed by the Special Servicer and not the Master Servicer.

(k)           The Special Servicer may grant a forbearance on the Whole Loan related to the global COVID-19 pandemic only if (i) such forbearance is permitted under another provision of this Agreement and the requirements under such provision are satisfied or (ii) an Opinion of Counsel is delivered to the effect that such forbearance will not result in an Adverse REMIC Event. The Special Servicer shall provide notice of any forbearance agreement to the 17g-5 Information Provider, who will post such notice to the 17g-5 Information provider’s website.

Section 3.27        [Reserved][Reserved][Reserved]

Section 3.28        No Downgrade Confirmation. (a)  Notwithstanding the terms of any Loan Documents or other provisions of this Agreement, if any action under the Loan Documents or this Agreement requires No Downgrade Confirmation from each Rating Agency as a condition precedent to such action, if the party (the “Requesting Party”) attempting to obtain such No Downgrade Confirmation from each Rating Agency has made a request to any Rating Agency for such No Downgrade Confirmation and, within ten (10) Business Days of the No Downgrade Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for No Downgrade Confirmation, then (i) such Requesting Party shall (without providing notice to the 17g-5 Information Provider) confirm that the applicable Rating Agency has received the No Downgrade Confirmation request, and, if it has not, promptly request the related No Downgrade Confirmation again, and (ii) if there is no response to either such No Downgrade Confirmation request within five (5) Business Days of such second request, or such Rating Agency has

 -190-

 

responded in a manner that indicates it is neither reviewing such request nor waiving the requirement for No Downgrade Confirmation, (x) with respect to any such condition in any Loan Document requiring such No Downgrade Confirmation, or any other matter under this Agreement relating to the servicing of the Whole Loan (other than as set forth in clause (y) below), the Requesting Party (or, if the Requesting Party is a Borrower, then the Master Servicer (with respect to the Whole Loan if it is a Performing Loan) or the Special Servicer (with respect to the Whole Loan if it is Specially Serviced Loan or an REO Loan), as applicable) shall determine, in accordance with its duties under this Agreement and in accordance with the Servicing Standard, except as provided in Section 3.28(b), whether or not such action would be in the best interests of the Certificateholders and the Companion Loan Holders (as a collective whole as if such Certificateholders and Companion Loan Holders constituted a single lender), and if the Requesting Party (or, if the Requesting Party is a Borrower, then the Master Servicer or the Special Servicer, as applicable) determines that such action would be in the best interest of the Certificateholders and the Companion Loan Holders (as a collective whole, as if such Certificateholders and Companion Loan Holders constituted a single lender), then the requirement for a No Downgrade Confirmation will be deemed not to apply as to the non-responding Rating Agency, and (y) with respect to a replacement of the Master Servicer or the Special Servicer, such condition shall be deemed to be satisfied with respect to a Rating Agency or a rating agency rating any Companion Loan Securities, as applicable, as follows: (i) Moody’s, if the replacement master servicer or special servicer, as applicable, has been appointed and currently serves as a master servicer or a special servicer, as applicable, on a transaction-level basis on a CMBS securitization transaction currently rated by Moody’s that currently has securities outstanding and for which Moody’s has not cited servicing concerns of the applicable replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities rated by Moody’s in a CMBS securitization transaction serviced by the applicable replacement master servicer or special servicer prior to the time of determination, if Moody’s is the non-responding rating agency; (ii) S&P, if the replacement master servicer or special servicer is listed on S&P’s Select Servicer List as a U.S. Commercial Mortgage Master Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable, if S&P is the non-responding rating agency; (iii) KBRA, if KBRA has not cited servicing concerns of the applicable replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a CMBS securitization transaction serviced by the applicable replacement master servicer or special servicer prior to the time of determination if KBRA is the non-responding rating agency; (iv) Fitch, if the applicable replacement master servicer or special servicer is rated at least “CMS3” (in the case of the master servicer) or “CSS3” (in the case of the special servicer), if Fitch is the non-responding rating agency; and (v) DBRS Morningstar, if (A) the applicable replacement master servicer or special servicer has a ranking by DBRS Morningstar higher than or equal to “MOR CS3” as a master servicer or special servicer, as applicable (if rated by DBRS Morningstar) or (B) the applicable replacement master servicer or special servicer, as applicable, is currently acting as a servicer or special servicer, as applicable, on a transaction-level basis on a CMBS transaction currently rated by DBRS Morningstar that currently has securities outstanding and for which DBRS Morningstar has not cited servicing concerns of the replacement master servicer or special servicer, as applicable, as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a

 -191-

 

ratings downgrade or withdrawal) of securities rated by DBRS Morningstar in a commercial mortgage-backed securitization transaction rated by DBRS Morningstar and serviced by the applicable replacement master servicer or special servicer, as applicable, prior to the time of determination, if DBRS Morningstar is the non-responding rating agency (clauses (i) through (v), “Qualified Servicer”).

Any No Downgrade Confirmation request made by the Master Servicer, Special Servicer, Certificate Administrator or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the No Downgrade Confirmation request, and shall contain all back-up material necessary for the applicable Rating Agency to process such request. Such written No Downgrade Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 3.14(d) of this Agreement.

Promptly following the Master Servicer’s or Special Servicer’s determination to take any action discussed in this Section 3.28(a) following any requirement to obtain a No Downgrade Confirmation being considered satisfied, the Master Servicer or Special Servicer, as the case may be, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.14(d) of this Agreement.

(b)           To the extent the Loan Documents permit the incurrence of a PACE Loan, the Master Servicer and Special Servicer, prior to permitting the incurrence of such PACE Loan, shall receive a No Downgrade Confirmation in accordance with Section 3.30(a). The Master Servicer and Special Servicer, as applicable, shall take all reasonable actions to collect all expenses accrued in connection with such request for a No Downgrade Confirmation from the Borrowers on behalf of the Trust Fund.

(c)           For all other matters or actions not specifically discussed in Section 3.28(a) above, the applicable Requesting Party shall deliver a No Downgrade Confirmation from each Rating Agency.

Section 3.29                   Certain Co-Lender Matters Relating to the Whole Loan. (a) Except for those duties to be performed by, and notices to be furnished by, the Trustee under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall perform such duties and furnish such notices, reports and information on behalf of the Trust Fund as may be the obligation of the Trust, or the obligation of the master servicer or the special servicer, as applicable, following securitization, under the Co-Lender Agreement.

(b)           The Master Servicer shall maintain a register (the “Companion Loan Noteholder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for the Companion Loan Holders from time to time, to the extent such information is provided in writing to the Master Servicer by the related Companion Loan Holder. Each Companion Loan Holder agrees to inform the Master Servicer of its name, address, taxpayer identification number and wiring instructions (to the extent

 -192-

 

the foregoing information is not already contained in the Co-Lender Agreement) and of any transfer thereof (together with any instruments of transfer). The name and address of the initial Companion Loan Holders as of the Closing Date are set forth on Schedule II hereto. The Master Servicer shall be entitled to conclusively rely upon the information delivered by the Companion Loan Holders including the identity of the controlling class representative in any related Other Securitization Trust until it receives notice of transfer or of any change in information.

In no event shall the Master Servicer be obligated to pay any party the amounts payable to the Companion Loan Holders hereunder other than the Persons listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that any Companion Loan Holder transfers their respective Companion Loan(s) without notice to the Master Servicer, the Master Servicer shall have no liability whatsoever for any misdirected payment on the Companion Loan and shall have no obligation to recover and redirect such payment.

The Master Servicer shall promptly provide the names and addresses of the Companion Loan Holders, including the identity of the controlling class representative in any related Other Securitization Trust, to any party hereto, any Companion Loan Holder or any successor thereto upon written request, and any such party or successor may, without further investigation, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such name and address.

(c)           The Directing Holder shall not owe any fiduciary duty to the Trustee, any Master Servicer, any Special Servicer, any Certificateholder (including the Directing Holder, if applicable) or any Companion Loan Holder, as applicable. The Directing Holder shall not have any liability to the Certificateholders (including the Directing Holder, if applicable), the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or any Companion Loan Holder, as applicable, for any action taken, or for refraining from the taking of any action or the giving of any consent, pursuant to this Agreement, or for errors in judgment.

(d)           The Directing Holder shall be entitled to exercise the consent rights, cure rights and purchase rights, as applicable, allocated to the Directing Holder to the extent set forth in the Co-Lender Agreement, in accordance with the terms of the Co-Lender Agreement and this Agreement.

(e)           The Special Servicer (with respect to the Companion Loan if the Companion Loan is a Specially Serviced Loan or has become a Serviced REO Loan) or the Master Servicer (otherwise), as applicable, shall take all actions relating to the servicing and/or administration of, and (subject to Section 3.13 and Section 3.17 of this Agreement and the following paragraph) the preparation and delivery of reports and other information with respect to, the Whole Loan or any related REO Property required to be performed by the holder of the Trust Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the Co-Lender Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of the Companion Loan:

(i)           none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and

 -193-

 

(ii)           the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the Companion Loan Holders to the extent, if any, required by the Co-Lender Agreement.

The Master Servicer or Special Servicer, as applicable, shall timely provide to the Companion Loan Holders any reports or notices required to be delivered to the Companion Loan Holders pursuant to the Co-Lender Agreement (provided, that to the extent that a Companion Loan has been included in an Other Securitization Trust, such reports or notices required to be delivered by the Special Servicer to the Companion Loan Holders shall be delivered to the controlling class representative for such Other Securitization Trust to the extent that the Special Servicer receives written notice of the identity of the controlling class representative for such Other Securitization Trust), and the Special Servicer shall reasonably cooperate with the Master Servicer and the Master Servicer shall reasonably cooperate with the Special Servicer in preparing/delivering any such report or notice with respect to special servicing matters.

If the Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust”, then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust.

The parties hereto acknowledge that no Companion Loan Holder shall (1) owe any fiduciary duty to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the Co-Lender Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that the Companion Loan Holders (i) may take or refrain from taking actions that favor its interests or the interests of its Affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the interests of the Certificateholders and shall be deemed to have agreed to take no action against the Companion Loan Holders or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its Affiliates.

The parties hereto recognize and acknowledge the respective rights of the Companion Loan Holders under the Co-Lender Agreement. Each of the rights of any Companion Loan Holder under or contemplated by this Section 3.31(e) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by such Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee.

Notwithstanding anything herein or in the Co-Lender Agreement to the contrary, no direction or objection by any Companion Loan Holder may require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of any Loan Agreement, applicable law, this Agreement, the Co-Lender Agreement or the REMIC Provisions, including without

 -194-

 

limitation the Master Servicer’s or Special Servicer’s obligation to act in accordance with the Servicing Standard, or expose the Master Servicer, the Special Servicer, the Depositor, a Trust Loan Seller, the Paying Agent, the Trust Fund, the Certificate Administrator or the Trustee to liability, or materially expand the scope of the Master Servicer’s or Special Servicer’s responsibilities hereunder.

Any reference to servicing of the Trust Loan or the Whole Loan in accordance with any of the related Loan Documents (including the related Note and Mortgage) shall also mean, in the case of the Companion Loan, in accordance with the Co-Lender Agreement.

To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to the Co-Lender Agreement are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.

For purposes of exercising any rights that the Directing Holder of the Trust Loan Note for any Trust Loan may have under the Co-Lender Agreement, the Directing Holder shall be the designee of the Trust, as such noteholder, and the Trustee shall, upon request, take such actions as may be necessary under the Co-Lender Agreement to effect such designation. Unless already provided through the Distribution Date Statement, the Certificate Administrator shall provide notice of the identity of the Directing Holder (to the extent the Certificate Administrator has received notice of a change in the identity of the Directing Holder), to the other parties to the Co-Lender Agreement, to the extent the identity and contact information of such parties to such Co-Lender Agreement are actually known to the Certificate Administrator.

(f)       With respect to the Trust Loan, the Master Servicer or the Special Servicer, as applicable, shall provide the Companion Loan Holders within the same time frame and to the same extent it is required to provide such information and materials to the Certificateholders or the Directing Holder, as applicable, hereunder with (1) copies of each financial statement received by the Master Servicer pursuant to the terms of the related Loan Documents, (2) copies of any notice of default sent to the Borrowers and (3) subject to the terms of the Loan Documents, copies of any other documents or information relating to the Trust Loan (including, without limitation, property inspection reports, loan servicing statements, Borrower requests and asset status reports) that the Master Servicer delivers to the related Directing Holder and copies of any other notice, information or report that it is required to provide to the Directing Holder pursuant to this Agreement with respect to any Major Decision or with respect to any “Major Decisions” or “major actions” as set forth in the related Co-Lender Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Trust Loan. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means, provided, however, CREFC^® reports shall be delivered at the times set forth in Section 3.13 in this Agreement.

(g)       With respect to the Whole Loan, if the Companion Loan becomes the subject of an “asset review” (or such analogous term defined in the related Other Pooling and Servicing Agreement) pursuant to the related Other Pooling and Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Custodian shall reasonably cooperate with the Other Asset Representations Reviewer or any other party to the Other Pooling and Servicing Agreement in connection with such asset review by providing the

 -195-

 

Other Asset Representations Reviewer or such other requesting party with copies of any documents reasonably requested by the Other Asset Representations Reviewer or such other requesting party, but only to the extent that (i) such asset representations reviewer or such other requesting party has not been able to obtain such documents from the related mortgage loan seller or any party to the related Other Pooling and Servicing Agreement, and (ii) such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be. For the avoidance of doubt, none of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian (i) shall have any further obligations with respect to any asset review nor shall any such party be bound by the results of any asset review, or (ii) shall be obligated to provide such documents if providing such documents, in its reasonable determination, would be a violation of this Agreement or any related intercreditor agreement.

Section 3.30        Horizontal Credit Risk Retention.

(a)           Any Successor Third Party Purchaser (if any), prior to its acquisition of the Class HRR Certificates, will be required to enter into a Credit Risk Retention Agreement with the Retaining Sponsor.

(b)           None of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator or the Custodian shall be obligated to monitor, supervise or enforce the performance of any party under the Credit Risk Retention Agreement.

Section 3.31        Resignation Upon Prohibited Credit Risk Retention Affiliation.

Upon the occurrence of (i) a Servicing Officer of the Master Servicer or a Responsible Officer of the Certificate Administrator or the Trustee, as applicable, obtaining actual knowledge that the Master Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become a Credit Risk Retention Affiliate of any Successor Third Party Purchaser (an “Impermissible TPP Affiliate”), (ii) the Master Servicer, the Certificate Administrator or the Trustee receiving written notice from any other party to this Agreement, any Successor Third Party Purchaser, any Trust Loan Seller or any Initial Purchaser that the Master Servicer, the Certificate Administrator or the Trustee, as applicable, is or has become an Impermissible TPP Affiliate, or (iii) an officer or manager of the Operating Advisor that is responsible for performing the duties of the Operating Advisor obtaining actual knowledge that it is or has become a Credit Risk Retention Affiliate of any Successor Third Party Purchaser or any other party to this Agreement (an “Impermissible Operating Advisor Affiliate”; and either of an Impermissible TPP Affiliate or an Impermissible Operating Advisor Affiliate being an “Impermissible Credit Risk Retention Affiliate”), then in each such case the Impermissible Credit Risk Retention Affiliate shall be required to promptly notify the Retaining Sponsor and the other parties to this Agreement and resign in accordance with Section 6.04, Section 6.11 or Section 8.07, as applicable. The resigning Impermissible Credit Risk Retention Affiliate will be required to bear all reasonable out-of-pocket costs and expenses of each other party to this Agreement, the Trust and the Rating Agency in connection with such resignation as and to the extent required under this Agreement; provided, that if the affiliation causing an Impermissible Credit Risk Retention Affiliate is the result of any Successor Third Party Purchaser acquiring an interest in such Impermissible Credit Risk Retention

 -196-

 

Affiliate or an affiliate of such Impermissible Credit Risk Retention Affiliate, then such costs and expenses will be an expense of the Trust.

ARTICLE IV

DISTRIBUTIONS TO CERTIFICATEHOLDERS

Section 4.01     Distributions. (a)  On each Distribution Date, amounts held in the Lower-Tier Distribution Account shall be withdrawn (to the extent of the Available Funds, including or reduced by, to the extent required by Section 3.05(f) of this Agreement, the Withheld Amounts and Prepayment Charges) in the case of all Classes of Lower-Tier Regular Interests (such amount, the “Lower-Tier Distribution Amount”). Each Class of Lower-Tier Regular Interests shall be deemed to have received interest at its related Pass-Through Rate on its Lower-Tier Principal Balance outstanding immediately prior to the related Distribution Date in accordance with the next sentence and distributions in respect of principal in an amount equal to the amount of principal actually distributable to its respective Corresponding Certificates as provided in Section 4.01(b) of this Agreement. Distributions of interest made in respect of any Class of Regular Certificates on each Distribution Date pursuant to Section 4.01(b) or Section 9.01 of this Agreement shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest set forth in the Preliminary Statement to this Agreement; provided that the Class LA Interest shall be deemed to have received distributions in respect of interest in an amount equal to the Interest Distribution Amount and Class Interest Shortfalls in respect of the Class X Certificates, to the extent actually distributable thereon as provided in Section 4.01(b) of this Agreement.

All distributions of reimbursements of Realized Losses made in respect of any Class of Principal Balance Certificates on each Distribution Date pursuant to Section 4.01(b) of this Agreement shall be deemed to have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in a manner such that the Lower-Tier Principal Balance of each of the Class LA, Class LB, Class LC, Class LD and Class LHRR equals the Certificate Balance of the Corresponding Certificates.

The Certificate Administrator shall be deemed to deposit the Lower-Tier Distribution Amount, Prepayment Charges and Withheld Amounts distributable to the Lower-Tier Regular Interests pursuant to Section 4.01(b) into the Upper-Tier Distribution Account. Any amount in respect of the Trust Loan that remains in the Lower-Tier Distribution Account on each Distribution Date after the deemed distribution described in the preceding sentence shall be distributed to the Holders of the Class LR Certificates (but only to the extent of such amount for such Distribution Date remaining in the Lower-Tier Distribution Account, if any).

(b)           On each Distribution Date the Certificate Administrator shall withdraw from the Upper-Tier Distribution Account the amounts deposited in the Upper-Tier Distribution Account in respect of such Distribution Date pursuant Section 4.01(a) of this Agreement, and

 -197-

 

distribute such amount to the Holders of the Regular Certificates and the Residual Certificates in the amounts and in the order of priority set forth below:

(i)           First, to the Class A and Class X Certificates, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts for such Classes;

(ii)          Second, to the Class A and Class X Certificates, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Class Interest Shortfalls for such Classes;

(iii)         Third, to the Class A Certificates, in reduction of the Certificate Balance thereof, an amount up to the Principal Distribution Amount for such Distribution Date, until the Certificate Balance of such Class is reduced to zero;

(iv)         Fourth, to the Class A Certificates, for the unreimbursed amounts of Realized Losses, if any, up to an amount equal to the aggregate of such unreimbursed Realized Losses previously allocated to such Class;

(v)          Fifth, to the Class B Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount of such Class;

(vi)         Sixth, to the Class B Certificates, in respect of interest, up to an amount equal to the Class Interest Shortfall for such Class;

(vii)        Seventh, to the Class B Certificates, in reduction of the Certificate Balance thereof, an amount up to the Principal Distribution Amount less the portion of the Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Balance of such Class is reduced to zero;

(viii)       Eighth, to the Class B Certificates, for the unreimbursed amounts of Realized Losses, if any, up to an amount equal to the aggregate of such unreimbursed Realized Losses previously allocated to such Class;

(ix)          Ninth, to the Class C Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount of such Class;

(x)           Tenth, to the Class C Certificates, in respect of interest, up to an amount equal to the Class Interest Shortfall for such Class;

(xi)          Eleventh, to the Class C Certificates, in reduction of the Certificate Balance thereof, an amount up to the Principal Distribution Amount less the portion of the Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Balance of such Class is reduced to zero;

(xii)         Twelfth, to the Class C Certificates, for the unreimbursed amounts of Realized Losses, if any, up to an amount equal to the aggregate of such unreimbursed Realized Losses previously allocated to such Class;

 -198-

 

(xiii)       Thirteenth, to the Class D Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount of such Class;

(xiv)       Fourteenth, to the Class D Certificates, in respect of interest, up to an amount equal to the Class Interest Shortfall for such Class;

(xv)        Fifteenth, to the Class D Certificates, in reduction of the Certificate Balance thereof, an amount up to the Principal Distribution Amount less the portion of the Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Balance of such Class is reduced to zero;

(xvi)       Sixteenth, to the Class D Certificates, for the unreimbursed amounts of Realized Losses, if any, up to an amount equal to the aggregate of such unreimbursed Realized Losses previously allocated to such Class;

(xvii)      Seventeenth, to the Class HRR Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount of such Class;

(xviii)     Eighteenth, to the Class HRR Certificates, in respect of interest, up to an amount equal to the Class Interest Shortfall for such Class;

(xix)        Nineteenth, to the Class HRR Certificates, in reduction of the Certificate Balance thereof, an amount up to the Principal Distribution Amount less the portion of the Principal Distribution Amount distributed pursuant to all prior clauses, until the Certificate Balance of such Class is reduced to zero;

(xx)         Twentieth, to the Class HRR Certificates, for the unreimbursed amounts of Realized Losses, if any, up to an amount equal to the aggregate of such unreimbursed Realized Losses previously allocated to such Class; and

(xxi)        Twenty-first, when the Certificate Balances of all Classes of Principal Balance Certificates have been reduced to zero and after payment in full of all unpaid expenses of the Trust, to the Class R, any amounts remaining in the Upper-Tier Distribution Account, and to the Class LR Certificates, any amounts remaining in the Lower-Tier Distribution Account.

All references to “pro rata” in the preceding clauses with respect to interest and Class Interest Shortfalls shall mean pro rata based on the amount distributable pursuant to such clauses, with respect to distribution of principal other than for unreimbursed Realized Losses shall mean pro rata based on Certificate Balance and with respect to distributions with respect to unreimbursed Realized Losses shall mean pro rata based on the amount of unreimbursed Realized Losses previously allocated to the applicable Classes.

(c)           On each Distribution Date, following the distribution from the Lower-Tier Distribution Account in respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a) of this Agreement, the Certificate Administrator shall make distributions of any Prepayment Charges received in the related Collection Period from amounts deposited in the Upper-Tier Distribution Account to (i) the holders of the Class A, Class B, Class C and Class D Certificates in an amount

 -199-

 

equal to the product of (a) a fraction, not greater than one, the numerator of which is the amount of principal distributed to such Class on such Distribution Date and the denominator of which is the total amount of principal distributed to the holders of the Principal Balance Certificates on such Distribution Date; (b) the Base Interest Fraction for the related Principal Prepayment and such Class of Certificates; and (c) such Prepayment Charges, and (ii) any Prepayment Charges remaining after such distributions to the Certificateholders described in clause (i) will be distributed to the Class X Certificates.

All Prepayment Charges so distributed shall first be deemed to have been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the related Lower-Tier Regular Interest whether or not the related Lower-Tier Regular Interest has received all distributions of interest and principal to which it is entitled.

On each Distribution Date, the Certificate Administrator shall withdraw from the Excess Interest Distribution Account any amounts on deposit therein that represent Excess Interest collected on the Trust Loan during the related Collection Period and shall distribute such amounts to the Class S Certificates.

(d)           On each Distribution Date, immediately following the distributions to be made on such date pursuant to Section 4.01(b), the Certificate Administrator shall calculate the amount, if any, of Realized Losses. Any allocation of Realized Losses to a Class of Principal Balance Certificates shall be made by reducing the Certificate Balance thereof by the amount so allocated. Any Realized Losses allocated to a Class of Principal Balance Certificates shall be allocated among the respective Certificates of such Class in proportion to the Percentage Interests evidenced thereby. The allocation of Realized Losses shall constitute an allocation of losses and other shortfalls experienced by the Trust Fund. Reimbursement of previously allocated Realized Losses will not constitute distributions of principal for any purpose and will not result in an additional reduction in the Certificate Balance of the applicable Class or in respect of which any such reimbursement is made.

The Certificate Balances of each Class of Principal Balance Certificates will be reduced without distribution on any Distribution Date as a write-off to the extent of any Realized Losses allocated to such Class with respect to such Distribution Date. Any Realized Losses allocated to the Certificates shall be applied to the Classes of Principal Balance Certificates in the following order, in each case until the Certificate Balance of such Class is reduced to zero: first, to the Class HRR Certificates; second, to the Class D Certificates; third, to the Class C Certificates; fourth, to the Class B Certificates; and finally, to the Class A Certificates based upon their respective Certificate Balances. Any amounts recovered in respect of amounts previously written off as Realized Losses shall be distributed to the Classes of Principal Balance Certificates described above in reverse order of allocation of Realized Losses thereto in accordance with Section 4.01(b) of this Agreement. Additional Trust Fund Expenses and shortfalls in Available Funds due to extraordinary expenses of the Trust Fund (including indemnification expenses), a reduction in the Trust Loan Rate on the Trust Loan by a bankruptcy court pursuant to a plan of reorganization or pursuant to any of its equitable powers, or otherwise, shall be treated as and allocated in the same manner as Realized Losses.

 -200-

 

With respect to any Distribution Date, any Realized Losses allocated to a Class of Principal Balance Certificates to Section 4.01(b) of this Agreement with respect to such Distribution Date shall reduce the Lower-Tier Principal Balances of the Lower-Tier Regular Interests as a write-off and shall be allocated among the Lower-Tier Regular Interests in the same priority as the Class of Corresponding Certificates.

(e)           All amounts distributable to a Class of Certificates pursuant to this Section 4.01 on each Distribution Date shall be allocated pro rata among the outstanding Certificates in each such Class based on their respective Percentage Interests. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor; provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five (5) Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

(f)           Except as otherwise provided in Section 9.01 with respect to an Anticipated Final Termination Date, the Certificate Administrator shall, as soon as reasonably practicable within the month preceding the month in which the final distribution with respect to any Class of Certificates is expected to be made, mail to each Holder of such Class of Certificates on such date a notice to the effect that:

(A)             the Certificate Administrator reasonably expects based upon information previously provided to it that the final distribution with respect to such Class of Certificates will be made on such Distribution Date, but only upon presentation and surrender of such Certificates at the office of the Certificate Administrator therein specified, and

(B)              if such final distribution is made on such Distribution Date, no interest shall accrue on such Certificates from and after such Distribution Date;

provided, however, that the Class R and Class LR Certificates shall remain outstanding until there is no other Class of Certificates or Lower-Tier Regular Interests outstanding.

Any funds not distributed to any Holder or Holders of such Classes of Certificates on such Distribution Date because of the failure of such Holder or Holders of Certificates to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section 4.01(f) shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Holders to surrender their Certificates for cancellation to receive the final distribution with respect thereto. If within one (1) year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may,

 -201-

 

directly or through an agent, take appropriate steps to contact the remaining non-tendering Holder or Holders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Holder(s) shall be paid out of such funds. If within two (2) years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall distribute to the Certificate Administrator all amounts distributable to the Holder(s) thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holder(s) until the earlier of (i) its termination as Certificate Administrator hereunder and the transfer of such amounts to a successor Certificate Administrator and (ii) subject to the applicable law, the termination of the Trust Fund and distribution of such amounts to the Class R Certificateholders. No interest shall accrue or be payable to any Holder on any amount held in trust hereunder or by the Certificate Administrator as a result of such Holder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.01(f). Any such amounts transferred to the Certificate Administrator may be invested in Permitted Investments and all income and gain realized from investment of such funds shall accrue for its benefit.

(g)           Any shortfalls in Available Funds resulting from Excess Prepayment Interest Shortfalls shall be allocated to, and Master Servicer Prepayment Interest Shortfall Amounts shall be deemed distributed to, the each Class of Certificates as follows: first, to the Class HRR Certificates, second, to the Class D Certificates, third, to the Class C Certificates, fourth, to the Class B Certificates, and finally, to the Class A Certificates and the Class X Certificates, pro rata based on their respective interest entitlements. Master Servicer Prepayment Interest Shortfall Amounts shall be deposited by the Master Servicer into the Collection Account on or prior to the Servicer Remittance Date.

Section 4.02     Statements to Certificateholders; Reports by Certificate Administrator; Other Information Available to the Holders and Others. (a)  On each Distribution Date, the Certificate Administrator shall make available on the Certificate Administrator’s Website to any Privileged Person a statement (substantially in the form set forth as Exhibit K to this Agreement and based in part on the information set forth in (i) the CREFC^® Investor Reporting Package (CREFC^® IRP) prepared by the Master Servicer (other than the CREFC^® Special Servicer Loan File) and the other reports prepared by the Master Servicer and Special Servicer relating to such Distribution Date, including the CREFC^® Special Servicer Loan File, upon which information the Certificate Administrator may conclusively rely, in accordance with CREFC^® guidelines and (ii) the CREFC^® Reconciliation of Funds Template prepared by the Certificate Administrator) as to distributions made on such Distribution Date (each, a “Distribution Date Statement”) setting forth (with respect to each Class of Certificates) the following information:

(i)           the Record Date, Certificate Interest Accrual Period, and Determination Date for such Distribution Date;

(ii)           the aggregate amount of the distribution to be made on such Distribution Date to the Holders of each Class of Certificates;

(iii)         the aggregate amount of the distribution to be made on such Distribution Date to the Holders of each Class of Certificates allocable to (A) the Interest Distribution Amount and/or (B) Class Interest Shortfalls;

 -202-

 

(iv)         the aggregate amount of Advances made in respect of the Distribution Date and the amount of interest paid on Advances since the prior Distribution Date (including, to the extent material, the general use of funds advanced and general source of funds for reimbursements);

(v)          the aggregate amount of compensation paid to the Trustee and the Certificate Administrator and servicing compensation paid to the Master Servicer, the Special Servicer and the Operating Advisor for the related Determination Date, CREFC^® and any other fees or expenses accrued and paid from the Trust Fund;

(vi)         the Stated Principal Balance of the Trust Loan or REO Loan outstanding immediately before and immediately after the Distribution Date;

(vii)        the remaining term to maturity and the mortgage rate of the Trust Loan as of the related Determination Date;

(viii)       whether the Trust Loan is (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 days or more or (D) current but is a Specially Serviced Loan or in foreclosure (but not REO Loan);

(ix)          the Available Funds for such Distribution Date, and any other cash flows received on the Trust Loan and applied to pay fees and expenses (including the components of the Available Funds, or such other cash flows);

(x)           the amount of the distribution on the Distribution Date to any Class of Certificates allocable to Prepayment Charges;

(xi)         the accrued Interest Distribution Amount in respect of each Class of Certificates for such Distribution Date;

(xii)        the Pass-Through Rate for each Class of Certificates for the Distribution Date;

(xiii)       (A) the Principal Distribution Amount for the Distribution Date and (B) the portion of the Principal Distribution Amount distributed to each Class of Principal Balance Certificates, for the Distribution Date;

(xiv)       the aggregate Certificate Balance or aggregate Notional Amount, as the case may be of each Class of Certificates, before and after giving effect to the distributions made on such Distribution Date, separately identifying any reduction in the aggregate Certificate Balance (or, if applicable, the aggregate Notional Amount) of each such Class due to Realized Losses and/or Additional Trust Fund Expenses;

(xv)        the fraction, expressed as a decimal carried to at least eight places, the numerator of which is the then related Certificate Balance, and the denominator of which is the related initial Certificate Balance, for each Class of Certificates, immediately following the Distribution Date;

 -203-

 

(xvi)       the amount of any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocated during the related Collection Period and the total Appraisal Reduction Amounts and Collateral Deficiency Amounts as of the Distribution Date;

(xvii)      a statement as to whether the Trust Loan was modified, extended or waived during the related Collection Period (including a description of any material modifications, extensions or waivers to Trust Loan terms, fees, penalties or payments during the Collection Period or that have cumulatively become material over time);

(xviii)     the amount of any remaining unpaid Class Interest Shortfalls for each Class of Certificates as of the Distribution Date;

(xix)        a statement as to whether the Trust Loan was the subject of a Principal Prepayment (other than Liquidation Proceeds and Insurance Proceeds) during the related Collection Period and the amount of Principal Prepayment occurring, together with the aggregate amount of Principal Prepayments made during the related Collection Period;

(xx)         a statement as to whether the Trust Loan was defeased during the related Collection Period;

(xxi)        the amount of the distribution to the holders of each Class of Certificates on the Distribution Date attributable to reimbursement of Realized Losses;

(xxii)       if a repurchase of any portion of the Trust Loan was made by the Trust Loan Sellers or the Trust Loan was otherwise liquidated or disposed of during the related Collection Period, the amount of proceeds of any repurchase of the Trust Loan, Liquidation Proceeds and/or other amounts, if any, received thereon during the related Collection Period and the portion thereof included in the Available Funds for such Distribution Date;

(xxiii)      the amount on deposit in the Interest Reserve Account before and after giving effect to the distribution made on such Distribution Date;

(xxiv)      the then-current credit support levels for each Class of Principal Balance Certificates;

(xxv)       the original and then-current ratings of each Class of Certificates;

(xxvi)      if the Mortgaged Properties become an REO Property during the preceding calendar month, the latest Debt Service Coverage Ratio and the current Stated Principal Balance;

(xxvii)     if the Mortgaged Properties became an REO Property during the preceding calendar month, the value of any REO Property included in the Trust Fund at the close of business on the Determination Date based on the most recent appraisal;

(xxviii)    with respect to an REO Property sold or otherwise disposed of during the related Collection Period and for which a Final Recovery Determination has been made, (A) the Realized Loss attributable to the Trust Loan, (B) the amount of sale proceeds and

 -204-

 

other amounts, if any, received in respect of the REO Property during the related Collection Period and the portion thereof included in the Available Funds for such Distribution Date and (C) the date of the Final Recovery Determination;

(xxix)       the amount of the distribution on the Distribution Date to the holders of the Residual Certificates;

(xxx)        material breaches of Trust Loan representations and warranties or any covenants of which the Operating Advisor, the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer has received written notice;

(xxxi)       the amount of Realized Losses, Additional Trust Fund Expenses and Class Interest Shortfalls, if any, incurred with respect to the Trust Loan during the related Collection Period and in the aggregate for all prior Collection Periods (except to the extent reimbursed or paid);

(xxxii)      an itemized listing of any Disclosable Special Servicer Fees received by the Special Servicer or any of its Affiliates during the related Collection Period; and

(xxxiii)     the identity of the Controlling Class;

(xxxiv)     the identity of the Directing Holder;

(xxxv)      the amount of any CREFC^® License Fee payable on such Distribution Date; and

(xxxvi)     a statement that there is available on the website of the Certificate Administrator information regarding ongoing compliance by the Retaining Party, the Retaining Sponsor or any Successor Third Party Purchaser with certain specified provisions of the Credit Risk Retention Rules, which will be posted on the “Risk Retention Special Notices” tab of the Certificate Administrator’s website.

In the case of information furnished pursuant to sub-clauses (ii), (iii), (iv), (vi), (xi), (xiii), (xix) and (xxi) above, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per $1,000 of original Certificate Balance or Notional Amount, as the case may be.

On each Distribution Date, the Certificate Administrator shall make available to each Holder of a Class R or Class LR Certificate a copy of the reports made available to the other Certificateholders on such Distribution Date and a statement setting forth the amounts, if any, actually distributed with respect to the Class R or Class LR Certificates on such Distribution Date. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that it provided substantially comparable information pursuant to any requirements of the Code as from time to time in force.

Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish, upon request, to each Person who at any time during the calendar year was a Certificateholder of record, a report summarizing on an annual basis (if

 -205-

 

appropriate) the items provided to Certificateholders pursuant to clauses (i) and (ii) above as to the applicable Class, aggregated for such calendar year or applicable portion thereof during which such person was a Certificateholder, together with such other information as may be required to enable such Certificateholders to prepare their federal income tax returns. Such information shall include the amount of original issue discount accrued on each Class of Certificates held by Persons other than Holders exempted from the reporting requirements and information regarding the expenses of the Trust Fund. Such requirement shall be deemed to be satisfied to the extent such information is provided pursuant to applicable requirements of the Code from time to time in force.

On each Distribution Date, the Certificate Administrator shall deliver the related Distribution Date Statement to the Depositor in electronic format at dbinvestor@list.db.com (or to such other address as the Depositor shall specify by written notice to the Certificate Administrator).

(b)         The Certificate Administrator shall make available via the Certificate Administrator’s Website, to any Privileged Person, the following items, in each case to the extent received by the Certificate Administrator:

(i)           the following “deal documents”:

(A)             the Offering Circular;

(B)              this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator from and after the Closing Date (if any), the Trust Loan Purchase Agreements and any amendments and exhibits hereto or thereto; and

(C)              the CREFC^® Loan Setup File prepared by the Master Servicer and delivered to the Certificate Administrator;

(ii)         the following “periodic reports”:

(A)             the Distribution Date Statements;

(B)              the supplemental reports and the CREFC^® data files (other than the CREFC^® Loan Setup File and the CREFC^® Special Servicer Loan File) identified as such in the definition of “CREFC^® Investor Reporting Package (CREFC^® IRP)”, to the extent it has received or prepared such report or file; and

(C)              any annual reports provided by the Operating Advisor;

(iii)         the following “additional documents”:

(A)             the summary of any Asset Status Report delivered to the Certificate Administrator in electronic format;

(B)              any other Third Party Reports (or updates thereto) delivered to the Certificate Administrator in electronic format; and

(C)              the CREFC^® Appraisal Reduction Template;

 -206-

 

(iv)        the following “special notices”:

(A)             all Special Notices;

(B)              notice of any waiver, modification or amendment of any term of the Trust Loan;

(C)              notice of final payment on the Certificates;

(D)             all notices of the occurrence of any Servicer Termination Events or Operating Advisor Termination Event received by the Certificate Administrator;

(E)              notice of termination or resignation of the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee (and appointments of successors to the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee);

(F)              any notice to Certificateholders of the Operating Advisor’s recommendation to replace the Special Servicer and the related report prepared by the Operating Advisor in connection with such recommendation;

(G)             any and all Officer’s Certificates and other evidence delivered to the Certificate Administrator supporting the Master Servicer’s, the Trustee’s or the Special Servicer’s, as the case may be, determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

(H)             any notice of the termination of the Trust;

(I)             any notice of the termination of a Subordinate Control Period;

(J)              any notice of the termination of a Subordinate Consultation Period;

(K)             any notice of the occurrence of or termination of an Operating Advisor Consultation Period;

(L)            the annual assessments as to compliance (in the case of the Master Servicer and the Special Servicer) and the Officer’s Certificates delivered by the Master Servicer, the Special Servicer and the Operating Advisor to the Certificate Administrator since the Closing Date pursuant to Section 3.28 of this Agreement; and

(M)            the annual independent public accountants’ servicing report caused to be delivered by the Master Servicer and the Special Servicer to the Certificate Administrator since the Closing Date pursuant to Section 3.28 of this Agreement;

(v)         the Investor Q&A Forum;

(vi)        solely to Certificateholders and Beneficial Owners, the Investor Registry

 -207-

 

(vii)         the following “Risk Retention Special Notices”, if any, and in each case, to the extent such notice is provided by the Retaining Sponsor:

(A)             the fair value of the Class HRR Certificates as of the Closing Date and the fair value of the “eligible horizontal residual interest” (as such term is defined in the Credit Risk Retention Rules) that the Retaining Sponsor would have been required to retain under the Credit Risk Retention Rules;

(B)              any material differences between (a) the valuation methodology or any of the key inputs and assumptions that were used in calculating the fair value or range of fair values disclosed in the Offering Circular under the heading “Credit Risk Retention” prior to the pricing of the Certificates and (b) the valuation methodology or the key inputs and assumptions that were used in calculating the fair values referred to in clause (A) above; and

(C)              any noncompliance of the applicable Credit Risk Retention Rules by the Retaining Party, the Retaining Sponsor or any Successor Third Party Purchaser as and to the extent the Retaining Sponsor is required under the Credit Risk Retention Rules.

The Certificate Administrator may require a receipt of any of the information set forth above to execute a confidentiality agreement (which may be in the form of a web page “click through”). In addition to posting the applicable notices on the “Risk Retention Special Notices” tab described above, the Certificate Administrator shall provide e-mail notification to any Privileged Person (other than Financial Market Publishers) that has registered to receive access to the Certificate Administrator’s website that a notice has been posted to the “Risk Retention Special Notices” tab.

Any Person (including the Directing Holder, any Controlling Class Certificateholder or any Companion Loan Holder) that is a Borrower Related Party shall only be entitled to access the Distribution Date Statements, and the following items to the extent that they are made available to the general public on the Certificate Administrator’s Website: this Agreement, the Trust Loan Purchase Agreements and any SEC filings.

In the case of the Directing Holder or a Controlling Class Certificateholder that is not a Borrower Related Party, upon delivery of an investor certification substantially in the form of Exhibit L-1-A hereto, such Directing Holder or Controlling Class Certificateholder shall be entitled to access all information on the Certificate Administrator’s Website. The Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee may each conclusively rely on (i) an investor certification in the form of Exhibit L-1-A hereto from the Directing Holder or a Controlling Class Certificateholder to the effect that such Person is not a Borrower Related Party and (ii) an investor certification in the form of Exhibit L-1-B hereto from the Directing Holder or a Controlling Class Certificateholder to the effect that such Person is a Borrower Related Party. In the event the Directing Holder or a Controlling Class Certificateholder becomes a Borrower Related Party, such party shall promptly notify each of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in writing substantially in the form of Exhibit L-1-D that such party is a Borrower Related Party.

 -208-

 

Notwithstanding anything herein to the contrary, each of the Master Servicer, the Special Servicer, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively assume that the Directing Holder and all beneficial owners of the Certificates of the Controlling Class are not Conflicted Controlling Class Holders except to the extent that the Master Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator, as applicable, has received such notice from the Directing Holder or a Controlling Class Certificateholder that it has become a Borrower Related Party. None of the Master Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator shall be liable for any communication to the Directing Holder or Controlling Class Certificateholder or disclosure of Privileged Information if the Master Servicer, the Special Servicer, the Operating Advisor or the Certificate Administrator, as applicable, did not receive prior written notice that the Directing Holder or a Controlling Class Certificateholder is a Borrower Related Party.

To the extent the Directing Holder or a Controlling Class Certificateholder receives access pursuant to this Agreement to the Certificate Administrator’s Website as a Privileged Person, such Directing Holder or Controlling Class Certificateholder shall be deemed to have agreed that it (i) will not directly or indirectly provide any information to the Borrowers or to any Conflicted Controlling Class Holder or (A) any employees or personnel of such Directing Holder or Controlling Class Certificateholder or any Affiliate involved in the management of any investment in the Borrowers or the Mortgaged Properties or (B) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the Borrowers, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

The Certificate Administrator makes no representations or warranties as to the accuracy or completeness of such information and assumes no responsibility therefor. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by the Certificate Administrator for which it is not the original source. The Certificate Administrator shall not be responsible for the accuracy or completeness of any information supplied to it by the Master Servicer or, Special Servicer or Operating Advisor that is included in any reports, statements, materials or information prepared or provided by the Master Servicer or, Special Servicer or Operating Advisor, as applicable, and the Certificate Administrator shall be entitled to conclusively rely upon the Master Servicer’s reports and, the Special Servicer’s reports and the Operating Advisor’s reports without any duty or obligation to recompute, verify or re-evaluate any of the amounts or other information stated therein. In connection with providing access to the Certificate Administrator’s website, the Certificate Administrator may require registration and the acceptance of a disclaimer. The Certificate Administrator shall not be liable for the dissemination of information in accordance herewith. The Certificate Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information only by virtue of its receipt and posting of such information to the Certificate Administrator’s website or its filing of such information pursuant to this Agreement.

The Certificate Administrator shall have no any liability for access by a Conflicted Controlling Class Holder to the Certificate Administrator’s Website of any information with respect to which such Conflicted Controlling Class Holder is prohibited from accessing pursuant to this Agreement if such Conflicted Controlling Class Holder provided an Investor Certification but did not indicate it was a Borrower Related Party.

 -209-

 

The provisions in this Section shall not limit the Master Servicer’s ability to make accessible certain information regarding the Trust Loan at a website maintained by the Master Servicer. In providing access to any information, the Master Servicer shall be entitled to rely on the certifications delivered to it pursuant to and in accordance with the terms of this Agreement. The Master Servicer shall not be liable for the dissemination of information in accordance with this Agreement.

(c)           The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where (i) Certificateholders and Beneficial Owners may (a) submit questions to the Certificate Administrator relating to the Distribution Date Statement, (b) submit questions to the Master Servicer or the Special Servicer, as applicable, relating to the reports being made available pursuant to this Section 4.02(c), the Trust Loan or the Mortgaged Properties and (c) submit questions to the Operating Advisor relating to the Operating Advisor’s annual report or other reports prepared by the Operating Advisor or actions by the Special Servicer reference in any Operating Advisor annual report (collectively, “Inquiries”), and (ii) Privileged Persons may view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the Master Servicer, the Special Servicer or the Operating Advisor, the Certificate Administrator shall forward the Inquiry to the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, in each case within a commercially reasonable period following receipt thereof. Following receipt of an Inquiry, the Certificate Administrator, the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, unless it determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the Master Servicer, Special Servicer or Operating Advisor shall be sent by email to the Certificate Administrator. The Certificate Administrator shall post (within a commercially reasonable period following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Investor Q&A Forum. If the Certificate Administrator, the Master Servicer, the Special Servicer or the Operating Advisor determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope outlined above, (ii) answering any Inquiry would not be in the best interests of the Trust, the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender), (iii) answering any Inquiry would be in violation of applicable law, this Agreement or the Loan Documents, (iv) answering any Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or the disclosure of attorney work product, (v) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, or (vi) answering any Inquiry is otherwise for any reason not advisable to answer, it shall not be required to answer such Inquiry, in which case the Certificate Administrator shall not post the related inquiry. In addition, no party shall post or otherwise disclose information known to such party to be Privileged Information as part of its response to any Inquiry without the prior written consent of the Depositor. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. The Certificate Administrator shall not be required to post to the Investor Q&A Forum any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. The Special Servicer shall not post or otherwise disclose direct communications with the Directing Holder as part of its response to any Inquiries; provided that the Certificate Administrator shall have no obligation to review any inquiry or answer received by it for posting to the Investor Q&A Forum to determine if such

 -210-

 

inquiry or answer contains any such direct communication with the Directing Holder, or otherwise to consult with the party from whom such Inquiry or answer is received to confirm the same, and the Certificate Administrator shall have no liability in connection with its posting to the Investor Q&A Forum of any Inquiry or answer containing such direct communication. The Investor Q&A Forum will not reflect questions, answers and other communications between the Certificate Administrator or any other Person which are not submitted via the Investor Q&A Forum.

(d)           The Certificate Administrator shall make available to any Certificateholder, and Beneficial Owner, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Beneficial Owners can register and thereafter obtain contact information with respect to any other Certificateholder or Beneficial Owner that has so registered. Any person registering to use the Investor Registry will be required to certify that (a) it is a Certificateholder or a Beneficial Owner and (b) it grants authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least 45 days from the date of such certification to other registered Certificateholders and registered Beneficial Owners. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Beneficial Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within 45 days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator shall not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.

(e)           The Master Servicer may, but is not required to, at its sole cost and expense, make any of the reports or files it delivers pursuant to this Agreement available on the Master Servicer’s Website only with the use of a password, in which case the Master Servicer shall provide such password to (i) the other parties to this Agreement, who by their acceptance of such password shall be deemed to have agreed not to disclose such password to any other Person and (ii) each Certificateholder and prospective Certificateholder who requests such password, provided that any such Certificateholder or prospective Certificateholder, as the case may be, has delivered an Investor Certification to the Trustee, the Certificate Administrator and the Master Servicer. In connection with providing access to the Master Servicer’s Website, the Master Servicer may require registration and the acceptance of a disclaimer and otherwise (subject to the preceding sentence) adopt reasonable rules and procedures, which may include, to the extent the Master Servicer deems necessary or appropriate, conditioning access on execution of an agreement governing the availability, use and disclosure of such information, and which may provide indemnification to the Master Servicer for any liability or damage that may arise therefrom. The Master Servicer shall not be liable for dissemination of this information in accordance with this Agreement; provided that such information otherwise meets the requirements set forth herein with respect to the form and substance of such information or reports. The Master Servicer shall be entitled to attach to any report provided pursuant to this subsection, any reasonable disclaimer with respect to information provided, or any assumptions required to be made by such report. Notwithstanding anything herein to the contrary, the Master Servicer may, at its sole cost and expense, make available by electronic media, bulletin board service or Internet website any reports

 -211-

 

or other information the Master Servicer is required or permitted to provide to the Borrowers with respect to the Borrowers’ Whole Loan to the extent such action does not conflict with the terms of this Agreement, the terms of the Loan Documents or applicable law. If the Master Servicer is required to deliver any statement, report or other information under any provision of this Agreement, then, the Master Servicer may satisfy such obligation by (x) physically delivering a paper copy of such statement, report or information, (y) delivering such statement, report or information in a commonly used electronic format, or (z) making such statement, report or information available on the Master Servicer’s Website, unless this Agreement expressly specifies a particular method of delivery; provided that all reports required to be delivered to the Certificate Administrator shall be delivered in accordance with clause (x) or (y) or, upon request, clause (z).

(f)           The Special Servicer shall from time to time (and, in any event, as may be reasonably required by the Master Servicer) provide the Master Servicer with such information in its possession regarding a Specially Serviced Loan or an REO Property as may be reasonably necessary for the Master Servicer to prepare each report and any supplemental information to be provided by the Master Servicer to the Certificate Administrator. Neither the Certificate Administrator nor the Depositor shall have any obligation to recompute, verify or recalculate the information provided thereto by the Master Servicer. Unless the Certificate Administrator has actual knowledge that any report or file received from the Master Servicer contains erroneous information, the Certificate Administrator is authorized to rely thereon in calculating and making distributions to Certificateholders and allocating Realized Losses to the Certificates in accordance with Section 4.01 of this Agreement and preparing the statements to Certificateholders required by Section 4.02(a) of this Agreement.

(g)           As soon as reasonably practicable, upon the written request of and at the expense of any Certificateholder, the Certificate Administrator shall provide the requesting Certificateholder with such information that is in the Certificate Administrator’s possession or can reasonably be obtained by the Certificate Administrator as is requested by such Certificateholder, for purposes of satisfying applicable reporting requirements under Rule 144A under the Securities Act. Neither the Certificate Registrar nor the Certificate Administrator shall have any responsibility for the sufficiency under Rule 144A or any other securities laws of any available information so furnished to any person including any prospective purchaser of a Certificate or any interest therein, nor for the content or accuracy of any information so furnished which was prepared or delivered to them by another.

(h)           The Certificate Administrator shall make available at its offices, during normal business hours, upon not less than two (2) Business Days prior notice, for review by any Privileged Person upon resubmission of an Investor Certification, originals or copies of documents relating to the Trust Loan and any REO Property to the extent in its possession, including, without limitation, the following items (except to the extent prohibited by applicable law or under any of the Loan Documents):

(i)           any and all notices and reports delivered to the Certificate Administrator with respect to the Mortgaged Properties as to which the environmental testing contemplated by Section 3.10(g) of this Agreement revealed that neither of the conditions set forth in clauses (i) and (ii) thereof was satisfied;

 -212-

 

(ii)           the most recent annual (or more frequent, if available) operating statements, rent rolls (to the extent such rent rolls have been made available by the Borrower) and/or lease summaries and retail “sales information”, if any, collected by or on behalf of the Master Servicer or the Special Servicer in respect to the Mortgaged Properties;

(iii)           the Mortgage File, including any and all modifications, waivers and amendments of the terms of the Whole Loan entered into by the Master Servicer and/or the Special Servicer and delivered to the Certificate Administrator; and

(iv)           any other information that may be necessary, as determined by the Depositor, to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act to the extent in the Certificate Administrator’s possession.

Copies of any and all of the foregoing items will be available from the Certificate Administrator upon request. The Certificate Administrator will be permitted to require payment by the requesting party (other than a Rating Agency) of a sum sufficient to cover the reasonable costs and expenses of making such information available and providing any copies thereof. The Certificate Administrator’s obligation under this Section 4.02(h) to make available any document is subject to the Certificate Administrator’s receipt of such document.

The Certificate Administrator shall not be liable for providing or disseminating information in accordance with the terms of this Agreement.

(i)            The Depositor hereby authorizes the Certificate Administrator to make available to any Financial Market Publisher or such other vendor chosen by the Depositor that submits to the Certificate Administrator a certification substantially in the form of Exhibit L-3 to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website, all the Distribution Date Statements, CREFC^® reports and supplemental notices delivered or made available pursuant to this Section 4.02 to Privileged Persons.

(j)            Upon request and delivery by CREFC^® of a certification substantially in the form of Exhibit L-4 hereto (which may be a “click-through” confirmation), the Certificate Administrator shall make available to CREFC^®, with respect to any Distribution Date, the related Distribution Date Statement and CREFC^® IRP.

Section 4.03     Compliance with Withholding Requirements. Notwithstanding any other provision of this Agreement, the Paying Agent shall comply with all federal withholding requirements with respect to payments to Certificateholders and payees of interest or original issue discount that the Paying Agent reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for any such withholding. If the Paying Agent or its agent withholds any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Paying Agent shall indicate the amount withheld to such Certificateholder. Any amount so withheld shall be treated as having been distributed to such Certificateholder for all purposes of this Agreement.

Section 4.04     REMIC Compliance. (a)  The parties intend that the Lower-Tier REMIC and the Upper-Tier REMIC shall constitute, and that the affairs of each of the Lower-Tier REMIC and the Upper-Tier REMIC shall be conducted so as to qualify as a “real estate mortgage

 -213-

 

investment conduit” as defined in, and in accordance with, the REMIC Provisions at all times any Certificates are outstanding, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, the Certificate Administrator shall, to the extent permitted by applicable law, act as agent, and is hereby appointed to act as agent, of each Trust REMIC and shall on behalf of each Trust REMIC:

(i)           make or cause to be made an election, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, to be treated as a REMIC on Form 1066 for its first taxable year, in accordance with the REMIC Provisions;

(ii)          prepare and timely file, or cause to be prepared and timely filed, and cause the Trustee to sign (and the Trustee shall sign), all required Tax Returns for the Lower-Tier REMIC and the Upper-Tier REMIC, using a calendar year as the taxable year for each of such REMIC as required by the REMIC Provisions and other applicable federal, state or local income tax laws;

(iii)          prepare and forward, or cause to be prepared and forwarded, to the Certificateholders and the IRS and applicable state and local tax authorities all information reports as and when required to be provided to them in accordance with the REMIC Provisions;

(iv)          if the filing or distribution of any documents of an administrative nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is then required by the REMIC Provisions in order to maintain the status of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC or is otherwise required by the Code, prepare and file or distribute, or cause to be prepared and signed and filed or distributed, such documents with or to such Persons when and as required by the REMIC Provisions or the Code or comparable provisions of state and local law;

(v)           within 30 days of the Closing Date, obtain a taxpayer identification number for each of the Lower-Tier REMIC and the Upper-Tier REMIC on IRS Form SS-4 and (in the case of the Upper-Tier REMIC only), furnish or cause to be furnished to the IRS, on Form 8811 or as otherwise may be required by the Code, the name, title and address of the person that the Certificateholders may contact for tax information relating thereto (and the Certificate Administrator shall act as the representative of the Upper-Tier REMIC for this purpose), together with such additional information as may be required by such Form, and shall update such information at the time or times and in the manner required by the Code (and the Depositor agrees within 10 Business Days of the Closing Date to provide any information reasonably requested by the Master Servicer, the Special Servicer or the Certificate Administrator and necessary to make such filing); and

(vi)          maintain such records relating to the Lower-Tier REMIC and the Upper-Tier REMIC as may be necessary to prepare the foregoing returns, schedules, statements or information, such records, for federal income tax purposes, to be maintained on a calendar year and on an accrual basis.

 -214-

 

The Certificate Administrator shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code, of the Upper-Tier REMIC and the Lower-Tier REMIC. Each Holder of a Percentage Interest in the Class R or Class LR Certificates, by acceptance thereof, is deemed to have consented to the Certificate Administrator’s designation in such capacities and agrees to execute any documents required to give effect thereto, and any fees and expenses incurred by the Certificate Administrator in connection therewith.

The Certificate Administrator’s authority under this Agreement includes the authority to make, and the Certificate Administrator is hereby directed to make, any elections allowed under the Code (i) to avoid the application of Section 6221 of the Code (or successor provisions) to either Trust REMIC and (ii) to avoid payment by either Trust REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any Holder of a Class R Certificate, past or present. Each Holder of Class R Certificate agrees, by acquiring such Certificate, to any such elections.

The Certificate Administrator shall not intentionally take any action or intentionally omit to take any action if, in taking or omitting to take such action, the Certificate Administrator has actual knowledge that such action or omission (as the case may be) would cause the termination of the REMIC status of the Lower-Tier REMIC or the Upper-Tier REMIC, the status of the Grantor Trust as a grantor trust or the imposition of tax on the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust (other than a tax on income expressly permitted to be received by the terms of this Agreement). Notwithstanding any provision of this paragraph to the contrary, the Certificate Administrator shall not be required to take any action that the Certificate Administrator in good faith believes to be inconsistent with any other provision of this Agreement, nor shall the Certificate Administrator be deemed in violation of this paragraph if it takes any action expressly required or authorized by any other provision of this Agreement, and the Certificate Administrator shall have no responsibility or liability with respect to any act or omission of the Depositor, the Trustee, the Master Servicer or the Special Servicer which does not enable the Certificate Administrator to comply with any of clauses (i) through (vi) of the first paragraph of this Section 4.04(a) or which results in any action contemplated by clauses (i) or (ii) of the next succeeding sentence. In this regard the Certificate Administrator shall (i) exercise reasonable care not to allow the occurrence of any “prohibited transactions” within the meaning of Section 860F(a) of the Code, unless the party seeking such action shall have delivered to the Certificate Administrator an Opinion of Counsel (at such party’s expense) that such occurrence would not (A) result in a taxable gain, (B) otherwise subject the Lower-Tier REMIC or the Upper-Tier REMIC to tax (other than a tax at the highest marginal corporate tax rate on net income from foreclosure property), or (c) cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable care not to allow the Trust Fund to receive any contributions, or any income from the performance of services or from assets not permitted under the REMIC Provisions to be held by a REMIC (provided, however, that the receipt of any income expressly permitted or contemplated by the terms of this Agreement shall not be deemed to violate this clause). None of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee or the Depositor shall be (i) permitted to take any action that the Certificate Administrator would not be permitted to take pursuant to the preceding two sentences or (ii) responsible or liable (except in connection with taking any act or omission referred to in the two preceding sentences or the following sentence) for any failure by the Certificate Administrator to comply with the provisions of this Section 4.04.

 -215-

 

The Depositor, the Trustee, the Operating Advisor, the Master Servicer and the Special Servicer shall cooperate in a timely manner with the Certificate Administrator in supplying any information within the Depositor’s, the Trustee’s, the Master Servicer’s or the Special Servicer’s or the Operating Advisor’s control (other than any confidential information) that is reasonably necessary to enable the Certificate Administrator to perform its duties under this Section 4.04.

(b)           The following assumptions are to be used for purposes of determining the anticipated payments of principal and interest for calculating the original yield to maturity and original issue discount with respect to the Principal Balance Certificates: (i) the Trust Loan will pay principal and interest in accordance with its terms and scheduled payments will be timely received on their Due Dates, provided that the Trust Loan will prepay in accordance with the Prepayment Assumption; (ii) none of the Master Servicer, the Special Servicer or the Certificateholder owning a majority of the Percentage Interest in the Class R and Class LR Certificates will exercise the right described in Section 9.01 of this Agreement to cause early termination of the Trust Fund; and (iii) no Trust Loan is repurchased by the Trust Loan Sellers pursuant to Article II hereof.

Section 4.05        Imposition of Tax on the Trust Fund. In the event that any tax, including interest, penalties or assessments, additional amounts or additions to tax, is imposed on the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, such tax shall be charged against amounts otherwise distributable to the Holders of the Certificates; provided that any taxes imposed on any net income from foreclosure property pursuant to Section 860G(d) of the Code or any similar tax imposed by a state or local jurisdiction shall instead be treated as an expense of the related REO Property in determining Net REO Proceeds with respect to the REO Property (and until such taxes are paid, the Special Servicer from time to time shall withdraw from amounts in the REO Account allocable to the Trust Loan and transfer to the Certificate Administrator amounts reasonably determined by the Certificate Administrator to be necessary to pay such taxes, which the Certificate Administrator shall maintain in a separate, non-interest-bearing account, and the Certificate Administrator shall send to the Special Servicer for deposit in the REO Account the excess determined by the Certificate Administrator from time to time of the amount in such account over the amount necessary to pay such taxes) and shall be paid therefrom; provided that any such tax imposed on net income from foreclosure property that exceeds the amount in any such reserve shall be retained from Available Funds as provided in Section 3.06(a)(xii) of this Agreement, and the next sentence. Except as provided in the preceding sentence, the Certificate Administrator is hereby authorized to and shall retain or cause to be retained from Available Funds sufficient funds to pay or provide for the payment of, and to actually pay, such tax as is legally owed by the applicable Trust REMIC (but such authorization shall not prevent the Trustee from contesting, at the expense of the Trust Fund, on a pro rata basis between the Trust Loan and the Companion Loan) any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Certificate Administrator is hereby authorized to and shall segregate or cause to be segregated, into a separate non-interest bearing account, (i) the net income allocable to the Trust Loan from any “prohibited transaction” under Section 860F(a) of the Code or (ii) the amount of any contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is subject to tax under Section 860G(d) of the Code and use such income or amount, to the extent necessary, to pay such tax (and return the balance thereof, if any, to the Collection Account, the Lower-Tier Distribution Account or the Upper-Tier Distribution Account, as the case may be). To the extent that any such tax is paid to

 -216-

 

the IRS, the Certificate Administrator shall retain an equal amount from future amounts otherwise distributable to the Holders of the Class R or the Class LR Certificates, as the case may be, and shall distribute such retained amounts to the Holders of Principal Balance Certificates and the Trustee as Holder of the Lower-Tier Regular Interests, until they are fully reimbursed and then to the Holders of the Class R Certificates or the Class LR Certificates, as applicable. Neither the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, nor the Trustee shall be responsible for any taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such tax is attributable to a breach of a representation or warranty or the negligence or willful misconduct of the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee or an act or omission of the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee in contravention of this Agreement, provided, further, that such breach, act or omission could result in liability under Section 6.03 of this Agreement, in the case of the Master Servicer, Section 6.03 of this Agreement, in the case of the Operating Advisor, Section 4.04 of this Agreement, in the case of the Trustee or Section 4.04 of this Agreement, in the case of the Certificate Administrator in accordance with the standard of liability set forth in those sections. Notwithstanding anything in this Agreement to the contrary, in each such case, the Master Servicer, the Special Servicer or the Operating Advisor shall not be responsible for the Trustee’s or the Certificate Administrator’s breaches, acts or omissions, the Trustee shall not be responsible for the breaches, acts or omissions of the Certificate Administrator, the Operating Advisor, the Master Servicer or the Special Servicer and the Certificate Administrator shall not be responsible for the breaches, acts or omissions of the Trustee, the Operating Advisor, the Master Servicer or the Special Servicers and the Operating Advisor shall not be responsible for the breaches, acts or omissions of the Master Servicer, the Special Servicer, the Trustee or the Certificate Administrator.

The Certificate Administrator shall be responsible for obtaining a tax identification number for any REMIC specified herein, and shall be responsible for the preparation of the related IRS Form W-9, if such form is requested. The Trustee shall be entitled to rely on the information contained therein, and is hereby directed to execute such IRS Form W-9; provided, however, the Certificate Administrator shall also be directed to execute such IRS Form W-9 (in lieu of the Trustee) if permitted by IRS regulations.

Section 4.06     Remittances. On the Servicer Remittance Date immediately preceding each Distribution Date, the Master Servicer shall remit to (a) the Certificate Administrator for deposit in the Lower-Tier Distribution Account, an amount equal to the Available Funds for such Distribution Date and (b) CREFC^® the CREFC^® License Fee.

Section 4.07        P&I Advances and Administrative Advances. (a)  On or before 3:00 p.m. (New York City Time) on each Servicer Remittance Date, the Master Servicer shall either (i) remit to the Certificate Administrator for deposit into the Lower-Tier Distribution Account from its own funds an amount equal to the aggregate amount of P&I Advances, if any, to be made in respect of the related Distribution Date, (ii) apply amounts held in the Collection Account for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make P&I Advances; provided, that such amounts in the Collection Account shall only be applied up to the Trust Loan’s pro rata share of the amounts held therein on such dates (unless such P&I Advance has been determined to be nonrecoverable, in which such amounts shall be applied pursuant to the Co-Lender Agreement) or (iii) make P&I Advances in the form of any

 -217-

 

combination of (i) and (ii) aggregating the total amount of P&I Advances to be made by the Master Servicer, except that the portion of such P&I Advance equal to the CREFC^® License Fee shall not be remitted to the Certificate Administrator but shall instead be remitted to CREFC^®. Any amounts held in the Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the Master Servicer’s records and replaced by the Master Servicer by deposit in the Collection Account on or before the next succeeding P&I Advance Determination Date (to the extent not previously replaced through either (x) the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made or (y) the deposit of Monthly Payments collected prior to the expiration of any applicable grace period that ends after the P&I Advance Determination Date in respect of which such P&I Advances were made). The Master Servicer shall notify the Trustee and the Certificate Administrator of (i) the aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances for such Distribution Date, on or before the P&I Advance Determination Date. If the Master Servicer fails to make a required P&I Advance by 3:00 p.m. (New York City time) on any Servicer Remittance Date, then the Trustee shall make such P&I Advance pursuant to Section 7.06 of this Agreement by 12:00 noon (New York City time) on the related Distribution Date, in each case unless the Master Servicer shall have cured such failure (and provided written notice of such cure to the Trustee) by 11:00 a.m. (New York City time) on such Distribution Date or the Trustee determines that such P&I Advance, if made, would be a Nonrecoverable Advance. If the Master Servicer or the Trustee makes a P&I Advance with respect to the Trust Loan, then it shall provide written notice to the related Other Servicer, Other Special Servicer and Other Trustee of the amount of such P&I Advance within two (2) Business Days of making such P&I Advance.

(b)           Subject to Section 4.07(d) and 4.07(e) below, the aggregate amount of P&I Advances to be made by the Master Servicer with respect to any Distribution Date shall equal the aggregate of: (i) the Monthly Payment (net of related Servicing Fees) other than the Balloon Payment that was due during the related Collection Period and delinquent (or unpaid, pending the expiration of any applicable grace period with respect to the Trust Loan having a grace period extending past the P&I Advance Determination Date) as of the close of business on the P&I Advance Determination Date (or not advanced by the Master Servicer or any Sub-Servicer on behalf of the Master Servicer) with respect to the Trust Loan and (ii) with respect to the Balloon Payment that was due during or prior to the related Collection Period and was delinquent (including any applicable grace period) as of the end of the related Collection Period (including any REO Loan as to which the Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the obligation of the Master Servicer or the Trustee, as applicable, to make such P&I Advances with respect to the Trust Loan (or REO Loan) is mandatory, and with respect to the Trust Loan or REO Loan, shall continue until the Distribution Date on which Liquidation Proceeds or REO Proceeds, if any, are to be distributed. The Monthly Payment or Assumed Scheduled Payment shall be reduced, for purposes of P&I Advances, by any modifications pursuant to Section 3.26 of this Agreement or otherwise and by any reductions by a bankruptcy court pursuant to a plan of reorganization or pursuant to any of its equitable powers.

(c)           Subject to Section 4.07(d) and 4.07(e) below, the Master Servicer shall also make advances (“Administrative Advances”) with respect to the Trust Loan to pay Special Servicing Fees, Workout Fees, Liquidation Fees, Advance Interest Amounts and other out-of-

 -218-

 

pocket costs and expenses incurred by the Trust or by the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Custodian or the Trustee in connection with the servicing and administration of the Whole Loan allocable to the Trust Loan not otherwise covered by a Property Advance, including in connection with any workout of the Trust Loan or enforcement of the terms of the Loan Documents, in each case, to the extent the Borrowers (1) are obligated to reimburse the Trust for such amounts pursuant to the Loan Documents and (2) do not pay such amounts on or prior to the time when the party is entitled to payment or reimbursement of such amounts from the Collection Account or the Distribution Account in accordance with terms of this Agreement. The Master Servicer shall deposit Administrative Advances into the Collection Account within the same time frame required for P&I Advances as provided in Section 4.07(a). The Master Servicer shall notify the Trustee and the Certificate Administrator of (i) the aggregate amount of Administrative Advances for a Distribution Date and (ii) the amount of any Nonrecoverable Administrative Advances for such Distribution Date, on or before the P&I Advance Determination Date. If the Master Servicer fails to make a required Administrative Advance by 3:00 p.m. (New York City time) on any Servicer Remittance Date, then the Trustee shall make such Administrative Advance pursuant to Section 7.06 of this Agreement by 12:00 noon (New York City time) on the related Distribution Date, in each case unless the Master Servicer shall have cured such failure (and provided written notice of such cure to the Trustee) by 11:00 a.m. (New York City time) on such Distribution Date or the Trustee determines that such Administrative Advance, if made, would be a Nonrecoverable Advance.

(d)           Notwithstanding anything herein to the contrary, no P&I Advance or Administrative Advance shall be required hereunder if the Master Servicer, the Special Servicer or the Trustee, as applicable, determines that such P&I Advance or Administrative Advance (together with interest on such P&I Advance or Administrative Advance, as applicable at the Advance Rate) would, if made, constitute a Nonrecoverable Advance. In addition, the Master Servicer shall not make any P&I Advance or Administrative Advance to the extent that it has received written notice that the Special Servicer has determined that such P&I Advance or Administrative Advance would, if made, constitute a Nonrecoverable P&I Advance or Nonrecoverable Administrative Advance. In making such nonrecoverability determination, the Master Servicer, the Special Servicer and Trustee shall be entitled (i) to give due regard to the existence of any Nonrecoverable Advance with respect to the Trust Loan, the recovery of which, at the time of such consideration, is being deferred or delayed by the Master Servicer or the Trustee, as applicable, in light of the fact that proceeds on the Trust Loan are a source of recovery not only for the Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance which is being or may be deferred or delayed, (ii) to consider (among other things) the obligations of the Borrowers under the terms of the Whole Loan as it may have been modified, (iii) to consider (among other things) the Mortgaged Properties in their “as-is” or then-current conditions and occupancy, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse changes with respect to the Mortgaged Properties, (iv) to estimate and consider (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) (among other things) future expenses and (v) to estimate and consider (among other things) the timing of recoveries.

If an Appraisal of any Mortgaged Property shall not have been obtained within the prior 9-month period (and the Master Servicer and the Trustee shall each request any such appraisal

 -219-

 

from the Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if such an Appraisal shall have been obtained but as a result of unforeseen occurrences, such Appraisal does not, in the good faith determination of the Master Servicer, the Special Servicer or the Trustee, reflect current market conditions, and the Master Servicer or the Trustee, as applicable, and the Special Servicer cannot agree on the appropriate downward adjustment to such Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case may be, may, subject to its reasonable and good faith determination that such Appraisal will demonstrate the nonrecoverability of the related Advance, obtain an Appraisal for such purpose at the expense of the Trust Fund.

Any such determination by the Master Servicer, Special Servicer or the Trustee that the Master Servicer or Trustee, as applicable, has made a Nonrecoverable Advance or that any proposed P&I Advance or Administrative Advance, if made, would constitute a Nonrecoverable Advance shall be evidenced, in the case of the Master Servicer or the Special Servicer, by a certificate of a Servicing Officer delivered to the other and to the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor (if such determination was made during an Operating Advisor Consultation Period) and the Directing Holder (if such determination was made during a Subordinate Control Period or a Subordinate Consultation Period) and, in the case of the Trustee, by a certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor (if such determination was made during an Operating Advisor Consultation Period) and the Directing Holder (if such determination was made during a Subordinate Control Period or a Subordinate Consultation Period), in each case sets forth such nonrecoverability determination and the considerations of the Master Servicer, Special Servicer or the Trustee, as applicable, forming the basis of such determination (such certificate to be accompanied by, to the extent available, income and expense statements, rent rolls, occupancy status, property inspections and other information used by the Master Servicer, Special Servicer or the Trustee, as applicable, to make such determination, together with any existing Appraisal or any Updated Appraisal); provided that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Advance previously made or proposed to be made is nonrecoverable and shall deliver to the Master Servicer, Special Servicer, the Certificate Administrator, the Trustee, the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) notice of such determination, together with a certificate of a Servicing Officer and the supporting information described above. Any such determination shall be conclusive and binding on the Master Servicer, the Special Servicer and the Trustee.

Any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that a P&I Advance or Administrative Advance is a Nonrecoverable Advance) and (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) may obtain, at the expense of the Trust Fund, any analysis, Appraisals or market value estimates or other information for such purposes. Absent bad faith, any such determination as to the recoverability of any P&I Advance or Administrative Advance shall be conclusive and binding on the Certificateholders.

Notwithstanding the above, (i) the Trustee shall be entitled to rely conclusively on, and shall be bound by, any determination by the Master Servicer or the Special Servicer, as

 -220-

 

applicable, that an Advance, if made, would be a Nonrecoverable Advance, if such determination is received prior to the applicable Advance, and (ii) the Master Servicer will be entitled to rely conclusively on, and shall be bound by, any determination of the Special Servicer that an Advance, if made, would be a Nonrecoverable Advance, if such determination is received prior to the applicable Advance. The Trustee, in determining whether or not an Advance previously made is, or a proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject to a good faith business judgment standard. The Special Servicer shall promptly furnish the Master Servicer and the Trustee with any information in its possession regarding a Specially Serviced Loan or an REO Property as each such party may reasonably request for purposes of making recoverability determinations.

(e)           In connection with the recovery of any Advance out of the Collection Account pursuant to Section 3.06(a) of this Agreement, the Master Servicer shall be entitled to pay itself or the Trustee, as the case may be (in reverse of such order with respect to the Trust Loan or REO Property) out of any amounts then on deposit in the Collection Account interest at the Advance Rate in effect from time to time, accrued on the amount of such Advance from the date made with respect to the Trust Loan. The Master Servicer shall reimburse itself or the Trustee, as the case may be, for any outstanding Advance as soon as practicably possible after funds available for such purpose are deposited in the Collection Account with respect to the Trust Loan.

Notwithstanding anything to the contrary contained in Section 4.06 of this Agreement, (i) neither the Master Servicer nor the Trustee shall make an advance for Prepayment Charges, Penalty Charges, Excess Interest or any cure payments and (ii) the interest portion of any P&I Advance with respect to the Trust Loan as to which there has been an Appraisal Reduction Amount will be an amount equal to the product of (x) the amount required to be advanced without giving effect to the Appraisal Reduction Amount and (y) a fraction, the numerator of which is the Stated Principal Balance of the Trust Loan (as of the immediately preceding Determination Date) less any Appraisal Reduction Amount applicable to the Trust Loan and the denominator of which is the Stated Principal Balance of the Trust Loan (as of such immediately preceding Determination Date). All P&I Advances for the Trust Loan that has been modified shall be calculated on the basis of their terms as modified. For the avoidance of doubt, the Master Servicer shall have no obligation to make a principal and interest advance or an administrative advance with respect to the Companion Loan.

The portion of any Insurance Proceeds, Net Liquidation Proceeds and Net Condemnation Proceeds in respect of the Trust Loan or any REO Loan allocable to principal shall equal the total amount of such proceeds minus (i) any portion thereof payable to the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator or the Trustee pursuant to this Agreement and (ii) a portion thereof equal to the interest component of the Monthly Payment(s), as accrued at the Mortgage Rate from the date as to which interest was last paid by the Borrowers up to but not including the Due Date in the Collection Period in which such proceeds are received; provided, however, that in the event that the interest portion(s) of one or more P&I Advances with respect of the Trust Loan or REO Loan, as applicable, were reduced as a result of an Appraisal Reduction Event, the amount of the Net Liquidation Proceeds and Net Condemnation Proceeds to be applied to interest shall be reduced by the aggregate amount of such reductions and the portion of such Net Liquidation Proceeds and Net Condemnation Proceeds to be applied to principal shall be increased by such amount, and if the amount of the Net Liquidation

 -221-

 

Proceeds and Net Condemnation Proceeds to be applied to principal has been applied to pay the principal of the Trust Loan or REO Loan in full, any remaining Net Liquidation Proceeds and Net Condemnation Proceeds shall then be applied to pay any remaining accrued and unpaid interest of the Trust Loan or REO Loan.

(f)           The Master Servicer or the Trustee, as applicable, shall be entitled to the reimbursement of P&I Advances or Administrative Advances it makes to the extent permitted pursuant to Section 3.06 of this Agreement together with any related Advance Interest Amount in respect of such P&I Advances or Administrative Advances to the extent permitted pursuant to Section 3.06 of this Agreement and the Master Servicer and the Special Servicer each hereby covenants and agrees to promptly seek and effect the reimbursement of such Advances from the Borrowers to the extent permitted by applicable law and the Trust Loan and this Agreement.

(g)           The Master Servicer will be permitted to make its determination that it has made a P&I Advance on the Trust Loan that is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance with respect to such Trust Loan in accordance with Section 4.07(a) independently of any determination made in respect of the Companion Loan, by the master servicer under the related Other Pooling and Servicing Agreement. If the Master Servicer or Trustee, as applicable, determines that a proposed P&I Advance with respect to the Trust Loan, if made, or any outstanding P&I Advance with respect to any such Trust Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance or if the Master Servicer or Trustee, as applicable, subsequently determines that a proposed Property Advance would be a Nonrecoverable Advance or an outstanding Property Advance is or would be a Nonrecoverable Advance, the Master Servicer or Trustee, as applicable, shall provide the Other Servicer, Other Special Servicer and the Other Trustee under each related Other Pooling and Servicing Agreement with written notice of such determination, promptly and in any event within two (2) Business Days after such determination or such longer time period permitted by the applicable Co-Lender Agreement. If the Master Servicer receives written notice from any master servicer under any such Other Pooling and Servicing Agreement that such master servicer has determined, with respect to the related Companion Loan, that any proposed advance of principal and/or interest with respect to the Companion Loan would be, or any outstanding advance of principal and interest is, a nonrecoverable advance of principal and/or interest, such determination shall not be binding on the Certificateholders, the Master Servicer or the Trustee.

If the Master Servicer or Special Servicer receives notice from a Rating Agency that it is no longer approved as a master servicer or a special servicer, as applicable, for commercial mortgage securitizations, the Master Servicer or Special Servicer, as applicable, shall promptly notify the Trustee, any Other Trustee, any Other Servicer and any other trustee or master servicer with respect to each commercial mortgage securitization that holds the Companion Loan, if any.

Section 4.08        Appraisal Reductions; Collateral Deficiency Amounts. (a)  For purposes of determining (i) the Controlling Class, (ii) whether a Subordinate Control Period, Subordinate Consultation Period or an Operating Advisor Consultation Period is then in effect, or (iii) Voting Rights of the related Classes for certain purposes, including replacement of the Special Servicer and the Operating Advisor, any Appraisal Reduction Amounts (other than Assumed Appraisal Reduction Amounts) and Collateral Deficiency Amounts allocated to the Trust Loan shall be allocated to each Class of Principal Balance Certificates in reverse sequential order to

 -222-

 

notionally reduce the related Certificate Balances until the Certificate Balance of each such Class is reduced to zero (i.e., first, to the Class HRR Certificates, second, to the Class D Certificates, third, to the Class C Certificates, fourth, to the Class B Certificates and fifth, to the Class A Certificates). For the avoidance of doubt, Appraisal Reduction Amounts and Collateral Deficiency Amounts shall not be allocated concurrently to the Principal Balance Certificates.

Following the application of any Appraisal Reduction Amounts, the Certificate Administrator shall determine whether a Subordinate Control Period, a Subordinate Consultation Period and/or an Operating Advisor Consultation Period is then in effect, and shall promptly notify the Master Servicer, the Special Servicer and the Operating Advisor of such determination and shall post such determination to the Certificate Administrator’s Website.

(b)           If the Certificate Balance of the Class HRR Certificates (taking into account the application of any Appraisal Reduction Amounts allocated to the Trust Loan to notionally reduce the Certificate Balance of such Class) has been reduced to less than 25% of its respective initial Certificate Balance, such Class shall be referred to as an “Appraised-Out Class”. The holders of the majority (by Certificate Balance) of the Appraised-Out Class shall have the right, at their sole expense, to require the Special Servicer to order a second appraisal of the Mortgaged Properties (such holders, the “Requesting Holders”), and the Special Servicer shall use its commercially reasonable efforts to obtain an appraisal from an MAI appraiser reasonably acceptable to the Special Servicer within 60 days from receipt of the Requesting Holders’ written request. Any Appraised-Out Class for which the Requesting Holders are challenging the Appraisal Reduction Amount determination shall not be permitted to exercise any rights of the Controlling Class until such time, if any, as such Class is reinstated as the Controlling Class and the rights of the Controlling Class shall be exercised by the next most senior Class that is eligible to be a Controlling Class, if any, during such period.

In addition, the Requesting Holders of any Appraised Out Class shall have the right, at their sole expense, to require the Special Servicer to order an additional appraisal of the Mortgaged Properties following an Appraisal Reduction Event if an event has occurred at, or with regard to, any Mortgaged Property that would have a material effect on its appraised value, and the Special Servicer shall use reasonable efforts to obtain an appraisal from an MAI appraiser reasonably acceptable to the Special Servicer within 60 days from receipt of the Requesting Holders’ written request; provided that the Special Servicer shall not be required to obtain such appraisal if it determines in accordance with the Servicing Standard that no events at, or with regard to, the Mortgaged Properties have occurred that would have a material effect on the appraised value of the Mortgaged Properties. The right of the holders of an Appraised Out Class to require the Special Servicer to order an additional appraisal as described in this paragraph shall be limited to no more frequently than once in any 9 month period.

Upon receipt of such additional appraisal, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such second appraisal, any recalculation of the Appraisal Reduction Amount is warranted and, if so warranted, shall direct the Master Servicer to recalculate such Appraisal Reduction Amount based upon such second appraisal. If required by any such recalculation, the applicable Appraised-Out Class shall be reinstated as the Controlling Class and each Appraised-Out Class shall have its Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction

 -223-

 

Amount based on such second appraisal. If required by any such recalculation, the Appraised-Out Class will be reinstated as a Controlling Class.

As of the first Determination Date following the Whole Loan becoming an AB Modified Loan, the Master Servicer shall calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent Appraisal obtained by the Special Servicer with respect to the Whole Loan, and all other information relevant to a Collateral Deficiency Amount determination. The Special Servicer, upon reasonable prior written request, shall provide the Master Servicer with information in its possession that is reasonably required to calculate or recalculate any Collateral Deficiency Amount. None of the Special Servicer, the Trustee or the Certificate Administrator shall calculate or verify any Collateral Deficiency Amount.

Appraisals that are permitted to be obtained at the request of the holders of the Appraised-Out Class shall be in addition to any appraisals that the Special Servicer may otherwise be required to obtain in accordance with the Servicing Standard (or otherwise pursuant to this Agreement) or that the Special Servicer is otherwise required or permitted to order under this Agreement without regard to any appraisal requests made by any Requesting Holder.

For the avoidance of doubt, for purposes of determining whether the Class HRR Certificates is the Controlling Class or whether a Subordinate Control Period or a Subordinate Consultation Period is then in effect, the Controlling Class Certificates shall be allocated both applicable Appraisal Reduction Amounts and applicable Collateral Deficiency Amounts, in accordance with this Section 4.08(a). The appraised value of the Mortgaged Properties shall be determined on an “as is” basis.

The Master Servicer shall promptly notify the Certificate Administrator of the amount of any Appraisal Reduction Amount allocated to the Whole Loan (which notification shall be made by delivery of the CREFC^® Loan Periodic Update File in accordance with Section 3.13 hereof) and the amount of any Collateral Deficiency Amount allocated to the AB Modified Loan (which notification shall be made by delivery of such information included in the CREFC^® Loan Periodic Update File and the CREFC^® Appraisal Reduction Template or such report mutually agreed to between the Master Servicer and the Certificate Administrator, which shall be delivered simultaneously with the CREFC^® Loan Periodic Update File in accordance with Section 3.13 hereof). Based on information in its possession, the Certificate Administrator shall determine from time to time whether the Class HRR is the Controlling Class. In connection with the Certificate Administrator’s determination of whether the Class HRR is the Controlling Class, the Certificate Administrator shall determine whether a Subordinate Control Period or Subordinate Consultation Period (or neither) is then in effect. Promptly upon its determination that the Class HRR is no longer the Controlling Class, the Certificate Administrator shall notify the Master Servicer and the Special Servicer.

Section 4.09        Grantor Trust Reporting. (a) The Certificate Administrator shall maintain adequate books and records to account for the separate entitlements of the Grantor Trust.

(b)           The parties intend that the Grantor Trust be treated as a “grantor trust” under the Code, and the provisions thereof shall be interpreted consistently with this intention. In

 -224-

 

furtherance of such intention, the Certificate Administrator shall not intentionally or knowingly vary the assets of the Grantor Trust so as to take advantage of market fluctuations so as to improve the rate of return of the Regular Certificates. The Certificate Administrator shall file or cause to be filed with the IRS Form SS-4, Form 1041, Form 1099 or such other form as may be applicable and shall furnish or cause to be furnished to the Holders of the applicable Certificates their allocable share of income and expense, as such amounts are received or accrue, as applicable.

(c)           As of the Closing Date no Class S Certificate is held through a “middleman” as defined by the WHFIT Regulations. If the Certificate Administrator receives notice that the Class S Certificates are held through a “middleman” as defined by the WHFIT Regulations, then the Grantor Trust is a WHFIT that is a WHMT. The Certificate Administrator shall report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Certificate Administrator to do so is provided to the Certificate Administrator on a timely basis. The Certificate Administrator is hereby directed to assume that the Depository is the only “middleman” as defined by the WHFIT Regulations unless the Depositor provides the Certificate Administrator with the identities of other “middlemen” as defined by the WHFIT Regulations that are Certificateholders. The Certificate Administrator shall be entitled to indemnification in accordance with the terms of this Agreement in the event that the IRS makes a determination that the first sentence of this paragraph is incorrect.

(d)           The Certificate Administrator, in its discretion, shall report required WHFIT information using either the cash or accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available (via its website) WHFIT information with respect to the Grantor Trust to the Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.

(e)           The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Certificate Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each Holder of a Class S Certificate, by acceptance of its interest in such Class of securities, shall be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of a Class S Certificate, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.

To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to make available the CUSIPs for the Certificates that represent ownership of a WHFIT. The CUSIPs so published shall represent the Rule 144A CUSIPs. The Certificate Administrator will not make available any associated Regulation S CUSIPs. Absent the receipt of a CUSIP, the Trustee shall use a reasonable identifier number in lieu of a CUSIP.

 -225-

 

The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.

ARTICLE V

THE CERTIFICATES

Section 5.01     The Certificates. (a)  The Certificates consist of the Class A Certificates, the Class X Certificates, the Class B Certificates, the Class C Certificates, the Class D Certificates, the Class HRR Certificates, the Class S Certificates, the Class R Certificates and the Class LR Certificates.

The Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates will be substantially in the forms of Exhibits A-1 through A-9 to this Agreement, as set forth in the Table of Exhibits to this Agreement. The Certificates of each Class (other than the Class S, Class LR and Class R Certificates) will be issuable in registered form only, in minimum denominations of authorized Certificate Balance or Notional Amount, as applicable, as described in the succeeding table, and multiples of $l in excess thereof (or such lesser amount if the Certificate Balance is not a multiple of $1). With respect to any Certificate or any beneficial interest in a Certificate, the “Denomination” thereof shall be (i) the amount (A) set forth on the face thereof or (B) in the case of any Global Certificate, set forth on a schedule attached thereto or, in the case of any beneficial interest in a Global Certificate, the amount set forth on the books and records of the related Depository Participant or indirect participating brokerage firm, as applicable, (ii) expressed in terms of Certificate Balance or Notional Amount, as applicable, and (iii) be in an authorized denomination, as set forth below.

Class	Minimum Denomination	Aggregate Denomination of all Certificates of Class
A	$100,000	$200,690,000
X	$1,000,000	$200,690,000
B	$100,000	$57,945,000
C	$100,000	$258,191,000
D	$100,000	$138,174,000
HRR	$100,000	$41,000,000

Each Certificate will share ratably in all rights of the related Class. The Class S, Class R and Class LR Certificates will each be issuable in one or more registered, definitive physical certificates in minimum denominations of 5% Percentage Interests and integral multiples of a 1% Percentage Interest in excess thereof and together aggregating the entire 100% Percentage Interest in each such Class.

The Global Certificates shall be issued as one or more certificates registered in the name of a nominee designated by the Depository, and Beneficial Owners shall hold interests in the Global Certificates through the book-entry facilities of the Depository in the minimum Denominations and aggregate Denominations and Classes as set forth above.

 -226-

 

The Global Certificates shall in all respects be entitled to the same benefits under this Agreement as Individual Certificates authenticated and delivered hereunder.

(b)           Except insofar as pertains to any Individual Certificate, the Trust Fund, the Certificate Administrator, the Paying Agent and the Trustee may for all purposes (including the making of payments due on the Global Certificates and the giving of notice to Holders thereof) deal with the Depository as the authorized representative of the Beneficial Owners with respect to the Global Certificates for the purposes of exercising the rights of Certificateholders hereunder; provided, however, that for purposes of transmitting communications pursuant to Section 5.05(a) of this Agreement, to the extent that the Depository has provided the Certificate Administrator with the names of Beneficial Owners (even if such Certificateholders hold their Certificates through the Depository) the Certificate Administrator shall provide such information to such Beneficial Owners directly. The rights of Beneficial Owners with respect to Global Certificates shall be limited to those established by law and agreements between such Certificateholders and the Depository and Depository Participants. Except as set forth in Section 5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to physical certificates for the Global Certificates as to which they are the Beneficial Owners. Requests and directions from, and votes of, the Depository as Holder of the Global Certificates shall not be deemed inconsistent if they are made with respect to different Beneficial Owners. Subject to the restrictions on transfer set forth in this Section 5.01 of this Agreement and Applicable Procedures, the holder of a beneficial interest in a Global Certificate may request that the Certificate Administrator cause the Depository (or any Agent Member) to notify the Certificate Registrar and the Certificate Custodian in writing of a request for transfer or exchange of such beneficial interest for an Individual Certificate or Certificates. Upon receipt of such a request and payment by the related Beneficial Owner of any attendant expenses, the Certificate Administrator shall cause the issuance and delivery of such Individual Certificates. The Depositor may establish a reasonable record date in connection with solicitations of consents from or voting by Certificateholders and give notice to the Depository of such record date. Without the written consent of the Certificate Registrar, no Global Certificate may be transferred by the Depository except to a successor Depository that agrees to hold the Global Certificates for the account of the Beneficial Owners.

(c)           Any of the Certificates may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Agreement, as may be required to comply with any law or with rules or regulations pursuant thereto, or with the rules of any securities market in which the Certificates are admitted to trading, or to conform to general usage.

(d)           The Global Certificates (i) shall be delivered by the Certificate Registrar to the Depository or, pursuant to the Depository’s instructions on behalf of the Depository to, and deposited with, the Certificate Custodian, and in either case shall be registered in the name of Cede & Co. and (ii) shall bear a legend substantially to the following effect:

“Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Certificate Registrar for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as

 -227-

 

is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein”.

The Global Certificates may be deposited with such other Depository as the Certificate Registrar may from time to time designate, and shall bear such legend as may be appropriate.

(e)           If (i) the Depository advises the Certificate Administrator in writing that the Depository is no longer willing, qualified or able properly to discharge its responsibilities as Depository, and the Depositor is unable to locate a qualified successor or (ii) the Depositor, at its sole option, elects in writing to the Certificate Administrator and to the Depository to terminate the book-entry system through the Depository with respect to all or any portion of any Class of Certificates, the Certificate Administrator shall notify the affected Beneficial Owner or Owners through the Depository of the occurrence of such event and the availability of Individual Certificates to such Beneficial Owners requesting them. Upon surrender to the Certificate Administrator of Global Certificates by the Depository, accompanied by registration instructions from the Depository for registration of transfer, the Certificate Administrator shall issue the Individual Certificates. None of the Trustee, the Certificate Administrator, the Certificate Registrar, the Operating Advisor, the Master Servicer, the Special Servicer or the Depositor shall be liable for any actions taken by the Depository or its nominee, including, without limitation, any delay in delivery of such instructions. Upon the issuance of Individual Certificates, the Trustee, the Certificate Administrator, the Certificate Registrar, the Operating Advisor, the Master Servicer and the Special Servicer shall recognize the Holders of Individual Certificates as Certificateholders hereunder.

(f)           If the Trustee, its agents, the Certificate Administrator, its agents or the Master Servicer or Special Servicer have instituted or have been directed to institute any judicial proceeding in a court to enforce the rights of the Certificateholders under the Certificates, and the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer have been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer to obtain possession of the Certificates, the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer may in their sole discretion determine that the Certificates represented by the Global Certificates shall no longer be represented by such Global Certificates. In such event, the Certificate Administrator or the Authenticating Agent will execute and authenticate and the Certificate Registrar will deliver, in exchange for such Global Certificates, Individual Certificates (and if the Certificate Administrator or the Certificate Custodian has in its possession Individual Certificates previously executed, the Authenticating Agent will authenticate and the Certificate Registrar will deliver such Certificates) in a Denomination equal to the aggregate Denomination of such Global Certificates.

 -228-

 

(g)           Each Certificate may be printed or in typewritten or similar form, and each Certificate shall, upon original issue, be executed and authenticated by the Certificate Administrator or the Authenticating Agent and delivered to, or at the order of, the Depositor. All Certificates shall be executed by manual or facsimile signature on behalf of the Certificate Administrator or Authenticating Agent by an authorized officer or signatory. Certificates bearing the signature of an individual who was at any time the proper officer or signatory of the Certificate Administrator or Authenticating Agent shall bind the Certificate Administrator or Authenticating Agent, notwithstanding that such individual has ceased to hold such office or position prior to the delivery of such Certificates or did not hold such office or position at the date of such Certificates. No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Certificate a certificate of authentication in the form set forth in Exhibits A-1 through A-9 executed by the Authenticating Agent by manual signature, and such certificate of authentication upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication.

(h)           If, in connection with any Distribution Date, the Certificate Administrator shall have reported the amount of an anticipated distribution to the Depository based on the expected receipt of any monthly payment based on information set forth in any report of the Master Servicer or the Special Servicer, or any other monthly payment, Balloon Payment or prepayment expected to be paid on the last two (2) Business Days preceding such Distribution Date, and the Borrowers fail to make such payments at such time, and the Master Servicer revises its final report and as a result the Certificate Administrator revises its report to the Depository after the Depository deadline, the Certificate Administrator shall use commercially reasonable efforts to cause the Depository to make the revised distribution on a timely basis on such Distribution Date. The Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer shall not be liable or held responsible for any resulting delay (or claims by DTC resulting therefrom) in the making of such distribution to Certificateholders. Any out-of-pocket costs incurred by the Certificate Administrator as a consequence of the Borrowers failing to make such payments shall be reimbursable to the Certificate Administrator as an expense of the Trust Fund. Any such reimbursement shall be an expense of the Trust Fund.

Section 5.02     Registration, Transfer and Exchange of Certificates. (a)  The Certificate Administrator shall keep or cause to be kept at its offices books (the “Certificate Register”) for the registration, transfer and exchange of Certificates (the Certificate Administrator, in such capacity, being the “Certificate Registrar”). The Depositor, the Trustee, the Operating Advisor, the Master Servicer and the Special Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register. The names and addresses of all Certificateholders and the names and addresses of the transferees of any Certificates shall be registered in the Certificate Register; provided, however, that in no event shall the Certificate Registrar be required to maintain in the Certificate Register the names of the individual Participants holding beneficial interests in the Trust Fund through the Depository. The Person in whose name any Certificate is so registered shall be deemed and treated as the sole owner and Holder thereof for all purposes of this Agreement and the Depositor, Certificate Registrar, the Master Servicer, Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator, any Paying Agent and any agent of any of them shall not be affected by any notice

 -229-

 

or knowledge to the contrary. An Individual Certificate is transferable or exchangeable only upon the surrender of such Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements of (g) and Sections 5.02(c), Section 5.02(d), Section 5.02(e), Section 5.02(f), Section 5.02(g), Section 5.02(h) and Section 5.02(i) of this Agreement. Upon request of the Certificate Administrator, the Certificate Registrar shall provide the Certificate Administrator with the names, addresses and Percentage Interests of the Holders.

The Risk Retained Certificates shall only be held as a Definitive Certificate in the Risk Retained Certificate Safekeeping Account by the Certificate Administrator (and the Retaining Party shall be registered on the Certificate Register), unless otherwise consented to by the Retaining Sponsor. The Certificate Administrator shall hold each Risk Retained Certificate in safekeeping and shall release the same only upon receipt of written instructions in accordance with this Agreement from the Retaining Party and the Retaining Sponsor’s consent (subject to this Section 5.02(a)), and in accordance with any authentication Administrator. There shall be, and hereby is, established by the Certificate Administrator an account which will be designated the “Risk Retained Certificate Safekeeping Account” and into which each Risk Retained Certificate shall be held and which shall be governed by and subject to this Agreement. In addition, on and after the date hereof, the Certificate Administrator may establish any number of subaccounts to the Risk Retained Certificate Safekeeping Account for the Retaining Party. Each Risk Retained Certificate to be delivered in physical form to the Certificate Administrator shall be delivered as set forth herein. Upon receipt by the Certificate Administrator of any Risk Retained Certificate in connection with the initial issuance thereof and, for so long as the Risk Retained Certificates are held in the Risk Retained Certificate Safekeeping Account by the Certificate Administrator pursuant to this Agreement, upon any transfer or exchange pursuant to this Article V of any Risk Retained Certificate, the Certificate Administrator shall deliver to the Retaining Party a receipt in the form set forth in Exhibit V. No amounts distributable to the Risk Retained Certificates shall be remitted to the Risk Retained Certificate Safekeeping Account, but instead shall be remitted directly to (or otherwise at the direction of) the Retaining Party in accordance with written instructions provided separately on the Closing Date (and any updates to such written instructions provided from time to time) by the Retaining Party to the Certificate Administrator. Under no circumstances by virtue of safekeeping any Risk Retained Certificate shall the Certificate Administrator be obligated to bring legal action or institute proceedings against any Person on behalf of the Retaining Party. The Certificate Administrator shall hold the Definitive Certificate representing the Risk Retained Certificates at the below location, or any other location; provided the Certificate Administrator has given notice to the Retaining Party of such new location:

Wells Fargo Bank, NA
425 E Hennepin Avenue
Minneapolis, MN 55414
Attention: Security Control and Transfer (SCAT) – MAC N9345-010

On the Closing Date, the Certificate Administrator shall deliver written confirmation to the Depositor, the Retaining Sponsor and the Retaining Party substantially in the form of Exhibit V to this Agreement evidencing its receipt of the Risk Retained Certificates.

 -230-

 

The Certificate Administrator shall make available to the Retaining Party its respective account information as mutually agreed upon by the Certificate Administrator and such Retaining Party, and in accordance with the Certificate Administrator’s policies and procedures. Any transfer of a Risk Retained Certificate shall be subject to this Article V.

After the release of any Risk Retained Certificates pursuant to this Section 5.02(a), the Certificate Administrator shall have no liability or obligation with respect to the safekeeping of such released Risk Retained Certificates.

(b)           Upon surrender for registration of transfer of any Individual Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f), (g), (h) and (i) of this Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in Denominations of a like aggregate Denomination as the Individual Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Section 5.02(e) of this Agreement. Each Certificate surrendered for registration of transfer shall be canceled and subsequently destroyed by the Certificate Registrar. Each new Certificate issued pursuant to this Section 5.02 shall be registered in the name of any Person as the transferring Holder may request, subject to the provisions of Sections 5.01(g) and 5.02(c), (d), (e), (f), (g), (h) and (i) of this Agreement.

(c)           In addition to the provisions of Sections 5.01(g) and 5.02(d), (e), (f), (g), (h) and (i) of this Agreement and the rules of the Depository, the exchange, transfer and registration of transfer of Individual Certificates or beneficial interests in the Global Certificates shall be subject to the following restrictions:

(i)           Transfers between Holders of Individual Certificates. With respect to the transfer and registration of transfer of an Individual Certificate to a transferee that takes delivery in the form of an Individual Certificate (other than transfers of the Class R or Class LR Certificates, which may be made only in accordance with Section 5.02(i)):

(A)             The Certificate Registrar shall register the transfer of an Individual Certificate if (1) the requested transfer is being made (x) in connection with the initial transfer from an Initial Purchaser to an initial investor or (y) by a transferee who has provided the Certificate Registrar with an Investment Representation Letter substantially in the form of Exhibit D-1 to this Agreement (an “Investment Representation Letter”), to the effect that the transfer is being made to a Qualified Institutional Buyer in accordance with Rule 144A or (2) prior to the transfer the related transferee furnishes to the Certificate Registrar (x) an Investment Representation Letter to the effect that the transfer is being made to an Institutional Accredited Investor (other than a Qualified Institutional Buyer) or to an Affiliated Person in accordance with an applicable exemption under the Act, and (y) in the case of a transfer to an Affiliated Person, an opinion of counsel acceptable to the Certificate Registrar that such transfer is in compliance with the Act; or

(B)              The Certificate Registrar shall register the transfer of an Individual Certificate pursuant to Regulation S after the expiration of the Restricted Period if

 -231-

 

(1) the transferor has provided the Certificate Registrar with a Regulation S Transfer Certificate substantially in the form of Exhibit G to this Agreement (a “Regulation S Transfer Certificate”), and (2) the transferee furnishes to the Certificate Registrar an Investment Representation Letter;

and, in each case, the Certificate Registrar shall register the transfer of an Individual Certificate only if prior to the transfer the transferee furnishes to the Certificate Registrar a written undertaking by the transferor to reimburse the Trust Fund for any costs incurred by it in connection with the proposed transfer. In addition, the Certificate Registrar may, as a condition of the registration of any such transfer, require the transferor to furnish such other certificates, legal opinions or other information (at the transferor’s expense) as the Certificate Registrar may reasonably require to confirm that the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act and other applicable laws.

(ii)           Transfers within the Global Certificates. Notwithstanding any provision to the contrary herein, so long as a Global Certificate remains outstanding and is held by or on behalf of the Depository, transfers within the Global Certificates shall only be made in accordance with this Section 5.02(c)(ii).

(A)             Rule 144A Global Certificate to Regulation S Global Certificate During the Restricted Period. If, during the Restricted Period, a Beneficial Owner of an interest in a Rule 144A Global Certificate wishes at any time to transfer its beneficial interest in such Rule 144A Global Certificate to a Person who wishes to take delivery thereof in the form of a beneficial interest in the related Regulation S Global Certificate, such Beneficial Owner may, in addition to complying with all applicable rules and procedures of the Depository and Clearstream or Euroclear applicable to transfers by their respective participants (the “Applicable Procedures”), transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in such Regulation S Global Certificate only upon compliance with the provisions of this Section 5.02(c)(ii)(A). Upon receipt by the Certificate Registrar at the Corporate Trust Office of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Certificate Registrar to credit or cause to be credited to another specified Agent Member’s account a beneficial interest in the Regulation S Global Certificate in an amount equal to the Denomination of the beneficial interest in the Rule 144A Global Certificate to be transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member and the Euroclear or Clearstream account, as the case may be, to be credited with, and the account of the Agent Member to be debited for, such beneficial interest, and (3) a certificate in the form of Exhibit H to this Agreement given by the Beneficial Owner of such interest, the Certificate Registrar shall instruct the Depository or the Certificate Custodian, as applicable, to reduce the Denomination of the Rule 144A Global Certificate by the Denomination of the beneficial interest in the Rule 144A

 -232-

 

Global Certificate to be so transferred and, concurrently with such reduction, to increase the Denomination of the Regulation S Global Certificate by the Denomination of the beneficial interest in the Rule 144A Global Certificate to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (who shall be an Agent Member acting for or on behalf of Euroclear or Clearstream, or both, as the ease may be) a beneficial interest in the Regulation S Global Certificate having a Denomination equal to the amount by which the Denomination of the Rule 144A Global Certificate was reduced upon such transfer.

(B)              Rule 144A Global Certificate to Regulation S Global Certificate After the Restricted Period. If, after the Restricted Period, a Beneficial Owner of an interest in a Rule 144A Global Certificate wishes at any time to transfer its beneficial interest in such Rule 144A Global Certificate to a Person who wishes to take delivery thereof in the form of a beneficial interest in the related Regulation S Global Certificate, such holder may, in addition to complying with all Applicable Procedures, transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in such Regulation S Global Certificate only upon compliance with the provisions of this Section 5.02(c)(ii)(B). Upon receipt by the Certificate Registrar at the Corporate Trust Office of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Certificate Registrar to credit or cause to be credited to another specified Agent Member’s account a beneficial interest in the Regulation S Global Certificate in an amount equal to the Denomination of the beneficial interest in the Rule 144A Global Certificate to be transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member and, in the case of a transfer pursuant to and in accordance with Regulation S, the Euroclear or Clearstream account, as the case may be, to be credited with, and the account of the Agent Member to be debited for, such beneficial interest, and (3) a certificate in the form of Exhibit I to this Agreement given by the Beneficial Owner of such interest, the Certificate Registrar shall instruct the Depository or the Certificate Custodian, as applicable, to reduce the Denomination of the Rule 144A Global Certificate by the aggregate Denomination of the beneficial interest in the Rule 144A Global Certificate to be so transferred and, concurrently with such reduction, to increase the Denomination of the Regulation S Global Certificate by the aggregate Denomination of the beneficial interest in the Rule 144A Global Certificate to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Certificate having a Denomination equal to the amount by which the Denomination of the Rule 144A Global Certificate was reduced upon such transfer.

(C)              Regulation S Global Certificate to Rule 144A Global Certificate. If the Beneficial Owner of an interest in a Regulation S Global Certificate wishes at any time to transfer its beneficial interest in such Regulation S Global Certificate to a Person who wishes to take delivery thereof in the form of a beneficial interest in the related Rule 144A Global Certificate, such Beneficial Owner may, in addition to complying with all Applicable Procedures, transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in such Rule 144A Global Certificate only upon compliance with the provisions of this Section

 -233-

 

5.02(c)(ii)(C). Upon receipt by the Certificate Registrar at the Corporate Trust Office of (1) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Certificate Registrar to credit or cause to be credited to another specified Agent Member’s account a beneficial interest in the Rule 144A Global Certificate in an amount equal to the Denomination of the beneficial interest in the Regulation S Global Certificate to be transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member to be credited with, and the account of the Agent Member or, if such account is held for Euroclear or Clearstream, the Euroclear or Clearstream account, as the case may be, to be debited for, such beneficial interest, and (3) with respect to a transfer of a beneficial interest in a Regulation S Global Certificate for a beneficial interest in the related Rule 144A Global Certificate (i) during the Restricted Period, a certificate in the form of Exhibit J to this Agreement given by the holder of such beneficial interest or (ii) after the Restricted Period, an Investment Representation Letter from the transferee to the effect that such transferee is a Qualified Institutional Buyer, the Certificate Registrar shall instruct the Depository or the Certificate Custodian, as applicable, to reduce the Denomination of the Regulation S Global Certificate by the aggregate Denomination of the beneficial interest in the Regulation S Global Certificate to be transferred, and, concurrently with such reduction, to increase the Denomination of the Rule 144A Global Certificate by the aggregate Denomination of the beneficial interest in the Regulation S Global Certificate to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Certificate having a Denomination equal to the amount by which the Denomination of the Regulation S Global Certificate was reduced upon such transfer.

(iii)           Transfers from the Global Certificates to Individual Certificates. Any and all transfers from a Global Certificate to a transferee wishing to take delivery in the form of an Individual Certificate will require the transferee to take delivery subject to the restrictions on the transfer of such Individual Certificate described in a legend set forth on the face of such Certificate substantially in the form of Exhibit F to this Agreement (the “Securities Legend”), and such transferee agrees that it will transfer such Individual Certificate only as provided therein and herein. No such transfer shall be made and the Certificate Registrar shall not register any such transfer unless such transfer is made in accordance with this Section 5.02(c)(iii).

(A)             Transfers of a beneficial interest in a Global Certificate to an Institutional Accredited Investor (other than a Qualified Institutional Buyer or an initial transfer from an Initial Purchaser to an Institutional Accredited Investor) will require delivery in the form of an Individual Certificate and the Certificate Registrar shall register such transfer only upon compliance with the provisions of Section 5.02(c)(i)(A) of this Agreement.

(B)              Transfers of a beneficial interest in a Global Certificate to a Qualified Institutional Buyer or a Regulation S Investor wishing to take delivery in the form of an Individual Certificate will be registered by the Certificate Registrar

 -234-

 

only upon compliance with the provisions of Section 5.02(c)(i)(A) and (B) of this Agreement, respectively.

(C)              Notwithstanding the foregoing, no transfer of a beneficial interest in a Regulation S Global Certificate to an Individual Certificate pursuant to subparagraph (B) above shall be made prior to the expiration of the Restricted Period.

Upon acceptance for exchange or transfer of a beneficial interest in a Global Certificate for an Individual Certificate, as provided herein, the Certificate Registrar shall endorse on the schedule affixed to the related Global Certificate (or on a continuation of such schedule affixed to such Global Certificate and made a part thereof) an appropriate notation evidencing the date of such exchange or transfer and a decrease in the Denomination of such Global Certificate equal to the Denomination of such Individual Certificate issued in exchange therefor or upon transfer thereof. Unless determined otherwise by the Certificate Registrar and the Depositor in accordance with applicable law, an Individual Certificate issued upon transfer of or exchange for a beneficial interest in the Global Certificate shall bear the Securities Legend.

(iv)           Transfers of Individual Certificates to the Global Certificates. If a Holder of an Individual Certificate wishes at any time to transfer such Certificate to a Person who wishes to take delivery thereof in the form of a beneficial interest in the related Regulation S Global Certificate or the related Rule 144A Global Certificate, such transfer may be effected only in accordance with the Applicable Procedures and this Section 5.02(c)(iv). Upon receipt by the Certificate Registrar at the Corporate Trust Office of (l) the Individual Certificate to be transferred with an assignment and transfer pursuant to Section 5.05(a) of this Agreement, (2) written instructions given in accordance with the Applicable Procedures from an Agent Member directing the Certificate Registrar to credit or cause to be credited to a specified Agent Member’s account a beneficial interest in such Regulation S Global Certificate or such Rule 144A Global Certificate, as the case may be, in an amount equal to the Denomination of the Individual Certificate to be so transferred, (3) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Agent Member and, in the case of any transfer pursuant to Regulation S, the Euroclear or Clearstream account, as the case may be, to be credited with such beneficial interest, and (4) (x) an Investment Representation Letter from the transferee and, if delivery is to be taken in the form of a beneficial interest in the Regulation S Global Certificate, a Regulation S Transfer Certificate from the transferor or (y) an Investment Representation Letter from the transferee to the effect that such transferee is a Qualified Institutional Buyer if delivery is to be taken in the form of a beneficial interest in the Rule 144A Global Certificate, the Certificate Registrar shall cancel such Individual Certificate, execute and deliver a new Individual Certificate for the Denomination of the Individual Certificate not so transferred, registered in the name of the Holder or the Holder’s transferee (as instructed by the Holder), and the Certificate Registrar shall instruct the Depository or the Certificate Custodian, as applicable, to increase the Denomination of the Regulation S Global Certificate or the Rule 144A Global Certificate, as the case may be, by the Denomination of the Individual Certificate to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions who, in the

 -235-

 

case of any increase in the Regulation S Global Certificate during the Restricted Period, shall be an Agent Member acting for or on behalf of Euroclear or Clearstream, or both, as the case may be, a corresponding Denomination of the Rule 144A Global Certificate or the Regulation S Global Certificate, as the case may be.

It is the intent of the foregoing that under no circumstances may an Institutional Accredited Investor that is not a Qualified Institutional Buyer take delivery in the form of a beneficial interest in a Rule 144A Global Certificate other than the initial transfer from an Initial Purchaser to an Institutional Accredited Investor.

(v)           All Transfers. An exchange of a beneficial interest in a Global Certificate for an Individual Certificate or Certificates, an exchange of an Individual Certificate or Certificates for a beneficial interest in a Global Certificate and an exchange of an Individual Certificate or Certificates for another Individual Certificate or Certificates (in each case, whether or not such exchange is made in anticipation of subsequent transfer, and, in the case of the Global Certificates, so long as the Global Certificates remain outstanding and are held by or on behalf of the Depository), may be made only in accordance with this Section 5.02 and in accordance with the rules of the Depository and Applicable Procedures.

(d)           If Certificates are issued upon the transfer, exchange or replacement of Certificates not bearing the Securities Legend, the Certificates so issued shall not bear the Securities Legend. If Certificates are issued upon the transfer, exchange or replacement of Certificates bearing the Securities Legend, or if a request is made to remove the Securities Legend on a Certificate, the Certificates so issued shall bear the Securities Legend, or the Securities Legend shall not be removed, as the case may be, unless there is delivered to the Certificate Registrar such satisfactory evidence, which may include an opinion of counsel (at the expense of the party requesting the removal of such legend) familiar with United States securities laws, as may be reasonably required by the Certificate Registrar, that neither the Securities Legend nor the restrictions on transfers set forth therein are required to ensure that transfers of any Certificate comply with the provisions of Rule 144A or Rule 144 under the Act or that such Certificate is not a “restricted security” within the meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence, the Certificate Registrar shall execute and deliver a Certificate that does not bear the Securities Legend.

(e)           Subject to the restrictions on transfer and exchange set forth in Section 5.01(i) and in this Section 5.02, the Holder of any Individual Certificate may transfer or exchange the same in whole or in part (with a denomination equal to any authorized denomination) by surrendering such Certificate at the office of the Certificate Administrator or at the office of any transfer agent appointed as provided under this Agreement, together with an instrument of assignment or transfer (executed by the Holder or its duly authorized attorney), in the case of transfer, and a written request for exchange, in the case of exchange. Following a proper request for transfer or exchange, the Certificate Registrar shall, within five Business Days of such request if made at such office of the Certificate Registrar or within ten Business Days if made at the office of a transfer agent (other than the Certificate Registrar), execute and deliver at the office of the Certificate Registrar or at the office of such transfer agent, as the case may be, to the transferee (in the case of transfer) or Holder (in the case of exchange) or send by first-class mail (at the risk of the transferee in the case of transfer or Holder in the case of exchange) to such address as the

 -236-

 

transferee or Holder, as applicable, may request, an Individual Certificate or Certificates, as the case may require, for a like aggregate Denomination and in such Denomination or Denominations as may be requested. The presentation for transfer or exchange of any Individual Certificate shall not be valid unless made at the office of the Certificate Registrar or at the office of a transfer agent by the registered Holder in person, or by a duly authorized attorney-in-fact. The Certificate Registrar may decline to accept any request for an exchange or registration of transfer of any Certificate during the period of 15 days preceding any Distribution Date.

(f)           An Individual Certificate (other than an Individual Certificate issued in exchange for a beneficial interest in a Global Certificate pursuant to Section 5.01 of this Agreement) or a beneficial interest in a Global Certificate may only be transferred to Eligible Investors or Regulation S Investors, as described herein. In the event that a Responsible Officer of the Certificate Registrar has actual knowledge that such an Individual Certificate or beneficial interest in a Global Certificate is being held by or for the benefit of a Person who is not an Eligible Investor, or that such holding is unlawful under the laws of a relevant jurisdiction, then the Certificate Registrar shall have the right to void such transfer, if permitted under applicable law, or to require the investor to sell such Individual Certificate or beneficial interest in a Global Certificate to an Eligible Investor within fourteen days after notice of such determination and each Certificateholder by its acceptance of a Certificate authorizes the Certificate Registrar to take such action.

(g)           Subject to the provisions of this Section 5.02 regarding transfer and exchange, transfers of the Global Certificates shall be limited to transfers of such Global Certificates in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successor’s nominee.

(h)           No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in this Section 5.02 other than for transfers to Institutional Accredited Investors that are not Qualified Institutional Buyers, as provided herein. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided herein) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

(i)            Subject to Section 5.02(e) of this Agreement, transfers of the Class R and Class LR Certificates may be made only in accordance with this Section 5.02(i). The Certificate Registrar shall register the transfer of a Class R or Class LR Certificate only if (x) the transferor has advised the Certificate Registrar in writing that such Certificate is being transferred to a Qualified Institutional Buyer or an Affiliated Person and (y) prior to such transfer the transferee furnishes to the Certificate Registrar an Investment Representation Letter. In addition, the Certificate Registrar may as a condition of the registration of any such transfer require the transferor to furnish such other certifications, legal opinions or other information (at the transferor’s expense) as it may reasonably require to confirm that the proposed transfer is being

 -237-

 

made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act and other applicable laws.

(j)            No transfer, sale, pledge or other disposition of any Certificate or interest therein shall be made unless that transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Act and any applicable state securities laws, or is otherwise made in accordance with the Act and such state securities laws. Neither the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee nor the Certificate Registrar are obligated to register or qualify the Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of such Certificates without registration or qualification. Any Certificateholder desiring to affect such a transfer shall, and does hereby agree to, indemnify the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Initial Purchasers and the Certificate Registrar, against any loss, liability or expense that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.

(k)           No transfer of any Class HRR, Class S, Class R or Class LR Certificate (each, a “Restricted Certificate”) shall be made to (i) an employee benefit plan or other plan or retirement arrangement, including an individual retirement account or a Keogh plan, which is subject to ERISA, or to Section 4975 of the Code, or a governmental plan, as defined in Section 3(32) of ERISA, or other plan subject to any federal, state or local law (“Similar Law”), which is, to a material extent, similar to the fiduciary responsibility provisions of ERISA or to Section 4975 of the Code (each, a “Plan”) or (ii) any Person acting on behalf of any Plan or using the assets of any Plan (including any entity whose underlying assets include plan assets by reason of a Plan’s investment in the entity (within the meaning of Department of Labor Regulations Section 2510.3-101, as modified by Section 3(42) of ERISA)) to acquire any such Restricted Certificate, other than, in the case of the Class HRR Certificates, insurance company general accounts purchasing and holding under circumstances that meet all of the requirements of Sections I and III of Prohibited Transaction Exemption 95-60 or, in the case of a Plan subject to Similar Law, under circumstances where the acquisition, holding and disposition of the Restricted Certificates will not result in a non-exempt violation of Similar Law. Each prospective transferee of a Restricted Certificate (other than in the case of the initial transfer from the Initial Purchasers to an initial investor) shall deliver to the Depositor, the Certificate Registrar and the Certificate Administrator, a transfer or representation letter, substantially in the form of Exhibit D-2 to this Agreement, stating that the prospective transferee is not and will not become a Person referred to in (i) or (ii) above. Neither the Certificate Administrator nor the Certificate Registrar shall register a Class S, Class R or Class LR Certificate in any Person’s name unless such Person has provided the letter referred to in clause (ii) of the preceding sentence. Each beneficial owner of a Certificate (other than a Class S, Class R or Class LR Certificate) or any interest therein will be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that (i) it is not a Plan and is not acting on behalf of or using the assets of a Plan (including any entity whose underlying assets include plan assets by reason of a Plan’s investment in the entity (within the meaning of Department of Labor Regulations Section 2510.3-101, as modified by Section 3(42) of ERISA)) to purchase the Certificates, (ii) in the case of a Certificate that meets the rating requirements of the Underwriter Exemption at the time of purchase, that (w) it has acquired and is holding such Certificate or an interest therein in reliance on the Underwriter Exemption, (x) it

 -238-

 

understands that there certain conditions to the availability of the Underwriter Exemption, including that the certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by a rating agency that meets the requirements of the Underwriter Exemption and that such Certificate is so rated, and (y) it is an “accredited investor” as defined in Rule 501(a)(1) of Regulation D, or (iii) it is an insurance company general account and all requirements of Sections I and III of PTCE 95-60 will be met with respect to its acquisition, holding and disposition of the Certificates (or, in the case of a Plan subject to Similar Law, that its acquisition, holding and disposition of the Certificates will not result in a non-exempt violation of Similar Law). Any transfer of a Certificate that would violate these restrictions or result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or Similar Law shall be deemed absolutely null and void ab initio.

Each purchaser of Certificates that is a Plan subject to ERISA and/or Section 4975 of the Code (“ERISA Plan”) or is acting on behalf of or using the assets of an ERISA Plan will be deemed to have represented and warranted that (i) none of the Depositor, the Initial Purchasers, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Sponsors or any of their respective affiliated entities, has provided any investment advice within the meaning of Section 3(21) of ERISA (and the applicable regulations) to the ERISA Plan or the fiduciary making the investment decision for the ERISA Plan in connection with the ERISA Plan’s acquisition of Certificates, and (ii) the ERISA Plan fiduciary making the decision to acquire the Certificates is exercising its own independent judgment in evaluating the investment in the Certificates.

(l)            Each Person who has or acquires any Ownership Interest shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Ownership Interest are expressly subject to the following provisions:

(i)           Each Person acquiring or holding any Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Ownership Interest) as a Permitted Transferee. Any acquisition described in the first sentence of this Section 5.02(l) by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Ownership Interest as fully as possible.

(ii)           No Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar (such consent not to be unreasonably withheld), and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Ownership Interest, the Certificate Registrar shall, as a condition to such consent, (x) require delivery to it in form and substance satisfactory to it, and the proposed transferee shall deliver to

 -239-

 

the Certificate Registrar and to the proposed transferor an affidavit in substantially the form attached as Exhibit C-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (i) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (ii) the proposed transferee understands that, as the holder of an Ownership Interest, it may incur liabilities in excess of cash flows generated by the residual interest, (iii) the proposed transferee intends to pay taxes associated with holding the Ownership Interest as they become due, (iv) the proposed transferee will not transfer the Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, (v) the proposed transferee will not cause income from the Class R or Class LR Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the proposed transferee or any other U.S. Person and (vi) the proposed transferee expressly agrees to be bound by and to abide by the provisions of this Section 5.02(l) and (y) other than in connection with the initial issuance of the Class R and Class LR Certificates, require a statement from the proposed transferor substantially in the form attached as Exhibit C-2 (the “Transferor Certificate”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in the Transferee Affidavit are false.

(iii)           Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, however, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee.

Neither the Certificate Administrator nor the Certificate Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restriction or transfer imposed under Article V of this Agreement or under applicable law with respect to any transfer of any Certificate (including, without limitation, the Securities Legend), or any interest therein, other than to require delivery of the certification(s) and/or opinions of counsel described in Article V applicable with respect to changes in registration of record ownership of Certificates in the Certificate Register. The Certificate Administrator and the Certificate Registrar shall have no liability for transfers, including transfers made through the book-entry facilities of the Depository or between or among Depository Participants or Beneficial Owners made in violation of applicable restrictions.

Upon written notice to the Certificate Registrar, or upon the Certificate Registrar having actual knowledge, that there has occurred a Transfer of an Ownership Interest to any Person that is a Disqualified Organization or an agent thereof (including a broker, nominee, or middleman) in contravention of the foregoing restrictions, and in any event not later than 60 days after a request for information from the transferor of such Ownership Interest, or such agent, the Certificate Registrar and the Certificate Administrator agree to furnish to the IRS and the transferor of such

 -240-

 

Ownership Interest or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code, including, but not limited to, the present value of the total anticipated excess inclusions with respect to such Class R or Class LR Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar and the Certificate Administrator, the Certificate Registrar and the Certificate Administrator may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, however, that such Persons shall in no event be excused from furnishing such information.

(m)             Notwithstanding any other provision of this Agreement, the Certificate Administrator shall comply with all federal withholding requirements respecting payments to Certificateholders and other payees of interest or original issue discount that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for such withholding, and the Certificateholders shall be required to provide the Certificate Administrator information relating to such Certificateholder solely to the extent necessary for the Certificate Administrator to determine any required withholding amounts. If the Certificate Administrator does withhold any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Certificate Administrator shall indicate the amount withheld to such Person. Such amounts shall be deemed to have been distributed to such Persons for all purposes of this Agreement. In connection with the foregoing, such holders shall be required to provide any information that the Certificate Administrator may reasonably request to perform its tax obligations.

(n)           At all times during the Transfer Restriction Period, if a transfer of the Class HRR Certificates after the Closing Date is to be made, then the Certificate Administrator in conjunction with the Certificate Registrar shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon) (i) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit C-3, which such certification must be countersigned by the Retaining Party and the Retaining Sponsor with a medallion stamp guarantee of the Retaining Party and the Retaining Sponsor, (ii) a certification from the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit C-4, which such certification must be countersigned by the Retaining Party and the Retaining Sponsor (if different) with a medallion stamp guarantee of the Retaining Party and the Retaining Sponsor (if different), (iii) an IRS Form W9 completed by the prospective Transferee and (iv) wiring instructions and contact information of the prospective Transferee. Upon receipt of the foregoing certifications, the Certificate Registrar shall, subject to Section 5.02(e), register the Transfer of the Class HRR Certificate, reflect such Class HRR Certificate in the name of the prospective Transferee and deliver written confirmation substantially in the form of Exhibit S. The Certificate Registrar shall not register a Transfer of any Class HRR Certificate after the Closing Date during the Transfer Restriction Period unless it is so instructed by the Certificate Administrator. After the termination of the Transfer Restriction Period, if a transfer of a Class HRR Certificate is to be made and such Class HRR Certificate is in the Risk Retained Certificate Safekeeping Account, then upon receipt of: (i) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit C-3, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor and (ii) a certification from the Certificateholder desiring to effect such

 -241-

 

transfer substantially in the form attached hereto as Exhibit C-4, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, the Certificate Administrator (which may conclusively rely upon such certifications) shall instruct the Certificate Registrar to register such Transfer, and upon receipt of the Certificate Administrator’s instruction, the Certificate Registrar shall register the Transfer of the Class HRR Certificate and reflect such Class HRR Certificate in the name of the prospective Transferee. After the termination of the Transfer Restriction Period, if a transfer of a Class HRR Certificate is to be made and such Class HRR Certificate is in the Risk Retained Certificate Safekeeping Account, the Certificate Registrar shall not register a Transfer of such Class HRR Certificate unless it is so instructed by the Certificate Administrator. For the avoidance of doubt, in no event shall a Class HRR Certificate be held as a Book-Entry Certificate during the Transfer Restriction Period. After the Transfer Restriction Period, a Class HRR Certificate may be transferred subject to the restrictions on transfer set forth in this Article V. Any transfer of an interest in a Class HRR Certificate that is not in compliance with this Section 5.02 shall be null and void ab initio to the extent permitted under applicable law.

Section 5.03     Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate, and (ii) there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it and the Certificate Administrator harmless, then, in the absence of actual knowledge by a Responsible Officer of the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Administrator or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same Class and of like tenor and Percentage Interest. Upon the issuance of any new Certificate under this Section 5.03, the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 5.03 shall constitute complete and indefeasible evidence of ownership of the corresponding interest in the Trust Fund, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

Section 5.04     Appointment of Paying Agent. The Certificate Administrator may appoint a paying agent for the purpose of making distributions to Certificateholders pursuant to Section 4.01 of this Agreement. The Certificate Administrator shall cause such Paying Agent, if other than the Certificate Administrator, the Trustee or the Master Servicer, to execute and deliver to the Master Servicer and the Trustee an instrument in which such Paying Agent shall agree with the Master Servicer and the Trustee that such Paying Agent will hold all sums held by it for the payment to Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums have been paid to the Certificateholders or disposed of as otherwise provided herein. The initial Paying Agent shall be the Certificate Administrator. Except for the Certificate Administrator, as the initial Paying Agent, the Paying Agent shall at all times be an entity having a long-term unsecured debt rating of at least “A” from Fitch and “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs), or shall be otherwise acceptable to each Rating Agency, as confirmed by a receipt of a No Downgrade Confirmation.

 -242-

 

Section 5.05     Access to Certificateholders’ Names and Addresses; Special Notices. (a)  If any Certifying Certificateholder or the Master Servicer (for purposes of this Section 5.05, an “Applicant”) applies in writing to the Certificate Registrar, and such application states that the Applicant desires to communicate with other Certificateholders, the Certificate Registrar shall furnish or cause to be furnished to such Applicant a list of the names and addresses of the Certificateholders as of the most recent Record Date, at the expense of the Applicant.

(b)           Every Certificateholder, by receiving and holding its Certificate, agrees with the Certificate Administrator and the Certificate Registrar that the Certificate Administrator and the Certificate Registrar shall not be held accountable in any way by reason of the disclosure of any information as to the names and addresses of the Certificateholders hereunder, regardless of the source from which such information was derived.

(c)           Upon the written request of any Certifying Certificateholder that (a) states that such Certificateholder desires the Certificate Administrator to transmit a notice to all Certificateholders stating that such Certificateholder wishes to be contacted by other Certificateholders, setting forth the relevant contact information and briefly stating the reason for the requested contact and (b) provides a copy of the Special Notice which such Certificateholder proposes to transmit, the Certificate Administrator shall deliver such Special Notice to all Certificateholder at their respective addresses appearing on the Certificate Register. The costs and expenses of the Certificate Administrator associated with delivering with any such Special Notice shall be borne by the party requesting such Special Notice. Every Certificateholder, by receiving and holding a Certificate, agrees that neither the Certificate Administrator nor the Certificate Registrar shall be held accountable by reason of the disclosure of any such Special Notice to Certificateholders, regardless of the information set forth in such Special Notice.

Section 5.06     Actions of Certificateholders. (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Certificateholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Certificateholders in person or by agent duly appointed in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Certificate Administrator and the Trustee and, when required, to the Master Servicer. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and conclusive in favor of the Certificate Administrator, the Trustee and the Master Servicer, if made in the manner provided in this Section.

(b)           The fact and date of the execution by any Certificateholder of any such instrument or writing may be proved in any reasonable manner which the Certificate Administrator or the Trustee deems sufficient.

(c)           Any request, demand, authorization, direction, notice, consent, waiver or other act by a Certificateholder shall bind every Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, or omitted to be done, by the Certificate Administrator or the Trustee or the Master Servicer in reliance thereon, whether or not notation of such action is made upon such Certificate.

 -243-

 

(d)           The Certificate Administrator, the Trustee or Certificate Registrar may require such additional proof of any matter referred to in this Section 5.06 as it shall deem necessary.

Section 5.07     Rule 144A Information. (a) The Certificate Administrator shall, upon request of any Certifying Certificateholder that is a Holder of a Certificate or any beneficial owner of a Certificate, furnish to such Holder or beneficial owner, or to a prospective purchaser that is designated by such Holder or beneficial owner and that is a Qualified Institutional Buyer, the information required to be delivered under Rule 144A(d)(4) under the Act, to the extent such information has been provided to the Certificate Administrator and has been identified as Rule 144A information by the Depositor (which shall include all information on the Certificate Administrator’s Website and all information currently required to be made available to Certificateholders, as well as any other specifically identified information herein).

ARTICLE VI

THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE OPERATING ADVISOR AND THE DIRECTING HOLDER

Section 6.01     Liability of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor. The Depositor, the Master Servicer, the Special Servicer and the Operating Advisor each shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.

Section 6.02     Merger or Consolidation of either the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor. Subject to the following paragraph, each of the Master Servicer and the Special Servicer will keep in full effect its existence, rights and good standing as a national banking association under the laws of the United States of America and will not jeopardize its ability to do business in the jurisdiction in which the Mortgaged Properties securing the Trust Loan are located or to protect the validity and enforceability of this Agreement, the Certificates or the Trust Loan and to perform its respective duties under this Agreement. In addition, subject to the following paragraph, the Operating Advisor shall keep in full effect its existence, rights and good standing as a limited liability company under the laws of the State of New York and shall not jeopardize its ability to do business in each jurisdiction in which the Mortgaged Properties are located or to protect the validity and enforceability of this Agreement, the Certificates or Trust Loan and to perform its respective duties under this Agreement.

Each of the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets to any Person, in which case any Person into which the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor may be merged or consolidated, or any Person resulting from any merger or consolidation to which the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor is a party, or any Person succeeding to the business of the Master Servicer, the Special Servicer, the Operating Advisor (which, in the case of the Operating Advisor, may be limited to all or substantially all of its assets relating to acting as a trust advisor or operating advisor for commercial mortgage securitizations) or the Depositor, shall be the successor of the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor, as

 -244-

 

applicable, hereunder, and shall be deemed to have assumed all of the liabilities of the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor, as applicable, hereunder, without the consent of any other party to this Agreement if each of the Rating Agencies has provided a No Downgrade Confirmation (and each rating agency then rating the Companion Loan Securities has provided a No Downgrade Confirmation) relating to the Certificates; provided, however, that no Rating Agency shall be required to provide a No Downgrade Confirmation if (x) the Master Servicer, the Special Servicer, the Operating Advisor or the Depositor is merged into or consolidated with a Qualified Affiliate or transfers all or substantially all of its assets to a Qualified Affiliate or (y) the Master Servicer, the Special Servicer or the Operating Advisor enters into a merger and the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, is the surviving entity under the applicable law, in which case, the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, shall also not, as a result of the merger, be required to obtain the consent of the Depositor. Notwithstanding the foregoing, no Master Servicer, Special Servicer or Operating Advisor may remain the Master Servicer, the Special Servicer or the Operating Advisor under this Agreement after (x) being merged or consolidated with or into any Person that is a Prohibited Party, or (y) transferring all or substantially all of its assets to any Person if such Person is a Prohibited Party, except to the extent (i) the Master Servicer, the Special Servicer or the Operating Advisor is the surviving entity of such merger, consolidation or transfer and has been and continues to be in compliance with its Regulation AB reporting obligations hereunder or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld.

Section 6.03        Limitation on Liability of the Depositor, the Master Servicer and Others. (a)  None of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor or any Affiliates, directors, officers, employees, shareholders, members, managers or agents (including sub-servicers) of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor shall be under any liability to the Trust Fund, the Certificateholders, the Companion Loan Holders or any third party beneficiary for taking any action, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor, or any member, manager, director, officer, employee, shareholder or agent (including sub-servicers) of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor, against any breach of representations and warranties made herein, or against any liability which would otherwise be imposed by reason of willful misconduct, bad faith, fraud or negligence (or in the case of the Master Servicer or the Special Servicer, by reason of any specific liability imposed hereunder for a breach of the Servicing Standard or in the case of the Operating Advisor, by reason of any specific liability imposed for a breach of the Operating Advisor Standard) in the performance of duties or by reason of negligent disregard of obligations or duties hereunder. The Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and any Affiliate, member, manager, shareholder, director, officer, employee or agent of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor may rely in good faith on any document of any kind which, prima facie, is properly executed and submitted by any appropriate Person respecting any matters arising hereunder. In addition, in no event shall the Depositor be obligated to cause any party to perform or comply with the obligations to (i) remit the CREFC^® License Fee to CREFC^®, to report any such CREFC^® License Fee so paid or to make available any Distribution Date Statement to any party (or in particular, CREFC^®).

 -245-

 

The Trust Fund and the Companion Loan Holders shall be indemnified and held harmless by each of the Master Servicer, the Special Servicer and the Operating Advisor (severally and not jointly) for any loss, liability or expense (including legal fees and expenses) incurred in connection with any claim, loss, penalty, fine, foreclosure, judgment or liability relating to this Agreement, the Certificates, incurred by the Trust Fund or the Companion Loan Holders, as applicable, by reason of willful misconduct, bad faith, fraud or negligence in the performance of duties hereunder, or by reason of negligent disregard of obligations and duties thereunder, on the part of such indemnifying party.

The Depositor, the Master Servicer, the Special Servicer, the Operating Advisor and any Affiliate, director, officer, employee, shareholder, member, manager or agent of the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor shall be indemnified and held harmless by the Trust Fund for any loss, liability or expense (including legal fees and expenses) incurred in connection with any claim, loss, penalty, fine, foreclosure, judgment, liability or legal action relating to this Agreement, the Certificates, other than any loss, liability or expense (including legal fees and expenses) (i) incurred by reason of such party’s willful misconduct, bad faith, fraud or negligence in the performance of duties hereunder or by reason of its negligent disregard of obligations and duties thereunder or (ii) in the case of the Depositor and any of its directors, officers, members, managers, employees, shareholders and agents, incurred in connection with any violation by any of them of any state or federal securities law; provided that such indemnified parties shall be paid out of the Collection Account (in accordance with Section 3.06(a) of this Agreement), provided that the Master Servicer shall, after receiving payment from amounts on deposit in the Collection Account, promptly notify the Companion Loan Holders and use efforts consistent with the Servicing Standard to exercise on behalf of the Trust any rights under the Co-Lender Agreement to obtain reimbursement for a pro rata portion of such amount allocable to the Companion Loan from the Companion Loan Holders.

(b)           None of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor shall be under any obligation to appear in, prosecute or defend any legal action, unless such action relates to its respective duties under this Agreement and which in its opinion does not expose it to any expense or liability not recoverable from the Trust Fund; provided, however, that each of the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor may in its discretion undertake any such action that it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders and the Companion Loan Holders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust Fund, and the Depositor, the Master Servicer, the Special Servicer and the Operating Advisor shall be entitled to be reimbursed therefor from the Collection Account (in accordance with Section 3.06(a) of this Agreement) no later than 60 days after submitting such expenses or costs for reimbursement, provided that a failure to reimburse such parties within such 60 days will not affect or limit such parties’ rights to receive reimbursement hereunder; provided that such amounts shall be allocated in accordance with the expense allocation provision of the Co-Lender Agreement.

(c)           The terms of this Section 6.03 shall survive the termination of any party hereto or of this Agreement.

 -246-

 

(d)           For the avoidance of doubt, with respect to any indemnification provisions in this Agreement providing that the Trust or a party to this Agreement is required to indemnify another party to this Agreement for costs, attorney’s fees and expenses, such costs, fees and expenses are intended to include costs, reasonable attorney’s fees and expenses relating to the enforcement of such indemnity (but only after a non-appealable final judgment or court order in favor of the indemnified party with respect to such indemnity or as agreed to by the related parties pursuant to the settlement or otherwise).

Section 6.04        Limitation on Resignation of the Master Servicer and the Special Servicer; Termination of the Master Servicer and the Special Servicer. (a)  Each of the Master Servicer and the Special Servicer may assign their respective rights and delegate their respective duties and obligations under this Agreement, provided that: (i) the party accepting such assignment and delegation (A) shall be an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of the United States of America, any state of the United States of America or the District of Columbia, authorized under such laws to perform the duties of the Master Servicer or Special Servicer or a Person resulting from a merger, consolidation or succession that is permitted under Section 6.02 of this Agreement, (B) shall be acceptable to each Rating Agency as confirmed in a No Downgrade Confirmation delivered to the Trustee and the Certificate Administrator relating to the Certificates and the Companion Loan Securities, if any, (C) shall execute and deliver to the Trustee and the Certificate Administrator an agreement that contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer or Special Servicer, as applicable under this Agreement from and after the date of such agreement, (D) shall not be a Prohibited Party and (E) with respect to the Special Servicer (x) during any Subordinate Control Period, has been appointed by the Directing Holder or (y) during any Subordinate Consultation Period, is reasonably acceptable to the Directing Holder and the Depositor; (ii) the Master Servicer or the Special Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 6.04; (iii) the rate at which the Servicing Compensation or Special Servicing Compensation, as applicable (or any component thereof) is calculated shall not exceed the rate then in effect; and (iv) the resigning Master Servicer or Special Servicer shall be responsible for the reasonable costs and expenses of each other party hereto and the Rating Agencies in connection with such transfer. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer or Special Servicer, as applicable, hereunder.

(b)           Except as provided in Section 6.02 of this Agreement and this Section 6.04, the Master Servicer and the Special Servicer shall not resign from its respective obligations and duties hereby imposed on it except upon either (i) the determination that such duties hereunder are no longer permissible under applicable law or (ii) in connection with the assignment of rights and delegation of duties as set forth in Section 6.04(a). Any such determination described in clause (i) above permitting the resignation of the Master Servicer or the Special Servicer, as applicable, shall be evidenced by an Opinion of Counsel (obtained at the resigning Master Servicer’s or Special Servicer’s expense) to such effect delivered to the Trustee, the Certificate Administrator and during any Subordinate Control Period and any Subordinate Consultation Period, the Directing Holder. In connection with any such resignation, the successor special servicer shall either: (i) during any Subordinate Control Period, be appointed by the Directing Holder in accordance with the first paragraph of Section 7.01(c); or (ii) after termination of any Subordinate Control Period,

 -247-

 

be appointed by the Trustee and, during any Subordinate Consultation Period, be reasonably acceptable to the Directing Holder, and otherwise satisfy the requirements for a successor special servicer set forth in Section 6.04; provided that the Trustee shall have obtained a No Downgrade Confirmation from each Rating Agency.

(c)           The Trustee shall be permitted to remove the Master Servicer or the Special Servicer upon a Master Servicer Termination Event or Special Servicer Termination Event, as applicable. Without limiting the generality of the succeeding paragraph, no such removal shall be effective unless and until (i) the Master Servicer or the Special Servicer has been paid any unpaid Servicing Compensation or Special Servicing Compensation, as applicable, unreimbursed Advances (including Advance Interest Amounts thereon to which it is entitled) and all other amounts to which the Master Servicer or the Special Servicer is entitled hereunder to the extent such amounts accrue prior to such effective date and (ii) with respect to a resignation by the Master Servicer, the successor Master Servicer has deposited into the Investment Accounts from which amounts were withdrawn to reimburse the terminated Master Servicer, an amount equal to the amounts so withdrawn, to the extent such amounts would not have been permitted to be withdrawn except pursuant to this paragraph, in which case the successor Master Servicer shall, immediately upon deposit, have the same right of reimbursement or payment as the terminated Master Servicer had immediately prior to its termination without regard to the operation of this paragraph.

No resignation or removal of the Master Servicer or the Special Servicer as contemplated by the preceding paragraphs shall become effective until the Trustee or a successor Master Servicer or Special Servicer shall have assumed the resigning or terminated Master Servicer’s or the Special Servicer’s responsibilities, duties, liabilities and obligations hereunder. If no successor Master Servicer or Special Servicer can be obtained to perform such obligations for the same compensation to which the terminated Master Servicer or Special Servicer would have been entitled, additional amounts payable to such successor Master Servicer or Special Servicer shall be treated as Realized Losses.

Section 6.05        Rights of the Depositor and the Trustee in Respect of the Master Servicer and the Special Servicer. Solely with respect to their performance of their respective duties under this Agreement, the Master Servicer and the Special Servicer shall afford the Depositor, the Initial Purchasers, the Certificate Administrator, the Trustee and the Rating Agencies, upon reasonable notice, during normal business hours access to all records maintained by it in respect of its rights and obligations hereunder and access to its officers responsible for such obligations. Upon written request, the Master Servicer and/or the Special Servicer, as applicable, shall furnish to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee its most recent publicly available financial statements (or, with respect to the Master Servicer, those of its ultimate parent) and such other non-proprietary information as the Master Servicer or the Special Servicer, as the case may be, shall determine in its sole and absolute discretion as it possesses, which is relevant to the performance of its duties hereunder and which it is not prohibited by applicable law or contract from disclosing. The Depositor is not obligated to monitor or supervise the performance of the Master Servicer or the Special Servicer, however, the Depositor may, but is not obligated to, enforce the obligations of the Master Servicer or the Special Servicer hereunder which are in default and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of such Person hereunder or exercise any rights of such Person hereunder, provided that the Master Servicer and

 -248-

 

the Special Servicer shall not be relieved of any of their respective obligations hereunder by virtue of such performance by the Depositor or its designee. In the event the Depositor or its designee undertakes any such action, it will be reimbursed by the Trust Fund from the Collection Account, as provided in Section 3.06 and Section 6.03(a) hereof to the extent not recoverable from the Master Servicer or Special Servicer, as applicable. None of the Depositor, the Certificate Administrator, the Trustee, the Operating Advisor, the Master Servicer (solely with respect to any action or failure to act by the Special Servicer) or the Special Servicer (solely with respect to any action or failure to act by the Master Servicer), shall have any responsibility or liability for any action or failure to act by the Master Servicer or the Special Servicer and no such party is obligated to monitor or supervise the performance of the Master Servicer or the Special Servicer under this Agreement or otherwise. Neither the Master Servicer nor the Special Servicer shall be under any obligation to disclose confidential or proprietary information pursuant to this Section.

Section 6.06     The Master Servicer or Special Servicer as Owners of a Certificate. The Master Servicer or an Affiliate of the Master Servicer, or the Special Servicer or an Affiliate of the Special Servicer, may become the Holder (or with respect to a Global Certificate, Beneficial Owner) of any Certificate with the same rights it would have if it were not the Master Servicer or the Special Servicer or an Affiliate thereof. If, at any time during which the Master Servicer or the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer is the Holder or Beneficial Owner of any Certificate, the Master Servicer or the Special Servicer proposes to take action (including for this purpose, omitting to take action) that (i) is not expressly prohibited by the terms hereof and would not, in the Master Servicer’s or the Special Servicer’s good faith judgment, violate the Servicing Standard, and (ii) if taken, might nonetheless, in the Master Servicer’s or the Special Servicer’s good faith judgment, be considered by other Persons to violate the Servicing Standard, the Master Servicer or the Special Servicer may, but will not be required to, seek the approval of the Certificateholders to such action (or inaction) by delivering to the Certificate Administrator a written notice that (i) states that it is delivered pursuant to this Section 6.06, (ii) identifies the Percentage Interest in each Class of Certificates beneficially owned by the Master Servicer or the Special Servicer or an Affiliate of the Master Servicer or the Special Servicer, and (iii) describes in reasonable detail the action (or inaction) that the Master Servicer or the Special Servicer proposes to take (or refrain from taking). The Certificate Administrator, upon receipt of such notice, shall forward it to the Certificateholders (other than the Master Servicer and its Affiliates or the Special Servicer and its Affiliates, as appropriate) together with such instructions for response as the Certificate Administrator shall reasonably determine. If at any time Certificateholders holding a majority of the Voting Rights of all Certificateholders shall have consented in writing to the proposal described in the written notice, and if the Master Servicer or the Special Servicer shall act as proposed in the written notice, such action shall be deemed to comply with the Servicing Standard. The Certificate Administrator shall be entitled to reimbursement from the Master Servicer or the Special Servicer, as applicable, of the reasonable expenses of the Certificate Administrator incurred pursuant to this paragraph. It is not the intent of the foregoing provision that the Master Servicer or the Special Servicer be permitted to invoke the procedure set forth herein with respect to routine servicing matters arising hereunder, except in the case of unusual circumstances.

Section 6.07     Selection and Removal of the Directing Holder. (a) The Majority Controlling Class Certificateholder, as determined by the Certificate Registrar from time to time, may serve as, or may appoint as representative to serve as, the Directing Holder; provided that if

 -249-

 

no Certificateholder holds Certificates representing more than 50% of the Controlling Class (by Certificate Balance), then the Directing Holder shall be the representative appointed by the Controlling Class Certificateholder that owns, and is identified (with contact information) to the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator as owning, the largest aggregate Certificate Balance of Certificates of the Controlling Class; and provided, further, (i) upon receipt by the Master Servicer, the Special Servicer, the Operating Advisor and the Certificate Administrator of notice from the Majority Controlling Class Certificateholder or the Certificateholder that owns the largest aggregate Certificate Balances of Controlling Class Certificates, as applicable, that a Directing Holder is no longer so designated, (ii) if no representative is appointed as the Directing Holder or (iii) if the Directing Holder is required to have resigned due to becoming a Borrower Related Party, there shall be no Directing Holder until a Directing Holder that is not a Borrower Related Party is appointed. Each Holder of the Certificates of the Controlling Class that is not a Borrower Related Party shall be entitled to vote in each election of the Directing Holder; provided that, for the avoidance of doubt, the Directing Holder cannot be a Borrower Related Party.

(b)           The initial Directing Holder shall provide a written certification to the Certificate Administrator on the Closing Date certifying that (i) it is not a Borrower Related Party, (ii) it is the Holder of more than 50% of the Controlling Class (by Certificate Balance) or, if no Certificateholder holds Certificates representing more than 50% of the Controlling Class (by Certificate Balance), then it owns the largest aggregate Certificate Balance of Certificates of the Controlling Class, (iii) the Master Servicer, Special Servicer, Operating Advisor, Certificate Administrator and Trustee may conclusively rely on such certification and the Master Servicer, Special Servicer, Operating Advisor, Certificate Administrator and Trustee shall have no liability for such reliance and (iv) in the event the then existing Directing Holder is no longer the Holder of more than 50% of the Controlling Class (by Certificate Balance) or the owner of the largest aggregate Certificate Balance of Certificates of the Controlling Class, as applicable, the Directing Holder shall promptly notify the Certificate Administrator and each party to this Agreement in writing that it is no longer the Holder of more than 50% of the Controlling Class (by Certificate Balance).

(c)           There will be no initial Directing Holder. The Majority Controlling Class Certificateholder, if any, shall give written notice to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor of the appointment of any subsequent Directing Holder (in order to receive notices hereunder).

(d)           The Directing Holder may be removed at any time, with or without cause, by the written vote of the Majority Controlling Class Certificateholder, and a copy of the results of such vote shall be delivered to each party to this Agreement.

(e)           The Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the Certificate Administrator of the transfer of any Certificate of the Controlling Class, the selection of a Directing Holder or the resignation or removal thereof. Any Certificateholder or its designee at any time appointed Directing Holder is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the Certificate Administrator of its identity and contact information when such Certificateholder or its designee is appointed Directing Holder

 -250-

 

and when it is removed or resigns. Upon receipt of such notice, the Certificate Administrator shall notify the Trustee, the Operating Advisor, the Special Servicer and the Master Servicer of the identity and contact information of the Directing Holder and any resignation or removal thereof.

On the Closing Date, the initial Directing Holder shall execute and deliver a certification substantially in the form of Exhibit L-1-C to this Agreement. Upon the resignation or removal of the existing Directing Holder, any successor Directing Holder shall also deliver a certification substantially in the form of Exhibit L-1-C to this Agreement prior to being recognized as the new Directing Holder.

(f)           Once a Directing Holder has been selected, each of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator, the Trustee and each other Certificateholder (or Beneficial Owner, if applicable) shall be entitled to rely on such selection unless the Majority Controlling Class Certificateholder shall have notified each other party to this Agreement and each other Certificateholder of the Controlling Class, in writing, of the resignation of such Directing Holder or the selection of a new Directing Holder (with contact information).

(g)           Until it receives notice to the contrary, each party to this Agreement shall be entitled to rely on the most recent notification with respect to the identity of the Certificateholders of the Controlling Class and the identity and contact information of the Directing Holder.

(h)           The Directing Holder shall be responsible for its own expenses.

(i)            The Master Servicer, the Special Servicer, the Operating Advisor or the Trustee may from time to time request that the Certificate Administrator provide the name of the then-current Directing Holder. Upon such request, the Certificate Administrator shall promptly (but in no event more than five (5) Business Days following such request) provide the name of the then-current Directing Holder to the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee, as applicable, but only to the extent the Certificate Administrator has actual knowledge of the identity of the then-current Directing Holder; provided that if the Certificate Administrator does not have actual knowledge of the identity of the then-current Directing Holder, then (i) the Certificate Administrator shall determine which Class is the Controlling Class and (ii) the Certificate Administrator shall promptly (but in no event more than five (5) Business Days following such request) request from the Depository, with the assistance of the Trustee, the list of DTC participants for the Controlling Class and make reasonable efforts to obtain a list of Beneficial Owners from such DTC participants, and the Certificate Administrator shall provide such list of DTC participants and such list of Beneficial Owners (to the extent the Certificate Administrator obtains such list of Beneficial Owners), to the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee. The Certificate Administrator shall be entitled to conclusively rely on the list of DTC participants for the Controlling Class provided by the Depository and the list of Beneficial Owners provided by any DTC participant and shall not have any liability for such reliance. Any expenses incurred in connection with obtaining such information shall be at the expense of the requesting party; provided that if (i) such expenses arise in connection with an event as to which the Directing Holder has review, consent or consultation rights with respect to an action taken by, or report prepared by, the requesting party pursuant to

 -251-

 

this Agreement and (ii) the requesting party has not been notified of the identity of the Directing Holder or reasonably believes that the identity of the Directing Holder has changed, then such expenses shall be at the expense of the Trust. The Master Servicer, the Special Servicer, the Operating Advisor and the Trustee shall be entitled to conclusively rely on any such information so provided. If the Majority Controlling Class Certificateholder does not give written notice to the Trustee, the Operating Advisor, the Certificate Administrator, the Master Servicer and the Special Servicer of the appointment of any subsequent Directing Holder pursuant to Section 6.07(c), and if the identity of the Directing Holder is not provided by the Certificate Administrator, the Operating Advisor, the Master Servicer and Special Servicer shall have no obligation to consult with, provide notice to or seek approval of such Directing Holder. To the extent the Operating Advisor, the Master Servicer or the Special Servicer has written notice of any change in the identity of a Directing Holder or the list of Holders (or Beneficial Owners, if applicable) of the Controlling Class, then the Operating Advisor, the Master Servicer or the Special Servicer, as applicable, shall promptly notify the Trustee, the Operating Advisor, the Certificate Administrator, the Master Servicer and the Special Servicer thereof, who may rely conclusively on such notice from the Master Servicer or the Special Servicer, as applicable.

Section 6.08     Limitation on Liability of Directing Holder; Acknowledgements of the Certificateholders. The Directing Holder will have no liability to the Trust or the Certificateholders for any action taken, or refraining from the taking of any action, in accordance with or as permitted by this Agreement. Each holder of any Certificates shall acknowledge and agree, by its acceptance of its Certificate, that: (i) the Directing Holder and/or any Controlling Class Certificateholder may each have relationships and interests that conflict with those of Holders of one or more other Classes of Certificates and/or Companion Loan Holders; (ii) the Directing Holder and/or any Controlling Class Certificateholder may act solely in the interests of the Holders of the Controlling Class; (iii) the Directing Holder and the Holders of the Controlling Class do not have any duties to the Trust or to the Holders of any Class of Certificates or the Companion Loan Holders; (iv) the Directing Holder and/or any Controlling Class Certificateholder may take actions that favor interests of the Controlling Class over the interests of the Holders of one or more other Classes of Certificates or the Companion Loan Holders; (v) neither the Directing Holder nor the Holders of the Controlling Class shall have any liability whatsoever to the Trust, the parties to this Agreement, the Certificateholders, the Companion Loan Holders or any other Person (including the Borrowers) for having acted in accordance with or as permitted under the terms of this Agreement; and (vi) the Holders of the Certificates and the Companion Loan Holders may not take any action whatsoever against the Directing Holder or any Holder the Controlling Class or any of the respective affiliates, directors, officers, shareholders, members, partners, agents or principals thereof as a result of the Directing Holder or the Holders the Controlling Class having acted in accordance with the terms of and as permitted under this Agreement.

Section 6.09     Rights and Powers of the Directing Holder. (a) Notwithstanding anything herein to the contrary, except as set forth in this Section 6.09, (i) the Master Servicer shall not be permitted to take any of the actions constituting a Major Decision unless it has obtained the consent of the Special Servicer (which consent shall be deemed given if the Special Servicer does not object within fifteen (15) Business Days (or, in the case of a determination of an Acceptable Insurance Default, ninety (90) days) of receipt of the Master Servicer’s written analysis and recommendation together with any information in the possession of the Master Servicer that is reasonably required to make a decision regarding the subject action), and (ii) during any

 -252-

 

Subordinate Control Period, the Special Servicer shall not be permitted to consent to the Master Servicer’s taking any of the actions constituting a Major Decision, nor will the Special Servicer itself be permitted to take any of the actions constituting a Major Decision, as to which the Directing Holder has objected in writing within ten (10) Business Days (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) days) after receipt of the written recommendation and analysis from the Special Servicer (the “Major Decision Reporting Package”), together with any information in the possession of the Special Servicer that is reasonably requested by the Directing Holder to make a decision regarding the subject action (provided that if such written objection has not been received by the Special Servicer within such ten (10) Business Days (or, in the case of a determination of an Acceptable Insurance Default, thirty (30) day) period, then the Directing Holder shall be deemed to have approved such action); provided that if the Special Servicer or Master Servicer (if the Master Servicer is otherwise authorized by this Agreement to take such action), as applicable, determines that immediate action, with respect to a Major Decision, or any other matter requiring consent of the Directing Holder during any Subordinate Control Period, or any other matter requiring consultation with the Operating Advisor, is necessary to protect the interests of the Certificateholders, the Special Servicer or Master Servicer, as applicable, may take any such action without waiting for the Directing Holder’s (or, if applicable, the Special Servicer’s) response; provided, further, that the Special Servicer or the Master Servicer, as applicable, has used reasonable efforts consistent with the Servicing Standard to contact the Directing Holder prior to taking such action; provided, further, that the Special Servicer is not required to obtain the consent of the Directing Holder for any of the foregoing actions during any Subordinate Consultation Period; provided, further, that the Special Servicer will be required to consult, solely on a non-binding basis (and to consider alternative actions recommended by each such party) during any Subordinate Consultation Period, with the Directing Holder with respect to any of the Major Decisions and any other matter as to which consent of the Directing Holder, if any, would have been required during any Subordinate Control Period; provided, further, that for so long as there is no Directing Holder, the Master Servicer and the Special Servicer shall have no duty to consult with, provide notice to, or seek the approval or consent of any Directing Holder, it being acknowledged that the initial Directing Holder is set forth in Section 6.07(c) hereof.

With respect to any action requiring the consent of, or consultation with, the Directing Holder under this Agreement, such consent shall be deemed given or consultation deemed waived if the Directing Holder does not respond within 10 Business Days unless otherwise specified.

If no Directing Holder has been appointed or identified to the Master Servicer or the Special Servicer, as applicable, and the Master Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Trustee or Certificate Administrator, and no such entity has been identified to the Master Servicer or the Special Servicer, as applicable, then the Master Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of the Directing Holder, it being acknowledged that the initial Directing Holder is set forth in Section 6.07(c) hereof.

In addition, during any Subordinate Control Period, the Directing Holder, if any, may direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Whole Loan as the Directing Holder may deem advisable or as to which provision is

 -253-

 

otherwise made herein. Notwithstanding anything herein to the contrary, no such direction, and no direction or objection contemplated by the preceding paragraph or any other provision of this Agreement, may (a) require or cause the Master Servicer or the Special Servicer to violate any provision of the Loan Documents, any intercreditor agreement, applicable law or this Agreement, including without limitation the Master Servicer’s or the Special Servicer’s obligation to act in accordance with the Servicing Standard, (b) expose any Certificateholder, the Operating Advisor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Trust or their affiliates, officers, directors or agent to any claim, suit or liability, (c) result in the imposition of a tax upon the Trust or (d) materially expand the scope of the Master Servicer’s or the Special Servicer’s responsibilities hereunder. Furthermore, in addition to the Directing Holder’s rights of consent and consultation (as applicable) as set forth in Section 6.09(a) above, it is understood and agreed that to the extent any other provision of this Agreement requires the provision of notice to, the obtaining of consent of, and/or consultation with, the Directing Holder, or otherwise provides for any right of the Directing Holder thereunder, then none of the Trustee, the Certificate Administrator, the Master Servicer or the Special Servicer shall be entitled to take any action (or omit to take any action) in contravention of the applicable rights of the Directing Holder contained in such provision; provided however, if the Directing Holder has not objected to any request for consent within ten (10) Business Days, such consent shall be deemed given; provided, further, that this sentence is not intended to in any way to (i) expand the rights of the Directing Holder, (ii) limit the application of the immediately preceding sentence, (iii) remove any limitations on the exercise of such rights set forth in such other provisions, or (iv) require the Trustee, the Certificate Administrator, the Master Servicer and/or the Special Servicer to send a notice to, obtain the consent of, or consult with a new Directing Holder whose name and contact information have not yet been provided to the Trustee, the Certificate Administrator, the Master Servicer and/or the Special Servicer; and provided, further, that if such other provisions are in any way subject to this Section 6.09, then the exercise of such rights shall be subject to the immediately following paragraph and Section 6.09(b).

If the Special Servicer or Master Servicer, as applicable, determines that a refusal to consent by the Directing Holder or any direction or advice from the Directing Holder or any recommendation by the Operating Advisor would otherwise cause the Special Servicer or Master Servicer, as applicable, to violate the terms of the Loan Documents, any intercreditor agreement, applicable law, provisions of the Code or this Agreement, including without limitation, the Servicing Standard, the Special Servicer or Master Servicer, as applicable, shall disregard such refusal to consent, direction or advice and notify the Directing Holder, the Trustee, the Certificate Administrator and the 17g-5 Information Provider of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by the Master Servicer or Special Servicer in accordance with the direction of or approval of the Directing Holder that does not violate the Loan Documents, any intercreditor agreement, any applicable law, provisions of the Code or the Servicing Standard or any other provisions of this Agreement, shall not result in any liability on the part of the Master Servicer or the Special Servicer.

The Special Servicer shall provide each Major Decision Reporting Package to the Operating Advisor simultaneously upon providing such Major Decision Reporting Package to the Directing Holder. With respect to any particular Major Decision and related Major Decision Reporting Package and any Asset Status Report, the Special Servicer shall make available to the

 -254-

 

Operating Advisor Servicing Officers with relevant knowledge regarding the Mortgage Loan and such Major Decision and/or Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Major Decision and/or Asset Status Report and potential conflicts of interest and compensation with respect to such Major Decision and/or Asset Status Report. In addition, if an Operating Advisor Consultation Period is in effect, the Special Servicer shall consult with the Operating Advisor (telephonically or electronically) in connection with any proposed Major Decision (and such other matters that are subject to consultation rights of the Operating Advisor hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input on any required consultation (which such written request shall contain a Major Decision Reporting Package) and (ii) delivery of all such additional information reasonably requested by the Operating Advisor related to the subject matter of such consultation, the Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the Trust Loan.

(b)           At any time other than during a Subordinate Control Period or a Subordinate Consultation Period, the Directing Holder shall have no consultation rights under this Agreement and shall have no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Directing Holder; provided that the Directing Holder (if and to the extent that it is a Certificateholder) will maintain the right to exercise its Voting Rights for the same purposes as any other Certificateholder under this Agreement.

(c)           If no Directing Holder has been appointed or identified to the Master Servicer or Special Servicer, as applicable, and the Master Servicer or Special Servicer, as applicable, has attempted to obtain such information from the Trustee or Certificate Administrator, and no such entity has been identified to the Master Servicer or the Special Servicer, as applicable, then the Master Servicer or the Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of the Directing Holder.

Section 6.10        Directing Holder and Operating Advisor Contact with Master Servicer and Special Servicer. Upon reasonable request, each of the Master Servicer and the Special Servicer shall, without charge, make a Servicing Officer available to answer questions from the Directing Holder (during any Subordinate Control Period and any Subordinate Consultation Period) and the Operating Advisor (during any Operating Advisor Consultation Period) regarding the performance and servicing of the Trust Loan (or, in the case of the Special Servicer, the Special Servicer’s operational activities on a platform level basis related to the servicing of the Specially Serviced Loan and the servicing of any REO Property) for which the Master Servicer or the Special Servicer, as the case may be, is responsible.

Notwithstanding any provision of this Agreement to the contrary, the failure of the Master Servicer or the Special Servicer to disclose any information otherwise required to be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement if the

 -255-

 

Master Servicer or the Special Servicer, as applicable, determines, in its reasonable and good faith judgment and consistent with the Servicing Standard, that such disclosure would constitute a waiver of the attorney-client privilege on behalf of the Trust or the Trust Fund or otherwise materially harm the Trust or the Trust Fund.

Section 6.11        The Operating Advisor.

(a)           The Operating Advisor shall, as provided in this Agreement, review (i) the actions of the Special Servicer with respect to the Whole Loan if it is a Specially Serviced Loan and, any Major Decisions with respect to the Whole Loan when it is not a Specially Serviced Loan with respect to which a Major Decision Reporting Package has been delivered to the Operating Advisor, (ii) all reports by the Special Servicer made available to Privileged Persons on the Certificate Administrator’s Website or otherwise provided to the Operating Advisor pursuant to this Agreement and (iii) each Asset Status Report (during an Operating Advisor Consultation Period) and each Final Asset Status Report delivered to the Operating Advisor by the Special Servicer. The Operating Advisor shall perform its duties hereunder in accordance with the Operating Advisor Standard.

(b)           Subject to the Privileged Information Exception, the Operating Advisor and its Affiliates will be obligated to keep confidential any information appropriately labeled as “Privileged Information” received from the Special Servicer or Directing Holder in connection with the Directing Holder’s exercise of its rights under this Agreement (including, without limitation, in connection with any Asset Status Report) or otherwise in connection with this transaction, except under the circumstances described in Section 6.11(h) and subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information. Subject to the terms and conditions in this Agreement related to Privileged Information, the Operating Advisor agrees that it shall use information received from the Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.

With respect to the determination of whether a Subordinate Control Period, Operating Advisor Consultation Period or Subordinate Consultation Period is in effect, or has terminated, the Master Servicer, Special Servicer and Operating Advisor are each entitled to rely solely on its receipt from the Certificate Administrator of notice thereof or any notice posted to the Certificate Administrator’s Website pursuant to this Agreement, and, with respect to any obligations of the Operating Advisor, Master Servicer or Special Servicer that are performed only during a Subordinate Control Period, Operating Advisor Consultation Period and/or Subordinate Consultation Period, the Operating Advisor, Master Servicer or Special Servicer shall have no obligation to perform any such duties until the receipt of such notice or actual knowledge of the occurrence of a Subordinate Control Period, Operating Advisor Consultation Period or Subordinate Consultation Period, as applicable.

(c)           Based on the Operating Advisor’s review of (i) any assessment of compliance and any attestation report delivered to the Operating Advisor or made available to the Operating Advisor on the Certificate Administrator’s Website, any Final Asset Status Report and reports by the Special Servicer made available to Privileged Persons that are posted on the Certificate Administrator’s Website during the prior calendar year that are relevant to the

 -256-

 

Operating Advisor’s obligations under this Agreement, the Operating Advisor shall ((A) if the Whole Loan was a Specially Serviced Loan at any time during the prior calendar year or (B) if an Operating Advisor Consultation Period was in effect during the prior calendar year and the Whole Loan was the subject of a Major Decision) deliver to the Depositor, the Certificate Administrator and the 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the 17g-5 Information Provider’s Website pursuant to Section 3.14(d)) within one hundred twenty (120) days of the end of the prior calendar year, an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit S (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement including, without limitation, provisions herein relating to Privileged Information; provided, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement), setting forth the Operating Advisor’s assessment, in its sole discretion exercised in good faith, as to whether the Special Servicer is operating in compliance with the Servicing Standard with respect to its performance of its duties under this Agreement with respect to the Whole Loan if it is a Specially Serviced Loan (and, during an Operating Advisor Consultation Period, with respect to Major Decisions on the Whole Loan even if it is not a Specially Serviced Mortgage Loan) during the prior calendar year on the basis described in the following paragraph and identifying (1) which, if any, standards the Operating Advisor believes, in its sole discretion exercised in good faith, the Special Servicer has failed to comply with and (2) any material deviations from the Special Servicer’s obligations hereunder with respect to the Specially Serviced Loan or REO Property and, during an Operating Advisor Consultation Period, the Whole Loan even if it is not a Specially Serviced Loan (solely with respect to Major Decisions with respect thereto); provided, that in the event the Special Servicer is replaced, the Operating Advisor Annual Report shall only relate to the special servicer that was acting as Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report. In preparing any Operating Advisor Annual Report, the Operating Advisor shall not be required to report on instances of non-compliance with, or deviations from, the Servicing Standard or the Special Servicer’s obligations under this Agreement that the Operating Advisor determines, in its sole discretion exercised in good faith, to be immaterial. Notwithstanding any of the foregoing to the contrary, the Operating Advisor will not be obligated to prepare an annual report with respect to any calendar year unless at least one of the following occurs with respect to such calendar year: (i) the Operating Advisor receives a Final Asset Status Report with respect to the Whole Loan if it is a Specially Serviced Loan; (ii) the Operating Advisor is entitled to consult with the Special Servicer with respect to any Major Decision; or (iii) the Operating Advisor does not receive a Final Asset Status Report for the Whole Loan if it was a Specially Serviced Loan for a period of at least one hundred eighty (180) consecutive days following the Whole Loan becoming a Specially Serviced Loan. Such Operating Advisor Annual Report shall be delivered to the Depositor, the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website pursuant to Section 4.02) and the 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the 17g-5 Information Provider’s Website pursuant to Section 3.14(d)); provided, that the Special Servicer shall be given an opportunity to review the Operating Advisor Annual Report at least five (5) Business Days prior to such annual report’s delivery to the Certificate Administrator and the 17g-5 Information Provider. The Operating

 -257-

 

Advisor shall have no obligation to adopt any comments to the Operating Advisor Annual Report that are provided by the Special Servicer.

(d)           The Operating Advisor Annual Report shall be prepared on the basis of the Special Servicer’s performance of its duties with respect to the Specially Serviced Loan (and, during an Operating Advisor Consultation Period, with respect to Major Decisions on the Whole Loan even if it is not a Specially Serviced Loan) under this Agreement, taking into account the Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Operating Advisor of any assessment of compliance, attestation report, Major Decision Reporting Package, Asset Status Report, Final Asset Status Report and any other information delivered to the Operating Advisor by the Special Servicer (other than any communications between the Directing Holder and the Special Servicer that would be Privileged Information) or made available to the Operating Advisor on the Certificate Administrator’s Website, in each case, pursuant to this Agreement.

(e)           In the event the Operating Advisor’s ability to perform its obligations in respect of the Operating Advisor Annual Report is limited or prohibited due to the failure of a party hereto to timely deliver information required to be delivered to the Operating Advisor or because such information is inaccurate or incomplete, the Operating Advisor shall set forth such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from such limitations or prohibitions. The Operating Advisor shall be entitled to conclusively rely on the accuracy and completeness of any information it is provided without liability for any reliance thereon. In the event a lack of access to Privileged Information limits or prohibits the Operating Advisor from performing its duties under this Agreement, the Operating Advisor may, to the extent the Operating Advisor deems relevant, set forth any such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from its lack of access to Privileged Information.

(f)           With respect to the Whole Loan, after the subject calculation but prior to the utilization by the Special Servicer of any of the calculations related to net present value in accordance with Section 1.02(h) used in the Special Servicer’s determination of the course of action to take in connection with the workout or liquidation of the Whole Loan if it is a Specially Serviced Loan, the Special Servicer shall forward such calculations, together with any supporting material or additional information necessary in support thereof (including such additional information reasonably requested by the Operating Advisor to confirm the mathematical accuracy of such calculations, but not including any communications between the Directing Holder and the Special Servicer that would be Privileged Information), to the Operating Advisor promptly, but in any event no later than two (2) Business Days after preparing such calculations, and the Operating Advisor shall promptly, but no later than five (5) Business Days after receipt of such calculations and any supporting or additional materials, promptly recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portion(s) of the applicable formulas required to be utilized in connection with any such calculation.

In connection with this Section 6.11(f), if the Operating Advisor does not agree in any material respect with the mathematical calculations or the application of the applicable non-

 -258-

 

discretionary portion(s) of the formula required to be utilized for such calculation, the Operating Advisor and Special Servicer shall consult with each other in order to resolve any material inaccuracy in the mathematical calculations or the application of the non-discretionary portion(s) of the related formula in arriving at those mathematical calculations or any disagreement within seven (7) Business Days of delivery of such calculations. If the Operating Advisor and Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such seven (7) Business Day period, the Operating Advisor shall promptly notify the Certificate Administrator of such disagreement, and the Certificate Administrator shall examine the calculations and supporting materials provided by the Special Servicer and the Operating Advisor and shall determine which calculation is to apply (and shall provide prompt written notice of such determination to the Operating Advisor and the Special Servicer).

(g)           Notwithstanding the foregoing, and unless an Operating Advisor Consultation Period is in effect, the Operating Advisor shall have no specific involvement with respect to collateral substitutions, assignments, workouts, modifications, consents, waivers, insurance policies, borrower substitutions, lease changes, additional borrower debt, defeasances, property management changes, releases from escrow, assumptions and other similar actions that the Special Servicer may perform under this Agreement and other similar actions that the Special Servicer may perform under this Agreement. In addition, with respect to the Operating Advisor’s review of net present value calculations as required in Section 6.11(f) above, the Operating Advisor’s recalculation shall not take into account the reasonableness of the Special Servicer’s property and borrower performance assumptions or other similar discretionary portions of the net present value calculation.

(h)           The Operating Advisor and its Affiliates shall keep all information appropriately labeled as “Privileged Information” confidential and without the prior written consent of the Special Servicer and the Directing Holder (during a Subordinate Control Period or Subordinate Consultation Period) shall not disclose such information to any other Person (including any Certificateholders other than the Directing Holder), other than (i) to the extent expressly set forth herein, the other parties to this Agreement with a notice indicating that such information is Privileged Information, (ii) pursuant to a Privileged Information Exception or (iii) where necessary to support specific findings or conclusions concerning allegations of deviations from the Servicing Standard or the Special Servicer’s obligations under this Agreement (A) in the Operating Advisor Annual Report or (B) in connection with a recommendation by the Operating Advisor to replace the Special Servicer. Each party to this Agreement that receives information that is appropriately labeled as “Privileged Information” from the Operating Advisor with a notice stating that such information is Privileged Information shall not, without the prior written consent of the Special Servicer and (for so long as a Subordinate Control Period or Subordinate Consultation Period is in effect) the Directing Holder, disclose such Privileged Information to any Person other than pursuant to a Privileged Information Exception. Notwithstanding the foregoing, the Operating Advisor shall be permitted to share Privileged Information with its Affiliates and any subcontractors of the Operating Advisor that agree in writing to be bound by the same confidentiality provisions applicable to the Operating Advisor.

(i)            Subject to the requirements of confidentiality imposed on the Operating Advisor herein (including without limitation in respect of Privileged Information), the Operating

 -259-

 

Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 4.02(c).

(j)            As compensation for its activities hereunder, the Operating Advisor shall be entitled to receive the Operating Advisor Fee on each Servicer Remittance Date. The Operating Advisor Fee shall accrue from time to time at the Operating Advisor Fee Rate and shall be computed on the basis of the outstanding principal balance of the Trust Loan and in the same manner as interest is calculated on the Trust Loan, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on the Trust Loan is computed. The Operating Advisor Fee shall be payable from funds on deposit in the Collection Account as provided in Section 3.06(a) of this Agreement.

(k)           The Operating Advisor shall be entitled to reimbursement of any Operating Advisor Expenses provided for pursuant to Section 6.03(a) hereof, such amounts to be reimbursed from amounts on deposit in the Collection Account as provided by Section 3.06(a). Each successor operating advisor shall be required to acknowledge and agree to the terms of the preceding sentence.

(l)            In addition, the Operating Advisor Consulting Fee shall be payable to the Operating Advisor with respect to each Asset Status Report or Major Decision for which the Operating Advisor has consultation obligations hereunder. The Operating Advisor Consulting Fee shall be payable from funds on deposit in the Collection Account as provided in Section 3.06(a) of this Agreement, but only to the extent such Operating Advisor Consulting Fee is actually received from the Borrowers. When the Operating Advisor has consultation obligations with respect to an Asset Status Report or Major Decision under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Operating Advisor Consulting Fee from the Borrowers in connection with such an Asset Status Report or Major Decision, but only to the extent not prohibited by the related Loan Documents. The Master Servicer or Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the Borrowers if it determines that such full or partial waiver is in accordance with the Servicing Standard, but in no event shall the Master Servicer or the Special Servicer take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection; provided that the Master Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction.

(m)             Upon (i) the written direction of holders of Principal Balance Certificates representing at least 15% of the Voting Rights allocable to Non-Reduced Certificates requesting a vote to terminate and replace the Operating Advisor with a replacement Operating Advisor selected by such holders (provided that the proposed replacement Operating Advisor is an Eligible Operating Advisor), (ii) payment by such requesting holders to the Certificate Administrator of all reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote and (iii) receipt by the Trustee of a No Downgrade Confirmation, the Certificate Administrator shall promptly provide written notice to all Certificateholders of such request by posting such notice on the Certificate Administrator’s Website in accordance with Section 4.02, and concurrently by mail, and conduct the solicitation of votes of all Certificates in such regard. Upon the vote or written direction of holders of Principal Balance Certificates

 -260-

 

representing more than 50% of the Voting Rights allocable to the Non-Reduced Certificates that exercise their right to vote, provided that the holders of Principal Balance Certificates representing at least 50% of the Voting Rights allocable to the Non-Reduced Certificates have exercised their right to vote, the Trustee shall immediately replace the Operating Advisor with the replacement Operating Advisor.

(n)           After the occurrence of an Operating Advisor Termination Event, the Certificate Administrator will be required to notify the Certificateholders, and the Trustee may, and upon the written direction of holders of Certificates representing at least 25% of the Voting Rights (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Classes of Certificates), the Trustee shall promptly terminate the Operating Advisor for cause and appoint a replacement Operating Advisor that is an Eligible Operating Advisor; provided that no such termination shall be effective until a successor operating advisor has been appointed and has assumed all of the obligations of the Operating Advisor under this Agreement. No such termination shall terminate, change, reduce, or otherwise modify the rights and obligations of the Operating Advisor that accrued prior to such termination, including the right to receive all amounts accrued and owing to it under this Agreement, and other than indemnification rights arising out of events occurring prior to such termination. The Trustee may rely on a certification by the replacement Operating Advisor that it is an Eligible Operating Advisor. Upon (x) the occurrence of any Operating Advisor Termination Event or (y) any termination of the Operating Advisor and appointment of a successor to the Operating Advisor, the Trustee shall, as soon as possible, give written notice thereof to the Special Servicer, the Master Servicer, the Certificate Administrator, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website), the Depositor, the Directing Holder and the Certificateholders. Notwithstanding the foregoing, if the Trustee is unable to find a successor operating advisor within thirty (30) days of the termination of the Operating Advisor, the Depositor shall be permitted to find a replacement. The Trustee shall not be liable for any failure to identify and appoint a successor operating advisor so long as the Trustee uses commercially reasonable efforts to conduct a search for a successor operating advisor and such failure is not a result of the Trustee’s negligence, bad faith or willful misconduct in the performance of its obligations hereunder.

(o)           The holders of Certificates representing at least 25% of the Voting Rights may waive an Operating Advisor Termination Event within twenty (20) days of the receipt of notice from the Trustee of the occurrence of such Operating Advisor Termination Event. Upon any such waiver of an Operating Advisor Termination Event, such Operating Advisor Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of an Operating Advisor Termination Event, the Trustee and the Certificate Administrator shall be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Operating Advisor Termination Event prior to such waiver from the Trust.

(p)           The Operating Advisor may resign from its obligations and duties hereby imposed on it upon thirty (30) days prior written notice to the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Directing Holder, if applicable, if the Operating Advisor has secured a replacement operating advisor that is an Eligible Operating Advisor and such replacement operating advisor has accepted its appointment as the replacement operating advisor. No such resignation by the Operating Advisor shall become effective until the

 -261-

 

replacement Operating Advisor shall have assumed the resigning Operating Advisor’s responsibilities and obligations. If no successor operating advisor has been so appointed and accepted the appointment within 30 days after the notice of resignation, the resigning Operating Advisor may petition any court of competent jurisdiction for the appointment of a successor operating advisor that is an Eligible Operating Advisor. The resigning Operating Advisor shall pay all reasonable costs and expenses (including costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 6.11(p).

(q)           In the event the Operating Advisor resigns or is otherwise terminated for any reason it shall remain entitled to any accrued and unpaid Operating Advisor Fees and Operating Advisor Consulting Fees and reimbursement of accrued and unpaid Operating Advisor Expenses pursuant to Section 6.11(k) and shall also remain entitled to any rights of indemnification provided hereunder.

(r)            The parties hereto agree, and the Certificateholders by their acceptance of their respective Certificates shall be deemed to have agreed, that (i) subject to Section 6.03, the Operating Advisor shall have no liability to any Certificateholder for any actions taken or for refraining from taking any actions under this Agreement, (ii) the Operating Advisor shall act solely as a contracting party to the extent set forth in this Agreement, (iii) the Operating Advisor shall have no (A) fiduciary duty, or (B) other duty except with respect to its specific obligations under this Agreement, and shall have no duty to any particular class of Certificates or particular Certificateholders or any third party, and (iv) the Operating Advisor does not constitute an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended.

(s)           Neither the Operating Advisor nor any of its Affiliates shall make any investment in any Class of Certificates.

(t)            The Operating Advisor may delegate its duties to agents or subcontractors to the extent such agents or subcontractors satisfy clauses (c), (d) and (f) of the definition of “Eligible Operating Advisor” and so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Section 6.11. Notwithstanding the foregoing sentence, the Operating Advisor shall remain obligated and primarily liable for any actions required to be performed hereunder in accordance with the provisions of this Agreement without diminution of any such obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Operating Advisor alone were performing its obligations under this Agreement.

(u)           For the avoidance of doubt, while the Operating Advisor may serve in a similar capacity with respect to other securitizations that involve the same parties or Borrowers involved in this securitization, any experience or knowledge gained by the Operating Advisor from such other engagements may not be imputed to the Operating Advisor for this transaction; provided, however, the Operating Advisor may consider such experience or knowledge as pertinent information for discussion with the Special Servicer during its periodic meetings.

 -262-

 

ARTICLE VII

TERMINATION EVENTS

Section 7.01     Servicer Termination Events. (a)  With respect to the Master Servicer, “Master Servicer Termination Event”, wherever used herein, means any one of the following events:

(i)           (A) any failure by the Master Servicer to make any deposit required to the Collection Account on the day and by the time such deposit was first required to be made under the terms of this Agreement, which failure is not remedied within two (2) Business Days, (B) any failure by the Master Servicer to deposit into, or remit to the Certificate Administrator for deposit into, any Distribution Account any amount required to be so deposited or remitted (including, without limitation, any required P&I Advance or Administrative Advance, unless the Master Servicer determines such P&I Advance or Administrative Advance is a Nonrecoverable Advance) under this Agreement, which failure is not remedied by 11:00 a.m. (New York City time) on the relevant Distribution Date (provided, however, that to the extent the Master Servicer does not timely make such remittance to the Certificate Administrator, the Master Servicer shall pay the Certificate Administrator for the account of the Certificate Administrator interest on any amount not timely remitted at the Prime Rate from and including the applicable required remittance date to, but not including, the date such remittance is actually made) or (C) any failure by the Master Servicer to remit to any holder of the Companion Loan, as and when required by this Agreement or the Co-Lender Agreement, any amount required to be so remitted (which failure continues for two Business Days);

(ii)           any failure on the part of the Master Servicer duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement, which failure continues unremedied for a period of 30 days (15 days in the case of the Master Servicer’s failure to make a Property Advance or 45 days in the case of failure to pay the premium for any insurance policy required to be force placed by the Master Servicer pursuant to this Agreement or in any event such reasonable shorter period of time as is necessary to avoid the commencement of foreclosure proceedings for any lien relating to unpaid real estate taxes or assessments or a lapse in any required insurance coverage) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by any other party hereto, or to the Master Servicer, with a copy to each other party to this Agreement, by (A) the Certificateholders of any Class evidencing, as to that Class, Percentage Interests aggregating not less than 25% of the Voting Rights or (B) an affected Companion Loan Holder; provided, however, that if such failure is capable of being cured and the Master Servicer is diligently pursuing such cure, such 15-, 30- or 45-day period, as applicable, will be extended an additional 30 days;

(iii)           any breach on the part of the Master Servicer of any representation or warranty contained in Section 2.04(a) of this Agreement, which materially and adversely affects the interests of the Holders of any Class of Certificates or any Companion Loan Holder and which continues unremedied for a period of 30 days after the date on which

 -263-

 

notice of such breach, requiring the same to be remedied, shall have been given to the Master Servicer by any party hereto, or to the Master Servicer, the Special Servicer, the Depositor and the Trustee by the holders of Certificates of any Class evidencing, as to that Class, Percentage Interests aggregating not less than 25% of such Class or by an affected Companion Loan Holder; provided that if such breach is capable of being cured and the Master Servicer is diligently pursuing such cure, such 30-day period will be extended an additional 30 days;

(iv)           a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of 60 days;

(v)           the Master Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of its property;

(vi)           the Master Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing;

(vii)           the Master Servicer is no longer rated at least “CMS3” by Fitch and such Master Servicer is not reinstated to at least that rating within 60 days of the delisting;

(viii)           (A) the Master Servicer has failed to maintain a ranking by DBRS Morningstar equal to or higher than “MOR CS3” as a master servicer and such ranking is not reinstated within 60 days of such event (if the Master Servicer has or had a DBRS Morningstar ranking on or after the Closing Date) or (B) DBRS Morningstar (i) has qualified, downgraded or withdrawn its ratings of any Class of Certificates, or (ii) has placed any Class of Certificates on “watch status” in contemplation of a rating downgrade or withdrawal (and such “watch status” placement, qualification, downgrade or withdrawal has not been withdrawn by DBRS Morningstar within sixty (60) days) and, in the case of either of clauses (i) or (ii), publicly cited servicing concerns with the Master Servicer, as the sole or material factor in such action;

(ix)           a Companion Loan Rating Agency has (A) qualified, downgraded or withdrawn its rating or ratings of one or more classes of Companion Loan Securities, or (B) placed one or more classes of Companion Loan Securities on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (A) or (B), publicly citing servicing concerns with the Master Servicer as the sole or material

 -264-

 

factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by such Companion Loan Rating Agency within 60 days of such event); or

(x)           so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Master Servicer or any primary servicer, Sub-Servicer or Servicing Function Participant (such entity, the “Sub-Servicing Entity”) retained by the Master Servicer shall fail to deliver the items required to be delivered by this Agreement to enable such Other Securitization Trust to comply with its reporting obligations under the Exchange Act within the time set forth for such delivery in Article XI, (any Sub-Servicing Entity that defaults in accordance with this Section 7.01(a)(x) shall be terminated at the direction of the Depositor);

then, and in each and every such case, so long as a Master Servicer Termination Event shall not have been remedied, the Trustee may, and at the written direction of the Holders of Certificates evidencing at least 25% of the aggregate Voting Rights of all Certificates (allocated based on Certificate Balances or Notional Amounts, as applicable, as notionally reduced by any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocable to the Trust Loan), the Trustee shall, terminate all of the rights and obligations of the Master Servicer (other than the rights to indemnification provided in Section 6.03 of this Agreement and compensation provided in Section 3.12 of this Agreement).

In the event that the Master Servicer is also the Special Servicer and the Master Servicer is terminated as provided in this Section 7.01, then the Master Servicer shall also be terminated as Special Servicer.

If the Master Servicer receives notice of termination under this Section 7.01(a) solely due to a Master Servicer Termination Event under Section 7.01(a)(vii), (viii) or (ix) of this Agreement and if the Master Servicer provides the Trustee with the appropriate “request for proposal” materials within five (5) Business Days following such termination notice, then the Master Servicer shall continue to serve as Master Servicer hereunder until a successor Master Servicer is selected in accordance with this Section 7.01(a). Upon receipt of the “request for proposal” materials, the Trustee shall promptly thereafter (using such “request for proposal” materials provided by the Master Servicer) solicit good faith bids for the rights to service the Whole Loan under this Agreement from at least three (3) Persons qualified to act as Master Servicer hereunder in accordance with Section 6.02 and 7.02 of this Agreement (any such Person so qualified, a “Qualified Bidder”) or, if three (3) Qualified Bidders cannot be located, then from as many persons as the Trustee can determine are Qualified Bidders; provided that, at the Trustee’s request, the Master Servicer shall supply the Trustee with the names of Persons from whom to solicit such bids; and provided, further, that the Trustee shall not be responsible if less than three (3) or no Qualified Bidders submit bids for the right to service the Whole Loan under this Agreement. The bid proposal shall require any Successful Bidder (as defined below), as a condition of such bid, to enter into this Agreement as successor Master Servicer, and to agree to be bound by the terms hereof, within 45 days after the notice of termination of the Master Servicer. The materials provided to the Trustee shall provide for soliciting bids: (i) on the basis of such successor Master Servicer retaining all Sub-Servicers to continue the primary servicing of the Whole Loan pursuant to the terms of the respective Sub-Servicing Agreements and entering into

 -265-

 

a Sub-Servicing Agreement with the terminated Master Servicer to service the Whole Loan at a sub-servicing fee rate per annum equal to 0.00125% (a “Servicing Retained Bid”); and (ii) on the basis of the terminated Master Servicer not being retained as a Sub-Servicer (each, a “Servicing Released Bid”). The Trustee shall select the Qualified Bidder with the highest cash Servicing Retained Bid (or, if none, the highest cash Servicing Released Bid) (the “Successful Bidder”) to act as successor Master Servicer hereunder; provided, however, that if the Trustee does not receive a No Downgrade Confirmation within 10 days after the selection of such Successful Bidder, then the Trustee shall repeat the bid process described above (but subject to the above described 45 day time period) until such No Downgrade Confirmation is obtained. The Trustee shall direct the Successful Bidder to enter into this Agreement as successor Master Servicer pursuant to the terms hereof no later than 45 days after notice of the termination of the Master Servicer; provided, however, that the initial Master Servicer may request and obtain an additional 20 days for such sale and assumption to be completed so long as the initial Master Servicer delivers to the Trustee an Officer’s Certificate stating that the sale and assumption of the right to service the Whole Loan cannot be completed in the initial 45-day period and specifying the reasons therefor.

Upon the assignment and acceptance of master servicing rights hereunder (subject to the terms of Section 3.12 of this Agreement) to and by the Successful Bidder, the Trustee shall remit or cause to be remitted (i) if the successful bid was a Servicing Retained Bid, to the Master Servicer to be terminated pursuant to this Section 7.01(a), the amount of such cash bid received from the Successful Bidder (net of “out of pocket” expenses incurred in connection with obtaining such bid and transferring servicing) and (ii) if the successful bid was a Servicing Released Bid, to the Master Servicer and each terminated Sub-Servicer its respective bid allocation.

The Master Servicer to be terminated pursuant to this Section 7.01(a) shall be responsible for all out of pocket expenses incurred in connection with the attempt to sell its rights to service the Whole Loan, which expenses are not reimbursed to the party that incurred such expenses pursuant to the preceding paragraph.

If the Successful Bidder has not entered into this Agreement as successor Master Servicer within the above described time period or no Successful Bidder was identified within the above described time period, the Master Servicer to be terminated pursuant to Section 7.01(a) of this Agreement shall reimburse the Trustee for all reasonable “out of pocket” expenses incurred by the Trustee in connection with such bid process and the Trustee shall have no further obligations under this Section 7.01(a). The Trustee thereafter may act or may select a successor to act as Master Servicer hereunder in accordance with Section 7.02 of this Agreement.

Notwithstanding anything to the contrary in this Article VII, if the Master Servicer shall timely deliver the notice and request for proposal materials referred to in the fourth preceding paragraph, no resignation or termination of the Master Servicer shall be effective in connection with a Master Servicer Termination Event under Section 7.01(a)(vii) of this Agreement, and the Master Servicer shall continue to perform as such and to collect the Servicing Fee until the conclusion of the process described in this Section 7.01(a).

In no event shall the Trustee or the Certificate Administrator be deemed to have knowledge of or be aware of any Master Servicer Termination Event until a Responsible Officer

 -266-

 

of the Trustee or the Certificate Administrator, as applicable, has received written notice thereof or has actual knowledge thereof.

(b)           “Special Servicer Termination Event”, wherever used herein, means any one of the following events:

(i)           any failure by the Special Servicer to deposit into the REO Account at or within the time specified by this Agreement and such failure continues unremedied for two (2) Business Days, or any failure by the Special Servicer to remit to Master Servicer for deposit into, the Collection Account any amount required to be so remitted by the Special Servicer pursuant to, and at the time specified by, the terms of this Agreement; provided that the failure of the Special Servicer to remit such amount to the Master Servicer shall not be a Special Servicer Termination Event if such failure is remedied within two (2) Business Days and if the Special Servicer has compensated the Master Servicer for any loss of income on such amount suffered by the Master Servicer due to and caused by the late remittance of the Special Servicer and reimbursed the Trust for any resulting Advance Interest Amount due to the Master Servicer;

(ii)           any failure on the part of the Special Servicer duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement, which failure continues unremedied for a period of 30 days (45 days in the case of failure to pay the premium for any insurance policy required to be force placed by the Special Servicer pursuant to this Agreement or in any event such reasonable shorter period of time as is necessary to avoid the commencement of foreclosure proceedings for any lien relating to unpaid real estate taxes or assessments or a lapse in any required insurance coverage) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Special Servicer by any other party hereto, or to the Special Servicer, with a copy to each other party to this Agreement, by (A) the Certificateholders of any Class evidencing, as to that Class, Percentage Interests aggregating not less than 25% of the Voting Rights or (B) any affected Companion Loan Holder; provided, however, that if such failure is capable of being cured and the Special Servicer is diligently pursuing such cure, such 30- or 45-day period, as applicable, will be extended an additional 30 days;

(iii)           any breach on the part of the Special Servicer of any representation or warranty contained in Section 2.04(a) of this Agreement, which materially and adversely affects the interests of the Holders of any Class of Certificates or any Companion Loan Holder and which continues unremedied for a period of 30 days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to the Special Servicer by any party hereto, or to the Master Servicer, the Special Servicer, the Depositor and the Trustee by the Holders of Certificates of any Class evidencing, as to that Class, Percentage Interests aggregating not less than 25% of such Class or by an affected Companion Loan Holder; provided that if such breach is capable of being cured and the Special Servicer is diligently pursuing such cure, such 30-day period will be extended an additional 30 days;

(iv)           a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or

 -267-

 

state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Special Servicer and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of 60 days;

(v)           the Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Special Servicer or of or relating to all or substantially all of its property;

(vi)           the Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing;

(vii)           the Special Servicer is no longer rated at least “CSS3” by Fitch and such Special Servicer is not reinstated to at least that rating within 60 days of the delisting;

(viii)           (A) the Special Servicer has failed to maintain a ranking by DBRS Morningstar equal to or higher than “MOR CS3” as a special servicer and such ranking is not reinstated within 60 days of such event (if the Special Servicer has or had a DBRS Morningstar ranking on or after the Closing Date) or (B) DBRS Morningstar (i) has qualified, downgraded or withdrawn its ratings of any Class of Certificates, or (ii) has placed any Class of Certificates on “watch status” in contemplation of a rating downgrade or withdrawal (and such “watch status” placement, qualification, downgrade or withdrawal has not been withdrawn by DBRS Morningstar within sixty (60) days) and, in the case of either of clauses (i) or (ii), publicly cited servicing concerns with the Special Servicer, as the case may be, as the sole or material factor in such action;

(ix)           a Companion Loan Rating Agency has (A) qualified, downgraded or withdrawn its rating or ratings of one or more classes of Companion Loan Securities, or (B) placed one or more classes of Companion Loan Securities on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either of clauses (A) or (B), publicly citing servicing concerns with the Special Servicer, as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by such Companion Loan Rating Agency within 60 days of such event); or

(x)           so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Special Servicer or any Sub-Servicing Entity retained by the Special Servicer shall fail to deliver the items required to be delivered by this Agreement to enable such Other Securitization Trust to comply with its reporting obligations under the Exchange Act within the time set forth for such delivery in Article XI, including any applicable grace periods (any Sub-Servicing Entity that defaults in

 -268-

 

accordance with this Section 7.01(b)(x) shall be terminated at the direction of the Depositor);

then, and in each and every such case, so long as a Special Servicer Termination Event shall not have been remedied, the Trustee may, and at the written direction of the Holders of Certificates evidencing at least 25% of the aggregate Voting Rights of all Certificates (allocated based on Certificate Balances and Notional Amounts, as applicable, as notionally reduced by any Appraisal Reduction Amounts and Collateral Deficiency Amounts allocable to the Trust Loan), the Trustee shall, terminate all of the rights and obligations of the Special Servicer (other than the rights to indemnification provided in Section 6.03(a) of this Agreement and compensation provided in Section 3.12(c) of this Agreement). During any Subordinate Control Period, the Directing Holder shall have the right to select the successor special servicer following any Special Servicer Termination Event.

In no event shall the Trustee or the Certificate Administrator be deemed to have knowledge of or be aware of any Special Servicer Termination Event until a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has received written notice thereof or has actual knowledge thereof.

Notwithstanding Section 7.01(a) or Section 7.01(b), (i) if any Master Servicer Termination Event occurs that affects only a Companion Loan or if an NRSRO engaged to rate a Companion Loan Security qualifies, downgrades or withdraws its rating of such Companion Loan Security, publicly citing servicing concerns with the Master Servicer as the sole or a material factor in such rating action, then the Trustee, only at the direction of a related Companion Loan Holder and not at the direction of the Certificateholders, shall direct the Master Servicer to appoint a sub-servicer (or if the Whole Loan is currently being sub-serviced, then the Trustee shall direct the Master Servicer to replace such sub-servicer with a new sub-servicer but only if such original sub-servicer is in default (beyond any applicable cure periods) under the related sub-servicing agreement, and the Master Servicer shall be permitted to terminate the sub-servicing agreement due to such default) that shall be responsible for servicing the Whole Loan; provided that the Master Servicer shall be required to obtain a No Downgrade Confirmation from each Rating Agency (including a No Downgrade Confirmation with respect to any Companion Loan Securities) (at the expense of the requesting party) with respect to the appointment of such sub-servicer and (ii) if any Special Servicer Termination Event occurs that affects only the Companion Loan and the Special Servicer is not otherwise terminated or if an NRSRO engaged to rate a Companion Loan Security qualifies, downgrades or withdraws its rating of such Companion Loan Security, publicly citing servicing concerns with the Special Servicer as the sole or a material factor in such rating action, then the Trustee, at the direction of an affected Companion Loan Holder, shall terminate the Special Servicer. Any successor special servicer appointed to replace the Special Servicer that was terminated for cause at such Companion Loan Holder’s direction shall not be the Person (or an Affiliate thereof) that was so terminated without the prior written consent of such Companion Loan Holder.

(c)           During any Subordinate Control Period, the Directing Holder, if any, shall have the right to direct the Trustee to terminate the Special Servicer (subject to such terminated Special Servicer’s rights to indemnification, payment of outstanding fees, and other rights set forth in this Agreement which survive termination) at any time, with or without cause, and the Directing

 -269-

 

Holder shall have the right to, and shall, appoint a successor Special Servicer, which shall execute and deliver to the other parties hereto an agreement whereby the successor Special Servicer agrees to assume and perform punctually the duties of the Special Servicer specified in this Agreement; provided that the Trustee shall have been provided a No Downgrade Confirmation from each Rating Agency prior to the termination of the Special Servicer; provided, further, that any successor Special Servicer shall be a Qualified Replacement Special Servicer. The Special Servicer shall not be terminated pursuant to this paragraph until a successor special servicer shall have been appointed. The Directing Holder shall pay any costs and expenses incurred in connection with the removal and appointment of a Special Servicer without cause pursuant to this paragraph (unless such removal is based on any of the events or circumstances set forth in Section 7.01(b)). Notwithstanding anything to the contrary in this Agreement, no successor special servicer appointed by the Directing Holder pursuant to Section 6.04, Section 7.01(b) or this Section 7.01(c) or otherwise pursuant to this Agreement will be required to meet any net worth requirements. The Trustee shall deliver to the Master Servicer, the Special Servicer and the Certificate Administrator a written notice, together with each No Downgrade Confirmation, stating that the Directing Holder has appointed a successor Special Servicer.

(d)           After the termination of a Subordinate Control Period, the Special Servicer may be terminated in accordance with the provisions of Section 3.22(b) hereof.

(e)           If at any time the Operating Advisor determines, in its sole discretion exercised in good faith, that (i) the Special Servicer is not performing its duties as required hereunder or is otherwise not acting in accordance with the Servicing Standard, and (ii) the replacement of the Special Servicer would be in the best interest of the Certificateholders as a collective whole, the Operating Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to the Special Servicer, a written recommendation, substantially in the form of Exhibit T attached hereto, setting forth the reasons supporting its position (along with any information the Operating Advisor considered relevant to its recommendation) and recommending a replacement Special Servicer (which form may be modified or supplemented from time to time to cure any ambiguity or error or to incorporate any additional information, subject to compliance of such form with the terms and provisions of this Agreement; provided, further, that in no event shall the information or any other content included in such written recommendation contravene any provision of this Agreement) detailing the reasons supporting its recommendation (along with relevant information justifying its recommendation) and recommending a suggested replacement special servicer (which must be a Qualified Replacement Special Servicer) to assume the duties of such Special Servicer. In such event, the Certificate Administrator shall promptly post notice to all Certificateholders of such recommendation and the related report on the Certificate Administrator’s Website in accordance with Section 4.02, and by mail conduct the solicitation of votes of all Certificates in such regard. Upon (i) the affirmative vote of holders of Principal Balance Certificates representing a majority of the aggregate outstanding Certificate Balance of all Principal Balance Certificates whose holders voted on the matter, provided that the Principal Balance Certificates holders that so voted on the matter (x) hold Principal Balance Certificates representing at least 20% of the outstanding Certificate Balance of all Principal Balance Certificates on an aggregate basis within one hundred eighty (180) days of posting of the Operating Advisor’s recommendation to the Certificate Administrator’s Website and (y) include at least three (3) Certificateholders and/or Certificate Owners that are not Credit Risk Retention Affiliated with each other and (ii) delivery of written notice to the Rating Agency by the Certificate Administrator

 -270-

 

with respect to the termination of the Special Servicer and the appointment of a successor special servicer recommended by the Operating Advisor following satisfaction of the foregoing clause (i), the Trustee shall (A) terminate all of the rights and obligations of the Special Servicer under this Agreement and appoint a successor Special Servicer and (B) promptly notify such outgoing Special Servicer of the effective date of such termination. The reasonable out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) associated with providing such written notices to the Rating Agency and administering such vote and the Operating Advisor’s identification of a Qualified Replacement Special Servicer shall be a Trust Fund expense. In the event that the Certificate Administrator does not receive the affirmative vote described in clause (i) of the second preceding sentence, then the Trustee shall have no obligation to remove the Special Servicer. Prior to the appointment of any replacement Special Servicer, such replacement Special Servicer shall have agreed to succeed to the obligations of the Special Servicer under this Agreement and to act as the Special Servicer’s successor hereunder. The Certificateholders that initiated the vote to replace the Special Servicer shall pay the costs and expenses incurred in connection with the removal and replacement of the Special Servicer pursuant to this paragraph.

In the event the Special Servicer is terminated as a result of the recommendation of the Operating Advisor described in this Section 7.1(e), the Directing Holder may not subsequently reappoint as Special Servicer such terminated Special Servicer or any Credit Risk Retention Affiliate of such terminated Special Servicer

(f)           If the Master Servicer or the Special Servicer is terminated pursuant to this Section 7.01, the Trustee (the “Terminating Party”) shall, by notice in writing to the Master Servicer or the Special Servicer, as the case may be (the “Terminated Party”), terminate all of its rights and obligations under this Agreement and in and to the Whole Loan and the proceeds thereof, other than any rights the Terminated Party may have hereunder as a Certificateholder and any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued or owing to it under this Agreement, plus interest at the Advance Rate on such amounts until received to the extent such amounts bear interest as provided in this Agreement, with respect to periods prior to the date of such termination and the right to the benefits of Section 6.03 of this Agreement notwithstanding any such termination), and with respect to the Special Servicer, the right to receive any Workout Fee and/or Liquidation Fee subsequent to its termination as Special Servicer, pursuant to Section 3.12(c) of this Agreement. No successor Special Servicer shall be entitled to such Workout Fee and/or Liquidation Fee received by the terminated Special Servicer. On or after the receipt by the Terminated Party of such written notice, all of its authority and power under this Agreement, whether with respect to the Certificates (except that the Terminated Party shall retain its rights as a Certificateholder in the event and to the extent that it is a Certificateholder), the Whole Loan or otherwise, shall pass to and be vested in the Terminating Party pursuant to and under this Section (absent the appointment of a successor, and such successor’s assumption of obligations hereunder, including, without limitation, by the Directing Holder during any Subordinate Control Period) and, without limitation, the Terminating Party is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Terminated Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Whole Loan and related documents, or otherwise. The Master Servicer and the

 -271-

 

Special Servicer each agree in the event it is terminated pursuant to this Section 7.01 to promptly (and in any event no later than ten Business Days subsequent to such notice) provide, at its own expense, the Terminating Party with all documents and records requested by the Terminating Party to enable the Terminating Party to assume its functions hereunder, and to cooperate with the Terminating Party and the successor to its responsibilities hereunder in effecting the termination of its responsibilities and rights hereunder, including, without limitation, the transfer to the successor Master Servicer or Special Servicer or the Terminating Party, as applicable, for administration by it of all cash amounts which shall at the time be or should have been credited by the Master Servicer or the Special Servicer to the Collection Account, any REO Account, Lock-Box Account or Cash Collateral Account or which shall thereafter be received with respect to the Whole Loan, and shall promptly provide the Terminating Party or such successor Master Servicer or successor Special Servicer (which may include the Trustee) all documents and records reasonably requested by it, such documents and records to be provided in such form as the Terminating Party or such successor Master Servicer or Special Servicer shall reasonably request (including electronic form), to enable it to assume the Master Servicer’s or Special Servicer’s function hereunder. All reasonable costs and expenses of the Terminating Party (including the cost of obtaining a No Downgrade Confirmation and any applicable indemnification that the Master Servicer or the Special Servicer would be required to provide under this Agreement) or the successor Master Servicer or successor Special Servicer incurred in connection with transferring the Mortgage Files to the successor Master Servicer or Special Servicer and amending this Agreement to reflect such succession as successor Master Servicer or successor Special Servicer pursuant to Section 7.01(a) or (b), as applicable, shall be paid by the predecessor Master Servicer or the Special Servicer, as applicable, upon presentation of reasonable documentation of such costs and expenses. If the predecessor Master Servicer or Special Servicer (as the case may be) has not reimbursed the Terminating Party or the successor Master Servicer or Special Servicer, as applicable, for such expenses within 90 days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust Fund; provided that the Terminated Party shall not thereby be relieved of its liability for such expenses. If and to the extent that the Terminated Party has not reimbursed such costs and expenses, the Terminating Party shall have an affirmative obligation to take all reasonable actions to collect such expenses on behalf of the Trust Fund. Neither the Operating Advisor nor any of its affiliates may be appointed as a successor Master Servicer or Special Servicer.

Section 7.02        Trustee to Act; Appointment of Successor. On and after the time the Master Servicer or the Special Servicer receives a notice of termination pursuant to Section 7.01 of this Agreement, the Terminating Party (subject to (a)) shall be its successor, until such successor is appointed in accordance with this Section, in all respects in its capacity as the Master Servicer or the Special Servicer under this Agreement and the transactions set forth or provided for herein and, except as provided herein, shall be subject to all the responsibilities, duties, limitations on liability and liabilities relating thereto and arising thereafter placed on the Master Servicer or Special Servicer by the terms and provisions hereof, provided, however, that (i) the Terminating Party shall have no responsibilities, duties, liabilities or obligations with respect to any act or omission of the Master Servicer or Special Servicer and (ii) any failure to perform, or delay in performing, such duties or responsibilities caused by the Terminated Party’s failure to provide, or delay in providing, records, tapes, disks, information or monies shall not be considered a termination event for such successor hereunder. The Trustee, as successor Master Servicer or successor Special Servicer, shall be indemnified to the full extent provided to the Master Servicer

 -272-

 

or Special Servicer, as applicable, under this Agreement prior to the Master Servicer’s or the Special Servicer’s termination. The appointment of a successor Master Servicer or successor Special Servicer shall not affect any liability of the predecessor Master Servicer or Special Servicer which may have arisen prior to its termination as the Master Servicer or the Special Servicer. The Terminating Party shall not be liable for any of the representations and warranties of the Master Servicer or Special Servicer herein or in any related document or agreement, for any acts or omissions of the predecessor Master Servicer or predecessor Special Servicer or for any losses incurred in respect of any Permitted Investment by the Master Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be required to purchase the Trust Loan or the Companion Loan hereunder. As compensation therefor, the Terminating Party as successor Master Servicer or successor Special Servicer shall be entitled to the Servicing Compensation or Special Servicing Compensation, as applicable, and all funds relating to the Trust Loan or Companion Loan that accrue after the date of the Terminating Party’s succession to which such predecessor Master Servicer or Special Servicer would have been entitled if such predecessor Master Servicer or Special Servicer, as applicable, had continued to act hereunder. In the event any Advances made by the Master Servicer or the Trustee shall at any time be outstanding, or any amounts of interest thereon shall be accrued and unpaid, all amounts available to repay Advances and interest hereunder shall be applied entirely to the Advances made by the Trustee (and the accrued and unpaid interest thereon), until such Advances and interest shall have been repaid in full. Notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall (i) if it is unable to so act, (ii) if the Holders of Certificates evidencing at least 25% of the Voting Rights of all Certificateholders or an affected Companion Loan Holder so requests in writing to the Trustee or (iii) if the Trustee is not an “approved” servicer by any of the Rating Agencies for mortgage loans similar to the one held in the Trust, promptly appoint, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution that to act as the successor to the Master Servicer or Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer or Special Servicer under this Agreement; provided that the Trustee shall obtain a No Downgrade Confirmation with respect to the Certificates and any Companion Loan Securities. No appointment of a successor to a Terminated Party hereunder shall be effective until the assumption by such successor of all the Terminated Party’s responsibilities, duties and liabilities hereunder. Pending appointment of a successor to the Master Servicer (or the Special Servicer if the Special Servicer is also the Master Servicer) hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in such capacity as hereinabove provided. Pending the appointment of a successor to the Special Servicer, the Trustee shall act in such capacity. Any appointment or succession by the Trustee to the rights and obligations of the Special Servicer hereunder shall be subject to the Directing Holder’s right to replace the Special Servicer during any Subordinate Control Period. In connection with such appointment and assumption described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on Whole Loan or otherwise as it and such successor shall agree; provided, however, that no such compensation shall be in excess of that permitted to the Terminated Party hereunder, provided, further, that if no successor to the Terminated Party can be obtained to perform the obligations of such Terminated Party hereunder, additional amounts shall be paid to such successor and such amounts in excess of that permitted the Terminated Party shall be treated as Realized Losses. The Depositor, the Trustee, the Master Servicer or Special Servicer and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.

 -273-

 

If the Trustee or an Affiliate acts pursuant to this Section 7.02 as successor to the resigning or terminated Master Servicer, it may reduce the Master Servicer’s Excess Servicing Fee Rate to the extent that its or such Affiliate’s compensation as successor Master Servicer would otherwise be below the market rate servicing compensation. If the Trustee elects to appoint a successor to the resigning or terminated Master Servicer other than itself or an Affiliate pursuant to this Section 7.02, it may reduce the Master Servicer’s Excess Servicing Fee Rate to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to appoint a qualified successor Master Servicer that meets the requirements of this Section 7.02.

Section 7.03        Notification to Certificateholders and Other Persons. (a)  Upon its receipt of written notice of any termination pursuant to Section 7.01 above or appointment of a successor to the Master Servicer or the Special Servicer, the Certificate Administrator shall give prompt written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register, the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

(b)           Within 30 days after the occurrence of any Servicer Termination Event or Operating Advisor Termination Event of which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall transmit by mail to the Depositor, the Certificate Administrator (who shall then notify all Holders of Certificates) and the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) and the Companion Loan Holders notice of such Servicer Termination Event or Operating Advisor Termination Event unless such Servicer Termination Event or Operating Advisor Termination Event shall have been cured or waived.

Section 7.04     Other Remedies of Trustee. During the continuance of any Servicer Termination Event, so long as the Servicer Termination Event, shall not have been remedied, the Trustee, in addition to the rights specified in Section 7.01 of this Agreement, shall have the right, in its own name as Trustee of an express trust, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies, of the Certificateholders and the Companion Loan Holders (including the institution and prosecution of all judicial, administrative and other proceedings and the filing of proofs of claim and debt in connection therewith). In such event, the legal fees, expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust Fund as provided in Section 3.06 of this Agreement (and such amounts shall be allocated in accordance with the expense allocation provisions of the Co-Lender Agreement). Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Master Servicer Termination Event or Special Servicer Termination Event, if applicable.

Section 7.05        Waiver of Past Servicer Termination Events; Termination. The Certificateholders evidencing not less than 66-⅔% of the aggregate Voting Rights may, together with each affected Companion Loan Holder, on behalf of all Holders of Certificates, waive any Servicer Termination Event by the Master Servicer or the Special Servicer in the performance of its obligations hereunder and its consequences, except (i) a termination event with respect to

 -274-

 

making any required deposits to or payments from the Collection Account or the Lower-Tier Distribution Account, or in remitting payments as received, in each case in accordance with this Agreement or the Co-Lender Agreement, and (ii) the Servicer Termination Event under Section 7.01(a)(x) and Section 7.01(b)(x), which may only be waived by the Depositor (and the Other Depositor under an Other Securitization Trust) pursuant to the terms of this Agreement. Upon any such waiver of a past termination event, such termination event shall cease to exist, and any Servicer Termination Event arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other termination event or impair any right consequent thereon.

Section 7.06     Trustee as Maker of Advances. In the event that the Master Servicer fails to fulfill its obligations hereunder to make any Advances and such failure remains uncured, the Trustee shall perform such obligations (x) within five Business Days of the Master Servicer Termination Event resulting from such failure by the Master Servicer with respect to Property Advances to the extent a Responsible Officer of the Trustee has actual knowledge of such failure with respect to such Property Advances and (y) by 12:00 noon (New York City time) on the related Distribution Date with respect to P&I Advances and Administrative Advances pursuant to the Trustee’s receipt of notice of failure pursuant to Section 4.07(a) or Section 4.07(c) of this Agreement unless the Trustee has received notice that such failure has been cured by 11:00 a.m. on such Distribution Date. With respect to any such Advance made by the Trustee, the Trustee shall succeed to all of the Master Servicer’s rights with respect to Advances hereunder, including, without limitation, the Master Servicer’s rights of reimbursement and interest on each Advance at the Advance Rate, and rights to determine that a proposed Advance is a Nonrecoverable Advance (without regard to any impairment of any such rights of reimbursement caused by the Master Servicer’s failure to perform its obligations hereunder); provided, however, that if Advances made by the Trustee and the Master Servicer shall at any time be outstanding, or any interest on any Advance shall be accrued and unpaid, all amounts available to repay such Advances and the interest thereon hereunder shall be applied entirely to the Advances outstanding to the Trustee, until such Advances shall have been repaid in full, together with all interest accrued thereon, prior to reimbursement of the Master Servicer for such Advances. The Trustee shall be entitled to conclusively rely on any notice given with respect to a Nonrecoverable Advance or any determination of recoverability in connection therewith by the Master Servicer hereunder.

ARTICLE VIII

CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR

Section 8.01     Duties of Trustee and Certificate Administrator. (a)  Each of the Trustee and the Certificate Administrator undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no permissive right of the Trustee shall be construed as a duty. During the continuance of a Servicer Termination Event of which a Responsible Officer of the Trustee has actual knowledge, the Trustee, subject to the provisions of Section 7.02 and 7.05 of this Agreement, shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 -275-

 

(b)           The Trustee and the Certificate Administrator, upon receipt of any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator, as the case may be, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement; provided, however, that, the Trustee or the Certificate Administrator, as applicable, shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument provided to it hereunder. If any such instrument is found not to conform on its face to the requirements of this Agreement in a material manner, the Trustee or the Certificate Administrator, as applicable, shall request the provider of such instrument to have the instrument corrected, and if the instrument is not corrected to such Trustee’s or such Certificate Administrator’s reasonable satisfaction, such Trustee or such Certificate Administrator will provide notice thereof to the Certificateholders.

(c)           None of the Trustee, the Certificate Administrator or any of their officers, directors, employees, agents or “control” persons within the meaning of the Act shall have any liability arising out of or in connection with this Agreement, provided that, subject to Section 8.02 of this Agreement, no provision of this Agreement shall be construed to relieve the Trustee, the Certificate Administrator or any such person, from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or its own bad faith; and provided, further, that:

(i)           The Trustee’s and the Certificate Administrator’s duties and obligations shall be determined solely by the express provisions of this Agreement, neither the Trustee nor the Certificate Administrator shall be liable except for the performance of such duties and obligations as are specifically set forth in regard to such party in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee or the Certificate Administrator and, in the absence of bad faith on the part of the Trustee or the Certificate Administrator, as the case may be, the Trustee and the Certificate Administrator may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any resolutions, certificates, statements, reports, opinions, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator, as the case may be, that conform on their face to the requirements of this Agreement to the extent set forth herein without responsibility for investigating the contents thereof;

(ii)           Neither the Trustee nor the Certificate Administrator shall be personally liable for an error of judgment made in good faith by a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, unless it shall be proved that the Trustee or the Certificate Administrator, as the case may be, was negligent in ascertaining the pertinent facts;

(iii)           Neither the Trustee nor the Certificate Administrator shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Certificateholders entitled to greater than 50% of the Percentage Interests (or such other percentage as is specified herein) of each affected Class, or of the aggregate Voting Rights of the Certificates, relating to the time, method and place

 -276-

 

of conducting any proceeding for any remedy available to the Trustee or the Certificate Administrator, as the case may be, or exercising any trust or power conferred upon the Trustee or the Certificate Administrator, as the case may be, under this Agreement (unless a higher percentage of Voting Rights is required for such action);

(iv)           Neither the Trustee nor the Certificate Administrator nor any of their directors, officers, employees, agents or control persons shall be responsible for any act or omission of any Custodian, Paying Agent or Certificate Registrar that is not an Affiliate of the Trustee or Certificate Administrator, respectively, and that is selected other than by the Trustee or Certificate Administrator, respectively, performed or omitted in compliance with any custodial or other agreement, or any act or omission of the Master Servicer, the Special Servicer, the Operating Advisor, the Depositor or any other Person, including, without limitation, in connection with actions taken pursuant to this Agreement;

(v)           Neither the Trustee nor the Certificate Administrator shall be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its respective duties as Trustee or Certificate Administrator in accordance with this Agreement (and, if it does, all legal expenses and costs of such action shall be expenses and costs of the Trust Fund, and the Trustee or the Certificate Administrator, as applicable, shall be entitled, as provided in Section 3.06 hereof, to be reimbursed therefor from amounts on deposit in the Collection Account or the Distribution Account and identified on the Trust Ledger, unless such legal action arises out of the negligence or bad faith of the Trustee or Certificate Administrator, as applicable, or any breach of a representation or warranty of the Trustee or Certificate Administrator, as applicable, contained herein);

(vi)           Neither the Trustee nor the Certificate Administrator shall be charged with knowledge of any act, failure to act or breach of any Person upon the occurrence of which the Trustee or Certificate Administrator, as applicable, may be required to act, unless a Responsible Officer of the Trustee or Certificate Administrator, as applicable, obtains actual knowledge of such failure. Neither the Trustee nor the Certificate Administrator shall be deemed to have actual knowledge of the Master Servicer’s or the Special Servicer’s failure to provide scheduled reports, certificates and statements when and as required to be delivered to the Trustee or Certificate Administrator, as applicable, pursuant to this Agreement; and

(vii)           Except in the event of actual fraud (as determined by a non-appealable final court order), in no event shall the Trustee or the Certificate Administrator, as applicable, be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator, as applicable, has been advised of the likelihood of such loss or damage and regardless of the form of action.

None of the provisions contained in this Agreement shall require either the Trustee, in its capacity as Trustee or the Certificate Administrator, in its capacity as Certificate Administrator, to expend or risk its own funds, or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if in the opinion of the Trustee or the Certificate Administrator, as the case may be, the repayment of

 -277-

 

such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee or the Certificate Administrator, as the case may be, to perform, or be responsible for the manner of performance of, any of the obligations of the Master Servicer, the Special Servicer or the Operating Advisor under this Agreement, except, in the case of the Trustee, during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Master Servicer or the Special Servicer in accordance with the terms of this Agreement. Neither the Trustee nor the Certificate Administrator shall be required to post any surety or bond of any kind in connection with its performance of its obligations under this Agreement and neither the Trustee nor the Certificate Administrator shall be liable for any loss on any investment of funds pursuant to this Agreement. Notwithstanding any other provision hereof, when acting as the Master Servicer or Special Servicer hereunder, the Trustee and the Certificate Administrator shall comply with the Servicing Standard.

Section 8.02     Certain Matters Affecting the Trustee and the Certificate Administrator. (a)  Except as otherwise provided in Section 8.01 of this Agreement:

(i)           The Trustee and the Certificate Administrator may request and/or conclusively rely upon and shall be protected in acting or refraining from acting upon any resolution, direction of the Depositor, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties and neither the Trustee nor the Certificate Administrator shall have any responsibility to ascertain or confirm the genuineness of any such party or parties;

(ii)           Each of the Trustee and the Certificate Administrator may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with the written advice of such counsel or such Opinion of Counsel;

(iii)           (A) Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or to make any investigation of matters arising hereunder or institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as the case may be, reasonable security or indemnity reasonably satisfactory to the Trustee or the Certificate Administrator, as the case may be, against the costs, expenses and liabilities which may be incurred therein or thereby, provided that nothing contained herein shall relieve the Trustee or the Certificate Administrator, as the case may be, of the obligations, upon the occurrence of a Servicer Termination Event or an Operating Advisor Termination Event (which has not been cured or waived) of which a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, has actual knowledge, to exercise such of the rights and powers vested in it by this Agreement, and, with respect to the Trustee, to use the same degree of care and skill in their exercise, as a prudent person would exercise

 -278-

 

or use under the circumstances in the conduct of such person’s own affairs; and (B) the right of the Trustee and the Certificate Administrator to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee or the Certificate Administrator, as the case may be, shall not be answerable for other than its negligence or willful misconduct in the performance of any such act;

(iv)           None of the Trustee, the Certificate Administrator or any of their directors, officers, employees, Affiliates, agents or “control” persons within the meaning of the Act shall be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by the Trustee or the Certificate Administrator, as the case may be, to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

(v)           The Trustee (if no Servicer Termination Event has occurred and is continuing) and the Certificate Administrator shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to greater than 25% (or such other percentage as is specified herein) of the Percentage Interests of each affected Class; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator, as the case may be, of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, as the case may be, not reasonably assured to the Trustee or the Certificate Administrator, as the case may be, by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, as the case may be, may require indemnity reasonably satisfactory to it from such requesting Holders against such cost, expense or liability as a condition to taking any such action. The reasonable expense of every such investigation shall be paid by the Master Servicer, the Special Servicer or the Operating Advisor, as applicable, if a Servicer Termination Event or Operating Advisor Termination Event shall have occurred and be continuing relating to the Master Servicer, the Special Servicer or the Operating Advisor, respectively, and otherwise by the Certificateholders requesting the investigation;

(vi)           The Trustee or the Certificate Administrator, as applicable, may execute any of the trusts or powers hereunder and the Trustee and the Certificate Administrator may perform any duties hereunder either directly or by or through agents, affiliates, nominees, custodians or attorneys but shall not be relieved of the obligations hereunder by virtue of the appointment of such agents, affiliates, nominees, custodians or attorneys, provided, however, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;

(vii)           Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of the Master Servicer or the Special Servicer (unless the Trustee is acting as Master Servicer or Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as Master Servicer or Special Servicer) or of the Depositor;

 -279-

 

(viii)           In no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct;

(ix)           Except as otherwise expressly set forth in this Agreement, Wells Fargo Bank, National Association acting in any particular capacity hereunder shall not be deemed to be imputed with knowledge of (a) Wells Fargo Bank, National Association acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers; provided in any event, however, the knowledge of employees performing special servicing functions shall not be imputed to employees performing master servicing functions, and the knowledge of employees performing master servicing functions shall not be imputed to employees performing special servicing functions; and

(x)           Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law.

(b)           Following the Startup Day, the Trustee and the Certificate Administrator shall not, except as expressly required by any provision of this Agreement, accept any contribution of assets to the Trust Fund unless the Trustee or the Certificate Administrator shall have received an Opinion of Counsel (the costs of obtaining such opinion to be borne by the Person requesting such contribution) to the effect that the inclusion of such assets in the Trust Fund will not cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Certificates are outstanding, or subject the Lower-Tier REMIC or the Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state and local law or ordinances.

(c)           All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee and the Certificate Administrator, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or other proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee and the Certificate Administrator shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.

(d)           The Trustee shall not have a duty to conduct any affirmative investigation as to the occurrence of any condition requiring the repurchase of the Trust Loan by the Trust Loan Sellers pursuant to this Agreement or the eligibility of the Trust Loan for purposes of this Agreement.

(e)           Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including,

 -280-

 

without limitation, as Custodian, Certificate Registrar, 17g-5 Information Provider, Paying Agent and Authenticating Agent). For the avoidance of doubt, the Certificate Administrator and the Trustee shall be entitled to all of the rights, protections, immunities and indemnities afforded to it hereunder under.

(f)           In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Certificate Administrator (in each of its capacities) and the Trustee, as the case may be, are required to obtain, verify and record certain information relating to individuals and entities that maintain a business relationship with the Certificate Administrator (in each of its capacities) or the Trustee. Accordingly, each of the parties hereto agrees to provide to the Certificate Administrator (in each of its capacities) and the Trustee, upon its respective request from time to time, such identifying information and documentation as may be available for such party in order to enable the Certificate Administrator (in each of its capacities) and the Trustee to comply with Applicable Law.

Section 8.03        Trustee and Certificate Administrator Not Liable for Certificates or the Trust Loan. The recitals contained herein and in the Certificates shall not be taken as the statements of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer, or the Special Servicer and the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer assume no responsibility for their correctness. The Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer make no representations or warranties as to the validity or sufficiency of this Agreement, of the Certificates or any offering document used to offer the Certificates for sale or the validity, enforceability or sufficiency of the Trust Loan, or related document. Neither the Trustee nor the Certificate Administrator shall at any time have any responsibility or liability for or with respect to the legality, validity and enforceability of the related Mortgage, the Trust Loan, or the perfection and priority of any Mortgage or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Fund or its ability to generate the payments to be distributed to Certificateholders under this Agreement. Without limiting the foregoing, neither the Trustee nor the Certificate Administrator shall be liable or responsible for: (i) the existence, condition and ownership of the Mortgaged Properties; (ii) the existence of any hazard or other insurance thereon (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement) or the enforceability thereof; (iii) the existence of the Trust Loan or the contents of the Mortgage File on any computer or other record thereof (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant Section 7.02 of this Agreement); (iv) the validity of the assignment of the Trust Loan to the Trust Fund or of any intervening assignment; (v) the completeness of the Mortgage File; the performance or enforcement of the Trust Loan (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement); (vi) the compliance by the Depositor, the Master Servicer, the Special Servicer or the Operating Advisor with any warranty or representation made under this Agreement or in any related document or the accuracy of any such warranty or representation prior to the Trustee’s receipt of written notice or other discovery of any non-compliance therewith or any breach thereof; (vii) any investment of monies by or at the direction of the Master Servicer or any loss resulting therefrom, the acts or omissions of any of the Depositor, the Certificate

 -281-

 

Administrator, the Operating Advisor, the Master Servicer or the Special Servicer (other than if the Trustee shall assume the duties of the Certificate Administrator, the Master Servicer or Special Servicer pursuant to Section 7.02 of this Agreement) or any Sub-Servicer or the Borrower; any action of the Master Servicer or Special Servicer (other than if the Trustee shall assume the duties of the Master Servicer or Special Servicer pursuant to Section 7.02 of this Agreement) or any Sub-Servicer taken in the name of the Trustee, except to the extent such action is taken at the express written direction of the Trustee; (viii) the failure of the Master Servicer or the Special Servicer or any Sub-Servicer to act or perform any duties required of them on behalf of the Trust Fund or the Trustee hereunder; or (ix) any action by or omission of the Trustee or the Certificate Administrator taken at the instruction of the Master Servicer or the Special Servicer (other than if the Trustee shall assume the duties of the Master Servicer or the Special Servicer pursuant to Section 7.02 of this Agreement) unless the taking of such action is not permitted by the express terms of this Agreement; provided, however, that the foregoing shall not relieve the Trustee or the Certificate Administrator of their respective obligations to perform their duties as specifically set forth in this Agreement. The Trustee or the Certificate Administrator shall not be accountable for the use or application by the Depositor, the Certificate Administrator (in the case of the Trustee only), the Trustee (in the case of the Certificate Administrator only), the Master Servicer or the Special Servicer of any of the Certificates or of the proceeds of such Certificates, or for the use or application of any funds paid to the Depositor, the Certificate Administrator (in the case of the Trustee only), the Trustee (in the case of the Certificate Administrator only), the Master Servicer or the Special Servicer in respect of the assignment of the Trust Loan or deposited in or withdrawn from the Collection Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Lock-Box Account, the Cash Collateral Account, the Reserve Accounts, any REO Account or any other account maintained by or on behalf of the Certificate Administrator, the Master Servicer or the Special Servicer, other than any funds held by the Trustee or the Certificate Administrator, as applicable. Neither the Trustee nor the Certificate Administrator shall have any responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it hereunder (unless the Trustee shall have become the successor Master Servicer) or to record this Agreement. In making any calculation hereunder which includes as a component thereof the payment or distribution of interest for a stated period at a stated rate “to the extent permitted by applicable law”, the Trustee or the Certificate Administrator, as the case may be, shall assume that such payment is so permitted unless a Responsible Officer of the Trustee or the Certificate Administrator, as the case may be, has actual knowledge, or receives an Opinion of Counsel (at the expense of the Person asserting the impermissibility) to the effect, that such payment is not permitted by applicable law. The Depositor is not obligated to monitor or supervise the performance of the Trustee or the Certificate Administrator under this Agreement or otherwise.

Section 8.04     Trustee and Certificate Administrator May Own Certificates. The Trustee, the Certificate Administrator and any agent of the Trustee or the Certificate Administrator in its individual capacity or any other capacity may become the owner or pledgee of Certificates, and may deal with the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor and the Initial Purchasers in banking transactions, with the same rights it would have if it were not Trustee, Certificate Administrator or such agent, as the case may be.

 -282-

 

Section 8.05     Payment of Trustee’s and Certificate Administrator’s Fees and Expenses; Indemnification. (a)  On each Distribution Date, prior to the distribution of amounts to the Certificateholders, the Certificate Administrator shall be entitled to withdraw and pay the Trustee and itself its respective portion of the Trustee/Certificate Administrator Fee, as applicable, as reasonable compensation from amounts remitted to the Lower-Tier Distribution Account (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties of the Trustee and the Certificate Administrator at the Trustee/Certificate Administrator Fee Rate.

(b)           In the event that the Trustee assumes the servicing responsibilities of the Master Servicer or the Special Servicer hereunder pursuant to or otherwise arising from the resignation or removal of the Master Servicer or the Special Servicer, the Trustee shall be entitled to the compensation to which the Master Servicer or the Special Servicer, as the case may be, would have been entitled (other than the rights of the Special Servicer to receive any Workout Fee specified in Section 3.12(c) of this Agreement in the event that the Special Servicer is terminated).

(c)           The Trustee, the Custodian and the Certificate Administrator shall be paid or reimbursed by the Trust Fund upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee, the Custodian or the Certificate Administrator pursuant to and in accordance with any of the provisions of this Agreement (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ), which the Certificate Administrator will be entitled to withdraw from the Distribution Accounts prior to the distribution to Certificateholders to the extent set forth herein and to the extent such payments are “unanticipated expenses incurred by the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(iii), except any such expense, disbursement or advance as may arise from its negligence, willful misconduct or bad faith; provided, however, that, subject to the last paragraph of Section 8.01 and Section 8.02(a)(iii) of this Agreement, the Trustee, the Custodian or the Certificate Administrator shall not refuse to perform any of their respective duties hereunder solely as a result of the failure to be paid their respective portions of the Trustee/Certificate Administrator Fee, or the Trustee’s previously-incurred expenses or, the Custodian’s or Certificate Administrator’s previously-incurred expenses, as applicable. The term “unanticipated expenses incurred by the REMIC” shall include any fees, expenses and disbursement of any separate Trustee or co-Trustee appointed hereunder, only to the extent such fees, expenses and disbursements were not reasonably anticipated as of the Closing Date and are attributable to the Lower-Tier REMIC or the Upper-Tier REMIC and the losses, liabilities, damages, claims or expenses (including reasonable attorneys’ fees) incurred or advanced by an Indemnified Party in connection with any litigation arising out of this Agreement attributable to the Lower-Tier REMIC or the Upper-Tier REMIC, including, without limitation, under Section 2.03, Section 3.10, the third paragraph of Section 3.11, Section 4.05 and Section 7.01 of this Agreement.

The Master Servicer and the Special Servicer covenant and agree to pay or reimburse the Trustee for the reasonable expenses, disbursements and advances incurred or made by the Trustee in connection with any transfer of the servicing responsibilities of the Master Servicer or the Special Servicer, respectively, hereunder, pursuant to or otherwise arising from the resignation or removal of the Master Servicer or Special Servicer (except in the case of removal

 -283-

 

of the Special Servicer without cause), as applicable, in accordance with any of the provisions of this Agreement (and including the reasonable fees and expenses and disbursements of its counsel and all other persons not regularly in its employ), except any such expense, disbursement or advance as may arise from the negligence, willful misconduct or bad faith of the Trustee.

(d)           Each of the Certificate Administrator, the Custodian, the Paying Agent, the Trustee, the Depositor, the Master Servicer and the Special Servicer (each, for purposes of this Section 8.05(d), an “Indemnifying Party”) shall (severally and not jointly) indemnify the Trustee (both in its capacity as Trustee and individually) and the Certificate Administrator (in its capacity as Certificate Administrator, the Custodian, Paying Agent and individually) and each of their Affiliates and each of the directors, officers, employees, representatives and agents of the Trustee and the Certificate Administrator and each of their Affiliates (each, for purposes of this Section 8.05(d), an “Indemnified Party”), and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Indemnified Party may sustain in connection with this Agreement (including, without limitation, reasonable fees and disbursements of counsel incurred by the Indemnified Party in any action or proceeding between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party or otherwise) resulting from each such Indemnifying Party’s respective willful misconduct, bad faith, fraud or negligence in the performance of each of its respective duties hereunder or by reason of negligent disregard of its respective obligations and duties hereunder (including in the case of the Master Servicer, any agent of the Master Servicer or Sub-Servicer).

The Trust Fund shall indemnify each Indemnified Party from, and hold it harmless against, any and all losses, liabilities, damages, penalties, fines, forfeitures, judgments, claims or unanticipated expenses (including, without limitation, reasonable fees and disbursements of counsel incurred by the Indemnified Party in any action or proceeding between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party or otherwise) arising in respect of this Agreement, the Trust Loan, the Certificates other than those (i) resulting from the willful misconduct, bad faith, fraud or negligence of the Indemnified Party, as applicable, in the performance of its obligations and duties under this Agreement, (ii) by reason of its negligent disregard of those obligations or duties, or as may arise from a breach of any representation or warranty of the Indemnified Party made in Section 2.04(c) or Section 2.04(d), as applicable, of this Agreement, (iii) as to which such Indemnified Party is entitled to indemnification pursuant to this Section 8.05(d) or (iv) constituting a specific liability imposed on the Indemnified Party by this Agreement. The right of reimbursement of the Indemnified Parties under this Section 8.05(d) shall be senior to the rights of all Certificateholders.

(e)           Notwithstanding anything herein to the contrary, this Section 8.05 shall survive the termination or maturity of this Agreement or the resignation, removal or termination of the Trustee or the Certificate Administrator, as the case may be, regarding rights accrued prior to such resignation, removal or termination and (with respect to any acts or omissions during its respective tenures) the resignation, removal or termination of the Master Servicer, the Special Servicer, the Paying Agent, the Certificate Administrator, the Certificate Registrar or the Custodian.

 -284-

 

(f)           This Section 8.05 shall be expressly construed to include, but not be limited to, such indemnities, compensation, expenses, disbursements, advances, losses, liabilities, damages and the like, as may pertain or relate to any environmental law or environmental matter.

(g)           Each of the Certificate Administrator, Custodian, Paying Agent and the Trustee (in each case with respect to itself only, for purposes of this Section 8.05(g), an “Indemnifying Party”) shall (severally and not jointly) indemnify the Trust Fund, the Depositor, the Master Servicer and the Special Servicer and their respective Affiliates and each of the directors, officers, employees and agents of the Master Servicer and the Special Servicer and their respective Affiliates (each, for purposes of this Section 8.05(g), an “Indemnified Party”), and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Indemnified Party may sustain in connection with this Agreement (including, without limitation reasonable fees and disbursements of counsel incurred by the Indemnified Party in any action or proceeding between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party or otherwise) resulting from the applicable Indemnifying Party’s willful misconduct, bad faith, fraud or negligence in the performance of its duties hereunder or by reason of negligent disregard of its obligations and duties hereunder.

(h)           The Certificate Administrator (for purposes of this Section 8.05(h), the “Indemnifying Party”) shall, solely in its capacity as the 17g-5 Information Provider, indemnify each of the Trust Loan Sellers and the Initial Purchasers (each, for purposes of this Section 8.05(h), an “Indemnified Party”), and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, fees and expenses that the Indemnified Party may sustain in connection with this Agreement (including, without limitation reasonable fees and disbursements of counsel incurred by the Indemnified Party in any action or proceeding between the Indemnifying Party and the Indemnified Party or between the Indemnified Party and any third party or otherwise) related to (i) the applicable Indemnifying Party’s willful misconduct, bad faith, fraud or negligence in the performance of its duties hereunder or by reason of negligent disregard of its obligations and duties hereunder or (ii) a determination by any Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Exchange Act Rule 17g-5(a)(3), to the extent caused by any such willful misconduct, bad faith, fraud or negligence in the performance of its duties hereunder or by reason of negligent disregard referred to in clause (i) above by the Indemnifying Party.

Section 8.06     Eligibility Requirements for Trustee and Certificate Administrator. The Trustee and Certificate Administrator hereunder shall at all times:

(i)            be a corporation, national banking association or trust company organized and doing business under the laws of any state or the United States of America,

(ii)           (a) with respect to the Trustee, be authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement and (b) with respect to the Certificate Administrator, be authorized to exercise corporate trust powers,

(iii)           have a combined capital and surplus of at least $50,000,000,

 -285-

 

(iv)           in the case of the Trustee, have (a) a rating on its long-term senior unsecured debt of at least “A” by Fitch (or a short term debt rating of “F1” by Fitch), (b) a rating on its long term senior unsecured debt rating of “A” by DBRS Morningstar; or (c) as is otherwise acceptable to the Rating Agencies as evidenced by the receipt of a No Downgrade Confirmation,

(v)            be subject to supervision or examination by federal and state authority, as applicable, and, in the case of the Trustee, shall not be an Affiliate of the Master Servicer or the Special Servicer (except, in the case of the Trustee, during any period when the Trustee has assumed the duties of the Master Servicer or Special Servicer, as the case may be, pursuant to Section 7.02 of this Agreement), and

(vi)           not be a person that would be a Prohibited Party if it was a proposed Servicing Function Participant.

Notwithstanding the foregoing, if the Trustee meets the provisions of clauses (i) through (iii), (v) and (vi) above, but does not meet the provisions of clause (iv) above, the Trustee shall be deemed to meet the provisions of such clause (iv) if it appoints a fiscal agent as a back-up liquidity provider, provided that such fiscal agent meets the provisions of clauses (i) through (vi) above and shall have assumed in writing all obligations of the Trustee to make Advances under this Agreement as and when required of the Trustee. If a corporation or association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If the place of business from which the Trustee administers the Trust Fund is a state or local jurisdiction that imposes a tax on the Trust Fund or the net income of either Trust REMIC (other than a tax corresponding to a tax imposed under the REMIC Provisions) the Trustee shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.07 of this Agreement, (ii) pay such tax and continue as Trustee or (iii) administer the Trust Fund from a state and local jurisdiction that does not impose such a tax. If at any time the Trustee or the Certificate Administrator shall cease to be eligible in accordance with the provisions of this Section, the Trustee or the Certificate Administrator, as the case may be, shall resign immediately in the manner and with the effect specified in Section 8.07 of this Agreement.

Section 8.07        Resignation and Removal of Trustee and Certificate Administrator. The Trustee and the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Trustee, the Depositor, the Certificate Administrator, the Operating Advisor, the Master Servicer, the Special Servicer, the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement); provided that such resignation shall not be effective until its successor shall have accepted the appointment. Upon notice of resignation from the Trustee, the Depositor shall promptly appoint a successor trustee acceptable to the Master Servicer, the appointment of which successor is subject to the requirements contained in Section 8.06 of this Agreement. Upon notice of resignation from the Certificate Administrator, the Trustee shall promptly appoint a successor certificate administrator, the appointment of which is subject to the requirements contained in Section 8.06 of this Agreement. If no successor trustee or

 -286-

 

certificate administrator shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee or Certificate Administrator, as the case may be, may petition any court of competent jurisdiction for the appointment of a successor. The Trustee or the Certificate Administrator, as applicable, shall bear all reasonable out of pocket costs and expenses of each other party hereto and each Rating Agency in connection with its resignation.

If at any time the Trustee or the Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 8.06 of this Agreement and shall fail to resign after written request therefor by the Depositor or the Master Servicer, or if at any time the Trustee or the Certificate Administrator shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate Administrator, as the case may be (or of its property), shall be appointed, or any public officer shall take charge or control of the Trustee or the Certificate Administrator, as the case may be (or of its property or affairs), for the purpose of rehabilitation, conservation or liquidation, then the Depositor or the Master Servicer may remove the Trustee or the Certificate Administrator, as the case may be, and the Depositor or the Master Servicer shall promptly appoint a successor by written instrument, which shall be delivered to the Trustee or the Certificate Administrator, as the case may be, so removed and to the successor.

The Certificateholders entitled to at least 50% of the Voting Rights may with cause (at any time) or without cause (at any time with 30 days’ prior written notice), remove the Trustee or the Certificate Administrator and appoint a successor by written instrument or instruments, in seven originals, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to the Depositor, one complete set to the Master Servicer and Special Servicer, one complete set to the Operating Advisor, one complete set to the Trustee, one complete set to the Certificate Administrator, and one complete set to the successor trustee or certificate administrator, as applicable.

In addition, if the Trustee or the Certificate Administrator is terminated without cause, the terminating party shall pay all of the expenses of the Trustee or the Certificate Administrator, as the case may be, necessary to affect the transfer of its responsibilities to the successor.

In the event that the Trustee is terminated or removed pursuant to this Section 8.07, all of its rights and obligations under this Agreement and in and to the Trust Loan shall be terminated, other than any rights or obligations that accrued prior to the date of such termination or removal (including the right to receive all fees, expenses, indemnities, and other amounts accrued or owing to it under this Agreement, plus interest at the Advance Rate on all such amounts until received to the extent such amounts bear interest as provided in this Agreement, with respect to periods prior to the date of such termination or removal) and such resignation, termination, or removal shall be effective with respect to each of its other capacities hereunder.

In the event that the Certificate Administrator is terminated or removed pursuant to this Section 8.07, (i) all of its rights and obligations under this Agreement and in and to the Trust Loan shall be terminated, other than any rights or obligations that accrued prior to the date of such termination or removal (including the right to receive all fees, indemnities, expenses and other amounts accrued or owing to it under this Agreement with respect to periods prior to the date of

 -287-

 

such termination or removal) and (ii) such resignation, termination, or removal shall be effective with respect to each of its other capacities hereunder.

Upon the resignation, assignment, or transfer of the Trustee or its business to a successor, or upon the termination of the Trustee, (a) the outgoing Trustee, at its own expense without right to reimbursement therefor, shall (A) endorse the original executed Trust Note for the Trust Loan (to the extent that the original executed note for the Trust Loan was endorsed to the outgoing Trustee), without recourse, representation or warranty, express or implied, to the order of the successor, as trustee for the registered holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates or in blank, and (B) in the case of the other assignable Loan Documents (to the extent other Loan Documents were assigned to the outgoing Trustee), assign and record Loan Documents to such successor, and such successor shall review the documents delivered to it or to the Custodian with respect to the Trust Loan, and certify in writing that, as to the Trust Loan then subject to this Agreement, such endorsement and assignment has been made; (b) if any original executed Trust Note for the Trust Loan was not endorsed to the outgoing Trustee, the Custodian shall deliver such Trust Note to the successor trustee and the Custodian shall cooperate with any successor trustee to ensure that the Trust Note is endorsed (without recourse, representation and warranty, express or implied) to the order of the successor trustee, as trustee for the registered holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, or in blank. If any assignable Loan Document (other than the Trust Note) was not assigned to the outgoing Trustee or if the Trustee is removed pursuant to Section 8.07 without cause, with respect to the Loan Documents identified in clause (B) of the preceding sentence, the Custodian shall deliver the Loan Document to the successor trustee and, if appropriate the Loan Documents shall be recorded at the expense of the Trust and the reasonable cooperation (as determined by the Depositor) of the Depositor.

Section 8.08     Successor Trustee and Certificate Administrator. (a)  Any successor trustee or certificate administrator shall execute, acknowledge and deliver to the Depositor, the Operating Advisor, the Master Servicer, the Certificate Administrator (or in the case of a successor certificate administrator, to the predecessor Certificate Administrator) and the Trustee, as the case may be, instruments accepting their appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Certificate Administrator, as applicable, shall become effective and such successor, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as Trustee or Certificate Administrator, as applicable, herein, provided that such successor shall satisfy the requirements contained in Section 8.06 of this Agreement. The predecessor Trustee or Certificate Administrator, as applicable, shall deliver to its successor all Mortgage Files and related documents and statements held by it hereunder, and the Depositor and the predecessor Trustee or Certificate Administrator, as applicable, shall execute and deliver such instruments and do such other things as may reasonably be required for more fully and certainly vesting and confirming in the successor all such rights, powers, duties and obligations. No successor trustee or certificate administrator, as the case may be, shall accept appointment as provided in this Section 8.08 unless at the time of such acceptance such successor shall be eligible under the provisions of Section 8.06 of this Agreement.

Upon acceptance of appointment by a successor trustee as provided in this Section 8.08, the Depositor shall mail notice of the succession of such Trustee hereunder to all Holders of

 -288-

 

Certificates at their addresses as shown in the Certificate Register. If the Depositor fails to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Depositor.

(b)           Any successor trustee appointed pursuant to this Agreement shall satisfy the eligibility requirements set forth in Section 8.06 hereof.

Section 8.09        Merger or Consolidation of Trustee or Certificate Administrator. Any corporation into which the Trustee or the Certificate Administrator may be merged or converted or with which it may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Trustee or the Certificate Administrator shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee or the Certificate Administrator, shall be the successor of the Trustee or the Certificate Administrator, as the case may be, hereunder, provided that such corporation shall be eligible under the provisions of Section 8.06 of this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Trustee or the Certificate Administrator, as applicable, will notify the other parties hereto, and the Certificate Administrator shall post notice of such merger or consolidation to the Certificate Administrator’s Website in accordance with Section 3.14(d) of this Agreement and provide notice of such event to the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

Section 8.10     Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the same may at the time be located, the Depositor and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act (at the expense of the Trust) as co-Trustee or co-Trustees, jointly with the Trustee, or separate Trustee or separate Trustees, of all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title to the Trust Fund, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as the Depositor and the Trustee may consider necessary or desirable. If the Depositor shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, or in case a Servicer Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment. No co-Trustee or separate Trustee hereunder shall be required to meet the terms of eligibility as a successor Trustee under Section 8.06 hereunder and no notice to Holders of Certificates of the appointment of co-Trustee(s) or separate Trustee(s) shall be required under Section 8.08 hereof.

In the case of any appointment of a co-Trustee or separate Trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate Trustee or co-Trustee jointly (it being understood that such separate Trustee or co-Trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee shall be incompetent or

 -289-

 

unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate Trustee or co-Trustee solely at the direction of the Trustee.

No Trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; provided that except as required by applicable law, the appointment of a co-Trustee or separate Trustee shall not relieve the Trustee of its responsibilities, obligations and liabilities hereunder. The Depositor and the Trustee acting jointly may at any time accept the resignation of or remove any separate Trustee or co-Trustee, or if the separate Trustee or co-Trustee is an employee of the Trustee, the Trustee acting alone may accept the resignation of or remove any separate Trustee or co-Trustee.

Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate Trustees and co-Trustees, as effectively as if given to each of them. Every instrument appointing any separate Trustee or co-Trustee shall refer to this Agreement and the conditions of this Article VIII. Every such instrument shall be filed with the Trustee. Each separate Trustee and co-Trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. In no event shall any such separate Trustee or co-Trustee be entitled to any provision relating to the conduct of, affecting the liability of or affording protection to such separate Trustee or co-Trustee that imposes a standard of conduct less stringent than that imposed by the Trustee hereunder, affording greater protection than that afforded to the Trustee hereunder or providing a greater limit on liability than that provided to the Trustee hereunder.

Any separate Trustee or co-Trustee may, at any time, constitute the Trustee its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate Trustee or co-Trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor Trustee.

ARTICLE IX

TERMINATION

Section 9.01     Termination. (a)  The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created hereby with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as hereinafter set forth) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holders of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required hereunder to be so paid on the Distribution Date following the earlier to occur of (i) the

 -290-

 

purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of this Agreement; (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of this Agreement; and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to this Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created hereby continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

For purposes of this Section 9.01, the Sole Certificateholder shall have the first option to terminate the Trust Fund, pursuant to subsection Section 9.01(g), and then the Directing Holder, and then the Special Servicer and then the Master Servicer and then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, in that order, pursuant to subsection Section 9.01(c).

(b)           The Trust Fund, the Lower-Tier REMIC and the Upper-Tier REMIC shall be terminated and the assets of the Trust Fund shall be sold or otherwise disposed of in connection therewith, only pursuant to a “plan of complete liquidation” within the meaning of Section 860F(a)(4)(A) of the Code providing for the actions contemplated by the provisions hereof and pursuant to which the applicable Notice of Termination is given, and requiring that the Trust Fund, the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate on a Distribution Date occurring not more than 90 days following the date of adoption of the plan of complete liquidation. For purposes of this Section 9.01(b), the Notice of Termination given pursuant to Section 9.01(c) of this Agreement shall constitute the adoption of the plan of complete liquidation as of the date such notice is given, which date shall be specified by the Certificate Administrator (based on information provided by the Master Servicer) in the final federal income tax returns of the Upper-Tier REMIC and the Lower-Tier REMIC. Notwithstanding the termination of the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund, the Certificate Administrator shall be responsible for filing the final Tax Returns for each Trust REMIC for the period ending with such termination, and shall retain books and records with respect to each Trust REMIC for the same period of retention for which it maintains its own tax returns or such other reasonable period. The Trustee shall sign all Tax Returns and other reports required by this Section.

(c)           The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 -291-

 

(i)           the sum of, without duplication

(A)             100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

(B)              the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

(C)              all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Properties has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

(D)             the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the CREFC^® License Fee, the Operating Advisor Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

(ii)           the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

In the event that the Directing Holder, the Special Servicer, the Master Servicer or the Holder of a majority Percentage Interest in the Class R or Class LR Certificates purchases the Trust Loan and all property acquired in respect of the Trust Loan remaining in the Trust Fund in accordance with this Section 9.01(c), the Directing Holder, the Special Servicer, the Master Servicer or the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, as applicable, shall deposit in the Lower-Tier Distribution Account not later than the Servicer Remittance Date relating to the Anticipated Final Termination Date on which the final distribution on the Certificates is to occur, an amount in immediately available funds equal to the above-described purchase price (exclusive of any portion thereof payable to any Person other than the Certificateholders pursuant to Section 3.05(a) of this Agreement, which portion shall be deposited in the Collection Account). In addition, the Master Servicer shall transfer to the Certificate Administrator for deposit in the Lower-Tier Distribution Account all amounts required to be transferred thereto on the Servicer Remittance Date from the Collection Account, together with any other amounts on deposit in the Collection Account that would otherwise be held for future distribution. The Certificate Administrator shall deposit all amounts deposited into the Lower-Tier Distribution Account into the Upper-Tier Distribution Account for distribution in accordance

 -292-

 

with Section 4.01(a) and (b) of this Agreement. Upon confirmation that such final deposits have been made and upon direction from the Master Servicer, the Custodian shall, release or cause to be released to the Directing Holder, the Special Servicer, the Master Servicer or the Holder of a majority Percentage Interest in the Class R or Class LR Certificates, as applicable, the Mortgage File for the Trust Loan and shall execute all assignments, endorsements and other instruments furnished to it by such purchasing party as shall be necessary to effectuate transfer of the Trust Loan and all property acquired in respect of the Trust Loan remaining in the Trust Fund, and the Trust Fund shall be liquidated in accordance with this Article IX.

As a condition to the purchase of the assets of the Trust Fund pursuant to this Section 9.01(c), the purchaser shall deliver to the Trustee and the Certificate Administrator an Opinion of Counsel, which shall be at the expense of such purchaser, stating that such termination will be a “qualified liquidation” under Section 860F(a)(4)(A) of the Code. All costs and expenses incurred by any and all parties to this Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and other assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne by the party exercising its purchase rights hereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to this subsection (c).

Any such party effecting an early termination as described in this Section 9.01(c) may be an affiliate of a Trust Loan Seller.

(d)           If the Trust Fund has not been previously terminated pursuant to subsection (c) of this Section 9.01, the Certificate Administrator shall determine as soon as practicable the Distribution Date on which the Certificate Administrator reasonably anticipates, based on information with respect to the Trust Loan previously provided to it, that the final distribution will be made (i) to the Holders of outstanding Principal Balance Certificates, notwithstanding that such distribution may be insufficient to distribute in full the Certificate Balance of each Class of Principal Balance Certificates, together with amounts required to be distributed on such Distribution Date pursuant to Section 4.01(b) of this Agreement and (ii) if no such Classes of Principal Balance Certificates are then outstanding, the final distribution shall be made (i) to the Holders of the Class LR Certificates of any amount remaining in the Collection Account or the Lower-Tier Distribution Account, and (ii) to the Holders of the Class R Certificates of any amount remaining in the Upper-Tier Distribution Account.

(e)           Notice of any termination of the Trust Fund pursuant to this Section 9.01 shall be mailed by the Certificate Administrator to affected Certificateholders with a copy to the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor, the Trust Loan Sellers, the Companion Loan Holders and the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement) at their addresses shown in the Certificate Registrar not more than 30 days, and not less than ten (10) days, prior to the Anticipated Final Termination Date. The notice mailed by the Certificate Administrator to affected Certificateholders shall:

(i)           specify the Anticipated Final Termination Date on which the final distribution is anticipated to be made to Holders of Certificates of the Classes specified therein;

 -293-

 

(ii)           specify the amount of any such final distribution, if known; and

(iii)           state that the final distribution to Certificateholders will be made only upon presentation and surrender of Certificates at the office of the Paying Agent therein specified.

If the Trust Fund is not terminated on any Anticipated Final Termination Date for any reason, the Certificate Administrator shall promptly mail notice thereof to each affected Certificateholder.

(f)           Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall be set aside and held in trust for the account of the appropriate non-tendering Certificateholders, whereupon the Trust Fund shall terminate. If any Certificates as to which notice of the Termination Date has been given pursuant to this Section 9.01 shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one (1) year after the second notice any Certificate shall not have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining Certificateholders concerning surrender of their Certificates. The costs and expenses of maintaining such funds and of contacting Certificateholders shall be paid out of the assets which remain held. If within two (2) years after the second notice any Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator hereunder and the transfer of such amounts to a successor certificate administrator and (ii) the termination of the Trust Fund and distribution of such amounts, subject to applicable law, to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 9.01.

(g)           The Sole Certificateholder shall have the right to exchange all of its Regular Certificates, for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) by giving written notice to all the parties hereto no later than 60 days prior to the anticipated date of exchange; provided that such Sole Certificateholder compensates the Certificate Administrator for the amount of investment income the Certificate Administrator would have earned if the outstanding Certificate Balance of the then outstanding Principal Balance Certificates were on deposit with the Certificate Administrator as of the first day of the current calendar month and such Sole Certificateholder pays to the Master Servicer as additional compensation an amount equal to (i) the product of (A) the Prime Rate, (B) the aggregate Certificate Balance of the then-outstanding Principal Balance Certificates as of the day of the exchange and (C) three, divided by (ii) 360. In the event that the Sole Certificateholder elects to exchange all of its Certificates for the Trust Loan or REO Property, as applicable, remaining in the Trust Fund in accordance with the preceding sentence, such Sole Certificateholder, not later than the Business Day prior to the Distribution Date on which the final distribution on the Certificates is to occur, shall deposit in the Collection Account an amount in immediately available funds equal to all amounts due and owing

 -294-

 

to the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee hereunder through the date of the liquidation of the Trust Fund that may be withdrawn from the Collection Account, or an escrow account acceptable to the respective parties hereto, pursuant to Section 3.06(a) of this Agreement or that may be withdrawn from the Distribution Accounts pursuant to Section 3.06(f) and Section 3.06(g) of this Agreement, but only to the extent that such amounts are not already on deposit in the Collection Account. In addition, the Master Servicer shall transfer all amounts required to be transferred to the Certificate Administrator for deposit in the Lower-Tier Distribution Account on or Servicer Remittance Date from the Collection Account pursuant to Section 3.05 of this Agreement. Upon confirmation from the Certificate Administrator that such final deposits have been made and following the surrender of all its Certificates (other than the Class R and Class LR Certificates) on the final Distribution Date to the Certificate Administrator, the Custodian shall, upon receipt of a Request for Release from the Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage File for the Trust Loan or shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Trust Loan or REO Property, as applicable remaining in the Trust Fund, and the Trust Fund shall be liquidated in accordance with this Article IX. The Trust Loan or REO Property, as applicable, is deemed distributed to the Sole Certificateholder in liquidation of the Trust Fund pursuant to this Article IX. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the Lower-Tier REMIC for an amount equal to (a) if the Trust Loan is a Performing Loan, the remaining Certificate Balance of its Certificates (other than the Class R and Class LR Certificates), plus accrued, unpaid interest with respect thereto, or (b) if the Trust Loan is a Specially Serviced Loan or has been converted to REO Property, the fair market value thereof, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of the Lower-Tier Regular Interests and such Certificates.

(h)           The Certificate Administrator shall notify the Trustee, via e-mail, upon the termination of the Trust Fund pursuant to this Section 9.01.

ARTICLE X

MISCELLANEOUS PROVISIONS

Section 10.01 Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature,” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually

 -295-

 

executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

Section 10.02 Limitation on Rights of Certificateholders. The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust Fund, or entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust Fund, or otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.

No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust Fund, or the obligations of the parties hereto, and nothing herein set forth, or contained in the terms of the Certificates, shall be construed so as to constitute the Certificateholders from time to time as partners or members of an association; and no Certificateholder shall be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.

No Certificateholder or Companion Loan Holder, as applicable, shall have any right to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, the Trust Loan or the Certificates, unless such Certificateholder or Companion Loan Holder, as applicable, previously shall have given to the Trustee a written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Companion Loan Holders or Certificateholders representing Percentage Interests of at least 25% of each affected Class of Certificates, as applicable, have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and has or have offered to the Trustee such security or indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of security or indemnity, shall have failed or refused to institute any such action, suit or proceeding. It is understood and intended, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no Certificateholder of any Class shall have any right in any manner whatever by virtue of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Certificateholder, or to enforce any right under this Agreement, the Certificates, except in the manner herein or therein provided and for the equal, ratable and common benefit of all Holders of Certificates of such Class, as applicable. For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 -296-

 

Section 10.03 Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

Section 10.04    Waiver of Jury Trial; Consent to Jurisdiction. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

Section 10.05 Notices. Unless otherwise specified in this Agreement, all demands, notices and communications hereunder shall be in writing, shall be deemed to have been given upon receipt (except that notices to Holders of Class R and Class LR Certificates or Holders of any Class of Certificates no longer held through a Depository and instead held in registered,

 -297-

 

definitive form shall be deemed to have been given upon being sent by first-class mail, postage prepaid or by overnight courier) as follows:

If to the Trustee, to:

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee – CAMB 2021-CX2

with a copy to:

E-mail: cmbstrustee@wilmingtontrust.com

If to the Certificate Administrator, to:

Wells Fargo Bank, National Association
9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Corporate Trust Services – CAMB 2021-CX2

with a copy to:

Facsimile number: (410) 715-2380
E-mail: cts.cmbs.bond.admin@wellsfargo.com and
trustadministrationgroup@wellsfargo.com

 

If to the Custodian, to:

 

Wells Fargo Bank, N.A.

1055 10^th Avenue SE

Minneapolis, Minnesota 55414

Attention: Document Custody Group CAMB 2021-CX2

E-mail: cmbscustody@wellsfargo.com

 

in the case of surrender, transfer or exchange of the Class HRR Certificates:

Wells Fargo Bank, National Association
9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Risk Retention Custody (CMBS) – CAMB 2021-CX2

Email: riskretentioncustody@wellsfargo.com

 -298-

 

or in the case of surrender, transfer or exchange of any Certificate (other than the Class HRR Certificates) to:

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

If to the Depositor, to:

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Lainie Kaye

with a copy via e-mail to:

E-mail: cmbs.requests@db.com

If to the Master Servicer, to:

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael A. Tilden
Email: michael_a_tilden@keybank.com

with a copy to:

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

If to the Special Servicer, to:

Situs Holdings, LLC
2 Embarcadero Center, 8th Floor
San Francisco, California 94111
Attention: Stacey Ciarlanti
E-mail: staceyciarlanti@situsamc.com

 -299-

 

with a copy to:

Situs Group, LLC
5065 Westheimer Road, Suite 700E
Houston, Texas 77056
Attention: Legal Department
E-mail: legal@situsamc.com;

 

If to the Operating Advisor, to:

Park Bridge Lender Services LLC
600 Third Avenue, 40th Floor
New York, New York 10016
Attention: CAMB 2021-CX2-Surveillance Manager (with a copy sent
contemporaneously via email to cmbs.notices@parkbridgefinancial.com)

If to German American Capital Corporation, as a Trust Loan Seller, to:

German American Capital Corporation
1 Columbus Circle
New York, New York 10019
Attention: Lainie Kaye

with a copy via e-mail to:

E-mail: cmbs.requests@db.com

If to Bank of America, N.A., as a Trust Loan Seller, to:

 

Bank of America, N.A.
One Bryant Park
Mail Code: NY1-100-11-07

New York, New York 10036
Attention: Director of CMBS Securitization 

Email: leland.f.bunch@bofa.com

 

with a copy to:

 

Bank of America Legal Department

150 North College Street

Mail Code: NC1-028-24-02

Charlotte, North Carolina 28255

Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director

Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

 -300-

 

If to JPMorgan Chase Bank, National Association, as a Trust Loan Seller, to:

JPMorgan Chase Bank, National Association
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: SPG Syndicate

Email: ABS_Synd@jpmorgan.com

with a copy to:

JPMorgan Chase Bank, National Association
4 New York Plaza, 21st Floor
New York, New York 10004
Attention: SPG Legal

Email: US_CMBS_Notice@jpmorgan.com

If to 3650 Cal Bridge Lending, LLC, as a Trust Loan Seller, to:

3650 Cal Bridge Lending, LLC
2977 McFarlane Road, Suite 300
Miami, Florida 33133

with copies via email to:

Jonathan Roth
Email: jroth@3650reit.com

and

Mark A. Jefferis, General Counsel and Chief Compliance Officer
Email: mjefferis@3650reit.com

If to Deutsche Bank Securities Inc., as an Initial Purchaser, to:

Deutsche Bank Securities Inc.
Commercial Mortgage-Backed Securities
1 Columbus Circle
New York, New York 10019
Attention: Lainie Kaye

If to BofA Securities, Inc., as an Initial Purchaser, to:

 

Bank of America, N.A.
One Bryant Park
Mail Code: NY1-100-11-07

New York, New York 10036
Attention: Director of CMBS Securitization

Email: leland.f.bunch@bofa.com

 

 -301-

 

 

with a copy to:

 

Bank of America Legal Department

150 North College Street

Mail Code: NC1-028-24-02

Charlotte, North Carolina 28255

Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director

Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

If to J.P. Morgan Securities LLC, as an Initial Purchaser, to:

J.P. Morgan Securities LLC
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: SPG Syndicate

Email: ABS_Synd@jpmorgan.com

with a copy to:

J.P. Morgan Securities LLC
4 New York Plaza, 21st Floor
New York, New York 10004
Attention: SPG Legal

Email: US_CMBS_Notice@jpmorgan.com

If to any Certificateholder, to:

the address set forth in the Certificate Register

If to the 17g-5 Information Provider, electronically to:

17g5informationprovider@wellsfargo.com
(in an electronic format readable and uploadable (that is not locked or corrupted) on the 17g-5 Information Provider’s system, specifically with a subject reference of “CAMB 2021-CX2” and an identification of the type of information being provided in the body of such electronic mail)

or, in the case of the parties to this Agreement, to such other address as such party shall specify by written notice to the other parties hereto.

Section 10.06 Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then, to the extent permitted by applicable law, such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this

 -302-

 

Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

Section 10.07    Notice to the Depositor and Each Rating Agency. (a)  The Certificate Administrator shall promptly provide notice to the Depositor, the Initial Purchasers, the Trustee, and the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website), with respect to each of the following of which a Responsible Officer of the Certificate Administrator has actual knowledge and to the extent the below information has not already been provided to the Depositor, the Initial Purchasers, the Trustee, and the 17g-5 Information Provider pursuant to the terms of this Agreement:

(i)           any material change or amendment to this Agreement;

(ii)           the occurrence of any Servicer Termination Event that has not been cured;

(iii)           the merger, consolidation, resignation or termination of the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor or the Trustee; and

(iv)           the repurchase of Trust Loan pursuant to Section 2.03(e) of this Agreement.

(b)           The Certificate Administrator shall promptly furnish to the Depositor, the Initial Purchasers, and the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website):

(i)           notice of the final payment to any Class of Certificateholders;

(ii)           notice of any change in the location of the Distribution Accounts; and

(iii)           each report to Certificateholders described in Section 4.02 and Section 3.13 of this Agreement.

(c)           The Master Servicer shall promptly furnish to the 17g-5 Information Provider (which shall promptly post such materials to the 17g-5 Information Provider’s Website):

(i)           Upon request from the Rating Agencies, a copy of each rent roll and each operating and other financial statement and occupancy reports, to the extent such information is required to be delivered under the Trust Loan, in each case to the extent collected pursuant to Section 3.03 of this Agreement;

(ii)           notice of any change in the location of the Collection Account,

(iii)           a copy of any notice with respect to a breach of a representation or warranty with respect to the Trust Loan;

(iv)           any event that would result in the voluntary or involuntary termination of any insurance of the accounts of the Master Servicer;

 -303-

 

(v)           any change in the lien priority of the Trust Loan;

(vi)           any material damage to the Mortgaged Properties;

(vii)           any amendment to any intercreditor agreement or the Co-Lender Agreement; and

(viii)           any amendment, modification, consent or waiver to or of any provision of the Trust Loan (including any modification to the related Loan Documents that remove a requirement for a No Downgrade Confirmation).

(d)           Any party required to deliver any notice or information pursuant to the terms of this Agreement to the Rating Agencies shall deliver such written notice of the events or information specified in Section 3.14(d) to the Rating Agencies at the address listed below, promptly following the occurrence thereof. The Master Servicer or Special Servicer, as applicable, and the Certificate Administrator and Trustee also shall furnish such other information regarding the Trust Fund as may be reasonably requested by the Rating Agencies to the extent such party has or can obtain such information without unreasonable effort or expense; provided, however, that such other information is first provided to the 17g-5 Information Provider in accordance with the procedures set forth in Section 3.14(d). Notwithstanding the foregoing, the failure to deliver such notices or copies shall not constitute a Servicer Termination Event, as the case may be, under this Agreement. Any confirmation of the rating by the Rating Agencies required hereunder shall be in writing.

Notices to each Rating Agency shall be addressed as follows:

 

DBRS, Inc.
22 West Washington Street

Chicago, Illinois 60602

Attention: CMBS Surveillance

Email: CMBS.surveillance@morningstar.com

 

Fitch Ratings, Inc.
300 West 57th Street
New York, NY 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
Email: info.cmbs@fitchratings.com

or in each case to such other address as a Rating Agency shall specify by written notice to the parties hereto.

(e)           In connection with the delivery by the Master Servicer or the Special Servicer to the Rule 17g-5 Information Provider of any information, report, notice or document for posting to the Rule 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify the Master Servicer or Special Servicer, as applicable, of when such information, report, notice or document has been posted to the 17g-5 Information Provider’s Website. The Master

 -304-

 

Servicer or Special Servicer, as applicable, may, but is not obligated to, send such information, report, notice or other document to the applicable Rating Agency so long as such information, report, notice or document was (i) previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided to the 17g-5 Information Provider.

Section 10.08    Amendment. This Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor without the consent of any of the Certificateholders or the Companion Loan Holders, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions herein to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or this Agreement or to correct or supplement any provisions herein or therein which may be defective or inconsistent with any other provisions herein or therein; (iii) to amend any provision hereof to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or the Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of this Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal, in each case, subject to the consent of the Retaining Sponsor, not to be unreasonably withheld; and (vi) to modify the procedures herein relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor, the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent; (b) reduce the consent or consultation rights or the right to receive information under this Agreement of the Directing Holder without the consent of the Directing Holder or (c) adversely affect in any material respect the interests of any Certificateholders or Companion Loan Holders not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider (which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(c) of this Agreement). In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC,

 -305-

 

affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

This Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-⅔% of the Percentage Interests of each Class of Certificates affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) and any Companion Loan Holder affected thereby for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

(i)           reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby or which are required to be distributed to the Companion Loan Holders without the consent of the Companion Loan Holders;

(ii)           alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of each Companion Loan Holder (if affected thereby);

(iii)           change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under this Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of each Companion Loan Holder (if affected thereby); or

(iv)           amend any section hereof which relates to the amendment of this Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of each Companion Loan Holder (if affected thereby).

Further, the Depositor, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend this Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any

 -306-

 

Certificateholder or Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

In the event that neither the Depositor nor any successor thereto, if any, is in existence, any amendment under this Section 10.08 shall be effective with the consent of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer, in writing, and to the extent required by this Section 10.08, the Certificateholders and the Companion Loan Holders. Promptly after the execution of any amendment, the requesting party shall forward to the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer, and the Certificate Administrator shall furnish a copy of such amendment to each Certificateholder, the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement).

It shall not be necessary for the consent of Certificateholders under this Section 10.08 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The method of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders and the Companion Loan Holders shall be subject to such reasonable regulations as the Trustee may prescribe; provided, however, that such method shall always be by affirmation and in writing.

Notwithstanding any contrary provision of this Agreement, no amendment shall be made to this Agreement or any Custodial Agreement unless the Trustee and the Certificate Administrator have received an Opinion of Counsel, at the expense of the party requesting such amendment (or, if such amendment is required by any Rating Agency to maintain the rating issued by it or requested by the Trustee for any purpose described in clause (i), (ii) or (iii) of first sentence of this Section, then at the expense of the Trust Fund) confirming that such amendment is authorized or permitted by this Agreement and that all conditions precedent with respect thereto have been satisfied, respectively, hereunder and such amendment will not cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or affect the status of the Grantor Trust as a grantor trust at any time that any Certificates are outstanding, or cause a tax to be imposed on the Trust Fund, the Grantor Trust or either Trust REMIC.

Prior to the execution of any amendment to this Agreement or any Custodial Agreement, the Trustee, the Certificate Administrator, the Operating Advisor, the Special Servicer and the Master Servicer may request and shall be entitled to rely conclusively upon an Opinion of Counsel and an Officer’s Certificate, at the expense of the party requesting such amendment (or, if such amendment is required by any Rating Agency to maintain the rating issued by it or requested by the Trustee for any purpose described in clause (i), (ii) or (iii) of the first sentence of this Section 10.08 (which do not modify or otherwise relate solely to the obligations, duties or rights of the Trustee or the Certificate Administrator), then at the expense of the Trust Fund) stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent with respect thereto have been satisfied. The Trustee, the Certificate Administrator or the Operating Advisor may, but shall not be obligated to, enter into any such amendment which affects the Trustee’s, the Certificate Administrator’s or the Operating Advisor’s own rights, duties or immunities under this Agreement.

 -307-

 

Notwithstanding any contrary provision contained in this Agreement, no amendment shall be made to this Agreement (i) that adversely affects the rights, including (without limitation) as a third-party beneficiary hereunder, and/or obligations of the Trust Loan Sellers (including, without limitation, under any Trust Loan Purchase Agreement) or the Initial Purchasers without the consent of the Trust Loan Sellers or the Initial Purchasers, as applicable or (ii) that adversely affects the rights, including (without limitation) as a third-party beneficiary hereunder, and/or obligations of any Companion Loan Holder without the consent of such Companion Loan Holder.

Promptly after the execution of any amendment to this Agreement, the Certificate Administrator shall post a copy of the same to the Certificate Administrator’s Website, deliver a copy of the same to the 17g-5 Information Provider which shall post a copy of the same on the 17g-5 Information Provider’s Website pursuant to Section 3.14(d) of this Agreement, and thereafter, the Certificate Administrator shall furnish a copy of such amendment to each Certificateholder, the Operating Advisor, the Companion Loan Holders, the Depositor, the Master Servicer, the Special Servicer, and the Initial Purchasers.

Section 10.09 Confirmation of Intent. It is the express intent of the parties hereto that the conveyance of the Trust Fund (including the Trust Loan) by the Depositor to the Trustee on behalf of Certificateholders as contemplated by this Agreement and the sale by the Depositor of the Certificates be, and be treated for all purposes as, a sale by the Depositor of the undivided portion of the beneficial interest in the Trust Fund represented by the Certificates. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Trust Fund by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, the Trust Fund is held to continue to be property of the Depositor then (a) this Agreement shall also be deemed to be a security agreement under applicable law; (b) the transfer of the Trust Fund provided for herein shall be deemed to be a grant by the Depositor to the Trustee on behalf of Certificateholders of a first priority security interest in all of the Depositor’s right, title and interest in and to the Trust Fund and all amounts payable to the holders of the Trust Loan in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Collection Account, the Distribution Accounts, the Interest Reserve Account and any REO Account whether in the form of cash, instruments, securities or other property; (c) the possession by the Trustee (or the Custodian on its behalf) of Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the New York Uniform Commercial Code; and (d) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. Any assignment of the interest of the Trustee pursuant to any provision hereof shall also be deemed to be an assignment of any security interest created hereby. The Depositor shall, and upon the request and direction of the Master Servicer, the Trustee shall, to the extent consistent with this Agreement (and at the expense of the Trust Fund), take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Trust Loan, such security interest would be deemed to be a

 -308-

 

perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. It is the intent of the parties that such a security interest would be effective whether any of the Certificates are sold, pledged or assigned.

Section 10.10 No Intended Third-Party Beneficiaries. Except as specified in Section 10.12 of this Agreement, no Person other than a party to this Agreement, the Trust Loan Sellers, the Initial Purchasers or any Certificateholder shall have any rights with respect to the enforcement of any of the rights or obligations hereunder. Without limiting the foregoing, the parties to this Agreement specifically state that no Borrower, Manager or other party to the Trust Loan is an intended third-party beneficiary of this Agreement.

Section 10.11 Entire Agreement. This Agreement, together with the Co-Lender Agreement, contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understanding, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersedes any course of performance or usage of the trade inconsistent with any of the terms hereof.

Section 10.12    Third Party Beneficiaries. Each of the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicer and the Special Servicer acknowledge that (i) each Trust Loan Seller and each Initial Purchaser is a third party beneficiary with respect to Section 8.05(h) of this Agreement, the obligations of any such party to deliver information to the 17g-5 Information Provider hereunder and the obligations of the 17g-5 Information Provider to post information to the 17g-5 Information Provider’s Website and the express obligations of any party hereto to deliver documents, notices, information or funds to each of the Trust Loan Seller, (ii) each Trust Loan Seller is a third party beneficiary in respect of the rights afforded it under this Agreement and may directly enforce such rights, (iii) each Initial Purchaser is a third party beneficiary with respect to its rights to receive any notices, documents, certifications and/or information hereunder and its rights under Section 10.08 of this Agreement, (iv) each holder of a Companion Loan and any related Other Depositor is an intended third party beneficiary in respect of the rights afforded it under this Agreement and may directly (or, in the case of the holder of a Companion Loan, the related Other Servicer may) enforce such rights, and (v) each of the Companion Loan Service Providers under an applicable Other Pooling and Servicing Agreement is an intended third party beneficiary under this Agreement with respect to any provision herein expressly relating to compensation, reimbursement or indemnification of such Companion Loan Service Provider and the provisions regarding the coordination of Advances.

ARTICLE XI

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

Section 11.01    Intent of the Parties; Reasonableness. The parties hereto acknowledge and agree that the purpose of Article XI of this Agreement is, among other things, to facilitate compliance by any Other Depositor with the provisions of Regulation AB and the related rules and regulations of the Commission. Except as expressly required by Section 11.07, Section 11.08 and Section 11.09, the Depositor shall not, and no Other Depositor may, exercise its rights

 -309-

 

to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than compliance with the Act, the Exchange Act and the Sarbanes-Oxley Act. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time due to interpretive guidance provided by the Commission or its staff, and agree to comply with reasonable requests made by the Depositor, or any Other Depositor, in good faith for delivery of information under these provisions on the basis of such evolving interpretations of Regulation AB. In connection with the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, and any Companion Loan Securities, each of the parties to this Agreement shall cooperate fully with the Depositor, the Certificate Administrator, any Other Depositor and any Other Exchange Act Reporting Party, as applicable, to deliver to the Depositor or Other Depositor, as applicable (including any of its assignees or designees), any and all statements, reports, certifications, records and any other information in its possession or reasonably available to it and necessary in the reasonable good faith determination of the Depositor, the Certificate Administrator, any Other Depositor or any Other Exchange Act Reporting Party, as applicable, to permit any Other Depositor to comply with the provisions of Regulation AB, together with such disclosures relating to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian, as applicable, and any Sub-Servicer, or the servicing of the Whole Loan, reasonably believed by the Depositor or any Other Depositor, as applicable, in good faith to be necessary in order to effect such compliance. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 11.01, but in any event shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor or any Other Depositor, as applicable, to satisfy any related filing requirements. For purposes of this Article XI, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.

Section 11.02    Succession; Sub-Servicers; Subcontractors. (a)  For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act (in addition to any requirements contained in Section 11.07 of this Agreement), in connection with the succession to the Master Servicer and Special Servicer or any Sub-Servicer as servicer or sub-servicer (to the extent such Sub-Servicer is a “servicer” meeting the criteria contemplated by Item 1108(a)(2) of Regulation AB) under this Agreement by any Person (i) into which the Master Servicer and Special Servicer or such Sub-Servicer may be merged or consolidated, or (ii) which may be appointed as a successor to the Master Servicer and Special Servicer or any such Sub-Servicer, the Master Servicer or Special Servicer, as applicable (depending on whether such succession involves it or one of its Sub-Servicers), or (iii) that is appointed as a successor Master Servicer or successor Special Servicer pursuant to Section 3.22 or Section 7.02, the Master Servicer, the Special Servicer or any Servicing Function Participant (with respect to the foregoing clauses (i) and (ii)) or the successor Master Servicer or the successor Special Servicer (with respect to the foregoing clause (iii)) shall, as a condition to such succession and at the reasonable expense of the same party or parties required to pay the costs and expenses relating to such succession pursuant to this Agreement, provide to the Depositor and any Other Depositor as to which the Companion Loan is affected, at least five (5) Business Days prior to the effective date of such succession or appointment as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, and otherwise no later than one (1) Business Day after such effective date of succession, (x) written notice to the Depositor and each

 -310-

 

such Other Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to each such Other Depositor, all information relating to such successor servicer reasonably requested by any such Other Depositor in order to comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

(b)           For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each of the Master Servicer, the Special Servicer, any Sub-Servicer, the Certificate Administrator, the Trustee and the Custodian (each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian and each Sub-Servicer, for purposes of this Section 11.02(b) and Section 11.02(c), a “Servicing Party”) is permitted to utilize one or more Subcontractors to perform certain of its obligations hereunder. Such Servicing Party shall promptly upon request provide to any Other Depositor as to which the Companion Loan is affected, a written description (in form and substance satisfactory to each such Other Depositor) of the role and function of each Subcontractor that is a Servicing Function Participant utilized by such Servicing Party during the preceding calendar year, specifying (i) the identity of such Subcontractor, and (ii) which elements of the Servicing Criteria will be addressed in assessments of compliance provided by each such Subcontractor. Each Servicing Party shall cause any Subcontractor utilized by such Servicing Party that is determined to be a Servicing Function Participant to comply with the provisions of Section 11.08 and Section 11.09 of this Agreement to the same extent as if such Subcontractor were such Servicing Party. Such Servicing Party shall obtain from each such Subcontractor (or, in the case of each Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to obtain from such Sub-Servicer) and deliver to the applicable Persons any assessment of compliance report and related accountant’s attestation required to be delivered by such Subcontractor under Section 11.08 and Section 11.09 of this Agreement, in each case, as and when required to be delivered.

(c)           For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, notwithstanding the foregoing, if a Servicing Party engages a Subcontractor in connection with the performance of any of its duties under this Agreement, such Servicing Party shall be responsible for determining whether such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and whether such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicing Party determines, pursuant to the preceding sentence, that such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a Sub-Servicer for purposes of this Agreement, and the engagement of such Sub-Servicer shall not be effective unless and until notice is given to the Depositor and the Certificate Administrator, as well as any Other Depositor as to which the Companion Loan is affected, of any such Sub-Servicer and Subservicing Agreement. No Subservicing Agreement (other than such agreements relating to a Sub-Servicer set forth in Exhibit AA) shall be effective until five (5) Business Days after such written notice is received by the Depositor, the Certificate Administrator and each such Other Depositor. Such notice shall contain all information reasonably necessary, and in such form as may be necessary, to enable each Other Exchange Act Reporting Party as to which the Companion Loan is affected, to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to the related Other Pooling and Servicing Agreement or otherwise (if such reports under the Exchange Act are required to be filed under the Exchange Act).

 -311-

 

(d)           For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, in connection with the succession to the Trustee or Certificate Administrator under this Agreement by any Person (i) into which the Trustee or Certificate Administrator may be merged or consolidated, or (ii) which may be appointed as a successor to the Trustee or Certificate Administrator, the Trustee or Certificate Administrator, as applicable, shall notify the Depositor and each Other Depositor, at least ten (10) Business Days prior to the effective date of such succession or appointment (or if such prior notice would be violative of applicable law or any applicable confidentiality agreement, no later than the time required under Section 11.06 of this Agreement) and shall furnish pursuant to Section 11.06 of this Agreement to each Other Depositor in writing and in form and substance reasonably satisfactory to the Depositor and each Other Depositor, all information reasonably necessary for each Other Exchange Act Reporting Party to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to the related Other Pooling and Servicing Agreement or otherwise (if such reports under the Exchange Act are required to be filed under the Exchange Act).

Section 11.03    Other Securitization Trust’s Filing Obligations. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian shall (and shall cause (or, in the case of each Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause) each Additional Servicer and Servicing Function Participant utilized thereby to) reasonably cooperate with each Other Depositor in connection with the satisfaction of each Other Securitization Trust’s reporting requirements under the Exchange Act.

Section 11.04    Form 10-D Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, within five (5) calendar days after the related Distribution Date (using commercially reasonable efforts), (i) the parties as set forth on Exhibit W to this Agreement, shall be required to provide to each Other Exchange Act Reporting Party and each Other Depositor to which the particular Additional Form 10-D Disclosure is relevant for Exchange Act reporting purposes, to the extent a Servicing Officer or Responsible Officer thereof has knowledge thereof (other than information required by Item 1117 of Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be, or any lawyer in the in-house legal department of such party), in EDGAR-compatible format (to the extent available to such party in such format), or in such other format as otherwise agreed upon by each such Other Exchange Act Reporting Party, each such Other Depositor and such parties, the form and substance of the Additional Form 10-D Disclosure, if applicable, and (ii) the parties listed on Exhibit W to this Agreement shall include with such Additional Form 10-D Disclosure application to such party and shall cause each Sub-Servicer (or, in the case of each Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to provide, and if received, include, an Additional Disclosure Notification in the form attached as Exhibit Z to this Agreement. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit W to this Agreement of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information.

 -312-

 

Section 11.05    Form 10-K Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, by March 1^st, commencing in March 2022, (i) the parties listed on Exhibit X to this Agreement shall be required to provide (and with respect to any Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to provide) to each Other Exchange Act Reporting Party and each Other Depositor to which the particular Additional Form 10-K Disclosure is relevant for Exchange Act Reporting purposes, to the extent a Servicing Officer or a Responsible Officer, as the case may be, thereof has actual knowledge (other than information required by Item 1117 of Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be, or any lawyer in the in house legal department of such party), in EDGAR compatible format (to the extent available to such party in such format) or in such other format as otherwise agreed upon by each such Other Exchange Act Reporting Party, each such Other Depositor and such providing parties, the form and substance of any Additional Form 10-K Disclosure described on Exhibit X to this Agreement applicable to such party, and (ii) the parties listed on Exhibit X to this Agreement shall include with such Additional Form 10-K Disclosure applicable to such party and shall cause each Sub-Servicer (or, in the case of each Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to provide, and if received, include, an Additional Disclosure Notification in the form attached as Exhibit Z to this Agreement. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit X to this Agreement of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure information.

Section 11.06    Form 8-K Disclosure. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, to the extent a Servicing Officer or Responsible Officer thereof has actual knowledge of such event (other than Item 1117 of Regulation AB as to such party which shall be reported if actually known by any Servicing Officer or Responsible Officer, as the case may be, or any lawyer in the in-house legal department of such party), within one Business Day after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”) (using commercially reasonable efforts), but in no event later than the end of business (New York City time) on the second Business Day after the occurrence of a Reportable Event, (i) the parties set forth on Exhibit Y to this Agreement shall be required to provide (and (i) with respect to any Servicing Function Participant of such party that is a Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause such Servicing Function Participant to provide, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to provide) to each Other Depositor and each Other Exchange Act Reporting Party to which the particular Form 8-K Disclosure Information is relevant for Exchange Act reporting purposes, in EDGAR-compatible format (to the extent available to such party in such format) or in such other format as otherwise agreed upon by each such Other Depositor, each such Other Exchange Act Reporting Party and such providing parties, any Form 8-K Disclosure Information described on Exhibit Y to this Agreement as applicable to such party, if applicable, and (ii) the parties listed on Exhibit Y to this Agreement shall include with such Form 8-K Disclosure Information applicable to such party and shall cause each Sub-Servicer (or, in the case of each Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause such Sub-Servicer) and Subcontractor of such party to the extent required under Regulation AB to

 -313-

 

provide, and if received, include, an Additional Disclosure Notification in the form attached hereto as Exhibit Z. The Certificate Administrator has no duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit Y of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information.

Section 11.07    Annual Compliance Statements. On or before March 1 of each year, commencing in 2022, each of the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of the Whole Loan) and, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Custodian, any Additional Servicer and each Servicing Function Participant, each at its own expense, shall furnish (and each such party, (i) with respect to each Servicing Function Participant that is a Sub-Servicer set forth on Exhibit AA with which it has entered into a servicing relationship with respect to the Whole Loan, shall use commercially reasonable efforts to cause such Servicing Function Participant to furnish, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to furnish) (each such Servicing Function Participant and each of the Master Servicer, Special Servicer, the Certificate Administrator, the Trustee and the Custodian, a “Certifying Servicer”) to the Certificate Administrator, the Operating Advisor (with respect to the Special Servicer only) and the 17g-5 Information Provider (who shall post it to the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, as applicable), the Trustee, the Depositor and the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party), an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Person’s activities during the preceding calendar year or portion thereof and of such Person’s performance under this Agreement or the applicable sub-servicing agreement, as applicable, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Person has fulfilled all its obligations under this Agreement or the applicable sub-servicing agreement, as applicable, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, promptly after receipt of each such Officer’s Certificate, the Depositor (and, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party) may review each such Officer’s Certificate and, if applicable, consult with the Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer, respectively, or any related Servicing Function Participant with which the Master Servicer or the Special Servicer, as applicable, has entered into a servicing relationship with respect to the Trust Loan or the Companion Loan in the fulfillment of any Certifying Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement. The obligations of each Certifying Servicer under this Section apply to each such Certifying Servicer that serviced the Trust Loan or a Companion Loan during the applicable period, whether or not the Certifying Servicer is acting in such capacity at the time such Officer’s Certificate is required to be delivered. Copies of all Officer’s Certificates delivered pursuant to this Section 11.07 shall be made available to any Privileged Person by the Certificate Administrator by posting such Compliance Report to the Certificate Administrator’s Website. Notwithstanding the foregoing, the Trustee shall not be required to deliver an annual

 -314-

 

compliance statement with respect to any period during which there was no Relevant Servicing Criteria applicable to it.

Section 11.08    Annual Reports on Assessment of Compliance with Servicing Criteria. (a) On or before March 1 of each year, commencing in 2022, the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of the Whole Loan) and, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee and the Custodian, each at its own expense, shall furnish (and each such party, (i) with respect to each Servicing Function Participant that is a Sub-Servicer set forth on Exhibit AA with which it has entered into a servicing relationship with respect to the Whole Loan, shall use commercially reasonable efforts to cause such Servicing Function Participant to furnish, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to furnish) (each Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian and any Servicing Function Participant, as the case may be, a “Reporting Servicer”) to the Certificate Administrator, the Operating Advisor (with respect to the Special Servicer only) and the 17g-5 Information Provider (who shall promptly post it to the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website, as applicable), the Trustee, the Depositor and the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party), a report on an assessment of compliance with the Applicable Servicing Criteria that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Applicable Servicing Criteria, (B) a statement that, to the best of such Reporting Servicer’s knowledge, such Reporting Servicer used the Servicing Criteria to assess compliance with the Applicable Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Applicable Servicing Criteria as of the end of and for the preceding calendar year, including, if there has been any material instance of noncompliance with the Applicable Servicing Criteria, a discussion of each such failure and the nature and status thereof and (D) a statement that a registered public accounting firm that is a member of the American Institute of Certified Public Accountants has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Applicable Servicing Criteria as of and for such period. Copies of all compliance reports delivered pursuant to this Section 11.08 shall be provided to any Certificateholder, upon the written request therefor, by the Certificate Administrator. Notwithstanding the foregoing, the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it.

Each such report shall be addressed to the Depositor and each Other Depositor (if addressed) and signed by an authorized officer of the applicable company, and shall address each of the Applicable Servicing Criteria. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, promptly after receipt of each such report, the Depositor and each Other Depositor may review each such report and, if applicable, consult with the each Reporting Servicer as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria.

 -315-

 

(b)           On the Closing Date, the Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee each acknowledge and agree that Schedule I to this Agreement sets forth the Relevant Servicing Criteria for such party.

(c)           No later than 30 days after the end of each fiscal year for the Trust, the Master Servicer, the Special Servicer and, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee and the Custodian shall notify the Certificate Administrator, the Depositor, each Other Exchange Act Reporting Party and each Other Depositor as to the name of each Servicing Function Participant utilized by it, in each case, and each such notice will specify what specific Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant. When the Master Servicer, the Special Servicer and, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee and the Custodian submit their assessments pursuant to Section 11.08(a) of this Agreement, such parties, as applicable, will also at such time include the assessment (and related attestation pursuant to Section 11.09) of each Servicing Function Participant engaged by it. The fiscal year for the Trust shall be January 1 through and including December 31 of each calendar year.

(d)           In the event the Master Servicer, the Special Servicer or, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee or the Custodian is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each such party shall cause (or, if the Servicing Function Participant is a Sub-Servicer set forth on Exhibit AA, shall use commercially reasonable efforts to cause) any Servicing Function Participant engaged by it to provide (and the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian shall, with respect to any Servicing Function Participant that resigns or is terminated under any applicable servicing agreement, cause such Servicing Function Participant to provide) an annual assessment of compliance pursuant to this Section 11.08, coupled with an attestation as required in Section 11.09 in respect of the period of time that the Master Servicer, the Special Servicer or, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee or the Custodian was subject to this Agreement or the period of time that the Servicing Function Participant was subject to such other servicing agreement.

Section 11.09    Annual Independent Public Accountants’ Servicing Report. On or before March 1 of each year, commencing in 2022, the Master Servicer, the Special Servicer and, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee and the Custodian, each at its own expense, shall cause (and each such party, (i) with respect to each Servicing Function Participant that is a Sub-Servicer set forth on Exhibit AA with which it has entered into a servicing relationship with respect to the Whole Loan, shall use commercially reasonable efforts to cause such Servicing Function Participant to cause, and (ii) with respect to any other Servicing Function Participant of such party (other than any party to this Agreement), shall cause such Servicing Function Participant to cause) a registered public accounting firm (which may also render other services to the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian or the applicable Servicing Function Participant, as the case may be) and that is a member of the

 -316-

 

American Institute of Certified Public Accountants to furnish a report to the Certificate Administrator (who shall post it to the Certificate Administrator’s Website), to the Operating Advisor (with respect to the Special Servicer only), the Depositor, the Companion Loan Holders (or, in the case of a Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party) and the 17g-5 Information Provider (who shall post it to the 17g-5 Information Provider’s Website), to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assessment from such Reporting Servicer of its compliance with the Applicable Servicing Criteria and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the Public Company Accounting Oversight Board, it is expressing an opinion as to whether such Reporting Servicer’s assessment of compliance with the Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such party’s assessment of compliance with the Applicable Servicing Criteria. In the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each accountant’s attestation report required hereunder shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. Copies of all statements delivered pursuant to this Section 11.09 shall be made available to any Privileged Person by the Certificate Administrator posting such statement on the Certificate Administrator’s Website pursuant to Section 8.14(b). Notwithstanding the foregoing, the Trustee shall not be required to deliver an annual independent public accountants’ servicing report with respect to any period during which there was no Relevant Servicing Criteria applicable to it.

For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, promptly after receipt of such report from the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian or any Servicing Function Participant, the Depositor and each Other Depositor may review the report and, if applicable, consult with the Master Servicer, the Special Servicer or, for so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator as to the nature of any defaults by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian or any Servicing Function Participant with which it has entered into a servicing relationship with respect to the Trust Loan or the Companion Loan, as the case may be, in the fulfillment of any of the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Trustee’s, the Custodian’s or the applicable Servicing Function Participants’ obligations hereunder or under the applicable sub-servicing agreement.

Section 11.10    Significant Obligor. With respect to a Companion Loan that an applicable Other Depositor has notified the Master Servicer in writing that any Mortgaged Property is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) with respect to an Other Securitization Trust that includes such Companion Loan and of the distribution date in such Other Pooling and Servicing Agreement, the Master Servicer shall, solely to the extent the Master Servicer is in receipt of the updated financial statements of such “significant obligor” for any calendar quarter (other than the fourth calendar quarter of any calendar year) (beginning with the first calendar quarter following receipt of such notice from the Other Depositor) or the updated financial statements of such “significant obligor” for any calendar year (beginning with the first calendar year following receipt of such notice from the Other Depositor), as applicable, from the

 -317-

 

Borrowers or the Special Servicer, as applicable, deliver to the Other Certificate Administrator on or prior to the day that occurs two Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seven Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs 12 or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or 17 or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of such “significant obligor”, together with the net operating income of such significant obligor for the applicable period as calculated by the Master Servicer in accordance with the CREFC^® guidelines and (B) if such financial statement receipt occurs less than 12 Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than 17 Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of such “significant obligor”, together with the net operating income for the applicable period as reported by the Borrowers in such financial statements.

If the Master Servicer does not receive financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten Business Days after the date such financial information is required to be delivered under the Loan Documents, the Master Servicer shall notify the Other Depositor with respect to such Other Securitization Trust that includes such related Companion Loan (and shall cause each applicable sub-servicing agreement to require any related Sub-Servicer to notify such Other Depositor) that it has not received them. The Master Servicer shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements of the Borrowers under the Loan Documents.

The Master Servicer shall (and shall cause each applicable sub-servicing agreement to require any related Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the Borrowers to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed with respect to the Other Securitization Trust, shall forward an Officer’s Certificate evidencing its attempts to obtain this information to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization Trust. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.

Section 11.11    Sarbanes-Oxley Backup Certification. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the Certificate Administrator, the Trustee, the Custodian, the Master Servicer and the Special Servicer shall provide (and with respect to any other Servicing Function Participant of such party, shall cause such Servicing Function Participant to provide) to the Person who signs the Sarbanes-Oxley Certification with respect to such Other Securitization Trust (the “Certifying Person”) no later than March 15 of the year following the year to which the Form 10-K of such Other Securitization Trust relates or, if March 15 is not a Business Day, on the immediately following Business Day, a certification in the form attached to this Agreement as Exhibit BB, on which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely. In the event any Reporting Servicer is terminated or resigns pursuant to the terms of this

 -318-

 

Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a certification to the Certifying Person pursuant to this Section 11.11 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be. Notwithstanding the foregoing, the Trustee shall not be required to deliver such certification with respect to any period during which there was no Relevant Servicing Criteria applicable to it.

Notwithstanding the foregoing, nothing in this Section 11.11 shall require any Reporting Servicer (i) to certify or verify the accurateness or completeness of any information provided to such Reporting Servicer by third parties (other than a Sub-Servicer, Additional Servicer or any other third party retained by it that is not a Sub-Servicer listed on Exhibit AA or a Sub-Servicer appointed pursuant to Section 3.01(c)), (ii) to certify information other than to such Reporting Servicer’s knowledge and in accordance with such Reporting Servicer’s responsibilities hereunder or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Reporting Servicer have been completed except as they have been left blank on their face.

Section 11.12    Indemnification. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each of the Master Servicer, the Special Servicer, the Custodian (if the Custodian is a separate entity from the Certificate Administrator), the Certificate Administrator and the Trustee shall indemnify and hold harmless each Certification Party, the Depositor (and any Other Depositor related to an Other Securitization Trust that includes such Companion Loan), their respective directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of (i) the failure to perform its obligations to the Depositor (or any Other Depositor related to an Other Securitization Trust that includes such Companion Loan) or Certificate Administrator (or any Other Trustee related to an Other Securitization Trust that includes such Companion Loan) under this Article XI by the time required after giving effect to any applicable grace period or cure period, (ii) any untrue statement or alleged untrue statement of a material fact contained in any information (x) regarding such party or any Servicing Function Participant, Additional Servicer or subcontractor engaged by it (other than a Trust Loan Seller Sub-Servicer), (y) prepared by any such party described in clause (x) or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party in connection with the performance of such party’s obligations described in this Article XI, or the omission or alleged omission to state in any such information a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the applicable party shall be entitled to participate in any action arising out of the foregoing and the Depositor shall consult with such party with respect to any litigation or audit strategy, as applicable, in connection with the foregoing and any potential settlement terms related thereto, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Trust Loan Seller Sub-Servicer) to perform its obligations to the Depositor (or any Other Depositor related to an Other Securitization Trust that includes such Companion Loan) or Certificate Administrator (or any Other Trustee related to an Other Securitization Trust that includes such Companion Loan)

 -319-

 

under this Article XI by the time required after giving effect to any applicable grace period and cure period or (iv) any Deficient Exchange Act Deliverable.

In addition, each of the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement) with the Depositor or the Other Depositor as necessary for the Depositor or the Other Depositor to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).

In connection with comments provided to the Depositor or any Other Depositor from the Commission regarding information (x) delivered by the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or an Additional Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information, which information is contained in a report filed by the Depositor or Other Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s or Other Depositor’s filing of such report, the Depositor or Other Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission for inclusion in the Depositor’s or Other Depositor’s response to the Commission, unless such Affected Reporting Party elects, with the consent of the Depositor or Other Depositor, as applicable (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission and negotiate a response and/or resolution with the Commission; provided, if an Affected Reporting Party is a Servicing Function Participant or Additional Servicer retained by the Master Servicer, the Master Servicer shall receive copies of all material communications pursuant to this paragraph. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission in a timely manner; provided, that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor or Other Depositor informed of its progress with the Commission and copy the Depositor or Other Depositor on all correspondence with the Commission and provide the Depositor or Other Depositor with the opportunity to participate (at the Depositor’s or Other Depositor’s expense) in any telephone conferences and meetings with the Commission and (ii) the Depositor or Other Depositor shall cooperate with any Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission with respect to any comments from the Commission relating to such Affected Reporting Party and to notify the Commission of such authorization. The Depositor (or Other Depositor) and the Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor or Other Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor or Other Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses required to be at the Depositor’s or Other Depositor’s expense as set forth above) and

 -320-

 

any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor or Other Depositor, as the case may be. Each of the Master Servicer, the Special Servicer, the Custodian, the Certificate Administrator and the Trustee shall use commercially reasonable efforts to cause any Servicing Function Participant or Additional Servicer retained by it to comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.

The Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian shall use commercially reasonable efforts to cause each Servicing Function Participant (other than (x) any party to this Agreement or (y) a Trust Loan Seller Sub-Servicer) with which it has entered into a servicing relationship with respect to the Trust Loan to indemnify and hold harmless each Certification Party from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual assessment of servicing criteria or attestation reports pursuant to this Agreement, or the applicable Sub-Servicing Agreement, as applicable or (ii) any Deficient Exchange Act Deliverable.

If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Custodian, each Additional Servicer or other Servicing Function Participant (the “Performing Party”) shall, and the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee shall use commercially reasonable efforts to cause each Servicing Function Participant with which it has entered into a servicing relationship (other than (x) a party to this Agreement or (y) a Trust Loan Seller Sub-Servicer) with respect to the Trust Loan to contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to this Article XI. The Master Servicer, the Special Servicer, the Certificate Administrator, the Custodian and the Trustee shall use commercially reasonable efforts to cause each Servicing Function Participant (other than (x) any party to this Agreement or (y) Trust Loan Seller Sub-Servicers) with which it has entered into a servicing relationship with respect to the Trust Loan to agree to the foregoing indemnification and contribution obligations.

Promptly after receipt by an indemnified party of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify in writing the indemnifying party of the commencement thereof; but the omission to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under this Agreement except to the extent that such omission to notify materially prejudices the indemnifying party. In case any such action is brought against any indemnified party, after the indemnifying party has been notified of the commencement of such action, such indemnifying party shall be entitled to participate therein (at its own expense) and, to the extent that it may wish, shall be entitled to assume the defense thereof (jointly with any other indemnifying party similarly notified) with counsel reasonably satisfactory to such indemnified party (which approval shall not be unreasonably withheld or delayed), and after notice from the indemnifying party to such indemnified party of its election to so assume the

 -321-

 

defense thereof, the indemnifying party shall not be liable to such indemnified party for any expenses subsequently incurred in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties and, in the case of an investigation by the Commission, any parties that are, or whose reporting materials are, the subject of such investigation) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party fails within a reasonable period of time to designate counsel that is reasonably satisfactory to the indemnified party (which approval shall not be unreasonably withheld or delayed). In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) in any one jurisdiction separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent. However, if settled with such consent, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement to the extent that the indemnifying party is otherwise required to do so under this Agreement. If an indemnifying party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the indemnified party (which consent shall not be unreasonably withheld or delayed) or, if such settlement (i) provides for an unconditional release of the indemnified party in connection with all matters relating to the proceeding that have been asserted against the indemnified party in such proceeding by the other parties to such settlement and (ii) does not require an admission of fault by the indemnified party, without the consent of the indemnified party.

Section 11.13    Amendments. This Article XI may be amended by the parties hereto pursuant to Section 11.08 of this Agreement for purposes of complying with Regulation AB, the Act or the Exchange Act and/or to conform to standards developed within the commercial mortgage-backed securities market and the Sarbanes-Oxley Act without any Opinions of Counsel, Officer’s Certificates, No Downgrade Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement.

Section 11.14    Termination of the Certificate Administrator. Notwithstanding anything to the contrary contained in this Agreement, the Depositor or any Other Depositor may terminate the Certificate Administrator upon five Business Days’ notice if the Certificate Administrator fails to comply with any of its obligations under this Article XI; provided that such termination shall not be effective until a successor Certificate Administrator shall have accepted the appointment.

Section 11.15    Termination of Sub-Servicing Agreements. For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, each of the Master Servicer, the Certificate Administrator, the Trustee and the Custodian, as applicable, shall (i) cause each Sub-Servicing Agreement to which it is a party to entitle the Depositor or any Other Depositor to terminate such agreement (without compensation, termination fee or the

 -322-

 

consent of any other Person) at any time following any failure of the applicable Sub-Servicer to any deliver any Exchange Act reporting items that such Sub-Servicer is required to deliver under Regulation AB or as otherwise contemplated by this Article XI and (ii) promptly notify the Depositor and any Other Depositor following any failure of the applicable Sub-Servicer to deliver any Exchange Act reporting items that such Sub-Servicer is required to deliver under Regulation AB or as otherwise contemplated by this Article XI. The Depositor and any Other Depositor is hereby authorized to exercise the rights described in clause (i) of the preceding sentence in its sole discretion. The rights of the Depositor and any Other Depositor to terminate a Sub-Servicing Agreement as aforesaid shall not limit any right the Master Servicer, the Certificate Administrator, the Trustee or the Custodian, as applicable, may have to terminate such Sub-Servicing Agreement.

Section 11.16    Notification Requirements and Deliveries in Connection with Securitization of a Companion Loan. (a)  Any other provision of this Article XI to the contrary notwithstanding, including, without limitation, any deadlines for delivery set forth in this Article XI, in connection with the requirements contained in this Article XI that provide for the delivery of information and other items to, and the cooperation with, the Other Depositor and Other Exchange Act Reporting Party of any Other Securitization Trust that includes a Companion Loan, no party hereunder shall be obligated to provide any such items to or cooperate with such Other Depositor or Other Exchange Act Reporting Party (i) until the Other Depositor or Other Exchange Act Reporting Party of such Other Securitization Trust has provided each party hereto with not less than 30 days written notice (which shall only be required to be delivered once and each party shall be entitled to conclusively rely on such notice until a Responsible Officer thereof has received a subsequent notice), setting forth the contact information for such Person(s) and, except as regards the deliveries and cooperation contemplated by Section 11.07, Section 11.08 and Section 11.09 of this Agreement, stating that such Other Securitization Trust is subject to the reporting requirements of the Exchange Act, and (ii) specifying in reasonable detail the information and other items not otherwise specified in this Agreement that are requested to be delivered; provided that if Exchange Act reporting is being requested, such Other Depositor or Other Exchange Act Reporting Party is only required to provide a single written notice to such effect. Any reasonable cost and expense of the Master Servicer, Special Servicer, Trustee, Certificate Administrator and Custodian in cooperating with such Other Depositor or Other Exchange Act Reporting Party of such Other Securitization Trust (above and beyond their expressed duties hereunder) shall be the responsibility of such Other Depositor or Other Securitization Trust. The parties hereto shall have the right to confirm in good faith with the Other Depositor of such Other Securitization Trust as to whether applicable law requires the delivery of the items identified in this Article XI to such Other Depositor and Other Exchange Act Reporting Party of such Other Securitization Trust prior to providing any of the reports or other information required to be delivered under this Article XI in connection therewith and (i) upon such confirmation, the parties shall comply with the deadlines for delivery set forth in this Article XI with respect to such Other Securitization Trust or (ii) in the absence of such confirmation, the parties shall not be required to deliver such items; provided that no such confirmation shall be required in connection with any delivery of the items contemplated by Section 11.07, Section 11.08 and Section 11.09 of this Agreement. Such confirmation shall be deemed given if the Other Depositor or Other Exchange Act Reporting Party for the Other Securitization Trust provides a written statement to the effect that the Other Securitization Trust is subject to the reporting requirements of the Exchange Act and the appropriate party hereto receives such written statement. The parties hereunder shall also have the right to require that such Other Depositor provide them with the contact details of such Other Depositor, Other Exchange

 -323-

 

Act Reporting Party and any other parties to the Other Pooling and Servicing Agreement relating to such Other Securitization Trust.

(b)           Each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian shall, upon reasonable prior written request given in accordance with the terms of Section 11.16(a) above, and subject to a right of the Master Servicer, Special Servicer, Certificate Administrator, Trustee or Custodian, as the case may be, to review and approve such disclosure materials, permit the Companion Loan Holders to use such party’s description contained in the Offering Circular (updated as appropriate by the Master Servicer, the Special Servicer, Certificate Administrator, Trustee or Custodian, as applicable, at the reasonable cost of the Other Depositor) for inclusion in the disclosure materials relating to any securitization of a Companion Loan.

(c)           The Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Custodian, upon reasonable prior written request given in accordance with the terms of Section 11.16(a) above, shall each timely provide (to the extent the reasonable cost thereof is paid or caused to be paid by the requesting party) to the Other Depositor and any underwriters with respect to any securitization transaction that includes a Companion Loan such opinion(s) of counsel, certifications and/or indemnification agreement(s) with respect to the updated description referred in Section 11.16(b) with respect to such party, substantially identical to those, if any, delivered by the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, as the case may be, or their respective counsel, in connection with the information concerning such party in the Offering Circular and/or any other disclosure materials relating to this Trust (updated as deemed appropriate by the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian, or their respective legal counsel, as the case may be, and sufficient to comply with Regulation AB). None of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or the Custodian shall be obligated to deliver any such item with respect to the securitization of a Companion Loan if it did not deliver a corresponding item with respect to this Trust.

[NO FURTHER TEXT ON THIS PAGE]

 -324-

 

IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized all as of the day and year first above written.

 

	DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION, as Depositor
	By:	/s/ Matt Smith
		Name:  Matt Smith
		Title:    Director
	By:	/s/ Robert-Christopher Jones
		Name:  Robert-Christopher Jones
		Title:    Director
	keybank national association, as Master Servicer
	By:	/s/ Michael A. Tilden
		Name: Michael A. Tilden
		Title: Vice President
	SITUS HOLDINGS, LLC as Special Servicer
	By:	/s/ Adriana Boudreaux
		Name: Adriana Boudreaux
		Title: Deputy General Counsel

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

 

	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Patrick A. Kanar
		Name: Patrick A. Kanar
		Title:   Banking Officer
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator, Custodian and Paying Agent
	By: COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:	/s/ Linda Lopez
		Name: Linda Lopez
		Title:   Assistant Vice President

 

	PARK BRIDGE LENDER SERVICES LLC, as Operating Advisor
	By:	Park Bridge Advisors LLC,its sole member
		By:	Park Bridge Financial LLC, its sole member

 

	By:	/s/ Robert J. Spinna, Jr.
		Name: Robert J. Spinna, Jr.
		Title:   Mannaging Member

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

 

  

STATE OF KANSAS	)
	:  ss.:
COUNTY OF JHONSON	)

On the 5 day of November in the year 2021, before me, the undersigned, personally appeared Michael A. Tilden, proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the Overland Park (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).

 

	/s/ Katherine Cain-Espeland
	Signature and Office of individual taking acknowledgment

 

This instrument prepared by: 

Name:	Sidley Austin LLP	KATHERINE CAIN ESPELAND
Address:	787 Seventh Avenue	My Appointment Expires
	New York, New York 10019	March 9, 2022

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

STATE OF State of Delaware	)
	:  ss.:
COUNTY OF New Castel County	)

 

On the 4th day of November in the year 2021, before me, the undersigned, personally appeared Patrick A. Kanar, proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the Wilmington Delaware (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).

 

	/s/ Chad N. May
	Signature and Office of individual taking acknowledgment

 

This instrument prepared by:

 

Name:	Sidley Austin LLP	CHAND N.MAY
Address:	787 Seventh Avenue New York, New York 10019	MY COMMISSION EXPIRES 04-06-2024
		NOTARY PUBLIC STATE OF DELAWARE

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

 

 

STATE OF MN	)
	:  ss.:
COUNTY OF Hennepin	)

 

On the 5 day of November in the year 2021, before me, the undersigned, personally appeared Linda Lopez, proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the Minnerpais MN (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).

 

	/s/ Mary Guy Monson-Owen
	Signature and Office of individual taking acknowledgment

 

This instrument prepared by:
 

Name:	Sidley Austin LLP	MARRY GUY MOSON-OWEN
Address:	787 Seventh Avenue	NOTARY PUBLIC MINNESOTA
	New York, New York 10019	MY COMMISSION EXPIRES 01/31/2025

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

 

 

STATE OF NEW YORK	)
	)  ss.:
COUNTY OF NEW YORK	)

 

On the 4^th day of November in the year 2021, before me, the undersigned, a Notary public in and for the State of New York, duly commissioned and sworn, personal appered Robert J. Spinna, Jr., to me known who, by me duly sworn, did depose and acknowledge before me that he is a managing Member of Park Bridge Finnancial LLC, which is the sole member of Park Bridge Advisor LLC, which in turn is the sole member of Park Bridge Lender Services LLC, the entity described in and that executed the foregoing instrument; and that he signed his name thereto under authority of said entity and on behalf of such entity.

 

WITNESS my hand and seal hereto affixed the day and year first above written. 

 

	/s/ Niaja Williams Mowatt
	NOTARY PUBLIC in and for the state of New York

  

[SEAL]

  

My Commission expires:	3/31/24
	(Date)

  

	NIAJA WILLIAMS MOWATT
	Notary Public - State of New York
	NO. 01W1618424
	Qualified in Suffolk County
	My Commission Expires 3/31/24

 

CAMB 2021-CX2 – Trust and Servicing Agreement

 

 

 

  

SCHEDULE I

 

SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE

 

The assessment of compliance to be delivered shall address, at a minimum, the criteria identified below as “Relevant Servicing Criteria” (with each Servicing Function Participant deemed to be responsible for the items applicable to the functions it is performing and for which the party that retained such Servicing Function Participant is responsible):

 

Relevant Servicing Criteria		Applicable Party(ies)
Reference	Criteria
	General Servicing Considerations
1122(d)(1)(i)	Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.	Master Servicer Special Servicer  Certificate Administrator
1122(d)(1)(ii)	If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.	Master Servicer Special Servicer  Certificate Administrator
1122(d)(1)(iii)	Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.	N/A
1122(d)(1)(iv)	A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.	Master Servicer Special Servicer
1122(d)(1)(v)	Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.	Master Servicer Special Servicer  Certificate Administrator

  

Sch. I - 1

 

 

Relevant Servicing Criteria		Applicable Party(ies)
Reference	Criteria
	Cash Collection and Administration
1122(d)(2)(i)	Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.	Master Servicer Special Servicer
1122(d)(2)(ii)	Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.	Certificate Administrator
1122(d)(2)(iii)	Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.	Master Servicer  Trustee
1122(d)(2)(iv)	The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.	Master Servicer Special Servicer  Certificate Administrator
1122(d)(2)(v)	Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements.  For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.	Master Servicer Special Servicer  Certificate Administrator
1122(d)(2)(vi)	Unissued checks are safeguarded so as to prevent unauthorized access.	Master Servicer Special Servicer

 

Sch. I - 2

 

 

Relevant Servicing Criteria		Applicable Party(ies)
Reference	Criteria
1122(d)(2)(vii)	Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts.  These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items.  These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	Master Servicer Special Servicer  Certificate Administrator
	Investor Remittances and Reporting
1122(d)(3)(i)	Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements.  Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer.	Certificate Administrator
1122(d)(3)(ii)	Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.	Certificate Administrator
1122(d)(3)(iii)	Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.	Certificate Administrator
1122(d)(3)(iv)	Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.	Certificate Administrator
	Pool Asset Administration
1122(d)(4)(i)	Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.	Master Servicer Special Servicer   Custodian

 

Sch. I - 3

 

 

Relevant Servicing Criteria		Applicable Party(ies)
Reference	Criteria
1122(d)(4)(ii)	Mortgage loan and related documents are safeguarded as required by the transaction agreements.	Custodian
1122(d)(4)(iii)	Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.	Master Servicer Special Servicer
1122(d)(4)(iv)	Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Master Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.	Master Servicer
1122(d)(4)(v)	The Master Servicer’s records regarding the mortgage loans agree with the Master Servicer’s records with respect to an obligor’s unpaid principal balance.	Master Servicer
1122(d)(4)(vi)	Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.	Master Servicer Special Servicer
1122(d)(4)(vii)	Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.	Special Servicer Operating Advisor
1122(d)(4)(viii)	Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements.  Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).	Master Servicer Special Servicer
1122(d)(4)(ix)	Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.	Master Servicer

 

Sch. I - 4

 

 

Relevant Servicing Criteria		Applicable Party(ies)
Reference	Criteria
1122(d)(4)(x)	Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.	Master Servicer
1122(d)(4)(xi)	Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.	Master Servicer
1122(d)(4)(xii)	Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.	Master Servicer
1122(d)(4)(xiii)	Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.	Master Servicer
1122(d)(4)(xiv)	Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.	Master Servicer
1122(d)(4)(xv)	Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.	N/A

  

Sch. I - 5

 

SCHEDULE II

 

INITIAL COMPANION LOAN HOLDERS

 

 

 

Initial Companion Loan Holder	Address
DBR Investments Co. Limited (Promissory Note A-1-2, Promissory Note A-1-3, Promissory Note A-1-4, Promissory Note A-1-5, Promissory Note A-1-6, Promissory Note A-1-7, Promissory Note A-1-8 and Promissory Note A-1-9 Holder)	DBR Investments Co. Limited 1 Columbus Circle New York, New York 10019 Attention: Robert W. Pettinato, Jr. Facsimile No. (212) 797-4489 Email: Robert.Pettinato@db.com   With a copy to:   DBR Investments Co. Limited 1 Columbus Circle New York, New York 10019 Attention: General Counsel Facsimile No. (646) 736-5721 Email: cmbs.requests@db.com
Bank of America, N.A. (Promissory Note A-2-2, Promissory Note A-2-3, Promissory Note A-2-4 and Promissory Note A-2-5 Holder)	Bank of America, N.A. One Bryant Park Mail Code: NY1-100-11-07  New York, New York 10036 Attention: Director of CMBS Securitization  Email: leland.f.bunch@bofa.com   With a copy to:   Bank of America Legal Department  150 North College Street  Mail Code: NC1-028-24-02  Charlotte, North Carolina 28255  Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director  Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com
JPMorgan Chase Bank, National Association  (Promissory Note A-3-2 and Promissory Note A-3-3 Holder)	JPMorgan Chase Bank, National Association 383 Madison Avenue, 8th Floor New York, New York 10179 Attention: SPG Syndicate Email:  ABS_Synd@jpmorgan.com with a copy to: JPMorgan Chase Bank, National Association 4 New York Plaza, 21st Floor New York, New York 10004 Attention: SPG Legal Email:  US_CMBS_Notice@jpmorgan.com

 

Sch. II - 1

 

 

 

3650 Cal Bridge Lending, LLC
(Promissory Note A-4-2 and Promissory Note A-4-3 Holder) 3650 Cal Bridge Lending, LLC
2977 McFarlane Road, Suite 300
Miami, Florida 33133   with copies via email to:   Jonathan Roth
Email: jroth@3650reit.com   and   Mark A. Jefferis, General Counsel and Chief Compliance Officer
Email: mjefferis@3650reit.com 

 

Sch. I - 2

 

 

 

EXHIBIT A-1

 

FORM OF CLASS A [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only. 

² For Reg S Global Certificates only. 

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 

⁴ Global Certificate legend.

 

 A-1-1

 

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

 

 A-1-2

 

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN

 

 A-1-3

 

 

SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

 

 A-1-4

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A

 

Class A Pass-Through Rate: A per annum rate equal to 2.700%		CUSIP:   12477BAA21 U1308RAA22 12477BAB03   ISIN:       US12477BAA264 USU1308RAA24 5 US12477BAB096
Original Aggregate Certificate Balance of the Class A Certificates: $200,690,000		Initial Certificate Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date:  December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: A- [__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class A Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

¹ For Rule 144A Certificates. 

² For Regulation S Certificates. 

³ For IAI Certificates. 

⁴ For Rule 144A Certificates. 

⁵ For Regulation S Certificates. 

⁶ For IAI Certificates.

 

 A-1-5

 

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class A Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class A Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

 A-1-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

 

 A-1-7

 

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrowers). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as

 

 A-1-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor, the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

 

 A-1-9

 

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

(i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

 

(ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

 

(iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

 

(iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 A-1-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

(i)           the sum of, without duplication:

 

(A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

 

(B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

 

(C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding

 

 A-1-11

 

 

such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

 

(D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

 

 A-1-12

 

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

 A-1-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class A Certificate to be duly executed.

 

Dated:                                                

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

Certificate of Authentication

 

This is one of the Class A Certificates referred to in the Trust and Servicing Agreement.

 

Dated:                                                

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 A-1-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

 A-1-15

 

 

EXHIBIT A-2

 

FORM OF CLASS X [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only. 

² For Reg S Global Certificates only. 

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 

⁴ Global Certificate legend.

 

 A-2-1

 

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

 

 A-2-2

 

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE ENTITLED TO ANY OF THE DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES IS EQUAL TO AN AMOUNT AS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

 A-2-3

 

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

 

 A-2-4

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X

 

Class X Pass-Through Rate: Variable		CUSIP:  12477BAC81 U1308RAB02 12477BAD63   ISIN:      US12477BAC814 USU1308RAB075 US12477BAD646
Original Aggregate Notional Balance of the Class X Certificates: $200,690,000		Initial Notional Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date: December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: X - [__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class X Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

¹ For Rule 144A Certificates. 

² For Regulation S Certificates. 

³ For IAI Certificates. 

⁴ For Rule 144A Certificates. 

⁵ For Regulation S Certificates. 

⁶ For IAI Certificates.

 

 A-2-5

 

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class X Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class X Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

 A-2-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

 

 A-2-7

 

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as

 

 A-2-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

 

 A-2-9

 

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

(i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

 

(ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

 

(iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

 

(iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 A-2-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

(i)           the sum of, without duplication:

 

(A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

 

(B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

 

(C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding

 

 A-2-11

 

 

such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

 

(D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)         the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

 

 A-2-12

 

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

 A-2-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class X Certificate to be duly executed.

 

Dated:                           

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

Certificate of Authentication

 

This is one of the Class X Certificates referred to in the Trust and Servicing Agreement.

 

Dated:                           

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 A-2-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

 A-2-15

 

 

EXHIBIT A-3

 

FORM OF CLASS B [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only. 

² For Reg S Global Certificates only. 

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 

⁴ Global Certificate legend.

 

 A-3-1

 

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

 

 A-3-2

 

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

 

 A-3-3

 

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

 

 A-3-4

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS B

 

Class B Pass-Through Rate: The Net Mortgage Rate		CUSIP:   12477BAE41 U1308RAC82 12477BAF13   ISIN:      US12477BAE484 USU1308RAC895 US12477BAF136
Original Aggregate Certificate Balance of the Class B Certificates: $57,945,000		Initial Certificate Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date: December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: B-[__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class B Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

¹ For Rule 144A Certificates. 

² For Regulation S Certificates. 

³ For IAI Certificates. 

⁴ For Rule 144A Certificates. 

⁵ For Regulation S Certificates. 

⁶ For IAI Certificates.

 

 A-3-5

 

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class B Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class B Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

 A-3-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

 

 A-3-7

 

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as

 

 A-3-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

 

 A-3-9

 

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

(i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

 

(ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

 

(iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

 

(iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 A-3-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

(i)            the sum of, without duplication:

 

(A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

 

(B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

 

(C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding

 

 A-3-11

 

 

such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

 

(D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

 

 A-3-12

 

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

 A-3-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class B Certificate to be duly executed.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

Certificate of Authentication

 

This is one of the Class B Certificates referred to in the Trust and Servicing Agreement.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 A-3-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

 A-3-15

 

 

EXHIBIT A-4

 

FORM OF CLASS C [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only. 

² For Reg S Global Certificates only. 

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 

⁴ Global Certificate legend.

 

 A-4-1

 

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

 

 A-4-2

 

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

 

 A-4-3

 

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

 

 A-4-4

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS C

 

Class C Pass-Through Rate: The Net Mortgage Rate		CUSIP:   12477BAG91 U1308RAD62 12477BAH73   ISIN:       US12477BAG954 USU1308RAD625 US12477BAH786
Original Aggregate Certificate Balance of the Class C Certificates: $258,191,000		Initial Certificate Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date: December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: C-[__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class C Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

¹ For Rule 144A Certificates. 

² For Regulation S Certificates. 

³ For IAI Certificates. 

⁴ For Rule 144A Certificates. 

⁵ For Regulation S Certificates. 

⁶ For IAI Certificates.

 

 A-4-5

 

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class C Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class C Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

 A-4-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

 

 A-4-7

 

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as

 

 A-4-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

 

 A-4-9

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

(i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

 

(ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

 

(iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

 

(iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 A-4-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

(i)           the sum of, without duplication:

 

(A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

 

(B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

 

(C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding

 

 A-4-11

 

 

such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

 

(D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

 

 A-4-12

 

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

 A-4-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class C Certificate to be duly executed.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

Certificate of Authentication

 

This is one of the Class C Certificates referred to in the Trust and Servicing Agreement.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 A-4-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

 A-4-15

 

 

EXHIBIT A-5

 

FORM OF CLASS D [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only. 

² For Reg S Global Certificates only. 

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement. 

⁴ Global Certificate legend.

 

 A-5-1

 

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

 

 A-5-2

 

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

 

 A-5-3

 

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

 

 A-5-4

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS D

 

Class D Pass-Through Rate: The Net Mortgage Rate		CUSIP:   12477BAJ31 U1308RAE42 12477BAK03   ISIN:       US12477BAJ354 USU1308RAE465 US12477BAK086
Original Aggregate Certificate Balance of the Class D Certificates: $138,174,000		Initial Certificate Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date: December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: D-[__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class D Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

¹ For Rule 144A Certificates. 

² For Regulation S Certificates. 

³ For IAI Certificates. 

⁴ For Rule 144A Certificates. 

⁵ For Regulation S Certificates. 

⁶ For IAI Certificates.

 

 A-5-5

 

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class D Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class D Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

 A-5-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

 

 A-5-7

 

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as

 

 A-5-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

 

 A-5-9

 

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

(i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

 

(ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

 

(iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

 

(iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 A-5-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

(i)           the sum of, without duplication:

 

(A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

 

(B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

 

(C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding

 

 A-5-11

 

 

such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest);

 

(D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

 

 A-5-12

 

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

 A-5-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class D Certificate to be duly executed.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

Certificate of Authentication

 

This is one of the Class D Certificates referred to in the Trust and Servicing Agreement.

 

Dated:                          

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 A-5-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

 A-5-15

 

 

EXHIBIT A-6

 

FORM OF CLASS HRR [RULE 144A]¹ [REG S]² CERTIFICATE

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]³

 

[TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.]⁴

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,

 

 

 

¹ For Rule 144A Global Certificates only.

² For Reg S Global Certificates only.

³ Legend required as long as DTC is the Depository under the Trust and Servicing Agreement.

⁴ Global Certificate legend.

A-6-1

 

(3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)), UNLESS (X) THE TRANSFEREE HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON THE EXEMPTION GRANTED TO (I) DEUTSCHE BANK SECURITIES INC., AS DEPARTMENT FINAL AUTHORIZATION NUMBER 97-03E, (II) J.P. MORGAN SECURITIES LLC, AS PROHIBITED TRANSACTION EXEMPTION 2002-19, AND (III) BOFA SECURITIES,

A-6-2

 

INC., AS PROHIBITED TRANSACTION EXEMPTION 93-31, 58 FED. REG. 28,620 (MAY 14, 1993), EACH AS AMENDED BY PROHIBITED TRANSACTION EXEMPTION 2013-08 (COLLECTIVELY, THE “EXEMPTION”) AND IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN “BBB-” (OR ITS EQUIVALENT) BY A RATING AGENCY SET FORTH THEREIN AND THAT THIS CERTIFICATE IS SO RATED AND IT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1) OF REGULATION D OF THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, OR (Y) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THIS CERTIFICATE OR INTEREST THEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT,” AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED WITH RESPECT TO THE ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE OR (Z) IN THE CASE OF A TRANSFEREE WHICH IS SUBJECT TO SIMILAR LAW, ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

 

TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE TRUST AND SERVICING AGREEMENT REFERRED TO HEREIN.

 

A-6-3

 

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

 

[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]¹

 

 

 

¹ For Reg S Global Certificates only.

A-6-4

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS HRR

 

Class HRR Pass-Through Rate: The Net Mortgage Rate		CUSIP:    12477BAL81                  U1308RAF12                  12477BAM63 ISIN:       US12477BAL804                  USU1308RAF115                  US12477BAM636
Original Aggregate Certificate Balance of the Class HRR Certificates: $41,000,000		Initial Certificate Balance of this Certificate: $[______] [FOR GLOBAL CERTIFICATES ONLY: (SUBJECT TO SCHEDULES OF EXCHANGES ATTACHED)]
First Distribution Date: December 10, 2021		Cut-off Date: November 6, 2021
Assumed Final Distribution Date: November 2031		No.: HRR-[__]

 

This certifies that [_______] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class HRR Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National

 

 

 

 

¹ For Rule 144A Certificates.

² For Regulation S Certificates.

³ For IAI Certificates.

⁴ For Rule 144A Certificates.

⁵ For Regulation S Certificates.

⁶ For IAI Certificates.

 

A-6-5

 

Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.  Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement.  In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class HRR Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021. Holders of this Certificate may be entitled to Prepayment Charges as provided in the Trust and Servicing Agreement.

 

During each Certificate Interest Accrual Period (as defined below), interest on the Class HRR Certificates will be calculated based on a 360-day year consisting of twelve 30-day months, on the outstanding Certificate Balance hereof.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

A-6-6

 

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any

A-6-7

 

interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as 

 

A-6-8

 

 

provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or

A-6-9

 

(c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

  (i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

  (ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

  (iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

  (iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

 

A-6-10

 

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

 (i)          the sum of, without duplication:

 

  (A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

  (B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

  (C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding 

 

A-6-11

 

 

    such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest); 

  (D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)         the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one

A-6-12

 

years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

A-6-13

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class HRR Certificate to be duly executed.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

Certificate of Authentication

 

This is one of the Class HRR Certificates referred to in the Trust and Servicing Agreement.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

 

A-6-14

 

 

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF EXCHANGES OF
GLOBAL CERTIFICATES

 

The following exchanges of a part of this Global Certificate have been made:

 

A-6-15

 

 

EXHIBIT A-7

 

FORM OF CLASS S CERTIFICATE

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE Securities Act OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE SUCH “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR TO SECTION 4975 OF THE 

 

A-7-1

 

 

INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)).  TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE TRUST AND SERVICING AGREEMENT TO SUCH EFFECT.

 

TRANSFERS AND EXCHANGES OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

A-7-2

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS S

 

No.: S-[__]
	Percentage Interest: ___% CUSIP:    12477BAN41                  [_]2                  12477BAP93 ISIN:       US12477BAN474                  [_]5                  US12477BAP946

 

This certifies that [              ] is the registered owner of a beneficial ownership interest in a Trust Fund, including the distributions to be made with respect to the Class S Certificates.  The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing

 

 

 

¹ For Rule 144A Certificates.

² For Regulation S Certificates.

³ For IAI Certificates.

⁴ For Rule 144A Certificates.

⁵ For Regulation S Certificates.

⁶ For IAI Certificates.

 

A-7-3

 

 

Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Certificate represents a beneficial ownership interest in a portion of the Excess Interest collected on the Trust Loan and amounts held from time to time in the Excess Interest Distribution Account. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class S Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021.

 

Interest accrued on this Certificate during a Certificate Interest Accrual Period, plus the aggregate unpaid Class Interest Shortfall with respect to this Certificate, if any, will be payable on the related Distribution Date to the extent provided in the Trust and Servicing Agreement. The “Certificate Interest Accrual Period” means, with respect to any Distribution Date, the calendar month immediately preceding the month in which such Distribution Date occurs. The Certificate Interest Accrual Period is assumed to consist of 30 days.

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner,

A-7-4

 

but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the

 

A-7-5

 

 

Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor,

A-7-6

 

the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or (c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the

 

A-7-7

 

 

Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

  (i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

  (ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

  (iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

  (iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to

A-7-8

 

comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

 (i)          the sum of, without duplication:

 

  (A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

  (B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

  (C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest); 

  (D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month

 

A-7-9

 

 

preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing 

A-7-10

 

Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

A-7-11

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class S Certificate to be duly executed.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

Certificate of Authentication

 

This is one of the Class S Certificates referred to in the Trust and Servicing Agreement.

 

Dated: __________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

 

A-7-12

 

 

EXHIBIT A-8

 

FORM OF CLASS LR CERTIFICATE

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02 OF THE TRUST AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT IT IS A PERMITTED TRANSFEREE AND, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN SECTION 860E(e)(5) OF THE CODE, OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON, (C) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. BECAUSE THIS CERTIFICATE REPRESENTS A “NON-ECONOMIC RESIDUAL INTEREST,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), CERTAIN TRANSFERS OF THIS CERTIFICATE WILL BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE TRANSFEREE AS PROVIDED IN REGULATIONS.

 

A-8-1

 

 

THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO THE DESIGNATION OF THE CERTIFICATE ADMINISTRATOR AS THE “PARTNERSHIP REPRESENTATIVE” (WITHIN THE MEANING OF SECTION 6223 OF THE CODE) OF THE ([UPPER TIER REMIC] [LOWER TIER REMIC] OR AS OTHERWISE PROVIDED IN THE TRUST AND SERVICING AGREEMENT FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE).

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, OR (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)).  TRANSFEREES OF THIS CERTIFICATE TAKING

A-8-2

 

DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE TRUST AND SERVICING AGREEMENT TO SUCH EFFECT.

 

TRANSFERS AND EXCHANGES OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

A-8-3

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS LR

 

No.: LR-[__]	Percentage Interest: ___%
	CUSIP:    12477BAS31                  ISIN:       US12477BAS342

 

This certifies that [              ] is the registered owner of the Percentage Interest evidenced by this Certificate in the Trust Fund. The Class LR Certificateholder is not entitled to interest or principal distributions. The Class LR Certificateholder will be entitled to receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the Final Scheduled Distribution Date for the Certificates, after distributions in respect of any accrued but unpaid interest on the Certificates and after distributions in reduction of principal balance have reduced the principal balances of the Certificates to zero. It is not anticipated that there will be any assets remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date following the distributions on the Regular Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Class LR Certificate represents the sole “residual interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1)

 

 

 

¹ For Rule 144A Certificates.

² For Rule 144A Certificates.

A-8-4

 

and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator shall be the “partnership representative” within the meaning of Section 6223 of the Code of the Lower-Tier REMIC pursuant to Treasury Regulations Section 1.860F-4(d). In addition, each Holder agrees to the irrevocable designation of the Certificate Administrator as the “partnership representative” as defined in Section 6223 of the Code of the Lower-Tier REMIC and to the Certificate Administrator making any elections allowed under the Code to avoid (i) the application of Section 6221 of the Code (or successor provisions) to the Lower-Tier REMIC and (ii) payment by the Lower-Tier REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any holder of a Class LR Certificate, past or present.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class LR Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021.

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

A-8-5

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders.  No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow 

 

A-8-6

 

 

Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the

A-8-7

 

Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or (c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust

 

A-8-8

 

 

Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

  (i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

  (ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

  (iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

  (iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the

A-8-9

 

Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

 (i)          the sum of, without duplication:

 

  (A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

  (B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

  (C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest); 

  (D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

A-8-10

 

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

A-8-11

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class LR Certificate to be duly executed.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

Certificate of Authentication

 

This is one of the Class LR Certificates referred to in the Trust and Servicing Agreement.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

 

A-8-12

 

 

EXHIBIT A-9

 

FORM OF CLASS R CERTIFICATE

 

THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, ANY ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING TRUST LOAN ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.

 

FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02 OF THE TRUST AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE ADMINISTRATOR TO THE EFFECT THAT IT IS A PERMITTED TRANSFEREE AND, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN SECTION 860E(e)(5) OF THE CODE, OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON, (C) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. BECAUSE THIS CERTIFICATE REPRESENTS A “NON-ECONOMIC RESIDUAL INTEREST,” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), CERTAIN TRANSFERS OF THIS CERTIFICATE WILL BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE TRANSFEREE AS PROVIDED IN REGULATIONS.

 

A-9-1

 

 

THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO THE DESIGNATION OF THE CERTIFICATE ADMINISTRATOR AS THE “PARTNERSHIP REPRESENTATIVE” (WITHIN THE MEANING OF SECTION 6223 OF THE CODE) OF THE ([UPPER TIER REMIC] [LOWER TIER REMIC] OR AS OTHERWISE PROVIDED IN THE TRUST AND SERVICING AGREEMENT FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE).

 

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “Securities Act”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE Securities Act AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE Securities Act, OR (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE Securities Act (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

 

THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS OR BECOMES (A) AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR TO SECTION 4975 OF THE CODE (EACH, A “PLAN”), OR (B) ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATIONS SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA)). TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO DELIVER A

A-9-2

 

 

LETTER IN THE FORM ATTACHED TO THE TRUST AND SERVICING AGREEMENT TO SUCH EFFECT.

 

TRANSFERS AND EXCHANGES OF THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.

 

ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE CERTIFICATE ADMINISTRATOR, THE TRUSTEE, THE OPERATING ADVISOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE SECURITIES ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.

 

A-9-3

 

 

CAMB 2021-CX2 MORTGAGE TRUST COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS R

 

No.: R-[__]	Percentage Interest: ___%
	CUSIP:    12477BAQ71                  ISIN:       US12477BAQ772

 

This certifies that [              ] is the registered owner of the Percentage Interest evidenced by this Certificate in the Trust Fund. The Class R Certificateholder is not entitled to interest or principal distributions. The Class R Certificateholder will be entitled to receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the Final Scheduled Distribution Date for the Certificates, after distributions in respect of any accrued but unpaid interest on the Certificates and after distributions in reduction of principal balance have reduced the principal balances of the Certificates to zero. It is not anticipated that there will be any assets remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date following the distributions on the Regular Certificates. The Trust Fund, described more fully below, consists primarily of a Trust Loan secured by, among other things, a mortgage on the fee simple interests of the Borrowers in two adjacent Class A life sciences laboratory and office buildings located in Cambridge and Boston, Massachusetts, and held in trust by the Trustee and serviced by the Master Servicer. The Trust Fund was created, and the Trust Loan is to be serviced, pursuant to the Trust and Servicing Agreement (as defined below). The Holder of this Certificate, by virtue of the acceptance hereof, assents to the terms, provisions and conditions of the Trust and Servicing Agreement and is bound thereby.

 

The Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as depositor (the “Depositor”), KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (the “Certificate Administrator”), custodian and paying agent, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), evidences the issuance of the Class A, Class X, Class B, Class C, Class D, Class HRR, Class S, Class R and Class LR Certificates (the “Certificates”; the Holders of Certificates issued under the Trust and Servicing Agreement are collectively referred to herein as “Certificateholders”). This Certificate is issued pursuant to, and in accordance with, the terms of the Trust and Servicing Agreement. To the extent not defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Trust and Servicing Agreement.

 

This Class R Certificate represents the sole “residual interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1)

 

 

 

¹ For Rule 144A Certificates.

² For Rule 144A Certificates.

 

A-9-4

 

 

and 860D of the Internal Revenue Code of 1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator shall be the “partnership representative” within the meaning of Section 6223 of the Code of the Upper-Tier REMIC pursuant to Treasury Regulations Section 1.860F-4(d). In addition, each Holder agrees to the irrevocable designation of the Certificate Administrator as the “partnership representative” as defined in Section 6223 of the Code of the Upper-Tier REMIC and to the Certificate Administrator making any elections allowed under the Code to avoid (i) the application of Section 6221 of the Code (or successor provisions) to the Upper-Tier REMIC and (ii) payment by the Upper-Tier REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any holder of a Class R Certificate, past or present.

 

The Certificate Administrator makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Trust Loan and has executed this Certificate in its limited capacity as Certificate Administrator under the Trust and Servicing Agreement. In the event that there is any conflict between any provision of this Certificate and any provision of the Trust and Servicing Agreement, such provision of this Certificate shall be superseded by the Trust and Servicing Agreement to the extent of such inconsistency.

 

Pursuant to the terms of the Trust and Servicing Agreement, the Certificate Administrator, or the Paying Agent on behalf of the Certificate Administrator, will distribute (other than the final distribution on any Certificate), on the fourth Business Day after each Determination Date (each such date, a “Distribution Date”) an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest then distributable, if any, allocable to the Class R Certificates for such Distribution Date, all as more fully described in the Trust and Servicing Agreement. “Determination Date” is defined in the Trust and Servicing Agreement as the 6th day of each calendar month, or if such 6th day is not a Business Day, then the immediately preceding Business Day, commencing in December 2021.

 

All distributions (other than the final distribution on any Certificate) will be made by the Paying Agent to the persons in whose names the Certificates are registered at the close of business on each Record Date, which will be the close of business on the last Business Day of the calendar month immediately preceding the month in which such Distribution Date occurs. Such distributions shall be made on each Distribution Date other than the Termination Date to each Certificateholder of record on the related Record Date, by wire transfer of immediately available funds to the account of such Holder at a bank or other entity located in the United States and having appropriate facilities therefor provided that such Holder shall have provided the Paying Agent with wire instructions in writing at least five Business Days prior to the related Record Date, or, otherwise, by check mailed by first-class mail to the address set forth therefor in the Certificate Register. The final distribution on each Certificate shall be made in like manner, but only upon presentment and surrender of such Certificate at the office of the Certificate Administrator or its agent (which may be the Paying Agent or the Certificate Registrar acting as such agent) that is specified in the notice to Holders of such final distribution.

A-9-5

 

Any funds not distributed on the Termination Date because of the failure of any Certificateholders to tender their Certificates shall, on such date, be set aside and held in trust for the benefit of the appropriate non-tendering Certificateholders. If any Certificates as to which notice of the Termination Date has been given pursuant to the Trust and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders, at their last addresses shown in the Certificate Register, to surrender their Certificates for cancellation in order to receive, from such funds held, the final distribution with respect thereto. If within one year after the second notice not all of such Certificates shall have been surrendered for cancellation, the Certificate Administrator may, directly or through an agent, take appropriate steps to contact the remaining non-tendering Certificateholders concerning surrender of their Certificates. The costs and expenses of holding such funds in trust and of contacting such Certificateholders shall be paid out of such funds. If within two years after the second notice any such Certificates shall not have been surrendered for cancellation, the Paying Agent shall pay to the Certificate Administrator all amounts distributable to the Holders thereof, and the Certificate Administrator shall thereafter hold such amounts for the benefit of such Holders until the earlier of (i) its termination as Certificate Administrator under the Trust and Servicing Agreement and the transfer of such amounts to a successor certificate administrator and (ii) subject to applicable law, the termination of the Trust Fund and distribution of such amounts to the Residual Certificateholders. No interest shall accrue or be payable to any Certificateholder on any amount held as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with the Trust and Servicing Agreement. Such funds held by the Certificate Administrator may be invested under certain circumstances, and all income and gain realized from investment of such funds shall accrue for its benefit.

 

This Certificate is limited in right of payment to, among other things, certain collections and recoveries in respect of the Trust Loan, as more specifically set forth herein and in the Trust and Servicing Agreement.

 

As provided in the Trust and Servicing Agreement, the Trust Fund includes (in each case, to the extent of the Trust Fund’s interest therein and specifically excluding any interest of the Companion Loan Holder) (i) the Trust Loan, together with the Mortgage File relating thereto; (ii) all scheduled or unscheduled payments on or collections in respect of the Trust Loan due after the Cut-off Date; (iii) any REO Property; (iv) all revenues received in respect of any REO Property; (v) any indemnities or guaranties given as additional security for the Trust Loan; (vi) a security interest in all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts; (vii) amounts on deposit in the Collection Account attributable to the Trust Loan as identified on the Trust Ledger, the Distribution Accounts, the Interest Reserve Account or the REO Account, including any reinvestment income, as applicable; (viii) a security interest in any environmental indemnity agreements relating to the Mortgaged Property; (ix) a security interest in all insurance policies with respect to the Trust Loan and the Mortgaged Property; (x) the rights and remedies under the Trust Loan Purchase Agreements relating to document delivery requirements with respect to the Trust Loan and the representations and warranties of the Trust Loan Sellers regarding the Trust Loan; (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts, Escrow 

 

A-9-6

 

 

Accounts and any Reserve Accounts, to the extent such interest belongs to the Borrower). As provided in the Trust and Servicing Agreement, withdrawals may be made from certain of the above-accounts for purposes other than distributions to Certificateholders.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement, and reference is made to the Trust and Servicing Agreement for the interests, rights, benefits, obligations and duties evidenced hereby, and the limitations thereon, and the rights, duties and immunities of the Certificate Administrator.

 

As provided in the Trust and Servicing Agreement and subject to certain limitations set forth therein, this Certificate is transferable or exchangeable only upon surrender of this Certificate to the Certificate Registrar at its offices together with an assignment and transfer (executed by the Holder or his duly authorized attorney), subject to the requirements in Article V of the Trust and Servicing Agreement. Upon surrender for registration of transfer of this Certificate, subject to the requirements Article V of the Trust and Servicing Agreement, the Certificate Administrator shall execute and the Authenticating Agent shall duly authenticate in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate denomination as the Certificate being surrendered. Such Certificates shall be delivered by the Certificate Registrar in accordance with Article V of the Trust and Servicing Agreement.

 

Prior to due presentation of this Certificate for registration of transfer, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent and any agent of any of them may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator, the Trustee, the Certificate Registrar, any Paying Agent or any agent of any of them shall be affected by notice or knowledge to the contrary.

 

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange referred to in Section 5.02 of the Trust and Servicing Agreement other than for transfers to Institutional Accredited Investors as provided in Section 5.02(h) of the Trust and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the transferor shall reimburse the Trust Fund for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in the Trust and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer.

 

The Trust and Servicing Agreement or any Custodial Agreement may be amended at any time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee without the consent of any of the Certificateholders or the Companion Loan Holder, (i) to cure any ambiguity or to correct any error; (ii) to cause the provisions of the Trust and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Offering Circular with respect to the Certificates, the

A-9-7

 

Trust or the Trust and Servicing Agreement or to correct or supplement any provisions of the Trust and Servicing Agreement or the Offering Circular which may be defective or inconsistent with any other provisions of the Trust and Servicing Agreement or the Offering Circular; (iii) to amend any provision of the Trust and Servicing Agreement to the extent necessary or desirable to maintain the rating or ratings assigned to each of the Classes of Certificates or Companion Loan Securities by each Rating Agency (provided that such amendment does not adversely affect in any material respect (x) the rights or interests of any Certificateholder or the Companion Loan Holder not consenting thereto or (y) the rights or interests of the Directing Holder without the consent of the Holders of Certificates representing 100% of the Controlling Class); (iv) to amend or supplement a provision, or to supplement any other provisions to the extent not inconsistent with the provisions of the Trust and Servicing Agreement, or any other change that will not adversely affect in any material respect the interests of any Certificateholder or the Companion Loan Holder not consenting thereto (as evidenced in writing by an Opinion of Counsel or, if solely affecting any Certificateholder of a rated Class or a Companion Loan Holder of rated Companion Loan Securities, in respect of which a No Downgrade Confirmation has been obtained relating to the Certificates or the Companion Loan Securities, if applicable); (v) to modify, eliminate or add to any of its provisions (a) to such extent as will be necessary to comply with the requirements of the Credit Risk Retention Rules, as evidenced by an opinion of counsel, or (b) in the event the Credit Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed in whole or in part, to the extent required to comply with any such amendment or, to the extent applicable, to modify or eliminate the affected provision(s) related to the risk retention requirements in the event of such repeal; provided that no such modification, elimination or addition may change in any manner the rights or obligations of the Successor Third Party Purchaser under the Trust and Servicing Agreement or the related risk retention agreement without the consent of the Successor Third Party Purchaser; and (vi) to modify the procedures of the Trust and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such modification would not (a) materially increase the obligations or decrease the rights of the Depositor, the Trustee, the Paying Agent, the Certificate Administrator, the Operating Advisor the 17g-5 Information Provider, the Master Servicer or the Special Servicer without such parties’ consent, (b) reduce the consent or consultation rights or the right to receive information under the Trust and Servicing Agreement of the Directing Holder without the consent of the Directing Holder or (c) adversely affect in any material respect the interests of any Certificateholders or the Companion Loan Holder not consenting thereto, as evidenced by in the case of clauses (iii), (iv) and (vi) above by (x) an Opinion of Counsel or (y) solely in the case of a Certificateholder of a rated Class, receipt of a No Downgrade Confirmation from each Rating Agency and a No Downgrade Confirmation with respect to any Companion Loan Securities. In no event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, affect the status of the Grantor Trust as a grantor trust or subject either REMIC or the Grantor Trust to tax.

 

The Trust and Servicing Agreement or any Custodial Agreement may also be amended from time to time by the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee with the prior written consent of the Holders of Certificates representing not less than 66-2/3% of the Percentage Interests of each Class of Certificates and the Companion Loan Holder affected thereby (without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or the Trust

 

A-9-8

 

 

Loan Sellers) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust and Servicing Agreement or modifying in any manner the rights of the Certificateholders; provided, however, that no such amendment may:

 

  (i) reduce in any manner the amount of, or delay the timing of, payments received on the Whole Loan which are required to be distributed on any Certificate, without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby, or which are required to be distributed to the Companion Loan Holder without the consent of the Companion Loan Holder;

  (ii) alter the Servicing Standard or obligations of the Master Servicer or the Trustee to make a P&I Advance, Administrative Advance or a Property Advance, without the consent of the Holders of the Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby);

  (iii) change the percentages of Voting Rights or Percentage Interests of Holders of Certificates which are required to consent to any action or inaction under the Trust and Servicing Agreement without the consent of the Holders of Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby); or

  (iv) amend any section of the Trust and Servicing Agreement which relates to the amendment of the Trust and Servicing Agreement without the consent of the Holders of all Certificates representing all of the Percentage Interests of the Class or Classes affected thereby and the consent of the Companion Loan Holder (if affected thereby).

 

Further, the Depositor, the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee, at any time and from time to time, without the consent of the Certificateholders or Companion Loan Holders, may amend the Trust and Servicing Agreement to modify, eliminate or add to any of its provisions to such extent as shall be necessary: (i) to maintain the qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code, or to prevent the imposition of any additional material state or local taxes, at all times that any Certificates are outstanding; provided that such action, as evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or helpful to maintain such qualification or to prevent the imposition of any such taxes, and would not adversely affect in any material respect the interest of any Certificateholder or the Companion Loan Holder or (ii) to comply with the Investment Company Act of 1940, as amended, and/or any related regulatory actions and/or interpretations.

 

The Directing Holder and, if the Directing Holder does not exercise such option, then the Special Servicer and if the Special Servicer does not exercise such option, then the

 

A-9-9

 

 

Master Servicer, and if the Master Servicer does not exercise such option, then the Holder of a majority Percentage Interest in the Class R and Class LR Certificates, may effect an early termination of the Trust Fund (provided that such party has provided 15 Business Days’ prior notice to each of the parties with such option and none of the parties with a higher priority has elected to exercise such option within such 15 Business Day period), upon not less than 30 days’ prior Notice of Termination (which Notice of Termination shall satisfy the notice requirement of the proviso) given to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer any time on or after the Early Termination Notice Date specifying the Anticipated Final Termination Date, by purchasing on such date all, but not less than all, of the Trust Loan then included in the Trust Fund, and the Trust’s interest in all property acquired in respect of the Trust Loan, at a purchase price, payable in cash, equal to the greater of,

 

 (i)          the sum of, without duplication:

 

  (A) 100% the outstanding principal balance of the Trust Loan as of the last day of the month preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of principal);

  (B) the fair market value of all other property included in the Trust Fund as of the last day of the month preceding such Anticipated Final Termination Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date;

  (C) all unpaid interest accrued on the outstanding principal balance of the Trust Loan (including circumstances where title to the Mortgaged Property has been acquired) at the Trust Loan Rate to the last day of the Whole Loan Interest Accrual Period preceding such Anticipated Final Termination Date (less any P&I Advances previously made on account of interest); 

  (D) the aggregate amount of unreimbursed Advances, with interest thereon at the Advance Rate, unpaid Servicing Compensation, Special Servicing Compensation, Trustee/Certificate Administrator Fees, the Operating Advisor Fee, the CREFC^® License Fee and Trust Fund expenses and indemnity amounts owed by the Trust; and

 

(ii)          the aggregate fair market value of the Trust Loan, and all other property acquired in respect of the Trust Loan in the Trust Fund, on the last day of the month preceding such Distribution Date, as determined by an Independent appraiser acceptable to the Master Servicer as of a date not more than 30 days prior to the last day of the month preceding such Distribution Date, together with one month’s interest thereon at the Trust Loan Rate.

 

A-9-10

 

 

In addition, the Trust and Servicing Agreement provides that the Sole Certificateholder shall have the right to exchange all of its Regular Certificates for the Trust Loan or REO Property, as applicable, as contemplated by clause (ii) of Section 9.01(a) of the Trust and Servicing Agreement by giving written notice to all the parties to the Trust and Servicing Agreement no later than 60 days prior to the anticipated date of exchange.

 

All costs and expenses incurred by any and all parties to the Trust and Servicing Agreement or by the Trust Fund in connection with the purchase of the Trust Loan and the other assets of the Trust Fund pursuant to Section 9.01(c) of the Trust and Servicing Agreement shall be borne by the party exercising its purchase rights thereunder. The Trustee and the Certificate Administrator shall be entitled to rely conclusively on any determination made by an Independent appraiser pursuant to Section 9.01(c) of the Trust and Servicing Agreement.

 

The respective obligations and responsibilities of the Master Servicer, the Special Servicer, the Depositor, the Operating Advisor, the Certificate Administrator and the Trustee created by the Trust and Servicing Agreement with respect to the Certificates (other than the obligations of the Certificate Administrator to make certain payments and to send certain notices to Certificateholders as set forth in the Trust and Servicing Agreement) shall terminate upon payment (or provision for payment) to the Certificateholders and the Companion Loan Holder of all amounts held by or on behalf of the Trustee, the Certificate Administrator and the Master Servicer, as the case may be, required under the Trust and Servicing Agreement to be so paid on the Distribution Date following the earlier to occur of (i) the purchase of the Trust Loan and all other property held by the Trust Fund in accordance with Section 9.01(c) of the Trust and Servicing Agreement; and (ii) the exchange by the Sole Certificateholder of its Certificates for the Trust Loan in accordance with Section 9.01(g) of the Trust and Servicing Agreement and (iii) the later of (a) the receipt or collection of the last payment due on the Trust Loan included in the Trust Fund, or (b) the liquidation and disposition pursuant to the Trust and Servicing Agreement of the last asset held by the Trust Fund; provided, however, that in no event shall the trust created by the Trust and Servicing Agreement continue beyond the expiration of twenty-one years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the United Kingdom, living on the date hereof.

 

Unless the Certificate of Authentication on this Certificate has been executed by the Certificate Administrator or on its behalf by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Trust and Servicing Agreement or be valid for any purpose.

 

This Certificate does not purport to summarize the Trust and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the parties thereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust and Servicing Agreement, to which Trust and Servicing Agreement, as amended from time to time, the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Trust and Servicing Agreement, the terms of the Trust and Servicing Agreement shall govern.

 

A-9-11

 

 

IN WITNESS WHEREOF, the Certificate Administrator has caused this Class R Certificate to be duly executed.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Certificate Administrator
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

Certificate of Authentication

 

This is one of the Class R Certificates referred to in the Trust and Servicing Agreement.

 

Dated: _________

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as Authenticating Agent
	By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

 

A-9-12

 

 

 

EXHIBIT B

 

MORTGAGE LOAN SCHEDULE

 

 

CAMB 2021-CX2

 

Loan Name

Address

City

State

Zip Code

Trust Loan Interest Rate

Whole Loan Interest Rate

Trust Loan Original Principal Balance

Whole Loan Original Principal Balance

Trust Loan Cut- off Date Principal Balance

Whole Loan Cut- off Date Principal Balance

Payment Day

First Pmt Date

Trust Loan Monthly Debt Service

Whole Loan Monthly Debt Service

Maturity Date

Fully Extended Maturity

Master

Primary

Cert Admin Fee Rate

CREFC Fee Rate

OA Rate

Admin Fee Rate

Letter of Credit

CX - 350 and 450 Water Street

350 and 450 Water Street

Cambridge

MA

02141

2.79200%

2.7920%

$696,000,000

$1,225,000,000

$696,000,000

$1,225,000,000

6

12/6/2021

$1,641,851.11

$2,889,752.31

11/6/2031

11/6/2036

0.00750%

0.00600%

0.00450%

0.00050%

0.00230%

0.02080%

N/A

 

EXHIBIT C-1

 

FORM OF TRANSFEREE AFFIDAVIT

 

AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED

 

STATE OF	)
	) ss.:
COUNTY OF	)

                            , being first duly sworn, deposes and says:

1.      That he/she is a                       of                       (the “Purchaser”), a                         duly organized and existing under the laws of the State of_________ on behalf of which he/she makes this affidavit.

2.      That the Purchaser’s Taxpayer Identification Number is                      .

3.      That the Purchaser of the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [R][LR] (the “Class [R][LR] Certificate”) is a Permitted Transferee (as defined in Article I of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), entered into in connection with the CAMB 2021-CX2 Mortgage Trust securitization transaction) or is acquiring the Class [R][LR] Certificate for the account of, or as agent (including as a broker, nominee, or other middleman) for, a Permitted Transferee and has received from such person or entity an affidavit substantially in the form of this affidavit.

4.      That the Purchaser historically has paid its debts as they have come due and intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Class [R][LR] Certificate as they become due.

5.      That the Purchaser understands that it may incur tax liabilities with respect to the Class [R][LR] Certificate in excess of any cash flow generated by the Class [R][LR] Certificate.

6.      That the Purchaser will not transfer the Class [R][LR] Certificate to any person or entity from which the Purchaser has not received an affidavit substantially in the form of this affidavit or as to which the Purchaser has actual knowledge that the requirements set forth in paragraph 3, paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has reason to know does not satisfy the requirements set forth in paragraph 4 hereof.

7.      That the Purchaser is not a Disqualified Non-U.S. Person and is not purchasing the Class [R][LR] Certificate for the account of, or as an agent (including as a broker, nominee or other middleman) for, a Disqualified Non-U.S. Person and is otherwise a Permitted Transferee.

C-1-1

8.      That the Purchaser agrees to such amendments of the Trust and Servicing Agreement as may be required to further effectuate the restrictions on transfer of the Class [R][LR] Certificate to a “disqualified organization,” an agent thereof, or a person that does not satisfy the requirements of paragraph 4, paragraph 7 and paragraph 11 hereof.

9.      The Purchaser agrees to the irrevocable designation of the Certificate Administrator as the “partnership representative” within the meaning of Section 6223 of the Code of the [Upper-Tier REMIC][Lower-Tier REMIC] and to the Certificate Administrator making any elections allowed under the Code to avoid (i) the application of Section 6221 of the Code (or successor provisions) to the [Upper-Tier REMIC][Lower-Tier REMIC] and (ii) payment by the [Upper-Tier REMIC][Lower-Tier REMIC] under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any holder of a Class [R][LR] Certificate, past or present.

10.  The Purchaser agrees to be bound by and to abide by the provisions of Section 5.02 of the Trust and Servicing Agreement concerning registration of the transfer and exchange of the Class [R][LR] Certificate.

11.  The Purchaser will not cause income from the Class [R][LR] Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other U.S. Person.

12.  Check the applicable paragraph:

□       The present value of the anticipated tax liabilities associated with holding the Class [R][LR] Certificate, as applicable, does not exceed the sum of:

(i) the present value of any consideration given to the Purchaser to acquire such Class [R][LR] Certificate;

(ii) the present value of the expected future distributions on such Certificate; and

(iii) the present value of the anticipated tax savings associated with holding such Class [R][LR] Certificate as the related REMIC generates losses.

For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the rate currently specified in Code Section 11(b) (but the tax rate in Code Section 55(b)(1)(B) may be used in lieu of the highest rate specified in Code Section 11(b) if the Purchaser has been subject to the alternative minimum tax under Code Section 55 in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Code Section 1274(d) for the month of the transfer and the compounding period used by the Purchaser.

□       The transfer of the Class [R][LR] Certificate complies with U.S. Treasury Regulations Section 1.860E-1(c)(5) and (6) and, accordingly,

C-1-2

(i) the Purchaser is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Class [R][LR] Certificate will only be taxed in the United States;

(ii) at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;

(iii) the Purchaser will transfer the Class [R][LR] Certificate only to another “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Section 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and

(iv) the Purchaser determined the consideration paid to it to acquire the Class [R][LR] Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.

□       None of the above.

Capitalized terms used but not defined herein have the respective meanings ascribed to such terms in the Trust and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on its behalf by its                              this day of          ,               .

[The Purchaser]
By:
	Name:
	Title:

C-1-3

Personally appeared before me the above named [_____], known or proved to me to be the same person who executed the foregoing instrument and to be the of the Purchaser, and acknowledged to me that he/she executed the same as his/her free act and deed and the free act and deed of the Purchaser.

Subscribed and sworn before me this      day of               , 20    .

NOTARY PUBLIC

COUNTY OF                                        

STATE OF                                            

My commission expires the      day of               , 20    .

C-1-4

EXHIBIT C-2

FORM OF TRANSFEROR CERTIFICATE

[Date]

Wells Fargo Bank, National Association
Certificate Registrar 

600 South 4th Street, 7th Floor 

MAC: N9300-070

Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Re:       CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [R][LR]

Ladies and Gentlemen:

[Transferor] has reviewed the attached affidavit of [Transferee], and has no actual knowledge that such affidavit is not true or that [Transferee] is not a Permitted Transferee (as defined in the Trust and Servicing Agreement defined in the attached affidavit) and has no actual knowledge or reason to know that the information contained in the attached affidavit is not true. No purpose of [Transferor]’s transfer of the Class [R][LR] Certificate[s] to [Transferee] is or will be to impede the assessment of any tax.

Very truly yours,
[Transferor]
By:
	Name:
	Title:

C-2-1

EXHIBIT C-3

FORM OF TRANSFEREE Certificate for Transfer OF RISK RETAINED CERTIFICATES

[Date]

Wells Fargo Bank, National Association

as Certificate Registrar 

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Risk Retention Custody
(CMBS) — CAMB 2021-CX2

3650 Cal Bridge Lending, LLC

as Retaining Sponsor

2977 McFarlane Road, Suite 300

Miami, Florida 33133
Attention: Jonathan Roth and Mark A.
Jefferis

Deutsche Mortgage & Asset Receiving Corporation

1 Columbus Circle

New York, New York 10019
Attention: Helaine M. Kaplan

with copies via email to:

cmbs.requests@db.com

Re: CAMB 2021-CX2 Commercial Mortgage Pass-Through Certificates (the “Certificates”) issued pursuant to the Trust and Servicing Agreement (the “Trust and Servicing Agreement”), dated as of November 9, 2021, between Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, Situs Holdings, LLC, as Special Servicer, Wilmington Trust, National Association, as trustee, Wells Fargo Bank, National Association, as Certificate Administrator, and Park Bridge Lender Services LLC, as Operating Advisor

C-3-1

STATE OF	)
	) ss.:
COUNTY OF	)

[_____] (the “Purchaser”) hereby certifies, represents and warrants to you, as Certificate Registrar and as “retaining sponsor”, respectively, as such term is defined in Regulation RR, that:

1. The Purchaser is acquiring (the “Transfer”) $[_____] aggregate Certificate Balance of the Class HRR Certificates from [_____] (the “Transferor”).

2. If the Purchaser is acquiring the Class HRR Certificates after the termination of the Transfer Restriction Period and the Purchaser is not a “majority-owned affiliate” (as defined in the Credit Risk Retention Rules) of the Retaining Sponsor, then Purchaser is an eligible Successor Third Party Purchaser.

3. The Purchaser is aware that the Certificate Registrar will not register any transfer of any portion of the Class HRR Certificate by the Transferor unless the Purchaser’s transferee, or such transferee’s agent, delivers to the Certificate Registrar, among other things, a certificate in substantially the same form as this certificate. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such certificate is false.

4. The Transfer is in compliance with any applicable credit risk retention agreement in effect between the Retaining Sponsor and the Depositor and, if applicable, a Successor Third Party Purchaser if it is the Transferor, and the Transferor has satisfied all requirements pursuant to such credit risk retention agreement.

5. The Purchaser represents that it is not acquiring the Class HRR Certificate as a nominee, trustee or agent for any person that is not an eligible Successor Third Party Purchaser and that for so long as it retains its interest in the Class HRR Certificate, it will endeavor to remain an eligible Successor Third Party Purchaser.

6. The Purchaser has reviewed the relevant provisions of the Trust and Servicing Agreement; and the Purchaser expressly agrees to be bound by and to comply with such provisions.

7. If the Purchaser is an insurance company general account relying on PTCE 95-60 to cover its acquisition of the Class HRR Certificates, (a) all of the conditions of Parts I and III of PTCE 95-60 will be satisfied with respect to the acquisition of the Class HRR Certificates and (b) the acquisition of the Class HRR Certificates will be effected through Deutsche Bank Securities Inc, BofA Securities, Inc. and J.P. Morgan Securities LLC.

8. Check one of the following:

□       The Transfer will occur during the Transfer Restriction Period, and the Purchaser certifies, represents and warrants to you, as Certificate Registrar, that:

C-3-2

A. It is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

B. It is not acquiring the Class HRR Certificates as a nominee, trustee or agent for any person that is not a Majority-Owned Affiliate, and that for so long as it retains its interest in the Class HRR Certificates, it will remain a Majority-Owned Affiliate.

C. If applicable and required, it will deliver a joinder agreement substantially in the form attached to the applicable Successor Third Party Purchaser credit risk retention agreement, pursuant to which it has agreed to be bound by the terms of such credit risk retention agreement to the same extent as if it was the Transferor itself.

□       The transfer will occur during the Transfer Restriction Period with respect to the Class HRR Certificate, and the Purchaser certifies, represents and warrants to each of the addressees hereto that it is in compliance with the applicable credit risk retention agreement between such Trasnsferor and [_].

□       The transfer will occur after the expiration of the Transfer Restriction Period with respect to the Class HRR Certificate and the consent of the Retaining Sponsor is not required.

Capitalized terms used but not defined herein have the meanings assigned thereto in the Trust and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

[PURCHASER]
By:
	Name:
	Title:

C-3-3

On this ____ day of _______20__, before me, the undersigned, a Notary Public in and for the State of _______________, duly commissioned and sworn, personally appeared ______________________ and ________________________, known or proved to me to be the same persons who executed the foregoing instrument and to be _____________________________ and ___________________________, respectively, of the Purchaser, and acknowledged to me that they executed the same as their respective free acts and deeds and as the free act and deed of the Purchaser.

NOTARY PUBLIC in and for the
State of _______________

[SEAL]

My Commission expires:

C-3-4

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING PARTY]
By:
	Name:
	Title:
3650 CAL BRIDGE LENDING, LLC, a Delaware limited liability company
By: 3650 Bridge Cal-SMA Manager LLC, its Manager
By:
	Name:
	Title:

C-3-5

EXHIBIT C-4

FORM OF TRANSFEROR Certificate for Transfer of RISK RETAINED CERTIFICATES

[Date]

Wells Fargo Bank, National Association

as Certificate Registrar

9062 Old Annapolis Road

Columbia, Maryland 21045-1951

Attention: Risk Retention Custody (CMBS)
— CAMB 2021-CX2

3650 Cal Bridge Lending, LLC

as Retaining Sponsor

2977 McFarlane Road, Suite 300

Miami, Florida 33133
Attention: Jonathan Roth and Mark A. Jefferis

Deutsche Mortgage & Asset Receiving Corporation

1 Columbus Circle

New York, New York 10019
Attention: Helaine M. Kaplan

with copies via email to:

cmbs.requests@db.com

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

Ladies and Gentlemen:

This is delivered to you in connection with the transfer (the “Transfer”) by [______] (the “Transferor”) to [______] (the “Transferee”) of $[_____] aggregate Certificate Balance of the Class HRR Certificates.

The Class HRR Certificates were issued pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), between Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, Situs Holdings, LLC, as Special Servicer, Wilmington Trust, National

C-4-1

Association, as trustee, Wells Fargo Bank, National Association, as Certificate Administrator, and Park Bridge Lender Services LLC, as Operating Advisor. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Trust and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you that:

1. The transfer is in compliance with Section [_] and Section [_], as applicable, of that certain credit risk retention agreement in effect between the retaining sponsor, the Depositor, and if applicable, a Successor Third Party Purchaser and the Transferor (the “Third Party Purchaser Agreement”) and the Trust and Servicing Agreement.

2. Check one of the following:

□ The transfer will occur during the Transfer Restriction Period, and the Transferor certifies, represents and warrants to you, as Certificate Registrar, that:

A. The Transferee is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

B. The Transferor has satisfied all of the conditions under the applicable credit risk retention agreement and the Trust and Servicing Agreement applicable to transfers by the Transferor to a Majority-Owned Affiliate.

C. The Transferor certifies, represents and warrants to you that the Transferor has provided notice of the Transfer to the Retaining Sponsor and the Depositor and the Retaining Sponsor has consented to the Transfer, a copy of which is attached hereto.

□ The transfer will occur after the Transfer Restriction Period with respect to the Class HRR Certificate, and the Transferor certifies, represents and warrants to you that:

A. The Transferor has satisfied all of the conditions under the applicable credit risk retention agreement and the Trust and Servicing Agreement applicable to transfers by the Transferor to successor Third Party Purchasers.

B. The Transferor certifies, represents and warrants to you that the Transferor has provided notice of the Transfer to the Retaining Sponsor and the Depositor and the Retaining Sponsor has consented to the Transfer, a copy of which is attached hereto.

3. The Transferor understands that the Transferee has delivered to you a Transferee Certificate in the form attached to the Trust and Servicing Agreement as Exhibit C-3. The Transferor does not know or believe that the Transferee is not an eligible Successor Third Party Purchaser and does not know or believe that any representation contained therein is false.

C-4-2

IN WITNESS WHEREOF, the Transferor has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

[TRANSFEROR]
By:
	Name:
	Title:

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

3650 CAL BRIDGE LENDING, LLC, a Delaware limited liability company
By: 3650 Bridge Cal-SMA Manager LLC, its Manager
By:
	Name:
	Title:

C-4-3

EXHIBIT D-1

FORM OF INVESTMENT REPRESENTATION LETTER

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: Corporate Trust Services, CAMB 2021-CX2

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan

with a copy via e-mail to cmbs.requests@db.com

Re: Transfer of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates: Class [__]

Ladies and Gentlemen:

This letter is delivered pursuant to Section 5.02 of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), entered into in connection with the CAMB 2021-CX2 securitization transaction and the issuance of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (the “Certificates”) in connection with the transfer by [_______] (the “Seller”) to the undersigned (the “Purchaser”) of [$_____ aggregate [Certificate Balance][_____% Percentage Interest]] of Class [__] Certificates, in certificated fully registered form (such registered interest, the “Certificate”). Capitalized terms used but not defined herein have the respective meanings set forth in the Trust and Servicing Agreement.

In connection with such transfer, the undersigned hereby represents and warrants to you as follows:

[For Institutional Accredited Investors only]

(i) The Purchaser is an “institutional accredited investor” (i.e., an entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners meet the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Certificate, and the Purchaser and any accounts for which the Purchaser is acting are each able to bear the economic risk of our or its investment. The Purchaser is acquiring the Certificate for its own account or for one or more accounts (each of which is an “institutional accredited investor”) as to each of which the Purchaser exercises sole investment discretion. The Purchaser hereby

D-1-1

undertakes to reimburse the Trust for any costs incurred by it in connection with this transfer.

[For Qualified Institutional Buyers only]

(i) The Purchaser is a “qualified institutional buyer” within the meaning of Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Purchaser is aware that the transfer is being made in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the information required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.

(ii) The Purchaser’s intention is to acquire the certificate (A) for investment for the Purchaser’s own account or (B) for resale to (1) “qualified institutional buyers” in transactions under Rule 144A, (2) “institutional accredited investors” meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners meet the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act, or (3) pursuant to any other exemption from the registration requirements of the Securities Act, subject in the case of this clause (ii) to (a) the receipt by the Certificate Registrar of a letter substantially in the form hereof, (b) in the case of a transfer to an Affiliated Person, the receipt by the Certificate Registrar of an opinion of counsel acceptable to the Certificate Registrar that such reoffer, resale, pledge or other transfer is in compliance with the Securities Act, (c) the receipt by the Certificate Registrar of such other evidence acceptable to the Certificate Registrar that such reoffer, resale, pledge or other transfer is in compliance with the Securities Act and other applicable laws (including applicable state and foreign securities laws), and (d) a written undertaking to reimburse the Trust for any costs incurred by it in connection with the proposed transfer. It understands that the Certificate (and any subsequent Individual Certificate) has not been registered under the Securities Act, by reason of a specified exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the Purchaser’s investment intent (or intent to resell to only certain investors in certain exempted transactions) as expressed herein.

(iii) The Purchaser acknowledges that the Certificate (and any Certificate issued on transfer or exchange thereof) has not been registered or qualified under the Securities Act or the securities laws of any State or any other jurisdiction, and that the Certificate cannot be reoffered, resold, pledged or otherwise transferred unless it is registered or qualified thereunder or unless an exemption from such registration or qualification is available.

(iv) The Purchaser has reviewed the applicable Offering Circular dated October 22, 2021, relating to the Certificates (the “Offering Circular”) and the agreements and other materials referred to therein and has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by the Offering Circular.

D-1-2

(v) The Purchaser hereby undertakes to be bound by the terms and conditions of the Trust and Servicing Agreement in its capacity as an owner of an Individual Certificate or Certificates, as the case may be (each, a “Certificateholder”), in all respects as if it were a signatory thereto. This undertaking is made for the benefit of the Trust, the Trustee, the Certificate Administrator, the Certificate Registrar and all Certificateholders present and future.

(vi) The Purchaser will not sell or otherwise transfer any portion of the Certificate, except in compliance with Section 5.02 of the Trust and Servicing Agreement.

(vii) Check one of the following:

□       The Purchaser is a “U.S. Person” and it has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).

□       The Purchaser is not a “U.S. Person” and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Registrar (or its agent) with respect to Distributions to be made on the Certificate(s). The Purchaser has attached hereto [(i) a duly executed IRS Form W-8BEN or W-8BEN-E, as applicable, (or successor form), which identifies such Purchaser as the beneficial owner of the Certificate(s) and states that such Purchaser is not a U.S. Person, (ii) two duly executed copies of IRS Form W-8IMY (and all appropriate attachments) or (iii)]* two duly executed copies of IRS Form W-8ECI (or successor form), which identify such Purchaser as the beneficial owner of the Certificate(s) and state that interest and original issue discount on the U.S. Securities is, or is expected to be, effectively connected with a U.S. trade or business. The Purchaser agrees to provide to the Certificate Registrar updated [IRS Forms W-8BEN or W-8BEN-E, as applicable, IRS Forms W-8IMY or]* IRS Forms W-8ECI[, as the case may be]*, any applicable successor IRS forms, or such other certifications as the Certificate Registrar may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Registrar.

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

Please make all payments due on the Certificates:**

(a) by wire transfer to the following account at a bank or entity in New York, New York, having appropriate facilities therefor:

D-1-3

Account number:                                                                   

Institution:                                                  

(b) by mailing a check or draft to the following address:

Very truly yours,
[The Purchaser]
By:
	Name:
	Title:

Dated: ________________, 20___

* Delete for Class R and Class LR.

** Only to be filled out by Purchasers of Individual Certificates. Please select (a) or (b).

D-1-4

EXHIBIT D-2

FORM OF ERISA REPRESENTATION LETTER

[Date]

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan

with a copy via e-mail to cmbs.requests@db.com

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through
Certificates, Class [     ]

Ladies and Gentlemen:

[_____] (the “Purchaser”) intends to purchase from [______] (the “Seller”) $[_] initial Certificate Balance of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [ ], CUSIP No. [_____] (the “Certificates”), issued pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), entered into in connection with the CAMB 2021-CX2 securitization transaction. Capitalized terms used but not defined herein have the respective meanings set forth in the Trust and Servicing Agreement. The Purchaser hereby certifies, represents and warrants to, and covenants with, the Depositor, the Certificate Administrator, the Certificate Registrar and the Trustee that:

The Purchaser is not and will not become (a) an employee benefit plan or other plan or retirement arrangement, including an individual retirement account or a Keogh plan, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or to Section 4975 of the Code, or a governmental plan, as defined in Section 3(32) of ERISA, or other plan subject to any federal, state or local law (“Similar Law”) which is to a material extent similar to the fiduciary responsibility provisions of ERISA or to Section 4975 of the Code (each, a “Plan”), or (b) a person acting on behalf of any such Plan or using the assets of any such Plan (including any entity whose underlying assets include plan assets by reason of a Plan’s investment in the entity (within the meaning of Department of Labor Regulations Section 2510.3-101, as modified by Section 3(42) of ERISA)), other than (except with respect to the Class S, Class R and Class LR Certificates) an insurance company general account acquiring its interest in the Certificates under circumstances where all requirements of Sections I and III of Department of Labor Prohibited Transaction Exemption 95-60 will be met with respect to its acquisition, holding and disposition of the Certificates (or in the case of a Plan subject to Similar Law, where its acquisition, holding and disposition of the Certificates will not result in a non-exempt violation of Similar Law).

D-2-1

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on this ___ day of __________, 20__.

Very truly yours,
[Purchaser]
By:
	Name:
	Title:

D-2-2

EXHIBIT E

FORM OF REQUEST FOR RELEASE

Loan Information
Name of Borrowers:	DW Propco G, LLC and DW Propco H, LLC
[Master Servicer][Special Servicer] Loan No.:
Custodian
Name:	Wells Fargo Bank, National Association
Address:	Wells Fargo Bank, N.A. 1055 10th Avenue SE Minneapolis, Minnesota 55414 Attention: Document Custody Group CAMB 2021-CX2 E-mail: cmbscustody@wellsfargo.com
Custodian Mortgage File No.:
Depositor
Name:	Deutsche Mortgage & Asset Receiving Corporation
Address:	Deutsche Mortgage & Asset Receiving Corporation 1 Columbus Circle New York, New York 10019
Certificates:	CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

The undersigned [Master Servicer][Special Servicer] hereby requests delivery from Wells Fargo Bank, National Association, as Custodian for the Holders of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, the documents (the “Documents”) specified below. All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction.

( )

( )

( )

( )

E-1

The undersigned [Master Servicer][Special Servicer] hereby acknowledges and agrees as follows:

(i)                        The [Master Servicer][Special Servicer] shall hold and retain possession of the Documents in trust for the benefit of the Trustee, solely for the purposes provided in the Trust and Servicing Agreement.

(ii)                        The [Master Servicer][Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claim, liens, security interest, charges, writs of attachment or other impositions nor shall the [Master Servicer][Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof except as otherwise provided in the Trust and Servicing Agreement.

(iii)                        The [Master Servicer][Special Servicer] shall return the Documents to the Custodian when the need therefor no longer exists, unless the Whole Loan has been liquidated or the Whole Loan has been paid in full and the proceeds thereof have been remitted to the Collection Account, except as expressly provided in the Trust and Servicing Agreement.

(iv)                        The Documents coming into the possession or control of the [Master Servicer][Special Servicer] shall at all times be held for the account of the Trustee, and the [Master Servicer][Special Servicer] shall keep the Documents and any proceeds separate and distinct from all other property in the [Master Servicer][Special Servicer]’s possession, custody or control.

		[MASTER SERVICER/SPECIAL SERVICER]
		By:
			Name:
			Title:
Dated:	______________

E-2

EXHIBIT F

SECURITIES LEGEND

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (“QUALIFIED INSTITUTIONAL BUYER”) PURCHASING FOR ITS OWN ACCOUNT, OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, OR (4) TO AN INSTITUTION THAT IS A NON “U.S. PERSON” IN AN “OFFSHORE TRANSACTION,” AS SUCH TERMS ARE DEFINED IN, AND IN ACCORDANCE WITH, RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE TRUST AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE TRUST AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.

F-1

EXHIBIT G

FORM OF REGULATION S TRANSFER CERTIFICATE

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Re: Transfer of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [    ]

Ladies and Gentlemen:

This certificate is delivered pursuant to Section 5.02 of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, on behalf of the holders of the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [    ] (the “Certificates”) in connection with the transfer by the undersigned (the “Transferor”) to [_____] (the “Transferee”) of $[_____] Certificate Balance of Certificates, in fully registered form (each, an “Individual Certificate”), or a beneficial interest of such aggregate Certificate Balance in the Regulation S Global Certificate (the “Global Certificate”) maintained by The Depository Trust Company or its successor as Depositary under the Trust and Servicing Agreement (such transferred interest, in either form, being the “Transferred Interest”).

In connection with such transfer, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Trust and Servicing Agreement and the Certificates and (i) with respect to transfers made in accordance with Regulation S (“Regulation S”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:

(1)       the offer of the Transferred Interest was not made to a person in the United States;

[(2) at the time the buy order was originated, the Transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the Transferee was outside the United States;]^*

[(2) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the undersigned nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]*

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

G-1

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

or (ii) with respect to transfers made in reliance on Rule 144 under the Securities Act, the Transferor does hereby certify that the Certificates that are being transferred are not “restricted securities” as defined in Rule 144 under the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Operating Advisor.

	[Insert Name of Transferor]
	By:
		Name:
		Title:
Dated: ________________, 20__

G-2

EXHIBIT H

FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD

(Exchanges or transfers pursuant to Section 5.02(c)(ii)(A) of
the Trust and Servicing Agreement)

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Re: Transfer of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [    ]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to US $[_____] aggregate Certificate Balance of Certificates (the “Certificates”) which are held in the form of a Rule 144A Global Certificate (CUSIP No. [_____]) with the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested a transfer of such beneficial interest for an interest in the Regulation S Global Certificate (CUSIP No. [_____]) to be held with [Euroclear] [Clearstream]^* (Common Code) through the Depositary.

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such transfer has been effected in accordance with the Transfer restrictions set forth in the Trust and Servicing Agreement and pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any persons acting on its behalf reasonably believed that the Transferee was outside the United States,]^**

^* Select appropriate depository.

^** Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

H-1

[(2)     the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,]^*

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Operating Advisor.

	[Insert Name of Transferor]
	By:
		Name:
		Title:
Dated: ________________, 20__

H-2

EXHIBIT I

FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD

(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Re: Transfer of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates Class [    ]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

The letter relates to U.S. $[_____] aggregate Certificate Balance of Certificates (the “Certificates”) which are held in the form of the Rule 144A Global Certificate (CUSIP No. [_____]) with the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Certificates for an interest in the Regulation S Global Certificate (Common Code No. [_____]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Trust and Servicing Agreement and, (i) with respect to transfers made in reliance on Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States,]^*

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,]^*

* Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

I-1

(3)       no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act;

or (ii) with respect to transfers made in reliance on Rule 144 under the Securities Act, the Transferor does hereby certify that the Certificates that are being transferred are not “restricted securities” as defined in Rule 144 under the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Operating Advisor.

	[Insert Name of Transferor]
	By:
		Name:
		Title:
Dated: ________________, 20__

I-2

EXHIBIT J

FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE

(Exchange or transfers pursuant to Section 5.02(c)(ii)(C)
of the Trust and Servicing Agreement)

Wells Fargo Bank, National Association
Certificate Registrar
600 South 4th Street, 7th Floor MAC N9300-070
Minneapolis, Minnesota 55415
Attention: CTS - Certificate Transfer Services, CAMB 2021-CX2

Re: Transfer of CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates, Class [    ]

Reference is hereby made to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction. Capitalized terms used but not defined herein shall have the meanings given to them in the Trust and Servicing Agreement.

This letter relates to U.S. $[_____] aggregate Certificate Balance of Certificates (the “Certificates”) which are held in the form of the Regulation S Global Certificate (CUSIP No. [_____]) with [Euroclear] [Clearstream]^* (Common Code [_____]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested a transfer of such beneficial interest in the Certificates for an interest in the Regulation 144A Global Certificate (CUSIP No. [_____]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being transferred in accordance with (i) the transfer restrictions set forth in the Trust and Servicing Agreement and (ii) Rule 144A under the Securities Act to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is “qualified institutional buyer” within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or an jurisdiction.

^* Select appropriate depositary.

J-1

This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer and the Operating Advisor.

	[Insert Name of Transferor]
	By:
		Name:
		Title:
Dated: ________________, 20__

J-2

EXHIBIT K

FORM OF DISTRIBUTION DATE STATEMENT 

K-1

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Table of Contents
Section	Pages
Certificate Distribution Detail	2
Certificate Factor Detail	3
Certificate Interest Reconciliation Detail	4
Additional Information	5
Bond / Collateral Reconciliation - Cash Flows	6
Certificate Ratings Detail	7
Bond / Collateral Reconciliation - Balances	8
Mortgage Loan Detail (Part 1)	9
Mortgage Loan Detail (Part 2)	10
Principal Prepayment Detail	11
Historical Detail	12
Delinquency Loan Detail	13
Collateral Stratification and Historical Detail	14
Specially Serviced Loan Detail - Part 1	15
Specially Serviced Loan Detail - Part 2	16
Modified Loan Detail	17
Historical Liquidated Loan Detail	18
Historical Bond / Collateral Loss Reconciliation Detail	19
Interest Shortfall Detail - Collateral Level	20
Supplemental Notes	21

Contacts
Role	Party and Contact Information
Depositor	Deutsche Mortgage & Asset Receiving Corporation
	Helaine M. Kaplan	cmbs.requests@db.com
	1 Columbus Circle, | New York, NY 10019
Certificate Administrator	Computershare Trust Company, N.A. as agent for Wells Fargo
	Bank, N.A.
	Corporate Trust Services (CMBS)	cts.cmbs.bond.admin@wellsfargo.com;  trustadministrationgroup@wellsfargo.com
	9062 Old Annapolis Road, | Columbia, MD 21045
Master Servicer	KeyBank National Association
	Michael Tilden	michael_a_tilden@keybank.com
	11501 Outlook Street, Suite 300, | Overland Park, KS 66211
Special Servicer	Situs Holdings, LLC
	Attention: Stacey Ciarlanti	staceyciarlanti@situsamc.com
	2 Embarcadero Center, 8th Floor, | San Francisco, CA 94111
Operating Advisor	Park Bridge Lender Services LLC
	CAMB 2021-CX2 Surveillance Manager	cmbs.notices@parkbridgefinancial.com
	600 Third Avenue, 40th Floor, | New York, NY 10016
Trustee	Wilmington Trust, National Association
	Attention: CMBS Trustee – CAMB 2021-CX2	cmbstrustee@wilmingtontrust.com
	1100 North Market St., | Wilmington, DE 19890
Rating Agency	DBRS, Inc.
	Attention: CMBS Surveillance	CMBS.surveillance@morningstar.com
	22 West Washington Street, | Chicago, IL 60602
Rating Agency	Fitch Ratings, Inc.
	Commercial Mortgage Surveillance Group	info.cmbs@fitchratings.com
	300 West 57th Street, | New York, NY 10019

This report is compiled by Computershare Trust Company, N.A. from information provided by third parties. Computershare Trust Company, N.A. has not independently confirmed the accuracy of the information.

Please visit www.ctslink.com for additional information and if applicable, any special notices and any credit risk retention notices. In addition, certificate holders may register online for email notification when special notices are posted. For information or assistance please call 866-846-4526.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 1 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Certificate Distribution Detail
Class	CUSIP	Pass-Through Rate (2)	Original Balance	Beginning Balance	Principal Distribution	Interest Distribution	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance	Current Credit Support¹	Original Credit Support¹
Regular Certificates
A		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
B		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
C		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
D		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
HRR		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
S		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
R		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
LR		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00%	0.00%
Regular SubTotal			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Notional Certificates
X		0.000000%	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Notional SubTotal			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Deal Distribution Total					0.00	0.00	0.00	0.00	0.00

*	Denotes the Controlling Class (if required)
(1)	Calculated by taking (A) the sum of the ending certificate balance of all classes in a series less (B) the sum of (i) the ending certificate balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate to the designated class and dividing the result by (A).
(2)	Pass-Through Rates with respect to any Class of Certificates on next month's Payment Date is expected to be the same as the current respective Pass-Through Rate, subject to any modifications on the underlying loans, any change in certificate or pool balance, any change in the underlying index (if and as applicable), and any other matters provided in the governing documents.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 2 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Certificate Factor Detail
Class	CUSIP	Beginning Balance	Principal Distribution	Interest Distribution	Interest Shortfalls / (Paybacks)	Cumulative Interest Shortfalls	Prepayment Penalties	Realized Losses	Total Distribution	Ending Balance
Regular Certificates
A		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
B		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
C		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
D		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
HRR		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
S		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
R		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
LR		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000
Notional Certificates
X		0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000	0.00000000

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 3 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Certificate Interest Reconciliation Detail
Class	Accrual Period	Accrual Days	Prior Cumulative Interest Shortfalls	Accrued Certificate Interest	Net Aggregate Prepayment Interest Shortfall	Distributable Certificate Interest	Interest Shortfalls / (Paybacks)	Payback of Prior Realized Losses	Additional Interest Distribution Amount	Interest Distribution	Cumulative Interest Shortfalls
A	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
X	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
B	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
C	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
D	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
HRR	MM/DD/YY-MM/DD/YY	0	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00
Totals			0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00	0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 4 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Additional Information

Total Available Distribution Amount (1)	0.00
Borrower Reimbursable Trust Fund Expenses	0.00

(1) The Available Distribution Amount includes any Prepayment Penalties.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 5 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Bond / Collateral Reconciliation - Cash Flows

Total Funds Collected

Interest
	Interest Paid or Advanced	0.00
	Interest Reductions due to Nonrecoverability Determination	0.00
	Interest Adjustments	0.00
	Deferred Interest	0.00
	ARD Interest	0.00
	Net Prepayment Interest Excess / (Shortfall)	0.00
	Extension Interest	0.00
	Interest Reserve Withdrawal	0.00
	Total Interest Collected	0.00

Principal
	Scheduled Principal	0.00
	Unscheduled Principal Collections
	Principal Prepayments	0.00
	Collection of Principal after Maturity Date	0.00
	Recoveries From Liquidations and Insurance Proceeds	0.00
	Excess of Prior Principal Amounts Paid	0.00
	Curtailments	0.00
	Negative Amortization	0.00
	Principal Adjustments	0.00
	Total Principal Collected	0.00

Other
	Prepayment Penalties / Yield Maintenance	0.00
	Gain on Sale / Excess Liquidation Proceeds	0.00
	Borrower Option Extension Fees	0.00
	Total Other Collected	0.00

Total Funds Collected 0.00

Total Funds Distributed

Fees
	Master Servicing Fee	0.00
	Certificate Administrator Fee	0.00
	Trustee Fee	0.00
	CREFC® Intellectual Property Royalty License Fee	0.00
	Operating Advisor Fee	0.00
	Total Fees	0.00

Expenses/Reimbursements
	Reimbursement for Interest on Advances	0.00
	ASER Amount	0.00
	Special Servicing Fees (Monthly)	0.00
	Special Servicing Fees (Liquidation)	0.00
	Special Servicing Fees (Work Out)	0.00
	Legal Fees	0.00
	Rating Agency Expenses	0.00
	Taxes Imposed on Trust Fund	0.00
	Non-Recoverable Advances	0.00
	Workout Delayed Reimbursement Amounts	0.00
	Other Expenses	0.00
	Total Expenses/Reimbursements	0.00

Interest Reserve Deposit 0.00

Payments to Certificateholders and Others
	Interest Distribution	0.00
	Principal Distribution	0.00
	Prepayment Penalties / Yield Maintenance	0.00
	Borrower Option Extension Fees	0.00
	Total Payments to Certificateholders and Others	0.00

Total Funds Distributed 0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 6 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Certificate Ratings Detail

		DBRS, Inc.			Fitch Ratings, Inc.
Class	CUSIP	Original	Current1	Date Last Changed	Original	Current1	Date Last Changed
A				MM/DD/YY			MM/DD/YY
X				MM/DD/YY			MM/DD/YY
B				MM/DD/YY			MM/DD/YY
C				MM/DD/YY			MM/DD/YY
D				MM/DD/YY			MM/DD/YY
HRR				MM/DD/YY			MM/DD/YY

NR - Designates that the class was not rated by the above agency at the time of original issuance.

N/A - Data not available this period.

X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.

(1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating agencies.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 7 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Bond / Collateral Reconciliation - Balances

Collateral Reconciliation

		Total
Beginning Scheduled Collateral Balance	0.00	0.00
(-) Scheduled Principal Collections	0.00	0.00
(-) Unscheduled Principal Collections	0.00	0.00
(-) Principal Adjustments (Cash)	0.00	0.00
(-) Principal Adjustments (Non-Cash)	0.00	0.00
(-) Realized Losses from Collateral	0.00	0.00
(-) Other Adjustments²	0.00	0.00
Ending Scheduled Collateral Balance	0.00	0.00
Beginning Actual Collateral Balance	0.00	0.00
Ending Actual Collateral Balance	0.00	0.00

Certificate Reconciliation

		Total
Beginning Certificate Balance		0.00
(-) Principal Distributions		0.00
(-) Realized Losses		0.00
	Realized Loss and Realized Loss Adjustments on Collateral	0.00
	Current Period NRA¹	0.00
	Current Period WODRA¹	0.00
	Principal Used to Pay Interest	0.00
	Non-Cash Principal Adjustments	0.00
	Certificate Other Adjustments**	0.00
Ending Certificate Balance		0.00

NRA/WODRA Reconciliation
	Non-Recoverable Advances (NRA) from Principal	Workout Delayed Reimbursement of Advances (WODRA) from Principal
Beginning Cumulative Advances	0.00	0.00
Current Period Advances	0.00	0.00
Ending Cumulative Advances	0.00	0.00

Under / Over Collateralization Reconciliation
Beginning UC / (OC)	0.00
UC / (OC) Change	0.00
Ending UC / (OC)	0.00
Net WAC Rate	0.00%
UC / (OC) Interest	0.00

(1)	Current Period NRA and WODRA displayed will represent the portion applied as Realized Losses to the bonds.
(2)	Other Adjustments value will represent miscellaneous items that may impact the Scheduled Balance of the collateral.
**	A negative value for Certificate Other Adjustments represents the payback of prior Principal Shortfalls, if any.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 8 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Mortgage Loan Detail (Part 1)

Pros ID

Loan ID

Loan Group

Prop Type (1)

City

State

Interest Accrual Type

Gross Rate

Scheduled Interest

Scheduled Principal

Principal Adjustments

Anticipated Repay Date

Original Maturity Date

Adjusted Maturity Date

Beginning Scheduled Balance

Ending Scheduled Balance

Paid Through Date

Totals

1 Property Type Codes
	HC - Health Care	MU - Mixed Use	WH - Warehouse	MF - Multi-Family
	SS - Self Storage	LO - Lodging	RT - Retail	SF - Single Family Rental
	98 - Other	IN - Industrial	OF - Office	MH - Mobile Home Park
	SE - Securities	CH - Cooperative Housing	ZZ - Missing Information/Undefined

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 9 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Mortgage Loan Detail (Part 2)

Pros ID

Loan Group

Most Recent Fiscal NOI

Most Recent NOI

Most Recent NOI Start Date

Most Recent NOI End Date

Appraisal Reduction Date

Appraisal Reduction Amount

Cumulative ASER

Current P&I Advances

Cumulative P&I Advances

Cumulative Servicer Advances

Current NRA/WODRA from Principal

Defease Status

Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 10 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Principal Prepayment Detail
			Unscheduled Principal		Prepayment Premiums
Pros ID	Loan Number	Loan Group	Amount	Prepayment / Liquidation Code	Prepayment Premium Amount	Yield Maintenance Amount
Totals

Note: Principal Prepayment Amount listed here may include Principal Adjustment Amounts on the loan in addition to the Unscheduled Principal Amount.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 11 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Historical Detail

Delinquencies¹

Prepayments

Rate and Maturities

30-59 Days

60-89 Days

90 Days or More

Foreclosure

REO

Modifications

Curtailments

Payoff

Next Weighted Avg.

Distribution Date

#

Balance

#

Balance

#

Balance

#

Balance

#

Balance

#

Balance

#

Amount

#

Amount

Coupon

Remit

WAM¹

Note: Foreclosure and REO Totals are included in the delinquencies aging categories.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 12 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Delinquency Loan Detail

Pros ID

Loan ID

Paid Through Date

Months Delinquent

Mortgage Loan Status¹

Current P&I Advances

Outstanding P&I Advances

Outstanding Servicer Advances

Actual Principal Balance

Servicing Transfer Date

Resolution Strategy Code²

Bankruptcy Date

Foreclosure Date

REO Date

Totals

1 Mortgage Loan Status
	A - Payment Not Received But Still in Grace Period	0 - Current	4 - Performing Matured Balloon
	B - Late Payment But Less Than 30 days  Delinquent	1 - 30-59 Days Delinquent	5 - Non Performing Matured Balloon
		2 - 60-89 Days Delinquent	6 - 121+ Days Delinquent
		3 - 90-120 Days Delinquent

2 Resolution Strategy Code
	1 - Modification	6 - DPO	10 - Deed in Lieu of Foreclosures
	2 - Foreclosure	7 - REO	11- Full Payoff
	3 - Bankruptcy	8 - Resolved	12 - Reps and Warranties
	4 - Extension	9 - Pending Return to Master Servicer	13 -  TBD
	5 - Note Sale	98 - Other

Note: Outstanding P & I Advances include the current period advance.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 13 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Collateral Stratification and Historical Detail

Maturity Dates and Loan Status¹

	Total	Performing	Non-Performing	REO/Foreclosure
Past Maturity	0	0	0	0
0 - 6 Months	0	0	0	0
7 - 12 Months	0	0	0	0
13 - 24 Months	0	0	0	0
25 - 36 Months	0	0	0	0
37 - 48 Months	0	0	0	0
49 - 60 Months	0	0	0	0
> 60 Months	0	0	0	0

Historical Delinquency Information

	Total	Current	30-59 Days	60-89 Days	90+ Days	REO/Foreclosure
Dec-21	0	0	0	0	0	0
Nov-21	0	0	0	0	0	0
Oct-21	0	0	0	0	0	0
Sep-21	0	0	0	0	0	0
Aug-21	0	0	0	0	0	0
Jul-21	0	0	0	0	0	0
Jun-21	0	0	0	0	0	0
May-21	0	0	0	0	0	0
Apr-21	0	0	0	0	0	0
Mar-21	0	0	0	0	0	0
Feb-21	0	0	0	0	0	0
Jan-21	0	0	0	0	0	0

(1) Maturity dates used in this chart are based on the dates provided by the Master Servicer in the Loan Periodic File.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 14 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Specially Serviced Loan Detail - Part 1
Pros ID	Loan ID	Ending Scheduled Balance	Actual Balance	Appraisal Value	Appraisal Date	Net Operating Income	DSCR	DSCR Date	Maturity Date	Remaining Amort Term
Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 15 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Specially Serviced Loan Detail - Part 2
Pros ID	Loan ID	Property Type¹	State	Servicing Transfer Date	Resolution Strategy Code²	Special Servicing Comments

1 Property Type Codes
	HC - Health Care	MU - Mixed Use	WH - Warehouse
	MF - Multi-Family	SS - Self Storage	LO - Lodging
	RT - Retail	SF - Single Family Rental	98 - Other
	IN - Industrial	OF - Office	MH - Mobile Home Park
	SE - Securities	CH - Cooperative Housing	ZZ - Missing Information/Undefined

2 Resolution Strategy Code
	1 - Modification	6 - DPO	10 - Deed in Lieu of Foreclosures
	2 - Foreclosure	7 - REO	11- Full Payoff
	3 - Bankruptcy	8 - Resolved	12 - Reps and Warranties
	4 - Extension	9 - Pending Return to Master Servicer	13 -  TBD
	5 - Note Sale	98 - Other

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 16 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Modified Loan Detail

		Pre-Modification		Post-Modification
Pros ID	Loan Number	Balance	Rate	Balance	Rate	Modification Code¹	Modification Booking Date	Modification Closing Date	Modification Effective Date
Totals

1 Modification Codes
	1 - Maturity Date Extension	5 - Temporary Rate Reduction	8 - Other
	2 - Amortization Change	6 - Capitalization on Interest	9 - Combination
	3 - Principal Write-Off	7 - Capitalization on Taxes	10 - Forbearance

Note: Please refer to Servicer Reports for modification comments.

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 17 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Historical Liquidated Loan Detail

Pros ID¹

Loan Number

Dist.Date

Loan Beginning Scheduled Balance

Most Recent Appraised Value or BPO

Gross Sales Proceeds or Other Proceeds

Fees, Advances, and Expenses

Net Proceeds Received on Liquidation

Net Proceeds Available for Distribution

Realized Loss to Loan

Current Period Adjustment to Loan

Cumulative Adjustment to Loan

Loss to Loan with Cumulative Adjustment

Percent of Original Loan Balance

Current Period Totals

Cumulative Totals

Note: Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 18 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

		Historical Bond / Collateral Loss Reconciliation Detail
Pros ID	Loan Number	Distribution Date	Certificate Interest Paid from Collateral Principal Collections	Reimb of Prior Realized Losses from Collateral Interest Collections	Aggregate Realized Loss to Loan	Loss Covered by Credit Support/Deal Structure	Loss Applied to Certificate Interest Payment	Loss Applied to Certificate Balance	Non-Cash Principal Adjustment	Realized Losses from NRA/WODRA	Total Loss Applied to Certificate Balance
Current Period Totals
Cumulative Totals

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 19 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Interest Shortfall Detail - Collateral Level

Pros ID

Interest Adjustments

Deferred Interest Collected

Special Servicing Fees

ASER

PPIS /  (PPIE)

Non- Recoverable Interest

Interest on Advances

Reimbursement of Advances from Interest

Other Shortfalls / (Refunds)

Modified Interest Reduction / (Excess)

Monthly

Liquidation

Work Out

Total

Note: Interest Adjustments listed for each loan do not include amounts that were used to adjust the Weighted Average Net Rate of the mortgage loans.

Collateral Shortfall Total

0.00

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 20 of 21

Distribution Date:	12/10/21	CAMB 2021-CX2 Mortgage Trust
Determination Date:	12/06/21
Next Distribution Date:	01/10/22	Commercial Mortgage Pass-Through Certificates
Record Date:	11/30/21	Series 2021

Supplemental Notes

None

© Copyright 2021 Computershare. All rights reserved. Confidential. Page 21 of 21

EXHIBIT L-1-A

Form of Investor Certification for Non-Borrower Related Parties

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com with a copy to: Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com  Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with the requirements for obtaining certain information under the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is a [certificateholder][Directing Holder][Controlling Class Certificateholder][beneficial owner][prospective purchaser] of the Class [_] Certificates.

2.      The undersigned is not a Borrower Related Party.

3.       The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the [Master Servicer’s Website][Certificate Administrator’s Website] and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Agreement.

In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its

L-1-A-1

officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.

The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

4.       The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor, each Initial Purchaser and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5.       At any time the undersigned becomes a Borrower Related Party, the undersigned shall deliver the certification attached as Exhibit L-1-B to the Agreement.

6.       The undersigned agrees that each time it accesses the [Master Servicer’s Website][Certificate Administrator’s Website], the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.

7.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified. 

[Certificateholder][Directing Holder][Controlling Class Certificateholder][Beneficial Owner][Prospective Purchaser]
By:
	Title: Company: Phone:

L-1-A-2

EXHIBIT L-1-B

FORM OF INVESTOR CERTIFICATION FOR BORROWER RELATED PARTIES

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com with a copy to: Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com  Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with the requirements for obtaining certain information under the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is a [certificateholder][Directing Holder][Controlling Class Certificateholder][beneficial owner][prospective purchaser] of the Class [_] Certificates.

2       The undersigned is a Borrower Related Party.

3.       The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.

In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part.

L-1-B-1

The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

4.       The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Privileged Information (as defined in the Agreement) to the extent the undersigned receives access to such Privileged Information on the Certificate Administrator’s website or otherwise receives access to such Privileged Information in connection with its duties, or exercise of its rights pursuant to the Agreement.

5.       The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representative and shall indemnify each party to the Agreement, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

6.       To the extent the undersigned receives access to any Privileged Information on the Certificate Administrator’s Website or otherwise receives access to such Privileged Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide such Privileged Information to the Borrower or (A) any employees or personnel of the undersigned or any Affiliate involved in the management of any investment in the Borrower or the Mortgaged Property or (B) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the Borrower, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

7.       The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations and covenants contained herein remain true and correct.

8.       The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

9.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.

L-1-B-2

[BY ITS CERTIFICATION HEREOF, the undersigned shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.]

[certificateholder][Directing Holder][Controlling Class Certificateholder][beneficial owner][prospective purchaser]
By:
	Title: Company: Phone:

L-1-B-3

EXHIBIT L-1-C

Form of Certification of the DIRECTING HOLDER

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com   with a copy to:   Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention:  Kraig Kohring Email: kkohring@polsinelli.com     Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2   Park Bridge Lender Services LLC
600 Third Avenue, 40th Floor
New York, New York 10016
Attention: CAMB 2021-CX2-Surveillance Manager (with a copy sent contemporaneously via email to: cmbsnotices@parkbridgefinancial.com) 

Re: Trust and Servicing Agreement (“Trust and Servicing Agreement”) relating to CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with Section 6.07(e) of the Trust and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.       The undersigned has been appointed to act as the Directing Holder.

2.       The undersigned is not a Borrower Related Party.

3.       If the undersigned becomes a Borrower Related Party, the undersigned agrees to and shall deliver the certification attached as Exhibit L-1-B to the Trust and Servicing Agreement.

4.       The undersigned shall be fully liable for any breach of this agreement by itself or any of its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) and shall indemnify each party to the Trust and Servicing Agreement, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5.       The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Trust and

L-1-C-1

Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

6.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

[BY ITS CERTIFICATION HEREOF, the undersigned shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.]

[The Directing Holder][a Controlling Class Certificateholder]
By:
	Title: Company: Phone:

L-1-C-2

EXHIBIT L-1-D

FORM OF NOTICE OF CONFLICTED CONTROLLING CLASS HOLDER WHO BECOMES A BORROWER RELATED PARTY

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com with a copy to: Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com  Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

Re: Trust and Servicing Agreement (“Trust and Servicing Agreement”) relating to CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with Section 4.02 of the Trust and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Conflicted Controlling Class Holder”) hereby certifies and agrees as follows:

1.             The undersigned is [the Directing Holder][a Controlling Class Certificateholder] as of the date hereof.

2.             The undersigned has become a Borrower Related Party with respect to the Trust Loan and has become a Conflicted Controlling Class Holder.

3.             As of the date above, the undersigned is the beneficial owner of the following certificates, and is providing the below information to the addressees hereto for purposes of their compliance with the Trust and Servicing Agreement:

L-1-D-1

CUSIP Class Outstanding Certificate Balance Initial Certificate Balance

4.             The undersigned hereby acknowledges and agrees that it is no longer a Privileged Person and shall only be entitled to access the Distribution Date Statements, and the following items to the extent that they are made available to the general public on the Certificate Administrator’s Website: the Trust and Servicing Agreement, the Trust Loan Purchase Agreements and any SEC filings.

5.             The following USER IDs for CTSLink are affiliated with the undersigned and access to any information on the Certificate Administrator’s Website with respect to the CAMB 2021-CX2 securitization should be revoked as to such users:

_________________________________________

_________________________________________

_________________________________________

_________________________________________

_________________________________________

6.             The undersigned shall be fully liable for any breach of the Trust and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.             The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Trust and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

8.             The undersigned is simultaneously providing an investor certification to the Certificate Administrator in the form of Exhibit L-1-B to the Trust and Servicing Agreement, requesting access to the Certificate Administrator’s site as a Borrower Related Party. The undersigned acknowledges that it is no longer a Privileged Person and shall only be entitled to access the Distribution Date Statements, and the following items to the extent that they are made available to the general public on the Certificate Administrator’s Website: the Trust and Servicing Agreement, the Trust Loan Purchase Agreements and any SEC filings unless and until it has (i) delivered notice of the termination of the related Conflicted Controlling Class Holder status and

L-1-D-2

(ii) submitted a new investor certification in accordance with Section 4.02 of the Trust and Servicing Agreement.

9.             The undersigned agrees to indemnify and hold harmless each party to the Trust and Servicing Agreement, the Initial Purchasers and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any such information relating to the Whole Loan.

Capitalized terms used but not defined herein have the respective meanings given to them in the Trust and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Holder] [Controlling Class Certificateholder]
By:
	Name: Title:

Dated: _______

cc: Deutsche Mortgage & Asset Receiving Corporation

L-1-D-3

EXHIBIT L-2

FORM OF INVESTOR CERTIFICATION TO EXERCISE VOTING RIGHTS

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com

with a copy to:

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with the requirements for the exercise of Voting Rights pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is a [beneficial certificateholder of the Class [_] Certificates in the original principal amount of $[_____], CUSIP number [_]].

2.       The undersigned is duly authorized to deliver this certification to the Certificate Administrator, such power has not been granted or assigned to any other Person and the Certificate Administrator may conclusively rely on this certification.

3.       The undersigned intends to exercise Voting Rights under the Agreement, and certifies that the undersigned is not the Depositor, the Certificate Administrator, the Trustee, the Operating Advisor, a Borrower Related Party, a Manager, a Restricted Holder, an Affiliate of any of the foregoing or an agent of any of the foregoing.

4.       The undersigned shall be fully liable for any breach of this agreement by itself or any of its officers, directors, partners, employees, agents or representatives, and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Operating Advisor, the

L-2-1

Master Servicer, the Special Servicer and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Certificateholder]
By:
	Name: Title: Company: Phone:
[DTC Participant Name_________________
DTC Participant No. _________________]

L-2-2

EXHIBIT L-3

FORM OF ONLINE VENDOR CERTIFICATION

This Certification has been prepared for provision of information to the market data providers listed in Paragraph 1 below pursuant to the direction of the Depositor.

In connection with the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (the “Certificates”) issued pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, the undersigned hereby certifies and agrees as follows:

1. The undersigned is an employee or agent of BlackRock Financial Management, Inc., Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Thomson Reuters Corporation, Interactive Data Corporation, Moody’s Analytics, KBRA Analytics, LLC. or Markit LLC, a market data provider that has been given access to the Distribution Date Statements, CREFC reports and supplemental notices delivered or made available pursuant to Section 4.02 of the Trust and Servicing Agreement to Privileged Persons on https://www.ctslink.com (the “Website”) by request of the Depositor.

2. The undersigned agrees that each time it accesses the Website, the undersigned is deemed to have recertified that the representation above remains true and correct.

3. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the agreement pursuant to which the Certificates were issued.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[______________________]
By:
	Name: Title: Phone: E-mail:

Dated:

L-3-1

EXHIBIT L-4

FORM OF CREFC^® Certification

This Certification has been prepared for provision of information to the CRE Finance Council^®.

In connection with the CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is an employee or agent of the CRE Finance Council^® that has been given access to the Distribution Date Statements and CREFC^® reports on https://www.ctslink.com.

2. The undersigned agrees that each time it accesses https:// www.ctslink.com, the undersigned is deemed to have recertified that the representation above remains true and correct.

3. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the agreement pursuant to which the Certificates were issued.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and has caused, or shall be deemed to have caused, its name to be signed hereto by its duly authorized signatory, as of the date certified.

[______________________]
By:
	Name: Title: Phone: E-mail:

Dated:

L-4-1

EXHIBIT M

FORM OF NOTIFICATION FROM CUSTODIAN

[DATE]

To the Persons Listed on the attached Schedule A

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

Ladies and Gentlemen:

In accordance with Section 2.02 of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, the undersigned, as Custodian, hereby notifies you that, based upon the review required under the Trust and Servicing Agreement, the Mortgage File for the Whole Loan set forth on the attached defect schedule contains a document or documents which (i) has not been executed or received, (ii) has not been recorded or filed (if required), (iii) is unrelated to the Whole Loan, (iv) appears not to be what they purport to be or has been torn in any materially adverse manner or (v) is mutilated or otherwise defaced, in each case as more fully described on the attached defect schedule.

The Custodian has no responsibility to determine, and expresses no opinion with respect thereto, whether any document or opinion is legal, valid, binding or enforceable, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, whether a blanket assignment is permitted in any applicable jurisdiction, or whether any Person executing any document or rendering any opinion is authorized to do so or whether any signature thereon is genuine.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Trust and Servicing Agreement.

wells fargo bank, national association, as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name: Title:

M-1

SCHEDULE A
TO
FORM OF NOTIFICATION FROM CUSTODIAN

To the Depositor:

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan 

with a copy via e-mail to cmbs.requests@db.com

To the Certificate Administrator:

Wells Fargo Bank, National Association
9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Corporate Trust Services – CAMB 2021-CX2 

Email: trustadministrationgroup@wellsfargo.com; 

cts.cmbs.bond.admin@wellsfargo.com

To the Trustee: 

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee – CAMB 2021-CX2 

with a copy to: 

E-mail: cmbstrustee@wilmingtontrust.com

To the Master Servicer:

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com

with a copy to:

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

To the Special Servicer:

M-2

Situs Holdings, LLC
2 Embarcadero Center, 8th Floor
San Francisco, California 94111 

Attention: Stacey Ciarlanti 

E-mail: staceyciarlanti@situsamc.com

with a copy to:

Situs Group, LLC
5065 Westheimer, Suite 700E
Houston, Texas 77056
Attention: Legal Department
E-mail: legal@situsamc.com

To the Operating Advisor:

Park Bridge Lender Services LLC
600 Third Avenue, 40th Floor
New York, New York 10016
Attention: CAMB 2021-CX2-Surveillance Manager (with a copy sent contemporaneously via email to: cmbsnotices@parkbridgefinancial.com)

To the Trust Loan Sellers:

German American Capital Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan

with a copy via e-mail to:

E-mail: cmbs.request@db.com

Bank of America, N.A.
One Bryant Park
Mail Code: NY1-100-11-07 

New York, New York 10036
Attention: Director of CMBS Securitization 

Email: leland.f.bunch@bofa.com

with a copy to:

Bank of America Legal Department 

150 North College Street 

Mail Code: NC1-028-24-02 

Charlotte, North Carolina 28255 

Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director

M-3

Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

JPMorgan Chase Bank, National Association
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: SPG Syndicate 

Email: ABS_Synd@jpmorgan.com

with a copy to:

JPMorgan Chase Bank, National Association
4 New York Plaza, 21st Floor
New York, New York 10004
Attention: SPG Legal 

Email: US_CMBS_Notice@jpmorgan.com

3650 Cal Bridge Lending, LLC
2977 McFarlane Road, Suite 300
Miami, Florida 33133

with copies via email to:

Jonathan Roth
Email: jroth@3650reit.com

and

Mark A. Jefferis, General Counsel and Chief Compliance Officer
Email: mjefferis@3650reit.com

M-4

DEFECT SCHEDULE
TO FORM OF NOTIFICATION FROM CUSTODIAN

M-5

EXHIBIT N-1

FORM OF CLOSING DATE CUSTODIAN CERTIFICATION

[Date]

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2 KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com with a copy to: Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com German American Capital Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan
with a copy via e-mail to:
cmbs.request@db.com Wilmington Trust, National Association
1100 North Market Street  Wilmington, Delaware 19890  Facsimile Number: (302) 630-4140 Bank of America, N.A.
One Bryant Park
Mail Code: NY1-100-11-07  New York, New York 10036
Attention: Director of CMBS Securitization  Email: leland.f.bunch@bofa.com with a copy to: Bank of America Legal Department  150 North College Street  Mail Code: NC1-028-24-02  Charlotte, North Carolina 28255  Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director  Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com JPMorgan Chase Bank, National Association
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: SPG Syndicate  Email: ABS_Synd@jpmorgan.com

with a copy to:

JPMorgan Chase Bank, National Association
4 New York Plaza, 21st Floor
New York, New York 10004
Attention: SPG Legal  Email: US_CMBS_Notice@jpmorgan.com
3650 Cal Bridge Lending, LLC
2977 McFarlane Road, Suite 300
Miami, Florida 33133

with copies via email to:

Jonathan Roth
Email: jroth@3650reit.com 

N-1-1

Attention: CMBS Trustee – CAMB 2021-CX2
Email: cmbstrustee@wilmingtontrust.com and

Mark A. Jefferis, General Counsel and Chief Compliance Officer
Email: mjefferis@3650reit.com 

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with Section 2.02 of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, the Custodian hereby certifies that, with respect to the Trust Loan listed on the Mortgage Loan Schedule attached hereto as Schedule A, (a) the Custodian has in its possession the Trust Notes, and (b) the foregoing documents delivered or caused to be delivered by the Trust Loan Seller as described in clause (a) above have been reviewed by it and appear regular on their face, appear to be executed and purport to relate to the Whole Loan, except as identified on Schedule B attached hereto, and each of the documents specified in Section 2.01(a)(ii), Section 2.01(a)(vii) and, to the extent delivered, Section 2.01(a)(xviii) of the Agreement have been received, have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn or mutilated or otherwise defaced, and that such documents relate to the Whole Loan identified in the Mortgage Loan Schedule.

Capitalized terms used but not defined herein shall the respective meanings set forth in the Agreement.

N-1-2

wells fargo bank, national association, not in its individual capacity but solely as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
By:
	Name: Title:

N-1-3

SCHEDULE A
TO CLOSING DATE CUSTODIAN CERTIFICATION

MORTGAGE LOAN SCHEDULE

N-1-4

SCHEDULE B
TO CLOSING DATE CUSTODIAN CERTIFICATION

Exceptions to the Mortgage File Delivery and Review

N-1-5

EXHIBIT N-2

FORM OF POST-CLOSING CUSTODIAN CERTIFICATION

[Date]

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan Wells Fargo Bank, National Association
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2 KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com with a copy to: Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com German American Capital Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan
with a copy via e-mail to:
cmbs.request@db.com Wilmington Trust, National Association
1100 North Market Street  Wilmington, Delaware 19890  Facsimile Number: (302) 630-4140  Attention: CMBS Trustee – CAMB 2021-CX2  Email: cmbstrustee@wilmingtontrust.com  Bank of America, N.A.
One Bryant Park
Mail Code: NY1-100-11-07  New York, New York 10036
Attention: Director of CMBS Securitization  Email: leland.f.bunch@bofa.com with a copy to: Bank of America Legal Department  150 North College Street  Mail Code: NC1-028-24-02  Charlotte, North Carolina 28255  Attention: W. Todd Stillerman, Esq., Associate General Counsel & Director  Email: todd.stillerman@bofa.com and cmbsnotices@bofa.com JPMorgan Chase Bank, National Association
383 Madison Avenue, 8th Floor
New York, New York 10179
Attention: SPG Syndicate  Email: ABS_Synd@jpmorgan.com

with a copy to:

JPMorgan Chase Bank, National Association
4 New York Plaza, 21st Floor
New York, New York 10004
Attention: SPG Legal  Email: US_CMBS_Notice@jpmorgan.com
3650 Cal Bridge Lending, LLC
2977 McFarlane Road, Suite 300
Miami, Florida 33133

with copies via email to:

Jonathan Roth
Email: jroth@3650reit.com

N-2-1

and

Mark A. Jefferis, General Counsel and Chief Compliance Officer
Email: mjefferis@3650reit.com 

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with Section 2.02 of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, the Custodian hereby certifies, subject to the terms of the Agreement, that, with respect to the Trust Loan listed on the Mortgage Loan Schedule attached hereto as Schedule A, all documents (other than documents referred to in clauses (xviii) and (xix) of Section 2.01(a) of the Agreement, the documents referred to in clauses (iii), (v)(B) and (viii) of Section 2.01(a) of the Agreement and the assignments of financing statements referred to in clause (xiv) of Section 2.01(a) of the Agreement) referred to in Section 2.01(a) of the Agreement (in the case of the documents referred to in Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii) and (ix) through (xix) of the Agreement, as identified to it in writing as a document required to be delivered by the Trust Loan Sellers) and any original recorded documents included in the delivery of the Mortgage File have been received, have been executed, appear to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn in any materially adverse manner or mutilated or otherwise defaced, and that such documents relate to the Whole Loan identified in the Mortgage Loan Schedule, in each case, except as set forth on the attached schedule hereto.

Capitalized terms used but not defined herein shall the respective meanings set forth in the Agreement.

wells fargo bank, national association, not in its individual capacity but solely as Custodian
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
	Name: Title:

N-2-2

SCHEDULE A
TO POST-CLOSING CUSTODIAN CERTIFICATION

MORTGAGE LOAN SCHEDULE

N-2-3

EXHIBIT O

FORM OF NRSRO CERTIFICATION

[Date]

Wells Fargo Bank, National Association,
as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

Attention: Deutsche Mortgage & Asset Receiving Corporation, CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with the requirements for obtaining certain information pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is either:

(a)           a Rating Agency under the Trust and Servicing Agreement, or

(b)          a nationally recognized statistical rating organization and either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Trust and Servicing Agreement to certain information (the “Information”) on such 17g-5 website pursuant to the provisions of the Trust and Servicing Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y), if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement attached hereto as Annex A which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date.

2. [The undersigned either (a) has not accessed information pursuant to Rule 17g–5(a)(3) ten (10) or more times during the most recently ended calendar year, or (b) has determined and maintained credit ratings for at least 10% of the issued securities and money market instruments for which it accessed information pursuant to Rule 17g–5(a)(3)(iii) in the

O-1

calendar year prior to the year covered by the SEC Certification, if it accessed such information for 10 or more issued securities or money market instruments.]

3. The undersigned agrees that each time it accesses the 17g-5 Information Provider’s Website, it shall be deemed to have recertified that the representations above remain true and correct.

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Trust and Servicing Agreement.

O-2

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Nationally Recognized Statistical Rating Organization]

Name:

Title:

Company:

Phone:

Email:

O-3

Annex A

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with the [Depositor] together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the [________________] (the “Certificates”) pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), by and among Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, Situs Holdings, LLC, as Special Servicer, Wilmington Trust, National Association, as Trustee, Wells Fargo Bank, National Association, as Certificate Administrator, and Park Bridge Lender Services LLC, as Operating Advisor, and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Wells Fargo Bank, National Association, as 17g-5 Information Provider under the Trust and Servicing Agreement, including the [section of the 17g-5 Information Provider’s website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Trust and Servicing Agreement)]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.

Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y)  any of the terms, conditions or other facts with respect to the transactions contemplated by the Trust and Servicing Agreement, including the status thereof; provided, however, that the term Confidential Information shall not include information which:

was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;

was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or is independently developed by the NRSRO without reference to any Confidential Information.

Information to Be Held in Confidence.

You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived

O-4

from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).

You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.

You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:

disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;

solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5), post the Confidential Information to the NRSRO’s password protected website; and

use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.

Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order

O-5

or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, however, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.

Obligation to Return Evaluation Material. Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.

Violations of this Confidentiality Agreement. The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.

You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.

You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.

Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.

O-6

Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.

Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.

Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, however, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.

Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:

[_____________]

O-7

EXHIBIT P-1

FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS

[Date]

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan 

with a copy via e-mail to cmbs.requests@db.com

Re: Deutsche Mortgage & Asset Receiving Corporation, CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

Ladies and Gentlemen:

This letter is delivered to you in connection with the transfer by [_____] (the “Transferor”) to [_____] (the “Transferee”) of the Excess Servicing Fee Right established under the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Trust and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Depositor, that:

1.       The Transferor is the lawful owner of the right to receive the Excess Servicing Fees with respect to the Whole Loan for which [_____] is the Master Servicer (the “Excess Servicing Fee Right”), with the full right to transfer the Excess Servicing Fee Right free from any and all claims and encumbrances whatsoever.

2.       Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of the Excess Servicing Fee Right pursuant to the Securities Act or any state securities laws.

P-1-1

Very truly yours,
By:
	Name: Title:

P-1-2

EXHIBIT P-2

FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS

[Date]

Deutsche Mortgage & Asset Receiving Corporation
1 Columbus Circle
New York, New York 10019
Attention: Helaine M. Kaplan 

with a copy via e-mail to cmbs.requests@db.com

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com

with a copy to:

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

Re: Deutsche Mortgage & Asset Receiving Corporation, CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

Ladies and Gentlemen:

This letter is delivered to you in connection with the transfer by [_____] (the “Transferor”) to [_____] (the “Transferee”) of the Excess Servicing Fee Right established under the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”) and executed in connection with the CAMB 2021-CX2 securitization transaction. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Trust and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as the Depositor and the Master Servicer, that:

1.       The Transferee is acquiring the right to receive Excess Servicing Fees with respect to the Whole Loan as to which [_____] is the applicable Master Servicer (the “Excess Servicing Fee Right”) for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.

P-2-1

2.       The Transferee understands that (a) the Excess Servicing Fee Right has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee, Certificate Administrator or the Certificate Registrar is obligated so to register or qualify the Excess Servicing Fee Right, and (c) the Excess Servicing Fee Right may not be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and (A) the Depositor has received a certificate from the prospective transferor substantially in the form attached as Exhibit P-1 to the Trust and Servicing Agreement, and (B) each of the Master Servicer and the Depositor have received a certificate from the prospective transferee substantially in the form attached as Exhibit P-2 to the Trust and Servicing Agreement.

3.       The Transferee understands that it may not sell or otherwise transfer the Excess Servicing Fee Right or any interest therein except in compliance with the provisions of Section 3.12 of the Trust and Servicing Agreement, which provisions it has carefully reviewed.

4.       Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security with any person in any manner, (d) made any general solicitation with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security by means of general advertising or in any other manner, or (e) taken any other action with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Excess Servicing Fee Right under the Securities Act, would render the disposition of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Excess Servicing Fee Right pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right or any other similar security.

5.       The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Excess Servicing Fee Right and any payments thereon, (c) the Trust and Servicing Agreement and the Trust Fund created pursuant thereto, (d) the nature, performance and servicing of the Whole Loan, and (e) all related matters that it has requested.

6.       The Transferee is (a) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act or (b) an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners are “accredited investors” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Excess Servicing Fee Right; the Transferee has sought such accounting, legal and tax advice as it

P-2-2

has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.

7.       The Transferee agrees (i) to keep all information relating to the Trust, the Trust Fund and the parties to the Trust and Servicing Agreement, and made available to it, confidential, (ii) not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificate pursuant to the Securities Act, and (iii) not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such holder’s auditors, legal counsel and regulators, except to the extent such disclosure is required by law, court order or other legal requirement or to the extent such information is of public knowledge at the time of disclosure by such holder or has become generally available to the public other than as a result of disclosure by such holder; provided, however, that such holder may provide all or any part of such information to any other Person who is contemplating an acquisition of the Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing such prospective acquisition and (y) agrees in writing to keep such information confidential, not to use or disclose such information in any manner which could result in a violation of any provision of the Securities Act or would require registration of the Excess Servicing Fee Right or any Certificates pursuant to the Securities Act and not to disclose such information, and to cause its officers, directors, partners, employees, agents or representatives not to disclose such information, in any manner whatsoever, in whole or in part, to any other Person other than such Persons’ auditors, legal counsel and regulators.

8.       The Transferee acknowledges that the holder of the Excess Servicing Fee Right shall not have any rights under the Trust and Servicing Agreement except as set forth in Section 3.12(a) of the Trust and Servicing Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent provided in the Trust and Servicing Agreement.

Very truly yours,
By:
	Name: Title:

P-2-3

EXHIBIT Q

FORM OF POWER OF ATTORNEY BY TRUSTEE FOR MASTER SERVICER AND SPECIAL SERVICER

RECORDING REQUESTED BY:

{insert address}

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890 as Trustee (the “Trustee”) pursuant to that Trust and Servicing Agreement dated as of November 9, 2021 (the “Agreement”) by and among Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wells Fargo Bank, National Association, as Certificate Administrator, Wilmington Trust, National Association, as Trustee and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), and the Trustee hereby constitutes and appoints the [Master][Special] Servicer, by and through the [Master][Special] Servicer officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with the mortgage loan (the “Trust Loan”) serviced by the Servicer and the property (“[REO] Property”) administered by the [Master][Special] Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the Trust Loan and the [REO] Property; provided however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing the Whole Loan.

2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that (i) said modification or re-recording, in either instance, does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

Q-1

3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4. The conveyance of the property to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5. The completion of loan assumption agreements.

6. The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Trust Note.

7. The assignment of any Mortgage or deed of trust and the related Trust Note, in connection with the repurchase of the mortgage loan secured and evidenced thereby.

8. The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Trust Note.

9. The full enforcement of and preservation of the Trustee’s interests in the Trust Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Trust Notes, Mortgages or deeds of trust;

Q-2

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and

i. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property.

12. The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the Mortgage File or the Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by the Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the Mortgaged Property[, REO Property] or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the Mortgaged Property (including agreements and requests

Q-3

by any borrower with respect to modifications of the standards of operation and management of the Mortgaged Property or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of the Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Property [or REO Property], instruments relating to the custody of any collateral that now secures or hereafter may secure the Mortgage Loan and any other consents.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [Master][Special] Servicer has the power to delegate its rights or obligations under the Agreement, the [Master][Special] Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [Master][Special] Servicer’s attorneys-in-fact shall have no greater authority than that held by the [Master][Special] Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [Master][Special] Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [Master][Special] Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [Master][Special] Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [Master][Special] Servicer under the Agreement or to allow the [Master][Special] Servicer to take any action with respect to Mortgages, deeds of trust or Trust Notes not authorized by the Agreement.

The [Master][Special] Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any

Q-4

kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [Master][Special] Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for CAMB 2021-CX2 Mortgage Trust has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

Wilmington Trust, National Association,
as Trustee for CAMB 2021-CX2 Mortgage Trust
By:
	Name: Title:
Prepared by:
	Name:

Q-5

State of Delaware} 

County of ____} 

On ________________________, before me, _________________________________Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct. 

Witness my hand and official seal.

Notary signature

Q-6

EXHIBIT R

[RESERVED]

R-1

EXHIBIT S

Form of operating advisor annual report¹

Report Date: This report will be delivered annually no later than 120 days after the end of calendar year, pursuant to the terms and conditions of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”).

Transaction: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

Operating Advisor: Park Bridge Lender Services LLC

Special Servicer: Situs Holdings, LLC

I.       Executive Summary

Based on the requirements and qualifications set forth in the Trust and Servicing Agreement, as well as the items listed below, the Operating Advisor (in accordance with the Operating Advisor’s analysis requirements outlined in the Trust and Servicing Agreement) has undertaken a limited review of the Special Servicer’s actions under the Trust and Servicing Agreement. Based solely on such limited review of the items listed below, and subject to the assumptions, limitations and qualifications set forth herein, the Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer [is/is not] operating in compliance with the Servicing Standard with respect to its performance of its duties under the Trust and Servicing Agreement during the prior calendar year. [The Operating Advisor believes, in its sole discretion exercised in good faith, that the Special Servicer has failed to comply with the Servicing Standard, as a result of the following material deviations.]

● [LIST OF MATERIAL DEVIATION ITEMS]

In addition, the Operating Advisor notes the following: [PROVIDE SUMMARY OF ANY ADDITIONAL MATERIAL INFORMATION].

[ADD RECOMMENDATION OF REPLACEMENT OF SPECIAL SERVICER, IF APPLICABLE]

II.       List of Items that Were Considered in Compiling this Report

In rendering our assessment herein, we examined and relied upon the accuracy and completeness of the items listed below:

1. Major Decision Reporting Packages.

¹ This report is an indicative report and does not reflect the final form of annual report to be used in any particular year. The Operating Advisor will have the ability to modify or alter the organization and content of any particular report, subject to the compliance with the terms of the Trust and Servicing Agreement, including, without limitation, provisions relating to Privileged Information.

S-1

2. Reports by the Special Servicer made available to Privileged Persons that are posted on the Certificate Administrator’s website and each Asset Status Report and Final Asset Status Report.

3. The Special Servicer’s assessment of compliance report, attestation report by a third party regarding the Special Servicer’s compliance with its obligations and net present value calculations.

4. [LIST OTHER REVIEWED INFORMATION]

5. [INSERT WHEN AN OPERATING ADVISOR CONSULTATION PERIOD IS IN EFFECT: Consulted with the Special Servicer as provided under the Trust and Servicing Agreement in respect to the Asset Status Reports for the Trust Loan when a Servicing Transfer Event has occurred and with respect to Major Decisions.]

NOTE: The Operating Advisor’s review of the above materials should be considered a limited review and not be considered a full or limited audit. For instance, we did not review each page of the Special Servicer’s policy and procedure manuals (including amendments and appendices), review underlying lease agreements, re-engineer the quantitative aspects of their net present value calculator, visit any related property, visit the Special Servicer, visit the Directing Holder or interact with the Borrower. In addition, our review of the net present value calculations and Appraisal Reduction calculations is limited to the mathematical accuracy of the calculations and the corresponding application of the non-discretionary portions of the applicable formulas, and as such, does not take into account the reasonableness of the discretionary portions of such formulas.

III. Qualifications and Disclaimers Related to the Work Product Undertaken and Opinions Related to this Report

1. In rendering our assessment herein, we have assumed that all executed factual statements, instruments, and other documents that we have relied upon in rendering this assessment have been executed by persons with legal capacity to execute such documents.

2. Except as may have been reflected in any Major Decision Reporting Package or Asset Status Report, the Operating Advisor did not participate in, or have access to, the Special Servicer’s and Directing Holder’s discussion(s) regarding the Whole Loan when a Servicing Transfer Event has occurred. The Operating Advisor does not have authority to speak with the Directing Holder or borrower directly. As such, the Operating Advisor relied solely upon the information delivered to it by the Special Servicer as well as its interaction with the Special Servicer, if any, in gathering the relevant information to generate this report. The services that we perform are not designed and cannot be relied upon to detect fraud or illegal acts should any exist.

3. The Special Servicer has the legal authority and responsibility to service the Whole Loan when a Servicing Transfer Event has occurred pursuant to the Trust and Servicing Agreement. The Operating Advisor has no responsibility or authority to alter the standards set forth therein or direct the actions of the Special Servicer.

S-2

4. Confidentiality and other contractual limitations limit the Operating Advisor’s ability to outline the details or substance of any communications held between it and the Special Servicer regarding the Whole Loan when a Servicing Transfer Event has occurred and certain information it reviewed in connection with its duties under the Trust and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Operating Advisor is given access to by the Special Servicer.

5. The Operating Advisor is not empowered to speak with any investors directly. If the investors have questions regarding this report, they should address such questions to the Certificate Administrator through the Certificate Administrator’s website.

6. This report does not constitute recommendations to buy, sell or hold any security, nor does the Operating Advisor take into account market prices of securities or financial markets generally when performing its limited review of the Special Servicer as described above. The Operating Advisor does not have a fiduciary relationship with any Certificateholder or any other party or individual. Nothing is intended to or should be construed as creating a fiduciary relationship between the Operating Advisor and any Certificateholder, party or individual.

Terms used but not defined herein have the meaning set forth in the Trust and Servicing Agreement.

PARK BRIDGE LENDER SERVICES LLC,
as Operating Advisor
By:	Park Bridge Advisors LLC, a New York
	limited liability company, its sole member
	By:	Park Bridge Financial LLC, a New York
		limited liability company, its sole member
	By:
		Name:
		Title:

S-3

EXHIBIT T

Form of Notice from operating advisor recommending replacement of special servicer

Wilmington Trust, National Association
as Trustee 

1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee – CAMB 2021-CX2 

with a copy to: 

E-mail: cmbstrustee@wilmingtontrust.com

Wells Fargo Bank, National Association
as Certificate Administrator 

9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com

with a copy to: 

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

Situs Holdings, LLC
as Special Servicer 

2 Embarcadero Center, 8th Floor
San Francisco, California 94111 

Attention: Stacey Ciarlanti 

E-mail: staceyciarlanti@situsamc.com

Re: CAMB 2021-CX2, Commercial Mortgage Pass-Through Certificates, Recommendation of Replacement of Special Servicer

T-1

Ladies and Gentlemen:

This letter is delivered pursuant to Section 7.01(e) of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), and executed in connection with the above-referenced transaction, on behalf of the holders of CAMB 2021-CX2, Commercial Mortgage Pass-Through Certificates (the “Certificates”) regarding the replacement of the Special Servicer. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Trust and Servicing Agreement.

Based upon our review of the Special Servicer’s operational practices conducted pursuant to and in accordance with Section 6.11 of the Trust and Servicing Agreement, it is our assessment that Situs Holdings, LLC, in its current capacity as Special Servicer, is not [performing its duties under the Trust and Servicing Agreement][acting in accordance with the Servicing Standard]. The following factors support our assessment: [________].

Based upon such assessment, we further hereby recommend that Situs Holdings, LLC be removed as Special Servicer and that [________] be appointed its successor in such capacity. 

Very truly yours,
[The Operating Advisor]
By:
	Name:
	Title:

Dated:

T-2

EXHIBIT U

RESERVED

U-1

EXHIBIT V

Form of cERTIFICATE ADMINISTRATOR RECEIPT OF CLASS HRR CERTIFICATES

3650 Cal Bridge Lending, LLC  as Retaining Sponsor  2977 McFarlane Road, Suite 300  Miami, Florida 33133
Attention: Jonathan Roth and Mark A. Jefferis Deutsche Mortgage & Asset Receiving
Corporation  1 Columbus Circle  New York, New York 10019
Attention: Helaine M. Kaplan with copies via email to:  lainie.kaye@db.com, and cmbs.requests@db.com  3650 Cal Bridge Cambridge Crossing LLC  as Retaining Party  2977 McFarlane Road, Suite 300  Miami, Florida 33133
Attention: Jonathan Roth and Mark A. Jefferis

Re: CAMB 2021-CX2 Mortgage Trust Commercial Mortgage Pass-Through Certificates

In accordance with Section 5.02(a) of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Agreement”), the Certificate Administrator hereby acknowledges receipt of $[_] of the Class HRR Certificates (CUSIP No. [_]) in the form of a Definitive Certificate, for the benefit of , the Retaining Party.

Capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.

Wells Fargo Bank, National Association,
not in its individual capacity
but solely as Certificate Administrator
By:	COMPUTERSHARE TRUST COMPANY, N.A., as attorney-in-fact
	By:
		Name:
		Title:

V-1

EXHIBIT W

ADDITIONAL FORM 10-D DISCLOSURE

For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 11.04 of the Trust and Servicing Agreement to disclose to each Other Exchange Act Reporting Party and the Other Depositor any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to rely on the accuracy of the Offering Circular and the offering materials with respect to any related Other Securitization Trust (other than information with respect to itself that is set forth in or omitted from such offering materials or the Offering Circular), in the absence of specific written notice to the contrary from the Depositor, Other Depositor or Trust Loan Sellers. Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the prospectus supplement relating to the Other Securitization. For this CAMB 2021-CX2 Trust and Servicing Agreement and any Other Securitization Trust, each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular and the offering materials with respect to any related Other Securitization Trust.

Item on Form 10-D	Party Responsible
Item 1: Distribution and Pool Performance Information: Only with respect to any information required by 1121 which is NOT included on the Distribution Date Statement	●     Each Master Servicer (only with respect to 1121(a)(12) as to non-Specially Serviced Loans)  ●     Special Servicer (only with respect to 1121(a)(12) as to Specially Serviced Loans)  ●     Depositor  ●     Certificate Administrator  ●     Trust Loan Seller (only with respect to 1121(c)(2))
Item 2: Legal Proceedings: Item 1117 of Regulation AB (to the extent material to Certificateholders)	●     Master Servicer (as to itself)  ●     Special Servicer (as to itself)  ●     Trustee (as to itself)  ●     Certificate Administrator (as to itself)  ●     Depositor (as to itself)  ●     Any other Reporting Servicer (as to itself)

W-1

●     Trustee/Certificate Administrator/Master Servicer/ Depositor/Special Servicer as to the Trust

●     Trust Loan Seller

●     Originators under Item 1110 of Regulation AB (to be provided by the Depositor)

●     Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor) 

Item 3: Sale of Securities and Use of Proceeds	●     Depositor
Item 4: Defaults Upon Senior Securities	●     Certificate Administrator ●     Trustee
Item 5: Submission of Matters to a Vote of Security Holders	●     Certificate Administrator
Item 6: Significant Obligors of Pool Assets	●     Master Servicer
Item 7: Significant Enhancement Provider Information	●     N/A
Item 8: Other Information (information required to be disclosed on Form 8-K that was not properly disclosed)	●     Any party responsible for disclosure items on Form 8-K to the extent of such items
Item 9: Exhibits	●     Depositor (exhibits required by Item 601 of Regulation S-K, such as material agreements) ●     Certificate Administrator (Monthly Statement to Certificateholders)

W-2

EXHIBIT X

ADDITIONAL FORM 10-K DISCLOSURE

For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 11.05 of the Trust and Servicing Agreement to disclose to each Other Exchange Act Reporting Party and the Other Depositor any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of financial statements required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to rely on the accuracy of the Offering Circular and the offering materials with respect to any related Other Securitization Trust (other than information with respect to itself that is set forth in or omitted from such offering materials or the Offering Circular), in the absence of specific written notice to the contrary from the Depositor, the Other Depositor or Trust Loan Sellers. Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the prospectus supplement relating to the Other Securitization. For this CAMB 2021-CX2 Trust and Servicing Agreement and any Other Securitization, each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular and the offering materials with respect to any related Other Securitization Trust.

Item on Form 10-K	Party Responsible
Item 1B: Unresolved Staff Comments	●   Depositor
Item 9B: Other Information (information required to be disclosed on Form 8-K that was not properly disclosed)	●   Any party responsible for disclosure items on Form 8-K to the extent of such items
Item 15: Exhibits, Financial Statement Schedules	●   Certificate Administrator ●   Depositor
Additional Item: Disclosure per Item 1112(b)(1) of Regulation AB	●   Master Servicer
Additional Item: Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB	●   N/A

X-1

Additional Item: Disclosure per Item 1117 of Regulation AB (to the extent material to Certificateholders)

●    Master Servicer (as to itself) ●   Special Servicer (as to itself) ●   Certificate Administrator (as to itself) ●   Trustee (as to itself) ●   Depositor (as to itself) ●   Any other Reporting Servicer (as to itself) ●   Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust ●   Trust Loan Seller ●   Originators under Item 1110 of Regulation AB (to be provided by the Depositor) ●   Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor)

Additional Item: Disclosure per Item 1119 of Regulation AB

●   Master Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under 1119(a) with the Trustee, Certificate Administrator, Special Servicer or a sub-servicer meeting any of the descriptions in Item 1108(a)(3)) ●   Special Servicer (as to itself) (to the extent material to Certificateholders and only as to affiliations under 1119(a) with the Trustee, Certificate Administrator, Master Servicer or a sub-servicer meeting any of the descriptions in Item 1108(a)(3)) ●   Certificate Administrator (as to itself) (to the extent material to Certificateholders) ●   Trustee (as to itself) (to the extent material to Certificateholders) ●   Depositor (as to itself) ●   Depositor (as to the Trust) ●   Trust Loan Seller ●   Originators under Item 1110 of Regulation AB (to be provided by the Depositor) ●   Party under Item 1100(d)(1) of Regulation AB (to be provided by the Depositor)

X-2

EXHIBIT Y

FORM 8-K DISCLOSURE INFORMATION

For so long as any Other Securitization Trust is subject to the reporting requirements of the Exchange Act, the parties identified in the “Party Responsible” column (with each Servicing Function Participant deemed to be responsible for the following items for which the party that retained such Servicing Function Participant is responsible) are obligated pursuant to Section 11.06 of the Trust and Servicing Agreement to disclose to each Other Exchange Act Reporting Party and the Other Depositor the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to rely on the accuracy of the Offering Circular and the offering materials with respect to any related Other Securitization Trust (other than information with respect to itself that is set forth in or omitted from such offering materials or the Offering Circular), in the absence of specific written notice to the contrary from the Depositor, the Other Depositor or Trust Loan Sellers. Each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to conclusively assume that there is no “significant obligor” other than a party identified as such in the prospectus supplement relating to the Other Securitization. For this CAMB 2021-CX2 Trust and Servicing Agreement and any Other Securitization, each of the Certificate Administrator, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer (in its capacity as such), each Other Exchange Act Reporting Party and the Other Depositor shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB other than a party identified as such in the Offering Circular and the offering materials with respect to any related Other Securitization Trust.

Item on Form 8-K	Party Responsible
Item 1.01- Entry into a Material Definitive Agreement Disclosure is required regarding entry into or amendment of any definitive agreement that is material to the securitization, even if depositor is not a party. Examples: servicing agreement, custodial agreement.	●   Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust)
Item 1.02- Termination of a Material Definitive Agreement Disclosure is required regarding termination of any definitive agreement that is material to the securitization (other than expiration in accordance with its terms), even if depositor is not a party. Examples: servicing agreement, custodial agreement.	●   Trustee/Certificate Administrator/Master Servicer/Depositor/Special Servicer as to the Trust (only as to the agreements such entity is a party to or entered into on behalf of the Trust)
Item 1.03- Bankruptcy or Receivership	●   Depositor   ●   Trust Loan Seller

Y-1

Item on Form 8-K	Party Responsible
Item 2.04- Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement Includes an early amortization, performance trigger or other event, including event of default, that would materially alter the payment priority/distribution of cash flows/amortization schedule. Disclosure will be made of events other than waterfall triggers which are disclosed in the monthly statements to the certificateholders.	●   Depositor   ●   Certificate Administrator
Item 3.03- Material Modification to Rights of Security Holders Disclosure is required of any material modification to documents defining the rights of Certificateholders, including the Trust and Servicing Agreement.	●    Certificate Administrator
Item 5.03- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year Disclosure is required of any amendment “to the governing documents of the issuing entity”.	●    Depositor
Item 5.06 – Change in Shell Company Status	●    Depositor
Item 5.07 – Submission of Matters to a Vote of Security Holders	●    Depositor
Item 5.08 – Shareholder Director Nomination	●    Depositor
Item 6.01- ABS Informational and Computational Material	●    Depositor
Item 6.02- Change of Servicer or Trustee Requires disclosure of any removal, replacement, substitution or addition of any master servicer, affiliated servicer, other servicer servicing 10% or more of pool assets at time of report, other material servicers or trustee.	●    Master Servicer (as to itself or a servicer retained by it)   ●    Special Servicer (as to itself or a servicer retained by it)   ●    Certificate Administrator (as to itself or an entity retained by it)   ●    Trustee   ●    Depositor
Reg AB disclosure about any new servicer or master servicer is also required.	●    Master Servicer or Special Servicer, as applicable
Reg AB disclosure about any new Trustee is also required.	●    Trustee
Reg AB disclosure about any new Certificate Administrator is also required.	●    Certificate Administrator
Item 6.03- Change in Credit Enhancement or Other External Support	N/A
Item 6.04- Failure to Make a Required Distribution	●    Certificate Administrator
Item 6.05- Securities Act Updating Disclosure	●    Depositor
Item 7.01- Regulation FD Disclosure	●    Depositor
Item 8.01 – Other Events Any event, with respect to which information is not otherwise called for in Form 8-K, that the registrant deems of importance to certificateholders.	●    Depositor

Y-2

Item on Form 8-K	Party Responsible
Item 9.01 – Financial Statements and Exhibits	●   Responsible party for reporting/disclosing the financial statement or exhibit

Y-3

EXHIBIT Z

ADDITIONAL DISCLOSURE NOTIFICATION

**SEND VIA FAX TO (410)715-2380 AND VIA EMAIL TO

cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESSES IMMEDIATELY BELOW**

[Other Depositor Address]

[Each Other Exchange Act Reporting Party Address]

Re: **Additional Form [10-D][10-K][8-K] Disclosure Required **

Ladies and Gentlemen:

In accordance with Section [11.04][11.05][11.06] of the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Trust and Servicing Agreement”), entered into between Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), paying agent and custodian, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), the undersigned, as _________, hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

Z-1

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to , phone number: ; email address: .

[NAME OF PARTY], as [role]
By:
	Name:
	Title:

Z-2

EXHIBIT AA

INITIAL SUB-SERVICERS

Computershare Trust Company, N.A.

AA-1

EXHIBIT BB

FORM OF BACKUP CERTIFICATION

CAMB 2021-CX2 Mortgage Trust (the “Trust”)

I, [identify the certifying individual], a [identify position] of [identify party], as [identify role] under that certain Trust and Servicing Agreement dated as of November 9, 2021 (the “Trust and Servicing Agreement”), entered into between Deutsche Mortgage & Asset Receiving Corporation, as depositor, KeyBank National Association, as master servicer (in such capacity, the “Master Servicer”), Situs Holdings, LLC, as special servicer (the “Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), as paying agent and custodian, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”), on behalf of the [identify role], certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor, and its officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all servicing information and all required reports required to be submitted by the [identify role] to the applicable Other Exchange Act Reporting Party pursuant to the Trust and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) have been submitted by the [identify role] to the Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the [identify role] information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or an officer under my supervision is, responsible for reviewing the activities performed by the [identify role] under the Trust and Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required in this report under Item 1123 of Regulation AB with respect to the [identify role], and except as disclosed in the compliance certificate delivered by the [identify role] under Section 11.07 of the Trust and Servicing Agreement, the [identify role] has fulfilled its obligations under the Trust and Servicing Agreement in all material respects in the year to which such report applies;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [identify role] with respect to the Trust’s fiscal year _____ have been provided all information relating to the [identify role] assessment of compliance with the Relevant Servicing Criteria, in order to

BB-1

enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [identify role] for asset-backed securities with respect to the [identify role] or any Servicing Function Participant retained by the [identify role] and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Trust and Servicing Agreement.

Date:_____________

[IDENTIFY PARTY]
By:
	Name:
	Title:

BB-2

EXHIBIT CC

FORM OF COMPANION LOAN HOLDER CERTIFICATION

[Date]

KeyBank National Association
11501 Outlook Street, Suite 300
Overland Park, Kansas 66211
Attention: Michael Tilden
Email: Michael_a_tilden@keybank.com

with a copy to: 

Polsinelli
900 West 48th Place, Suite 900
Kansas City, Missouri 64112
Attention: Kraig Kohring
Email: kkohring@polsinelli.com

Wells Fargo Bank, National Association 

9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services – CAMB 2021-CX2

with copies to:

ct.cmbs.bond.admin@wellsfargo.com, and 

trustadministrationgroup@wellsfargo.com

Re: CAMB 2021-CX2 Mortgage Trust – Companion Loan

In accordance with the requirements for obtaining certain information under the Trust and Servicing Agreement (the “Agreement”), dated as of November 9, 2021, among Deutsche Mortgage & Asset Receiving Corporation, as Depositor, KeyBank National Association, as Master Servicer, Situs Holdings, LLC, as Special Servicer, Wilmington Trust, National Association, as Trustee, Wells Fargo Bank, National Association, as Certificate Administrator and Park Bridge Lender Services LLC, as Operating Advisor, with respect to any Companion Loan (as defined in the Agreement), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is a Companion Loan Holder (as defined in the Agreement).

2.       The undersigned is requesting access pursuant to the Agreement to certain information (the “Information”) on the Certificate Administrator’s Website.

CC-1

In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned shall keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information shall not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner, in whole or in part.

The undersigned shall not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

3.       The undersigned agrees that each time it accesses the Certificate Administrator’s Website, the undersigned is deemed to have recertified that the representations contained herein remain true and correct.

4.       The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Certificate Administrator, the Trustee, the Master Servicer, the Special Servicer, the Operating Advisor, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.

[Companion Loan Holder]
By:
	Title:
	Company:
	Phone:

CC-2

EX-4.5

Exhibit 4.5

 

EXECUTION VERSION

   

 

WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC.,
as Depositor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as General Master Servicer

 

CWCAPITAL ASSET MANAGEMENT LLC,
as General Special Servicer

 

NATIONAL COOPERATIVE BANK, N.A.,
as NCB Master Servicer and as NCB Special Servicer

 

COMPUTERSHARE TRUST COMPANY, N.A.,
as Certificate Administrator

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee

 

and

 

PARK BRIDGE LENDER SERVICES LLC,
as Operating Advisor and as Asset Representations Reviewer

 

 

 

POOLING AND SERVICING AGREEMENT

 

Dated as of November 1, 2021

 

 

 

Commercial Mortgage Pass-Through Certificates
Series 2021-BNK37

   

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

Article I DEFINITIONS		6
Section 1.01	Defined Terms	6
Section 1.02	Certain Calculations	145
Article II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES		146
Section 2.01	Conveyance of Mortgage Loans	146
Section 2.02	Acceptance by Trustee	153
Section 2.03	Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties	158
Section 2.04	Execution of Certificates; Issuance of Lower-Tier Regular Interests	175
Section 2.05	Creation of the Grantor Trust	176
Article III ADMINISTRATION AND SERVICING OF THE TRUST FUND		176
Section 3.01	Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties	176
Section 3.02	Collection of Mortgage Loan Payments	185
Section 3.03	Collection of Taxes, Assessments and Similar Items; Servicing Accounts	191
Section 3.04	The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the Retained Certificate Gain-on-Sale Reserve Account	196
Section 3.05	Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account	203
Section 3.06	Investment of Funds in the Collection Account, REO Account and Loss of Value Reserve Fund	214
Section 3.07	Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage	216
Section 3.08	Enforcement of Due-on-Sale Clauses; Assumption Agreements	222
Section 3.09	Realization Upon Defaulted Loans and Companion Loans	228
Section 3.10	Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files	232
Section 3.11	Servicing Compensation	234
Section 3.12	Inspections; Collection of Financial Statements; Delivery of Reports	242
Section 3.13	Access to Certain Information	248
Section 3.14	Title to REO Property; REO Account	262
Section 3.15	Management of REO Property	264
Section 3.16	Sale of Defaulted Loans and REO Properties	266

 

-i- 

 

 

Section 3.17	Additional Obligations of Master Servicers and Special Servicers	273
Section 3.18	Modifications, Waivers, Amendments and Consents	276
Section 3.19	Transfer of Servicing Between the Master Servicers and the Special Servicers; Recordkeeping; Asset Status Report	290
Section 3.20	Sub-Servicing Agreements	297
Section 3.21	Interest Reserve Account	300
Section 3.22	Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers.	301
Section 3.23	Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party	301
Section 3.24	Intercreditor Agreements	306
Section 3.25	Rating Agency Confirmation	309
Section 3.26	The Operating Advisor	311
Section 3.27	Companion Paying Agent	319
Section 3.28	Serviced Companion Noteholder Register	319
Section 3.29	Certain Matters Relating to the Whole Loans	320
Section 3.30	Certain Matters with Respect to Joint Mortgage Loans	322
Section 3.31	[RESERVED]	327
Section 3.32	Litigation Control	327
Section 3.33	Delivery of Excluded Information to the Certificate Administrator	330
Article IV DISTRIBUTIONS TO CERTIFICATEHOLDERS		331
Section 4.01	Distributions of Available Funds	331
Section 4.02	Distribution Date Statements; CREFC® Investor Reporting Packages; Grant of Power of Attorney	346
Section 4.03	P&I Advances	352
Section 4.04	Allocation of Realized Losses	356
Section 4.05	Appraisal Reduction Amounts; Collateral Deficiency Amounts	358
Section 4.06	Grantor Trust Reporting	363
Section 4.07	Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool	365
Section 4.08	Secure Data Room	368
Article V THE CERTIFICATES		369
Section 5.01	The Certificates	369
Section 5.02	Form and Registration	370
Section 5.03	Registration of Transfer and Exchange of Certificates	373
Section 5.04	Mutilated, Destroyed, Lost or Stolen Certificates	382
Section 5.05	Persons Deemed Owners	383
Section 5.06	Access to List of Certificateholders’ Names and Addresses; Special Notices	383
Section 5.07	Maintenance of Office or Agency	384
Section 5.08	Appointment of Certificate Administrator	384
Section 5.09	[RESERVED]	385
Section 5.10	Voting Procedures	385
Section 5.11	Exchangeable Certificates	387

 

-ii- 

 

 

Article VI THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE DIRECTING CERTIFICATEHOLDER AND THE RISK RETENTION CONSULTATION PARTY		389
Section 6.01	Representations, Warranties and Covenants of the Master Servicers, the Special Servicers, the Operating Advisor and the Asset Representations Reviewer	389
Section 6.02	Liability of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers and the Asset Representations Reviewer	395
Section 6.03	Merger, Consolidation or Conversion of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers or the Asset Representations Reviewer	395
Section 6.04	Limitation on Liability of the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and Others	397
Section 6.05	Depositor, Master Servicers and Special Servicers Not to Resign	403
Section 6.06	Rights of the Depositor in Respect of the Master Servicers and the Special Servicers	404
Section 6.07	The Master Servicers and the Special Servicers as Certificate Owner	404
Section 6.08	The Directing Certificateholder and the Risk Retention Consultation Party	404
Section 6.09	Knowledge of Wells Fargo Bank, National Association	413
Article VII SERVICER TERMINATION EVENTS		414
Section 7.01	Servicer Termination Events; Master Servicers and Special Servicers Termination	414
Section 7.02	Trustee to Act; Appointment of Successor	422
Section 7.03	Notification to Certificateholders	424
Section 7.04	Waiver of Servicer Termination Events	425
Section 7.05	Trustee as Maker of Advances	425
Article VIII CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR		426
Section 8.01	Duties of the Trustee and the Certificate Administrator	426
Section 8.02	Certain Matters Affecting the Trustee and the Certificate Administrator	427
Section 8.03	Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans	429
Section 8.04	Trustee or Certificate Administrator May Own Certificates	430
Section 8.05	Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator	430
Section 8.06	Eligibility Requirements for Trustee and Certificate Administrator	432
Section 8.07	Resignation and Removal of the Trustee and Certificate Administrator	432
Section 8.08	Successor Trustee or Certificate Administrator	435
Section 8.09	Merger or Consolidation of Trustee or Certificate Administrator	435
Section 8.10	Appointment of Co-Trustee or Separate Trustee	436
Section 8.11	Appointment of Custodians	437

 

-iii- 

 

 

Section 8.12	Representations and Warranties of the Trustee	437
Section 8.13	Provision of Information to Certificate Administrator, Master Servicers and Special Servicers	438
Section 8.14	Representations and Warranties of the Certificate Administrator	439
Section 8.15	Compliance with the PATRIOT Act	440
Article IX TERMINATION		440
Section 9.01	Termination upon Repurchase or Liquidation of All Mortgage Loans	445
Section 9.02	Additional Termination Requirements	445
Article X ADDITIONAL REMIC PROVISIONS		445
Section 10.01	REMIC Administration	445
Section 10.02	Use of Agents	449
Section 10.03	Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator	450
Section 10.04	Appointment of REMIC Administrators	450
Article XI EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE		451
Section 11.01	Intent of the Parties; Reasonableness	451
Section 11.02	Succession; Subcontractors	452
Section 11.03	Filing Obligations	454
Section 11.04	Form 10-D and Form ABS-EE Filings	455
Section 11.05	Form 10-K Filings	459
Section 11.06	Sarbanes-Oxley Certification	462
Section 11.07	Form 8-K Filings	464
Section 11.08	Form 15 Filing	466
Section 11.09	Annual Compliance Statements	466
Section 11.10	Annual Reports on Assessment of Compliance with Servicing Criteria	468
Section 11.11	Annual Independent Public Accountants’ Attestation Report	470
Section 11.12	Indemnification	471
Section 11.13	Amendments	474
Section 11.14	Regulation AB Notices	474
Section 11.15	Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans	474
Section 11.16	Certain Matters Regarding Significant Obligors	480
Section 11.17	Impact of Cure Period	480
Article XII THE ASSET REPRESENTATIONS REVIEWER		480
Section 12.01	Asset Review	480
Section 12.02	Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability	486
Section 12.03	Resignation of the Asset Representations Reviewer	488
Section 12.04	Restrictions of the Asset Representations Reviewer	498
Section 12.05	Termination of the Asset Representations Reviewer	498
Article XIII MISCELLANEOUS PROVISIONS		491
Section 13.01	Amendment	491

 

-iv- 

 

 

Section 13.02	Recordation of Agreement; Counterparts	496
Section 13.03	Limitation on Rights of Certificateholders	497
Section 13.04	Governing Law; Submission to Jurisdiction; Waiver of Jury Trial	498
Section 13.05	Notices	500
Section 13.06	Severability of Provisions	506
Section 13.07	Grant of a Security Interest	506
Section 13.08	Successors and Assigns; Third Party Beneficiaries	507
Section 13.09	Article and Section Headings	508
Section 13.10	Notices to the Rating Agencies	508
Section 13.11	Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements	509

 

EXHIBITS

 

EXHIBIT A-1	Form of Certificate (Other than Class R Certificates)
EXHIBIT A-2	Form of Class R Certificate
EXHIBIT A-3	Form of RR Interest
EXHIBIT B	Mortgage Loan Schedule
EXHIBIT C	Form of Investment Representation Letter
EXHIBIT D-1	Form of Transferee Affidavit for Transfers of Class R Certificates
EXHIBIT D-2	Form of Transferor Letter for Transfers of Class R Certificates
EXHIBIT D-3	Form of Transferee Certificate for Transfers of RR Interest
EXHIBIT D-4	Form of Transferor Certificate for Transfers of RR Interest
EXHIBIT E	Form of Request for Release
EXHIBIT F-1	Form of ERISA Representation Letter Regarding ERISA Restricted Certificates
EXHIBIT F-2	Form of ERISA Representation Letter Regarding Class R Certificates
EXHIBIT G	Form of Distribution Date Statement
EXHIBIT H	Form of Omnibus Assignment
EXHIBIT I	Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate during Restricted Period
EXHIBIT J	Form of Transfer Certificate for Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate after Restricted Period
EXHIBIT K	Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate during Restricted Period
EXHIBIT L	Form of Transfer Certificate for Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate after Restricted Period
EXHIBIT M	Form of Transfer Certificate for Non-Book Entry Certificate to Temporary Regulation S Book-Entry Certificate
EXHIBIT N	Form of Transfer Certificate for Non-Book Entry Certificate to Regulation S Book-Entry Certificate
EXHIBIT O	Form of Transfer Certificate for Non-Book Entry Certificate to Rule 144A Book-Entry Certificate
EXHIBIT P-1A	Form of Investor Certification for Non-Borrower Party and/or the Risk Retention Consultation Party (for Persons other than the Directing Certificateholder and/or a Controlling Class Certificateholder)

 

-v- 

 

 

EXHIBIT P-1B	Form of Investor Certification for Non-Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1C	Form of Investor Certification for Borrower Party (for Persons other than the Directing Certificateholder, the Risk Retention Consultation Party and/or a Controlling Class Certificateholder)
EXHIBIT P-1D	Form of Investor Certification for Borrower Party (for the Directing Certificateholder and/or a Controlling Class Certificateholder)
EXHIBIT P-1E	Form of Notice of Excluded Controlling Class Holder
EXHIBIT P-1F	Form of Notice of [Excluded Loan][Excluded Controlling Class Holder] to Certificate Administrator
EXHIBIT P-1G	Form of Certification of the Directing Certificateholder
EXHIBIT P-1H	Form of Certification of the Risk Retention Consultation Party
EXHIBIT P-2	Form of Certification for NRSROs
EXHIBIT P-3	Online Market Data Provider Certification
EXHIBIT Q	Custodian Certification/Exception Report
EXHIBIT R-1	Form of Power of Attorney by Trustee for Master Servicer
EXHIBIT R-2	Form of Power of Attorney by Trustee for Special Servicer
EXHIBIT S	Initial Serviced Companion Noteholders
EXHIBIT T	Form of Notice for Non-Serviced Mortgage Loan
EXHIBIT U	Form of Notice and Certification Regarding Defeasance of Mortgage Loan
EXHIBIT V	Form of Operating Advisor Annual Report
EXHIBIT W	Form of Notice from Operating Advisor Recommending Replacement of the [General][NCB] Special Servicer
EXHIBIT X	Form of Confidentiality Agreement
EXHIBIT Y	Form Certification to be Provided with Form 10-K
EXHIBIT Z-1	Form of Certification to be Provided to Depositor by Certificate Administrator
EXHIBIT Z-2	Form of Certification to be Provided to Depositor by Master Servicer
EXHIBIT Z-3	Form of Certification to be Provided to Depositor by Special Servicer
EXHIBIT Z-4	Form of Certification to be Provided to Depositor by Trustee
EXHIBIT Z-5	Form of Certification to be Provided to Depositor by Operating Advisor
EXHIBIT Z-6	Form of Certification to be Provided to Depositor by Custodian
EXHIBIT Z-7	Form of Certification to be Provided to Depositor by Asset Representations Reviewer
EXHIBIT AA	Servicing Criteria to be Addressed in Assessment of Compliance
EXHIBIT BB	Additional Form 10-D Disclosure
EXHIBIT CC	Additional Form 10-K Disclosure
EXHIBIT DD	Form 8-K Disclosure Information
EXHIBIT EE	Additional Disclosure Notification
EXHIBIT FF	Initial Sub-Servicers
EXHIBIT GG	Servicing Function Participants
EXHIBIT HH	Form of Annual Compliance Statement
EXHIBIT II	Form of Report on Assessment of Compliance with Servicing Criteria
EXHIBIT JJ	CREFC® Payment Information
EXHIBIT KK	Form of Notice of Additional Indebtedness Notification
EXHIBIT LL	[Reserved]
EXHIBIT MM	Additional Disclosure Notification (Accounts)

 

-vi- 

 

 

EXHIBIT NN	Form of Notice of Purchase of Controlling Class Certificate
EXHIBIT OO	Form of Asset Review Report by the Asset Representations Reviewer
EXHIBIT PP	Form of Asset Review Report Summary
EXHIBIT QQ	Asset Review Procedures
EXHIBIT RR	Form of Certification to Certificate Administrator Requesting Access to Secure Data Room
EXHIBIT SS	Form of Notice of [Additional Delinquent Loan][Cessation of Delinquent Loan][Cessation of Asset Review Trigger]
EXHIBIT TT	Form of Intercreditor Agreement and Subordination Agreement for NCB Co-op Mortgage Loans
EXHIBIT UU	Form of Certificate Administrator Receipt in respect of the RR Interest
EXHIBIT VV	Form of Exchange Letter
SCHEDULES
SCHEDULE 1	Mortgage Loans With Additional Debt
SCHEDULE 2	Class A-SB Planned Principal Balance Schedule
SCHEDULE 3	Designated Escrows and Reserves (other than with respect to NCB Co-op Mortgage Loans)

 

-vii- 

 

 

This Pooling and Servicing Agreement is dated and effective as of November 1, 2021, among Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer.

 

PRELIMINARY STATEMENT:

 

The Depositor intends to sell commercial mortgage pass-through certificates (collectively, the “Certificates”), to be issued hereunder in multiple classes (each, a “Class”), which in the aggregate will evidence the entire beneficial ownership interest in the Trust to be created hereunder, the primary assets of which will be a pool of commercial mortgage loans. As provided herein, the Certificate Administrator shall elect or shall cause an election to be made to treat designated portions of the Trust (exclusive of the Excess Interest and the proceeds thereof in the Excess Interest Distribution Account) for federal income tax purposes as two separate real estate mortgage investment conduits (the “Upper-Tier REMIC” and the “Lower-Tier REMIC”, and each a “Trust REMIC” as described herein).

 

In addition, the parties intend that the portion of the Trust Fund consisting of the Grantor Trust Designated Portions shall be classified as an “investment trust” under section 301.7701-4(c) of the Treasury Regulations and that the holders of the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates, the Class C Exchangeable Certificates and the holders of the RR Interest shall be treated as holding undivided beneficial ownership interests in the corresponding Grantor Trust Designated Portion, under subpart E, part I of subchapter J of the Code (such arrangement, the “Grantor Trust”). The Certificate Administrator shall take all actions expressly required hereunder to ensure that the Grantor Trust remains classified as a trust and that the holders of the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates, the Class C Exchangeable Certificates and the RR Interest continue to be the owners of their Grantor Trust Designated Portions for federal income tax purposes. The Grantor Trust shall not be treated as part of either Trust REMIC.

 

The REMIC structure set forth in this Preliminary Statement is intended to cause all of the cash flow from the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on the Regular Certificates and the Exchangeable Upper-Tier Regular Interests, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interest issued hereunder. To the extent that any party hereto believes the structure to diverge from such intention (without implying any duty of any such party to identify any such ambiguity), the party or parties identifying the subject defect or ambiguity in this Agreement shall notify the other parties hereto, whereupon the Depositor and the Certificate Administrator shall use commercially reasonable efforts to rectify or resolve the subject defect or ambiguity to accomplish the intended result without Certificateholder approval (but with guidance of counsel), including, to the extent necessary, making any amendments in accordance with Section 13.01(a) of this Agreement, but subject to any conditions in Section 13.01. The other parties hereto agree

 

 

 

 

to reasonably cooperate with the Depositor and the Certificate Administrator in connection with any amendment to this Agreement in furtherance of the foregoing.

 

The Depositor intends to sell the Certificates to the Underwriters and the Initial Purchasers.

 

LOWER-TIER REMIC

 

The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of Excess Interest) and will issue the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and LRR Uncertificated Interests (the “Lower-Tier Regular Interests”), which will evidence the “regular interests” in the Lower-Tier REMIC created hereunder. The Lower-Tier REMIC will also issue the uncertificated Class LR Interest, which is the sole Class of “residual interests” in the Lower-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

The following table sets forth the Original Lower-Tier Principal Amounts and per annum rates of interest for the Lower-Tier Regular Interests and the Class LR Interest:

 

Class Designation	Interest Rate	Original Lower-Tier Principal Amount
Class LA1	(1)	$19,414,000
Class LA2	(1)	$147,337,000
Class LA3	(1)	$74,150,000
Class LASB	(1)	$24,589,000
Class LA4	(1)	$234,500,000
Class LA5	(1)	$380,018,000
Class LAS	(1)	$143,001,000
Class LB	(1)	$47,143,000
Class LC	(1)	$53,430,000
Class LD	(1)	$31,428,000
Class LE	(1)	$23,572,000
Class LF	(1)	$26,715,000
Class LG	(1)	$12,571,000
Class LH	(1)	$39,286,752
Class LR	None(2)	None
LRR	(1)	$66,166,039.58

 

 

 

(1) The interest rate for each Class of Lower-Tier Regular Interests on any Distribution Date will be the Weighted Average Net Mortgage Rate for such Distribution Date.

 

(2) The Class LR Interest (evidenced by the Class R Certificates) will not have a Certificate Balance or a Notional Amount, will not bear interest and will not be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Lower-Tier REMIC Distribution Account after distributing the Lower-Tier Distribution Amount will be deemed distributed to the Class LR Interest and shall be payable to the Holders of the Class R Certificates.

 

UPPER-TIER REMIC

 

The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and will issue the Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G and Class H Certificates, the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1, Class A-5-X2, Class A-S, Class A-S-

 

 -2-

 

 

X1, Class A-S-X2, Class B, Class B-X1, Class B-X2, Class C, Class C-X1 and Class C-X2 Upper-Tier Regular Interests, each of which will represent a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC provisions (the “Exchangeable Upper-Tier Regular Interests”) and the RR Interest (exclusive of the portion of the RR Interest representing an interest in the Grantor Trust), each of which will represent a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions. Other than with respect to the RR Interest, each regular interest that is represented by a Regular Certificate or an Exchangeable Upper-Tier Regular Interest will have the same alphanumeric designation and initial pass-through rate, principal balance and entitlements as such Regular Certificate or Exchangeable Upper-Tier Regular Interest, as described below under the caption “The Regular Certificates, Exchangeable Upper-Tier Regular Interests and Class UR Interest.” The Upper-Tier REMIC also will issue the uncertificated Class UR Interest, which is the sole Class of “residual interests” in the Upper-Tier REMIC for purposes of the REMIC Provisions and is represented by the Class R Certificates.

 

THE REGULAR CERTIFICATES, EXCHANGEABLE UPPER-TIER REGULAR INTERESTS AND CLASS UR INTEREST

 

The following table (and related paragraphs) sets forth the designation, the approximate initial pass-through rate and the aggregate initial principal amount (the “Original Certificate Balance”) or Notional Amount (the “Original Notional Amount”), as applicable, for each Class of Regular Certificates, Exchangeable Upper-Tier Regular Interests and the Class UR Interest comprising the interests in the Upper-Tier REMIC created hereunder:

 

Designation of Regular Certificate, Exchangeable Upper-Tier Regular Interest and Class UR Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class A-1	1.1860%	$19,414,000
Class A-2	2.5130%	$147,337,000
Class A-3	2.5880%	$74,150,000
Class A-SB	2.4870%	$24,589,000
Class A-4	1.3700%	$234,500,000
Class A-4-X1	0.5000%	$234,500,000(2)
Class A-4-X2	0.5000%	$234,500,000(2)
Class A-5	1.6180%	$380,018,000
Class A-5-X1	0.5000%	$380,018,000(2)
Class A-5-X2	0.5000%	$380,018,000(2)
Class X-A	0.6126%(1)	$880,008,000(2)
Class X-B	0.2254%(1)	$190,144,000(2)
Class X-D	0.6091%(1)	$55,000,000(2)
Class X-F	0.7091%(1)	$26,715,000(2)
Class X-G	0.7091%(1)	$12,571,000(2)
Class X-H	0.7091%(1)	$39,286,752(2)
Class A-S	1.8510%	$143,001,000
Class A-S-X1	0.5000%	$143,001,000(2)
Class A-S-X2	0.5000%	$143,001,000(2)
Class B	1.9830%	$47,143,000
Class B-X1	0.5000%	$47,143,000(2)
Class B-X2	0.5000%	$47,143,000(2)

 

 -3-

 

 

Designation of Regular Certificate, Exchangeable Upper-Tier Regular Interest and Class UR Interest	Initial Pass-Through Rate	Original Certificate Balance or Notional Amount
Class C	2.1091%	$53,430,000
Class C-X1	0.5000%	$53,430,000(2)
Class C-X2	0.5000%	$53,430,000(2)
Class D	2.5000%	$31,428,000
Class E	2.5000%	$23,572,000
Class F	2.4000%	$26,715,000
Class G	2.4000%	$12,571,000
Class H	2.4000%	$39,286,752
Class R	None(3)	N/A(3)
RR Interest	None(4)	$66,166,039.58

 

 

 

⁽¹⁾ The Pass-Through Rate for the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates will be calculated in accordance with the definition of “Class X-A Pass-Through Rate”, “Class X-B Pass-Through Rate”, “Class X-D Pass-Through Rate”, “Class X-F Pass-Through Rate”, “Class X-G Pass-Through Rate” and “Class X-H Pass-Through Rate”, respectively.

 

⁽²⁾ None of the Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates or the Class A-4-X1, Class A-4-X2, Class A-5-X1, Class A-5-X2, Class A-S-X1, Class A-S-X2, Class B-X1, Class B-X2, Class C-X1 or Class C-X2 Upper-Tier Regular Interests will have a Certificate Balance or be entitled to distributions of principal; rather, such Classes will accrue interest as provided herein on the Notional Amount thereof.

 

⁽³⁾ The Class R Certificates will not have a Certificate Balance or Notional Amount, bear interest or be entitled to distributions of Prepayment Premiums or Yield Maintenance Charges. Any Aggregate Available Funds remaining in the Upper-Tier REMIC Distribution Account, after all required distributions under this Agreement have been made to each Class of Regular Certificates will be deemed distributed to the Class UR Interest and shall be payable to the Holders of the Class R Certificates.

 

⁽⁴⁾ The RR Interest will be entitled to interest on any Distribution Date equal to the Retained Certificate Interest Distribution Amount. It will also be entitled to amounts described below under the caption “The Grantor Trust”.

 

The foregoing structure is intended to cause all of the cash from the Mortgage Loans to flow through to the Upper-Tier REMIC (exclusive of Excess Interest) as cash flow on the Regular Certificates and the Exchangeable Upper-Tier Regular Interests, without creating any shortfall, actual or potential (other than for credit losses), to any REMIC regular interests. To the extent that the structure is believed to diverge from such intention, the parties identifying such ambiguity shall notify the other parties hereto and the parties involved will resolve such ambiguities to accomplish the intended result and will to the extent necessary rectify any drafting errors or seek clarification to the structure without Certificateholder approval (but with guidance of counsel) to accomplish such intention, including, to the extent necessary, making any amendments in accordance with Section 13.01 of this Agreement.

 

THE GRANTOR TRUST

 

The following table sets forth each Class of Certificates that represents an undivided beneficial interest in the corresponding portion of the Grantor Trust (each such portion, a “Grantor Trust Designated Portion”).

 

 -4-

 

 

Class of Certificates	Corresponding Grantor Trust Designated Portion
Each Class of Exchangeable Certificates	The related Exchangeable Class Specific Grantor Trust Assets
RR Interest	RR Interest Specific Grantor Trust Assets

 

As provided herein, the Certificate Administrator shall not take any actions that would (i) cause the Grantor Trust not to be classified as a grantor trust for U.S. federal income tax purposes, (ii) cause the holders of such Classes of Certificates not to be the owners of their Grantor Trust Designated Portions or (iii) cause the Grantor Trust to be treated as part of any Trust REMIC.

 

As of the close of business on the Cut-off Date, the Mortgage Loans had an aggregate principal balance, after application of all payments of principal due on or before such date, whether or not received, equal to $1,323,320,792.

 

WHOLE LOANS

 

Loan No.	Whole Loan	Type	Non-Serviced PSA/TSA	Mortgage Loan	Pari Passu Companion Loan(s)	Subordinate Companion Loan(s)
1	One North Wacker	Non-Serviced	BANK 2021-BNK36	A-3, A-4 and A-6	A-1, A-2, A-5 and A-7	N/A
2	1201 Lake Robbins	Serviced	N/A	A-1	A-2, A-3 and A-4	N/A
4	One SoHo Square	Non-Serviced	SOHO 2021-SOHO	A-1-C-2	A-1-S, A-1-C-1, A-1-C-3, A-1-C-4, A-1-C-5, A-1-C-6 A-1-C-7, A-1-C-8, A-2-S, A-2-C-1, A-2-C-2, A-2-C-3, A-2-C-4, A-2-C-5 A-2-C-6, A-3-S, A-3-C-1, A-3-C-2 and A-3-C-3	B-1, B-2 and B-3
5	Park Avenue Plaza	Non-Serviced	MSC 2021-PLZA	A-2 and A-5	A-1, A-3, A-4, A-6, A-7 and A-8	B-1
7	Raymour & Flanigan Campus	Serviced	N/A	A-1	A-2	N/A
8	ExchangeRight 49	Serviced	N/A	A-1	A-2	N/A
15	Arizona Mills	Non-Serviced	BANK 2021-BNK36	A-3-1 and A-4	A-1, A-2 and A-3-2	N/A

 

 

 

Each of the Whole Loans listed above consists of the corresponding Mortgage Loan and Companion Loan(s) listed next to such Whole Loan. With respect to any Whole Loan, each of the Mortgage Loan and the Pari Passu Companion Loan(s) are pari passu with each other to the extent provided in the related Intercreditor Agreement, and any AB Subordinate Companion Loan(s) or Subordinate Companion Loan(s) is generally subordinate to the related Mortgage Loan and any Pari Passu Companion Loan(s) to the extent provided in the related Intercreditor Agreement. Each Serviced Whole Loan will be serviced and administered in

 

 -5-

 

 

accordance with this Agreement and the related Intercreditor Agreement. Each Non-Serviced Whole Loan will be serviced and administered in accordance with the related Non-Serviced PSA and the related Intercreditor Agreement.

 

The Companion Loans are not part of the Trust Fund, but are each secured by the applicable Mortgage that secures the related Mortgage Loan that is part of the Trust Fund. Amounts attributable to any Companion Loan will not be part of the Trust Fund, and (except to the extent that such amounts are payable or reimbursable to any party to this Agreement) will be owned by the related Companion Holders.

 

In consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

Article I

DEFINITIONS

 

Section 1.01        Defined Terms. Whenever used in this Agreement, including in the Preliminary Statement, the following capitalized terms, unless the context otherwise requires, shall have the meanings specified in this Article.

 

“10-K Filing Deadline”: As defined in Section 11.05(a).

 

“1201 Lake Robbins Intercreditor Agreement”: The Agreement Between Note Holders, dated as of November 22, 2021, by and between the holders of the respective promissory notes evidencing the 1201 Lake Robbins Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“1201 Lake Robbins Mortgage Loan”: With respect to the 1201 Lake Robbins Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1.

 

“1201 Lake Robbins Mortgaged Property”: The Mortgaged Property that secures the 1201 Lake Robbins Whole Loan.

 

“1201 Lake Robbins Pari Passu Companion Loan”: With respect to the 1201 Lake Robbins Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the 1201 Lake Robbins Mortgaged Property.

 

“1201 Lake Robbins Whole Loan”: The 1201 Lake Robbins Mortgage Loan together with the 1201 Lake Robbins Pari Passu Companion Loans, each of which is secured by the same Mortgage on the 1201 Lake Robbins Mortgaged Property. References herein to the 1201 Lake Robbins Whole Loan shall be construed to refer to the aggregate indebtedness under the 1201 Lake Robbins Mortgage Loan and the 1201 Lake Robbins Pari Passu Companion Loans.

 

 -6-

 

 

“15Ga-1 Notice”: As defined in Section 2.02(g).

 

“15Ga-1 Repurchase Request”: As defined in Section 2.02(g).

 

“17g-5 Information Provider”: The Certificate Administrator. 

 

“17g-5 Information Provider’s Website”: The 17g-5 Information Provider’s Internet website, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), under the “NRSRO” tab on the page relating to this transaction.

 

“30/360 Mortgage Loans”: The Mortgage Loans indicated as such in the Mortgage Loan Schedule.

 

“AB Control Appraisal Period”: With respect to a Serviced AB Whole Loan, a “Control Appraisal Period” or equivalent term under the related AB Intercreditor Agreement.

 

“AB Intercreditor Agreement”: Any Intercreditor Agreement by and among the holder of an AB Subordinate Companion Loan and the holder of the related Mortgage Loan, relating to the relative rights of such holders of the related AB Whole Loan, as the same may be further amended in accordance with the terms thereof.

 

“AB Modified Loan”: Any Corrected Loan (1) that became a Corrected Loan (which includes for purposes of this definition any Non-Serviced Mortgage Loan that became a “corrected loan” (or any term substantially similar thereto) pursuant to the related Non-Serviced PSA) due to a modification thereto that resulted in the creation of an A/B note structure (or similar structure) and as to which the new junior note(s) did not previously exist or the principal amount of the new junior note(s) was previously part of either an A note held by the Trust or the original unmodified Mortgage Loan and (2) as to which an Appraisal Reduction Amount is not in effect.

 

“AB Mortgage Loan”: A senior “A note” that is part of an AB Whole Loan and which is a Mortgage Loan that is part of the Trust Fund. As of the Closing Date, each of the One SoHo Square Mortgage Loan and the Park Avenue Plaza Mortgage Loan is an AB Mortgage Loan. 

 

“AB Mortgaged Property”: The Mortgaged Property which secures the related AB Whole Loan. As of the Closing Date, each of the One SoHo Square Mortgaged Property and the Park Avenue Plaza Mortgaged Property is an AB Mortgaged Property.

 

“AB Subordinate Companion Loan”: With respect to any AB Whole Loan, the related companion loan evidenced by the related promissory note made by the related Mortgagor and secured by the Mortgage on the related AB Mortgaged Property, which is not included in the Trust and which is subordinate in right of payment to the related AB Mortgage Loan to the extent set forth in the related Mortgage Loan documents and as provided in the related Intercreditor Agreement. As of the Closing Date, each of the One SoHo Square Subordinate Companion Loans and the Park Avenue Plaza Subordinate Companion Loans is an AB Subordinate Companion Loan. 

 

 -7-

 

 

“AB Whole Loan”: A Whole Loan that consists of a Mortgage Loan and one or more related AB Subordinate Companion Loans and, in some cases, one or more related Pari Passu Companion Loans. As of the Closing Date, each of the One SoHo Square Whole Loan and the Park Avenue Plaza Whole Loan is an AB Whole Loan.

 

“Accelerated Mezzanine Loan Lender”: A mezzanine lender under a mezzanine loan that has been accelerated or as to which foreclosure or enforcement proceedings have been commenced against the equity collateral pledged to secure such mezzanine loan.

 

“Acceptable Insurance Default”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, a default under the related Mortgage Loan documents arising by reason of (i) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property specific insurance coverage with respect to, or an all-risk casualty insurance policy that does not specifically exclude, terrorist or similar acts, and/or (ii) any failure on the part of the related Mortgagor to maintain with respect to the related Mortgaged Property insurance coverage with respect to damages or casualties caused by terrorist or similar acts upon terms not materially less favorable than those in place as of the Closing Date, in each case as to which default the applicable Master Servicer and the applicable Special Servicer may forbear taking any enforcement action, provided that the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) has determined (i) prior to the occurrence and continuance of a Control Termination Event, with the consent of the Directing Certificateholder, (ii) after a Control Termination Event has occurred and is continuing, but prior to the occurrence and continuance of a Consultation Termination Event, after non-binding consultation with the Directing Certificateholder and (iii) with respect to any Specially Serviced Loan, after non-binding consultation with the Risk Retention Consultation Party (in each case, other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) (or, in each case, with respect to a Serviced AB Whole Loan, and prior to any related AB Control Appraisal Period, with the consent of the related Serviced AB Whole Loan Controlling Holder to the extent required under the related Intercreditor Agreement), in its reasonable judgment, based on inquiry consistent with the Servicing Standard, that either (a) such insurance is not available at commercially reasonable rates and that such hazards are not at the time commonly insured against for properties similar to the related Mortgaged Property and located in or around the region in which such related Mortgaged Property is located, or (b) such insurance is not available at any rate; provided, however, that the Directing Certificateholder (or, with respect to a Serviced AB Whole Loan, the Serviced AB Whole Loan Controlling Holder prior to any AB Control Appraisal Period to the extent required under the related Intercreditor Agreement) and the Risk Retention Consultation Party will not have more than thirty (30) days to respond to the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, request for such consent; provided, further, that upon the applicable Master Servicer’s or the applicable Special Servicer’s, as applicable, determination consistent with the Servicing Standard, that exigent circumstances do not allow the applicable Master Servicer or the applicable Special Servicer, as applicable, to consult with the Directing Certificateholder, the Risk Retention Consultation Party or any applicable Serviced AB Whole Loan Controlling Holder, as applicable, such Master Servicer or such Special Servicer, as applicable, is not required to do so. The applicable Master Servicer (at its own expense) and the applicable 

 

 -8-

 

 

Special Servicer (at the expense of the Trust Fund) shall be entitled to rely on insurance consultants in making the determinations described above.

 

“Act”: The Securities Act of 1933, as it may be amended from time to time.

 

“Actual/360 Basis”: Interest accrual on the basis of the actual number of days in a month assuming a 360-day year.

 

“Actual/360 Mortgage Loans”: The Mortgage Loans that accrue interest on an Actual/360 Basis.

 

“Additional Debt”: With respect to any Mortgage Loan, any debt owed by the related Mortgagor to a party other than the lender under such Mortgage Loan that is secured by the related Mortgaged Property as of the Closing Date as set forth on Schedule 1 hereto, as increased or decreased from time to time pursuant to the terms of the related subordinate or pari passu loan documents (including any Intercreditor Agreement or subordination agreement).

 

“Additional Disclosure Notification”: The form of notification to be included with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto as Exhibit EE.

 

“Additional Exclusions”: Exclusions in addition to those customarily found in the insurance policies for mortgaged properties similar to the Mortgaged Properties on or prior to September 11, 2001.

 

“Additional Form 10-D Disclosure”: As defined in Section 11.04(a).

 

“Additional Form 10-K Disclosure”: As defined in Section 11.05(a).

 

“Additional Servicer”: Each Affiliate of any Master Servicer, any Special Servicer or any Mortgage Loan Seller that services any of the Mortgage Loans and each Person who is not an Affiliate of any Master Servicer, other than any Special Servicer, who services 10% or more of the Mortgage Loans by unpaid principal balance as of any date of determination pursuant to Article XI.

 

“Administrative Cost Rate”: As of any date of determination and with respect to each Mortgage Loan, a per annum rate equal to the sum of the Servicing Fee Rate, the Certificate Administrator Fee Rate (which fee rate accounts for the Trustee Fee), the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and, in the case of each Non-Serviced Mortgage Loan, the related Non-Serviced Primary Servicing Fee Rate.

 

“Advance”: Any P&I Advance or Servicing Advance.

 

“Adverse REMIC Event”: As defined in Section 10.01(f).

 

“Affected Party”: As defined in Section 7.01(b). 

 

 -9-

 

 

“Affected Reporting Party”: As defined in Section 11.12.

 

“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Affirmative Asset Review Vote”: As defined in Section 12.01(a).

 

“Aggregate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (without duplication):

 

(a)          the aggregate amount of all cash received on the Mortgage Loans (in the case of a Non-Serviced Mortgage Loan, only to the extent received by the Trust pursuant to the related Non-Serviced PSA and/or the related Non-Serviced Intercreditor Agreement) (including the portion of Loss of Value Payments deposited into the Collection Accounts pursuant to Section 3.05(g) of this Agreement) and any REO Property (including Compensating Interest Payments with respect to the Mortgage Loans required to be deposited by the Master Servicers pursuant to Section 3.17(a)) on deposit in the Collection Accounts (in each case, exclusive of any amount on deposit in or credited to any portion of a Collection Account that is held for the benefit of the Serviced Companion Noteholders) as of the close of business on the related P&I Advance Date, exclusive of (without duplication):

 

(i)      all Periodic Payments paid by the Mortgagors of a Mortgage Loan that are due on a Due Date following the end of the related Collection Period, excluding interest relating to payments prior to, but due after, the Cut-off Date;

 

(ii)     all unscheduled Principal Prepayments (together with any related payments of interest allocable to the period following the related Due Date for the related Mortgage Loan), Liquidation Proceeds, Insurance and Condemnation Proceeds and other unscheduled recoveries, in each case, received subsequent to the related Determination Date (or, with respect to voluntary Principal Prepayments for each Mortgage Loan with a Due Date occurring after the related Determination Date, subsequent to the related Due Date) allocable to the Mortgage Loans;

 

(iii)    (A) all amounts payable or reimbursable to any Person from the Collection Accounts pursuant to clauses (ii) through (xx), inclusive, and (xxiii) of Section 3.05(a); (B) all amounts payable or reimbursable to any Person from the Lower-Tier REMIC Distribution Account pursuant to clauses (ii) through (vii), inclusive, of Section 3.05(b); and (C) any Net Investment Earnings contained therein;

 

(iv)   with respect to the Actual/360 Mortgage Loans and any Distribution Date occurring in (1) each February or (2) any January in a year that 

 

 -10-

 

 

is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), an amount equal to one (1) day of interest on the Stated Principal Balance of such Mortgage Loan as of the Due Date in the month preceding the month in which such Distribution Date occurs at the related Mortgage Rate to the extent such amounts are Withheld Amounts;

 

(v)      all Excess Interest allocable to the Mortgage Loans (which is separately distributed to the Excess Interest Certificates and the RR Interest, as described in Section 4.01(j));

 

(vi)     all Prepayment Premiums and Yield Maintenance Charges allocable to the Mortgage Loans;

 

(vii)    all amounts deposited in a Collection Account in error; and

 

(viii)   any Penalty Charges allocable to the Mortgage Loans;

 

(b)          if and to the extent not already included in clause (a), the aggregate amount transferred from the REO Accounts allocable to the Mortgage Loans to the applicable Collection Account for such Distribution Date pursuant to Section 3.14(c) if received by the applicable Master Servicer on or prior to the related Determination Date;

 

(c)          the aggregate amount of any Compensating Interest Payments made by the Master Servicers in respect of the Mortgage Loans with respect to such Distribution Date and P&I Advances made by the Master Servicers or the Trustee, as applicable, with respect to the Mortgage Loans and the Distribution Date (net of the related Certificate Administrator Fee, Operating Advisor Fee, Asset Representations Reviewer Fee, and CREFC^® Intellectual Property Royalty License Fee with respect to the Mortgage Loans for which such P&I Advances are made) pursuant to Section 4.03 or Section 7.05; and

 

(d)          with respect to each Actual/360 Mortgage Loan and any Distribution Date occurring in each March (or February, if the related Distribution Date is the final Distribution Date), the Withheld Amounts remitted to the Lower-Tier REMIC Distribution Account pursuant to Section 3.21(b).

 

Notwithstanding the investment of funds held in the Collection Accounts pursuant to Section 3.06, for purposes of calculating the Aggregate Available Funds, the amounts so invested shall be deemed to remain on deposit in such accounts.

 

“Aggregate Excess Prepayment Interest Shortfall”: The aggregate of any Prepayment Interest Shortfalls resulting from any Principal Prepayments made on the Mortgage Loans to be included in the Aggregate Available Funds for any Distribution Date that are not covered by the Master Servicers’ Compensating Interest Payment for the related Distribution Date and the portion of the compensating interest payments allocable to any Non-Serviced Mortgage Loan to the extent received from the related Non-Serviced Master Servicer.

 

“Aggregate Gain-on-Sale Entitlement Amount”: With respect to each Distribution Date, an amount equal to the aggregate amount of (i) the sum of (a)(x) the aggregate 

 

 -11-

 

 

portion of the Interest Distribution Amount for each Class of Regular Certificates (other than the RR Interest) that would remain unpaid as of the close of business on such Distribution Date, divided by (y) the Non-Retained Percentage, and (b)(x) the amount by which the Principal Distribution Amount exceeds the aggregate amount that would actually be distributed on the related Distribution Date in respect of such Principal Distribution Amount, divided by (y) the Non-Retained Percentage, and (ii) any Realized Losses and Retained Certificate Realized Losses outstanding immediately after such Distribution Date, in each case, to the extent such amounts would occur on such Distribution Date or would be outstanding immediately after such Distribution Date, as applicable, without the inclusion of the Gain-on-Sale Remittance Amount as part of the definition of Available Funds and the Retained Certificate Gain-on-Sale Remittance Amount as part of the definition of Retained Certificate Available Funds.

 

“Aggregate Principal Distribution Amount”: With respect to any Distribution Date and the Principal Balance Certificates, an amount equal to the sum of the following amounts: (a) the Scheduled Principal Distribution Amount for such Distribution Date and (b) the Unscheduled Principal Distribution Amount for such Distribution Date; provided that the Aggregate Principal Distribution Amount for any Distribution Date shall be reduced, to not less than zero, by the amount of any reimbursements of (A) Nonrecoverable Advances (including any servicing advance with respect to the Non-Serviced Mortgage Loan under the related Non-Serviced PSA reimbursed out of general collections on the Mortgage Loans), with interest on such Nonrecoverable Advances at the Reimbursement Rate that are paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date and (B) Workout-Delayed Reimbursement Amounts paid or reimbursed from principal collections on the Mortgage Loans in a period during which such principal collections would have otherwise been included in the Aggregate Principal Distribution Amount for such Distribution Date (provided, further, that, in the case of clauses (A) and (B) above, if any of the amounts that were reimbursed from principal collections on the Mortgage Loans (including REO Loans) are subsequently recovered on the related Mortgage Loan (or REO Loan), such recovery will increase the Aggregate Principal Distribution Amount for the Distribution Date related to the period in which such recovery occurs).

 

“Agreement”: This Pooling and Servicing Agreement and all amendments hereof and supplements hereto.

 

“Allocated Appraisal Reduction Amount”: With respect to any Appraisal Reduction Amount, an amount equal to the Non-Retained Percentage of such Appraisal Reduction Amount.

 

“Allocated Collateral Deficiency Amount”: With respect to any Collateral Deficiency Amount, the Non-Retained Percentage of such Collateral Deficiency Amount.

 

“Allocated Cumulative Appraisal Reduction Amount”: With respect to any Cumulative Appraisal Reduction Amount, the Non-Retained Percentage of such Cumulative Appraisal Reduction Amount.

 

 -12-

 

 

“Anticipated Repayment Date”: With respect to any ARD Loan, the date upon which such ARD Loan commences accruing interest at the Revised Rate.

 

“Applicable Fitch Permitted Investment Rating”: (A) in the case of such investments with maturities of thirty (30) days or less, the short-term debt obligations of which are rated at least “F1” by Fitch or the long-term debt obligations of which are rated at least “A” by Fitch, and (B) in the case of such investments with maturities of more than thirty (30) days, the short-term obligations of which are rated at least “F1+” by Fitch or the long-term obligations of which are rated at least “AA-” by Fitch.

 

“Applicable KBRA Permitted Investment Rating”: (A) in the case of such investments with maturities of 90 days or less, the short-term debt obligations of which are rated of at least “K3” or the long-term obligations of which are rated at least “BBB-” and (B) in the case of such investments with maturities greater than 90 days but not more than one year, the short-term debt obligations of which are rated of at least “K1” or the long-term obligations of which are rated at least “A-” (in each case, if then rated by KBRA).

 

“Applicable Laws”: As defined in Section 8.15.

 

“Applicable Moody’s Permitted Investment Rating”: in the case of such investments, the short-term debt obligations of which are rated at least “P-1” by Moody’s or the long-term debt obligations of which are rated at least “A2” by Moody’s.

 

“Applicable State and Local Tax Law”: For purposes hereof, the Applicable State and Local Tax Law shall be (a) the tax laws of the State of New York; and (b) such other state or local tax laws whose applicability shall have been brought to the attention of the Trustee and the Certificate Administrator by either (i) an Opinion of Counsel delivered to it, or (ii) written notice from the appropriate taxing authority as to the applicability of such state or local tax laws.

 

“Appraisal”: An appraisal prepared by an appraiser who is licensed or certified to prepare appraisals in the state where the Mortgaged Property is located and which satisfies the Interagency Appraisal and Evaluation Guidelines jointly issued by The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) relating to real estate appraisals and evaluations used to support real estate-related financial transactions, as amended from time to time. Any Appraisal ordered by the applicable Master Servicer or applicable Special Servicer shall be performed by an Independent MAI-designated appraiser.

 

“Appraisal Reduction Amount”: For any Distribution Date and for any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, or any Serviced Whole Loan as to which any Appraisal Reduction Event has occurred, will be an amount, calculated by the applicable Special Servicer (and, prior to the occurrence and continuance of a Consultation Termination Event, in consultation with the Directing Certificateholder (except in the case of an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), and, after the occurrence and during the continuance of a Control Termination Event, in consultation with the Directing Certificateholder (except with

 

 -13-

 

 

respect to an Excluded Loan) and the Operating Advisor and, after the occurrence and during the continuance of a Consultation Termination Event, in consultation with the Operating Advisor), as of the first Determination Date that is at least ten (10) Business Days following the date on which the applicable Special Servicer receives an Appraisal (together with information requested by the applicable Special Servicer from the applicable Master Servicer in accordance with this Agreement that is in the possession of the applicable Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount) or conducts a valuation as described below, equal to the excess of (a) the Stated Principal Balance of that Mortgage Loan or the Stated Principal Balance of the applicable Serviced Whole Loan over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property as determined (1) by one or more Appraisals obtained by the applicable Special Servicer with respect to that Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance equal to or in excess of $2,000,000 (the costs of which shall be paid by the applicable Master Servicer as an Advance) or (2) by an internal valuation performed by the applicable Special Servicer (or at the applicable Special Servicer’s election, by one or more MAI appraisals obtained by the applicable Special Servicer) with respect to any Mortgage Loan (together with any other Mortgage Loan cross-collateralized with such Mortgage Loan) or Serviced Whole Loan, as the case may be, with an outstanding principal balance less than $2,000,000, minus, with respect to any Appraisals, such downward adjustments as the applicable Special Servicer may make (without implying any obligation to do so) based upon its review of the Appraisals and any other information it deems relevant; provided that, in the case of a Mortgage Loan secured by a Mortgaged Property that is operated as a residential cooperative, such Appraised Value shall be determined (i) except as provided in clause (ii) below, in the case of each Mortgaged Property, assuming such Mortgaged Property is operated as a residential cooperative with such value, in general, to equal the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent regulated, rent stabilized or rent controlled units, and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property and (ii) if the applicable Special Servicer determines, in accordance with the Servicing Standard, that there is no reasonable expectation that the related Mortgaged Property will be operated as a residential cooperative following any work-out or liquidation of the related Mortgage Loan, assuming such Mortgaged Property is operated as a multifamily rental property; and (B) all escrows, letters of credit and reserves in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, as of the date of calculation over (ii) the sum of, as of the Due Date occurring in the month of the date of determination, (A) to the extent not previously advanced by the applicable Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or Serviced Whole Loan, as the case may be, at a per annum rate equal to its Mortgage Rate (and, with respect to any Serviced AB Whole Loan, any accrued and unpaid interest on the related AB Subordinate Companion Loan, as applicable), (B) all P&I Advances on the related Mortgage Loan and all Servicing Advances on the related Mortgage Loan or Serviced Whole Loan, as applicable, not reimbursed from proceeds of such Mortgage Loan or Serviced Whole Loan, as applicable, and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan or Serviced Whole Loan, as applicable, and (C) all currently due and unpaid real estate taxes, assessments, insurance premiums, ground rents, unpaid Special

 

 -14-

 

 

Servicing Fees and all other amounts due and unpaid (including any capitalized interest whether or not then due and payable) with respect to such Mortgage Loan or Serviced Whole Loan, as the case may be (which taxes, premiums, ground rents and other amounts have not been the subject of an Advance by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable); provided, however, that without limiting the applicable Special Servicer’s obligation to order and obtain such Appraisal or perform such valuation, if the applicable Special Servicer has not obtained an Appraisal or performed such valuation, as applicable, referred to above within sixty (60) days of the Appraisal Reduction Event (or with respect to the Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition of Appraisal Reduction Event, within one hundred twenty (120) days (in the case of clause (i)) or ninety (90) days or one hundred twenty (120) days, as applicable (in case of clause (vi)) after the initial delinquency for the related Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be an amount equal to 25% of the current Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, until such time as such appraisal or valuation referred to above is received (together with information reasonably requested by the applicable Special Servicer from the applicable Master Servicer in accordance with Section 4.05 of this Agreement that is in the possession of such Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount) or performed by the applicable Special Servicer and the Appraisal Reduction Amount is calculated by the applicable Special Servicer as of the first Determination Date that is at least ten (10) Business Days after the later of (a) the applicable Special Servicer’s receipt of such Appraisal or the completion of the valuation and receipt of information from the applicable Master Servicer that is in the applicable Master Servicer’s possession and reasonably necessary to calculate the Appraisal Reduction Amount and (b) the occurrence of such Appraisal Reduction Event. Within sixty (60) days after the Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive an Appraisal (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance); provided, further, however, that with respect to an Appraisal Reduction Event as set forth in clause (i) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the one hundred twenty (120) day period set forth in such clause (i), and with respect to an Appraisal Reduction Event as set forth in clause (vi) of the definition of Appraisal Reduction Event, the applicable Special Servicer shall order and use reasonable efforts to receive such Appraisal within the ninety (90) day period or one hundred twenty (120) day period, as applicable, set forth in such clause (vi); provided, further, that in no event shall the applicable Special Servicer be required to order any such Appraisal prior to the conclusion of such sixty (60), ninety (90) or one hundred twenty (120) day period, as applicable and, in each case, the related Appraisal shall be promptly delivered in electronic format by the applicable Special Servicer to the applicable Master Servicer and the Directing Certificateholder (but in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder), the Certificate Administrator and the Trustee. In connection with any Appraisal Reduction Amount, the applicable Master Servicer shall provide the applicable Special Servicer with the information as set forth in Section 4.05(c) within four (4) Business Days of its receipt of any such request. No Master Servicer shall calculate Appraisal Reduction Amounts.

 

With respect to any Appraisal Reduction Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the

 

 -15-

 

 

Appraised Value for the related Mortgaged Property determined in connection with clause (b)(i)(A)(1) or clause (b)(i)(A)(2) of the first paragraph of this definition shall be determined on an “as-is” basis.

 

Notwithstanding anything herein to the contrary, the aggregate Appraisal Reduction Amount related to a Mortgage Loan or the related REO Property will be reduced to zero as of the date on which Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust or as otherwise set forth in Section 4.05(d).

 

Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan and allocable to the related Non-Serviced Mortgage Loan shall be calculated by the applicable party under, and in accordance with and pursuant to the terms of, the applicable Non-Serviced PSA and shall constitute an “Appraisal Reduction Amount” under the terms of this Agreement with respect to such Non-Serviced Mortgage Loan and the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator are entitled to conclusively rely on such calculation.

 

“Appraisal Reduction Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion Loan, and Serviced Whole Loan, the earliest of (i) one hundred twenty (120) days after an uncured delinquency (without regard to the application of any Grace Period), other than any uncured delinquency in respect of a Balloon Payment, occurs in respect of such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, (ii) the date on which a reduction in the amount of Periodic Payments on such Mortgage Loan, Serviced Companion Loan or Serviced Whole Loan, as applicable, or a change in any other material economic term of such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable (other than an extension of the Maturity Date), becomes effective as a result of a modification of such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, by the applicable Special Servicer, (iii) thirty (30) days after the date on which a receiver has been appointed for the Mortgaged Property, (iv) thirty (30) days after the date on which a Mortgagor or the tenant at a single tenant property declares bankruptcy (and the bankruptcy petition is not otherwise dismissed within such time), (v) sixty (60) days after the date on which an involuntary petition of bankruptcy is filed with respect to a Mortgagor if not dismissed within such time, (vi) ninety (90) days after an uncured delinquency occurs in respect of a Balloon Payment with respect to such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, except where a refinancing or sale is anticipated within one hundred twenty (120) days after the Maturity Date of the Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, in which case one hundred twenty (120) days after such uncured delinquency, and (vii) immediately after such Mortgage Loan or Serviced Companion Loan or Serviced Whole Loan, as applicable, becomes an REO Loan; provided that the thirty (30) day period referenced in clause (iii) and clause (iv) shall not apply if the related Mortgage Loan is a Specially Serviced Loan; provided, further, however, that an Appraisal Reduction Event shall not occur at any time when the aggregate Certificate Balances of all Classes of Subordinate Certificates have been reduced to zero. The applicable Special Servicer shall notify the applicable Master Servicer, the Directing Certificateholder, the Operating Advisor, the Other Servicer and the Other Trustee, if applicable, or the applicable Master Servicer shall notify the applicable Special Servicer, the Operating Advisor, the Other Servicer and the Other Trustee as applicable, promptly upon such Person having notice or

 

 -16-

 

 

knowledge of the occurrence of any of the foregoing events. The obligation to obtain an Appraisal following the occurrence of an Appraisal Reduction Event shall be subject to the provisions of Section 4.05. For the avoidance of doubt with respect to clauses (i) and (ii) above, neither (a) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (b) any default or delinquency that would have existed but for such Payment Accommodation shall constitute an Appraisal Reduction Event, for so long as the related borrower is complying with the terms of such Payment Accommodation. For the avoidance of doubt, with respect to clause (ii) above, a Government-Sponsored Relief Modification will not constitute an Appraisal Reduction Event.

 

“Appraisal Review Period”: As defined in Section 4.05(b)(ii).

 

“Appraised-Out Class”: As defined in Section 4.05(b)(i).

 

“Appraised Value”: (i) With respect to any Mortgaged Property (other than a Non-Serviced Mortgaged Property and a Mortgaged Property operated as a residential cooperative), the appraised value thereof as determined by the most recent Appraisal of the Mortgaged Property securing the related Mortgage Loan, Serviced Whole Loan, or Serviced AB Whole Loan, as applicable, (ii) with respect to each Mortgaged Property operated as a residential cooperative, the Appraised Value thereof based upon the most recent Appraisal obtained or conducted, as appropriate, pursuant to this Agreement and determined as if such property were operated as a residential cooperative (such “Appraised Value” generally equals the sum of (x) the gross share value of all cooperative units in such residential cooperative property (generally applying a discount for sponsor or investor held units that are rent-regulated, rent-stabilized or rent-controlled units, and in certain instances, for market rate units as and if deemed appropriate by the appraiser), based in part on various comparable sales of cooperative apartment units in the market, plus (y) the amount of the underlying debt encumbering such residential cooperative property) and (iii) with respect to a Non-Serviced Mortgaged Property, the appraised value allocable thereto, as determined pursuant to the applicable Non-Serviced PSA.

 

“Arbitration Rules”: As defined in Section 2.03(n)(i).

 

“Arbitration Services Provider”: As defined in Section 2.03(n)(i).

 

“ARD Loan”: Any Mortgage Loan that is identified on the Mortgage Loan Schedule as having an Anticipated Repayment Date and Revised Rate.

 

“Arizona Mills Intercreditor Agreement”: The Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the Arizona Mills Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“Arizona Mills Mortgage Loan”: With respect to the Arizona Mills Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 15 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-3-1 and A-4.

 

“Arizona Mills Mortgaged Property”: The Mortgaged Property that secures the Arizona Mills Whole Loan.

 

 -17-

 

 

“Arizona Mills Pari Passu Companion Loan”: With respect to the Arizona Mills Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the Arizona Mills Mortgaged Property.

 

“Arizona Mills Whole Loan”: The Arizona Mills Mortgage Loan together with the Arizona Mills Pari Passu Companion Loans, each of which is secured by the same Mortgage on the Arizona Mills Mortgaged Property. References herein to the Arizona Mills Whole Loan shall be construed to refer to the aggregate indebtedness under the Arizona Mills Mortgage Loan and the Arizona Mills Pari Passu Companion Loans.

 

“Asset Representations Reviewer”: Park Bridge Lender Services LLC, a New York limited liability company, and its successors-in-interest.

 

“Asset Representations Reviewer Asset Review Fee”: As defined in Section 12.02(b).

 

“Asset Representations Reviewer Fee”: As defined in Section 12.02(a).

 

“Asset Representations Reviewer Fee Rate”: As defined in Section 12.02(a).

 

“Asset Representations Reviewer Termination Event”: As defined in Section 12.05(a).

 

“Asset Representations Reviewer Upfront Fee”: As defined in Section 12.02(a).

 

“Asset Review”: A review of the compliance of each Delinquent Loan with certain representations and warranties of the applicable Mortgage Loan Seller, in accordance with the Asset Review Standard and the procedures set forth on Exhibit QQ hereto.

 

“Asset Review Notice”: As defined in Section 12.01(a).

 

“Asset Review Quorum”: In connection with any solicitation of votes to authorize an Asset Review as described in Section 12.01(a), the Certificateholders (other than Holders of the RR Interest) evidencing at least 5% of the aggregate Voting Rights represented by all of the Certificates that have Voting Rights.

 

“Asset Review Report”: As defined in Section 12.01(b)(viii), a report setting forth the findings and conclusions of an Asset Review substantially in the form attached hereto as Exhibit OO.

 

“Asset Review Report Summary”: As defined in Section 12.01(b)(viii), a summary report setting forth the conclusions of an Asset Review Report substantially in the form attached hereto as Exhibit PP.

 

“Asset Review Standard”: The performance by the Asset Representations Reviewer of its duties under this Agreement in good faith subject to the express terms of this

 

 -18-

 

 

Agreement. All determinations or assumptions made by the Asset Representations Reviewer in connection with an Asset Review shall be made in the Asset Representations Reviewer’s good faith discretion and judgment based on the facts and circumstances known to it at the time of such determination or assumption.

 

“Asset Review Trigger”: Any time when either (1) Mortgage Loans with an aggregate outstanding principal balance of 25.0% or more of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (or a portion of any REO Loan corresponding to the predecessor Mortgage Loan, in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period are Delinquent Loans or (2) (A) prior to and including the second (2nd) anniversary of the Closing Date, at least ten (10) Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 15% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (or a portion of any REO Loan corresponding to the predecessor Mortgage Loan, in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period, or (B) after the second (2nd) anniversary of the Closing Date, at least fifteen (15) Mortgage Loans are Delinquent Loans as of the end of the applicable Collection Period and the outstanding principal balance of such Delinquent Loans in the aggregate constitutes at least 20.0% of the aggregate outstanding principal balance of all of the Mortgage Loans (including any successor REO Loans (or a portion of any REO Loan corresponding to the predecessor Mortgage Loan, in the case of a Whole Loan)) held by the Trust as of the end of the applicable Collection Period.

 

“Asset Review Vote Election”: As defined in Section 12.01(a).

 

“Asset Status Report”: As defined in Section 3.19(d).

 

“Assignment” and “Assignments”: Each as defined in Section 2.01(c).

 

“Assignment of Leases”: With respect to any Mortgaged Property, any assignment of leases, rents and profits or similar instrument executed by the Mortgagor, assigning to the mortgagee all of the income, rents and profits derived from the ownership, operation, leasing or disposition of all or a portion of such Mortgaged Property, in the form which was duly executed, acknowledged and delivered, as amended, modified, renewed or extended through the date hereof and from time to time hereafter.

 

“Assignment of Mortgage”: With respect to any Mortgaged Property, an assignment of Mortgage without recourse, notice of transfer or equivalent instrument, in recordable form, which is sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect of record the assignment of the Mortgage, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering Mortgages encumbering Mortgaged Properties located in the same jurisdiction, if permitted by law and acceptable for recording.

 

“Assumed Scheduled Payment”: For any Collection Period and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) that is delinquent in respect of

 

 -19-

 

 

its Balloon Payment or any REO Loan (excluding, for purposes of determining or making P&I Advances, the portion allocable to any related Companion Loan), an amount equal to the sum of (a) the principal portion of the Periodic Payment that would have been due on such Mortgage Loan or REO Loan on the related Due Date based on the constant payment required by the related Mortgage Note or the original amortization schedule of such Mortgage Loan (as calculated with interest at the related Mortgage Rate), if applicable, assuming such Balloon Payment has not become due, after giving effect to any reduction in the principal balance thereof occurring in connection with a modification of such Mortgage Loan in connection with a default or bankruptcy (or similar proceeding), and (b) interest on the Stated Principal Balance of such Mortgage Loan or REO Loan (excluding, for purposes of determining P&I Advances, the portion allocable to any related Companion Loan) at the applicable Mortgage Rate (net of interest at the Servicing Fee Rate and the related Non-Serviced Primary Servicing Fee Rate, if applicable).

 

“Authenticating Agent”: The Certificate Administrator or any agent of the Certificate Administrator appointed to act as Authenticating Agent pursuant to Section 5.02(a), in each case in its capacity as authenticating agent, or if any successor authenticating agent is appointed pursuant to Section 5.02(a), such successor authenticating agent.

 

“Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Non-Retained Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Gain-on-Sale Remittance Amount.

 

“Balloon Mortgage Loan”: Any Mortgage Loan or Companion Loan that by its original terms or by virtue of any modification entered into as of the Closing Date provides for an amortization schedule for such Mortgage Loan or Companion Loan extending beyond its Maturity Date.

 

“Balloon Payment”: With respect to any Balloon Mortgage Loan, as of any date of determination, the Periodic Payment payable on the Maturity Date of such Balloon Mortgage Loan.

 

“BANK 2021-BNK36 PSA”: The pooling and servicing agreement, dated as of October 1, 2021, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Rialto Capital Advisors, LLC, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Wells Fargo Bank, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, as from time to time amended, supplemented or modified.

 

“Bankruptcy Code”: The federal Bankruptcy Code, as amended from time to time (Title 11 of the United States Code).

 

“Base Interest Fraction”: As defined in Section 4.01(e).

 

“Book-Entry Certificate”: Any Certificate registered in the name of the Depository or its nominee.

 

 -20-

 

 

“Borrower Party”:  A borrower, a Mortgagor, a manager of a Mortgaged Property, an Accelerated Mezzanine Loan Lender, or any Borrower Party Affiliate. For the avoidance of doubt, with respect to a Mortgage Loan secured by a Mortgaged Property that is operated as a residential cooperative, a person shall not be considered a “Borrower Party” solely by reason of such person holding one or more cooperative unit loans that are secured by direct equity interests in the related borrower or owning one or more residential cooperative units comprising the related Mortgaged Property as a result of any foreclosure, transfer in lieu of foreclosure or other exercise of remedies with respect to any such unit loan(s).

 

“Borrower Party Affiliate”:  With respect to a borrower, a Mortgagor, a manager of a Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such borrower, Mortgagor, manager or Accelerated Mezzanine Loan Lender, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Breach”: With respect to any Mortgage Loan, a breach of any representation or warranty with respect to such Mortgage Loan set forth in Section 4(b) of the related Mortgage Loan Purchase Agreement.

 

“Business Day”: Any day other than a Saturday, a Sunday or a day on which banking institutions in California, Maryland, New York, North Carolina, Washington, DC or any of the jurisdictions in which the respective primary servicing offices of either Master Servicer or either Special Servicer or the Corporate Trust Office of the Trustee or the Certificate Administrator are located, or the New York Stock Exchange or the Federal Reserve System of the United States of America are authorized or obligated by law or executive order to remain closed.

 

“CERCLA”: The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

 

“Certificate”: Any one of the Depositor’s Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, as executed and delivered by the Certificate Registrar and authenticated and delivered hereunder by the Authenticating Agent. For the avoidance of doubt, the RR Interest shall be a Certificate.

 

“Certificate Administrator”: Computershare Trust Company, N.A., in its capacity as certificate administrator, or if any successor certificate administrator is appointed thereto pursuant to Section 5.08 or any successor certificate administrator appointed hereunder. 

 

“Certificate Administrator Fee”: The fee to be paid to the Certificate Administrator as compensation for the Certificate Administrator’s activities under this

 

 -21-

 

 

Agreement; provided that the Certificate Administrator Fee includes the Trustee Fee, and the Certificate Administrator shall pay the Trustee Fee to the Trustee.

 

“Certificate Administrator Fee Rate”: The Certificate Administrator Fee shall be equal to the product of the rate equal to 0.00582% per annum and the Stated Principal Balance of the related Mortgage Loan (calculated in the same manner as interest is calculated on the related Mortgage Loan) or REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of the preceding Distribution Date. The Certificate Administrator Fee includes the Trustee Fee.

 

“Certificate Administrator’s Website”: The Certificate Administrator’s Internet website, which shall initially be located at “www.ctslink.com”.

 

“Certificate Balance”: With respect to any Class of Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interest, (i) on or prior to the first Distribution Date, an amount equal to the Original Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interest as specified in the Preliminary Statement hereto and (ii) as of any date of determination after the first Distribution Date, the Certificate Balance of such Class of Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii)). Each Class of Class A-4 Exchangeable Certificates, Class A-5 Exchangeable Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates shall have a Certificate Balance or Notional Amount equal to its Class Percentage Interest multiplied by the Certificate Balance of the Class A-4 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-S Upper-Tier Regular Interest, Class B Upper-Tier Regular Interest or Class C Upper-Tier Regular Interest, respectively.

 

“Certificate Factor”: With respect to any Class of Certificates (other than the Class R Certificates), as of any date of determination, a fraction, expressed as a decimal carried to at least eight (8) places, the numerator of which is the then-related Certificate Balance or Notional Amount, and the denominator of which is the related Original Certificate Balance.

 

“Certificate Owner”: With respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Certificate as reflected on the books of the Depository or on the books of a Depository Participant or on the books of an indirect participating brokerage firm for which a Depository Participant acts as agent.

 

“Certificate Register” and “Certificate Registrar”: The register maintained and registrar appointed pursuant to Section 5.03(a).

 

“Certificateholder” or “Holder”: The Person in whose name a Certificate is registered in the Certificate Register or any beneficial owner thereof; provided, however, that solely for the purposes of giving any consent, approval, waiver or taking any action pursuant to this Agreement, any Certificate registered in the name of or beneficially owned by either Master Servicer, either Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller, a

 

 -22-

 

 

Mortgagor, a Borrower Party or any Affiliate of any of such Persons shall be deemed not to be outstanding (provided that notwithstanding the foregoing, any Controlling Class Certificates owned by an Excluded Controlling Class Holder shall not be deemed to be outstanding as to such Excluded Controlling Class Holder solely with respect to any related Excluded Controlling Class Loan; and provided, further, that any Controlling Class Certificates owned by a Special Servicer or an Affiliate thereof shall not be deemed to be outstanding as to such Special Servicer or such Affiliate solely with respect to any related Excluded Special Servicer Loan), and the Voting Rights to which it is entitled shall not be taken into account in determining whether the requisite percentage of Voting Rights necessary to effect any such consent, approval, waiver or take any such action has been obtained; provided, however, that the foregoing restrictions shall not apply in the case of either Master Servicer, either Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, the Depositor, any Mortgage Loan Seller or any Affiliate of any of such Persons unless such consent, approval or waiver sought from such party would in any way increase its compensation or limit its obligations in the named capacities hereunder or waive a Servicer Termination Event or trigger an Asset Review (with respect to an Asset Review and any Mortgage Loan Seller, solely with respect to any related Mortgage Loan subject to the Asset Review); provided, further, that so long as there is no Servicer Termination Event with respect to a Master Servicer or a Special Servicer, as applicable, such Master Servicer and such Special Servicer or any such Affiliate thereof shall be entitled to exercise such Voting Rights with respect to any issue which could reasonably be believed to adversely affect such party’s compensation or increase its obligations or liabilities hereunder; and provided, further, that such restrictions shall not apply to (i) the exercise of either Special Servicer’s, either Master Servicer’s or any Mortgage Loan Seller’s rights, if any, or any of their Affiliates as a member of the Controlling Class or (ii) any Affiliate of the Depositor, either Master Servicer, either Special Servicer, the Trustee or the Certificate Administrator that has provided an Investor Certification in which it has certified as to the existence of certain policies and procedures restricting the flow of information between it and the Depositor, such Master Servicer, such Special Servicer, the Trustee or the Certificate Administrator, as applicable. The Trustee and the Certificate Administrator shall each be entitled to request and rely upon a certificate of any Master Servicer, any Special Servicer or the Depositor in determining whether a Certificate is registered in the name of an Affiliate of such Person. All references herein to “Holders” or “Certificateholders” shall reflect the rights of Certificate Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a “Holder” or “Certificateholder” only the Person in whose name a Certificate is registered in the Certificate Register. The Trustee shall be the Holder of the Lower-Tier Regular Interests for the benefit of the Certificateholders.

 

“Certificateholder Quorum”: The Holders of Certificates evidencing at least 50% of the aggregate Voting Rights (taking into account the application of Realized Losses and, other than with respect to the termination of the Asset Representations Reviewer, the application of any Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Certificates) of all Principal Balance Certificates (other than the RR Interest) on an aggregate basis.

 

“Certificateholder Repurchase Request”: As defined in Section 2.03(k)(i).

 

 -23-

 

 

“Certification Parties”: As defined in Section 11.06.

 

“Certification Party”: Any one of the Certification Parties.

 

“Certifying Person”: As defined in Section 11.06.

 

“Certifying Servicer”: As defined in Section 11.09.

 

“Class”: With respect to any Certificates, Lower-Tier Regular Interests, all of the Certificates bearing the same alphabetical (and, if applicable, numerical) Class designation and each designated Lower-Tier Regular Interest. Each Exchangeable Upper-Tier Regular Interest shall be a Class. For the avoidance of doubt, the RR Interest shall be a Class.

 

“Class A Certificate”: Any Class A-1, Class A-2, Class A-3 and Class A-SB Certificate and any Class A-4, Class A-5 and Class A-S Exchangeable Certificate.

 

“Class A-1 Certificate”: A Certificate designated as “Class A-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class A-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.1860%.

 

“Class A-2 Certificate”: A Certificate designated as “Class A-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class A-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5130%.

 

“Class A-3 Certificate”: A Certificate designated as “Class A-3” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class A-3 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.5880%.

 

“Class A-4 Certificate”: A Certificate designated as “Class A-4” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4 Exchangeable Certificate”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-4-X1 and Class A-4-X2 Certificates.

 

“Class A-4 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.3700%.

 

 -24-

 

 

“Class A-4 Upper-Tier Regular Interest”, “Class A-4-X1 Upper-Tier Regular Interest” and “Class A-4-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-4 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.3700%.

 

“Class A-4-1 Certificate”: A Certificate designated as “Class A-4-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.8700%.

 

“Class A-4-2 Certificate”: A Certificate designated as “Class A-4-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.3700%.

 

“Class A-4-X1 Certificate”: A Certificate designated as “Class A-4-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-4-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-1 Certificates.

 

“Class A-4-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-4-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

 

“Class A-4-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-4-X2 Certificate”: A Certificate designated as “Class A-4-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

 -25-

 

 

“Class A-4-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4-2 Certificates.

 

“Class A-4-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-4-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-4 Upper-Tier Regular Interest.

 

“Class A-4-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5 Certificate”: A Certificate designated as “Class A-5” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5 Exchangeable Certificate”: Any of the Class A-5, Class A-5-1, Class A-5-2, Class A-5-X1 and Class A-5-X2 Certificates.

 

“Class A-5 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.6180%.

 

“Class A-5 Upper-Tier Regular Interest”, “Class A-5-X1 Upper-Tier Regular Interest” and “Class A-5-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-5 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class A-5 Pass-Through Rate minus 1.0000%.

 

“Class A-5-1 Certificate”: A Certificate designated as “Class A-5-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class A-5 UT Pass-Through Rate and the Class A-5-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class A-5-2 Certificate”: A Certificate designated as “Class A-5-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

 -26-

 

 

“Class A-5-2 Pass-Through Rate”: With respect to any Distribution Date, the Class A-5 UT Pass-Through Rate for such Distribution Date.

 

“Class A-5-X1 Certificate”: A Certificate designated as “Class A-5-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-1 Certificates.

 

“Class A-5-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

 

“Class A-5-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-5-X2 Certificate”: A Certificate designated as “Class A-5-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-5-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5-2 Certificates.

 

“Class A-5-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-5-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-5 Upper-Tier Regular Interest.

 

“Class A-5-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-S Certificate”: A Certificate designated as “Class A-S” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S Exchangeable Certificate”: Any of the Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1 and Class A-S-X2 Certificates.

 

“Class A-S Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.8510%.

 

 -27-

 

 

“Class A-S Percentage Interest”: The quotient of the aggregate Certificate Balance of the Class A-S Certificates divided by the Certificate Balance of the Class A-S Upper-Tier Regular Interest. As of the Closing Date, the Class A-S Percentage Interest shall be 100.0%.

 

“Class A-S Upper-Tier Regular Interest”, “Class A-S-X1 Upper-Tier Regular Interest” and “Class A-S-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class A-S UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class A-S Pass-Through Rate minus 1.0000%.

 

“Class A-S-1 Certificate”: A Certificate designated as “Class A-S-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class A-S UT Pass-Through Rate and the Class A-S-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class A-S-2 Certificate”: A Certificate designated as “Class A-S-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-2 Pass-Through Rate”: With respect to any Distribution Date, the Class A-S UT Pass-Through Rate for such Distribution Date.

 

“Class A-S-X1 Certificate”: A Certificate designated as “Class A-S-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-1 Certificates.

 

“Class A-S-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-S-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

 

“Class A-S-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

 -28-

 

 

“Class A-S-X2 Certificate”: A Certificate designated as “Class A-S-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class A-S-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S-2 Certificates.

 

“Class A-S-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class A-S-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class A-S Upper-Tier Regular Interest.

 

“Class A-S-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class A-SB Certificate”: A Certificate designated as “Class A-SB” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class A-SB Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 2.4870%.

 

“Class A-SB Planned Principal Balance”: With respect to any Distribution Date, the planned principal amount for such Distribution Date specified in Schedule 2 hereto relating to the Class A-SB Certificates.

 

“Class B Certificate”: A Certificate designated as “Class B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B Exchangeable Certificate”: Any of the Class B, Class B-1, Class B-2, Class B-X1 and Class B-X2 Certificates.

 

“Class B Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.9830%.

 

“Class B Percentage Interest”: The quotient of the aggregate Certificate Balance of the Class B Certificates divided by the Certificate Balance of the Class B Upper-Tier Regular Interest. As of the Closing Date, the Class B Percentage Interest shall be 100.0%.

 

“Class B Upper-Tier Regular Interest”, “Class B-X1 Upper-Tier Regular Interest” and “Class B-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

 -29-

 

 

“Class B UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Class B Pass-Through Rate minus 1.0000%.

 

“Class B-1 Certificate”: A Certificate designated as “Class B-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-1 Pass-Through Rate”: With respect to any Distribution Date, the sum of the Class B UT Pass-Through Rate and the Class B-X2 UT Pass-Through Rate for such Distribution Date.

 

“Class B-2 Certificate”: A Certificate designated as “Class B-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-2 Pass-Through Rate”: With respect to any Distribution Date, the Class B UT Pass-Through Rate for such Distribution Date.

 

“Class B-X1 Certificate”: A Certificate designated as “Class B-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-1 Certificates.

 

“Class B-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class B-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

 

“Class B-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class B-X2 Certificate”: A Certificate designated as “Class B-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class B-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class B-2 Certificates.

 

“Class B-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

 -30-

 

 

“Class B-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class B Upper-Tier Regular Interest.

 

“Class B-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C Certificate”: A Certificate designated as “Class C” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C Exchangeable Certificate”: Any of the Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates.

 

“Class C Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date.

 

“Class C Percentage Interest”: The quotient of the aggregate Certificate Balance of the Class C Certificates divided by the Certificate Balance of the Class C Upper-Tier Regular Interest. As of the Closing Date, the Class C Percentage Interest shall be 100.0%.

 

“Class C Upper-Tier Regular Interest”, “Class C-X1 Upper-Tier Regular Interest” and “Class C-X2 Upper-Tier Regular Interest”: Each, an uncertificated regular interest in the Upper-Tier REMIC which is issued by the Upper-Tier REMIC, held as an asset of the Grantor Trust and has the initial Pass-Through Rate and Original Certificate Balance or Original Notional Amount set forth in the Preliminary Statement hereto.

 

“Class C UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000%.

 

“Class C-1 Certificate”: A Certificate designated as “Class C-1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 0.5000%.

 

“Class C-2 Certificate”: A Certificate designated as “Class C-2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution Date minus 1.0000%.

 

 -31-

 

 

“Class C-X1 Certificate”: A Certificate designated as “Class C-X1” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-X1 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-1 Certificates.

 

“Class C-X1 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C-X1 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

 

“Class C-X1 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class C-X2 Certificate”: A Certificate designated as “Class C-X2” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing undivided beneficial ownership of the related Exchangeable Class Specific Grantor Trust Assets for purposes of the REMIC Provisions.

 

“Class C-X2 Notional Amount”: As of any date of determination, the Certificate Balance of the Class C-2 Certificates.

 

“Class C-X2 Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 1.0000%.

 

“Class C-X2 UT Notional Amount”: As of any date of determination, the Certificate Balance of the Class C Upper-Tier Regular Interest.

 

“Class C-X2 UT Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to 0.5000%.

 

“Class D Certificate”: A Certificate designated as “Class D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class D Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.5000%.

 

“Class E Certificate”: A Certificate designated as “Class E” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class E Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.5000%.

 

 -32-

 

 

“Class F Certificate”: A Certificate designated as “Class F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class F Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.4000%.

 

“Class G Certificate”: A Certificate designated as “Class G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class G Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.4000%.

 

“Class H Certificate”: A Certificate designated as “Class H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class H Pass-Through Rate”: With respect to any Distribution Date, a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage Rate for such Distribution Date and (ii) 2.4000%.

 

“Class LA1 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LA2 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LA3 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LA4 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LA5 Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LAS Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original

 

 -33-

 

 

Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LASB Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LB Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LC Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LD Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LE Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LF Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LG Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LH Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“Class LR Interest”: The uncertificated residual interest in the Lower-Tier REMIC, represented by the Class R Certificates.

 

“Class Percentage Interest”: With respect to (i) each Class of Class A-4 Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest,

 

 -34-

 

 

equal to (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class A-4 Upper-Tier Regular Interest, (ii) each Class of Class A-5 Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, equal to (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class A-5 Upper-Tier Regular Interest, (iii) each Class of Class A-S Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, equal to (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class A-S Upper-Tier Regular Interest, (iv) each Class of Class B Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, equal to (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class B Upper-Tier Regular Interest and (v) each Class of Class C Exchangeable Certificates and each Corresponding Exchangeable Upper-Tier Regular Interest, equal to (x) the Certificate Balance (or, if such class has an “X” suffix, Notional Amount) of such Class of Certificates, divided by (y) the Certificate Balance of the Class C Upper-Tier Regular Interest. 

 

The initial Class Percentage Interest of each Class of Exchangeable Certificates in each of the Corresponding Exchangeable Upper-Tier Regular Interests is set forth below:

 

Class of Exchangeable Certificates		Class Percentage Interest in the Class A-4 Upper- Tier Regular Interest		Class Percentage Interest in the Class A-4-X1 Upper-Tier Regular Interest		Class Percentage Interest in the Class A-4-X2 Upper-Tier Regular Interest
Class A-4 Certificates		100%		100%		100%
Class A-4-1 Certificates		0%		N/A		0%
Class A-4-2 Certificates		0%		N/A		N/A
Class A-4-X1 Certificates		N/A		0%		N/A
Class A-4-X2 Certificates		N/A		0%		0%

 

Class of Exchangeable Certificates		Class Percentage Interest in the Class A-5 Upper- Tier Regular Interest		Class Percentage Interest in the Class A-5-X1 Upper-Tier Regular Interest		Class Percentage Interest in the Class A-5-X2 Upper-Tier Regular Interest
Class A-5 Certificates		100%		100%		100%
Class A-5-1 Certificates		0%		N/A		0%
Class A-5-2 Certificates		0%		N/A		N/A
Class A-5-X1 Certificates		N/A		0%		N/A
Class A-5-X2 Certificates		N/A		0%		0%

 

Class of Exchangeable Certificates		Class Percentage Interest in the Class A-S Upper- Tier Regular Interest		Class Percentage Interest in the Class A-S-X1 Upper-Tier Regular Interest		Class Percentage Interest in the Class A-S-X2 Upper-Tier Regular Interest
Class A-S Certificates		100%		100%		100%
Class A-S-1 Certificates		0%		N/A		0%
Class A-S-2 Certificates		0%		N/A		N/A
Class A-S-X1 Certificates		N/A		0%		N/A
Class A-S-X2 Certificates		N/A		0%		0%

 

 -35-

 

 

Class of Exchangeable Certificates		Class Percentage Interest in the Class B Upper- Tier Regular Interest		Class Percentage Interest in the Class B-X1 Upper-Tier Regular Interest		Class Percentage Interest in the Class B-X2 Upper-Tier Regular Interest
Class B Certificates		100%		100%		100%
Class B-1 Certificates		0%		N/A		0%
Class B-2 Certificates		0%		N/A		N/A
Class B-X1 Certificates		N/A		0%		N/A
Class B-X2 Certificates		N/A		0%		0%

 

Class of Exchangeable Certificates		Class Percentage Interest in the Class C Upper- Tier Regular Interest		Class Percentage Interest in the Class C-X1 Upper-Tier Regular Interest		Class Percentage Interest in the Class C-X2 Upper-Tier Regular Interest
Class C Certificates		100%		100%		100%
Class C-1 Certificates		0%		N/A		0%
Class C-2 Certificates		0%		N/A		N/A
Class C-X1 Certificates		N/A		0%		N/A
Class C-X2 Certificates		N/A		0%		0%

 

“Class R Certificate”: A Certificate designated as “Class R” on the face thereof in the form of Exhibit A-2 hereto, and evidencing the sole Class of “residual interests” in each Trust REMIC.

 

“Class UR Interest”: The uncertificated residual interest in the Upper-Tier REMIC, represented by the Class R Certificates.

 

“Class X Certificates”: The Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates, as the context may require.

 

“Class X-A Certificate”: A Certificate designated as “Class X-A” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class X-A Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests.

 

“Class X-A Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date,

 

 -36-

 

 

over (b) the weighted average of the Pass-Through Rates on the of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-X1 and Class A-5-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional Amounts of any Exchangeable Upper-Tier IO Regular Interests from the denominator of such weighted average calculation). The Pass-Through Rate applicable to the Class X-A Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-B Certificate”: A Certificate designated as “Class X-B” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class X-B Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class A-S Upper-Tier Regular Interest and the Class B Upper-Tier Regular Interest.

 

“Class X-B Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class A-S, Class A-S-X1, Class A-S-X2, Class B, Class B-X1 and Class B-X2 Upper-Tier Regular Interests for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances or Notional Amounts immediately prior to the Distribution Date (but excluding the Notional Amounts of any Exchangeable Upper-Tier IO Regular Interests in the denominator of such weighted average calculation). The Pass-Through Rate applicable to the Class X-B Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-D Certificate”: A Certificate designated as “Class X-D” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC.

 

“Class X-D Notional Amount”: As of any date of determination, the aggregate of the Certificate Balances of the Class D and Class E Certificates.

 

“Class X-D Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the weighted average of the Pass-Through Rates of the Class D and Class E Certificates for such Distribution Date, weighted on the basis of their respective aggregate Certificate Balances immediately prior to the Distribution Date. The Pass-Through Rate applicable to the Class X-D Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-F Certificate”: A Certificate designated as “Class X-F” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-F Notional Amount”: As of any date of determination, the Certificate Balance of the Class F Certificates.

 

 -37-

 

 

“Class X-F Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class F Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-F Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-G Certificate”: A Certificate designated as “Class X-G” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-G Notional Amount”: As of any date of determination, the Certificate Balance of the Class G Certificates.

 

“Class X-G Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class G Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-G Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Class X-H Certificate”: A Certificate designated as “Class X-H” on the face thereof, in the form of Exhibit A-1 hereto, and evidencing a “regular interest” in the Upper-Tier REMIC for purposes of the REMIC Provisions.

 

“Class X-H Notional Amount”: As of any date of determination, the Certificate Balance of the Class H Certificates.

 

“Class X-H Pass-Through Rate”: With respect to any Distribution Date, the excess, if any of (a) the Weighted Average Net Mortgage Rate for the related Distribution Date, over (b) the Pass-Through Rate of the Class H Certificates for such Distribution Date. The Pass-Through Rate applicable to the Class X-H Certificates for the initial Distribution Date shall be the rate set forth in the Preliminary Statement hereto.

 

“Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall be DTC.

 

“Clearstream”: Clearstream Banking, Luxembourg or any successor thereto.

 

“Closing Date”: November 22, 2021.

 

“CMBS”: Commercial mortgage-backed securities.

 

“Code”: The Internal Revenue Code of 1986, as amended from time to time, and applicable final or temporary regulations of the U.S. Department of the Treasury issued pursuant thereto.

 

“Collateral Deficiency Amount”: With respect to any AB Modified Loan as of any date of determination, shall be an amount, calculated by the applicable Special Servicer (other than with respect to any Non-Serviced Mortgage Loan) or the applicable Master Servicer

 

 -38-

 

 

(with respect to any Non-Serviced Mortgage Loan), equal to the excess of (i) the Stated Principal Balance of such AB Modified Loan (taking into account the related junior note(s) and any pari passu notes included therein), over (ii) the sum of (in the case of a Whole Loan, solely to the extent allocable to the subject Mortgage Loan) (x) the most recent Appraised Value for the related Mortgaged Property or Mortgaged Properties, plus (y) solely to the extent not reflected or taken into account in such Appraised Value (or in the calculation of any related Appraisal Reduction Amount) and to the extent on deposit with, or otherwise under the control of, the lender as of the date of such determination, any capital or additional collateral contributed by the related Mortgagor at the time the Mortgage Loan became (and as part of the modification related thereto) such AB Modified Loan for the benefit of the related Mortgaged Property or Mortgaged Properties (provided that in the case of a Non-Serviced Mortgage Loan, the amounts set forth in this clause (y) will be taken into account solely to the extent relevant information is received by the applicable Master Servicer), plus (z) any other escrows or reserves (in addition to any amounts set forth in the immediately preceding clause (y) and solely to the extent not reflected or taken into account in the calculation of any related Appraisal Reduction Amount) held by the lender in respect of such AB Modified Loan as of the date of such determination, which such excess, for the avoidance of doubt, will be determined separately from and exclude any related Appraisal Reduction Amounts. The applicable Master Servicer, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Collateral Deficiency Amount (other than with respect to a Non-Serviced Mortgage Loan). The applicable Special Servicer, the Certificate Administrator and the Operating Advisor shall be entitled to conclusively rely on the applicable Master Servicer’s calculation of any Collateral Deficiency Amount with respect to a Non-Serviced Mortgage Loan.

 

With respect to any Collateral Deficiency Amount calculated for purposes of determining the existence and identity of the Controlling Class pursuant to Section 4.05(a), the Appraised Value for the related Mortgaged Property determined in connection with this definition shall be determined on an “as-is” basis. 

 

“Collection Account”: A segregated custodial account or accounts created and maintained by each Master Servicer pursuant to Section 3.04(a) on behalf of the Trustee for the benefit of the Certificateholders, which, with respect to the General Master Servicer, shall be entitled “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Collection Account” and, with respect to the NCB Master Servicer, shall be entitled “National Cooperative Bank, N.A., as NCB Master Servicer on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37 Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Collection Account”. Any such account or accounts shall be an Eligible Account. Subject to the related Intercreditor Agreement and taking into account that each Serviced Companion Loan is subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan to the extent set forth in the related Intercreditor Agreement, the subaccount described in the second paragraph of Section 3.04(b) that is part of the applicable Collection Account shall be for the benefit of the Serviced Companion Noteholders, to the extent funds on deposit in such subaccount are attributed to the Companion Loans and shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust.

 

 -39-

 

 

“Collection Period”: With respect to any Distribution Date and any Mortgage Loan or Companion Loan, the period commencing on the day immediately succeeding the Due Date for such Mortgage Loan or Companion Loan occurring in the month preceding the month in which that Distribution Date occurs or the date that would have been the Due Date if such Mortgage Loan or Companion Loan had a Due Date in such preceding month and ending on and including the Due Date for such Mortgage Loan or Companion Loan occurring in the month in which that Distribution Date occurs. Notwithstanding the foregoing, in the event that the last day of a Collection Period is not a Business Day, any Periodic Payments received with respect to the Mortgage Loans or Companion Loan relating to such Collection Period on the Business Day immediately following such day shall be deemed to have been received during such Collection Period and not during any other Collection Period.

 

“Commission”: The Securities and Exchange Commission.

 

“Companion Distribution Account”: With respect to any Serviced Companion Loan, the separate account created and maintained by the Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the Serviced Companion Noteholders, which shall be entitled “Wells Fargo Bank, National Association, as Companion Paying Agent, for the benefit of the Serviced Companion Noteholders of the Serviced Companion Loans, relating to the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Companion Distribution Account”. The Companion Distribution Account shall not be an asset of the Trust, any Trust REMIC or the Grantor Trust, but instead shall be held by the Companion Paying Agent on behalf of the Serviced Companion Noteholders. Any such account shall be an Eligible Account. Notwithstanding the foregoing, if the General Master Servicer and the Companion Paying Agent are the same entity, the Companion Distribution Account may be the subaccount referenced in the second paragraph of Section 3.04(b).

 

“Companion Holders”: Each of the holders of record of any Companion Loan. 

 

“Companion Loan(s)”: With respect to any Mortgage Loan, any other mortgage loan that is not included in the Trust but is secured by the same Mortgage(s) encumbering the same Mortgaged Property or portfolio of Mortgaged Properties as such Mortgage Loan. With respect to each Whole Loan, the Pari Passu Companion Loan(s) and the Subordinate Companion Loan(s) (if any) are evidenced by the promissory notes opposite such Whole Loan, set forth in the chart entitled “Whole Loans” in the Preliminary Statement, as such promissory notes may be further divided.

 

“Companion Loan Rating Agency”: Any NRSRO rating any class of Serviced Pari Passu Companion Loan Securities.

 

“Companion Paying Agent”: With respect to the Serviced Companion Loans, if any, the General Master Servicer in its role as Companion Paying Agent appointed pursuant to Section 3.27.

 

“Compensating Interest Payment”: With respect to each Master Servicer, an aggregate amount as of any Distribution Date equal to the lesser of (i) the aggregate amount of Prepayment Interest Shortfalls incurred in connection with voluntary principal prepayments

 

 -40-

 

 

received in respect of the Mortgage Loans (other than Non–Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer and any related Serviced Pari Passu Companion Loans (in each case other than any Specially Serviced Loan or any Mortgage Loan or related Serviced Pari Passu Companion Loan on which the applicable Special Servicer allowed a prepayment on a date other than the applicable Due Date) for the related Distribution Date and (ii) the aggregate of (A) that portion of such Master Servicer’s Servicing Fees for such Distribution Date that is, in the case of each Mortgage Loan (other than a Non–Serviced Mortgage Loan), Serviced Pari Passu Companion Loan and REO Loan for which such Master Servicer is acting as Master Servicer for which Servicing Fees are being paid to such Master Servicer in such Collection Period, calculated at a rate of 0.00250% per annum, (B) all Prepayment Interest Excesses received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) (and, so long as a Serviced Whole Loan is serviced hereunder, any related Serviced Pari Passu Companion Loan) for which such Master Servicer is acting as Master Servicer subject to such prepayment and (C) to the extent earned on voluntary principal prepayments, net investment earnings payable to such Master Servicer for such Collection Period received by such Master Servicer during such Collection Period with respect to the Mortgage Loans (other than the Non-Serviced Mortgage Loans) for which such Master Servicer is acting as Master Servicer or any related Serviced Pari Passu Companion Loan, as applicable, subject to such prepayment. In no event will the rights of the Certificateholders to the offset of the aggregate Prepayment Interest Shortfalls be cumulative. However, if a Prepayment Interest Shortfall occurs with respect to a Mortgage Loan as a result of the applicable Master Servicer’s allowing the related Mortgagor to deviate (a “Prohibited Prepayment”) from the terms of the related Mortgage Loan documents regarding Principal Prepayments (other than (V) a Non-Serviced Mortgage Loan, (W) subsequent to a default under the related Mortgage Loan documents or if the Mortgage Loan is a Specially Serviced Loan, (X) pursuant to applicable law or a court order or otherwise in such circumstances where the applicable Master Servicer is required to accept such Principal Prepayment in accordance with the Servicing Standard, (Y)(i) at the request or with the consent of the applicable Special Servicer, or (ii) so long as no Control Termination Event has occurred and is continuing, and other than with respect to an Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, at the request or with the consent of the Directing Certificateholder or (Z) in connection with the payment of any Insurance and Condemnation Proceeds), then for purposes of calculating the Compensating Interest Payment for the related Distribution Date, such Master Servicer shall pay, without regard to clause (ii) above, the aggregate amount of Prepayment Interest Shortfalls with respect to such Mortgage Loan, otherwise described in clause (i) above in connection with such Prohibited Prepayments. No Master Servicer shall be required to make any Compensating Interest Payment as a result of any prepayments on Mortgage Loans or Companion Loans for which it does not act as Master Servicer or on any AB Subordinate Companion Loan.

 

For the avoidance of doubt, Compensating Interest Payments attributable to a Serviced Whole Loan shall be allocated among the related Mortgage Loan and the related Serviced Pari Passu Companion Loan(s), pro rata, in accordance with their respective principal balances and the applicable Master Servicer shall pay the portion of such Compensating Interest Payments allocable to the related Serviced Pari Passu Companion Loan(s) to the related Non-Serviced Master Servicer.

 

 -41-

 

 

“Consultation Termination Event”: At any date at which no Class of Control Eligible Certificates exists where such Class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that Class, in each case without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts; provided, that no Consultation Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Consultation Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Consultation Termination Event shall not be deemed continuing in the event that the Certificate Balances of the Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of principal payments on the Mortgage Loans.

 

“Consumer Price Index for All Urban Consumers”: The “Consumer Price Index for All Urban Consumers” as published by the U.S. Department of Labor.

 

“Control Eligible Certificates”: Any of the Class F, Class G and Class H Certificates.

 

“Control Termination Event”: The occurrence of the Certificate Balance of the Class F Certificates (taking into account the application of any Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of such Class in accordance with Section 4.05(a) hereof) being allocated to less than 25% of the Original Certificate Balance of such Class; provided, that no Control Termination Event may occur with respect to a Loan-Specific Directing Certificateholder related to a Servicing Shift Whole Loan and the term “Control Termination Event” shall not be applicable to a Loan-Specific Directing Certificateholder related to such Servicing Shift Whole Loan; provided, further, that a Control Termination Event shall not be deemed continuing in the event that the Certificate Balances of the Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of principal payments on the Mortgage Loans.

 

“Controlling Class”: As of any date of determination, the most subordinate Class of Control Eligible Certificates then outstanding that has an aggregate Certificate Balance as notionally reduced by any Allocated Cumulative Appraisal Reduction Amounts allocable to such Class in accordance with Section 4.05(a), at least equal to 25% of the Original Certificate Balance of that Class; provided, however, that if at any time the Certificate Balances of the Certificates other than the Control Eligible Certificates and the RR Interest have been reduced to zero as a result of the allocation of principal payments on the Mortgage Loans, then the Controlling Class shall be the most subordinate class among the Control Eligible Certificates that has a Certificate Balance greater than zero without regard to any Allocated Cumulative Appraisal Reduction Amounts. The Controlling Class as of the Closing Date will be the Class H Certificates.

 

“Controlling Class Certificateholders”: Each Holder (or Certificate Owner, if applicable) of a Certificate of the Controlling Class as determined by the Certificate Registrar, from time to time, upon request by any party hereto. The Depositor, the Trustee, either Master Servicer, either Special Servicer or the Operating Advisor may from time to time request (the cost of which being an expense of the Trust) that the Certificate Administrator provide a list of

 

 -42-

 

 

the Holders (or Certificate Owners, if applicable) of the Controlling Class and the Certificate Administrator shall promptly provide such list without charge to such Depositor, Trustee, Master Servicers, Operating Advisor or Special Servicers, as applicable. The Trustee, the Master Servicers, the Special Servicers and the Operating Advisor shall be entitled to rely on any such list so provided.

 

“Conveyed Property”: As defined in Section 2.01(a).

 

“Corporate Trust Office”: The principal corporate trust office of the Trustee and the Certificate Administrator at which at any particular time its corporate trust business with respect to this Agreement shall be administered, which office at the date of the execution of this Agreement is located (i) with respect to Certificate transfers and surrenders, at 600 South 4^th Street, 7^th Floor, Minneapolis, Minnesota 55415; (ii) with respect to the Trustee at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee BANK 2021-BNK37; and (iii) for all other purposes, to the Certificate Administrator at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services (CMBS), BANK 2021-BNK37.

 

“Corrected Loan”: Any Specially Serviced Loan that has become current and remained current for three (3) consecutive Periodic Payments (for such purposes taking into account any modification or amendment of the related Mortgage Loan or Companion Loan, as applicable, whether by a consensual modification or in connection with a bankruptcy, insolvency or similar proceeding involving the Mortgagor), and (provided that no other Servicing Transfer Event has occurred with respect to such Mortgage Loan or Companion Loan during such preceding three (3) months, no additional event of default is foreseeable in the reasonable judgment of the applicable Special Servicer and no other event or circumstance exists that causes such Mortgage Loan or Companion Loan, as applicable, to otherwise constitute a Specially Serviced Loan) the servicing of which the applicable Special Servicer has returned to the applicable Master Servicer pursuant to Section 3.19(a).

 

“Corresponding Exchangeable Upper-Tier Regular Interests”: With respect to each Class of Exchangeable Certificates, the Exchangeable Upper-Tier Regular Interests set forth next to it in the table below.

 

 -43-

 

 

Class of Exchangeable Certificates		Corresponding Exchangeable Upper-Tier Regular Interests
Class A-4		Class A-4, Class A-4-X1, Class A-4-X2
Class A-4-1		Class A-4, Class A-4-X2
Class A-4-2		Class A-4
Class A-4-X1		Class A-4-X1
Class A-4-X2		Class A-4-X1, Class A-4-X2
Class A-5		Class A-5, Class A-5-X1, Class A-5-X2
Class A-5-1		Class A-5, Class A-5-X2
Class A-5-2		Class A-5
Class A-5-X1		Class A-5-X1
Class A-5-X2		Class A-5-X1, Class A-5-X2
Class A-S		Class A-S, Class A-S-X1, Class A-S-X2
Class A-S-1		Class A-S, Class A-S-X2
Class A-S-2		Class A-S
Class A-S-X1		Class A-S-X1
Class A-S-X2		Class A-S-X1, Class A-S-X2
Class B		Class B, Class B-X1, Class B-X2
Class B-1		Class B, Class B-X2
Class B-2		Class B
Class B-X1		Class B-X1
Class B-X2		Class B-X1, Class B-X2
Class C		Class C, Class C-X1, Class C-X2
Class C-1		Class C, Class C-X2
Class C-2		Class C
Class C-X1		Class C-X1
Class C-X2		Class C-X1, Class C-X2

 

“COVID Forbearance Fees”: As defined in Section 3.18(a).

 

“CREFC^®”: The Commercial Real Estate Finance Council^®, or any successor organization reasonably acceptable to the Certificate Administrator, each Master Servicer, each Special Servicer and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

 

“CREFC^® Advance Recovery Report”: The monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Advance Recovery Report” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Appraisal Reduction Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Appraisal Reduction Template” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CREFC^® for commercial mortgage securities transactions generally.

 

 -44-

 

 

“CREFC^® Bond Level File”: The data file in the “CREFC^® Bond Level File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Collateral Summary File”: The data file in the “CREFC^® Collateral Summary File” format substantially in the form of and containing the information called for therein, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Comparative Financial Status Report”: The monthly report in “Comparative Financial Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Delinquent Loan Status Report”: The monthly report in the “Delinquent Loan Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Financial File”: The data file in the “CREFC^® Financial File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Bond/Collateral Realized Loss Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Liquidation Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report”: The monthly report in the “Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Intellectual Property Royalty License Fee”: With respect to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan) and for any Distribution Date, the amount accrued during the related Interest Accrual Period at the CREFC^® Intellectual Property Royalty License Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO Loan as of the close of business on the

 

 -45-

 

 

Distribution Date in such Interest Accrual Period; provided that such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Mortgage Loan or REO Loan is computed and shall be prorated for partial periods.  For the avoidance of doubt, the CREFC^® Intellectual Property Royalty License Fee shall be deemed payable by the Master Servicers from the Lower-Tier REMIC.

 

“CREFC^® Intellectual Property Royalty License Fee Rate”: With respect to each Mortgage Loan and REO Loan, a rate equal to 0.0005% per annum.

 

“CREFC^® Interest Shortfall Reconciliation Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Interest Shortfall Reconciliation Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Investor Reporting Package”: The collection of reports specified by the CREFC^® from time to time as the “CREFC^® Investor Reporting Package.” As of the Closing Date, the CREFC^® Investor Reporting Package contains eight electronic files ((1) CREFC^® Loan Setup File, (2) CREFC^® Loan Periodic Update File, (3) CREFC^® Property File, (4) CREFC^® Bond Level File, (5) CREFC^® Collateral Summary File, (6) CREFC^® Financial File, (7) CREFC^® Special Servicer Loan File and (8) CREFC^® Schedule AL File (with respect to the General Master Servicer)) and eleven surveillance reports ((1) CREFC^® Servicer Watch List, (2) CREFC^® Delinquent Loan Status Report, (3) CREFC^® REO Status Report, (4) CREFC^® Comparative Financial Status Report, (5) CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (6) CREFC^® Operating Statement Analysis Report, (7) CREFC^® Servicer Remittance to Certificate Administrator, (8) CREFC^® Significant Insurance Event Report, (9) CREFC^® NOI Adjustment Worksheet, (10) CREFC^® Loan Level Reserve/LOC Report and (11) with respect to Mortgage Loans that have a Companion Loan, as applicable, the CREFC^® Total Loan Report). In addition, the CREFC^® Investor Reporting Package shall include the CREFC^® Advance Recovery Report. In addition, the CREFC^® Investor Reporting Package shall include the following nine templates: (1) CREFC^® Appraisal Reduction Template, (2) CREFC^® Servicer Realized Loss Template, (3) CREFC^® Reconciliation of Funds Template, (4) CREFC^® Historical Bond/Collateral Realized Loss Reconciliation Template, (5) CREFC^® Historical Liquidation Loss Template, (6) CREFC^® Interest Shortfall Reconciliation Template, (7) CREFC^® Loan Modification Report, (8) CREFC^® Loan Liquidation Report and (9) CREFC^® REO Liquidation Report. The CREFC^® Investor Reporting Package shall be substantially in the form of, and containing the information called for in, the downloadable forms of the “CREFC^® IRP” available as of the Closing Date on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information or reports as may from time to time be approved by the CREFC^® for commercial mortgage-backed securities transactions generally. For the purposes of the production of the CREFC^® Comparative Financial Status Report by the applicable Master Servicer or the applicable Special Servicer of any such report that is required to state information for any period prior to the Cut-off Date, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may conclusively rely (without independent verification), absent manifest error, on information provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x) in the case of such a report produced by either Master Servicer, by the

 

 -46-

 

 

applicable Special Servicer (if other than such Master Servicer or an Affiliate thereof) and (y) in the case of such a report produced by either Special Servicer, by the applicable Master Servicer (if other than such Special Servicer or an Affiliate thereof).

 

“CREFC^® License Agreement”: The License Agreement, in the form set forth on the website of CREFC^® on the Closing Date, relating to the use of the CREFC^® trademarks and trade names.

 

“CREFC^® Loan Level Reserve/LOC Report”: The monthly report in the “CREFC^® Loan Level Reserve/LOC Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Modification Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Modification Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Periodic Update File”: The data file in the “CREFC^® Loan Periodic Update File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Loan Setup File”: The data file in the “CREFC^® Loan Setup File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® NOI Adjustment Worksheet”: The worksheet in the “NOI Adjustment Worksheet” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Operating Statement Analysis Report”: The report in the “Operating Statement Analysis Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such

 

 -47-

 

 

information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Property File”: The data file in the “CREFC^® Property File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Reconciliation of Funds Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds Template” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® REO Liquidation Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Liquidation Report” available and effective from time to time on the CREFC^® Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® REO Status Report”: The monthly report in the “REO Status Report” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Schedule AL File”: The data file in the “Schedule AL File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC® for commercial mortgage securities transactions generally; provided that the Depositor shall confirm in writing to each Master Servicer and the Certificate Administrator that any change to such “Schedule AL File” format complies with all requirements of Item 1125 of Regulation AB.

 

“CREFC^® Servicer Realized Loss Template”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Realized Loss Template” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Remittance to Certificate Administrator”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Servicer Remittance to Certificate Administrator” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Servicer Watch List”: A monthly report, as of each Determination Date, including and identifying each Non-Specially Serviced Loan satisfying the “CREFC^® Portfolio Review Guidelines” approved from time to time by the CREFC^® in the “CREFC^® Servicer Watch List” format substantially in the form of and containing the information called

 

 -48-

 

 

for therein for the Mortgage Loans, or such other form (including other portfolio review guidelines) for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Significant Insurance Event Report”: A report substantially in the form of, and containing the information called for in, the downloadable form of the “Significant Insurance Event Report” available and effective from time to time on the CREFC^® Website.

 

“CREFC^® Special Servicer Loan File”: The data file in the “CREFC^® Special Servicer Loan File” format substantially in the form of and containing the information called for therein for the Mortgage Loans, or such other form for the presentation of such information as may be approved from time to time by the CREFC^® for commercial mortgage securities transactions generally.

 

“CREFC^® Total Loan Report”: A monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Total Loan Report” available as of the Closing Date on the CREFC^® Website, or in such other form for the presentation of such information and containing such additional information as may from time to time be adopted by the CREFC^® for commercial mortgage-backed securities transactions and is reasonably acceptable to the Master Servicers.

 

“CREFC^® Website”: The CREFC^® Website located at “www.crefc.org” or such other primary website as the CREFC^® may establish for dissemination of its report forms.

 

“Cross-Over Date”: The Distribution Date on which the Certificate Balances of the Subordinate Certificates (other than the Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates) and the Class A-S Upper-Tier Regular Interest, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest have all previously been reduced to zero as a result of the allocation of Realized Losses to such Certificates.

 

“Crossed Mortgage Loan Group”: With respect to (i) any mortgage loan that consists of more than one commercial mortgage loan, the underlying group of loans that are cross-collateralized and cross-defaulted with each other and (ii) any two or more individual mortgage loans that are cross-collateralized and cross-defaulted with each other, such cross-collateralized and cross-defaulted mortgage loans. 

 

“Crossed Underlying Loan”: With respect to any Crossed Mortgage Loan Group, a mortgage loan that is cross-collateralized and cross-defaulted with one or more other mortgage loans within such Crossed Mortgage Loan Group. 

 

“Crossed Underlying Loan Repurchase Criteria”: With respect to any Crossed Mortgage Loan Group as to which one or more (but not all) of the Crossed Underlying Loans therein are affected by a Material Defect (the Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group affected by such Material Defect, for purposes of this definition, the “affected Crossed Underlying Loans” and the other Crossed Underlying Loan(s) in such Crossed Mortgage Loan Group, for purposes of this definition, the “remaining Crossed Underlying Loans”) (i) the debt service coverage ratio for all the remaining Crossed Underlying Loans for

 

 -49-

 

 

the four most recently reported calendar quarters preceding the repurchase or substitution shall not be less than the least of (a) 0.10x below the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus, (b) the debt service coverage ratio for the Crossed Mortgage Loan Group (including the affected Crossed Underlying Loan(s)) for the four preceding calendar quarters preceding the repurchase or replacement and (c) 1.25x, (ii) the loan-to-value ratio for all the remaining Crossed Underlying Loans determined at the time of repurchase or substitution based upon an Appraisal obtained by the applicable Special Servicer at the expense of the related Mortgage Loan Seller shall not be greater than the greatest of (a) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the entire Crossed Mortgage Loan Group, (including the affected Crossed Underlying Loan(s)) set forth in Annex A-1 to the Prospectus plus 10%, (b) the loan-to-value ratio, expressed as a whole number percentage (taken to one decimal place), for the entire such Crossed Mortgage Loan Group, including the affected Crossed Underlying Loan(s) at the time of repurchase or substitution, and (c) 75%, (iii) the related Mortgage Loan Seller, at its expense, shall have furnished the Trustee and the Certificate Administrator with an Opinion of Counsel that any modification relating to the repurchase or substitution of a Crossed Underlying Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Underlying Loan to become not cross-collateralized and cross-defaulted with the remaining related Crossed Underlying Loans prior to such repurchase or substitution or otherwise forbears from exercising enforcement rights against the Primary Collateral for any Crossed Underlying Loan(s) remaining in the Trust (while the Trust forbears from exercising enforcement rights against the Primary Collateral for the Mortgage Loan removed from the Trust) and (v) (other than with respect to any Excluded Loan with respect to the Directing Certificateholder) unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder shall have consented to the repurchase or substitution of the affected Crossed Underlying Loan, which consent shall not be unreasonably withheld, conditioned or delayed.

 

“Cumulative Appraisal Reduction Amount”: As of any date of determination, the sum of (i) all Appraisal Reduction Amounts then in effect, and (ii) with respect to any AB Modified Loan, any Collateral Deficiency Amount then in effect. The applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the applicable Special Servicer’s calculation or determination of any Cumulative Appraisal Reduction Amount with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan). With respect to a Non-Serviced Mortgage Loan, the applicable Special Servicer, the applicable Master Servicer and the Certificate Administrator shall be entitled to conclusively rely on the calculation or determination of any Appraisal Reduction Amount or Collateral Deficiency Amount with respect to such Mortgage Loan performed by the applicable servicer responsible therefore pursuant to the related Non-Serviced PSA.

 

“Cure/Contest Period”: As defined in Section 12.01(b)(vii).

 

“Custodial Exception Report”: As defined in Section 2.02(b).

 

“Custodian”: A Person who is at any time appointed by the Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files, which Person shall not be the

 

 -50-

 

 

Depositor, any of the Mortgage Loan Sellers or an Affiliate of any of them. The Certificate Administrator shall be the initial Custodian. 

 

“Cut-off Date”: With respect to each Mortgage Loan, the related Due Date of such Mortgage Loan in November 2021, or with respect to any Mortgage Loan that has its first Due Date after November 2021, the date that would have otherwise been the related Due Date in November 2021.

 

“Cut-off Date Balance”: With respect to any Mortgage Loan, the outstanding principal balance of such Mortgage Loan, as of the Cut-off Date, after application of all payments of principal due on or before such date, whether or not received.

 

“DBRS Morningstar”: DBRS, Inc., and its successors in interest. If neither DBRS Morningstar nor any successor remains in existence, “DBRS” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Master Servicers, the Directing Certificateholder and the Special Servicers and specific ratings of DBRS Morningstar herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Default Interest”: With respect to any Mortgage Loan or Companion Loan and any Collection Period, all interest accrued in respect of such Mortgage Loan or Companion Loan during such Collection Period provided for in the related Mortgage Note or Mortgage as a result of a default (exclusive of late payment charges) that is in excess of interest at the related Mortgage Rate accrued on the unpaid principal balance of such Mortgage Loan or Companion Loan outstanding from time to time.

 

“Defaulted Loan”: A Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan that is a Specially Serviced Loan and (i) that is delinquent at least sixty (60) days in respect of its Periodic Payments (other than a Balloon Payment) or delinquent in respect of its Balloon Payment, if any; provided that in respect of a Balloon Payment, such period will be 120 days if the related Mortgagor has provided the applicable Master Servicer or applicable Special Servicer, as applicable, with a written and fully executed (subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, as applicable (and such Master Servicer or Special Servicer, as applicable, shall be required to promptly forward such documentation to the Directing Certificateholder); and such delinquency is to be determined without giving effect to any Grace Period permitted by the related Mortgage or Mortgage Note and without regard to any acceleration of payments under the related Mortgage and Mortgage Note or (ii) as to which such Special Servicer has, by written notice to the related Mortgagor, accelerated the maturity of the indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt, a defaulted Companion Loan does not constitute a “Defaulted Loan”.

 

 -51-

 

 

“Defeasance Accounts”: As defined in Section 3.18(j).

 

“Defect”: As defined in Section 2.02(f).

 

“Deficient Exchange Act Deliverable”: With respect to a Master Servicer, a Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee and each Servicing Function Participant and Additional Servicer retained by it (other than an Initial Sub-Servicer), any item (x) regarding such party, (y) prepared by such party or any registered public accounting firm, attorney or other agent retained by such party to prepare such information and (z) delivered by or on behalf of such party pursuant to the delivery requirements under Article XI of this Agreement that does not conform to the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.

 

“Deficient Valuation”: With respect to any Mortgage Loan or Serviced Whole Loan, as applicable, a valuation by a court of competent jurisdiction of the related Mortgaged Property in an amount less than the then-outstanding principal balance of such Mortgage Loan or Serviced Whole Loan which valuation results from a proceeding initiated under the Bankruptcy Code.

 

“Definitive Certificate”: Any Certificate in definitive, fully registered form without interest coupons. Initially, the Class R Certificates, the RR Interest and any Certificate issued pursuant to Section 5.02(c) and Section 5.02(d) shall be Definitive Certificates. For the avoidance of doubt, any RR Interest shall at all times during the RR Interest Transfer Restriction Period be a Definitive Certificate.

 

“Delinquent Loan”: A Mortgage Loan that is delinquent at least sixty (60) days in respect of its Periodic Payments or Balloon Payment, if any, in either case such delinquency to be determined without giving effect to any Grace Period. For the avoidance of doubt, a delinquency that would have existed but for a Payment Accommodation will not constitute a delinquency for so long as the related borrower is complying with the terms of such Payment Accommodation.

 

“Denomination”: With respect to any Certificate or any beneficial interest in a Certificate the amount (i) (a) set forth on the face thereof, (b) set forth on a schedule attached thereto (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) or (c) in the case of any beneficial interest in a Book-Entry Certificate, the interest of the related Certificate Owner in the applicable Class of Certificates as reflected on the books and records of the Depository or related Depository Participant, as applicable, (ii) expressed in terms of initial Certificate Balance or initial Notional Amount, as applicable, and (iii) in an authorized denomination, as set forth in Section 5.01(a).

 

“Depositor”: Wells Fargo Commercial Mortgage Securities, Inc., a North Carolina corporation, or its successor in interest.

 

“Depository”: DTC, or any successor Depository hereafter named. The nominee of the initial Depository for purposes of registering those Certificates that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a “clearing corporation” as

 

 -52-

 

 

defined in Section 8-102(3) of the UCC of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.

 

“Depository Participant”: A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

“Designated Site”: The website to which Diligence Files are uploaded as designated by the Depositor to the Mortgage Loan Sellers.

 

“Determination Date”: With respect to any Distribution Date, the eleventh (11th) day of each calendar month (or, if the eleventh (11th) calendar day of that month is not a Business Day, then the next Business Day), commencing in December 2021.

 

“Diligence File”: With respect to each Mortgage Loan or Companion Loan, if applicable, collectively the following documents in electronic format:

 

(a)          A copy of each of the following documents:

 

(i)      the Mortgage Note, endorsed on its face or by allonge attached to the Mortgage Note, without recourse, to the order of the Trustee or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)     the Mortgage, together with a copy of any intervening Assignments of Mortgage, in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iii)    any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), in each case, with evidence of recording indicated thereon or certified to have been submitted for recording (if in the possession of the applicable Mortgage Loan Seller);

 

(iv)   all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

(v)    the policy or certificate of lender’s title insurance issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant

 

 -53-

 

 

to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

 

(vi)   any UCC financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(vii)  any intercreditor agreement relating to permitted debt of the Mortgagor, including any intercreditor agreement relating to a Serviced Whole Loan and any related mezzanine intercreditor agreement;

 

(viii) any loan agreement, escrow agreement, security agreement or letter of credit relating to a Mortgage Loan or a Serviced Whole Loan;

 

(ix)   any ground lease, related ground lessor estoppel, indemnity or guaranty relating to a Mortgage Loan or a Serviced Whole Loan;

 

(x)    other than with respect to the Mortgage Loans secured by residential cooperative properties, any property management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xi)   any franchise agreements and comfort letters or similar agreements relating to a Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of a Mortgage Loan or Serviced Whole Loan;

 

(xii)  any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xiii) all related environmental reports; and

 

(xiv) all related environmental insurance policies;

 

(b)          a copy of any engineering reports or property condition reports;

 

(c)          other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property) or a residential cooperative property, copies of a rent roll;

 

(d)          for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller;

 

(e)          a copy of all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller or an Affiliate thereof, and its counsel that are privileged communications or constitute legal or other due diligence analyses), if any, delivered in connection with the closing of the related Mortgage Loan;

 

 -54-

 

 

(f)           a copy of all Mortgagor’s certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies (to the extent not previously included as part of this definition), if any, delivered in connection with the closing of the related Mortgage Loan;

 

(g)          a copy of the appraisal for the related Mortgaged Property or Mortgaged Properties;

 

(h)          for any Mortgage Loan that the related Mortgaged Property or Mortgaged Properties is leased to a single tenant, a copy of the lease;

 

(i)           a copy of the applicable Mortgage Loan Seller’s asset summary;

 

(j)           a copy of all surveys for the related Mortgaged Property or Mortgaged Properties;

 

(k)          a copy of all zoning reports;

 

(l)           a copy of financial statements of the related Mortgagor;

 

(m)         a copy of operating statements for the related Mortgaged Property or Mortgaged Properties;

 

(n)          a copy of all UCC searches;

 

(o)          a copy of all litigation searches;

 

(p)          a copy of all bankruptcy searches;

 

(q)          a copy of any origination settlement statement;

 

(r)           a copy of the Insurance Summary Report;

 

(s)           a copy of the organizational documents of the related Mortgagor and any guarantor;

 

(t)           a copy of all escrow statements related to the escrow account balances as of the Mortgage Loan origination date;

 

(u)          a copy of all related environmental reports that were received by the applicable Mortgage Loan Seller;

 

(v)          a copy of any closure letter (environmental); and

 

(w)         a copy of any environmental remediation agreement for the related Mortgaged Property or Mortgaged Properties;

 

in each case, to the extent that the related originator received such documents in connection with the origination of such Mortgage Loan. In the event any of the items identified above were not

 

 -55-

 

 

included in connection with the origination of such Mortgage Loan (other than documents that would not be included in connection with the origination of the Mortgage Loan because such document is inapplicable to the origination of a Mortgage Loan of that structure or type), the Diligence File shall include a statement to that effect. No information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications shall constitute part of the Diligence File. It is generally not required to include any of the same items identified above again if such items have already been included under another clause of the definition of Diligence File, and the Diligence File shall include a statement to that effect. The Mortgage Loan Seller may, without any obligation to do so, include such other documents as part of the Diligence File that such Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform the Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified.

 

“Directing Certificateholder”: (A) With respect to a Servicing Shift Whole Loan, the Directing Certificateholder shall be the related Loan-Specific Directing Certificateholder, and (B) with respect to each Mortgage Loan (other than each Servicing Shift Mortgage Loan and any Excluded Loan), the initial Directing Certificateholder shall be BIG BNK37, LLC. Thereafter, with respect to the Mortgage Loans described in clause (B) of the first sentence of this definition, the Directing Certificateholder shall be the Controlling Class Certificateholder (or a representative thereof) selected by more than 50% of the Controlling Class Certificateholders (by Certificate Balance, as determined by the Certificate Registrar) from time to time; provided, however, that (i) absent that selection, or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt of a notice from a majority of the Controlling Class Certificateholders, by Certificate Balance, that a Directing Certificateholder is no longer designated, the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) will be the Directing Certificateholder; provided, however, that, in the case of this clause (iii), in the event that no one Holder owns the largest aggregate Certificate Balance of the Controlling Class, then there will be no Directing Certificateholder until appointed in accordance with the terms of this Agreement. After the occurrence and during the continuance of a Control Termination Event, the Directing Certificateholder, as described in clause (B) of the first sentence of this definition shall only retain its consultation rights to the extent specifically provided for herein. After the occurrence of a Consultation Termination Event, there will be no Directing Certificateholder as described in clause (B) of the first sentence of this definition. The Depositor shall promptly provide the name and contact information for the initial Directing Certificateholder upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Directing Certificateholder has not changed until such parties receive written notice of a replacement of the Directing Certificateholder from a party holding the requisite interest in the Controlling Class (as confirmed by the Certificate Registrar), or the resignation of the then-current Directing Certificateholder.

 

“Directly Operate”: With respect to any REO Property (except with respect to a Non-Serviced Mortgaged Property), the furnishing or rendering of services to the tenants thereof, that are not customarily provided to tenants in connection with the rental of space “for occupancy only” within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO Property, the holding of such REO Property primarily for

 

 -56-

 

 

sale to customers, the use of such REO Property in a trade or business conducted by the Trust or on behalf of a Companion Holder or the performance of any construction work on the REO Property other than through an Independent Contractor; provided, however, that an REO Property shall not be considered to be Directly Operated solely because the Trustee (or the applicable Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance or makes decisions as to repairs or capital expenditures with respect to such REO Property or takes other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).

 

“Disclosable Special Servicer Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) and any related Serviced Companion Loan (including any related REO Property), any compensation and other remuneration (including, without limitation, in the form of commissions, brokerage fees, or rebates, or as a result of any other fee-sharing arrangement) received or retained by the applicable Special Servicer or any of its Affiliates that is paid by any Person (including, without limitation, the Trust, any Mortgagor, any manager, any guarantor or indemnitor in respect of a Mortgage Loan or Serviced Companion Loan and any purchaser of any such Mortgage Loan or Serviced Companion Loan or REO Property) in connection with the disposition, workout or foreclosure of any such Mortgage Loan or Serviced Companion Loan, the management or disposition of such REO Property, and the performance by the applicable Special Servicer or any such Affiliate of any other special servicing duties under this Agreement, other than (1) any Permitted Special Servicer/Affiliate Fees and (2) any compensation to which the applicable Special Servicer is entitled pursuant to Section 3.11 of this Agreement or any Non-Serviced PSA.

 

“Disclosure Parties”: As defined in Section 3.13(f).

 

“Discount Rate”: As defined in Section 4.01(e).

 

“Dispute Resolution Consultation”: As defined in Section 2.03(l)(iii).

 

“Dispute Resolution Cut-off Date”: As defined in Section 2.03(l)(i).

 

“Disqualified Non-U.S. Tax Person”: With respect to the Class R Certificates, any Non-U.S. Tax Person or its agent other than (a) a Non-U.S. Tax Person that holds the Class R Certificates in connection with the conduct of a trade or business within the United States and has furnished the transferor and the Certificate Registrar with an effective IRS Form W-8ECI or (b) a Non-U.S. Tax Person that has delivered to both the transferor and the Certificate Registrar an opinion of a nationally recognized tax counsel to the effect that the transfer of the Class R Certificates to it is in accordance with the requirements of the Code and the regulations promulgated thereunder and that such transfer of the Class R Certificates will not be disregarded for federal income tax purposes.

 

“Disqualified Organization”: Any of (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for Freddie Mac, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency

 

 -57-

 

 

or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person.  The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

 

“Distribution Accounts”: Collectively, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution Account and the Excess Interest Distribution Account (and in each case any subaccount thereof), all of which may be subaccounts of a single Eligible Account.

 

“Distribution Date”: The fourth (4th) Business Day following each Determination Date, beginning in December 2021. The initial Distribution Date shall be December 17, 2021.

 

“Distribution Date Statement”: As defined in Section 4.02(a).

 

“Do Not Hire List”: The list, as may be updated at any time, provided by the Depositor to the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee, the Operating Advisor or the Asset Representations Reviewer, which lists certain parties identified by the Depositor as having failed to comply (after any applicable cure period) with their respective obligations under Article XI of this Agreement or as having failed to comply (after any applicable cure period) with any similar Regulation AB reporting requirements under any other securitization transaction. For the avoidance of doubt, as of the Closing Date, no parties appear on the Do Not Hire List.

 

“Dodd-Frank Act”: The Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended from time to time.

 

“DTC”: The Depository Trust Company, a New York corporation.

 

“Due Date”: With respect to (i) any Mortgage Loan or Companion Loan, as applicable, on or prior to its Maturity Date, the day of the month set forth in the related Mortgage Note on which each Periodic Payment thereon is scheduled to be first due, (ii) any Mortgage Loan or Companion Loan, as applicable, after the Maturity Date therefor, the day of the month set forth in the related Mortgage Note on which each Periodic Payment on such Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due, and (iii) any REO Loan,

 

 -58-

 

 

the day of the month set forth in the related Mortgage Note on which each Periodic Payment on the related Mortgage Loan or Companion Loan, as applicable, had been scheduled to be first due.

 

“EDGAR”: As defined in Section 11.03.

 

“EDGAR-Compatible Format”: With respect to (a) the Initial Schedule AL File, the Initial Schedule AL Additional File, the CREFC^® Schedule AL File and the Schedule AL Additional File, XML format or such other format as mutually agreed to between the Depositor, Certificate Administrator and the Master Servicers and (b) any report, file or document other than those listed in clause (a) above, any format compatible with EDGAR, including HTML, Word or clean, searchable PDFs.

 

“Eligible Account”: Any of the following: (i) a segregated account or accounts maintained with a federal or state chartered depository institution or trust company (including the Trustee or the Certificate Administrator), (A) the long-term deposit rating or long-term unsecured debt obligations or deposits of which are rated at least “A2” by Moody’s, if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “P-1” from Moody’s, if the deposits are to be held in such account for less than thirty (30) days, (B) the long-term unsecured debt obligations or deposits of which are rated at least “A” by Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “F1” from Fitch (to the extent rated by Fitch), if the deposits are to be held in such account for less than thirty (30) days and (C) the long-term unsecured debt obligations or deposits of which are rated at least “BBB(high)” by DBRS Morningstar (if then rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and/or Fitch) or such other rating confirmed in a Rating Agency Confirmation), if the deposits are to be held in such account for thirty (30) days or more, and the short-term debt obligations or deposits of which have a short-term rating of not less than “R-1(low)” from DBRS Morningstar (if then rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and/or Fitch) or such other rating confirmed in a Rating Agency Confirmation) if the deposits are to be held in such account for less than thirty (30) days; (ii) an account or accounts maintained with Wells Fargo Bank, National Association so long as Wells Fargo Bank, National Association’s long-term unsecured debt rating shall be at least “A2” from Moody’s and “A” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for more than thirty (30) days) and “BBB(high)” from DBRS Morningstar (if then rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and/or Fitch) or such other rating confirmed in a Rating Agency Confirmation) (if the deposits are to be held in the account for more than thirty (30) days) or Wells Fargo Bank, National Association’s short-term deposit or short-term unsecured debt rating shall be at least “P-1” from Moody’s and “F1” from Fitch (to the extent rated by Fitch) (if the deposits are to be held in the account for thirty (30) days or less) and “R-1 (low)” from DBRS Morningstar (if then rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Moody’s and/or Fitch) or such other rating confirmed in a Rating Agency Confirmation) (if the deposits are to be held in the account for thirty (30) days or less); (iii) an account or accounts

 

 -59-

 

 

maintained with PNC Bank, National Association so long as PNC Bank, National Association’s long-term unsecured debt or deposit account rating shall be at least “A2” from Moody’s and “A” from Fitch (if the deposits are to be held in the account for more than thirty (30) days) or PNC Bank, National Association’s short-term deposit account or short-term unsecured debt rating shall be at least “P-1” from Moody’s and “F1” from Fitch (if the deposits are to be held in the account for thirty (30) days or less); (iv) such other account or accounts that, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) - (iii) above, with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such account, which account may be an account maintained by or with the Certificate Administrator, the Trustee, either Master Servicer or either Special Servicer; (v) any other account or accounts not listed in clauses (i) – (iii) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), which account may be an account maintained by or with the Certificate Administrator, the Trustee, either Master Servicer or either Special Servicer; (vi) a segregated trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company that has a long-term unsecured debt rating of at least “A2” from Moody’s (if the deposits are to be held in the account for more than thirty (30) days) or a short-term unsecured debt rating of at least “P-1” from Moody’s (if the deposits are to be held in the account for thirty (30) days or less) and that, in either case, has corporate trust powers, acting in its fiduciary capacity, provided that any state chartered depository institution or trust company is subject to regulation regarding fiduciary funds substantially similar to 12 C.F.R. § 9.10(b); or (vii) in the case of Servicing Accounts or reserve accounts with respect to NCB Mortgage Loans with respect to amounts posted with the lender for Escrow Payments, repairs, replacements, capital improvements and/or environmental testing and remediation with respect to the related Mortgaged Property, for ongoing or threatened litigation or for any unit maintenance or rent receivables or negative carry, any account maintained with NCB (provided that, if such account is not otherwise an Eligible Account, NCB has a combined capital and surplus of at least $40,000,000). Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a certificate of deposit, passbook or other similar instrument.

 

“Eligible Asset Representations Reviewer”: An entity that (a) is the special servicer, operating advisor or asset representations reviewer on a transaction rated by any of Moody’s, Fitch, DBRS Morningstar, KBRA or S&P and that has not been a special servicer, operating advisor or asset representations reviewer on a transaction for which any of Moody’s, Fitch, DBRS Morningstar, KBRA and S&P has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with such special servicer, operating advisor or asset representations reviewer, as applicable, as the sole or material factor in such rating action, (b) can and will make the representations and warranties set forth in Section 6.01(d), (c) is not (and is not affiliated with) a Sponsor, a Mortgage Loan Seller, an originator, either Master Servicer, either Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder, the

 

 -60-

 

 

Risk Retention Consultation Party or any of their respective Affiliates, (d) has not performed (and is not affiliated with any party hired to perform) any due diligence, loan underwriting, brokerage, borrower advisory or similar services with respect to any Mortgage Loan or any related Companion Loan prior to the Closing Date for or on behalf of any Sponsor, any Mortgage Loan Seller, any Underwriter, any party to this Agreement, the Directing Certificateholder, the Risk Retention Consultation Party or any of their respective Affiliates, or have been paid any fees, compensation or other remuneration by any of them in connection with any such services, and (e) does not directly or indirectly, through one or more Affiliates or otherwise, own any interest in any Certificates, any Mortgage Loans, any Companion Loan or any securities backed by a Companion Loan or otherwise have any financial interest in the securitization transaction to which this Agreement relates, other than in fees from its role as Asset Representations Reviewer (or as Operating Advisor, if applicable).

 

“Eligible Operating Advisor”: An entity (a) that is a special servicer or operating advisor on a commercial mortgage-backed securities transaction rated by the Rating Agencies (including, in the case of the Operating Advisor, this transaction) but has not been a special servicer or operating advisor on a transaction for which any Rating Agency has qualified, downgraded or withdrawn its rating or ratings of one or more classes of certificates for such transaction citing servicing or other relevant concerns with the special servicer or operating advisor, as applicable, as the sole or a material factor in such rating action; (b) that can and will make the representations and warranties of the Operating Advisor set forth in Section 6.01(c) of this Agreement; (c) that is not (and is not affiliated with) the Depositor, the Trustee, the Certificate Administrator, a Master Servicer, a Special Servicer, a Mortgage Loan Seller, the Directing Certificateholder, the Risk Retention Consultation Party or a depositor, a trustee, a certificate administrator, a master servicer or a special servicer with respect to the securitization of a Companion Loan, or any of their respective Affiliates; (d) that has not been paid by any Special Servicer or successor special servicer any fees, compensation or other remuneration (x) in respect of its obligations hereunder or (y) for the appointment or recommendation for replacement of a successor special servicer to become a special servicer under this Agreement; and (e) that (i) has been regularly engaged in the business of analyzing and advising clients in commercial mortgage-backed securities matters and has at least five (5) years of experience in collateral analysis and loss projections and (ii) has at least five (5) years of experience in commercial real estate asset management and experience in the workout and management of distressed commercial real estate assets.

 

“Enforcing Party”: The person obligated to or that elects pursuant to Section 2.03 to enforce the rights of the Trust against the related Mortgage Loan Seller with respect to the Repurchase Request.

 

“Enforcing Servicer”: (a) With respect to a Specially Serviced Loan, the applicable Special Servicer, and (b) with respect to a Non-Specially Serviced Loan, (i) in the case of a Repurchase Request made by the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder, the applicable Master Servicer, and (ii) in the case of a Repurchase Request made by any Person other than the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder, (A) prior to a Resolution Failure relating to such Non-Specially Serviced Loan, the applicable Master Servicer,

 

 -61-

 

 

and (B) from and after a Resolution Failure relating to such Non-Specially Serviced Loan, the applicable Special Servicer, in each case pursuant to Section 2.03(k)(iv).

 

“Environmental Assessment”: An “environmental site assessment” as such term is defined in, and meeting the criteria of, the American Society of Testing Materials Standard Section E 1527-00, or any successor thereto.

 

“Environmental Indemnity Agreement”: With respect to any Mortgage Loan, any agreement between the Mortgagor (or a guarantor thereof) and the originator of such Mortgage Loan relating to the Mortgagor’s obligation to remediate or monitor or indemnify for any environmental problems relating to the related Mortgaged Property.

 

“ERISA”: The Employee Retirement Income Security Act of 1974, as amended.

 

“ERISA Plan”: As defined in Section 5.03(t).

 

“ERISA Restricted Certificate”: Any Certificate (other than a Class R Certificate) that does not meet the requirements of Prohibited Transaction Exemption 96-22 (as such exemption may be amended from time to time) as of the date of the acquisition of such Certificate by a Plan. As of the Closing Date, each of the Class X-F, Class X-G, Class X-H, Class F, Class G, Class H Certificates and the RR Interest is an ERISA Restricted Certificate.

 

“Escrow Payment”: Any payment received by the applicable Master Servicer or the applicable Special Servicer for the account of any Mortgagor for application toward the payment of real estate taxes, assessments, insurance premiums, ground lease rents and similar items in respect of the related Mortgaged Property, including amounts for deposit to any reserve account.

 

“Euroclear”: The Euroclear System or any successor thereto.

 

“Excess Interest”: With respect to the ARD Loan, interest accrued on the ARD Loan after the Anticipated Repayment Date allocable to the Excess Rate, including all interest accrued thereon to the extent permitted by applicable law and the related Mortgage Loan documents. The Excess Interest shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust. There are no ARD Loans included in the Trust Fund and, accordingly, no Excess Interest is payable to the Trust and all references in this Agreement to “Excess Interest” shall be disregarded.

 

“Excess Interest Certificates”: Any class of commercial mortgage pass-through certificates issued under this Agreement that are designated as evidencing an interest in the Excess Interest Grantor Trust Assets. There are no Excess Interest Grantor Trust Assets in the Trust Fund and, accordingly, no Excess Interest Certificates shall be designated or issued, and all references in this Agreement to “Excess Interest Certificates” shall be disregarded.

 

“Excess Interest Distribution Account”: The trust account or accounts created and maintained as a separate account or accounts (or as a subaccount of the Distribution Account) by the Certificate Administrator pursuant to Section 3.04(c), which shall be entitled “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington

 

 -62-

 

 

Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, the RR Interest, Excess Interest Distribution Account”, and which must be an Eligible Account (or a subaccount of an Eligible Account). The Excess Interest Distribution Account shall be held solely for the benefit of the Holders of the RR Interest. The Excess Interest Distribution Account shall not be an asset of either Trust REMIC, but rather shall be an asset of the Grantor Trust. There are no ARD Loans included in the Trust Fund and, accordingly, no Excess Interest Distribution Account will be established with respect to the Trust and all references in this Agreement to “Excess Interest Distribution Account” shall be disregarded.

 

“Excess Interest Grantor Trust Assets”: The portion of the Trust Fund consisting of the Excess Interest, the Excess Interest Distribution Account and the proceeds thereof. There is no Excess Interest in the Trust Fund and no Excess Interest Distribution Account shall be established. Accordingly, all references in this Agreement to “Excess Interest Grantor Trust Assets” shall be disregarded.

 

“Excess Modification Fee Amount”: With respect to any Master Servicer or Special Servicer, any Corrected Loan and any particular modification, waiver, extension or amendment with respect to such Corrected Loan that gives rise to the payment of a Workout Fee, an amount equal to the aggregate of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan (including the related Serviced Companion Loan, if applicable, unless prohibited under the related Intercreditor Agreement) and received and retained by the applicable Master Servicer or the applicable Special Servicer, as applicable, as compensation within the prior twelve (12) months of such modification, waiver, extension or amendment, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee.

 

“Excess Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, the sum of (A) the excess, if any, of (i) any and all Modification Fees with respect to a modification, waiver, extension or amendment of any of the terms of such Mortgage Loan or Serviced Whole Loan, as applicable, over (ii) all unpaid or unreimbursed additional expenses (including, without limitation, reimbursement of Advances and interest on Advances to the extent not otherwise paid or reimbursed by the Mortgagor but excluding Special Servicing Fees, Workout Fees and Liquidation Fees) outstanding or previously incurred on behalf of the Trust with respect to the related Mortgage Loan or Serviced Whole Loan, as applicable, and reimbursed from such Modification Fees and (B) expenses previously paid or reimbursed from Modification Fees as described in the preceding clause (A), which expenses have been recovered from the related Mortgagor or otherwise. With respect to each of the Master Servicers and the Special Servicers, the Excess Modification Fees collected and earned by such Person from the related Mortgagor (taken in the aggregate with any other Excess Modification Fees collected and earned by such Person from the related Mortgagor within the prior twelve (12) months of the collection of the current Excess Modification Fees) will be subject to a cap of 1.0% of the outstanding principal balance of the related Mortgage Loan or Serviced Whole Loan, as applicable, on the closing date of the related modification, extension, waiver or amendment (after giving effect to such modification, extension, waiver or amendment) with respect to any Mortgage Loan or Serviced Whole Loan, as applicable.

 

 -63-

 

 

“Excess Prepayment Interest Shortfall”: For any Distribution Date, the Non-Retained Percentage of the Aggregate Excess Prepayment Interest Shortfall for such Distribution Date.

 

“Excess Rate”: With respect to each ARD Loan, the excess of (i) the applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan Schedule.

 

“Exchange Act”: The Securities Exchange Act of 1934, as amended from time to time and the rules and regulations of the Commission thereunder.

 

“Exchangeable Certificate”: Any of the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

 

“Exchangeable Class Specific Grantor Trust Assets”: With respect to any Class of Exchangeable Certificates, its Class Percentage Interest in each Corresponding Exchangeable Upper-Tier Regular Interest.

 

“Exchangeable P&I Certificates”: Any of the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1 and Class C-2 Certificates.

 

“Exchangeable Upper-Tier IO Regular Interest”: Each of the Class A-4-X1 Upper-Tier Regular Interest, the Class A-4-X2 Upper-Tier Regular Interest, the Class A-5-X1 Upper-Tier Regular Interest, the Class A-5-X2 Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest, the Class A-S-X2 Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest, the Class B-X2 Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest. 

 

“Exchangeable Upper-Tier P&I Regular Interest”: Each of the Class A-4 Upper-Tier Regular Interest, the Class A-5 Upper-Tier Regular Interest, the Class A-S Upper-Tier Regular Interest, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest.

 

“Exchangeable Upper-Tier Regular Interest”: Each of the Exchangeable Upper-Tier P&I Regular Interests and the Exchangeable Upper-Tier IO Regular Interests.

 

“ExchangeRight 49 Intercreditor Agreement”: The Agreement Between Note Holders, dated as of November 22, 2021, by and between the holders of the respective promissory notes evidencing the ExchangeRight 49 Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“ExchangeRight 49 Mortgage Loan”: With respect to the ExchangeRight 49 Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 8 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1.

 

 -64-

 

 

“ExchangeRight 49 Mortgaged Properties”: The Mortgaged Properties that secure the ExchangeRight 49 Whole Loan.

 

“ExchangeRight 49 Pari Passu Companion Loan”: With respect to the ExchangeRight 49 Whole Loan, the Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the ExchangeRight 49 Mortgaged Properties.

 

“ExchangeRight 49 Whole Loan”: The ExchangeRight 49 Mortgage Loan together with the ExchangeRight 49 Pari Passu Companion Loan, each of which is secured by the same Mortgage on the ExchangeRight 49 Mortgaged Properties. References herein to the ExchangeRight 49 Whole Loan shall be construed to refer to the aggregate indebtedness under the ExchangeRight 49 Mortgage Loan and the ExchangeRight 49 Pari Passu Companion Loan.

 

“Excluded Controlling Class Holder”: With respect to any Excluded Controlling Class Loan, the Directing Certificateholder or any Controlling Class Certificateholder, as applicable, that is a Borrower Party with respect to such Excluded Controlling Class Loan. Promptly upon obtaining actual knowledge of the Directing Certificateholder or any Controlling Class Certificateholder becoming an “Excluded Controlling Class Holder”, such Directing Certificateholder or Controlling Class Certificateholder, as applicable, shall provide notice in the form of Exhibit P-1E hereto to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator, which notice shall be physically delivered in accordance with Section 13.05 of this Agreement and shall specifically identify the Excluded Controlling Class Holder and the subject Excluded Controlling Class Loan. Additionally, any Excluded Controlling Class Holder shall also send to the Certificate Administrator a notice substantially in the form of Exhibit P-1F hereto, which notice shall provide each of the CTSLink User ID associated with such Excluded Controlling Class Holder, and which notice shall direct the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. As of the Closing Date, there are no Excluded Controlling Class Holders related to the Trust.

 

“Excluded Controlling Class Loan”: Any Mortgage Loan or Whole Loan with respect to which, as of any date of determination, the Directing Certificateholder or any Controlling Class Certificateholder is a Borrower Party. For the avoidance of doubt, if a Mortgage Loan or Whole Loan is not an Excluded Controlling Class Loan, such Mortgage Loan or Whole Loan is also not an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. As of the Closing Date, there are no Excluded Controlling Class Loans related to the Trust.

 

“Excluded Information”: With respect to any Excluded Controlling Class Loan, any information solely related to such Excluded Controlling Class Loan, which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans prepared by the applicable Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding a Special Servicer’s net present value determination or any

 

 -65-

 

 

Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, the applicable Master Servicer or the applicable Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Information by the applicable Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, but in each case other than information with respect to such Excluded Controlling Class Loan that is aggregated with information of other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Controlling Class Loan) and any Schedule AL Additional File shall not be considered “Excluded Information”. Each of the Master Servicers, the Special Servicers and the Operating Advisor shall deliver any Excluded Information to the Certificate Administrator in accordance with Section 3.33. For the avoidance of doubt, the Certificate Administrator’s obligation to segregate any information delivered to it under the “Excluded Information” tab on the Certificate Administrator’s Website shall be triggered solely by such information being delivered in the manner provided in Section 3.26.

 

“Excluded Loan”: With respect to (a) the Directing Certificateholder or (except for purposes of determining whether a Servicing Shift Whole Loan is an Excluded Loan in respect of the related Loan-Specific Directing Certificateholder) the Holder of the majority of the Controlling Class, any Mortgage Loan or Whole Loan if, as of any date of determination, the Directing Certificateholder or the Holder of the majority of the Controlling Class is a Borrower Party or (b) the Risk Retention Consultation Party or the Holder of the majority of the RR Interest, any Mortgage Loan or Whole Loan if, as of any date of determination, the Risk Retention Consultation Party or the Holder of the majority of the RR Interest is a Borrower Party. For the avoidance of doubt, any Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class is also an Excluded Controlling Class Loan. As of the Closing Date, there are no Excluded Loans related to the Trust.

 

“Excluded Special Servicer”: With respect to any Excluded Special Servicer Loan, a replacement special servicer that is not a Borrower Party and satisfies all of the eligibility requirements applicable to the Special Servicers set forth in Section 7.01(g). As of the Closing Date, there are no Excluded Special Servicers related to the Trust.

 

“Excluded Special Servicer Information”: With respect to any Excluded Special Servicer Loan, any information solely related to such Excluded Special Servicer Loan and/or the related Mortgaged Properties, which shall include the Asset Status Reports, Final Asset Status Reports (or summaries thereof), any Operating Advisor reports delivered to the Certificate Administrator regarding an Excluded Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the applicable Master Servicer or the applicable Excluded Special Servicer supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, or such other information and reports designated as Excluded Special Servicer Information by the applicable Excluded Special Servicer, the applicable Master Servicer or the Operating Advisor, as applicable, in each case, other than information with respect to such Excluded Special Servicer Loan(s) that is aggregated with

 

 -66-

 

 

information with respect to the other Mortgage Loans at a pool level. For the avoidance of doubt, any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any Excluded Special Servicer Loan) and any Schedule AL Additional File shall not be considered “Excluded Special Servicer Information”.

 

“Excluded Special Servicer Loan”: Any Mortgage Loan or Serviced Whole Loan with respect to which, as of any date of determination, the applicable Special Servicer obtains knowledge that it has become a Borrower Party. For the avoidance of doubt, there are no Excluded Special Servicer Loans related to the Trust as of the Closing Date.

 

“Extended Cure Period”: As defined in Section 2.03(b).

 

“Fannie Mae”: Federal National Mortgage Association or any successor thereto.

 

“FDIC”: Federal Deposit Insurance Corporation or any successor thereto.

 

“Final Asset Status Report”: With respect to any Specially Serviced Loan, each related Asset Status Report, together with such other data or supporting information provided by the applicable Special Servicer to the Directing Certificateholder or the Risk Retention Consultation Party which does not include any communication (other than the related Asset Status Report) between the applicable Special Servicer and Directing Certificateholder or the Risk Retention Consultation Party with respect to such Specially Serviced Loan; provided that, with respect to any Mortgage Loan other than an Excluded Loan as to the Directing Certificateholder or the Holder of the majority of the Controlling Class, so long as no Control Termination Event has occurred and is continuing, no Asset Status Report shall be considered to be a Final Asset Status Report unless the Directing Certificateholder has either finally approved of and consented to the actions proposed to be taken in connection therewith, or has exhausted all of its rights of approval and consent pursuant to Section 3.19, or has been deemed to have approved or consented to such action or the Asset Status Report is otherwise implemented by the applicable Special Servicer in accordance with this Agreement. In addition, after the occurrence and during the continuance of a Control Termination Event, no Asset Status Report shall be a Final Asset Status Report unless and until the Operating Advisor is consulted with on a non-binding basis or deemed to have been consulted with pursuant to this Agreement. No such consultation shall be required prior to a Control Termination Event and, during such period, the Operating Advisor is only required to review Final Asset Status Reports delivered to it by the Special Servicers; provided that the Operating Advisor shall be required to request delivery of a Final Asset Status Report to the extent it has actual knowledge of such Final Asset Status Report. Each Final Asset Status Report shall be labeled or otherwise identified or communicated as being final by the applicable special servicer.

 

“Final Dispute Resolution Election Notice”: As defined in Section 2.03(l)(iii).

 

“Final Recovery Determination”: A reasonable determination by the applicable Special Servicer, in consultation with the Directing Certificateholder if related to a Mortgage Loan other than an Excluded Loan as to the Directing Certificateholder and made prior to the occurrence and continuance of a Consultation Termination Event, with respect to any Defaulted

 

 -67-

 

 

Loan (and, if applicable, any defaulted Companion Loan) or Corrected Loan or REO Property (other than a Mortgage Loan or REO Property, as the case may be, that was purchased by (i) any of the Mortgage Loan Sellers pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, (ii) the applicable Special Servicer or other person pursuant to Section 3.16(b), any Companion Holder or any mezzanine lender pursuant to Section 3.16 or (iii) the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class, or the Holders of the Class R Certificates pursuant to Section 9.01) that there has been a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries that, in the applicable Special Servicer’s judgment, which judgment was exercised without regard to any obligation of such Special Servicer to make payments from its own funds pursuant to Section 3.07(b), will ultimately be recoverable. With respect to all Mortgage Loans other than Excluded Loans with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder shall have ten (10) Business Days to review and approve each such recovery determination by the applicable Special Servicer; provided, however, that if the Directing Certificateholder fails to approve or disapprove any recovery determination within ten (10) Business Days of receipt of the initial recovery determination, such consent shall be deemed given.

 

“Fitch”: Fitch Ratings, Inc., and its successors in interest. If neither Fitch nor any successor remains in existence, “Fitch” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Fitch herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Form 8-K Disclosure Information”: As defined in Section 11.07.

 

“Form 15 Suspension Notification”: As defined in Section 11.08.

 

“Freddie Mac”: Federal Home Loan Mortgage Corporation or any successor thereto.

 

“Gain-on-Sale Proceeds”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan), the excess of (i) Liquidation Proceeds net of any related Liquidation Expenses (or the portion of such net Liquidation Proceeds payable to the related Mortgage Loan pursuant to the related Intercreditor Agreement) over (ii) the Purchase Price for such Mortgage Loan on the date on which Liquidation Proceeds were received. Gain-on-Sale Proceeds shall exclude any amounts allocated as a Yield Maintenance Charge, Prepayment Premium, recovery of any late payment charges and default interest or recovery of any assumption fees and Modification Fees pursuant to Sections 3.02(a) – (c).

 

“Gain-on-Sale Remittance Amount”: With respect to each Distribution Date, an amount equal to the lesser of (i) the amount on deposit in the Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Non-Retained Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

 

 -68-

 

 

“Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Certificateholders (other than the Holders of the RR Interest), which shall initially be entitled “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

“General Master Servicer”: Wells Fargo Bank, National Association, and its successors in interest and assigns, or any successor thereto (as General Master Servicer) appointed as provided herein.

 

“General Special Servicer”: CWCapital Asset Management LLC, a Delaware limited liability company, and its successors in interest and assigns, or any successor special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require).

 

“Government-Sponsored Relief Modification”: Any modification, waiver or amendment of a Mortgage Loan or Serviced Whole Loan that is necessary to facilitate the related borrower’s ability to take advantage of any government-sponsored COVID-specific relief or stimulus program applicable to the Mortgage Loan or Serviced Whole Loan, related Mortgaged Property or related borrower; provided that (A) any such action would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b), and would not otherwise cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes (as evidenced by an Opinion of Counsel (at the Trust’s expense to the extent not reimbursed or paid by the related borrower), to the extent requesting such opinion is consistent with the Servicing Standard), (B) agreeing to such action would be consistent with the Servicing Standard, and (C) agreeing to such action would not violate the terms, provisions or limitations of this Agreement or any Intercreditor Agreement. For the avoidance of doubt, a Government-Sponsored Relief Modification may only be entered into by the applicable Special Servicer on behalf of the Trust.

 

“Grace Period”: The number of days before a payment default is an event of default under the related Mortgage Loan.

 

“Grantor Trust”: A segregated asset pool within the Trust Fund treated as a “grantor trust” under subpart E, part I of subchapter J of the Code, consisting of the assets described in the Preliminary Statement hereto.

 

“Grantor Trust Designated Portion”: As defined in the Preliminary Statement hereto.

 

 -69-

 

 

“Ground Lease”: The ground lease pursuant to which any Mortgagor holds a leasehold interest in the related Mortgaged Property and any estoppels or other agreements executed and delivered by the ground lessor in favor of the lender under the Mortgage Loan.

 

“Hazardous Materials”: Any dangerous, toxic or hazardous pollutants, chemicals, wastes or substances, including, without limitation, those so identified pursuant to CERCLA or any other federal, state or local environmental related laws and regulations, and specifically including, without limitation, asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and any substances classified as being “in inventory,” “usable work in process” or similar classification which would, if classified as unusable, be included in the foregoing definition.

 

“Independent”: When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with respect to any specified Person, any such Person who (i) is in fact independent of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer and all Affiliates thereof, (ii) does not have any material direct financial interest in or any material indirect financial interest in any of the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof and (iii) is not connected with the Trustee, the Certificate Administrator, the Depositor, each Master Servicer, each Special Servicer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders (insofar as the relevant matter involves a Whole Loan (whether alone or together with one or more other Mortgage Loans)), the Operating Advisor, the Asset Representations Reviewer or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided, however, that a Person shall not fail to be Independent of the Trustee, the Certificate Administrator, the Depositor, the Master Servicers, the Special Servicers, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof merely because such Person is the beneficial owner of 1% or less of any Class of securities issued by the Trustee, the Certificate Administrator, the Depositor, either Master Servicer, either Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Directing Certificateholder, the Risk Retention Consultation Party, the Companion Holders or any Affiliate thereof, as the case may be, so long as such ownership constitutes less than 1% of the total assets of such Person. For the avoidance of doubt, the exception in the proviso above for ownership of 1% or less of any Class of Certificates shall not apply with respect to the Operating Advisor or the Asset Representations Reviewer.

 

“Independent Contractor”: Either (i) any Person that would be an “independent contractor” with respect to the Trust within the meaning of Section 856(d)(3) of the Code if the Trust were a real estate investment trust (except that the ownership test set forth in that Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of any Class of Certificates, or such other interest in any Class of Certificates), so long as the Trust does

 

 -70-

 

 

not receive or derive any income from such Person and provided that the relationship between such Person and the Trust is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that none of the Master Servicers or the Special Servicers shall be considered to be an Independent Contractor under the definition in this clause (i) unless an Opinion of Counsel has been delivered to the Trustee and the Certificate Administrator to that effect) or (ii) any other Person (including a Master Servicer or a Special Servicer) upon receipt by the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers and the Special Servicers of an Opinion of Counsel, which shall be at no expense to the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor or the Trust, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.

 

“Initial Cure Period”: As defined in Section 2.03(b).

 

“Initial Purchasers”: Wells Fargo Securities, LLC, BofA Securities, Inc., Morgan Stanley & Co. LLC., Academy Securities, Inc., Drexel Hamilton, LLC and Siebert Williams Shank & Co., LLC.

 

“Initial Requesting Certificateholder”: The first Certificateholder or Certificate Owner (in either case, other than a Holder of the RR Interest) to deliver a Certificateholder Repurchase Request as described in Section 2.03(k) with respect to a Mortgage Loan. For the avoidance of doubt, there may not be more than one Initial Requesting Certificateholder with respect to any Mortgage Loan. A Holder of an RR Interest may not be an Initial Requesting Certificateholder.

 

“Initial Schedule AL Additional File”: The data file prepared by or on behalf of the Depositor containing additional information or schedules regarding data points in the Initial Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act and filed as Exhibit 103 to the Form ABS-EE incorporated by reference into the Prospectus.

 

“Initial Schedule AL File”: The data file(s) prepared by, or on behalf of, the Depositor containing the information required by Item 1111(h)(3) or Item 1125 or Regulation AB or Item 601(b)(102) of Regulation S-K under the Securities Act and filed as Exhibit 102 to the Form ABS-EE incorporated by reference into the Prospectus.

 

“Initial Sub-Servicer”: With respect to each Mortgage Loan that is subject to a Sub-Servicing Agreement with either Master Servicer as of the Closing Date, the Sub-Servicer under any such Sub-Servicing Agreement. As of the Closing Date, each entity listed on Exhibit FF is an Initial Sub-Servicer.

 

“Initial Sub-Servicing Agreement”: Any Sub-Servicing Agreement in effect as of the Closing Date.

 

“Inquiry” and “Inquiries”: As each is defined in Section 4.07(a).

 

 -71-

 

 

“Institutional Accredited Investor”: An institutional investor which is an “accredited investor” within the meaning of paragraphs (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Act or any entity in which all of the equity owners come within such paragraphs.

 

“Insurance and Condemnation Proceeds”: All proceeds paid under any Insurance Policy or in connection with the full or partial condemnation of a Mortgaged Property, in either case, to the extent such proceeds are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor or any tenants or ground lessors, in either case, in accordance with the Servicing Standard (and in the case of any Mortgage Loan with a related Companion Loan, to the extent any portion of such proceeds are received by the applicable Master Servicer or Certificate Administrator in connection with such Mortgage Loan, pursuant to the allocations set forth in the related Intercreditor Agreement) and the REMIC Provisions.

 

“Insurance Policy”: With respect to any Mortgage Loan, any hazard insurance policy, flood insurance policy, title policy or other insurance policy that is maintained from time to time in respect of such Mortgage Loan or the related Mortgaged Property.

 

“Insurance Summary Report”: With respect to each Mortgage Loan, a report or other summary prepared either by the related Mortgage Loan Seller or a third party insurance consultant on behalf of the related Mortgage Loan Seller that provides a summary of all insurance policies covering the related Mortgaged Property(ies), identifying the insurance provider, applicable ratings of each such provider and the amount of coverage and any applicable deductible.

 

“Intercreditor Agreement”: (a) Each of the One North Wacker Intercreditor Agreement, the 1201 Lake Robbins Intercreditor Agreement, the One SoHo Square Intercreditor Agreement, the Park Avenue Plaza Intercreditor Agreement, the Raymour & Flanigan Campus Intercreditor Agreement, the ExchangeRight 49 Intercreditor Agreement and the Arizona Mills Intercreditor Agreement, (b) any intercreditor agreement, co-lender agreement or similar agreement entered into with a subordinate debt holder or in connection with the issuance to the direct or indirect equity holders in the Mortgagor of any existing mezzanine indebtedness or any future mezzanine indebtedness permitted under the related Mortgage Loan documents and (c) solely with respect to a Joint Mortgage Loan treated as a Serviced Whole Loan in accordance with Section 3.30 hereof (to the extent there is no related Intercreditor Agreement governing the relationship of the promissory notes comprising such Joint Mortgage Loan), the applicable Mortgage Loan documents together with the provisions of Section 3.30 hereof.

 

“Interest Accrual Amount”: With respect to any Distribution Date and any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interests, the amount of interest for the related Interest Accrual Period accrued at the Pass-Through Rate for such Class of Certificates or Exchangeable Upper-Tier Regular Interest on the Certificate Balance or Notional Amount, as applicable, for such Class of Certificates or Exchangeable Upper-Tier Regular Interest immediately prior to that Distribution Date. Calculations of interest for each Interest Accrual Period will be made on 30/360 basis.

 

 -72-

 

 

“Interest Accrual Period”: For each Distribution Date, the calendar month prior to the month in which that Distribution Date occurs.

 

“Interest Distribution Amount”: With respect to any Class of Regular Certificates (other than the RR Interest) or Exchangeable Upper-Tier Regular Interests for any Distribution Date, an amount equal to (A) the sum of (i) the Interest Accrual Amount with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date and (ii) the Interest Shortfall, if any, with respect to such Class of Certificates or Exchangeable Upper-Tier Regular Interest for such Distribution Date, less (B) any Excess Prepayment Interest Shortfall allocated to such Class of Certificates (other than the RR Interest) on such Distribution Date.

 

For purposes of clause (B) above, the Excess Prepayment Interest Shortfall, if any, for each Distribution Date shall be allocated to each Class of Regular Certificates (other than the RR Interest) and each Exchangeable Upper-Tier Regular Interest in an amount equal to the product of (i) the amount of such Excess Prepayment Interest Shortfall and (ii) a fraction, the numerator of which is the Interest Accrual Amount for such Class or Exchangeable Upper-Tier Regular Interest for such Distribution Date and the denominator of which is the aggregate Interest Accrual Amounts for all Classes of Regular Certificates (other than the RR Interest) for such Distribution Date and for the Exchangeable Upper-Tier Regular Interests for such Distribution Date. For any Distribution Date, any portion of the Excess Prepayment Interest Shortfall allocated to an Exchangeable Upper-Tier Regular Interest, shall be allocated among the Classes of Exchangeable Certificates representing an interest therein, pro rata, in accordance with their Class Percentage Interests therein.

 

“Interest Reserve Account”: The trust account or subaccount of the Distribution Account created and maintained by the Certificate Administrator pursuant to Section 3.04(b) initially in the name of “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Interest Reserve Account”, into which the amounts set forth in Section 3.21 shall be deposited directly and which must be an Eligible Account or subaccount of an Eligible Account.

 

“Interest Shortfall”: With respect to any Distribution Date for any Class of Regular Certificates (other than the RR Interest) or the Exchangeable Upper-Tier Regular Interests, the sum of (a) the portion of the Interest Distribution Amount for such Class or Exchangeable Upper-Tier Regular Interest remaining unpaid as of the close of business on the preceding Distribution Date, and (b) to the extent permitted by applicable law, (i) other than in the case of Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one month’s interest on that amount remaining unpaid at the Pass-Through Rate applicable to such Class or Exchangeable Upper-Tier Regular Interest for the current Distribution Date and (ii) in the case of the Class X Certificates or Exchangeable Upper-Tier IO Regular Interests, one-month’s interest on that amount remaining unpaid at the Weighted Average Net Mortgage Rate for such Distribution Date.

 

“Interested Person”: As of the date of any determination, the Depositor, any Master Servicer, any Special Servicer, the Operating Advisor, the Asset Representations

 

 -73-

 

 

Reviewer, the Certificate Administrator, the Trustee, the Directing Certificateholder, the Risk Retention Consultation Party, any Sponsor, any Borrower Party, any Independent Contractor engaged by a Special Servicer, or any known Affiliate of any of the preceding entities. With respect to a Whole Loan, if it is a Defaulted Loan, the Depositor, any Master Servicer, any Special Servicer (or any Independent Contractor engaged by such Special Servicer), or the trustee for the securitization of a Companion Loan, and each related Companion Holder or its representative, any holder of a related mezzanine loan, or any known Affiliate of any such party described above.

 

“Investment Account”: As defined in Section 3.06(a).

 

“Investment Representation Letter”: As defined in Section 5.03(e), a form of which is attached hereto as Exhibit C.

 

“Investor-Based Exemption”: Any of PTCE 84-14 (for transactions by independent “qualified professional asset managers”), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 90-1 (for transactions by insurance company pooled separate accounts), PTCE 95-60 (for transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”) or a similar exemption under Similar Law.

 

“Investor Certification”: A certificate (which may be in electronic form) substantially in the form of Exhibit P-1A, Exhibit P-1B, Exhibit P-1C or Exhibit P-1D to this Agreement or in the form of an electronic certification contained on the Certificate Administrator’s Website (which may be a click-through confirmation), representing (i) that such Person executing the certificate is a Certificateholder, the Directing Certificateholder or the Risk Retention Consultation Party (in either case, to the extent such Person is not a Certificateholder), a beneficial owner of a Certificate, a prospective purchaser of a Certificate or a Companion Holder (or any investment advisor, manager or other representative of the foregoing), (ii) that either (a) such Person is the Risk Retention Consultation Party or is not a Borrower Party, in which case such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (b) such Person is a Borrower Party in which case (1) if such Person is the Directing Certificateholder or a Controlling Class Certificateholder, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder other than any Excluded Information as set forth herein, or (2) if such Person is the Risk Retention Consultation Party, such Person shall have access to all the reports and information made available to Certificateholders via the Certificate Administrator’s Website hereunder, or (3) if such Person is not the Directing Certificateholder, a Controlling Class Certificateholder or the Risk Retention Consultation Party, such Person shall only receive access to the Distribution Date Statements to Certificateholders prepared by the Certificate Administrator, (iii) (other than with respect to a Companion Holder) that such Person has received a copy of the final Prospectus and (iv) such Person agrees to keep any Privileged Information confidential and will not violate any securities laws; provided, however, that any Excluded Controlling Class Holder (i) shall be permitted to reasonably request and obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder

 

 -74-

 

 

is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information) and (ii) shall be considered a Privileged Person for all other purposes, except with respect to its ability to obtain information with respect to any related Excluded Controlling Class Loan. The Certificate Administrator may require that Investor Certifications be re-submitted from time to time in accordance with its policies and procedures and shall restrict access to the Certificate Administrator’s Website to any mezzanine lender upon notice from any party to this Agreement that such mezzanine lender has become an Accelerated Mezzanine Loan Lender.

 

“Investor Q&A Forum”: As defined in Section 4.07(a).

 

“Investor Registry”: As defined in Section 4.07(b).

 

“Joint Mortgage Loan”: Any Mortgage Loan originated by more than one Mortgage Loan Seller. As of the Closing Date, the Arizona Mills Mortgage Loan is a Joint Mortgage Loan related to the Trust.

 

“KBRA”: Kroll Bond Rating Agency, LLC, and its successors in interest. If neither KBRA nor any successor remains in existence, “KBRA” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and specific ratings of KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Late Collections”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, all amounts received thereon prior to the related Determination Date, whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late payments or collections of principal or interest due in respect of such Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due thereunder by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. With respect to any REO Loan, all amounts received in connection with the related REO Property prior to the related Determination Date, whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late collections of principal or interest due or deemed due in respect of such REO Loan or the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable (without regard to any acceleration of amounts due under the predecessor Mortgage Loan, Whole Loan or Companion Loan, as applicable, by reason of default), on a Due Date prior to the immediately preceding Determination Date and not previously recovered. The term “Late Collections” shall specifically exclude Penalty Charges. With respect to any Whole Loan, as used in this Agreement, Late Collections shall refer to such portion of Late Collections to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

“Legal Fee Reserve Account”: The account created and maintained by the Certificate Administrator pursuant to Section 3.04(b), in the name of the “Legal Fee Reserve

 

 -75-

 

 

Account”, into which the amounts set forth in Section 3.04(b) shall be deposited directly and which must be an Eligible Account.

 

“Liquidation Event”: With respect to any Mortgage Loan or with respect to any REO Property (and the related REO Loan), any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made with respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is purchased by either Special Servicer, or by any Companion Holder or any mezzanine lender (as applicable) pursuant to Section 3.16 (and the related Intercreditor Agreement, as applicable); (v) such Mortgage Loan is purchased by either Special Servicer, either Master Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates pursuant to Section 9.01 or acquired by the Sole Certificateholder in exchange for its Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan is sold by either Special Servicer pursuant to the terms of this Agreement.

 

“Liquidation Expenses”: All customary, reasonable and necessary “out of pocket” costs and expenses incurred by either Special Servicer in connection with a liquidation of any Specially Serviced Loan or REO Property (except with respect to a Non-Serviced Mortgaged Property) pursuant to Section 3.16 (including, without limitation, legal fees and expenses, committee or referee fees and, if applicable, brokerage commissions and conveyance taxes).

 

“Liquidation Fee”: A fee payable to (A) the Master Servicer with respect to each Mortgage Loan and each related Serviced Companion Loan (other than a Non-Serviced Mortgage Loan) with respect to which the Master Servicer is acting as Enforcing Servicer and obtains Liquidation Proceeds described in clauses (iv) or (vii) of the definition thereof and (B) the Special Servicer with respect to (x) each Non-Specially Serviced Loan and each related Companion Loan with respect to which the Special Servicer acts as Enforcing Servicer, (y) each Specially Serviced Loan and (z) REO Property (except with respect to a Non-Serviced Mortgaged Property) as to which the Special Servicer obtains (i) a full, partial or discounted payoff from the related Mortgagor, (ii) any Liquidation Proceeds or Insurance and Condemnation Proceeds (including with respect to the related Companion Loan(s), if applicable) or (iii) Loss of Value Payments, or REO Property (in any case, other than amounts for which a Workout Fee has been paid, or will be payable), equal to the product of the Liquidation Fee Rate and the proceeds of such full, partial or discounted payoff or other partial payment or the Liquidation Proceeds or Insurance and Condemnation Proceeds or Loss of Value Payments (net of the related costs and expenses associated with the related liquidation) related to such liquidated Mortgage Loan or REO Property, as the case may be; provided, however, that no Liquidation Fee shall be payable with respect to (a) the purchase of the Specially Serviced Loan by either Special Servicer or any Affiliate thereof (except if such Affiliate purchaser is the Directing Certificateholder or any Affiliate thereof; provided, however, that prior to a Control Termination Event, if the Directing Certificateholder or an Affiliate thereof purchases any Specially Serviced Loan within ninety (90) days after applicable Special Servicer delivers to the Directing Certificateholder for its approval the initial Asset Status Report with respect to such Specially Serviced Loan, such Special Servicer will not be entitled to a Liquidation Fee in connection with such purchase by the Directing Certificateholder or its Affiliates), (b) any event

 

 -76-

 

 

described in clause (iv) of the definition of “Liquidation Proceeds” (or any substitution in lieu of a repurchase) so long as such repurchase or substitution occurs prior to the termination of the Extended Cure Period, (c) any event described in clauses (v), (vi) and (vii) of the definition of “Liquidation Proceeds”, as long as, with respect to a purchase pursuant to clause (vi) of the definition of “Liquidation Proceeds”, a purchase occurs within ninety (90) days of such holder’s purchase option first becoming exercisable during that period prior to such Mortgage Loan becoming a Corrected Loan pursuant to the related Intercreditor Agreement, (d) with respect to a Serviced Companion Loan, (x) a repurchase of such Serviced Companion Loan by the applicable Mortgage Loan Seller for a breach of a representation or warranty or for a defective or deficient mortgage loan documentation under an Other Pooling and Servicing Agreement within the time period (or extension thereof) provided for such repurchase or such repurchase occurs prior to the termination of the extended resolution period provided therein or (y) a purchase of such Serviced Companion Loan by any applicable party to the Other Pooling and Servicing Agreement pursuant to a clean-up call or similar liquidation of the Other Securitization, or (e) if a Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) or (ii) of the definition of “Servicing Transfer Event”, Liquidation Proceeds are received within one hundred twenty (120) days following the related Maturity Date as a result of such Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full (but, in the event that a Liquidation Fee is not payable due to the application of any of clauses (a) through (e) above, each Special Servicer may still collect and retain a Liquidation Fee and similar fees from the related Mortgagor to the extent provided for in, or not prohibited by, the related loan documents); provided that the Liquidation Fee with respect to any Mortgage Loan will be reduced by the amount of any Excess Modification Fees paid by or on behalf of the related Mortgagor with respect to the related Mortgage Loan and any related Companion Loan, as applicable, or REO Property and received by the applicable Special Servicer or the applicable Master Servicer, as applicable, as compensation within the prior twelve (12) months, but only to the extent those fees have not previously been deducted from a Workout Fee or Liquidation Fee. No Liquidation Fee shall be payable in connection with a Loss of Value Payment by a Mortgage Loan Seller, if the applicable Mortgage Loan Seller makes such Loss of Value Payment within 90 days of receipt of notice of a breach (and giving effect to an extension period of 90 days).

 

“Liquidation Fee Rate”: A rate equal to 1.00% with respect to any Mortgage Loan (and each related Serviced Companion Loan) and REO Property; provided that if such rate would result in an aggregate Liquidation Fee less than $25,000, then the Liquidation Fee Rate will be equal to the lesser of (i) 3.00% and (ii) such rate as would result in an aggregate Liquidation Fee equal to $25,000.

 

“Liquidation Proceeds”: Cash amounts received by or paid to either Master Servicer or either Special Servicer in connection with: (i) the liquidation (including a payment in full) of a Mortgaged Property or other collateral constituting security for a Defaulted Loan or defaulted Companion Loan, if applicable, through a trustee’s sale, foreclosure sale (including through judicial foreclosure), REO Disposition or otherwise, exclusive of any portion thereof required to be released to the related Mortgagor in accordance with applicable law and the terms and conditions of the related Mortgage Note and Mortgage; (ii) the realization upon any deficiency judgment obtained against a Mortgagor; (iii) any sale of (A) a Specially Serviced Loan pursuant to Section 3.16(a) or (B) any REO Property pursuant to Section 3.16(b); (iv) the

 

 -77-

 

 

repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a Specially Serviced Loan or REO Property by the Holder of the majority of the Controlling Class, either Special Servicer, either Master Servicer or the Holders of the Class R Certificates pursuant to Section 9.01; (vi) the purchase of a Mortgage Loan or an REO Property by (a) the applicable Subordinate Companion Holder or (b) the related mezzanine lender pursuant to Section 3.16 and the related Intercreditor Agreement; or (vii) the transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to the Collection Accounts in accordance with Section 3.05(g) of this Agreement (provided that, for the purpose of determining the amount of the Liquidation Fee (if any) payable to the applicable Master Servicer or applicable Special Servicer, as applicable, in connection with such Loss of Value Payment, the full amount of such Loss of Value Payment shall be deemed to constitute “Liquidation Proceeds” from which the Liquidation Fee (if any) is payable as of such time such Loss of Value Payment is made by the applicable Mortgage Loan Seller). With respect to any Whole Loan, as used in this Agreement, Liquidation Proceeds shall refer to such portion of Liquidation Proceeds to the extent allocable to the related Mortgage Loan or related Companion Loan, as applicable, pursuant to the terms of the related Intercreditor Agreement.

 

“Loan-Specific Directing Certificateholder”: With respect to any Servicing Shift Whole Loan, the “Controlling Holder”, the “Directing Certificateholder”, the “Directing Holder”, the “Directing Lender” or any analogous concept set forth under the related Intercreditor Agreement. Prior to the applicable Servicing Shift Securitization Date, a Loan-Specific Directing Certificateholder with respect to the related Servicing Shift Whole Loan will be the holder of the related “Control Note” or similarly defined term as identified in the related Intercreditor Agreement. On and after the applicable Servicing Shift Securitization Date, there will be no Loan-Specific Directing Certificateholder under this Agreement with respect to the related Servicing Shift Whole Loan. For the avoidance of doubt, there is no Loan-Specific Directing Certificateholder related to the Trust.

 

“Loss of Value Payment”: As defined in Section 2.03(b) of this Agreement.

 

“Loss of Value Reserve Fund”: The “outside reserve fund” (within the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant to Section 3.04(g) of this Agreement. The Loss of Value Reserve Fund will be part of the Trust Fund but not part of the Grantor Trust or any Trust REMIC.

 

“Lower-Tier Distribution Amount”: As defined in Section 4.01(c).

 

“Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interests, (i) on or prior to the first Distribution Date, an amount equal to the Original Lower-Tier Principal Amount of such Class as specified in the Preliminary Statement hereto, and (ii) as of any date of determination after the first Distribution Date, an amount equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interest on the Distribution Date immediately prior to such date of determination (determined as adjusted pursuant to Section 1.02(iii), and as set forth in Section 4.01(c)).

 

 -78-

 

 

“Lower-Tier Regular Interests”: Any of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4, Class LA5, Class LAS, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and LRR Uncertificated Interests. 

 

“Lower-Tier REMIC”: One of two separate REMICs comprising a portion of the Trust Fund, which consist of the Mortgage Loans (exclusive of Excess Interest) and the proceeds thereof, any REO Property with respect thereto (or an allocable portion thereof, in the case of any Serviced Mortgage Loan), or the Trust’s beneficial interest in the REO Property with respect to a Non-Serviced Whole Loan, such amounts as shall from time to time be held in the Collection Accounts (other than with respect to any Companion Loan), the related portion of the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Lower-Tier REMIC Distribution Account, and all other properties included in the Trust Fund that are not in the other Trust REMIC or the Grantor Trust, except for the Loss of Value Reserve Fund.

 

“Lower-Tier REMIC Distribution Account”: The segregated account, accounts or sub-accounts created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Lower-Tier REMIC Distribution Account”. Any such account, accounts or sub-accounts shall be an Eligible Account.

 

“LRR Uncertificated Interest”: An uncertificated regular interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the Original Lower-Tier Principal Amount and per annum rate of interest set forth in the Preliminary Statement hereto.

 

“LTV Ratio”: With respect to any Mortgage Loan, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the scheduled principal balance of such Mortgage Loan, as of such date (assuming no defaults or prepayments on such Mortgage Loan prior to that date), and the denominator of which is the Appraised Value of the related Mortgaged Property.

 

“MAI”: Member of the Appraisal Institute.

 

“Major Decision”: As defined in Section 6.08(a).

 

“Master Servicer”: With respect to (a) any Mortgage Loan (other than an NCB Mortgage Loan) and any related Serviced Companion Loan, any REO Property acquired by the Trust with respect to a Mortgage Loan (other than an NCB Mortgage Loan) and any matters relating to the foregoing, the General Master Servicer and (b) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to an NCB Mortgage Loan and any matters relating to the foregoing, the NCB Master Servicer.

 

“Master Servicer Decision”: As defined in Section 3.18(m).

 

 -79-

 

 

“Material Defect”: With respect to any Mortgage Loan, a Defect in any Mortgage File or a Breach, which Defect or Breach, as the case may be, materially and adversely affects the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or any Certificateholder therein or causes such Mortgage Loan to be other than a Qualified Mortgage.

 

“Maturity Date”: With respect to any Mortgage Loan, Whole Loan or Companion Loan, as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Note, after taking into account all Principal Prepayments received prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan, Whole Loan or Companion Loan by reason of default thereunder or (ii) any Grace Period permitted by the related Mortgage Note.

 

“Mediation Rules”: As defined in Section 2.03(m)(i).

 

“Mediation Services Provider”: As defined in Section 2.03(m)(i).

 

“Merger Notice”: As defined in Section 6.03(b).

 

“Modification Fees”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion Loan, any and all fees with respect to a modification, extension, waiver or amendment that modifies, extends, amends or waives any term of the Mortgage Loan documents and/or related Serviced Companion Loan documents (as evidenced by a signed writing) agreed to by the applicable Master Servicer or the applicable Special Servicer, as applicable (other than all assumption fees, assumption application fees, consent fees, defeasance fees, Special Servicing Fees, Liquidation Fees or Workout Fees).

 

“Moody’s”: Moody’s Investors Service, Inc., and its successors in interest. If neither Moody’s nor any successor remains in existence, “Moody’s” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer, and specific ratings of Moody’s herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Mortgage”: With respect to any Mortgage Loan or Companion Loan, the mortgage(s), deed(s) of trust or other instrument(s) securing the related Mortgage Note and creating a first mortgage lien on the fee and/or leasehold interest in the related Mortgaged Property.

 

“Mortgage File”: With respect to each Mortgage Loan or Companion Loan, if applicable, but subject to Section 2.01, collectively the following documents:

 

(i)      the original Mortgage Note, endorsed on its face or by allonge to the Mortgage Note (for the avoidance of doubt, a stamped Mortgage Note or allonge shall be considered an original), without recourse, to “Pay to the order of Wilmington Trust, National Association, as Trustee for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through

 

 -80-

 

 

Certificates, Series 2021-BNK37, without recourse, representation or warranty” or in blank and further showing a complete, unbroken chain of endorsement from the originator (or, if the original Mortgage Note has been lost, an affidavit to such effect from the applicable Mortgage Loan Seller or another prior holder, together with a copy of the Mortgage Note and an indemnity properly assigned and endorsed to the Trustee);

 

(ii)     the original or a copy of the Mortgage, together with an original or copy of any intervening Assignments of Mortgage, in each case with evidence of recording indicated thereon or certified to have been submitted for recording;

 

(iii)    an original Assignment of Mortgage in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment of Mortgage, a copy thereof certified to be the copy of such Assignment of Mortgage submitted, or to be submitted, for recording);

 

(iv)   the original or a copy of any related Assignment of Leases and of any intervening Assignments (if such item is a document separate from the Mortgage), with evidence of recording indicated thereon or certified to have been submitted for recording;

 

(v)    an original Assignment of any related Assignment of Leases (if such item is a document separate from the Mortgage) in blank or in favor of “Wilmington Trust, National Association, as trustee for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” (or in the case of any Serviced Whole Loan, in its capacity as “Lead Securitization Note Holder” or similar capacity under the related Intercreditor Agreement on behalf of the related Serviced Companion Noteholders) and (subject to the completion of certain missing recording information and, if applicable, the assignee’s name) in recordable form (or, if the related Mortgage Loan Seller is responsible for the recordation of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

(vi)   the original assignment of all unrecorded documents relating to the Mortgage Loan or a Serviced Whole Loan, if not already assigned pursuant to clause (iii) or clause (v) above;

 

(vii)  originals or copies of all modification, consolidation, assumption, written assurance and substitution agreements in those instances in which the

 

 -81-

 

 

terms or provisions of the Mortgage or Mortgage Note have been modified or the Mortgage Loan has been assumed or consolidated;

 

(viii) the original or a copy of the policy or certificate of lender’s title insurance (which may be in electronic form) issued in connection with the origination of such Mortgage Loan, or, if such policy has not been issued or located, an irrevocable, binding commitment (which may be a marked version of the policy that has been executed by an authorized representative of the title company or an agreement to provide the same pursuant to binding escrow instructions executed by an authorized representative of the title company) to issue such title insurance policy;

 

(ix)   any filed copies (bearing evidence of filing) or evidence of filing of any Uniform Commercial Code financing statements, related amendments and continuation statements in the possession of the applicable Mortgage Loan Seller;

 

(x)    an original Assignment in favor of the Trustee of any financing statement executed and filed in favor of the applicable Mortgage Loan Seller or an Affiliate thereof in the relevant jurisdiction (or, if the related Mortgage Loan Seller is responsible for the filing of that Assignment, a copy thereof certified to be the copy of such Assignment submitted or to be submitted for recording);

 

(xi)   the original or a copy of any intercreditor agreement relating to existing debt of the borrower, including any Intercreditor Agreement relating to a Serviced Whole Loan, if applicable;

 

(xii)  the original or copies of any loan agreement, escrow agreement, security agreement relating to such Mortgage Loan or Serviced Whole Loan, as well as the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which letter of credit shall either (A)(x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, name as beneficiary “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” or (y) in the case of the NCB Mortgage Loans, name as beneficiary “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” or (B) be accompanied by all documentation necessary in order to transfer all rights of the named beneficiary in such letter of credit to the applicable Master Servicer on behalf of the Trustee and to receive, after presentment by the applicable Master Servicer (in accordance with Section 3.01(f)) to the bank issuing such letter of credit, a reissued letter of credit in the name of the applicable Master Servicer on behalf of the Trustee;

 

 -82-

 

 

(xiii) the original or a copy of any ground lease, ground lessor estoppel, environmental insurance policy, environmental indemnity or guaranty relating to such Mortgage Loan or Serviced Whole Loan;

 

(xiv) other than with respect to the Mortgage Loans secured by residential cooperative properties, the original or a copy of any property management agreement relating to such Mortgage Loan or Serviced Whole Loan;

 

(xv)  the original or a copy of any franchise agreements and comfort letters or similar agreements relating to such Mortgage Loan or Serviced Whole Loan and, with respect to any franchise agreement, comfort letter or similar agreement, any assignment of such agreements or any notice to the franchisor of the transfer of such Mortgage Loan or Serviced Whole Loan and/or request for the issuance of a new comfort letter in favor of the Trustee, in each case as applicable;

 

(xvi) the original or a copy of any lock-box or cash management agreement relating to a Mortgage Loan or a Serviced Whole Loan;

 

(xvii) the original or a copy of any related mezzanine intercreditor agreement; and

 

(xviii)  the original or a copy of all related environmental insurance policies;

 

provided, however, that (a) whenever the term “Mortgage File” is used to refer to documents held by the Custodian, such term shall not be deemed to include such documents and instruments required to be included therein unless they are actually received by the Custodian, (b) if there exists with respect to any Crossed Mortgage Loan Group only one original or certified copy of any document referred to in the definition of “Mortgage File” covering all of the Mortgage Loans in such Crossed Mortgage Loan Group, then the inclusion of such original or certified copy in the Mortgage File for any of the Mortgage Loans constituting such Crossed Mortgage Loan Group shall be deemed the inclusion of such original or certified copy in the Mortgage File for each such Mortgage Loan, (c) to the extent that this Agreement refers to a “Mortgage File” for a Companion Loan, such “Mortgage File” shall be construed to mean the Mortgage File for the related Mortgage Loan (except that references to the Mortgage Note for a Companion Loan otherwise described above shall be construed to instead refer to a photocopy of such Mortgage Note), (d) with respect to any Mortgage Loan that has a Serviced Companion Loan, the execution and/or recordation of any Assignment in the name of the Trustee shall not be construed to limit the beneficial interest of the related Companion Holder(s) in such instrument and the benefits intended to be provided to them by such instrument, it being acknowledged that (I) the Trustee shall hold such record title for the benefit of the Trust as the holder of the related Mortgage Loan and the related Companion Holder(s) collectively and (II) any efforts undertaken by the Trustee, the applicable Master Servicer, or the applicable Special Servicer on its behalf to enforce or obtain the benefits of such instrument shall be construed to be so undertaken by the Trustee, the applicable Master Servicer or the applicable Special Servicer for the benefit of the Trust as the holder of the applicable Mortgage Loan and the related Companion Holder(s)

 

 -83-

 

 

collectively, (e) in connection with any Non-Serviced Mortgage Loan, the preceding document delivery requirements will be met by the delivery by the applicable Mortgage Loan Seller of copies of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan, with respect to which the original shall be required or the requirements of clause (i) of the definition of “Mortgage File” shall otherwise be satisfied) including a copy of the Mortgage securing the applicable Mortgage Loan and any assignments or other transfer documents referred to in clauses (iii), (v), (vi), (vii), (ix) and (x) above as being in favor of the Trustee shall instead be in favor of the applicable Non-Serviced Trustee and need only be in such form as was delivered to the applicable Non-Serviced Trustee or a custodian on its behalf, and (f) so long as the Custodian is also the related Non-Serviced Custodian, in connection with any Non-Serviced Mortgage Loan, any and all document delivery requirements with respect to the related Mortgage File (or any portion thereof) set forth herein or in the related Mortgage Loan Purchase Agreement will be satisfied by the delivery, in compliance with the terms of the related Non-Serviced PSA, by the applicable Mortgage Loan Seller of the documents specified above (other than the Mortgage Note and intervening endorsements evidencing such Mortgage Loan or shall otherwise satisfy the requirements of clause (i) of the definition of “Mortgage File”) to the custodian under the related Non-Serviced PSA (in such form as was delivered to the custodian under the related Non-Serviced PSA); provided that (a) the Custodian shall perform its duties under this Agreement (including, without limitation, Article II), and be liable to the other parties hereto, with respect to such Non-Serviced Mortgage Loan as if such documents were required to be delivered and included in the Mortgage File and as if such Non-Serviced Custodian’s receipt of the documents contained in the related “mortgage file” delivered under the related Non-Serviced PSA constituted delivery of those same documents to the Custodian under this Agreement, (b) the Custodian shall not resign as the related Non-Serviced Custodian without giving at least thirty (30) days’ advance written notice of resignation to each other party hereto, and (c) if for any reason the Custodian shall resign as Custodian hereunder or resign as the related Non-Serviced Custodian or shall otherwise no longer act as Custodian hereunder or as the related Non-Serviced Custodian or shall otherwise be required to surrender possession of the related “mortgage file” delivered under the related Non-Serviced PSA (including by reason of the Non-Serviced Companion Loan being removed from the related securitization trust), the Custodian shall include the documents contemplated by clauses (ii) through (xviii) above in the Mortgage File for such Non-Serviced Whole Loan (to the extent such documents were delivered in connection with the related Other Securitization) that shall be maintained by it or any successor custodian hereunder.

 

Notwithstanding anything to the contrary contained herein, with respect to a Joint Mortgage Loan, delivery of the Mortgage File (other than with respect to the original Mortgage Note and the other documents referenced in clause (i) of the definition of “Mortgage File” held by or from the related Mortgage Loan Seller) by either of the applicable Mortgage Loan Sellers shall satisfy the delivery requirements for both of the applicable Mortgage Loan Sellers.

 

“Mortgage Loan”: Each of the mortgage loans (which, for the avoidance of doubt, includes each Crossed Mortgage Loan Group, each of which, for the purposes of this Agreement, shall be treated as one Mortgage Loan, provided that each individual Crossed Underlying Loan within any such Crossed Mortgage Loan Group shall not be included in this definition of Mortgage Loan) transferred and assigned to the Trustee pursuant to Section 2.01 and to be held by the Trust. As used herein, the term “Mortgage Loan” includes the related

 

 -84-

 

 

Mortgage Note, Mortgage and other documents contained in the related Mortgage File and any related agreements. The term “Mortgage Loan” shall, as of any date of determination, include any Qualified Substitute Mortgage Loan that has replaced a Mortgage Loan pursuant to Section 2.03 and exclude any such replaced Mortgage Loan. 

 

“Mortgage Loan Checklist”: A list related to each Mortgage Loan indicating the related Mortgage Loan documents included in the related Mortgage File as of the Closing Date.

 

“Mortgage Loan Purchase Agreement”: Each agreement between the Depositor and each Mortgage Loan Seller, relating to the transfer of all of such Mortgage Loan Seller’s right, title and interest in and to the related Mortgage Loans.

 

“Mortgage Loan Schedule”: The list of Mortgage Loans transferred on the Closing Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B, as any such schedule may be amended from time to time in connection with a substitution under Section 2.03 and in accordance with the relevant Mortgage Loan Purchase Agreement, and which list sets forth the following information with respect to each Mortgage Loan so transferred:

 

(i)      the loan identification number (as specified in Annex A-1 to the Prospectus);

 

(ii)     the name of the related Mortgage Loan Seller;

 

(iii)    the original principal balance;

 

(iv)   the Cut-off Date Balance;

 

(v)    the street address (including city, state and ZIP code) and name of the related Mortgaged Property;

 

(vi)   the date of the related Mortgage Note;

 

(vii)  the Maturity Date or Anticipated Repayment Date;

 

(viii) the Mortgage Rate in effect at origination;

 

(ix)   the (a) original term to stated maturity or Anticipated Repayment Date and (b) remaining term to stated maturity or Anticipated Repayment Date;

 

(x)    the original amortization term;

 

(xi)   whether the Mortgage Loan is a ARD Loan;

 

(xii)  the Servicing Fee Rate; and

 

(xiii) the applicable Non-Serviced Primary Servicing Fee Rate (if any).

 

“Mortgage Loan Seller”: Each of (i) Wells Fargo Bank, National Association, a national banking association, or its successor in interest, (ii) Bank of America, National

 

 -85-

 

 

Association, a national banking association, or its successor in interest, (iii) Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company, or its successor in interest, and (iv) National Cooperative Bank, N.A., a national banking association, or its successor in interest.

 

“Mortgage Loan Seller Percentage Interest”: With respect to a Joint Mortgage Loan and each applicable Mortgage Loan Seller with respect thereto, a fraction, expressed as a percentage, the numerator of which is equal to the aggregate Cut-off Date principal balance of the promissory notes contributed by such Mortgage Loan Seller to this securitization, and the denominator of which is equal to the Cut-off Date principal balance of such Joint Mortgage Loan.

 

“Mortgage Note”: The original executed promissory note(s) evidencing the indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, as the case may be, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement thereof.

 

“Mortgage Rate”: With respect to: (i) any Mortgage Loan (including the Non-Serviced Mortgage Loans) or related Companion Loan on or prior to its Maturity Date, the annual rate at which interest is scheduled (in the absence of a default) to accrue on such Mortgage Loan or related Companion Loan from time to time in accordance with the related Mortgage Note and applicable law without giving effect to any default rate or Revised Rate; or (ii) any Mortgage Loan or related Companion Loan after its Maturity Date, the annual rate described in clause (i) above determined without regard to the passage of such Maturity Date. For the avoidance of doubt, the Mortgage Rate of any ARD Loan shall not be construed to include the related Excess Rate.

 

“Mortgaged Property”: The real property subject to the lien of a Mortgage.

 

“Mortgagor”: The obligor or obligors on a Mortgage Note, including without limitation, any Person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

 

“MSC 2021-PLZA TSA”: The trust and servicing agreement, dated and effective as of November 1, 2021, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as servicer and special servicer, Wilmington Trust, National Association, as trustee, and Wells Fargo Bank, National Association, as certificate administrator and custodian, as from time to time amended, supplemented or modified

 

“NCB”: National Cooperative Bank, N.A., a national banking association, or its successor in interest.

 

“NCB CREFC® Schedule AL File”: Any CREFC^® Schedule AL File prepared by the NCB Master Servicer with respect to the NCB Mortgage Loans.

 

 -86-

 

 

“NCB Master Servicer”: NCB, and its successors in interest and assigns, or any successor thereto (as NCB Master Servicer) appointed as provided herein.

 

“NCB Co-op Mortgage Loan”: Any NCB Mortgage Loan.

 

“NCB CREFC^® Schedule AL File”: Any CREFC^® Schedule AL File prepared by NCB with respect to the NCB Mortgage Loans.

 

“NCB Mortgage Loans”: Those Mortgage Loans sold to the Depositor pursuant to the related Mortgage Loan Purchase Agreement by National Cooperative Bank, N.A. and indicated as an NCB Mortgage Loan on the Mortgage Loan Schedule.

 

“NCB Schedule AL Additional File”: Any Schedule AL Additional File prepared by the NCB Master Servicer with respect to the NCB Mortgage Loans.

 

“NCB Special Servicer”: NCB, and its successors in interest and assigns, or any successor special servicer appointed as provided herein (including with respect to any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require) (as NCB Special Servicer).

 

“NCB Subordinate Debt Conditions”: With respect to an NCB Co-op Mortgage Loan and any encumbrance of the related Mortgaged Property with a subordinate mortgage, the following conditions: (i) each of the subordinate mortgage loans, or the sole subordinate mortgage loan, to be secured by such subordinate mortgage is made by NCB or any Affiliate thereof, (ii) such subordinate mortgage is expressly made in compliance with the underwriting standards which NCB customarily employs in connection with making subordinate mortgages for its own mortgage loan portfolio, (iii) the aggregate outstanding principal balance of the NCB Co-op Mortgage Loan, any other existing loans secured by a mortgage then encumbering the related Mortgaged Property and the proposed new subordinate mortgage loan shall not exceed 40% of the Appraised Value of the related Mortgaged Property, (iv) NCB or any Affiliate thereof that originates the subordinate mortgage loan, executes and delivers to the Trustee for inclusion in the Mortgage File an intercreditor agreement and subordination agreement with respect to such subordinate mortgage in substantially the form of Exhibit TT hereto or in such other form as shall be acceptable to the NCB Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (other than with respect to an Excluded Loan as to such party) (provided that the Trustee shall have no responsibility for determining the sufficiency or validity thereof), (v) if the subordinate mortgage loan will not be a fully amortizing loan, the stated maturity date of the subordinate mortgage loan shall be no earlier than the maturity date of the related NCB Co-op Mortgage Loan, (vi) the subordinate mortgage loan is made principally for the purpose of funding capital expenditures, major repairs or reserves at or with respect to the Mortgaged Property in question, (vii) NCB or any Affiliate thereof that originates the subordinate mortgage loan receives borrower legal opinions as to authority and enforceability customarily required of borrowers in connection with the origination of similar mortgage loans; and (viii) the aggregate amount of subordinate debt encumbering the Mortgaged Property in question (including the proposed new subordinate mortgage debt and any

 

 -87-

 

 

other existing loans secured by a mortgage then encumbering the related Mortgaged Property, but excluding the Mortgage Loan in question) does not exceed $7,500,000.

 

“Net Investment Earnings”: With respect to the Collection Accounts, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount, if any, by which the aggregate of all interest and other income realized during such period on funds relating to the Trust held in such account, exceeds the aggregate of all losses, if any, incurred during such period in connection with the investment of such funds in accordance with Section 3.06.

 

“Net Investment Loss”: With respect to the Collection Accounts, the Servicing Accounts or the REO Accounts or the Companion Distribution Account for any period from any Distribution Date to the immediately succeeding P&I Advance Date, the amount by which the aggregate of all losses, if any, incurred during such period in connection with the investment of funds relating to the Trust held in such account in accordance with Section 3.06, exceeds the aggregate of all interest and other income realized during such period on such funds.

 

“Net Mortgage Rate”: With respect to each Mortgage Loan (including a Non-Serviced Mortgage Loan) and any REO Loan (other than the portion of an REO Loan related to any Companion Loan) as of any date of determination, a rate per annum equal to the related Mortgage Rate then in effect (without regard to any increase in the interest rate of any ARD Loan after its respective Anticipated Repayment Date), minus the related Administrative Cost Rate; provided, however, that for purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any Mortgage Loan will be determined without regard to any modification, waiver or amendment of the terms of the related Mortgage Loan, whether agreed to by the applicable Master Servicer, the applicable Special Servicer, a related Non-Serviced Master Servicer or a related Non-Serviced Special Servicer or resulting from a bankruptcy, insolvency or similar proceeding involving the related Mortgagor; provided, further, that for any Mortgage Loan that does not accrue interest on the basis of a 360-day year consisting of twelve 30-day months, then, solely for purposes of calculating Pass-Through Rates and the Weighted Average Net Mortgage Rate, the Net Mortgage Rate of such Mortgage Loan or for any one-month period preceding a related Due Date will be the annualized rate at which interest would have to accrue in respect of such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months in order to produce the aggregate amount of interest actually accrued in respect of such Mortgage Loan during such one-month period at the related Net Mortgage Rate; provided, further, that, with respect to each Actual/360 Mortgage Loan, the Net Mortgage Rate for the one-month period (A) preceding the Due Dates that occur in January and February in any year which is not a leap year or preceding the Due Date that occurs in February in any year which is a leap year (in either case, unless the related Distribution Date is the final Distribution Date), will be determined exclusive of any Withheld Amounts, and (B) preceding the Due Date in March (or February, if the related Distribution Date is the final Distribution Date), will be determined inclusive of the amounts withheld in the immediately preceding January and February, if applicable. With respect to any REO Loan, the Net Mortgage Rate shall be calculated as described above, determined as if the predecessor Mortgage Loan had remained outstanding.

 

 -88-

 

 

“Net Operating Income”: With respect to any Mortgaged Property, for any Mortgagor’s fiscal year end, Net Operating Income will be calculated in accordance with the standard definition of “Net Operating Income” approved from time to time endorsed and put forth by the CREFC^®.

 

“New Lease”: Any lease of REO Property entered into at the direction of the applicable Special Servicer on behalf of the Trust, including any lease renewed, modified or extended on behalf of the Trust, if the Trust has the right to renegotiate the terms of such lease.

 

“Nonrecoverable Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. For the avoidance of doubt, Workout-Delayed Reimbursement Amounts shall constitute Nonrecoverable Advances only when the Person making such determination in accordance with the procedures specified herein, and taking into account factors such as all other outstanding Advances, either (a) has determined that such Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from Late Collections, Default Interest, Insurance and Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in respect of such Mortgage Loan or the related REO Property (without giving effect to potential recoveries on deficiency judgments or recoveries from guarantors), or (b) has determined that such Workout-Delayed Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts (that have not been reimbursed to the party that made such Advance) or unreimbursed Nonrecoverable Advances, would not be ultimately recoverable from the principal portion of future general collections on the Mortgage Loans and REO Properties.

 

“Nonrecoverable P&I Advance”: Any P&I Advance previously made or proposed to be made in respect of a Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan), which the Trustee determines in its good faith business judgment or the applicable Master Servicer or the applicable Special Servicer determines in accordance with the Servicing Standard will not be ultimately recoverable, together with any accrued and unpaid interest thereon at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan or REO Loan; provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any P&I Advance previously made or proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer, and with respect to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer and Non-Serviced Special Servicer), the Certificate Administrator, the Trustee, the Operating Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be conclusive and binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a P&I Advance would be a Nonrecoverable Advance), provided, however, that such Special Servicer shall have no such obligation to make an affirmative determination that any P&I Advance is or would be recoverable and in the absence of a determination by such

 

 -89-

 

 

Special Servicer that such P&I Advance is or would be a Nonrecoverable P&I Advance, such decision shall remain with the applicable Master Servicer or Trustee, as applicable. If a Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the applicable Master Servicer and the Trustee shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance. With respect to any Non-Serviced Whole Loan, if any Non-Serviced Master Servicer, Non-Serviced Trustee or Non-Serviced Special Servicer, as applicable, in connection with a securitization of the related Non-Serviced Companion Loan determines that a principal and interest advance with respect to the related Non-Serviced Companion Loan, if made, would be nonrecoverable, such determination shall not be binding on the applicable Master Servicer and the Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Mortgage Loan. Similarly, with respect to the related Non-Serviced Mortgage Loan, if the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, determines that any P&I Advance with respect to a related Non-Serviced Mortgage Loan, if made, would be a Nonrecoverable P&I Advance, such determination shall not be binding on the related Non-Serviced Master Servicer, Non-Serviced Special Servicer and related Non-Serviced Trustee as it relates to any proposed P&I Advance with respect to the related Non-Serviced Companion Loan (unless the related Non-Serviced PSA provides otherwise). In making such recoverability determination, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer and the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the P&I Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or

 

 -90-

 

 

delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any P&I Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but, in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and, in the case of the Serviced Mortgage Loan, any Other Servicer). The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to the residential cooperative properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal of the related Mortgage Loan or the related Mortgaged Property). The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable, and each Master Servicer and the Trustee shall be entitled to conclusively rely on and shall be bound by the applicable Special Servicer’s determination that a P&I Advance is or would be nonrecoverable.

 

“Nonrecoverable Servicing Advance”: Any Servicing Advance previously made or proposed to be made in respect of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Whole Loan or REO Property which the Trustee determines in its good faith business judgement or the applicable Master Servicer or the applicable Special Servicer determines in accordance with the Servicing Standard will not be ultimately recoverable, together with any accrued and unpaid interest thereon, at the Reimbursement Rate, from Late Collections or any other recovery on or in respect of such Mortgage Loan, Serviced Whole Loan or REO Property. In making such recoverability determination, such Person will be entitled (a) to consider (among other things) (i) the obligations of the Mortgagor under the terms of the related Mortgage Loan or Companion Loan, as applicable, as it may have been modified and (ii) the related Mortgaged Properties in their “as-is” or then-current conditions and occupancies, as modified by such party’s assumptions (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business

 

 -91-

 

 

judgment in the case of the Trustee, solely in its capacity as Trustee) regarding the possibility and effects of future adverse changes with respect to such Mortgaged Properties, (b) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) future expenses, (c) to estimate and consider (consistent with the Servicing Standard in the case of the applicable Master Servicer or the applicable Special Servicer or in its good faith business judgment in the case of the Trustee, solely in its capacity as Trustee) (among other things) the timing of recoveries and (d) to give due regard to the existence of any Nonrecoverable Advances which, at the time of such consideration, the recovery of which are being deferred or delayed by the applicable Master Servicer or the Trustee because there is insufficient principal available for such recovery, in light of the fact that related proceeds are a source of recovery not only for the Advance under consideration but also a potential source of recovery for such delayed or deferred Advance. In addition, any Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing Advance, will be entitled to give due regard to the existence of any Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to other Mortgage Loans, the reimbursement of which, at the time of such consideration, is being deferred or delayed by a Master Servicer, in light of the fact that proceeds on the related Mortgage Loan are a source of recovery not only for the Servicing Advance under consideration, but also as a potential source of recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are or may be being deferred or delayed. In addition, any such Person may update or change its recoverability determinations at any time (but not reverse any other Person’s determination that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing Standard, in the case of the applicable Master Servicer or in its good faith business judgment in the case of the Trustee (solely in its capacity as Trustee), may obtain at the expense of the Trust any reasonably required analysis, Appraisals or market value estimates or other information for making a recoverability determination. Absent bad faith, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s determination as to the recoverability of any Servicing Advance shall be conclusive and binding on the Certificateholders. The determination by the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, that a Nonrecoverable Servicing Advance has been made or that any proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any updated or changed recoverability determination, shall be evidenced by an Officer’s Certificate delivered by either the applicable Special Servicer or the applicable Master Servicer to the other and to the Trustee, the Certificate Administrator, the Directing Certificateholder (but, in the case of the Directing Certificateholder, only prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Mortgage Loan other than an Excluded Loan as to such party) (and in the case of a Serviced Mortgage Loan, any Other Servicer), the Operating Advisor (but only in the case of a Special Servicer) and the Depositor, or by the Trustee to the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator (and in the case of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the applicable Special Servicer may, at its option, make a determination in accordance with the Servicing Standard, that any Servicing Advance previously made or proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to the applicable Master Servicer (and with respect to a Serviced Mortgage Loan, to any Other Servicer), the Certificate Administrator, the Trustee, the Operating

 

 -92-

 

 

Advisor and the 17g-5 Information Provider notice of such determination. Any such determination (other than by the applicable Special Servicer) shall not be binding upon (but may be conclusively relied upon by) the applicable Master Servicer and the Trustee, and any such determination by the applicable Special Servicer shall be binding upon the applicable Master Servicer and the Trustee (but this statement shall not be construed to entitle the applicable Special Servicer to reverse the determination of the applicable Master Servicer or the Trustee or to prohibit the applicable Master Servicer or the Trustee from making a determination that a Servicing Advance would be a Nonrecoverable Advance), provided, however, that the applicable Special Servicer shall have no such obligation to make an affirmative determination that any Servicing Advance is or would be recoverable and in the absence of a determination by the applicable Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance, such decision shall remain with the applicable Master Servicer or the Trustee, as applicable. If the applicable Special Servicer makes a determination that only a portion, and not all, of any previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance, the applicable Master Servicer and the Trustee shall each have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The Officer’s Certificate shall set forth such determination of nonrecoverability and the considerations of the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, forming the basis of such determination (which shall be accompanied by, to the extent available, related income and expense statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules), occupancy status, property inspections and any other information used by such Master Servicer, such Special Servicer or the Trustee, as applicable, to make such determination and shall include any existing Appraisal with respect to the related Mortgage Loan, Serviced Companion Loan or related Mortgaged Property). The applicable Special Servicer shall promptly furnish any party required to make Servicing Advances hereunder with any information in its possession regarding the Specially Serviced Loans and REO Properties as such party required to make Servicing Advances may reasonably request for purposes of making recoverability determinations. The Trustee shall be entitled to conclusively rely on the applicable Master Servicer’s or the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable, and the applicable Master Servicer shall be entitled to conclusively rely on the applicable Special Servicer’s determination that a Servicing Advance is or would be nonrecoverable. Notwithstanding anything herein to the contrary, if the applicable Special Servicer requests that the applicable Master Servicer make a Servicing Advance, such Master Servicer may conclusively rely on such request as evidence that such advance is not a Nonrecoverable Servicing Advance; provided, however, that such Special Servicer shall not be entitled to make such a request more frequently than once per calendar month with respect to Servicing Advances other than emergency advances (although such request may relate to more than one Servicing Advance). In the case of a cross-collateralized Mortgage Loan (if any), such recoverability determination shall take into account the cross-collateralization of the related cross-collateralized Mortgage Loan. The determination as to the recoverability of any servicing advance or property protection advance previously made or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced Trustee, as the case may be, pursuant to the related Non-Serviced PSA.

 

“Non-Book Entry Certificates”: As defined in Section 5.02(c).

 

 -93-

 

 

“Non-Registered Certificate”: Unless and until registered under the Securities Act, any Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G, Class H or Class R Certificate or the RR Interest.

 

“Non-Retained Percentage”: An amount expressed as a percentage equal to 100% less the Required Credit Risk Retention Percentage. For the avoidance of doubt, at all times, the sum of the Required Credit Risk Retention Percentage and the Non-Retained Percentage shall equal 100%.

 

“Non-Serviced Certificate Administrator”: The “Certificate Administrator” under a Non-Serviced PSA.

 

“Non-Serviced Companion Loan”: Each of (i) the Pari Passu Companion Loans and Subordinate Companion Loans, if any, identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Pari Passu Companion Loans and Subordinate Companion Loan, if any, identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Non-Serviced Custodian”: The “Custodian” under a Non-Serviced PSA.

 

“Non-Serviced Depositor”: The “Depositor” under a Non-Serviced PSA.

 

“Non-Serviced Gain-on-Sale Proceeds”: Any “gain-on-sale proceeds” received in respect of a Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA.

 

“Non-Serviced Indemnified Parties”: As defined in Section 6.04(i).

 

“Non-Serviced Intercreditor Agreement”: Each of the (i) One North Wacker Intercreditor Agreement, (ii) the One SoHo Square Intercreditor Agreement, (iii) the Park Avenue Plaza Intercreditor Agreement and (iv) the Arizona Mills Intercreditor Agreement.

 

“Non-Serviced Master Servicer”: The “Master Servicer” or “Servicer” under a Non-Serviced PSA.

 

“Non-Serviced Mortgage Loan”: Each of (i) the Mortgage Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Mortgage Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Non-Serviced Mortgaged Property”: With respect to each Non-Serviced Mortgage Loan, Non-Serviced Companion Loan and Non-Serviced Whole Loan, the related Mortgaged Property that secures such Non-Serviced Mortgage Loan, Non-Serviced Companion Loan and Non-Serviced Whole Loan.

 

“Non-Serviced Operating Advisor”: The “Operating Advisor” (if any) under a Non-Serviced PSA.

 

 -94-

 

 

 “Non-Serviced Pari Passu Companion Loan”: Each of (i) the Pari Passu Companion Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Pari Passu Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Non-Serviced Paying Agent”: The “Paying Agent” under a Non-Serviced PSA.

 

“Non-Serviced Primary Servicing Fee Rate”: With respect to (i) the One North Wacker Mortgage Loan and the Arizona Mills Mortgage Loan, 0.00250% per annum, (ii) the One SoHo Square Mortgage Loan, 0.00625% per annum, and (iii) the Park Avenue Plaza Mortgage Loan, 0.00750% per annum.

 

“Non-Serviced PSA”: With respect to the One North Wacker Whole Loan and the Arizona Mills Whole Loan, the BANK 2021-BNK36 PSA; with respect to the One SoHo Square Whole Loan, the SOHO 2021-SOHO TSA; and with respect to the Park Avenue Plaza Whole Loan, the MSC 2021-PLZA TSA.

 

“Non-Serviced Special Servicer”: The applicable “Special Servicer” of a Non-Serviced Whole Loan under a Non-Serviced PSA.

 

“Non-Serviced Trust”: The “Trust” formed under a Non-Serviced PSA.

 

“Non-Serviced Trustee”: The “Trustee” under a Non-Serviced PSA.

 

“Non-Serviced Whole Loan”: Each of (i) the Whole Loans identified as “Non-Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) on and after the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Non-Serviced Whole Loan Controlling Holder”: The “directing holder” or similarly defined party under a Non-Serviced PSA.

 

“Non-Specially Serviced Loan”: Any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Companion Loan that is not a Specially Serviced Loan.

 

“Non-U.S. Beneficial Ownership Certification”: As defined in Section 5.03(f).

 

“Non-U.S. Tax Person”: Any person other than a U.S. Tax Person.

 

“Notional Amount”: With respect to each of the following Classes of Certificates or Upper-Tier Regular Interests, the amount set forth next to it in the table below:

 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest		Notional Amount
Class A-4-X1 Certificates		Class A-4-X1 Notional Amount
Class A-4-X2 Certificates		Class A-4-X2 Notional Amount

 

 

 -95-

 

 

Class A-4-X1 Upper-Tier Regular Interest		Class A-4-X1 UT Notional Amount
Class A-4-X2 Upper-Tier Regular Interest		Class A-4-X2 UT Notional Amount
Class A-5-X1 Certificates		Class A-5-X1 Notional Amount
Class A-5-X2 Certificates		Class A-5-X2 Notional Amount
Class A-5-X1 Upper-Tier Regular Interest		Class A-5-X1 UT Notional Amount
Class A-5-X2 Upper-Tier Regular Interest		Class A-5-X2 UT Notional Amount
Class X-A Certificates		Class X-A Notional Amount
Class X-B Certificates		Class X-B Notional Amount
Class X-D Certificates		Class X-D Notional Amount
Class X-F Certificates		Class X-F Notional Amount
Class X-G Certificates		Class X-G Notional Amount
Class X-H Certificates		Class X-H Notional Amount
Class A-S-X1 Certificates		Class A-S-X1 Notional Amount
Class A-S-X2 Certificates		Class A-S-X2 Notional Amount
Class A-S-X1 Upper-Tier Regular Interest		Class A-S-X1 UT Notional Amount
Class A-S-X2 Upper-Tier Regular Interest		Class A-S-X2 UT Notional Amount
Class B-X1 Certificates		Class B-X1 Notional Amount
Class B-X2 Certificates		Class B-X2 Notional Amount
Class B-X1 Upper-Tier Regular Interest		Class B-X1 UT Notional Amount
Class B-X2 Upper-Tier Regular Interest		Class B-X2 UT Notional Amount
Class C-X1 Certificates		Class C-X1 Notional Amount
Class C-X2 Certificates		Class C-X2 Notional Amount
Class C-X1 Upper-Tier Regular Interest		Class C-X1 UT Notional Amount
Class C-X2 Upper-Tier Regular Interest		Class C-X2 UT Notional Amount

 

“NRSRO”: Any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act, including the Rating Agencies.

 

“NRSRO Certification”: A certification (a) substantially in the form of Exhibit P-2 executed by a NRSRO or (b) provided electronically and executed by such NRSRO by means of a “click-through” confirmation on the 17g-5 Information Provider’s Website, in either case in favor of the 17g-5 Information Provider that states that such NRSRO is a Rating Agency under this Agreement or that such NRSRO has provided the Depositor with the appropriate certifications pursuant to paragraph (e) of Rule 17g-5 of the Exchange Act, that such NRSRO has access to the Depositor’s 17g-5 website and that such NRSRO will keep such information confidential, except to the extent such information has been made available to the general public. Each NRSRO shall be deemed to recertify to the foregoing each time it accesses the Certificate Administrator’s Website.

 

“OCC”: Office of the Comptroller of the Currency or any successor thereto.

 

“Officer’s Certificate”: A certificate signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer or any Additional Servicer, as the case may be, or a Responsible Officer of the Trustee or Certificate Administrator, as the case may be.

 

 -96-

 

 

“Offshore Transaction”: Any “offshore transaction” as defined in Rule 902(h) of Regulation S.

 

“One North Wacker Intercreditor Agreement”: The Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the One North Wacker Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“One North Wacker Mortgage Loan”: With respect to the One North Wacker Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-3, A-4 and A-6.

 

“One North Wacker Mortgaged Property”: The Mortgaged Property that secures the One North Wacker Whole Loan.

 

“One North Wacker Pari Passu Companion Loan”: With respect to the One North Wacker Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the One North Wacker Mortgaged Property.

 

“One North Wacker Whole Loan”: The One North Wacker Mortgage Loan together with the One North Wacker Pari Passu Companion Loans, each of which is secured by the same Mortgage on the One North Wacker Mortgaged Property. References herein to the One North Wacker Whole Loan shall be construed to refer to the aggregate indebtedness under the One North Wacker Mortgage Loan and the One North Wacker Pari Passu Companion Loans.

 

“One SoHo Square Intercreditor Agreement”: The Co-Lender Agreement, dated as of July 30, 2021, by and between the holders of the respective promissory notes evidencing the One SoHo Square Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“One SoHo Square Mortgage Loan”: With respect to the One SoHo Square Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 4 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1-C-2.

 

“One SoHo Square Mortgaged Property”: The Mortgaged Property that secures the One SoHo Square Whole Loan.

 

“One SoHo Square Pari Passu Companion Loan”: With respect to the One SoHo Square Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the One SoHo Square Mortgaged Property.

 

“One SoHo Square Subordinate Companion Loan”: With respect to the One SoHo Square Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Subordinate Companion Loan(s)” in the table under the heading “Whole

 

 -97-

 

 

Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the One SoHo Square Mortgaged Property.

 

“One SoHo Square Whole Loan”: The One SoHo Square Mortgage Loan together with the One SoHo Square Pari Passu Companion Loans, each of which is secured by the same Mortgage on the One SoHo Square Mortgaged Property. References herein to the One SoHo Square Whole Loan shall be construed to refer to the aggregate indebtedness under the One SoHo Square Mortgage Loan, the One SoHo Square Pari Passu Companion Loans and the One SoHo Square Subordinate Companion Loans.

 

“Operating Advisor”: Park Bridge Lender Services LLC, a New York limited liability company, and its successors in interest and assigns, or any successor operating advisor appointed as herein provided.

 

“Operating Advisor Annual Report”: As defined in Section 3.26(c).

 

“Operating Advisor Consulting Fee”: A fee for each Major Decision on which the Operating Advisor has consulting obligations and performed its duties with respect to such Major Decision equal to $10,000 (or such lesser amount as the related Mortgagor pays) with respect to any Mortgage Loan (other than the Non-Serviced Mortgage Loans, Servicing Shift Mortgage Loans and each related Companion Loan), payable pursuant to Section 3.05 of this Agreement; provided, however, that no such fee shall be payable unless specifically paid by the related Mortgagor as a separately identifiable fee; provided, further, that the Operating Advisor may in its sole discretion reduce the Operating Advisor Consulting Fee with respect to any Major Decision; provided, further, however, that to the extent such fee is incurred after the outstanding Certificate Balances of the Control Eligible Certificates and the corresponding portion of the RR Interest have been reduced to zero as a result of the allocation of Realized Losses to such Certificates, such fee shall be payable in full to the Operating Advisor as an expense of the Trust; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as applicable, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard (provided that the applicable Master Servicer or the applicable Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction).

 

“Operating Advisor Expenses”: With respect to any Distribution Date, an amount equal to any unreimbursed indemnification amounts or additional trust fund expenses payable to the Operating Advisor pursuant to this Agreement (other than the Operating Advisor Fee and the Operating Advisor Consulting Fee).

 

“Operating Advisor Fee”: With respect to each Mortgage Loan and REO Loan (including each Non-Serviced Mortgage Loan and Servicing Shift Mortgage Loan, but not any Companion Loan), the fee payable to the Operating Advisor pursuant to Section 3.26(i).

 

“Operating Advisor Fee Rate”: With respect to each Interest Accrual Period related to any applicable Distribution Date, a per annum rate of 0.00094%.

 

 -98-

 

 

“Operating Advisor Standard”: The requirement that the Operating Advisor must act solely on behalf of the Trust and in the best interest of, and for the benefit of, the Certificateholders and, with respect to any Serviced Whole Loan for the benefit of the holders of the related Companion Loan (as a collective whole as if such Certificateholders and Companion Holders constituted a single lender), and not to holders of any particular Class of Certificate (as determined by the Operating Advisor in the exercise of its good faith and reasonable judgment), but without regard to any conflict of interest arising from any relationship that the Operating Advisor or any of its Affiliates may have with any of the underlying Mortgagors, any Sponsor, any Mortgage Loan Seller, the Depositor, each Master Servicer, each Special Servicer, the Asset Representations Reviewer, the Directing Certificateholder, any Certificateholder, the Risk Retention Consultation Party or any of their Affiliates.

 

“Operating Advisor Termination Event”: Any of the following events, whether any such event is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(a)       any failure by the Operating Advisor to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement or to the Operating Advisor, the Certificate Administrator and the Trustee by the Holders of Certificates (other than the RR Interest) evidencing greater than 25% of the aggregate Voting Rights, provided that any such failure which is not curable within such thirty (30) day period, the Operating Advisor will have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty (30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(b)       any failure by the Operating Advisor to perform in accordance with the Operating Advisor Standard which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

 

(c)       any failure by the Operating Advisor to be an Eligible Operating Advisor, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, is given to the Operating Advisor by any party to this Agreement;

 

(d)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, shall

 

 -99-

 

 

have been entered against the operating advisor, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(e)       the Operating Advisor consents to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the operating advisor or of or relating to all or substantially all of its property; or

 

(f)        the Operating Advisor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors, or voluntarily suspends payment of its obligations.

 

“Operating Advisor Upfront Fee”: As defined in Section 3.26(i).

 

“Opinion of Counsel”: A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, acceptable in form and delivered to the Trustee and the Certificate Administrator, except that any opinion of counsel relating to (a) the qualification of any Trust REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c) the qualification of the Grantor Trust as a grantor trust, or (d) the resignation of either Master Servicer, either Special Servicer or the Depositor pursuant to Section 6.05, must be an opinion of counsel who is in fact Independent of the Depositor, such Master Servicer, such Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

 

“Original Certificate Balance”: As defined in the Preliminary Statement.

 

“Original Lower-Tier Principal Amount”: With respect to any Class of Lower-Tier Regular Interest, the initial principal amount thereof as of the Closing Date, in each case as specified in the Preliminary Statement.

 

“Original Notional Amount”: As defined in the Preliminary Statement.

 

“Other Asset Representations Reviewer”: Any asset representations reviewer under an Other Pooling and Servicing Agreement.

 

“Other Certificate Administrator”: Any certificate administrator under an Other Pooling and Servicing Agreement.

 

“Other Depositor”: Any depositor under an Other Pooling and Servicing Agreement.

 

“Other Exchange Act Reporting Party”: With respect to any Other Securitization Trust that is subject to the reporting requirements of the Exchange Act, the Other Servicer, Other Trustee, Other Certificate Administrator or Other Depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or filing of Form 8-K, Form 10-D, Form ABS-EE and Form 10-K with respect to such Other Securitization Trust, as

 

 -100-

 

 

identified in writing to the parties to this Agreement; and, with respect to any Other Securitization Trust that is not subject to the reporting requirements of the Exchange Act, the trustee, certificate administrator, master servicer, special servicer or depositor under the related Other Pooling and Servicing Agreement that is responsible for the preparation and/or dissemination of periodic distribution date statements or similar reports, as identified in writing to the parties to this Agreement.

 

“Other Pooling and Servicing Agreement”: Any trust and servicing agreement or pooling and servicing agreement that creates a trust whose assets include any Serviced Companion Loan.

 

“Other Securitization”: As defined in Section 11.06.

 

“Other Servicer”: Any master servicer or special servicer, as applicable, under an Other Pooling and Servicing Agreement.

 

“Other Trustee”: Any trustee under an Other Pooling and Servicing Agreement.

 

“Ownership Interest”: As to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

 

“P&I Advance”: As to any Mortgage Loan or REO Loan (but not any related Companion Loan), any advance made by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section 7.05.

 

“P&I Advance Date”: The Business Day immediately prior to each Distribution Date.

 

“P&I Advance Determination Date”: With respect to any Distribution Date, the close of business on the related Determination Date.

 

“Pari Passu Companion Loan”: A Companion Loan that is pari passu in right of payment to the related Mortgage Loan.

 

“Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan.

 

“Park Avenue Plaza Intercreditor Agreement”: The Agreement Between Note Holders, dated as of November 17, 2021, by and between the holders of the respective promissory notes evidencing the Park Avenue Plaza Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“Park Avenue Plaza Mortgage Loan”: With respect to the Park Avenue Plaza Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 5 on the Mortgage Loan Schedule), which is evidenced by promissory notes A-2 and A-5.

 

 -101-

 

 

“Park Avenue Plaza Mortgaged Property”: The Mortgaged Property that secures the Park Avenue Plaza Whole Loan.

 

“Park Avenue Plaza Pari Passu Companion Loan”: With respect to the Park Avenue Plaza Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the Park Avenue Plaza Mortgaged Property.

 

“Park Avenue Plaza Subordinate Companion Loan”: With respect to the Park Avenue Plaza Whole Loan, each Companion Loan evidenced by a promissory note identified under the column “Subordinate Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the Park Avenue Plaza Mortgaged Property.

 

“Park Avenue Plaza Whole Loan”: The Park Avenue Plaza Mortgage Loan together with the Park Avenue Plaza Pari Passu Companion Loans and Park Avenue Plaza Subordinate Companion Loan, each of which is secured by the same Mortgage on the Park Avenue Plaza Mortgaged Property. References herein to the Park Avenue Plaza Whole Loan shall be construed to refer to the aggregate indebtedness under the Park Avenue Plaza Mortgage Loan, the Park Avenue Plaza Pari Passu Companion Loans and the Park Avenue Plaza Subordinate Companion Loan.

 

“Pass-Through Rate”: With respect to each Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest, the rate set forth next to it in the table below:

 

Class of Certificates, Upper-Tier Regular Interest or Lower-Tier Regular Interest		Pass-Through Rate
Class A-1 Certificates		Class A-1 Pass-Through Rate
Class A-2 Certificates		Class A-2 Pass-Through Rate
Class A-3 Certificates		Class A-3 Pass-Through Rate
Class A-SB Certificates		Class A-SB Pass-Through Rate
Class A-4 Certificates		Class A-4 Pass-Through Rate
Class A-4-1 Certificates		Class A-4-1 Pass-Through Rate
Class A-4-2 Certificates		Class A-4-2 Pass-Through Rate
Class A-4-X1 Certificates		Class A-4-X1 Pass-Through Rate
Class A-4-X2 Certificates		Class A-4-X2 Pass-Through Rate
Class A-4 Upper-Tier Regular Interest		Class A-4 UT Pass-Through Rate
Class A-4-X1 Upper-Tier Regular Interest		Class A-4-X1 UT Pass-Through Rate
Class A-4-X2 Upper-Tier Regular Interest		Class A-4-X2 UT Pass-Through Rate
Class A-5 Certificates		Class A-5 Pass-Through Rate
Class A-5-1 Certificates		Class A-5-1 Pass-Through Rate
Class A-5-2 Certificates		Class A-5-2 Pass-Through Rate
Class A-5-X1 Certificates		Class A-5-X1 Pass-Through Rate
Class A-5-X2 Certificates		Class A-5-X2 Pass-Through Rate
Class A-5 Upper-Tier Regular Interest		Class A-5 UT Pass-Through Rate
Class A-5-X1 Upper-Tier Regular Interest		Class A-5-X1 UT Pass-Through Rate

 

 

 -102-

 

 

Class A-5-X2 Upper-Tier Regular Interest		Class A-5-X2 UT Pass-Through Rate
Class X-A Certificates		Class X-A Pass-Through Rate
Class X-B Certificates		Class X-B Pass-Through Rate
Class X-D Certificates		Class X-D Pass-Through Rate
Class X-F Certificates		Class X-F Pass-Through Rate
Class X-G Certificates		Class X-G Pass-Through Rate
Class X-H Certificates		Class X-H Pass-Through Rate
Class A-S Certificates		Class A-S Pass-Through Rate
Class A-S-1 Certificates		Class A-S-1 Pass-Through Rate
Class A-S-2 Certificates		Class A-S-2 Pass-Through Rate
Class A-S-X1 Certificates		Class A-S-X1 Pass-Through Rate
Class A-S-X2 Certificates		Class A-S-X2 Pass-Through Rate
Class A-S Upper-Tier Regular Interest		Class A-S UT Pass-Through Rate
Class A-S-X1 Upper-Tier Regular Interest		Class A-S-X1 UT Pass-Through Rate
Class A-S-X2 Upper-Tier Regular Interest		Class A-S-X2 UT Pass-Through Rate
Class B Certificates		Class B Pass-Through Rate
Class B-1 Certificates		Class B-1 Pass-Through Rate
Class B-2 Certificates		Class B-2 Pass-Through Rate
Class B-X1 Certificates		Class B-X1 Pass-Through Rate
Class B-X2 Certificates		Class B-X2 Pass-Through Rate
Class B Upper-Tier Regular Interest		Class B UT Pass-Through Rate
Class B-X1 Upper-Tier Regular Interest		Class B-X1 UT Pass-Through Rate
Class B-X2 Upper-Tier Regular Interest		Class B-X2 UT Pass-Through Rate
Class C Certificates		Class C Pass-Through Rate
Class C-1 Certificates		Class C-1 Pass-Through Rate
Class C-2 Certificates		Class C-2 Pass-Through Rate
Class C-X1 Certificates		Class C-X1 Pass-Through Rate
Class C-X2 Certificates		Class C-X2 Pass-Through Rate
Class C Upper-Tier Regular Interest		Class C UT Pass-Through Rate
Class C-X1 Upper-Tier Regular Interest		Class C-X1 UT Pass-Through Rate
Class C-X2 Upper-Tier Regular Interest		Class C-X2 UT Pass-Through Rate
Class D Certificates		Class D Pass-Through Rate
Class E Certificates		Class E Pass-Through Rate
Class F Certificates		Class F Pass-Through Rate
Class G Certificates		Class G Pass-Through Rate
Class H Certificates		Class H Pass-Through Rate

 

“Payment Accommodation”: For any Mortgage Loan or Serviced Whole Loan, the entering into of any temporary forbearance agreement as a result of the COVID-19 emergency relating to payment obligations or operating covenants under the related Mortgage Loan documents or the use of funds on deposit in any reserve account or escrow account for any purpose other than the explicit purpose described in the related Mortgage Loan documents, that in each case (i) defers no greater than 3 monthly debt service payments (but no greater than 9 monthly debt service payments in the aggregate with any other Payment Accommodations) and (ii) requires full repayment of deferred payments, reserves and escrows by the date that is 24 months following the date of the first Payment Accommodation for such Mortgage Loan or

 

 -103-

 

 

Serviced Whole Loan. For the avoidance of doubt, a Payment Accommodation may only be entered into by the applicable Special Servicer on behalf of the Trust.

 

“PCAOB”: The Public Company Accounting Oversight Board.

 

“Penalty Charges”: With respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion Loan (or any successor REO Loan), any amounts actually collected thereon (or, in the case of a Serviced Companion Loan (or any successor REO Loan thereto) that is part of a Serviced Whole Loan, actually collected on such Serviced Whole Loan, and allocated and paid on such Serviced Companion Loan (or any successor REO Loan), as applicable, in accordance with the related Intercreditor Agreement) that represent late payment charges or Default Interest, other than a Prepayment Premium, a Yield Maintenance Charge or any Excess Interest.

 

“Percentage Interest”: As to any Certificate (other than the Class R Certificates), the percentage interest evidenced thereby in distributions required to be made with respect to the related Class. With respect to any Certificate (other than the Class R Certificates), the percentage interest is equal to the Denomination as of the Closing Date of such Certificate (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate) divided by the Original Certificate Balance or Original Notional Amount, as applicable, of such Class of Certificates as of the Closing Date (subject, in the case of an Exchangeable Certificate, to any adjustments thereto as reflected on the schedule attached to such Certificate). With respect to a Class R Certificate, the percentage interest is set forth on the face thereof.

 

“Performance Certification”: As defined in Section 11.06.

 

“Performing Party”: As defined in Section 11.12.

 

“Periodic Payment”: With respect to any Mortgage Loan or any related Companion Loan, the scheduled monthly payment of principal and/or interest (other than Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable (as the terms of the applicable Mortgage Loan or Companion Loan may be changed or modified in connection with a bankruptcy or similar proceedings involving the related Mortgagor or by reason of a modification, extension, waiver or amendment granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to time under the related Mortgage Note and applicable law, without regard to any acceleration of principal of such Mortgage Loan or Companion Loan by reason of default thereunder and without regard to any Excess Interest.

 

“Permitted Investments”: Any one or more of the following obligations or securities (including obligations or securities of the Certificate Administrator, or managed by the Certificate Administrator or any Affiliate of the Certificate Administrator, if otherwise qualifying hereunder), regardless of whether issued by the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, or any of their respective Affiliates and having the required ratings, if any, provided for in this definition and which shall not be subject to liquidation prior to maturity:

 

 -104-

 

 

(i)      direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, Fannie Mae, Freddie Mac or any agency or instrumentality of the United States of America, the obligations of which are backed by the full faith and credit of the United States of America that mature in one (1) year or less from the date of acquisition; provided that any obligation of, or guarantee by, any agency or instrumentality of the United States of America, shall be a Permitted Investment only if such investment would not result in the downgrading, withdrawal or qualification of the then current rating assigned by each Rating Agency to any Certificate (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that are then rated by such Rating Agency, such class of securities) as evidenced in writing;

 

(ii)     time deposits, unsecured certificates of deposit, or bankers’ acceptances that mature in one (1) year or less after the date of issuance and are issued or held by any depository institution or trust company (including the Trustee) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable Moody’s Permitted Investment Rating; or, in each case, such other rating as would not result in the downgrading, withdrawal or qualification of the then-current rating assigned by each Rating Agency to any Class of Certificates (or, insofar as there is then outstanding any class of Serviced Companion Loan Securities that is then rated by such rating agency, such class of securities) as evidenced in writing;

 

(iii)    repurchase agreements or obligations with respect to any security described in clause (i) above where such security has a remaining maturity of one year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) described in clause (ii) above;

 

(iv)    debt obligations bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which mature in one (1) year or less from the date of acquisition that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable Moody’s Permitted Investment Rating (or, in the case of any such Rating Agency, such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency in addition to a Rating Agency Confirmation from each Rating Agency not rating such debt obligations); provided, however, that securities issued by any particular corporation will not be Permitted Investments to the extent that investment therein will cause the then-outstanding principal amount of securities issued by such corporation and held in the accounts established hereunder to exceed 10% of the sum of the aggregate principal balance and the aggregate principal amount of all Permitted Investments in such accounts;

 

 -105-

 

 

(v)      commercial paper of any corporation incorporated under the laws of the United States or any state thereof (or of any corporation not so incorporated, provided that the commercial paper is United States Dollar denominated and amounts payable thereunder are not subject to any withholding imposed by any non-United States jurisdiction) that, in each case, satisfy the Applicable Fitch Permitted Investment Rating, the Applicable KBRA Permitted Investment Rating and the Applicable Moody’s Permitted Investment Rating (or such lower rating as is the subject of a Rating Agency Confirmation by such Rating Agency relating to the Certificates and any Serviced Companion Loan Securities in addition to a Rating Agency Confirmation from each Rating Agency not rating such commercial paper);

 

(vi)     money market funds (including the Federated Prime Obligation Money Market Fund, US Bank Long Term Eurodollar Sweep, the Wells Fargo Money Market Funds or the Wells Fargo Advantage Government Money Market Fund), which seek to maintain a constant net asset value per share, so long as any such fund is rated in the highest rating categories of each Rating Agency (if so rated by each such Rating Agency (and if not rated by any such Rating Agency, an equivalent rating (or higher) by at least two (2) NRSROs (which may include Fitch, KBRA, DBRS, Moody’s and/or S&P)) and the highest money market fund category by Moody’s (or, if not rated by Moody’s, otherwise acceptable to such Rating Agency, as confirmed in a Rating Agency Confirmation relating to the Certificates and any Serviced Companion Loan Securities), which may include the investments referred to in clause (i) above if so qualified that (a) have substantially all of their assets invested continuously in the types of investments referred to in clause (i) above and (b) have net assets of not less than $5,000,000,000;

 

(vii)    any other demand, money market or time deposit, obligation, security or investment, but for the failure to satisfy one or more of the minimum rating(s) set forth in the applicable clause, would be listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each Rating Agency for which the minimum ratings set forth in the applicable clause is not satisfied with respect to such demand, money market or time deposit, obligation, security or investment and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); and

 

(viii)   any other demand, money market or time deposit, obligation, security or investment not listed in clauses (i) – (vi) above with respect to which a Rating Agency Confirmation has been obtained from each and every Rating Agency;

 

 -106-

 

 

provided, however, that each Permitted Investment qualifies as a “cash flow investment” pursuant to Section 860G(a)(6) of the Code, and that (a) it shall have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (b) any such investment that provides for a variable rate of interest must have an interest rate that is tied to a single interest rate index plus a fixed spread, if any, and move proportionately with such index, (c) any such investment must not be subject to liquidation prior to maturity, and (d) any such investment must not be purchased at a premium over par; and provided, further, however, that no such instrument shall be a Permitted Investment (a) if such instrument evidences principal and interest payments derived from obligations underlying such instrument and the interest payments with respect to such instrument provide a yield to maturity at the time of acquisition of greater than 120% of the yield to maturity at par of such underlying obligations or (b) if such instrument may be redeemed at a price below the purchase price; and provided, further, however, that no amount beneficially owned by any Trust REMIC (even if not yet deposited in the Trust) may be invested in investments (other than money market funds) treated as equity interests for federal income tax purposes, unless the applicable Master Servicer receives an Opinion of Counsel, at its own expense, to the effect that such investment will not adversely affect the status of any Trust REMIC. Permitted Investments may not be interest-only securities. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the Business Day preceding the day before the date such amounts are required to be applied hereunder.

 

“Permitted Special Servicer/Affiliate Fees”: Any commercially reasonable treasury management fees, property condition report fees, banking fees, title insurance (or title agency) and/or other fees, insurance commissions or fees and appraisal fees received or retained by the applicable Special Servicer or any of its Affiliates in connection with any services performed by such party with respect to any Mortgage Loan and Serviced Companion Loan (including any related REO Property) in accordance with this Agreement.

 

“Permitted Transferee”: Any Person or any agent thereof other than (a) a Disqualified Organization, (b) any other Person so designated by the Certificate Registrar who is unable to provide an Opinion of Counsel (provided at the expense of such Person or the Person requesting the transfer) to the effect that the transfer of an Ownership Interest in any Class R Certificate to such Person will not cause either Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding, (c) a Person that is a Disqualified Non-U.S. Tax Person, (d) any partnership if any of its interests are (or under the partnership agreement are permitted to be) owned, directly or indirectly (other than through a U.S. corporation), by a Disqualified Non-U.S. Tax Person or (e) a U.S. Tax Person with respect to whom income from the Class R Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the transferee or any other U.S. Tax Person.

 

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

 

“Plan”: As defined in Section 5.03(n).

 

“Pre-Close Information”: As defined in Section 3.13(c).

 

 -107-

 

 

“Preliminary Dispute Resolution Election Notice”: As defined in Section 2.03(l)(i).

 

“Preliminary Prospectus”: The Preliminary Prospectus, dated November 2, 2021, relating to the Registered Certificates.

 

“Prepayment Assumption”: A “constant prepayment rate” of 0% used for determining the accrual of original issue discount and market discount, if any, and the amortization premium, if any, on the Certificates for federal income tax purposes; provided that it is assumed that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.

 

“Prepayment Interest Excess”: For any Distribution Date and with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Due Date but on or before the following Determination Date, the amount of interest (net of the related Servicing Fees and any Excess Interest), to the extent collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any such Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees and any Excess Interest) on the amount of such Principal Prepayment from such Due Date to, but not including, the date of such prepayment (or any later date through which interest accrues). Prepayment Interest Excesses (to the extent not offset by Prepayment Interest Shortfalls or required to be paid as Compensating Interest Payments) collected on the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and any Serviced Companion Loan, will be retained by the applicable Master Servicer as additional servicing compensation.

 

“Prepayment Interest Shortfall”: For any Distribution Date and with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan that was subject to a Principal Prepayment in full or in part during the related Collection Period, which Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, after the related Determination Date (or, with respect to each Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, as applicable, with a Due Date occurring after the related Determination Date, the related Due Date) and prior to the following Due Date, the amount of interest (net of the related Servicing Fees and any Excess Interest), to the extent not collected from the related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance Charge actually collected), that would have accrued at a rate per annum equal to (x) in the case of any such Mortgage Loan other than a Serviced Mortgage Loan, the sum of (i) the related Net Mortgage Rate for such Mortgage Loan, and (ii) the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate and (y) in the case of any Serviced Whole Loan, the Mortgage Rate (net of Servicing Fees and any Excess Interest) on

 

 -108-

 

 

the amount of such Principal Prepayment during the period commencing on the date as of which such Principal Prepayment was applied to such Mortgage Loan or Serviced Whole Loan, as applicable, and ending on such following Due Date. With respect to any Serviced AB Whole Loan, any Prepayment Interest Shortfall for any Distribution Date shall be allocated first to the related AB Subordinate Companion Loan and then to the related Mortgage Loan and any related Serviced Pari Passu Companion Loan.

 

“Prepayment Premium”: With respect to any Mortgage Loan, any premium, fee or other additional amount (other than a Yield Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, that Mortgage Loan or any successor REO Loan with respect thereto (including any payoff of a Mortgage Loan by a mezzanine lender on behalf of the subject Mortgagor if and as set forth in the related Intercreditor Agreement).

 

“Primary Collateral”: With respect to any Crossed Underlying Loan, that portion of the Mortgaged Property designated as directly securing such Crossed Underlying Loan and excluding any Mortgaged Property as to which the related lien may only be foreclosed upon by exercise of the cross-collateralization provisions of such Crossed Underlying Loan.

 

“Primary Servicing Fee”: The monthly fee payable by the applicable Master Servicer solely from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues at the rate per annum specified as such in the Sub-Servicing Agreement with such Initial Sub-Servicer.

 

“Prime Rate”: The “Prime Rate” as published in the “Money Rates” section of the New York City edition of The Wall Street Journal (or, if such section or publication is no longer available, such other comparable publication as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time, or, if the “Prime Rate” no longer exists, such other comparable rate (as determined by the Certificate Administrator in its reasonable discretion) as may be in effect from time to time.

 

“Principal Balance Certificates”: Each of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates, the Exchangeable P&I Certificates and the RR Interest.

 

“Principal Distribution Amount”: With respect to any Distribution Date and the Principal Balance Certificates (other than the RR Interest), an amount equal to the sum of (a) the Principal Shortfall for such Distribution Date and (b) the Non-Retained Percentage of the Aggregate Principal Distribution Amount for such Distribution Date.

 

“Principal Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan or Serviced Whole Loan that is received in advance of its scheduled Due Date as a result of such prepayment.

 

“Principal Shortfall”: For any Distribution Date after the initial Distribution Date with respect to the Mortgage Loans, the amount, if any, by which (a) the related Principal Distribution Amount for the preceding Distribution Date, exceeds (b) the aggregate amount

 

 -109-

 

 

actually distributed on the preceding Distribution Date in respect of such Principal Distribution Amount. The Principal Shortfall for the initial Distribution Date will be zero.

 

“Privileged Communications”: Any correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer referred to in clause (i) of the definition of “Privileged Information”.

 

“Privileged Information”: Any (i) correspondence between the Directing Certificateholder or the Risk Retention Consultation Party and a Special Servicer related to any Specially Serviced Loan (other than with respect to any Excluded Loan as to the Directing Certificateholder or the Risk Retention Consultation Party, as applicable) or the exercise of the Directing Certificateholder’s consent or consultation rights or the Risk Retention Consultation Party’s consultation rights under this Agreement, (ii) strategically sensitive information (including, without limitation, information contained within any Asset Status Report or Final Asset Status Report) that the applicable Special Servicer has reasonably determined could compromise the Trust’s position in any ongoing or future negotiations with the related Mortgagor or other interested party, and (iii) information subject to attorney-client privilege. Each Master Servicer, each Special Servicer, the Operating Advisor and the Asset Representations Reviewer shall be entitled to rely on any identification of materials as “attorney-client privileged” without liability for any such reliance hereunder.

 

“Privileged Information Exception”: With respect to any Privileged Information, at any time (a) such Privileged Information becomes generally available to the public other than as a result of a disclosure directly or indirectly by the party restricted from disclosing such Privileged Information (the “Restricted Party”), (b) it is reasonable and necessary for the Restricted Party to disclose such Privileged Information in working with legal counsel, auditors, arbitration parties, taxing authorities or other governmental agencies, (c) such Privileged Information was already known to such Restricted Party and not otherwise subject to a confidentiality obligation and/or (d) the Restricted Party is required by law, rule, regulation, order, judgment or decree to disclose such information.

 

“Privileged Person”: The Depositor and its designees, the Initial Purchasers, the Underwriters, the Mortgage Loan Sellers, each Master Servicer, each Special Servicer (including, for the avoidance of doubt, any Excluded Special Servicer), the Trustee, the Certificate Administrator, any Additional Servicer designated by a Master Servicer or a Special Servicer, the Operating Advisor, any Affiliate of the Operating Advisor designated by the Operating Advisor, the Asset Representations Reviewer, any Companion Holder who provides an Investor Certification, any Non-Serviced Master Servicer, any Non-Serviced Special Servicer, any Other Servicer, any Person (including the Directing Certificateholder and the Risk Retention Consultation Party) who provides the Certificate Administrator with an Investor Certification and any NRSRO (including any Rating Agency) that provides the Certificate Administrator with an NRSRO Certification, which Investor Certification and NRSRO Certification may be submitted electronically via the Certificate Administrator’s Website; provided, however, that in no event may a Borrower Party (other than a Borrower Party that is the Risk Retention Consultation Party or a Special Servicer) be entitled to receive (i) if such party is the Directing Certificateholder or any Controlling Class Certificateholder, any Excluded Information via the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the

 

 -110-

 

 

Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)), and (ii) if such party is not the Directing Certificateholder or any Controlling Class Certificateholder, any information other than the Distribution Date Statement. In determining whether any Person is an Additional Servicer or an Affiliate of the Operating Advisor, the Certificate Administrator may rely on direction by either Master Servicer, either Special Servicer, any Mortgage Loan Seller or the Operating Advisor, as the case may be.

 

Notwithstanding anything to the contrary in this Agreement, if a Special Servicer obtains knowledge that it has become a Borrower Party, such Special Servicer shall nevertheless be a Privileged Person; provided that such Special Servicer (i) shall not directly or indirectly provide any information related to the related Excluded Special Servicer Loan to (A) the related Borrower Party, (B) any of such Special Servicer’s employees or personnel or any of its Affiliate involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) shall maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above; provided, further, that nothing in this Agreement shall be construed as an obligation of either Master Servicer or the Certificate Administrator to restrict access by a Special Servicer or any Excluded Special Servicer to any information related to any Excluded Special Servicer Loan and in no case shall either Master Servicer or the Certificate Administrator be held liable if a Special Servicer accesses any Excluded Special Servicer Information relating to the Excluded Special Servicer Loan; provided, further, that (a) the applicable Master Servicer shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan and (b) the Certificate Administrator shall not restrict access by the applicable Special Servicer to any information related to any Mortgage Loan, including any Excluded Special Servicer Loan; and provided, further, however, that any Excluded Controlling Class Holder shall be permitted to reasonably request and to obtain in accordance with Section 4.02(f) of this Agreement any Excluded Information relating to any Excluded Controlling Class Loan with respect to which such Excluded Controlling Class Holder is not a Borrower Party (if such Excluded Information is not otherwise available to such Excluded Controlling Class Holder via the Certificate Administrator’s Website on account of it constituting Excluded Information).

 

“Prohibited Party”: Any proposed Servicing Function Participant that is listed on the Depositor’s Do Not Hire List.

 

“Prohibited Prepayment”: As defined in the definition of Compensating Interest Payments.

 

“Proposed Course of Action”: As defined in Section 2.03(l)(i).

 

“Proposed Course of Action Notice”: As defined in Section 2.03(l)(i).

 

“Prospectus”:     The Prospectus, dated November 15, 2021, relating to the Registered Certificates.

 

 -111-

 

 

“PSA Party Repurchase Request”: As defined in Section 2.03(k)(ii).

 

“PTCE”: Prohibited Transaction Class Exemption.

 

“Purchase Price”: With respect to any Mortgage Loan (or any related REO Loan) (including, to the extent required pursuant to the final paragraph hereof, any related Companion Loan) to be purchased pursuant to (A) Section 5 of the related Mortgage Loan Purchase Agreement by the related Mortgage Loan Seller, (B) Section 3.16, or (C) Section 9.01, a price, without duplication, equal to:

 

(i)      the outstanding principal balance of such Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) as of the date of purchase; plus

 

(ii)     all accrued and unpaid interest on the Mortgage Loan (or any related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), at the related Mortgage Rate in effect from time to time (excluding any portion of such interest that represents Default Interest or Excess Interest), to, but not including, the Due Date therefor immediately preceding or coinciding with the Determination Date for the Collection Period of purchase; plus

 

(iii)    all related unreimbursed Servicing Advances plus accrued and unpaid interest on all related Advances at the Reimbursement Rate, Special Servicing Fees (whether paid or unpaid) and any other additional trust fund expenses (except for Liquidation Fees) in respect of such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)), if any; plus

 

(iv)    if such Mortgage Loan (or related REO Loan) is being repurchased or substituted by the related Mortgage Loan Seller, pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses reasonably incurred or to be incurred by the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Certificate Administrator or the Trustee in respect of the omission, breach or defect giving rise to the repurchase or substitution obligation, including any expenses arising out of the enforcement of the repurchase or substitution obligation, including, without limitation, legal fees and expenses and any additional trust fund expenses relating to such Mortgage Loan (or related REO Loan); provided, however, that such out-of-pocket expenses shall not include expenses incurred by Certificateholders or Certificate Owners in instituting an Asset Review Vote Election, in taking part in an Asset Review vote or in exercising such Certificateholder’s or Certificate Owner’s, as applicable, rights under the dispute resolution mechanics pursuant to Section 2.03(l);

 

 -112-

 

 

(v)     Liquidation Fees, if any, payable with respect to such Mortgage Loan (or related REO Loan (including for such purpose, to the extent required pursuant to the final paragraph hereof, the related Companion Loan)) (which will not include any Liquidation Fees if such repurchase occurs or a Loss of Value Payment is received during the Initial Cure Period or, if applicable, prior to the expiration of the Extended Cure Period); plus

 

(vi)    solely in the case of a repurchase or substitution by the related Mortgage Loan Seller, any Asset Representations Reviewer Asset Review Fee for such Mortgage Loan, to the extent not previously paid by the related Mortgage Loan Seller.

 

Solely with respect to any Serviced Whole Loan to be sold pursuant to Section 3.16(a)(iii), “Purchase Price” shall mean the amount calculated in accordance with the preceding sentence in respect of the related Whole Loan, including, for such purposes, the Mortgage Loan and the related Companion Loan, as applicable. With respect to any REO Property to be sold pursuant to Section 3.16(b), “Purchase Price” shall mean the amount calculated in accordance with the second preceding sentence in respect of the related REO Loan (including any related Companion Loan). With respect to any sale pursuant to Section 3.16(a)(ii) or Section 3.16(e) or for purposes of calculating any Gain-on-Sale Proceeds, the “Purchase Price” shall be allocated between the related Mortgage Loan and Companion Loan, as applicable, in accordance with, and shall be equal to the amount provided pursuant to, the provisions of the related Intercreditor Agreement. With respect to any Joint Mortgage Loan, the Purchase Price that would be payable by each of the applicable Mortgage Loan Sellers for its related Mortgage Note shall be its respective Mortgage Loan Seller Percentage Interest as of the Closing Date of the total Purchase Price for such Mortgage Loan. Notwithstanding the foregoing, with respect to any repurchase pursuant to sub-clause (A) and sub-clause (C) hereof, the “Purchase Price” shall not include any amounts payable in respect of any related Companion Loan.

 

“Qualified Institutional Buyer”: A “qualified institutional buyer” as defined in Rule 144A under the Act.

 

“Qualified Insurer”: (i) With respect to any Mortgage Loan, REO Loan or REO Property, an insurance company or security or bonding company qualified to write the related Insurance Policy in the relevant jurisdiction with an insurance financial strength rating of at least: (a) “A3” by Moody’s (or, if not rated by Moody’s, an equivalent rating by (A) two other NRSROs (which may include Fitch and/or KBRA) or (B) one NRSRO (which may include Fitch or KBRA) and A.M. Best Company, Inc.) and (b) “A” by Fitch (or, if not rated by Fitch, at least an equivalent rating by one other NRSRO (which may include Moody’s or KBRA)), and (ii) with respect to the fidelity bond and errors and omissions insurance policy required to be maintained pursuant to Section 3.07(c), except as otherwise permitted by Section 3.07(c), an insurance company that has a claims paying ability (or the obligations which are guaranteed or backed by a company having such claims paying ability) rated by at least one (1) of the following rating agencies of at least (a) “A3” by Moody’s, (b) “A-“ by S&P, (c) “A-” by Fitch, (d) “A-:X” by A.M. Best Company, Inc. or (e) “A(low)” by DBRS Morningstar, or, in the case of clauses (i) or (ii), any other insurer acceptable to the Rating Agencies, as evidenced by a

 

 -113-

 

 

Rating Agency Confirmation and a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

“Qualified Mortgage”: A “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage.

 

“Qualified Replacement Special Servicer”: A replacement special servicer that (i) satisfies all of the eligibility requirements applicable to the Special Servicers contained in this Agreement, (ii) is not the Operating Advisor, the Asset Representations Reviewer or an Affiliate of the Operating Advisor or the Asset Representations Reviewer, (iii) is not obligated to pay the Operating Advisor (x) any fees or otherwise compensate the Operating Advisor in respect of its obligations under this Agreement, and (y) for the appointment of the successor special servicer or the recommendation by the Operating Advisor for the replacement special servicer to become a Special Servicer, (iv) is not entitled to receive any compensation from the Operating Advisor other than compensation that is not material and is unrelated to the Operating Advisor’s recommendation that such party be appointed as the replacement special servicer, (v) is not entitled to receive any fee from the Operating Advisor for its appointment as successor special servicer, in each case, unless such fee is expressly approved by 100% of the Certificateholders, (vi) currently has a special servicer rating of at least “CSS3” from Fitch, (vii) is currently acting as a special servicer in a CMBS transaction rated by Moody’s on a transaction-level basis (as to which CMBS transaction there are outstanding CMBS rated by Moody’s) and has not been publicly cited by Moody’s as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination, and (viii) is currently acting as a special servicer in a transaction rated by KBRA and has not been publicly cited by KBRA as having servicing concerns as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a transaction serviced by the applicable servicer prior to the time of determination.

 

“Qualified Substitute Mortgage Loan”: A substitute mortgage loan (other than with respect to the Whole Loans, for which no substitution will be permitted) replacing a removed Mortgage Loan that must, on the date of substitution: (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received, not in excess of the Stated Principal Balance of the removed Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs; (ii) have a fixed Mortgage Rate not less than the Mortgage Rate of the removed Mortgage Loan, determined without regard to any prior modification, waiver or amendment of the terms of the removed Mortgage Loan; (iii) have the same Due Date as and Grace Period no longer than that of the removed Mortgage Loan; (iv) accrue interest on the same basis as the removed Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve 30-day months); (v) have a remaining term to stated maturity not greater than, and not

 

 -114-

 

 

more than five (5) years less than, the remaining term to stated maturity of the removed Mortgage Loan; (vi) have a then-current loan-to-value ratio equal to or less than the lesser of the loan-to-value ratio for the removed Mortgage Loan as of the Closing Date and 75%, in each case using the “value” for the Mortgaged Property as determined using an Appraisal; (vii) comply as of the date of substitution in all material respects with all of the representations and warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an environmental report that indicates no material adverse environmental conditions with respect to the related Mortgaged Property and which will be delivered as a part of the related Mortgage File; (ix) have a then-current debt service coverage ratio at least equal (A) with respect to any Mortgage Loan other than an NCB Co-op Mortgage Loan, to the greater of (i) the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date and (ii) 1.25x; or (B) in the case of an NCB Co-op Mortgage Loan, the original debt service coverage ratio of the removed Mortgage Loan as of the Closing Date, (x) constitute a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of Counsel (provided at the applicable Mortgage Loan Seller’s expense); (xi) not have a maturity date or an amortization period that extends to a date that is after the date five (5) years prior to the Rated Final Distribution Date; (xii) have comparable prepayment restrictions to those of the removed Mortgage Loan; (xiii) not be substituted for a removed Mortgage Loan unless the Trustee and the Certificate Administrator have received Rating Agency Confirmation from each Rating Agency (the cost, if any, of obtaining such Rating Agency Confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have been approved by the Directing Certificateholder (so long as a Control Termination Event has not occurred and is not continuing and the affected Mortgage Loan is not an Excluded Loan as to the Directing Certificateholder); (xv) prohibit defeasance within two (2) years of the Closing Date; (xvi) not be substituted for a removed Mortgage Loan if it would result in an Adverse REMIC Event other than the imposition of a tax on income expressly permitted or contemplated to be imposed by the terms of this Agreement, as determined by an Opinion of Counsel at the cost of the related Mortgage Loan Seller; (xvii) have an engineering report that indicates no material adverse property condition or deferred maintenance with respect to the related Mortgaged Property that will be delivered as a part of the related Servicing File; and (xviii) be current in the payment of all scheduled payments of principal and interest then due. In the event that more than one mortgage loan is substituted for a removed Mortgage Loan, then the amounts described in clause (i) shall be determined on the basis of aggregate Stated Principal Balances and each such proposed Qualified Substitute Mortgage Loan shall individually satisfy each of the requirements specified in clauses (ii) through (xviii); provided that the rates described in clause (ii) above and the remaining term to stated maturity referred to in clause (v) above shall be determined on a weighted average basis; provided, further, that no individual Mortgage Rate (net of the Servicing Fee Rate, any Non-Serviced Primary Servicing Fee Rate, the Certificate Administrator Fee Rate, the Operating Advisor Fee Rate, the Asset Representations Reviewer Fee Rate and the CREFC^® Intellectual Property Royalty License Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and not based on, or subject to a cap equal to, the Weighted Average Net Mortgage Rate) of any Class of Principal Balance Certificates having a Certificate Balance then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a removed Mortgage Loan, the applicable Mortgage Loan Seller shall certify that the Qualified Substitute Mortgage Loan meets all of the requirements of the above definition and shall send such certification to the Trustee, the

 

 -115-

 

 

Certificate Administrator and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder.

 

“RAC No-Response Scenario”: As defined in Section 3.25(a).

 

“RAC Requesting Party”: As defined in Section 3.25(a).

 

“Rated Final Distribution Date”: As to each Class of Certificates, the Distribution Date in November 2064.

 

“Rating Agency”: Each of Fitch, Moody’s and KBRA or their successors in interest. If no such rating agency nor any successor thereof remains in existence, “Rating Agency” shall be deemed to refer to such nationally recognized statistical rating agency or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, the Special Servicers and the Master Servicers, and specific ratings of Fitch, Moody’s and KBRA herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Rating Agency Confirmation”: With respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Class of Certificates (if then rated by the Rating Agency); provided that a written waiver or other acknowledgment from the Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from each Rating Agency with respect to such matter.

 

“Rating Agency Inquiry”: As defined in Section 4.07(c).

 

“Rating Agency Q&A Forum and Document Request Tool”: As defined in Section 4.07(c).

 

“Raymour & Flanigan Campus Intercreditor Agreement”: The Agreement Between Note Holders, dated as of October 7, 2021, by and between the holders of the respective promissory notes evidencing the Raymour & Flanigan Campus Whole Loan, relating to the relative rights of such holders, as the same may be further amended in accordance with the terms thereof.

 

“Raymour & Flanigan Campus Mortgage Loan”: With respect to the Raymour & Flanigan Campus Whole Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 7 on the Mortgage Loan Schedule), which is evidenced by promissory note A-1.

 

“Raymour & Flanigan Campus Mortgaged Property”: The Mortgaged Property that secures the Raymour & Flanigan Campus Whole Loan.

 

“Raymour & Flanigan Campus Pari Passu Companion Loan”: With respect to the Raymour & Flanigan Campus Whole Loan, the Companion Loan evidenced by a promissory

 

 -116-

 

 

note identified under the column “Pari Passu Companion Loan(s)” in the table under the heading “Whole Loans” in the Preliminary Statement hereto and made by the related Mortgagor and secured by the Mortgage on the Raymour & Flanigan Campus Mortgaged Property.

 

“Raymour & Flanigan Campus Whole Loan”: The Raymour & Flanigan Campus Mortgage Loan together with the Raymour & Flanigan Campus Pari Passu Companion Loan, each of which is secured by the same Mortgage on the Raymour & Flanigan Campus Mortgaged Property. References herein to the Raymour & Flanigan Campus Whole Loan shall be construed to refer to the aggregate indebtedness under the Raymour & Flanigan Campus Mortgage Loan and the Raymour & Flanigan Campus Pari Passu Companion Loan.

 

“Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Non-Retained Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any REO Loans (excluding any portion allocable to any related Companion Loan, if applicable) as of the related Determination Date, is less than (ii) then-aggregate Certificate Balance of the Principal Balance Certificates (other than the RR Interest) after giving effect to distributions of principal on such Distribution Date.

 

“Received Class”: As defined in Section 5.11(b).

 

“Record Date”: With respect to any Distribution Date, the last Business Day of the month immediately preceding the month in which that Distribution Date occurs.

 

“Registered Certificates”: The Class A-1, Class A-2, Class A-3, Class A-SB, Class X-A and Class X-B Certificates, the Class A-4 Exchangeable Certificates, the Class A-5 Exchangeable Certificates, the Class A-S Exchangeable Certificates, the Class B Exchangeable Certificates and the Class C Exchangeable Certificates.

 

“Regular Certificates”: Any of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G, Class H, Class X-A, Class X-B, Class X-D, Class X-F, Class X-G and Class X-H Certificates and the RR Interest.

 

“Regulation AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

“Regulation AB Companion Loan Securitization”: As defined in Section 11.05(a).

 

“Regulation AB Servicing Officer”: Any officer or employee of either Master Servicer or either Special Servicer, as applicable, involved in, or responsible for, the administration and servicing of the Mortgage Loans or Companion Loans, or this Agreement and also, with respect to a particular matter, any other officer to whom such matter is referred

 

 -117-

 

 

because of such officer’s or employee’s knowledge of and familiarity with the particular subject, and, in the case of any certification required to be signed by a Servicing Officer, such an officer or employee whose name and specimen signature appears on a list of servicing officers furnished to the Trustee and/or the Certificate Administrator by the applicable Master Servicer or the applicable Special Servicer, as applicable, as such list may from time to time be amended.

 

“Regulation D”: Regulation D under the Act.

 

“Regulation S”: Regulation S under the Act.

 

“Regulation S Book-Entry Certificates”: The Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S and represented by one or more Book-Entry Non-Registered Certificates deposited with the Certificate Administrator as custodian for the Depository.

 

“Reimbursement Rate”: The rate per annum applicable to the accrual of interest on Servicing Advances in accordance with Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate per annum shall equal the Prime Rate.

 

“Related Certificates”, “Related Exchangeable Upper-Tier Regular Interest” and “Related Lower-Tier Regular Interests”: For each of the following Classes of Certificates and Exchangeable Upper-Tier Regular Interests, the related Class of Lower-Tier Regular Interests; and for each of the following Classes of Lower-Tier Regular Interests, the related Class of Certificates and Exchangeable Upper-Tier Regular Interest, as applicable, set forth below:

 

Related Certificates or Related Exchangeable Upper-Tier Regular Interest		Related Lower-Tier Regular Interest
Class A-1 Certificates		Class LA1 Uncertificated Interest
Class A-2 Certificates		Class LA2 Uncertificated Interest
Class A-3 Certificates		Class LA3 Uncertificated Interest
Class A-SB Certificates		Class LASB Uncertificated Interest
Class A-4 Upper-Tier Regular Interest		Class LA4 Uncertificated Interest
Class A-5 Upper-Tier Regular Interest		Class LA5 Uncertificated Interest
Class A-S Upper-Tier Regular Interest		Class LAS Uncertificated Interest
Class B Upper-Tier Regular Interest		Class LB Uncertificated Interest
Class C Upper-Tier Regular Interest		Class LC Uncertificated Interest
Class D Certificates		Class LD Uncertificated Interest
Class E Certificates		Class LE Uncertificated Interest
Class F Certificates		Class LF Uncertificated Interest
Class G Certificates		Class LG Uncertificated Interest
Class H Certificates		Class LH Uncertificated Interest
RR Interest		LRR Uncertificated Interest

 

“Relevant Servicing Criteria”: The Servicing Criteria applicable to a specific party, as set forth on Exhibit AA attached hereto. For clarification purposes, multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing

 

 -118-

 

 

Function Participant engaged by the Trustee, the Certificate Administrator, a Master Servicer or a Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to such Master Servicer, such Special Servicer, the Trustee and/or the Certificate Administrator.

 

“REMIC”: A “real estate mortgage investment conduit” as defined in Section 860D of the Code (or any successor thereto).

 

“REMIC Administrator”: The Certificate Administrator or any REMIC administrator appointed pursuant to Section 10.04.

 

“REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of subchapter M of chapter 1 of the Code, and related provisions, and temporary and final Treasury Regulations (or proposed regulations that would apply by reason of their proposed effective date to the extent not inconsistent with temporary or final regulations) and any rulings or announcements promulgated thereunder, as the foregoing may be in effect from time to time.

 

“Remittance Date”: The Business Day immediately preceding each Distribution Date.

 

“Rents from Real Property”: With respect to any REO Property, gross income of the character described in Section 856(d) of the Code.

 

“REO Account”: A segregated custodial account or accounts created and maintained by (a) with respect to each of the Mortgage Loans other than the NCB Co-op Mortgage Loans, the General Special Servicer pursuant to Section 3.14(b) on behalf of the Trustee for the benefit of the Certificateholders and with respect to any Serviced Whole Loan, for the benefit of the related Serviced Companion Noteholder, which shall initially be entitled “CWCapital Asset Management LLC, as General Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, REO Account” and (b) with respect to the NCB Co-op Mortgage Loans, the NCB Special Servicer, pursuant to and for the benefit of the Persons specified in Section 3.14(b), which shall be titled “National Cooperative Bank, N.A., as NCB Special Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37”. Any such account or accounts shall be an Eligible Account.

 

“REO Acquisition”: The acquisition for federal income tax purposes of any REO Property pursuant to Section 3.09.

 

“REO Disposition”: The sale or other disposition of the REO Property pursuant to Section 3.16.

 

“REO Extension”: As defined in Section 3.14(a).

 

 -119-

 

 

“REO Loan”: Each of the Mortgage Loans (and, with respect to any Serviced Whole Loan, the related Companion Loan, as applicable), deemed for purposes hereof to be outstanding with respect to each REO Property. Each REO Loan shall be deemed to be outstanding for so long as the applicable portion of the related REO Property (or beneficial interest therein, in the case of a Non-Serviced Mortgage Loan) remains part of the Trust Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same terms and conditions as its predecessor Mortgage Loan or Companion Loan, if applicable, including, without limitation, with respect to the calculation of the Mortgage Rate in effect from time to time (such terms and conditions to be applied without regard to the default on such predecessor Mortgage Loan or Companion Loan, if applicable). Each REO Loan shall be deemed to have an initial outstanding principal balance and Stated Principal Balance equal to the outstanding principal balance and Stated Principal Balance, respectively, of its predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition. All amounts due and owing in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, accrued and unpaid interest, shall continue to be due and owing in respect of an REO Loan. All amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion Loan, if applicable, as of the date of the related REO Acquisition, including, without limitation, any unpaid Special Servicing Fees and Servicing Fees, additional trust fund expenses and any unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer or the Trustee, as applicable, in respect of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Certificate Administrator or the Trustee, as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances with respect to such REO Loan, in each case, that were paid from collections on the related Mortgage Loans and resulted in principal distributed to the Certificateholders being reduced as a result of the first proviso in the definition of “Aggregate Principal Distribution Amount” shall be deemed outstanding until recovered. Notwithstanding anything to the contrary, with respect to each Serviced Whole Loan, no amounts relating to the related REO Property or REO Loan allocable to any related Companion Loan, as applicable, will be available for amounts due to the Certificateholders or to reimburse the Trust, other than in the limited circumstances related to Servicing Advances, indemnification payments, Special Servicing Fees and other reimbursable expenses related to such Serviced Whole Loan incurred with respect to such Serviced Whole Loan, in accordance with Section 3.05(a), or with respect to an AB Subordinate Companion Loan, as set forth in the related Intercreditor Agreement.

 

“REO Property”: A Mortgaged Property acquired by the applicable Special Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for the benefit of the Certificateholders (and the related Companion Holder, subject to the related Intercreditor Agreement, with respect to a Mortgaged Property securing a Serviced Whole Loan) to the extent set forth herein and the Trustee (as holder of the Lower-Tier Regular Interests) (and also including, if applicable, the Trust’s beneficial interest in a Non-Serviced Mortgaged Property acquired by the applicable Non-Serviced Special Servicer on behalf of, and in the name of, the applicable Non-Serviced Trustee or a nominee thereof for the benefit of the certificateholders

 

 -120-

 

 

under the applicable Non-Serviced Trust) through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of a Mortgage Loan. References herein to a Special Servicer acquiring, maintaining, managing, inspecting, insuring, selling or reporting, or to Appraisal Reduction Amounts and Final Recovery Determinations with respect to, an “REO Property” shall not include the Trust’s beneficial interest in a Non-Serviced Mortgaged Property. For the avoidance of doubt, REO Property, to the extent allocable to a Companion Loan, shall not be an asset of the Trust Fund, any Trust REMIC or the Grantor Trust.

 

“REO Revenues”: All income, rents and profits derived from the ownership, operation or leasing of any REO Property.

 

“Reportable Event”: As defined in Section 11.07.

 

“Reporting Requirements”: As defined in Section 11.12.

 

“Reporting Servicer”: The Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant engaged by such parties, as the case may be.

 

“Repurchase Request”: A Certificateholder Repurchase Request or a PSA Party Repurchase Request.

 

“Repurchase Request Recipient”: As defined in Section 2.02(g).

 

“Repurchased Note”: As defined in Section 3.30(a).

 

“Repurchasing Mortgage Loan Seller”: As defined in Section 3.30(a).

 

“Request for Release”: A release signed by a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as applicable, in the form of Exhibit E attached hereto.

 

“Requesting Certificateholder”: As defined in Section 2.03(l)(iii).

 

“Requesting Holders”: As defined in Section 4.05(b).

 

“Required Credit Risk Retention Percentage”: 5%.

 

“Residual Ownership Interest”: Any record or beneficial interest in the Class R Certificates.

 

“Resolution Failure”: As defined in Section 2.03(k)(iii).

 

“Resolved”: With respect to a Repurchase Request, (i) that the related Material Defect has been cured, (ii) the related Mortgage Loan has been repurchased in accordance with the related Mortgage Loan Purchase Agreement, (iii) a mortgage loan has been substituted for the related Mortgage Loan in accordance with the related Mortgage Loan Purchase Agreement,

 

 -121-

 

 

(iv) the applicable Mortgage Loan Seller has made a Loss of Value Payment, (v) a contractually binding agreement has been entered into between the Enforcing Servicer, on behalf of the Trust, and the related Mortgage Loan Seller that settles the related Mortgage Loan Seller’s obligations under the related Mortgage Loan Purchase Agreement, or (vi) the related Mortgage Loan is no longer property of the Trust as a result of a sale or other disposition in accordance with this Agreement.

 

“Responsible Officer”: When used with respect to (i) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Certificate Administrator, any officer assigned to the Corporate Trust Services group with direct responsibility for the administration of this Agreement and, with respect to a particular matter, any other officer to whom a particular matter is referred by the Certificate Administrator because of such officer’s knowledge of and familiarity with the particular subject.

 

“Restricted Period”: The 40-day period prescribed by Regulation S commencing on the later of (a) the date upon which Certificates are first offered to Persons other than the Initial Purchasers or Underwriters and any other distributor (as such term is defined in Regulation S) of the Certificates and (b) the Closing Date.

 

“Retained Certificate Available Funds”: With respect to any Distribution Date, an amount equal to the sum of (i) the Required Credit Risk Retention Percentage of the Aggregate Available Funds for such Distribution Date and (ii) the Retained Certificate Gain-on-Sale Remittance Amount.

 

“Retained Certificate Gain-on-Sale Remittance Amount”: For each Distribution Date, the lesser of (i) the amount on deposit in the Retained Certificate Gain-on-Sale Reserve Account on such Distribution Date, and (ii) the Required Credit Risk Retention Percentage of the Aggregate Gain-on-Sale Entitlement Amount.

 

“Retained Certificate Gain-on-Sale Reserve Account”: A custodial account or accounts (or subaccount of the Distribution Account) created and maintained by the Certificate Administrator, pursuant to Section 3.04(e) on behalf of the Trustee for the benefit of the Holders of the RR Interest, which shall initially be entitled “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Retained Certificate Gain-on-Sale Reserve Account”. Any such account shall be an Eligible Account or a subaccount of an Eligible Account.

 

“Retained Certificate Interest Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of interest distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(i), (iv), (vii), (x), (xiii), (xvi), (xix), (xxii), and (xxv) on such Distribution Date.

 

 -122-

 

 

“Retained Certificate Principal Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of principal distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(ii), (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), and (xxvi) on such Distribution Date.

 

“Retained Certificate Realized Loss”: With respect to any Distribution Date, the amount, if any, by which (i) the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate Stated Principal Balance (for purposes of this definition only, not giving effect to any reductions of the Stated Principal Balance for payments of principal collected on the Mortgage Loans that were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and any REO Loans (excluding any portion allocable to any related Companion Loan, if applicable) as of the related Determination Date, is less than (ii) the Certificate Balance of the RR Interest after giving effect to distributions of principal on such Distribution Date.

 

“Retained Certificate Realized Loss Distribution Amount”: With respect to the RR Interest for any Distribution Date, an amount equal to the product of (A) the Risk Retention Allocation Percentage and (B) the aggregate amount of reimbursed Realized Losses and interest thereon distributed to the Holders of the Regular Certificates (other than the RR Interest) and Exchangeable Upper-Tier Regular Interests pursuant to Sections 4.01(a)(iii), (vi), (ix), (xii), (xv), (xviii), (xxi), (xxiv) and (xxvii) on such Distribution Date.

 

“Retained Defeasance Rights and Obligations”: With respect to each of Bank of America, National Association and Morgan Stanley Mortgage Capital Holdings LLC, the meaning ascribed to the term “Seller Defeasance Rights and Obligations” in the related Mortgage Loan Purchase Agreement.

 

“Retained Fee Rate”: A rate equal to (A) 0.0100% per annum with respect to each NCB Mortgage Loan, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans) a rate that causes the Transferable Servicing Interest to equal zero.

 

“Retained Interest Safekeeping Account”: An account maintained by the Certificate Administrator, which account shall be deemed to be owned by the Holders of the RR Interest in proportions equal to their respective Percentage Interests.

 

“Retaining Parties”: Each of Wells Fargo Bank, National Association, Bank of America, National Association and Morgan Stanley Bank, N.A. acting as Holder of the RR Interest, and any successor Holder of all or part of the RR Interest.

 

“Retaining Sponsor”: Wells Fargo Bank, National Association, acting as retaining sponsor as such term is defined under Section 3(b) of the Risk Retention Rules.

 

 -123-

 

 

“Reverse Sequential Order”: With respect to any distribution or allocation relating to principal in respect of the Principal Balance Certificates (other than any Exchangeable Certificates and the RR Interest) and the Exchangeable Upper-Tier Regular Interests:

 

(A)       first, to the Class H Certificates;

 

(B)       second, to the Class G Certificates;

 

(C)       third, to the Class F Certificates;

 

(D)       fourth, to the Class E Certificates;

 

(E)        fifth, to the Class D Certificates;

 

(F)       sixth, to the Class C Upper-Tier Regular Interest (and, correspondingly, to the Class C, Class C-1 and Class C-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class C Upper-Tier Regular Interest);

 

(G)       seventh, to the Class B Upper-Tier Regular Interest (and, correspondingly, to the Class B, Class B-1 and Class B-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class B Upper-Tier Regular Interest);

 

(H)      eighth, to the Class A-S Upper-Tier Regular Interest (and, correspondingly, to the Class A-S, Class A-S-1 and Class A-S-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-S Upper-Tier Regular Interest); and

 

(I)        ninth, pro rata (based on their respective Certificate Balances), to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable), in each case until the remaining Certificate Balances of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests have been reduced to zero.

 

“Review Materials”: As defined in Section 12.01(b)(i).

 

“Review Package”: A Rating Agency Confirmation request and any supporting documentation delivered therewith.

 

“Revised Rate”: With respect to any ARD Loan, the increased interest rate after the related Anticipated Repayment Date (in the absence of a default) for each applicable Mortgage Loan, as calculated and as set forth in the related Mortgage Loan. As of the Closing Date, there are no ARD Loans.

 

“Risk Retention Allocation Percentage”: A percentage equal to the Required Credit Risk Retention Percentage divided by the Non-Retained Percentage.

 

 -124-

 

 

“Risk Retention Consultation Party”: The Risk Retention Consultation Party shall be the party selected by the Holders of more than 50% of the RR Interest (by Certificate Balance, as determined by the Certificate Registrar) from time to time. The Depositor shall promptly provide the name and contact information for the initial Risk Retention Consultation Party upon request of any party to this Agreement and any such requesting party may conclusively rely on the name and contact information provided by the Depositor. The Certificate Administrator and the other parties hereto shall be entitled to assume that the identity of the Risk Retention Consultation Party has not changed until such parties receive written notice of the identity and contact information of a replacement of the Risk Retention Consultation Party from a party holding the requisite interest in the RR Interest (as confirmed by the Certificate Registrar). The initial Risk Retention Consultation Party shall be Wells Fargo Bank, National Association, a national banking association. For the avoidance of doubt, Wells Fargo Bank, National Association’s performance of the role of initial Risk Retention Consultation Party is not performed through the Corporate Trust Services division or the Commercial Mortgage Servicing division of Wells Fargo Bank, National Association; provided, however, that the Commercial Mortgage Servicing division of Wells Fargo Bank, National Association may perform certain surveillance, monitoring and reporting for the Risk Retention Consultation Party.

 

“Risk Retention Requirements”: The credit risk retention requirements of Section 15G of the Exchange Act (15 U.S.C. §78o-11), as added by Section 941 of the Dodd-Frank Act.

 

“Risk Retention Rules”: The joint final rule that was promulgated to implement the Risk Retention Requirements (which such joint final rule has been codified, inter alia, at 12 C.F.R. § 43), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development in the adopting release (79 Fed. Reg. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective, from time to time, as of the applicable compliance date specified therein. Any reference to a Section of the Risk Retention Rules shall mean the subsection of the Risk Retention Rules identified with the same corresponding number as the referenced “Section”. For example, “Section 7 of the Risk Retention Rules” means 12 C.F.R. § 43.7.

 

“RR Interest”: A Certificate designated as “RR Interest” on the face thereof, in the form of Exhibit A-3 hereto, and evidencing (i) a “regular interest” in the Upper Tier REMIC for purposes of the REMIC Provisions and (ii) beneficial ownership of the RR Interest Specific Grantor Trust Assets.

 

“RR Interest Specific Grantor Trust Assets”: The portion of the Trust Fund consisting of a portion of any Excess Interest equal to the product of (A) the Required Credit Risk Retention Percentage and (B) the aggregate amount of Excess Interest received on or prior to the related Determination Date, related amounts in the Excess Interest Distribution Account and the proceeds thereof, beneficial ownership of which is represented by the RR Interest.

 

“RR Interest Transfer Restriction Period”: The period from the Closing Date to the earlier of: (a) the latest of (i) the date on which the aggregate unpaid principal balance of all

 

 -125-

 

 

outstanding Mortgage Loans has been reduced to 33.0% of the aggregate Cut-off Date Balance of the Mortgage Loans; (ii) the date on which the aggregate outstanding principal balance of the Principal Balance Certificates has been reduced to 33.0% of the aggregate outstanding principal balance of the Principal Balance Certificates as of the Cut-off Date; and (iii) two years after the Closing Date; and (b) the date on which the Risk Retention Rules have been effectively abolished or officially determined by the OCC, the Board of Governors of the Federal Reserve System, the FDIC, the Federal Housing Finance Agency, the Commission and the Department of Housing and Urban Development to be no longer applicable to the Trust.

 

“Rule 144A”: Rule 144A under the Act.

 

“Rule 144A Book-Entry Certificate”: With respect to the Non-Registered Certificates offered and sold in reliance on Rule 144A, a single, permanent Book-Entry Certificate, in definitive, fully registered form without interest coupons.

 

“Rules”: As defined in Section 2.03(n)(iv).

 

“S&P”: S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, and its successors in interest. If neither S&P nor any successor remains in existence, “S&P” shall be deemed to refer to such other NRSRO or other comparable Person reasonably designated by the Depositor, notice of which designation shall be given to the Trustee, the Certificate Administrator, each Master Servicer, the Directing Certificateholder and each Special Servicer and specific ratings of S&P herein referenced shall be deemed to refer to the equivalent ratings of the party so designated.

 

“Sarbanes-Oxley Act”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

“Sarbanes-Oxley Certification”: As defined in Section 11.05(a)(iv).

 

“Schedule AL Additional File”: The data file containing additional information or schedules regarding data points in the CREFC^® Schedule AL File in accordance with Item 1111(h)(4) of Regulation AB and Item 601(b)(103) of Regulation S-K under the Securities Act.

 

“Scheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the principal portions of the following: (a) all Periodic Payments (excluding Balloon Payments) due in respect of such Mortgage Loans during or, if and to the extent not previously received or advanced pursuant to Section 4.03 in respect of a preceding Distribution Date (and not previously distributed to Certificateholders), prior to, the related Collection Period, and all Assumed Scheduled Payments with respect to the Mortgage Loans for the related Collection Period, in each case to the extent either (i) paid by the Mortgagor as of the Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date) or (ii) advanced by the applicable Master Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments with respect to

 

 -126-

 

 

the Mortgage Loans to the extent received on or prior to the related Determination Date (or, with respect to each Mortgage Loan with a Due Date occurring or a Grace Period ending after the related Determination Date, the related Due Date or last day of such Grace Period, as applicable, to the extent received by the applicable Master Servicer as of the Business Day preceding the related P&I Advance Date), and to the extent not included in clause (a) above.

 

“Secure Data Room”: The “Secure Data Room” tab, which shall initially be located within the Certificate Administrator’s Website (initially “www.ctslink.com”), on the page relating to this transaction.

 

“Securities Act”: The Securities Act of 1933, as it may be amended from time to time.

 

“Security Agreement”: With respect to any Mortgage Loan, any security agreement or equivalent instrument, whether contained in the related Mortgage or executed separately, creating in favor of the holder of such Mortgage a security interest in the personal property constituting security for repayment of such Mortgage Loan.

 

“Senior Certificate”: Any Class A Certificate (other than the Class A-S Exchangeable Certificates) or Class X Certificate.

 

“Serviced AB Mortgage Loan”: Any Mortgage Loan that is part of a Serviced AB Whole Loan. For the avoidance of doubt, there are no Serviced AB Mortgage Loans related to the Trust.

 

“Serviced AB Whole Loan”: Any AB Whole Loan that is serviced under this Agreement. For the avoidance of doubt, there are no Serviced AB Whole Loans related to the Trust.

 

“Serviced AB Whole Loan Controlling Holder”: With respect to a Serviced AB Whole Loan, the “Directing Lender” or similarly defined party identified in the related AB Intercreditor Agreement. For the avoidance of doubt, there are no Serviced AB Whole Loan Controlling Holders related to the Trust.

 

“Serviced Companion Loan”: Each of (i) the Pari Passu Companion Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, (ii) prior to the related Servicing Shift Securitization Date, the Pari Passu Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (iii) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

“Serviced Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities backed, wholly or partially, by any Serviced Companion Loan.

 

“Serviced Companion Noteholder”: A holder of (i) a Serviced Pari Passu Companion Loan or (ii) any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, as applicable.

 

 -127-

 

 

“Serviced Companion Noteholder Register”: The register maintained by the Companion Paying Agent pursuant to Section 3.28.

 

“Serviced Mortgage Loan”: Each of (i) the Mortgage Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, (ii) prior to the related Servicing Shift Securitization Date, the Mortgage Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (iii) any AB Mortgage Loan related to a Serviced AB Whole Loan, as applicable.

 

“Serviced Pari Passu Companion Loan”: Each of (i) the Pari Passu Companion Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) prior to the related Servicing Shift Securitization Date, the Pari Passu Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Serviced Pari Passu Companion Loan Holder”: Any holder of record of any Serviced Pari Passu Companion Loan.

 

“Serviced Pari Passu Companion Loan Securities”: For so long as the related Mortgage Loan or any successor REO Loan is in the Trust Fund, any class of securities issued by another securitization and backed by a Serviced Pari Passu Companion Loan.

 

“Serviced Pari Passu Mortgage Loan”: Each of (i) the Mortgage Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) prior to the related Servicing Shift Securitization Date, the Mortgage Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Serviced Pari Passu Whole Loan”: Each of (i) the Whole Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement other than any such Whole Loan that is an AB Whole Loan, and (ii) prior to the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement other than any such Whole Loan that is an AB Whole Loan.

 

“Serviced REO Loan”: Any REO Loan that is serviced by a Special Servicer pursuant to this Agreement.

 

“Serviced REO Property”: Any REO Property that is serviced by a Special Servicer pursuant to this Agreement.

 

“Serviced Securitized Companion Loan”: Any Companion Loan that is a component of a Serviced Whole Loan, if and for so long as each such Companion Loan is included in a Regulation AB Companion Loan Securitization.

 

“Serviced Subordinate Companion Loan”: Each of (i) the Subordinate Companion Loans identified as “Serviced” under the column entitled “Type” in the “Whole

 

 -128-

 

 

Loan” chart in the Preliminary Statement, and (ii) prior to the related Servicing Shift Securitization Date, the Subordinate Companion Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Serviced Whole Loan”: Each of (i) the Whole Loans identified as “Serviced” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement, and (ii) prior to the related Servicing Shift Securitization Date, the Whole Loans identified as “Servicing Shift” under the column entitled “Type” in the “Whole Loan” chart in the Preliminary Statement.

 

“Serviced Whole Loan Controlling Holder”: The “Controlling Noteholder” or similar term identified in the Intercreditor Agreement related to a Serviced Whole Loan.

 

“Serviced Whole Loan Remittance Date”: With respect to any Serviced Companion Loan: (i) the date specified as the applicable remittance date (or equivalent concept) in the related Intercreditor Agreement; or (ii) if no such applicable remittance date (or equivalent concept) is so specified in the related Intercreditor Agreement, then the earlier of (A) one (1) Business Day after the “determination date” set forth in the related Other Pooling and Servicing Agreement or (B) the fifteenth (15th) day of each calendar month (or, if the fifteenth (15th) calendar day of that month is not a Business Day, then the Business Day immediately succeeding such fifteenth (15th) calendar day), provided, however, that such Serviced Whole Loan Remittance Date under this clause (ii) shall not be earlier than two (2) Business Days following the date the Master Servicer receives the related Periodic Payment with respect to such Serviced Whole Loan.

 

“Servicer Termination Event”: One or more of the events described in Section 7.01(a).

 

“Servicing Account”: The account or accounts created and maintained pursuant to Section 3.03(a).

 

“Servicing Advances”: All customary, reasonable and necessary “out of pocket” costs and expenses (including attorneys’ fees and expenses and fees of real estate brokers) incurred by the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator, or the Trustee, as applicable, in connection with the servicing and administering of (a) a Mortgage Loan (and, in the case of a Serviced Mortgage Loan, the related Serviced Companion Loan, as applicable), other than a Non-Serviced Mortgage Loan, in respect of which a default, delinquency or other unanticipated event has occurred or as to which a default is reasonably foreseeable or (b) a Mortgaged Property securing a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or an REO Property (other than an REO Property related to a Non-Serviced Mortgage Loan), including, in the case of each of such clause (a) and clause (b), but not limited to, (x) the cost of (i) compliance with the applicable Master Servicer’s obligations set forth in Section 3.03(c), (ii) the preservation, restoration and protection of a Mortgaged Property and the priority of a Mortgage, (iii) obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature described in clauses (i) – (vi) of the definition of “Liquidation Proceeds,” (iv) any enforcement or judicial proceedings with respect to a Mortgaged Property, including foreclosures and (v) the operation, leasing, management,

 

 -129-

 

 

maintenance and liquidation of any REO Property and (y) any amount specifically designated herein to be paid as a “Servicing Advance”. Notwithstanding anything to the contrary, “Servicing Advances” shall not include allocable overhead of the applicable Master Servicer or the applicable Special Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses or costs and expenses incurred by any such party in connection with its purchase of a Mortgage Loan or REO Property. None of the Master Servicers, the Special Servicers or the Trustee shall make any Servicing Advance in connection with the exercise of any cure rights or purchase rights granted to the holder of a Companion Loan under the related Intercreditor Agreement or this Agreement.

 

“Servicing Criteria”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB as such may be amended from time to time and which as of the Closing Date are listed on Exhibit AA hereto.

 

“Servicing Fee”: With respect to each Mortgage Loan (including each Non-Serviced Mortgage Loan), Serviced Companion Loan, and any REO Loan, the fee payable to the applicable Master Servicer pursuant to the first paragraph of Section 3.11(a).

 

“Servicing Fee Rate”: With respect to (i) each Mortgage Loan (including any Non-Serviced Mortgage Loan) and REO Loan, a per annum rate equal to the rate set forth on the Mortgage Loan Schedule under the heading “Master Servicing Fee Rate”, which rate includes, in each such case, the rate at which applicable master, primary and sub-servicing fees accrue (other than in respect of a Non-Serviced Mortgage Loan, with respect to which the primary and sub-servicing fees are included in the related Non-Serviced Primary Servicing Fee Rate), in each case computed on the basis of the Stated Principal Balance of the related Mortgage Loan or REO Loan in the same manner in which interest is calculated in respect of such loans (provided, however, that with respect to any Servicing Shift Mortgage Loan on or after the related Servicing Shift Securitization Date, the Servicing Fee Rate shall be reduced by the related Non-Serviced Primary Servicing Fee Rate); and (ii) each Serviced Pari Passu Companion Loan, a per annum rate equal to 0.00250%, computed on the basis of the Stated Principal Balance of the related Serviced Pari Passu Companion Loan in the same manner in which interest is calculated in respect of such loan.

 

“Servicing File”: A photocopy or electronic copy of all items required to be included in the Mortgage File, together with each of the following: (a) to the extent such items were actually delivered to the related Mortgage Loan Seller, with respect to a Mortgage Loan and (to the extent that the identified documents existed on or before the Closing Date and the applicable reference to Servicing File relates to any period after the Closing Date) delivered by the related Mortgage Loan Seller, to the applicable Master Servicer, (i) a copy of any engineering reports or property condition reports; (ii) other than with respect to a hospitality property (except with respect to tenanted commercial space within a hospitality property), copies of a rent roll (or, with respect to a residential cooperative property, a maintenance schedule) and, for any office, retail, industrial or warehouse property, a copy of all leases and estoppels and subordination and non-disturbance agreements delivered to the related Mortgage Loan Seller; (iii) copies of related financial statements or operating statements; (iv) all legal opinions (excluding attorney-client communications between the related Mortgage Loan Seller, and its

 

 -130-

 

 

counsel that are privileged communications or constitute legal or other due diligence analyses), Mortgagor’s certificates and certificates of hazard insurance and/or hazard insurance policies or other applicable insurance policies, if any, delivered in connection with the closing of the related Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the documents that were delivered by or on behalf of the Mortgagor, which documents were required to be delivered in connection with the closing of the related Mortgage Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased to a single tenant, a copy of the lease; and (viii) a copy of all environmental reports that were received by the applicable Mortgage Loan Seller relating to the relevant Mortgaged Property and (b) copies of all modifications, extensions and amendments related to the above, any Appraisals and any other document necessary to service the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and any Serviced Companion Loan, in each case, that are created or prepared after the Closing Date.

 

“Servicing Function Participant”: Any Additional Servicer, Sub-Servicer, Subcontractor or any other Person, other than either Master Servicer, either Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator, that is performing activities that address the Servicing Criteria, unless (i) such Person’s activities relate only to 5% or less of the Mortgage Loans by unpaid principal balance as of any date of determination in accordance with Article XI or (ii) the Depositor reasonably determines that a Master Servicer or a Special Servicer may, for the purposes of the Exchange Act reporting requirements pursuant to applicable Commission guidance, take responsibility for the assessment of compliance with the Servicing Criteria of such Person. The Servicing Function Participants as of the Closing Date are listed on Exhibit GG hereto. Exhibit GG shall be updated and provided to the Depositor and the Certificate Administrator in accordance with Section 11.10(c).

 

“Servicing Officer”: Any officer and/or employee of a Master Servicer, a Special Servicer or any Additional Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans or Serviced Companion Loans, whose name and specimen signature appear on a list of servicing officers furnished by such Master Servicer, such Special Servicer or any Additional Servicer to the Certificate Administrator, the Trustee, the Operating Advisor and the Depositor on the Closing Date as such list may be amended from time to time thereafter.

 

“Servicing Shift Lead Note”: With respect to any Servicing Shift Whole Loan, as of any date of determination, the note or other evidence of indebtedness and/or agreements evidencing the indebtedness of a Mortgagor under such Servicing Shift Whole Loan including any amendments or modifications, or any renewal or substitution notes, as of such date, the sale of which to the related Non-Serviced Trust will cause servicing to shift from this Agreement to the related Non-Serviced PSA pursuant to the terms of the related Intercreditor Agreement for such Servicing Shift Whole Loan. For the avoidance of doubt, there is no Servicing Shift Lead Note related to the Trust.

 

“Servicing Shift Mortgage Loan” With respect to any Servicing Shift Whole Loan, a Mortgage Loan included in the Trust Fund that will be serviced under this Agreement as of the Closing Date, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead

 

 -131-

 

 

Note on the related Servicing Shift Securitization Date. For the avoidance of doubt, there is no Servicing Shift Mortgage Loan related to the Trust.

 

“Servicing Shift Securitization Date”: With respect to any Servicing Shift Whole Loan, the date on which the related Servicing Shift Lead Note is included in a Non-Serviced Trust, provided that the holder of such Servicing Shift Lead Note provides each of the parties to this Agreement (in each case only to the extent such party will not also be a party to the related Non-Serviced PSA) with notice in accordance with the terms of the related Intercreditor Agreement that such Servicing Shift Lead Note is to be included in such Non-Serviced Trust which notice shall include contact information for the related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator and Non-Serviced Trustee. For the avoidance of doubt, there is no Servicing Shift Securitization Date related to the Trust.

 

“Servicing Shift Whole Loan”: Any Whole Loan serviced under this Agreement as of the Closing Date, which includes a Servicing Shift Mortgage Loan included in the Trust Fund and one or more Companion Loans not included in the Trust Fund, but the servicing of which is expected to shift to the related Non-Serviced PSA entered into in connection with the securitization, if any, of the related Servicing Shift Lead Note on the related Servicing Shift Securitization Date. For the avoidance of doubt, there is no Servicing Shift Whole Loan related to the Trust.

 

“Servicing Standard”: As defined in Section 3.01(a).

 

“Servicing Transfer Event”: With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), or related Serviced Companion Loan, the occurrence of any of the following events:

 

(i)      the related Mortgagor has failed to make when due any Balloon Payment, and the Mortgagor has not delivered to the applicable Master Servicer or the applicable Special Servicer on or before the due date of such Balloon Payment, a written and fully executed (subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer, as applicable (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to the applicable Special Servicer or the applicable Master Servicer, as applicable) which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days after the date on which such Balloon Payment will become due (provided that if either (x) such refinancing or sale does not occur before the expiration of the time period for refinancing or sale specified in such documentation or (y) the applicable Master Servicer is required to make a P&I Advance in respect of such Mortgage Loan (or, in the case of any Serviced Whole

 

 -132-

 

 

Loan, in respect of the Mortgage Loan included in the same Serviced Whole Loan) at any time prior to such a refinancing or sale, a Servicing Transfer Event will occur immediately); or

 

(ii)     the related Mortgagor has failed to make when due any Periodic Payment (other than a Balloon Payment) or any other payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage, which failure has continued unremedied for sixty (60) days; or

 

(iii)    the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan prior to the occurrence and continuance of an AB Control Appraisal Period, the prior consent of the related Serviced AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan prior to the occurrence of an AB Control Appraisal Period), that a default in making any Periodic Payment (other than a Balloon Payment) or any other material payment (other than a Balloon Payment) required under the related Mortgage Note or the related Mortgage is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which the subject payment will become due; or the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan prior to the occurrence and continuance of an AB Control Appraisal Period, the prior consent of the related Serviced AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan prior to the occurrence of an AB Control Appraisal Period)), that a default in making a Balloon Payment is likely to occur in the foreseeable future, and such default is likely to remain unremedied for at least sixty (60) days beyond the date on which such Balloon Payment will become due (or, if the Mortgagor has delivered a written and fully executed

 

 -133-

 

 

(subject only to customary final closing conditions) refinancing commitment (or if refinancing commitments are not then customarily issued by commercial mortgage lenders, such written, executed and binding alternative documentation as is customarily used by commercial real estate lenders for such purpose) or purchase and sale agreement from an acceptable lender or purchaser, as applicable, and reasonably satisfactory in form and substance to the applicable Master Servicer or the applicable Special Servicer (and such Master Servicer or such Special Servicer, as applicable, shall promptly forward such documentation to the applicable Special Servicer or the applicable Master Servicer, as applicable) which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due, the applicable Master Servicer determines (in accordance with the Servicing Standard) or receives from the applicable Special Servicer a written determination of such Special Servicer (which determination the applicable Special Servicer shall make in accordance with the Servicing Standard and (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan prior to the occurrence and continuance of an AB Control Appraisal Period, the prior consent of the related Serviced AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to (x) an Excluded Loan with respect to such party and only if a Control Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing or (y) a Serviced AB Whole Loan prior to the occurrence of a Control Appraisal Period)), that (A) the Mortgagor is likely not to make one or more Assumed Scheduled Payments prior to such a refinancing or sale or (B) such refinancing or sale is not likely to occur within one hundred-twenty (120) days following the date on which such Balloon Payment will become due); or

 

(iv)    there shall have occurred a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the related Mortgage Loan documents, other than as described in clause (i) or (ii) above, that may, in the good faith and reasonable judgment of the applicable Master Servicer or the applicable Special Servicer (and in the case of the applicable Special Servicer (A) with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, prior to the occurrence and continuance of an AB Control Appraisal Period, the prior consent of the related Serviced AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement)) or (B) following consultation with the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only if a Control

 

 -134-

 

 

Termination Event has occurred and is continuing but no Consultation Termination Event has occurred and is continuing)), materially impair the value of the related Mortgaged Property as security for such Mortgage Loan or Serviced Whole Loan or otherwise materially and adversely affect the interests of Certificateholders (or, in the case of any Serviced Whole Loan, the interests of any related Serviced Pari Passu Companion Loan Holder), which default has continued unremedied for the applicable cure period under the terms of such Mortgage Loan or Serviced Whole Loan (or, if no cure period is specified, sixty (60) days); or

 

(v)     a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the related Mortgagor and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or

 

(vi)    the related Mortgagor shall have consented to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Mortgagor or of or relating to all or substantially all of its property; or

 

(vii)   the related Mortgagor shall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspended payment of its obligations; or

 

(viii)  the applicable Master Servicer or the applicable Special Servicer shall have received notice of the commencement of foreclosure or similar proceedings with respect to the corresponding Mortgaged Property; or

 

(ix)    the applicable Master Servicer or the applicable Special Servicer (and in the case of the applicable Special Servicer, with the consent of the Directing Certificateholder (other than with respect to an Excluded Loan with respect to such party and only for so long as no Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan prior to the occurrence and continuance of a Control Appraisal Period, the prior consent of the related Serviced AB Whole Loan Controlling Holder, to the extent required by the terms of the related Intercreditor Agreement))) determines that (i) a default (including, in the applicable Master Servicer’s or the applicable Special Servicer’s judgment, the failure of the related Mortgagor to maintain any insurance required to be maintained pursuant to the related Mortgage Loan documents, unless such default has been waived in accordance with Section 3.07 or Section 3.18) under the Mortgage Loan documents (other than as described in clause (iii) above) is imminent or reasonably foreseeable, (ii) such default will materially impair the

 

 -135-

 

 

value of the corresponding Mortgaged Property as security for the Mortgage Loan or Serviced Pari Passu Companion Loan (if any) or otherwise materially and adversely affect the interests of Certificateholders (or the related Serviced Pari Passu Companion Loan Holder) and (iii) the default is likely to continue unremedied for the applicable cure period under the terms of the Mortgage Loan documents, or, if no cure period is specified and the default is capable of being cured, for sixty (60) days;

 

provided that any Mortgage Loan (excluding any Non-Serviced Mortgage Loan) that is cross-collateralized with a Specially Serviced Loan shall be a Specially Serviced Loan so long as such Mortgage Loan is cross-collateralized with a Specially Serviced Loan. If any Serviced Companion Loan becomes a Specially Serviced Loan, the related Serviced Mortgage Loan shall also become a Specially Serviced Loan. If any Serviced Mortgage Loan becomes a Specially Serviced Loan, any related Serviced Companion Loan shall also become a Specially Serviced Loan. With respect to a Non-Serviced Mortgage Loan, the occurrence of a “Servicing Transfer Event” shall be as defined in the Non-Serviced PSA. For the avoidance of doubt and with respect to clauses (ii), (iii), (iv), (vii) and (ix) above, neither (A) a Payment Accommodation with respect to any Mortgage Loan or Serviced Whole Loan nor (B) any default or delinquency that would have existed but for such Payment Accommodation will constitute a Servicing Transfer Event, for so long as the related borrower is complying with the terms of such Payment Accommodation. For the avoidance of doubt, with respect to clause (iv) above, neither (A) a Government-Sponsored Relief Modification with respect to any Mortgage Loan or Serviced Whole Loan nor (B) any default that would have existed but for such Government-Sponsored Relief Modification will constitute a special servicing transfer event, for so long as the related borrower is complying with the terms of such Government-Sponsored Relief Modification.

 

“Signature Law”: As defined in Section 13.02(b).

 

“Significant Obligor”: As defined in Section 11.16.

 

“Significant Obligor NOI Quarterly Filing Deadline”: With respect to each calendar quarter (other than the fourth calendar quarter of any calendar year), the date that is fifteen (15) days after the Distribution Date occurring on or immediately following the date on which financial statements for such calendar quarter are required to be delivered to the related lender under the related Mortgage Loan documents.

 

“Significant Obligor NOI Yearly Filing Deadline”: With respect to each calendar year, the date that is the 90th day after the end of such calendar year.

 

“Similar Law”: As defined in Section 5.03(n).

 

“SOHO 2021-SOHO TSA”: The trust and servicing agreement, dated and effective as of July 30, 2021, between GS Mortgage Securities Corporation II, as depositor, KeyBank National Association, as servicer, Midland Loan Services, a Division of PNC Bank, National Association, as special servicer, U.S. Bank, National Association, as certificate administrator, trustee and custodian, and Pentalpha Surveillance LLC, as operating advisor, as from time to time amended, supplemented or modified.

 

 -136-

 

 

“Sole Certificateholder”: Any Certificate Owner, or Certificate Owners acting in unanimity, of a Book-Entry Certificate or a Holder of a Definitive Certificate holding 100% of then-outstanding Class X-F, Class X-G, Class X-H, Class F, Class G and Class H Certificates; provided, however, that the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests have been retired.

 

“Special Notice”: As defined in Section 5.06.

 

“Special Servicer”: With respect to (i) each of the Mortgage Loans (other than any NCB Mortgage Loan, any Non-Serviced Mortgage Loan and any Excluded Special Servicer Loan), the Serviced Companion Loans, any REO Property acquired by the Trust with respect to any such Mortgage Loan and any matters relating to the foregoing, the General Special Servicer, and its successors in interest and assigns, or any successor special servicer appointed as herein provided, (ii) any NCB Mortgage Loan, any REO Property acquired by the Trust with respect to any such NCB Mortgage Loan and any matters relating to the foregoing, the NCB Special Servicer and (iii) any Excluded Special Servicer Loan, if any, the related Excluded Special Servicer appointed pursuant to Section 7.01(g) of this Agreement, as applicable and as the context may require.

 

“Special Servicing Fee”: With respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee payable to the related Special Servicer pursuant to Section 3.11(b).

 

“Special Servicing Fee Rate”: With respect to each Specially Serviced Loan and each REO Loan (other than a Non-Serviced Mortgage Loan) on a loan-by-loan basis at a rate equal to 0.25000% per annum subject to a minimum monthly fee of $3,500, computed on the basis of the Stated Principal Balance of the related Mortgage Loan (including any REO Loan) and Companion Loan, as applicable, in the same manner as interest is calculated on such Specially Serviced Loan.

 

“Specially Serviced Loan”: As defined in Section 3.01(a).

 

“Sponsors”: The Mortgage Loan Sellers.

 

“Startup Day”: The day designated as such in Section 10.01(b).

 

“Stated Principal Balance”: With respect to any Mortgage Loan, as of any date of determination, an amount equal to (x) the Cut-off Date Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage Loan, as of the date it is added to the Trust, the unpaid principal balance of such Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution, whether or not received) minus (y) the sum of:

 

(a)           the principal portion of each Periodic Payment due on such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, due after the Due Date in the related month of substitution), to the extent received from the Mortgagor or advanced by the applicable Master Servicer;

 

 -137-

 

 

(b)          all Principal Prepayments received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution);

 

(c)           the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on such Mortgage Loan) and Liquidation Proceeds received with respect to such Mortgage Loan after the Cut-off Date (or in the case of a Qualified Substitute Mortgage Loan, after the Due Date in the related month of substitution); and

 

(d)          any reduction in the outstanding principal balance of such Mortgage Loan resulting from a Deficient Valuation or a modification of such Mortgage Loan pursuant to the terms and provisions of this Agreement that occurred prior to the end of the Collection Period for the most recent Distribution Date.

 

With respect to any REO Loan that is a successor to a Mortgage Loan, as of any date of determination, the Stated Principal Balance shall be an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage Loan as of the date of the related REO Acquisition, minus (y) the sum of:

 

(x)     the principal portion of any P&I Advance made with respect to such REO Loan; and

 

(y)     the principal portion of all Insurance and Condemnation Proceeds (to the extent allocable to principal on the related Mortgage Loan), Liquidation Proceeds and REO Revenues received with respect to such REO Loan.

 

A Mortgage Loan or an REO Loan that is a successor to a Mortgage Loan shall be deemed to be part of the Trust Fund and to have an outstanding Stated Principal Balance until the Distribution Date on which the payments or other proceeds, if any, received in connection with a Liquidation Event in respect thereof are to be (or, if no such payments or other proceeds are received in connection with such Liquidation Event, would have been) distributed to Certificateholders.

 

With respect to each Companion Loan on any date of determination, the Stated Principal Balance shall equal the unpaid principal balance of such Companion Loan as of such date. On any date of determination, the Stated Principal Balance of each Whole Loan shall equal the sum of the Stated Principal Balances of the related Mortgage Loan and the related Companion Loan(s), as applicable, on such date.

 

With respect to any REO Loan that is a successor to a Companion Loan as of any date of determination, the Stated Principal Balance shall equal (x) the Stated Principal Balance of the predecessor Companion Loan as of the date of the related REO Acquisition, minus (y) the principal portion of any amounts allocable to the related Companion Loan in accordance with the related Intercreditor Agreement.

 

With respect to any Mortgage Loan or REO Loan that is paid in full or any Mortgage Loan or REO Loan (or REO Property) liquidated, as of the first Distribution Date that follows the end of the Collection Period during which payments or other proceeds are received in

 

 -138-

 

 

connection with a Liquidation Event with respect to such Mortgage Loan or REO Loan (or REO Property), as applicable, notwithstanding that a loss may occur in connection with such Liquidation Event, the Stated Principal Balance of the Mortgage Loan or REO Loan shall be zero.

 

“Subcontractor”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing (as “servicing” is commonly understood by participants in the mortgage-backed securities market) of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of a Master Servicer, a Special Servicer, the Operating Advisor, an Additional Servicer or a Sub-Servicer.

 

“Subject Loans”: As defined in Section 12.02(b).

 

“Subordinate Certificate”: Any Class A-S Exchangeable Certificate, Class B Exchangeable Certificate, Class C Exchangeable Certificate or Class D, Class E, Class F, Class G or Class H Certificate.

 

“Subordinate Companion Holder”: The holder of any AB Subordinate Companion Loan or any Subordinate Companion Loan.

 

“Subordinate Companion Loan”: A Companion Loan that is subordinate in right of payment to the related Mortgage Loan.

 

“Sub-Servicer”: Any Person that services Mortgage Loans on behalf of a Master Servicer, a Special Servicer or an Additional Servicer and is responsible for the performance (whether directly or through Sub-Servicers or Subcontractors) of a substantial portion of the material servicing functions required to be performed by such Master Servicer, such Special Servicer or an Additional Servicer under this Agreement, with respect to some or all of the Mortgage Loans that are identified in Item 1122(d) of Regulation AB.

 

“Sub-Servicing Agreement”: The written contract between a Master Servicer or a Special Servicer, as the case may be, and any Sub-Servicer relating to servicing and administration of Mortgage Loans as provided in Section 3.20.

 

“Substitution Shortfall Amount”: With respect to a substitution pursuant to Section 2.03(b), an amount equal to the excess, if any, of the Purchase Price of the Mortgage Loan being replaced calculated as of the date of substitution over the Stated Principal Balance of the related Qualified Substitute Mortgage Loan after application of all scheduled payments of principal and interest due during or prior to the month of substitution. In the event that one or more Qualified Substitute Mortgage Loans are substituted (at the same time by the same Mortgage Loan Seller) for one or more removed Mortgage Loans, the Substitution Shortfall Amount shall be determined as provided in the preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage Loan(s) being replaced and the aggregate Stated Principal Balances of the related Qualified Substitute Mortgage Loan(s).

 

“Surviving Entity”: As defined in Section 6.03(b).

 

 -139-

 

 

“Tax Returns”: The federal income tax returns on (i) Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each Trust REMIC due to its respective classification as a REMIC under the REMIC Provisions and (ii) Internal Revenue Service Form 1041 or Internal Revenue Service Form 1099, as applicable, or any successor forms to be filed on behalf of the Grantor Trust, together with any and all other information, reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal tax law or Applicable State and Local Tax Law.

 

“Temporary Regulation S Book-Entry Certificate”: As defined in Section 5.02(a).

 

“Termination Purchase Amount”: The sum of (1) the aggregate Purchase Price of all the Mortgage Loans (exclusive of REO Loans) then included in the Trust, (2) the appraised value of the Trust’s portion of all REO Properties then included in the Trust (which fair market value for any REO Property may be less than the Purchase Price for the corresponding REO Loan), as determined by an appraiser selected by the applicable Special Servicer and approved by the applicable Master Servicer and the Controlling Class and (3) if the Mortgaged Property secures a Non-Serviced Mortgage Loan and is an REO Property under the terms of the related Non-Serviced PSA, the pro rata portion of the fair market value of the related property, as determined by the related Non-Serviced Master Servicer in accordance with clause (2) above.

 

“Test”: As defined in Section 12.01(b)(iv).

 

“Transaction Parties”: As defined in Section 5.03(t).

 

“Transfer”: Any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.

 

“Transferable Servicing Interest”: With respect to each Mortgage Loan or Serviced Pari Passu Companion Loan (and any successor REO Loan with respect thereto), the amount by which the related Servicing Fee otherwise payable to the applicable Master Servicer hereunder exceeds the sum of (i) the fee payable to the applicable Master Servicer as the portion of the Servicing Fee attributable to primary servicing and (ii) the amount of the Servicing Fee calculated using the Retained Fee Rate, which Transferable Servicing Interest is subject to reduction by the Trustee pursuant to Section 3.11(a) of this Agreement. For the avoidance of doubt, the Transferable Servicing Interest (A) with respect to each NCB Mortgage Loan is six (6) basis points, and (B) with respect to each Mortgage Loan (other than the NCB Mortgage Loans) is zero.

 

“Transferee”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

“Transferee Affidavit”: As defined in Section 5.03(p)(ii).

 

“Transferor”: Any Person who is disposing by Transfer any Ownership Interest in a Certificate.

 

 -140-

 

 

“Transferor Letter”: As defined in Section 5.03(p)(ii).

 

“Trust”: The trust created hereby and to be administered hereunder. The Trust shall be named: “BANK 2021-BNK37”.

 

“Trust Fund”: The corpus of the Trust created hereby and to be administered hereunder, consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement (including any Qualified Substitute Mortgage Loan replacing a removed Mortgage Loan), together with the Mortgage Files relating thereto (subject to, in the case of a Serviced Whole Loan, the interests of the related Serviced Companion Noteholder in the related Mortgage File); (ii) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any REO Property (to the extent of the Trust’s interest therein) or the Trust’s beneficial interest in the Mortgaged Property securing a Non-Serviced Whole Loan acquired under the related Non-Serviced PSA; (iv) all revenues received in respect of any REO Property (to the extent of the Trust’s interest therein); (v) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Trust’s interest therein); (vi) any Assignment of Leases and any security agreements (to the extent of the Trust’s interest therein); (vii) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Trust’s interest therein); (viii) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Trust’s interest therein), amounts on deposit in the Collection Accounts (to the extent of the Trust’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Trust’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Trust’s interest in such REO Account), including any reinvestment income, as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the Trust’s interest therein); (x) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent transferred to the Trustee); (xi) the Lower-Tier Regular Interests; and (xii) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor). For the avoidance of doubt, no Retained Defeasance Rights and Obligations will be an asset of the Trust.

 

“Trust REMIC”: As defined in the Preliminary Statement.

 

“Trustee”: Wilmington Trust, National Association, or its successor in interest, in its capacity as trustee and its successors in interest, or any successor trustee appointed as herein provided.

 

“Trustee Fee”: The fee to be paid to the Trustee as compensation for the Trustee’s activities under this Agreement, which fee is included as part of the Certificate

 

 -141-

 

 

Administrator Fee. No portion of the Trustee Fee shall be calculated by reference to any Companion Loan or the Stated Principal Balance of any Companion Loan. The Trustee Fee shall be equal to $290 per month and shall be paid as a portion of the Certificate Administrator Fee.

 

“UCC”: The Uniform Commercial Code, as enacted in each applicable state.

 

“UCC Financing Statement”: A financing statement prepared and filed pursuant to the UCC, as in effect in the relevant jurisdiction.

 

“Uncovered Amount”: With respect to any Master Servicer’s Collection Account, any additional trust fund expense, Nonrecoverable Advance or other item that would be payable or reimbursable out of general funds (as opposed to a specific source of funds) in such Collection Account pursuant to this Agreement, but which cannot be so paid or reimbursed because such general funds are insufficient to cover such payment or reimbursement; provided, that any such additional trust fund expense, Nonrecoverable Advance or other item shall be an Uncovered Amount only to the extent that such general funds are insufficient to cover the payment or reimbursement thereof.

 

“Underwriters”: Wells Fargo Securities, LLC, BofA Securities, Inc., Morgan Stanley & Co. LLC., Academy Securities, Inc., Drexel Hamilton, LLC and Siebert Williams Shank & Co., LLC.

 

“Uninsured Cause”: Any cause of damage to property subject to a Mortgage such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies or flood insurance policies required to be maintained pursuant to Section 3.07.

 

“United States Securities Person”: Any “U.S. person” as defined in Rule 902(k) of Regulation S.

 

“Unliquidated Advance”: Any Advance previously made by a party hereto that has been previously reimbursed, as between the Person that made the Advance hereunder, on the one hand, and the Trust, on the other, as part of a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the related Mortgage Loan or REO Property in respect of which the Advance was made.

 

“Unscheduled Principal Distribution Amount”: With respect to any Distribution Date and the Mortgage Loans, the aggregate of the following: (a) all Principal Prepayments received on such Mortgage Loan on or prior to the Determination Date and (b) the principal portions of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued interest on Advances and other additional expenses of the Trust incurred in connection with the related Mortgage Loan) and, if applicable, REO Revenues received with respect to such Mortgage Loan and any REO Loans on or prior to the related Determination Date, but in each case only to the extent that such principal portion represents a recovery of principal for which no advance was previously made pursuant to Section 4.03 in respect of a preceding Distribution Date.

 

“Unsolicited Information”: As defined in Section 12.01(b)(iii).

 

 -142-

 

 

“Upper-Tier REMIC”: One of the REMICs comprising the Trust, the assets of which consist of the Lower-Tier Regular Interests and such amounts as shall from time to time be held in the Upper-Tier REMIC Distribution Account.

 

“Upper-Tier REMIC Distribution Account”: The segregated account or accounts (or a subaccount of the Distribution Account) created and maintained by the Certificate Administrator (on behalf of the Trustee) pursuant to Section 3.04(b) in trust for the Certificateholders, which shall initially be entitled “Computershare Trust Company, N.A., as Certificate Administrator, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Upper-Tier REMIC Distribution Account”. Any such account or accounts shall be an Eligible Account.

 

“U.S. Dollars” or “$”: Lawful money of the United States of America.

 

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

 

“Voting Rights”: The portion of the voting rights of all of the Certificates which is allocated to any Certificate. At all times during the term of this Agreement, the Voting Rights shall be allocated among the various Classes of Certificateholders as follows: (i) 2% in the case of the Class X Certificates (allocated pro rata, based upon their respective Notional Amounts as of the date of determination) and (ii) in the case of the Principal Balance Certificates (other than the RR Interest), a percentage equal to the product of 98% and a fraction, the numerator of which is equal to the Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Allocated Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of such Class, in each case, determined as of the Distribution Date immediately preceding such time, and the denominator of which is equal to the aggregate Certificate Balance (and solely in connection with any vote for purposes of determining whether to remove the applicable Special Servicer pursuant to Section 7.01(d) or the Operating Advisor pursuant to Section 3.26(j), taking into account any notional reduction in the Certificate Balance for Allocated Appraisal Reduction Amounts allocated to the Certificates pursuant to Section 4.05(a)) of the Principal Balance Certificates and the RR Interest, determined as of the Distribution Date immediately preceding such time. The Voting Rights of any Class of Certificates shall be allocated among Certificateholders of such Class in proportion to their respective Percentage Interests. None of the Class R Certificates or the RR Interest will be entitled to any Voting Rights.

 

 -143-

 

 

“Weighted Average Net Mortgage Rate”: With respect to any Distribution Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage Loans (including any Non-Serviced Mortgage Loans) as of the first day of the related Collection Period, weighted on the basis of their respective Stated Principal Balances as of the first day of such Collection Period (after giving effect to any payments received during any applicable Grace Period).

 

“WHFIT”: A “Widely Held Fixed Investment Trust” as that term is defined in Treasury Regulations Section 1.671 5(b)(22) or successor provisions.

 

“WHFIT Regulations”: Treasury Regulations Section 1.671-5, as amended or successor provisions.

 

“WHMT”: A “Widely Held Mortgage Trust” as that term is defined in Treasury Regulations Section 1.671-5(b)(23) or successor provisions.

 

“Whole Loan”: With respect to any Mortgage Loan with a related Companion Loan, such Mortgage Loan and its related Companion Loan(s), collectively, as identified in the “Whole Loan” chart in the Preliminary Statement. With respect to each Whole Loan, references herein to each such Whole Loan shall be construed to refer to the aggregate indebtedness under the related Mortgage Loan and the related Companion Loan(s).

 

“Withheld Amounts”: As defined in Section 3.21(a).

 

“Workout-Delayed Reimbursement Amounts”: With respect to any Mortgage Loan, the amount of any Advances made with respect to such Mortgage Loan on or before the date such Mortgage Loan becomes (or, but for the making of three Periodic Payments under its modified terms, would then constitute) a Corrected Loan, together with (to the extent accrued and unpaid) interest on such Advances, to the extent that (i) such Advance (and accrued and unpaid interest thereon) is not reimbursed to the Person who made such Advance on or before the date, if any, on which Mortgage Loan becomes a Corrected Loan and (ii) the amount of such Advance (and accrued and unpaid interest thereon) becomes an obligation of the related Mortgagor to pay such amount under the terms of the modified loan documents. That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine in the future that such amount instead constitutes a Nonrecoverable Advance.

 

“Workout Fee”: The fee paid to the applicable Special Servicer with respect to each Corrected Loan in accordance with Section 3.11(c).

 

“Workout Fee Rate”: With respect to each Corrected Loan and in accordance with Section 3.11(c), a fee of 1.00% of each collection (other than Penalty Charges and Excess Interest) of interest and principal (other than any amount for which a Liquidation Fee would be paid), including (i) Periodic Payments, (ii) Balloon Payments (other than the Balloon Payments that are received within one hundred twenty (120) days following the related Maturity Date as a result of a Mortgage Loan or Serviced Whole Loan being refinanced or otherwise repaid in full if such Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan solely because of a Servicing Transfer Event described in clause (i) of the definition of “Servicing Transfer Event”), (iii) Principal Prepayments and (iv) payments (other than those included in clause (i) or

 

 -144-

 

 

(ii) of this definition) at maturity or on the Anticipated Repayment Date, received on each Corrected Loan for so long as it remains a Corrected Loan.

 

“XML”: Extensible Markup Language.

 

“Yield Maintenance Charge”: With respect to any Mortgage Loan, any premium, fee or other additional amount paid or payable, as the context requires, by a Mortgagor in connection with a principal prepayment on, or other early collection of principal of, a Mortgage Loan, calculated, in whole or in part, pursuant to a yield maintenance formula or otherwise pursuant to a formula that reflects the lost interest, including any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.

 

Section 1.02    Certain Calculations.   Unless otherwise specified herein, for purposes of determining amounts with respect to the Certificates and the rights and obligations of the parties hereto, the following provisions shall apply:

 

(i)         All calculations of interest (other than as provided in the related Mortgage Loan documents) provided for herein shall be made on the basis of a 360-day year consisting of twelve 30-day months.

 

(ii)        Any Mortgage Loan or Companion Loan payment is deemed to be received on the date such payment is actually received by the applicable Master Servicer or the applicable Special Servicer; provided, however, that for purposes of calculating distributions on the Certificates, Principal Prepayments with respect to any Mortgage Loan are deemed to be received on the date they are applied in accordance with the Servicing Standard consistent with the terms of the related Mortgage Note and Mortgage to reduce the outstanding principal balance of such Mortgage Loan, on which interest accrues.

 

(iii)       Any reference to the Certificate Balance of any Class of Principal Balance Certificates on or as of a Distribution Date shall refer to the Certificate Balance of such Class of Principal Balance Certificates on such Distribution Date after giving effect to (a) any distributions made on the immediately preceding Distribution Date pursuant to Section 4.01(a), Section 4.01(b) or Section 4.01(c), as applicable, (b) any Realized Losses or Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates on the immediately preceding Distribution Date pursuant to Section 4.04, and (c) any recoveries on the related Mortgage Loans of Nonrecoverable Advances (plus interest thereon) that were previously reimbursed from principal collections on the related Mortgage Loans, that resulted in a reduction of the Principal Distribution Amount or the Retained Certificate Principal Distribution Amount, as applicable, which recoveries are allocated to such Class of Principal Balance Certificates on the immediately preceding Distribution Date and added to the Certificate Balance pursuant to Section 4.04(a).

 

(iv)      Unless otherwise specifically provided for herein, all net present value calculations and determinations made with respect to a Mortgage Loan, Serviced

 

 -145-

 

 

Companion Loan, Mortgaged Property or REO Property (including for purposes of the definition of “Servicing Standard”) shall be made, in the event the Mortgage Loan documents are silent, using a discount rate (a) for principal and interest payments on a Mortgage Loan, Serviced Companion Loan, as applicable, or sale by the applicable Special Servicer of a Defaulted Loan, the highest of (x) the rate determined by the applicable Master Servicer or the applicable Special Servicer, as applicable, that approximates the market rate that would be obtainable by the related Mortgagor on similar non-defaulted debt of such Mortgagor as of such date of determination, (y) the Mortgage Rate on the applicable Mortgage Loan or Serviced Companion Loan based on its outstanding principal balance and (z) the yield on 10-year U.S. treasuries as of such date of determination, and (b) for all other cash flows, including property cash flow, the “discount rate” set forth in the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property.

 

(v)       Any reference to “expense of the trust” or “additional trust fund expense” or words of similar import shall be construed to mean, for any Serviced Mortgage Loan, an expense that shall be applied in accordance with the related Intercreditor Agreement or, if no application is specified in the related Intercreditor Agreement, then, to the extent such Intercreditor Agreement refers to this Agreement for the application of trust fund expenses or such Intercreditor Agreement does not prohibit the following application of trust fund expenses (i) with respect to any Serviced Whole Loan, first, to any related AB Subordinate Companion Loan and then, pro rata and pari passu, to the Trust and any related Serviced Pari Passu Companion Loans in accordance with the respective Stated Principal Balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loans.

 

[End of Article I]

 

Article II

CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES

 

Section 2.01       Conveyance of Mortgage Loans.  (a) The Depositor, concurrently with the execution and delivery hereof, does hereby establish a trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and convey to the Trustee, in trust, without recourse, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests) all the right, title and interest of the Depositor, whether now owned or existing or hereafter acquired or arising, including any security interest therein for the benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4 (other than Section 4(c), (d), (e) and (g)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements; (iii) the Intercreditor Agreements; (iv) all scheduled or unscheduled payments on or collections in respect of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan, the Due Date in the month of substitution); (v) any REO Property (to the extent of the Depositor’s interest therein) or the Depositor’s beneficial interest in the Mortgaged Property securing a Non-Serviced

 

 -146-

 

 

Whole Loan acquired under the related Non-Serviced PSA; (vi) all revenues received in respect of any REO Property (to the extent of the Depositor’s interest therein); (vii) the applicable Master Servicer’s, the applicable Special Servicer’s, the Certificate Administrator’s and the Trustee’s rights under the insurance policies with respect to the Mortgage Loans required to be maintained pursuant to this Agreement and any proceeds thereof (to the extent of the Depositor’s interest therein); (viii) any Assignment of Leases and any security agreements (to the extent of the Depositor’s interest therein); (ix) any letters of credit, indemnities, guaranties or lease enhancement policies given as additional security for any related Mortgage Loans (to the extent of the Depositor’s interest therein); (x) all assets deposited in the Loss of Value Reserve Fund and the Servicing Accounts (to the extent of the Depositor’s interest therein), amounts on deposit in the Collection Accounts (to the extent of the Depositor’s interest therein), the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Excess Interest Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Gain-on-Sale Reserve Account), the Retained Certificate Gain-on-Sale Reserve Account (to the extent of the Depositor’s interest in such Retained Certificate Gain-on-Sale Reserve Account) and any REO Account (to the extent of the Depositor’s interest in such REO Account), including any reinvestment income, as applicable; (xi) any Environmental Indemnity Agreements (to the extent of the Depositor’s interest therein); (xii) the Lower-Tier Regular Interests; (xiii) with respect to the Exchangeable Certificates, each of the Exchangeable Upper-Tier Regular Interests; (xiv) the rights and remedies of the Depositor under each Mortgage Loan Purchase Agreement (to the extent not covered by clause (ii) above); and (xv) the proceeds of the foregoing (other than any interest earned on deposits in the lock-box accounts, cash collateral accounts, escrow accounts and any reserve accounts, to the extent such interest belongs to the related Mortgagor, and any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans) (collectively, the “Conveyed Property”). Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans (in each case, other than (i) payments of principal and interest due and payable on the Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off Date; (iii) with respect to those Mortgage Loans that were closed in November 2021 but have their first Due Date after November 2021, any interest amounts relating to the period prior to the Cut-off Date and (iv) any Retained Defeasance Rights and Obligations with respect to the Mortgage Loans for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC is the related Mortgage Loan Seller). The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and, notwithstanding Section 13.07, is intended by the parties to constitute a sale. In connection with the assignment to the Trustee of Sections 2, 3, 4 (other than Section 4(c), (d), (e) and (g)) and 5 (other than Section 5(f), (g), (h) and (i)) and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18 of each of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get the benefit of Sections 10, 13 and 15 thereof in connection with any exercise of rights under the assigned Sections, and the Depositor shall use its best efforts to make available to the Trustee the benefits of Sections 10, 13 and 15 in connection therewith.

 

(b)       In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, the Mortgage Loan Sellers pursuant to the applicable Mortgage Loan Purchase Agreement to deliver and deposit with, or cause to be delivered to and deposited with, the Custodian, (A) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to

 

 -147-

 

 

the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (B) on or before the date that is 45 days following the Closing Date, the remainder of the Mortgage File for each Mortgage Loan (together with the related Mortgage Loan Checklist) and, except in the case of a Mortgage Loan that is a Non-Serviced Whole Loan as of the Closing Date, any other items required to be delivered or deposited by the Mortgage Loan Seller pursuant to this Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the applicable Master Servicer) for each Mortgage Loan. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied upon such Mortgage Loan Seller’s delivery of a copy or duplicate original of such Mortgage Note, together with an affidavit certifying that the original thereof has been lost or destroyed and indemnifying the Trustee and the Trust. If the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii) and (ix) of the definition of “Mortgage File” (or, if applicable, a copy thereof) with evidence of filing or recording thereon (if intended to be recorded or filed), solely because of a delay caused by the public filing or recording office where such document or instrument has been delivered, or will be delivered within 10 Business Days of the Closing Date, for filing or recordation, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a provisional basis as of the Closing Date as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a duplicate original or a photocopy of such non-delivered document or instrument (certified by the applicable public filing or recording office, the applicable title insurance company or the applicable Mortgage Loan Seller to be a true and complete copy of the original thereof submitted or to be submitted for filing or recording) is delivered to the Custodian on or before the date set forth herein, and either the original of such non-delivered document or instrument, or a photocopy thereof (certified by the appropriate county recorder’s office or the applicable title insurance company (so long as such county recorder’s office or title insurance company provides such certification), in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File”, to be a true and complete copy of the original thereof submitted for recording), with evidence of filing or recording thereon, is delivered to the Custodian within one hundred-eighty (180) days of the Closing Date (or within such longer period, not to exceed eighteen (18) months, after the Closing Date as the Custodian shall consent to as long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office such original or photocopy). If the applicable Mortgage Loan Seller is required to, but cannot, deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents and/or instruments referred to in clauses (ii), (iv), (vii), and (ix) (or, if applicable, a copy thereof) of the definition of “Mortgage File,” with evidence of filing or recording thereon (if intended to be recorded or filed), for any other reason, including, without limitation, that such non-delivered document or instrument has been lost or destroyed, the delivery requirements of the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be deemed to

 

 -148-

 

 

have been satisfied as to such non-delivered document or instrument, and such non-delivered document or instrument shall be deemed to have been included in the Mortgage File, if a photocopy of such non-delivered document or instrument (with evidence of filing or recording thereon and certified in the case of the documents and/or instruments referred to in clause (ii) of the definition of “Mortgage File” by the appropriate county recorder’s office or the applicable title insurance company (so long as such county recorder’s office or title insurance company provides such certification) to be a true and complete copy of the original thereof submitted for recording) is delivered to the Custodian on or before the date set forth herein. Neither the Trustee nor any Custodian shall in any way be liable for any failure by any Mortgage Loan Seller or the Depositor to comply with the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, subject to the next sentence, the applicable Mortgage Loan Seller is required to, but cannot, deliver (in complete and recordable form or form suitable for filing or recording, if applicable) any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File” solely because of the unavailability of filing or recording information as to any existing document or instrument, such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering with respect to such Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H; provided that all required original assignments with respect to such Mortgage Loan (in fully complete and recordable form or form suitable for filing or recording, if applicable) are delivered to the Custodian within one hundred-eighty (180) days after the Closing Date (or within such longer period, not to exceed eighteen (18) months, which the Custodian shall consent to so long as the applicable Mortgage Loan Seller is, as certified in writing to the Trustee and the Custodian no less often than every ninety (90) days following such 180–day period after the Closing Date, attempting in good faith to obtain from the appropriate public filing office or county recorder’s office the applicable filing or recording information as to the related document or instrument); and provided, further, that in the case of a Non-Serviced Mortgage Loan, the delivery of any such assignments shall be subject to clause (e) and clause (f) of the first proviso to the definition of “Mortgage File” herein. As to any Mortgage Loan, the related Mortgage Loan Seller or its agent is responsible for recording or filing, as applicable, any one of the assignments in favor of the Trustee referred to in clause (iii), clause (v), or clause (x) of the definition of “Mortgage File”, and such Mortgage Loan Seller may provisionally satisfy the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) with respect to such assignment by delivering to the Custodian with respect to such Mortgage Loan on the Closing Date a copy of such assignment in the form sent for recording or filing or (except for recording or filing information not yet available) to be sent for recording or filing; provided that an original or copy of such assignment (with evidence of recording or filing, as applicable, indicated thereon) shall be delivered to the Custodian as contemplated by Section 2.01(c) of this Agreement. Notwithstanding anything herein to the contrary, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank

 

 -149-

 

 

indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the applicable Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary’s interest from such Mortgage Loan Seller to the applicable Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the applicable Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the applicable Master Servicer on behalf of the Trust. Regardless of the manner of delivery, the related Mortgage Loan Seller is required pursuant to the related Mortgage Loan Purchase Agreement to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of such Mortgage Loan Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit.

 

(c)        Except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller is required at its sole cost and expense, to itself, or to engage a third party to, put each Assignment of Mortgage, each assignment of Assignment of Leases and each assignment of each UCC Financing Statement (collectively, the “Assignments” and, individually, “Assignment”) relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper form for filing or recording, as applicable, and to submit such Assignments for filing or recording, as the case may be, in the applicable public filing or recording office. On the Closing Date, the Mortgage Loan Sellers may deliver one (1) omnibus assignment for all such Mortgage Loans substantially in the form of Exhibit H hereto to the Custodian as provided in Section 2.01(b). Except under the circumstances provided for in the last sentence of this Section 2.01(c) and except in the case of a Non-Serviced Mortgage Loan, the related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan Seller’s expense will, promptly (and in any event within one hundred-twenty (120) days after the later of the Closing Date and the related Mortgage Loan Seller’s actual receipt of the related documents and the necessary recording and filing information) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC Financing Statements, as appropriate, each Assignment. Each such Assignment submitted for recording shall reflect that it (or a file copy thereof in the case of a UCC Assignment) should be returned by the public recording office to the Custodian or its designee following recording or filing (or to the related Mortgage Loan Seller or its agent who will then be responsible for delivery of the same to the Custodian or its designee). Any such Assignment received by the Custodian shall be promptly included in the related Mortgage File and be deemed a part thereof, and any such Assignment received by the related Mortgage Loan Seller or its agent shall be required to be delivered to the Custodian to be included as part of the related Mortgage File within thirty (30) days after receipt. If any such document or instrument is determined to be incomplete or not to meet the recording or filing requirements of the jurisdiction in which it is to be recorded or filed, or is lost by the public office or returned unrecorded or unfiled, as the case may be, because of a defect therein, on or about one hundred-eighty (180) days after the Closing Date, the related Mortgage Loan Seller or its designee shall prepare, at its own expense, a substitute therefor or cure such defect, as the case may be, and thereafter the related Mortgage Loan Seller or its

 

 -150-

 

 

designee shall, at the expense of such Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or filed, as appropriate. If, by the first anniversary of the Closing Date, the Custodian has not received confirmation of the recording or filing as the case may be, of any such Assignment, it shall so advise the related Mortgage Loan Seller who may then pursue such confirmation itself or request that the Custodian pursue such confirmation at the related Mortgage Loan Seller’s expense, and upon such a request and provision for payment of such expenses satisfactory to the Custodian, the Custodian, at the expense of the applicable Mortgage Loan Seller, shall cause a search of the land records of each applicable jurisdiction and of the records of the offices of the applicable Secretary of State for confirmation that the Assignment appears in such records and retain a copy of such confirmation in the related Mortgage File. In the event that confirmation of the recording or filing of an Assignment cannot be obtained, the Custodian or the related Mortgage Loan Seller, as applicable, shall promptly inform the other and the Custodian shall provide such Mortgage Loan Seller with a copy of the Assignment and request the preparation of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for the preparation of replacement Assignments for any Assignments which, having been properly submitted for filing or recording to the appropriate governmental office by the Custodian, fail to appear of record and must be resubmitted. Notwithstanding the foregoing, there shall be no requirement to record any assignment to the Trustee referred to in clause (iii) or (v) of the definition of “Mortgage File,” or to file any UCC-3 to the Trustee referred to in clause (ix) of the definition of “Mortgage File,” in those jurisdictions where, in the written opinion of local counsel (which opinion shall be an expense of the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such recordation and/or filing is not required to protect the Trustee’s interest in the related Mortgage Loan against sale, further assignment, satisfaction or discharge by the related Mortgage Loan Seller, the applicable Master Servicer, the applicable Special Servicer, any Sub-Servicer or the Depositor.

 

(d)       All documents and records in the Depositor’s or the applicable Mortgage Loan Seller’s possession relating to the Mortgage Loans (including, in the case of such Mortgage Loan Seller, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, but in any case excluding the applicable Mortgage Loan Seller’s internal communications (including such communications between such Mortgage Loan Seller and its Affiliates) or underwriting analysis (including documents prepared by the applicable Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents or any documents or materials prepared by it or its Affiliates for internal uses, attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or credit underwriting or due diligence analyses or data) that (i) are not required to be a part of a Mortgage File in accordance with the definition thereof and (ii) are reasonably necessary for the servicing of each such Mortgage Loan, together with copies of all documents in each Mortgage File and each Mortgage Loan Checklist, shall be delivered or otherwise made available by the Depositor or the applicable Mortgage Loan Seller to the applicable Master Servicer within five (5) Business Days after the Closing Date and shall be held by such Master Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders (and as Holder of the Lower-Tier Regular Interests) and, if applicable, on behalf of the related Companion Holder. Such documents and records shall

 

 -151-

 

 

be any documents and records (with the exception of any items excluded under the immediately preceding sentence) that would otherwise be a part of the Servicing File.

 

(e)        In connection with the Depositor’s assignment pursuant to subsection (a) above, the Depositor shall deliver to the Trustee and the applicable Master Servicer, on or before two (2) Business Days after the Closing Date, a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, as in full force and effect, without amendment or modification, on the Closing Date.

 

(f)         The Depositor shall use its reasonable best efforts to require that, promptly after the Closing Date, but in all events within three (3) Business Days after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds on deposit in escrow accounts maintained with respect to the Mortgage Loans (other than any Non-Serviced Mortgage Loan) transferred by such Mortgage Loan Seller, whether such accounts are held in the name of the applicable Mortgage Loan Seller or any other name to be transferred to the applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.

 

(g)       [RESERVED].

 

(h)       Each Mortgage Loan Purchase Agreement shall provide that within sixty (60) days after the Closing Date, each Mortgage Loan Seller shall deliver or cause to be delivered the Diligence Files for each of its Mortgage Loans to the Depositor by uploading such Diligence Files to the Designated Site. Promptly upon completion of such delivery of the Diligence Files (but in no event later than sixty (60) days after the Closing Date), the applicable Mortgage Loan Seller shall provide the Depositor a certificate (with a copy (which may be sent by e-mail) to each of the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Directing Certificateholder, the Asset Representations Reviewer, the Operating Advisor and the Risk Retention Consultation Party) certifying that the electronic copies of the documents and information uploaded to the Designated Site constitute all documents and information required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the applicable Mortgage Loan Seller (the “Diligence File Certification”).

 

(i)         Within five (5) Business Days of the Closing Date, the Depositor shall deliver in EDGAR-Compatible Format and Excel format to each Master Servicer via email to ssreports@wellsfargo.com (in the case of the General Master Servicer) and investorreporting@ncb.coop (in the case of the NCB Master Servicer) the Initial Schedule AL File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer), the Initial Schedule AL Additional File covering all of the Mortgage Loans (in the case of the General Master Servicer) or the NCB Mortgage Loans (in the case of the NCB Master Servicer) and the Annex A-1 to the Prospectus.

 

(j)        Notwithstanding anything to the contrary contained in this Section 2.01 or in Section 2.02, in connection with each Servicing Shift Whole Loan, (1) instruments of assignment to the Trustee may be in blank and need not be recorded pursuant to this Agreement (other than the endorsements to the note(s) evidencing the related Servicing Shift Mortgage

 

 -152-

 

 

Loan) until the earlier of (i) the Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Non-Serviced PSA, and (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date, in which case assignments and recordations shall be effected in accordance with this Section 2.01 until the occurrence, if any, of the Servicing Shift Securitization Date, (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earliest of (i) the Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Non-Serviced PSA, (ii) the Servicing Shift Whole Loan becoming a Specially Serviced Loan prior to the Servicing Shift Securitization Date in which case such amendment shall be effected in accordance with the terms of this Section 2.01 and (iii) the earlier of (A) 180 days after the Closing Date and (B) any such time as any such letter of credit is required to be drawn upon by the Master Servicer in which case such amendment shall be effected in accordance with the terms of this Section 2.01, and (3) on and following the Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Non-Serviced Depositor, at its own expense, shall be (a) entitled to direct in writing, which may be conclusively relied upon by the Custodian, the Custodian to deliver the originals of all the Mortgage Loan documents relating to the Servicing Shift Whole Loan in its possession (other than the original note(s) evidencing the Servicing Shift Mortgage Loan) to the related Non-Serviced Trustee or the related Non-Serviced Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Mortgage Loan documents related to the Servicing Shift Whole Loan so delivered to such Non-Serviced Trustee or such Non-Serviced Custodian, (c) entitled to cause the completion (or, in the event of a recordation as contemplated by clause (1)(ii) of this paragraph, the preparation, execution and delivery) and recordation of instruments of assignment in the name of the related Non-Serviced Trustee or related Non-Serviced Custodian, (d) if the right under clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded, and (e) entitled to require the Master Servicer to transfer, and to cooperate with all reasonable requests in connection with the transfer of, the Servicing File, and any Escrow Payments, reserve funds and items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the Servicing Shift Whole Loan to the related Non-Serviced Master Servicer.

 

(k)       Notwithstanding anything to the contrary contained herein, (i) with respect to a Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to deliver a Mortgage Note (and any related allonge or assignment) to the Custodian shall be limited to delivery of only the Mortgage Note (and any related allonge or assignment) held by such party to the Custodian. With respect to a Joint Mortgage Loan that is serviced under this Agreement, the obligations of the applicable Mortgage Loan Sellers to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the applicable Mortgage Loan Sellers may deliver one Mortgage File or one of any other document required to be delivered with respect to such Mortgage Loan hereunder and such delivery shall satisfy such delivery requirements for each of the applicable Mortgage Loan Sellers.

 

Section 2.02       Acceptance by Trustee.  (a) The Trustee, by the execution and delivery of this Agreement (1) acknowledges receipt by it or the Custodian on its behalf, subject to the provisions of Section 2.01, in good faith and without notice of any adverse claim, of the

 

 -153-

 

 

applicable documents specified in clause (i) of the definition of “Mortgage File” with respect to each Mortgage Loan and of all other assets included in the Trust Fund and (2) declares (a) that it or the Custodian on its behalf holds and will hold such documents and the other documents delivered or caused to be delivered by the Mortgage Loan Sellers that constitute the Mortgage Files in the name of the Trust for the benefit of all present and future Certificateholders and Serviced Companion Noteholders, as applicable, and (b) that it holds and will hold such other assets included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders (and for the benefit of the Trustee as holder of the Lower-Tier Regular Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a copy of such Mortgage Note, together with a signed lost note affidavit and appropriate indemnity and shall thereby be deemed to have satisfied the document delivery requirements of Section 2.01 and of this Section 2.02.

 

(b)       Within sixty (60) days after the Closing Date (or with respect to a Qualified Substitute Mortgage Loan within sixty (60) days after the Due Date in the month of substitution), the Custodian shall review the Mortgage Loan documents delivered or caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and, promptly following such review (but in no event later than sixty (60) days after the Closing Date), the Custodian shall, in the form attached as Exhibit Q, certify in writing to the Depositor, the Master Servicers, the Special Servicers, the Directing Certificateholder (so long as no Consultation Termination Event shall have occurred and be continuing and only with respect to Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder), the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Operating Advisor and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full)) that, except as specifically identified in any exception report annexed to such writing (the “Custodial Exception Report”), (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and to relate to such Mortgage Loan, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of “Mortgage Loan Schedule” is correct. With respect to each Mortgage Loan listed on the Custodial Exception Report, the Custodian shall specifically identify such Mortgage Loan together with the nature of such exception (in the form reasonably acceptable to the Custodian and the related Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by the related Mortgage Loan Seller but are out for filing or recording and have not been returned by the filing office or the recorder’s office).

 

(c)        The Custodian shall review the Mortgage Loan documents received subsequent to the Closing Date; and, on or about the first anniversary of the Closing Date, the Custodian shall, in the form attached as Exhibit Q, certify in writing to each of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Directing Certificateholder and the applicable Mortgage Loan Seller (as to each Mortgage Loan listed on

 

 -154-

 

 

the Mortgage Loan Schedule (other than any related Mortgage Loan as to which a Liquidation Event has occurred) or any related Mortgage Loan specifically identified in any exception report annexed to such writing) that, (i) subject to the first proviso of the definition of “Mortgage File” herein and Section 2.01, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii), if any, of the definition of “Mortgage File”, as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Sellers have been reviewed by the Custodian and appear regular on their face and appear to be executed and relate to such Mortgage Loan, if applicable, and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of “Mortgage Loan Schedule” is correct.

 

(d)       Notwithstanding anything contained in this Section 2.02 and Section 2.03(b) to the contrary, in the case of a Material Defect in any of the documents specified in clauses (ii) through (v), (vii), (viii) and (ix) in the definition of “Mortgage File”, which Material Defect results solely from a delay in the return of the related documents from the applicable filing or recording office and gives rise to a repurchase or substitution obligation on the part of the related Mortgage Loan Seller with respect to the subject Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the Directing Certificateholder, in its sole judgment, may (other than with respect to any Excluded Loan with respect to the Directing Certificateholder and, with respect to any other Mortgage Loan, only prior to the occurrence and continuance of a Control Termination Event), and the applicable Special Servicer may, in accordance with the Servicing Standard, after the occurrence and during the continuance of a Control Termination Event, permit the related Mortgage Loan Seller in lieu of repurchasing or substituting for the related Mortgage Loan, to deposit with the applicable Master Servicer an amount, to be held in trust in a segregated Eligible Account (which may be a sub-account of the related Collection Account), equal to 25% of the Stated Principal Balance of the related Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver to the applicable Master Servicer a letter of credit in such amount, with a copy to the Custodian). Such funds or letter of credit, as applicable, shall be held by the applicable Master Servicer (i) until the date on which the Custodian determines and notifies such Master Servicer that such Material Defect has been cured or the related Mortgage Loan is no longer part of the Trust Fund, at which time such Master Servicer shall return such funds (or letter of credit) to the related Mortgage Loan Seller, or (ii) until same are applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable) as set forth below in this Section 2.02(d) in the event of a repurchase or substitution by the related Mortgage Loan Seller. Notwithstanding the two immediately preceding sentences, if the applicable Master Servicer or the applicable Special Servicer certifies to the Trustee, the Certificate Administrator and the Custodian that it has determined in the exercise of its reasonable judgment that the document with respect to which such Material Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on collateral securing the related Mortgage Loan or for any immediate significant servicing obligation, the related Mortgage Loan Seller shall be required to repurchase or substitute for the related Mortgage Loan in accordance with, and to the extent required by, the terms and conditions of Section 2.03(b) and Section 5 of the related Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall not be required to repurchase the

 

 -155-

 

 

Mortgage Loan for a period of ninety (90) days after receipt of a notice to repurchase (together with any applicable extension period) if it is attempting to recover the document from the applicable filing or recording office and provides an officer’s certificate setting forth what actions such Mortgage Loan Seller is pursuing in connection with such recovery. In the event of a repurchase or substitution, upon the date of such repurchase or substitution, and in the event that the related Mortgage Loan Seller has delivered a letter of credit to the applicable Master Servicer in accordance with this Section 2.02(d), such Master Servicer shall, to the extent necessary, draw on the letter of credit and deposit the proceeds of such draw, into its Collection Account to be applied to the Purchase Price (or the Substitution Shortfall Amount, if applicable, in which event, the amount of such funds or proceeds that exceed the Substitution Shortfall Amount shall be returned to the related Mortgage Loan Seller) in accordance with Section 2.03(b). All such funds deposited in the Collection Accounts shall be invested in Permitted Investments, at the direction and for the benefit of the related Mortgage Loan Seller. Such funds shall be treated as an “outside reserve fund” under the REMIC Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller for federal income tax purposes, which Mortgage Loan Seller shall remain liable for any taxes payable on income or gain with respect thereto.

 

(e)        It is herein acknowledged that neither the Trustee nor any Custodian is under any duty or obligation (i) to determine whether any of the documents specified in clauses (vi), (vii) and (xii) through (xviii) of the definition of “Mortgage File” exist or are required to be delivered by the Depositor, the Mortgage Loan Sellers or any other Person (unless identified on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the documents, instruments, certificates or other papers relating to the Mortgage Loans delivered to it to determine that the same are genuine, enforceable, duly authorized, sufficient to perfect and maintain the perfection of a security interest or appropriate for the represented purpose or that they are other than what they purport to be on their face and, with respect to the documents specified in clause (viii) of the definition of the “Mortgage File”, whether the insurance is effective as of the date of the recordation, whether all endorsements or riders issued are included in the file or if the policy has not been issued whether any acceptable replacement document has been dated the date of the related Mortgage Loan funding. Further, with respect to the UCC Financing Statements referenced in the Mortgage File, absent actual knowledge to the contrary or copies of UCC Financing Statements delivered to the Custodian as part of the Mortgage File indicating otherwise, the Custodian may assume, for the purposes of the filings and the certification to be delivered in accordance with this Section 2.02 that the related Mortgage File should include one state level UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing), or if the Custodian has received notice that a particular UCC Financing Statement was filed as a fixture filing, that the related Mortgage File should include only a local UCC Financing Statement filing for each Mortgaged Property (or with respect to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are named as debtors in the same UCC Financing Statement filing). The assignments of the UCC Financing Statements to be assigned to the Trust will be delivered on the national forms (or on such other form as may be acceptable for filing or recording in the applicable jurisdiction) and in a format suitable for filing or recording, as applicable, and will be filed or recorded in the

 

 -156-

 

 

jurisdiction(s) where such UCC Financing Statements were originally filed or recorded, as indicated in the documents provided, and in accordance with then-current laws.

 

(f)        If, in the process of reviewing the Mortgage Files or at any time thereafter, the Custodian finds any document or documents constituting a part of a Mortgage File and required to be delivered or caused to be delivered by the applicable Mortgage Loan Seller (1) not to have been properly executed, (2) subject to the timing requirements of Sections 2.01(b) and 2.01(c), not to have been delivered, (3) to contain information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule or (4) to be defective on its face (each, a “Defect” in the related Mortgage File), the Custodian shall promptly so notify the Depositor, the Trustee, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Directing Certificateholder, the applicable Mortgage Loan Seller (and in no event later than ninety (90) days after the Closing Date and every calendar quarter thereafter until all Defects are corrected) by providing a Custodial Exception Report setting forth for each affected Mortgage Loan, with particularity, the nature of such Defect (in a form reasonably acceptable to the Custodian and such Mortgage Loan Seller and separating items required to be in the Mortgage File but never delivered from items which were delivered by such Mortgage Loan Seller but are out for recording or filing and have not been returned by the recorder’s office or filing office).

 

(g)       If a Master Servicer or a Special Servicer (i) receives a Repurchase Request or any other request or demand from any Person for a Mortgage Loan Seller to repurchase or replace a Mortgage Loan because of an alleged Defect or Breach (together with a Repurchase Request, a “15Ga-1 Repurchase Request”) (such Master Servicer or such Special Servicer, as applicable, to the extent it receives such 15Ga-1 Repurchase Request, the “Repurchase Request Recipient” with respect to such 15Ga-1 Repurchase Request); or (ii) receives any withdrawal of a 15Ga-1 Repurchase Request by the Person making such 15Ga-1 Repurchase Request or any rejection of a 15Ga-1 Repurchase Request (or such 15Ga-1 Repurchase Request is forwarded to the applicable Master Servicer or the applicable Special Servicer by another party hereto), then the Repurchase Request Recipient shall deliver notice (which may be by electronic format so long as a “backup” hard copy of such notice is also delivered on or prior to the next Business Day) of such 15Ga-1 Repurchase Request or withdrawal or rejection of a 15Ga-1 Repurchase Request (each, a “15Ga-1 Notice”) to the applicable Mortgage Loan Seller (other than in the case of a rejection by such Mortgage Loan Seller) and the Depositor, in each case within ten (10) Business Days from such Repurchase Request Recipient’s receipt thereof.

 

Each 15Ga-1 Notice shall include (i) the identity of the related Mortgage Loan, (ii) the date the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient or the date any withdrawal of the 15Ga-1 Repurchase Request is received by the Repurchase Request Recipient, as applicable, (iii) if known, the basis for the 15Ga-1 Repurchase Request (as asserted in the 15Ga-1 Repurchase Request), (iv) the identity of the Person making such 15Ga-1 Repurchase Request, and (v) a statement from the Repurchase Request Recipient as to whether it currently plans to pursue such 15Ga-1 Repurchase Request.

 

A Repurchase Request Recipient shall not be required to provide any information in a 15Ga-1 Notice protected by the attorney-client privilege or attorney work product doctrines.

 

 -157-

 

 

The Mortgage Loan Purchase Agreements will provide that (i) any 15Ga-1 Notice provided pursuant to this Section 2.02(g) is so provided only to assist the Mortgage Loan Sellers and Depositor or their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided pursuant to this Section 2.02(g) by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to the related Mortgage Loan Purchase Agreement, including with respect to any 15Ga-1 Repurchase Request that is the subject of a 15Ga-1 Notice.

 

In the event that the Depositor, the Trustee, either Special Servicer, either Master Servicer, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives a 15Ga-1 Repurchase Request, such party shall promptly forward or otherwise provide written notice of such 15Ga-1 Repurchase Request to the applicable Master Servicer, if relating to a Non-Specially Serviced Loan, or to the applicable Special Servicer, if relating to a Specially Serviced Loan or REO Property, and include the following statement in the related correspondence: “This is a ‘15Ga-1 Repurchase Request’ under Section 2.02 of the Pooling and Servicing Agreement relating to the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 requiring action by you as the ‘Repurchase Request Recipient’ thereunder.” Upon receipt of such 15Ga-1 Repurchase Request by the applicable Master Servicer or the applicable Special Servicer, as applicable, such party shall be deemed to be the Repurchase Request Recipient in respect of such 15Ga-1 Repurchase Request, and such party shall comply with the procedures set forth in this Section 2.02(g) with respect to such 15Ga-1 Repurchase Request. In no event shall the Custodian, by virtue of this provision, be required to provide any notice other than as set forth in Section 2.02 of this Agreement in connection with its review of the Mortgage File.

 

If the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or the Custodian receives notice or has knowledge of a withdrawal or a rejection of a 15Ga-1 Repurchase Request of which notice has been previously received or given, and such notice was not received from or copied to the applicable Master Servicer or the applicable Special Servicer, then such party shall give notice of such withdrawal or rejection to such Master Servicer or such Special Servicer, as applicable. Any such notice received by the Trustee, the Certificate Administrator, the Certificate Registrar, Operating Advisor, Asset Representations Reviewer or the Custodian shall also be provided to the Depositor and, in the case of a withdrawal notice, to the applicable Mortgage Loan Seller.

 

In the event that a Mortgage Loan is repurchased or replaced pursuant to Section 2.03 of this Agreement, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans) shall promptly notify the Depositor of such repurchase or replacement.

 

Section 2.03       Representations, Warranties and Covenants of the Depositor; Mortgage Loan Sellers’ Repurchase or Substitution of Mortgage Loans for Defects in Mortgage Files and Breaches of Representations and Warranties.  (a) The Depositor hereby represents and warrants that:

 

 -158-

 

 

(i)         The Depositor is a corporation duly organized, validly existing and in good standing under the laws of the State of North Carolina, and the Depositor has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans in accordance with this Agreement;

 

(ii)        Assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all of the obligations of the Depositor hereunder are the legal, valid and binding obligations of the Depositor, enforceable against the Depositor in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iii)       The execution and delivery of this Agreement and the performance of its obligations hereunder by the Depositor will not conflict with any provisions of any law or regulations to which the Depositor is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of the certificate of incorporation or the by-laws of the Depositor or any indenture, agreement or instrument to which the Depositor is a party or by which it is bound, or any order or decree applicable to the Depositor, or result in the creation or imposition of any lien on any of the Depositor’s assets or property, which would materially and adversely affect the ability of the Depositor to carry out the transactions contemplated by this Agreement; the Depositor has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Depositor of this Agreement;

 

(iv)      There is no action, suit or proceeding pending or, to the Depositor’s knowledge, threatened against the Depositor in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Depositor to carry out the transactions contemplated by this Agreement; and

 

(v)       The Depositor is the lawful owner of the Mortgage Loans with the full right to transfer the Mortgage Loans to the Trust, and the Mortgage Loans have been validly transferred to the Trust.

 

(b)       After receipt of a Repurchase Request, the Enforcing Servicer shall request in writing that the applicable Mortgage Loan Seller, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the applicable Mortgage Loan Seller’s receipt of such notice of such Repurchase Request or, if earlier, such Mortgage Loan Seller’s discovery of such Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a Qualified Mortgage, the earlier of (x) discovery by the related Mortgage Loan Seller or any party to this Agreement of such Material Defect and (y) receipt of notice of the Material

 

 -159-

 

 

Defect from any party to this Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at such Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to this Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Serviced Companion Loan, if applicable) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof), at the applicable Purchase Price and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the applicable Master Servicer for deposit into the related Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with the applicable Mortgage Loan Purchase Agreement and this Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the applicable Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the applicable Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Serviced Companion Loan, if applicable) (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)) and provided, further, that with respect to such Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an officer’s certificate to the Trustee, the Certificate Administrator (who shall promptly deliver a copy of such officer’s certificate to the 17g-5 Information Provider), the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the applicable Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the related Mortgage Loan Seller to have received the recorded document, then such Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date for so long as such Mortgage Loan Seller certifies to the Trustee, the applicable Master Servicer, the applicable Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that such Material Defect is still in effect solely because of its failure to have received the

 

 -160-

 

 

recorded document and that such Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a Qualified Mortgage shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the applicable Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the applicable Mortgage Loan Seller are to be remitted by wire transfer to the applicable Master Servicer for deposit into its Collection Account. In the event the Special Servicer is required to enforce the Repurchase Request related to a Non-Specially Serviced Loan under this Section 2.03(b), within five (5) days of request by the Special Servicer, the Master Servicer shall deliver to the Special Servicer a copy of the Servicing File with respect to any such Non-Specially Serviced Loan.

 

If a Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, makes a cash payment pursuant to an agreement or a settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, for so long as no Control Termination Event has occurred and is continuing and in respect of any Mortgage Loan that is not an Excluded Loan or a Servicing Shift Mortgage Loan with respect to the Directing Certificateholder, with the consent of the Directing Certificateholder) (each such payment, a “Loss of Value Payment”) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be deposited into the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g) of this Agreement. In connection with any Loss of Value Payment with respect to any Non-Specially Serviced Loan, the applicable Master Servicer shall promptly provide the applicable Special Servicer, but in any event within the time frames and in the manner provided in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event), with the Servicing File and all information, documents and records relating to such Non-Specially Serviced Loan and any related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise reasonably available to the applicable Master Servicer, and reasonably required by the applicable Special Servicer to permit the Special Servicer to calculate the Loss of Value Payment, to the extent set forth in Section 3.19 (as if such Mortgage Loan were subject to a Servicing Transfer Event). The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Enforcing Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the applicable Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust, provided that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in the related Mortgage Loan Purchase Agreement or this Section 2.03 (excluding this paragraph) (including any right to cure, repurchase or substitute for such

 

 -161-

 

 

Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

 

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the related Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable by the Mortgage Loan Seller to the Asset Representations Reviewer to the extent not previously paid by the Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided that if the Breach relates to a Joint Mortgage Loan, each Mortgage Loan Seller shall be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note contributed by such Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the related Mortgage Loan Seller shall remit the amount of such costs and expenses and, upon its making such remittance, the related Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the related Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the related Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the related Mortgage Loan Seller. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced after the related Cut-off Date and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust on or prior to the related date of repurchase or substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the applicable Master Servicer or the applicable Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by such Master Servicer (or by such Special Servicer to the Master Servicer who shall remit such funds) to the applicable Mortgage Loan Seller effecting the related repurchase or substitution promptly following receipt. Notwithstanding anything contained in this Agreement or the related Mortgage Loan Purchase Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the applicable Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan if it is otherwise required to do so under the related Mortgage Loan Purchase Agreement and/or this Article II if (i) the related Mortgage Loan Seller did not otherwise

 

 -162-

 

 

discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by a party to the applicable Mortgage Loan Purchase Agreement, or this Agreement, to provide prompt notice as required by the terms of the applicable Mortgage Loan Purchase Agreement, or this Agreement, after such party has actual knowledge of such Material Defect (knowledge shall not be deemed to exist by reason of the Custodial Exception Report), (iii) such Material Defect does not relate to the applicable Mortgage Loan not being a Qualified Mortgage and (iv) such delay or failure to provide notice (as required by the terms of the applicable Mortgage Loan Purchase Agreement or this Agreement) prevented the Mortgage Loan Seller from being able to cure such Material Defect and such Material Defect was otherwise curable. Notwithstanding the foregoing, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel, restaurant (operated by a borrower), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a borrower), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan shall not be a Material Defect.

 

Pursuant to each Mortgage Loan Purchase Agreement, if there is a Material Defect with respect to one or more Mortgaged Properties with respect to a Mortgage Loan, the related Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the related Mortgage Loan Seller provides an opinion of counsel to the effect that such release in lieu of repurchase would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Trust and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

 

(c)       Subject to the applicable Mortgage Loan Seller’s right to cure as contemplated above in this Section 2.03, and further subject to Section 2.01(b) and Section 2.01(c), any of the following shall cause a document in the Mortgage File to be deemed to have a Material Defect: (i) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity with a copy of the Mortgage Note that appears to be regular on its face; (ii) the absence from the Mortgage File of the original signed Mortgage that appears to be regular on its face, unless there is included in the Mortgage File either a copy of the Mortgage with evidence of recording thereon or a copy of the Mortgage and a certificate from the related Mortgage Loan Seller stating that the original signed Mortgage was sent for recordation; (iii) the absence from the Mortgage File of the item called for by clause (viii) of the definition of “Mortgage File”; (iv) the absence from the Mortgage File of any intervening assignments required to create a complete chain of assignments to the Trustee on behalf of the Trust, unless there is included in the Mortgage File either a copy of the assignment with evidence of recording thereon or a copy of the intervening assignment and a certificate from the related Mortgage Loan Seller stating that the original intervening assignments were sent for filing or recordation, as applicable; (v) the absence from the Mortgage File of any required letter of credit; or (vi) with respect to any related leasehold Mortgage Loan, the absence from the related Mortgage File of a copy (or an original, if available) of the related Ground Lease; provided, however, that no Defect (except the Defects

 

 -163-

 

 

previously described in sub-clauses (ii) through (vi) of this Section 2.03(c)) shall be considered to materially and adversely affect the value of the related Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the document with respect to which the Defect exists is required in connection with an imminent enforcement of the mortgagee’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the related Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the related Mortgage Loan or for any immediate significant servicing obligation; provided, further, that no Defect relating to any Non-Serviced Mortgage Loan previously described in sub-clauses (ii) through (vi) of this Section 2.03(c) shall be considered to materially and adversely affect the value of such Mortgage Loan, the value of the related Mortgaged Property or the interests of the Trustee or Certificateholders unless the related Mortgage Loan Seller, after receipt of notice of such Defect, is unable to produce a copy of the document with respect to which the Defect exists within a reasonable period after receiving such notice or otherwise establish that the original or copy, as applicable, of such document has been delivered, in compliance with the terms of the related Non-Serviced PSA, to the custodian under the related Non-Serviced PSA. Notwithstanding the foregoing, the delivery of executed escrow instructions or a binding commitment to issue a lender’s title insurance policy, as provided in clause (viii) of the definition of “Mortgage File” herein, in lieu of the delivery of the actual policy of lender’s title insurance, shall not be considered a Material Defect with respect to any Mortgage File if such actual policy is delivered to the Custodian not later than eighteen (18) months following the Closing Date. Notwithstanding the foregoing, to the extent a Mortgage Loan Seller has otherwise complied with its document delivery requirements under this Agreement and the related Mortgage Loan Purchase Agreement, in the event that the Custodian has acknowledged receipt pursuant to Section 2.02 above of a document that is part of the Mortgage File or a Mortgage Loan Seller can otherwise prove delivery of the document, and the Custodian subsequently loses a document, the fact that such document is lost may not be utilized as the basis for a claim of a Material Defect against a Mortgage Loan Seller pursuant to Section 5(a) of the related Mortgage Loan Purchase Agreement and/or this Section 2.03 and the Custodian shall be liable for any such loss to the extent provided for in Section 8.01.

 

(d)       In connection with any repurchase of, or substitution of a Qualified Substitute Mortgage Loan for a Mortgage Loan contemplated by this Section 2.03, the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery to each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer of a trust receipt executed by the applicable Mortgage Loan Seller evidencing such repurchase or substitution, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by each of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer and the applicable Special Servicer (other than attorney-client communications that are privileged communications), and each document that constitutes a part of the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or assigned, as the case may be to the applicable Mortgage Loan Seller in the same manner as provided in Section 5 of the related Mortgage Loan Purchase Agreement and, if applicable, the definition of “Mortgage File” herein, so as to vest in such Mortgage Loan Seller the legal and beneficial ownership of such repurchased or substituted Mortgage Loan

 

 -164-

 

 

(including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents.

 

(e)       Section 5 of each of the Mortgage Loan Purchase Agreements provides the sole remedy available to the Certificateholders (subject to the limitations on the rights of the Certificateholders under this Agreement), or the Trustee on behalf of the Certificateholders, the applicable Master Servicer or the applicable Special Servicer, with respect to any Material Defect.

 

(f)        The Enforcing Servicer shall, for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests), enforce the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement. Such enforcement, including, without limitation, the legal prosecution of claims, if any, shall be carried out in the best interest of the Certificateholders in accordance with the Servicing Standard. Any costs incurred by an Enforcing Servicer with respect to the enforcement of the obligations of the applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase Agreement shall, to the extent not recovered from the applicable Mortgage Loan Seller, be deemed to be Servicing Advances to the extent not otherwise provided for herein. The applicable Master Servicer or the applicable Special Servicer, as applicable, shall be reimbursed for the reasonable costs of such enforcement: first, from a specific recovery, if any, of costs, expenses or attorneys’ fees against the applicable Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent that such expenses are a specific component thereof; and third, if at the conclusion of such enforcement action it is determined that the amounts described in clauses first and second are insufficient, then pursuant to Section 3.05(a)(vii) herein out of general collections on the Mortgage Loans on deposit in the related Collection Account. Any costs, expenses or attorneys’ fees related to a repurchase of a Companion Loan shall be paid pursuant to the related Intercreditor Agreement or pursuant to the documents related to an Other Securitization, if applicable.

 

(g)       If a Mortgage Loan Seller incurs any expense in connection with the curing of a Breach that constitutes a Material Defect, which also constitutes a default under the related Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall have a right, and shall be subrogated to the rights of the Trustee and the Trust under the Mortgage Loan to recover the amount of such expenses from the related Mortgagor; provided, however, that such Mortgage Loan Seller’s rights pursuant to this Section 2.03(g) shall be junior, subject and subordinate to the rights of the Trustee, the Certificate Administrator, the Trust, the Master Servicers and the Special Servicers to recover amounts owed by the related Mortgagor under the terms of such Mortgage Loan including, without limitation, the rights to recover unreimbursed Advances, accrued and unpaid interest on Advances at the Reimbursement Rate, fees owed to the Master Servicers or the Special Servicers, and unpaid or unreimbursed expenses of the Trustee, the Certificate Administrator, the Trust, the Master Servicers or the Special Servicers allocable to such Mortgage Loan. The Enforcing Servicer shall use reasonable efforts to recover such expenses for such Mortgage Loan Seller to the extent consistent with the Servicing Standard, but taking into account the subordinate nature of the reimbursement to the related Mortgage Loan Seller; provided, however, that the Enforcing Servicer determines in the exercise of its sole discretion consistent with the Servicing Standard that such actions by it will not impair the Enforcing Servicer’s collection or recovery of principal, interest and other sums due with respect

 

 -165-

 

 

to the related Mortgage Loan that would otherwise be payable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator and the Certificateholders pursuant to the terms of this Agreement; provided, further, that such Special Servicer may waive the collection of amounts due on behalf of such Mortgage Loan Seller in its sole discretion in accordance with the Servicing Standard.

 

(h)       If (i) any Crossed Underlying Loan is required to be repurchased or substituted for in the manner described in this Section 2.03 and (ii) the applicable Material Defect does not constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group (without regard to this paragraph), then the applicable Material Defect shall be deemed to constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group for purposes of this paragraph, and the related Mortgage Loan Seller shall repurchase or substitute for such other Crossed Underlying Loan(s) in the related Crossed Mortgage Loan Group as provided in Section 2.03(b) unless such other Crossed Underlying Loans satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans in such Crossed Mortgage Loan Group satisfy the Crossed Underlying Loan Repurchase Criteria, the applicable Mortgage Loan Seller may elect either to repurchase or substitute for only the affected Crossed Underlying Loan(s) as to which the related Material Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group. Any reserve or other cash collateral or letters of credit securing the Crossed Underlying Loans shall be allocated among the related Crossed Underlying Loans in accordance with the related Mortgage Loan documents or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Except as provided in this Section 2.03(h) and Section 2.03(i), all other terms of the related Mortgage Loans shall remain in full force and effect without any modification thereof.

 

(i)        Notwithstanding the foregoing, if the related Mortgage provides for the partial release of one or more of the Crossed Underlying Loans, the Depositor may cause the related Mortgage Loan Seller to repurchase only that Crossed Underlying Loan required to be repurchased pursuant to this Section 2.03, pursuant to the partial release provisions of the related Mortgage; provided, however, that (i) the remaining related Crossed Underlying Loan(s) fully comply with the terms and conditions of the related Mortgage, this Agreement and the related Mortgage Loan Purchase Agreement, including the Crossed Underlying Loan Repurchase Criteria, (ii) in connection with such partial release, the related Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan Seller’s expense) to the effect that the contemplated action will not cause an Adverse REMIC Event and (iii) in connection with such partial release, the related Mortgage Loan Seller delivers or causes to be delivered to the Custodian original modifications to the Mortgage prepared and executed in connection with such partial release.

 

(j)        With respect to any Crossed Underlying Loan, to the extent that the applicable Mortgage Loan Seller is required to repurchase or substitute for such Crossed Underlying Loan in the manner prescribed in Section 2.03(h) or Section 2.03(i) while the Trustee continues to hold any other Crossed Underlying Loans in the related Crossed Mortgage Loan Group, the applicable Mortgage Loan Seller and the Enforcing Servicer, on behalf of the Trustee, as assignee of the Depositor, will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies against the other’s Primary Collateral but each will be permitted to exercise remedies against the Primary Collateral securing its respective related

 

 -166-

 

 

Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee, so long as such exercise does not materially impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of the remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Underlying Loans held by such party, then both parties have agreed in the related Mortgage Loan Purchase Agreement to forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Mortgage Loan can be modified in a manner that complies with the related Mortgage Loan Purchase Agreement to remove the threat of material impairment as a result of the exercise of remedies.

 

(k)        (i) In the event an Initial Requesting Certificateholder delivers a written request to a party to this Agreement that a Mortgage Loan be repurchased by the applicable Mortgage Loan Seller alleging the existence of a Material Defect with respect to such Mortgage Loan and setting forth the basis for such allegation (a “Certificateholder Repurchase Request”), such party shall promptly forward that Certificateholder Repurchase Request to the applicable Master Servicer and the applicable Special Servicer, and the Enforcing Servicer shall promptly forward the Certificateholder Repurchase Request to the related Mortgage Loan Seller and each other party to this Agreement. Subject to Section 2.03(l), the Enforcing Servicer shall be the Enforcing Party with respect to a Certificateholder Repurchase Request.

 

(ii)        In the event that the Depositor, a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (solely in its capacity as operating advisor) or the Directing Certificateholder identifies a Material Defect with respect to a Mortgage Loan (without implying any duty of such person to make, or to attempt to make, such a discovery), that party shall deliver prompt written notice of such Material Defect to each other party to this Agreement, the Directing Certificateholder and the related Mortgage Loan Seller identifying the applicable Mortgage Loan and setting forth the basis for such allegation (a “PSA Party Repurchase Request” and each of a Certificateholder Repurchase Request or a PSA Party Repurchase Request, the “Repurchase Request”) and the Enforcing Servicer shall promptly send the PSA Party Repurchase Request to the related Mortgage Loan Seller. The Enforcing Servicer shall act as the Enforcing Party and enforce the rights of the Trust against the related Mortgage Loan Seller with respect to a PSA Party Repurchase Request.

 

(iii)       In the event the Repurchase Request is not Resolved within 180 days after the Mortgage Loan Seller receives the Repurchase Request (a “Resolution Failure”), then the provisions described in Section 2.03(l) below shall apply. Receipt of the Repurchase Request shall be deemed to occur two (2) Business Days after the Repurchase Request is sent to the related Mortgage Loan Seller. A Resolved Repurchase Request shall not preclude the applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) from exercising any of their respective rights related to a Material Defect in the manner and timing otherwise set forth in this Agreement, in the related Mortgage Loan Purchase Agreement or as provided by law.

 

 -167-

 

 

(iv)       Within two (2) Business Days after a Resolution Failure occurs with respect to a Repurchase Request made by any Person other than the applicable Special Servicer, the Directing Certificateholder or a Controlling Class Certificateholder relating to a Non-Specially Serviced Loan, the applicable Master Servicer shall send a written notice (a “Master Servicer Proposed Course of Action Notice”) to the applicable Special Servicer, indicating such Master Servicer’s analysis and recommended course of action with respect to such Repurchase Request. The applicable Master Servicer shall also deliver to the applicable Special Servicer the Servicing File and all information, documents and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to such Non-Specially Serviced Loan and, if applicable, the related Serviced Companion Loan, either in such Master Servicer’s possession or otherwise reasonably available to such Master Servicer, and reasonably requested by the applicable Special Servicer to enable it to assume its duties hereunder to the extent set forth in this Agreement for such Non-Specially Serviced Loan. Upon receipt of such Master Servicer Proposed Course of Action Notice and such Servicing File and other material, the applicable Special Servicer shall become the Enforcing Servicer with respect to such Repurchase Request.

 

(l)         (i) After a Resolution Failure occurs with respect to a Repurchase Request regarding a Mortgage Loan (whether the Repurchase Request was initiated by an Initial Requesting Certificateholder, a party to this Agreement or the Directing Certificateholder), and, if applicable, after the applicable Master Servicer sends the Master Servicer Proposed Course of Action Notice, the Enforcing Servicer shall send a notice (a “Proposed Course of Action Notice”) to the Initial Requesting Certificateholder, if any, to the address specified in the Initial Requesting Certificateholder’s Repurchase Request, and to the Certificate Administrator (which shall be delivered via electronic mail to trustadministrationgroup@wellsfargo.com). The Certificate Administrator shall make the Proposed Course of Action Notice available to all other Certificateholders and Certificate Owners by posting such notice on the Certificate Administrator’s Website indicating the Enforcing Servicer’s intended course of action with respect to the Repurchase Request (a “Proposed Course of Action”). The Proposed Course of Action Notice shall include (a) a request to Certificateholders to indicate their agreement with or dissent from such Proposed Course of Action, by clearly marking “agree” or “disagree” to the Proposed Course of Action on such notice within thirty (30) days after the date of such notice and a disclaimer that responses received after such thirty (30)-day period will not be taken into consideration, (b) a statement that in the event any Certificateholder disagrees with the Proposed Course of Action, the Enforcing Servicer (either as the Enforcing Party or as the Enforcing Servicer in circumstances where a Certificateholder is acting as the Enforcing Party) shall be compelled to follow the course of action agreed to and/or proposed by the majority of the responding Certificateholders that involves referring the matter to mediation or arbitration, as the case may be, in accordance with the procedures relating to the delivery of Preliminary Dispute Resolution Election Notices and Final Dispute Resolution Election Notices described in this Section 2.03(l), (c) a statement that responding Certificateholders will be required to certify their holdings in connection with such response, (d) a statement that only responses clearly marked “agree” or “disagree” with such Proposed Course of Action will be taken into consideration and (e) instructions for responding Certificateholders to send their responses to the Enforcing Servicer and the Certificate Administrator. The Certificate Administrator shall, within three (3) Business Days after the expiration of the 30-day response period, tabulate the responses received

 

 -168-

 

 

from the Certificateholders and share the results with the Enforcing Servicer. The Certificate Administrator shall only count responses timely received that clearly indicate agreement or dissent with the related Proposed Course of Action and additional verbiage or qualifying language shall not be taken into consideration for purposes of determining whether the related Certificateholder agrees or disagrees with the Proposed Course of Action. The Certificate Administrator shall be under no obligation to answer any questions from Certificateholders regarding such Proposed Course of Action. For the avoidance of doubt, the Certificate Administrator’s obligations in connection with this Section 2.03(l) shall be limited solely to tabulating Certificateholder responses of “agree” or “disagree” to the Proposed Course of Action, and such obligation shall not be construed to impose any enforcement obligation on the Certificate Administrator. The Enforcing Servicer may conclusively rely (without investigation) on the Certificate Administrator’s tabulation of the responses of the responding Certificateholders and whether that amount constitutes a majority. If (a) the Enforcing Servicer’s intended course of action with respect to the Repurchase Request does not involve pursuing further action to exercise rights against the related Mortgage Loan Seller with respect to the Repurchase Request and the Initial Requesting Certificateholder, if any, or any other Certificateholder or Certificate Owner wishes to exercise its right to refer the matter to mediation (including nonbinding arbitration) or arbitration, or (b) the Enforcing Servicer’s intended course of action is to pursue further action to exercise rights against the applicable Mortgage Loan Seller with respect to the Repurchase Request but the Initial Requesting Certificateholder, if any, or any other Certificateholder (other than the Holder of the RR Interest) or Certificate Owner does not agree with the dispute resolution method selected by the Enforcing Servicer, then the Initial Requesting Certificateholder, if any, or such other Certificateholder or Certificate Owner may deliver to the Enforcing Servicer a written notice (a “Preliminary Dispute Resolution Election Notice”) within 30 days after the date the Proposed Course of Action Notice is posted on the Certificate Administrator’s Website (the “Dispute Resolution Cut-off Date”) indicating its intent to exercise its right to refer the matter to either mediation (including non-binding arbitration) or arbitration. In the event that (a) the Enforcing Servicer’s initial Proposed Course of Action indicated a recommendation to undertake mediation (including non-binding arbitration) or arbitration, (b) any Certificateholder or Certificate Owner delivers a Preliminary Dispute Resolution Election Notice, and (c) the Enforcing Servicer also received responses from other Certificateholders or Certificate Owners supporting the Enforcing Servicer’s initial Proposed Course of Action, such additional responses from other Certificateholders or Certificate Owners will also be considered Preliminary Dispute Resolution Election Notices supporting such Proposed Course of Action for purposes of determining the course of action approved by the majority of responding Certificateholders.

 

(ii)        If neither the Initial Requesting Certificateholder, if any, nor any other Certificateholder or Certificate Owner entitled to do so delivers a Preliminary Dispute Resolution Election Notice prior to the Dispute Resolution Cut-off Date, no Certificateholder or Certificate Owner otherwise entitled to do so shall have the right to refer the Repurchase Request to mediation or arbitration, and the Enforcing Servicer as the Enforcing Party shall be the sole party entitled to determine a course of action, including, but not limited to, enforcing the Trust’s rights against the related Mortgage Loan Seller, subject to any consent or consultation rights of the Directing Certificateholder pursuant to Section 6.08.

 

 -169-

 

 

(iii)       Promptly and in any event within ten (10) Business Days following receipt of a Preliminary Dispute Resolution Election Notice from (a) the Initial Requesting Certificateholder, if any, or (b) any other Certificateholder or Certificate Owner (in each case, other than of the RR Interest) (each of clauses (a) and (b), a “Requesting Certificateholder”), the Enforcing Servicer shall consult with each Requesting Certificateholder regarding such Requesting Certificateholder’s intention to elect either mediation (including nonbinding arbitration) or arbitration as the dispute resolution method with respect to the Repurchase Request (the “Dispute Resolution Consultation”) so that such Requesting Certificateholder may consider the views of the Enforcing Servicer as to the claims underlying the Repurchase Request and possible dispute resolution methods, such discussions to occur and be completed no later than ten (10) Business Days following the Dispute Resolution Cut-off Date. The Enforcing Servicer shall be entitled to establish procedures the Enforcing Servicer deems in good faith to be appropriate relating to the timing and extent of such consultations. No later than five (5) Business Days after completion of the Dispute Resolution Consultation, a Requesting Certificateholder may provide a final notice to the Enforcing Servicer indicating its decision to exercise its right to refer the matter to either mediation or arbitration (“Final Dispute Resolution Election Notice”).

 

(iv)      If, following the Dispute Resolution Consultation, no Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then the Enforcing Servicer will continue to act as the Enforcing Party and will remain obligated under this Agreement to determine a course of action including, but not limited to, enforcing the rights of the Trust with respect to the Repurchase Request and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration.

 

(v)       If a Requesting Certificateholder timely delivers a Final Dispute Resolution Election Notice to the Enforcing Servicer, then such Requesting Certificateholder shall become the Enforcing Party and must promptly submit the matter to mediation (including nonbinding arbitration) or arbitration. If there is more than one Requesting Certificateholder that timely deliver a Final Dispute Resolution Election Notice, then such Requesting Certificateholders shall collectively become the Enforcing Party, and the holder or holders of a majority of the Voting Rights among such Requesting Certificateholders shall be entitled to make all decisions relating to such mediation or arbitration. If, however, no Requesting Certificateholder commences arbitration or mediation pursuant to the terms of this Agreement within thirty (30) days after delivery of its Final Dispute Resolution Election Notice to the Enforcing Servicer, then (i) the rights of a Requesting Certificateholder to act as the Enforcing Party shall terminate and no Certificateholder or Certificate Owner shall have any further right to elect to refer the matter to mediation or arbitration, (ii) if the Proposed Course of Action Notice indicated that the Enforcing Servicer shall take no further action with respect to the Repurchase Request, then the related Material Defect shall be deemed waived for all purposes under this Agreement and the related Mortgage Loan Purchase Agreement; provided, however, that such Material Defect shall not be deemed waived with respect to a Requesting Certificateholder, any other Certificateholder or Certificate Owner or the Enforcing Servicer to the extent there is a material change in the facts and circumstances

 

 -170-

 

 

known to such party at the time when the Proposed Course of Action Notice is posted on the certificate administrator’s website, and (iii) if the Proposed Course of Action Notice had indicated a course of action other than the course of action under clause (ii), then the Enforcing Servicer shall again become the Enforcing Party and, as such, shall be the sole party entitled to enforce the Trust’s rights against the related Mortgage Loan Seller.

 

(vi)      Notwithstanding the foregoing, the dispute resolution provisions described above under this Section 2.03(l) shall not apply, and the Enforcing Servicer shall remain the Enforcing Party, if the Enforcing Servicer has commenced litigation with respect to the Repurchase Request, or determines in accordance with the Servicing Standard that it is in the best interest of Certificateholders to commence litigation with respect to the Repurchase Request to avoid the running of any applicable statute of limitations.

 

(vii)     In the event a Requesting Certificateholder becomes the Enforcing Party, the Enforcing Servicer, on behalf of the Trust, shall remain a party to any proceedings against the related Mortgage Loan Seller as further described herein.

 

(viii)    For the avoidance of doubt, none of the Depositor, the Mortgage Loan Seller with respect to the subject Mortgage Loan or any of their respective affiliates shall be entitled to be an Initial Requesting Certificateholder or a Requesting Certificateholder, to act as a Certificateholder for purposes of delivering any Preliminary Dispute Resolution Notice or Final Dispute Resolution Notice or otherwise to vote Certificates owned by it or such affiliate(s) with respect to a course of action proposed or undertaken pursuant to the procedures described under this Section 2.03(l).

 

(ix)      Subject to the other provisions of this Section 2.03(l), the Requesting Certificateholder is entitled to elect either mediation or arbitration in its sole discretion; however, the Requesting Certificateholder shall not be entitled to then utilize the alternative method in the event that the initial method is unsuccessful.

 

(m)      If the Enforcing Party selects mediation (including nonbinding arbitration), the following provisions shall apply:

 

(i)        The mediation shall be administered by a nationally recognized mediation services provider selected by the related Mortgage Loan Seller within sixty (60) days of receipt of written notice of the Enforcing Party’s selection of mediation (such provider, the “Mediation Services Provider”) in accordance with published mediation procedures (the “Mediation Rules”) promulgated by the Mediation Services Provider.

 

(ii)       The mediator shall be impartial, an attorney admitted to practice in the state of New York and have at least fifteen (15) years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Mediation Services Provider. Upon being supplied a list of at least ten potential qualified mediators by the Mediation Services Provider each party will have the right to exercise two peremptory challenges within fourteen (14) days and to rank the remaining potential mediators in order of preference. The Mediation Services Provider shall select the

 

 -171-

 

 

mediator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

 

(iii)      Prior to accepting an appointment, the mediator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

 

(iv)      The parties shall use commercially reasonable efforts to conduct an organizational conference to begin the mediation within 10 Business Days of the selection of the mediator and to conclude the mediation within 60 days thereafter.

 

(v)       The expenses of any mediation shall be allocated among the parties to the mediation including, if applicable, between the Enforcing Party and the Enforcing Servicer, as mutually agreed by the parties as part of the mediation.

 

(vi)      Out of pocket costs and expenses of the applicable Special Servicer for mediation or arbitration, to the extent not agreed to be paid by the Enforcing Party or another party (in the case of mediation) or allocated to the Enforcing Party or another party (in the case of arbitration) shall be reimbursable as a Servicing Advance.

 

(n)       If the Enforcing Party selects third-party arbitration, the following provisions will apply:

 

(i)        The arbitration shall be administered by a nationally recognized arbitration services provider selected by the related Mortgage Loan Seller within sixty (60) days of receipt of written notice of the Enforcing Party’s selection of arbitration (such provider, the “Arbitration Services Provider”) in accordance with published arbitration procedures (the “Arbitration Rules”) promulgated by the Arbitration Services Provider.

 

(ii)       The arbitrator shall be impartial, an attorney admitted to practice in the State of New York and have at least 15 years of experience in commercial litigation, and if possible, commercial real estate finance or commercial mortgage-backed securitization matters and who will be appointed from a list of neutrals maintained by the Arbitration Services Provider. Upon being supplied a list of at least ten potential arbitrators by the Arbitration Services Provider each party will have the right to exercise two peremptory challenges within 14 days and to rank the remaining potential arbitrators in order of preference. The Arbitration Services Provider will select the arbitrator from the remaining attorneys on the list respecting the preference choices of the parties to the extent possible.

 

(iii)      Prior to accepting an appointment, the arbitrator must promptly disclose any circumstances likely to create a reasonable inference of bias or conflict of interest or likely to preclude completion of the hearings within the prescribed time schedule.

 

(iv)      After consulting with the parties at an organizational conference held not later than 10 Business Days after its appointment, the arbitrator shall devise procedures and deadlines for the arbitration, to the extent not already agreed to by the parties, with the goal of expediting the proceeding and completing the arbitration within 120 days.

 

 -172-

 

 

The arbitrator shall have the authority to schedule, hear, and determine any and all motions, including dispositive and discovery motions, in accordance with the Federal Rules of Civil Procedure for non-jury matters (the “Rules”) (including summary judgment and other prehearing and post hearing motions), and will do so by reasoned decision on the motion of any party to the arbitration.

 

(v)       Notwithstanding whatever other discovery may be available under the Rules, unless otherwise agreed by the parties, each party to the arbitration will be presumptively limited to the following discovery in the arbitration: (A) the parties shall reasonably and in good faith voluntarily produce to all other parties all documents upon which they intend to rely and all documents they reasonably and in good faith believe to be relevant to the claims or defenses asserted by any of the parties, (B) party witness depositions (excluding Rule 30b-6 witnesses), and (C) expert witness depositions, provided that the arbitrator shall have the ability to grant the parties, or either of them, additional discovery to the extent that the arbitrator determines good cause is shown that such additional discovery is reasonable and necessary.

 

(vi)      The arbitrator shall make its final determination no later than 30 days after the conclusion of the hearings and submission of any post-hearing submissions. The arbitrator shall resolve the dispute in accordance with the terms of the related Mortgage Loan Purchase Agreement and this Agreement, and may not modify or change those agreements in any way or award remedies not consistent with those agreements. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by them. Interest on any monetary award shall bear interest from the date of the Final Dispute Resolution Election Notice at the Prime Rate. In its final determination, the arbitrator shall determine and award the costs of the arbitration (including the fees of the arbitrator, cost of any record or transcript of the arbitration, and administrative fees) and shall award reasonable attorneys’ fees to the parties to the arbitration as determined by the arbitrator in its reasonable discretion. The determination of the arbitrator shall be by a reasoned decision in writing and counterpart copies will be promptly delivered to the parties. The final determination of the arbitrator shall be final and non-appealable, except for actions to confirm or vacate the determination permitted under federal or state law, and may be enforced in any court of competent jurisdiction.

 

(vii)     By selecting arbitration, the selecting party is giving up the right to sue in court, including the right to a trial by jury.

 

(viii)    No person may bring a putative or certificated class action to arbitration.

 

(o)       The following provisions will apply to both mediation and third-party arbitration:

 

(i)        Any mediation or arbitration will be held in New York, New York unless another location is agreed by all parties;

 

(ii)        If the dispute involves a matter that cannot effectively be remedied by the payment of damages, or if there be any dispute relating to arbitration or the arbitrators

 

 -173-

 

 

that cannot be resolved promptly by the arbitrators or the Arbitration Services Provider, then any party in such instance may during the pendency of the arbitration proceedings seek temporary equitable remedies, pending the final decision of the arbitration panel, solely by application in the Southern District of New York if such court shall have subject matter jurisdiction, or if the Southern District of New York has no jurisdiction, then the Supreme Court of the State of New York for the County of New York. The arbitration proceedings shall not be stayed unless so ordered by the court.

 

(iii)       The details and/or existence of any Repurchase Request, any informal meetings, mediations or arbitration proceedings conducted under this Section 2.03, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties’ attempt to informally resolve any Repurchase Request, will be confidential, privileged and inadmissible for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding (including any proceeding under this Section 2.03). Such information will be kept strictly confidential and shall not be disclosed or shared with any third party (other than a party’s attorneys, experts, accountants and other agents and representatives, as reasonably required in connection with any resolution procedure under this Section 2.03), except as otherwise required by law, regulatory requirement or court order. If any party to a resolution procedure receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for such confidential information, the recipient shall promptly notify the other party to the resolution procedure and shall provide the other party with a reasonable opportunity to object to the production of its confidential information.

 

(iv)      In the event a Requesting Certificateholder is the Enforcing Party, the agreement with the arbitrator or mediator, as the case may be, shall be required to contain an acknowledgment that the Trust, or the Enforcing Servicer on its behalf, shall be a party to any arbitration or mediation proceedings solely for the purpose of being the beneficiary of any award in favor of the Enforcing Party; provided that the degree and extent to which the Enforcing Servicer actively prepares for and participates in such proceeding shall be determined by such Enforcing Servicer in consultation with the Directing Certificateholder (provided that a Consultation Termination Event has not occurred and is not continuing) and in accordance with the Servicing Standard. All amounts recovered by the Enforcing Party shall be paid to the Trust, or the Enforcing Servicer on its behalf, and deposited in the Collection Account. The agreement with the arbitrator or mediator, as the case may be, shall provide that in the event a Requesting Certificateholder is allocated any related costs and expenses pursuant to the terms of the arbitrator’s decision or the agreement reached in mediation, neither the Trust nor the Enforcing Servicer acting on its behalf shall be responsible for any such costs and expenses allocated to the Requesting Certificateholder.

 

(v)       In the event a Requesting Certificateholder is the Enforcing Party, the Requesting Certificateholder is required to pay any expenses allocated to the Enforcing Party in the arbitration proceedings or any expenses that the Enforcing Party agrees to bear in the mediation proceedings.

 

 -174-

 

 

(vi)      The Trust (or the Trustee or the Enforcing Servicer, acting on its behalf), the Depositor or any Mortgage Loan Seller shall be permitted to redact any personally identifiable customer information included in any information provided for purposes of any mediation or arbitration. Each party to the proceedings shall be required to agree to keep confidential the details related to the Repurchase Request and the dispute resolution identified in connection with such procedures; provided, however, that (A) the Certificateholders shall be permitted to communicate prior to the commencement of any such proceedings to the extent provided in Section 5.06 and (B) the Enforcing Servicer shall be permitted to include such information in any 15Ga-1 Notice as it is required pursuant to Section 2.02(g).

 

(vii)     For the avoidance of doubt, in no event shall the exercise of any right of a Requesting Certificateholder to refer a Repurchase Request to mediation or arbitration or participation in such mediation or arbitration affect in any manner the ability of the Enforcing Servicer to perform its obligations with respect to a Mortgage Loan (including without limitation, a liquidation, foreclosure, negotiation of a loan modification or workout, acceptance of a discounted pay-off or deed-in-lieu, or bankruptcy or other litigation) or the exercise of any rights of a Directing Certificateholder.

 

(viii)    In the event that the method of dispute resolution selected is unsuccessful, the Requesting Certificateholder may not elect to then utilize the alternative method.

 

(ix)      Any out-of-pocket expenses required to be borne by or allocated to the Enforcing Servicer in a mediation or arbitration or related responsibilities under this Agreement shall be reimbursable as additional Trust Fund expenses.

 

(p)       Notwithstanding anything to the contrary herein, with respect to any Joint Mortgage Loan, the obligations of each of the applicable Mortgage Loan Sellers to repurchase with respect to a Material Defect with respect to the related Mortgage Loan shall be limited to a repurchase with respect to the Mortgage Note it sold to the Depositor in accordance with the related Mortgage Loan Purchase Agreement. With respect to any Joint Mortgage Loan, any cure by either of the applicable Mortgage Loan Sellers with respect to the Mortgage Note sold by it to the Depositor in accordance with the related Mortgage Loan Purchase Agreement that also cures the Material Defect with respect to the entire related Joint Mortgage Loan shall satisfy the cure obligations of both Mortgage Loan Sellers with respect to such Joint Mortgage Loan.

 

Section 2.04   Execution of Certificates; Issuance of Lower-Tier Regular Interests.  The Trustee hereby acknowledges the assignment to it of the Mortgage Loans and, subject to Section 2.01 and Section 2.02, the delivery to the Custodian of the Mortgage Files and a fully executed original counterpart of each of the Mortgage Loan Purchase Agreements, together with the assignment to it of all of the other assets included in the Lower-Tier REMIC and the Grantor Trust. Concurrently with such assignment and delivery, (i) in exchange for the Mortgage Loans (other than Excess Interest) and the other assets comprising the Lower-Tier REMIC, receipt of which is hereby acknowledged, the Trustee acknowledges the issuance of the Lower-Tier Regular Interests and the Class LR Interest to the Depositor; (ii) the Trustee acknowledges the creation of the Grantor Trust (as described in Section 2.05 below); (iii) the Trustee acknowledges the contribution by the Depositor of the Lower-Tier Regular Interests to

 

 -175-

 

 

the Upper-Tier REMIC; (iv) immediately thereafter, in exchange for the Lower-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Class UR Interest and the Exchangeable Upper-Tier Regular Interests and has caused the Certificate Registrar to execute and caused the Authenticating Agent to authenticate and to deliver to or upon the order of the Depositor, the Regular Certificates (other than the Exchangeable Certificates) and the Class R Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations and such Certificates evidencing, together with the Exchangeable Upper-Tier Regular Interests, the entire beneficial ownership of the Upper-Tier REMIC (and in the case of the Class R Certificates, the Class LR Interest and the Class UR Interest); (v) the Trustee acknowledges the contribution by the Depositor of the Exchangeable Upper-Tier Regular Interests to the Grantor Trust; and (vi) immediately thereafter, in exchange for the Exchangeable Upper-Tier Regular Interests, the Trustee acknowledges that it has caused the Certificate Administrator to issue the Exchangeable Certificates and has caused the Certificate Registrar to execute and cause the Authenticating Agent to deliver to or upon the order of the Depositor such Exchangeable Certificates, and the Depositor hereby acknowledges the receipt by it or its designees, of such Certificates in authorized Denominations evidencing beneficial ownership of their respective portions of the Grantor Trust.

 

Section 2.05      Creation of the Grantor Trust.  The portion of the Trust consisting of the RR Interest Specific Grantor Trust Assets and the Exchangeable Class Specific Grantor Trust Assets, undivided beneficial ownership of which will be represented by the RR Interest, shall be treated as a grantor trust within the meaning of subpart E, part I of subchapter J of the Code.

 

[End of Article II]

 

Article III

ADMINISTRATION AND SERVICING OF THE TRUST FUND

 

Section 3.01      Administration of the Mortgage Loans, the Serviced Companion Loans, and REO Properties.  (a) Each of the Master Servicers and the Special Servicers shall diligently service and administer the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan), any Serviced Companion Loans and the REO Properties (other than any REO Property related to a Non-Serviced Mortgage Loan) it is obligated (as provided below) to service in accordance with applicable law, this Agreement and the Mortgage Loan documents and, in the case of a Serviced Whole Loan, the related Intercreditor Agreement on behalf of the Trust and in the best interests of and for the benefit of the Certificateholders and, in the case of the Serviced Companion Loans, the Companion Holders and the Trustee (as holder of the Lower-Tier Regular Interests), as a collective whole, taking into account the pari passu nature of such Companion Loans (as determined by the applicable Master Servicer or the applicable Special Servicer, as the case may be, in its reasonable judgment), in accordance with applicable law, the terms of this Agreement (and, with respect to each Serviced Whole Loan or any Mortgage Loan with related mezzanine debt, the related Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if applicable, the related Companion Loan, taking into account the pari passu nature of the Companion Loan. With respect to each Serviced Whole Loan, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the related Intercreditor

 

 -176-

 

 

Agreement shall control; provided that in no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such Master Servicer or such Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions. The General Master Servicer shall be the Master Servicer with respect to all Mortgage Loans (other than the NCB Mortgage Loans), any related Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Master Servicer hereunder and under any related Intercreditor Agreement. The General Special Servicer shall be the Special Servicer with respect to all the Mortgage Loans (other than the NCB Co-op Mortgage Loans), any Serviced Companion Loan and other related assets in the Trust and, as such, shall service and administer such Mortgage Loans, any related Serviced Companion Loan and such other assets as shall be required of the applicable Special Servicer hereunder and under any related Intercreditor Agreement. The NCB Master Servicer shall be the Master Servicer with respect to the NCB Co-op Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Co-op Mortgage Loans and such other assets as shall be required of the applicable Master Servicer hereunder. The NCB Special Servicer shall be the Special Servicer with respect to the NCB Mortgage Loans and other related assets in the Trust and, as such, shall service and administer such NCB Mortgage Loans and such other assets as shall be required of the applicable Special Servicer hereunder. For purposes of this Agreement and any references to the duties and obligations of the Master Servicers or Special Servicers, any references to Mortgage Loans in the context of such duties and/or obligations shall be deemed to refer solely to the Mortgage Loans serviced by the applicable Master Servicer or the applicable Special Servicer and no other Mortgage Loan, Serviced Companion Loan or other related asset in the Trust serviced hereunder, unless specifically indicated otherwise. To the extent consistent with the foregoing, each Master Servicer and each Special Servicer shall service the applicable Mortgage Loans (other than any Non-Serviced Mortgage Loan) and the related Serviced Companion Loans in accordance with the higher of the following standards of care: (1) in the same manner in which, and with the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans for other third party portfolios and (2) the same care, skill, prudence and diligence with which such Master Servicer or such Special Servicer, as the case may be, services and administers similar mortgage loans owned by such Master Servicer or such Special Servicer, as the case may be, with a view to the (A) the timely recovery of all payments of principal and interest under the Mortgage Loans or Serviced Whole Loans or (B) in the case of a Specially Serviced Loan or an REO Property, maximization of recovery of principal and interest on a net present value basis on such Mortgage Loans and any related Serviced Companion Loans, and the best interests of the Trust and the Certificateholders (as a collective whole as if such Certificateholders constituted a single lender) (and in the case of any Whole Loan, the best interests of the Trust, the Certificateholders and any related Companion Holder (as a collective whole as if such Certificateholders and the holder or holders of the related Companion Loan constituted a single lender), taking into account the pari passu nature of the related Companion Loan), as determined by such Master Servicer or such Special Servicer, as the case may be, in its reasonable judgment, in either case giving due consideration to the customary and usual standards of practice of prudent institutional commercial, multifamily and manufactured housing community mortgage loan servicers, but

 

 -177-

 

 

without regard to any conflict of interest arising from: (i) any relationship that the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer may have with any Mortgagor, any Mortgage Loan Seller, any other parties to this Agreement, any Sponsor, any originator of a Mortgage Loan or any Affiliate of any of the foregoing; (ii) the ownership of any Certificate, Companion Loan, mezzanine loan, or subordinate debt relating to a Mortgage Loan by the applicable Master Servicer, the applicable Special Servicer or any Affiliate of such Master Servicer or such Special Servicer, as applicable; (iii) the obligation, if any, of the applicable Master Servicer to make Advances; (iv) the right of the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates to receive compensation for its services and reimbursement for its costs hereunder or with respect to any particular transaction; (v) the ownership, servicing or management for others of (a) a Non-Serviced Mortgage Loan and a Non-Serviced Companion Loan or (b) any other mortgage loans, subordinate debt, mezzanine loans or properties not covered by this Agreement or held by the Trust by the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates; (vi) any debt that the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, has extended to any Mortgagor or an Affiliate of any Mortgagor (including, without limitation, any mezzanine financing); (vii) any option to purchase any Mortgage Loan or the related Companion Loan the applicable Master Servicer or the applicable Special Servicer, as the case may be, or any of its Affiliates, may have; and (viii) any obligation of the applicable Master Servicer or the applicable Special Servicer, or any of their respective Affiliates, to repurchase or substitute for a Mortgage Loan as a Mortgage Loan Seller (if such Master Servicer or such Special Servicer or any of their respective Affiliates is a Mortgage Loan Seller) (the foregoing, collectively referred to as the “Servicing Standard”).

 

The applicable Master Servicer and the applicable Special Servicer shall act in accordance with the Servicing Standard with respect to any action required to be taken regarding the Non-Serviced Mortgage Loans pursuant to their obligations under this Agreement.

 

Without limiting the foregoing, subject to Section 3.19, the applicable Special Servicer shall be obligated to service and administer (i) any Mortgage Loans (other than the Non-Serviced Mortgage Loans) and any related Serviced Companion Loans as to which a Servicing Transfer Event has occurred and is continuing (each, a “Specially Serviced Loan”) or as otherwise provided herein with respect to Non-Specially Serviced Loans in connection with any Major Decision and (ii) any REO Properties (other than the Non-Serviced Mortgaged Properties); provided that the applicable Master Servicer shall continue to receive payments and make all calculations, and prepare, or cause to be prepared, all reports, required hereunder with respect to the Specially Serviced Loans, except for the reports specified herein as prepared by the applicable Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans) as if no REO Acquisition had occurred, and to render such services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for herein; provided, further, however, that the applicable Master Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by such Special Servicer to otherwise comply with its obligations hereunder. No Master Servicer or Special Servicer, in its capacity as a Master Servicer or Special Servicer, as applicable, shall have any responsibility for the performance by

 

 -178-

 

 

any other Master Servicer or Special Servicer, as applicable, in its capacity as a Master Servicer or Special Servicer, of its duties under this Agreement. Each Mortgage Loan or any related Serviced Companion Loan that becomes a Specially Serviced Loan shall continue as such until satisfaction of the conditions specified in Section 3.19(a). Without limiting the foregoing, subject to Section 3.19 and in accordance with the terms of this Agreement, the applicable Master Servicer shall be obligated to service and administer any Non-Specially Serviced Loan and any related Serviced Companion Loan. The applicable Special Servicer shall make the property inspections, use its reasonable efforts to collect the financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and forward to the applicable Master Servicer the reports in respect of the related Mortgaged Properties with respect to Specially Serviced Loans in accordance with Section 3.12. After notification to the applicable Master Servicer, the applicable Special Servicer may contact the Mortgagor of any Non-Specially Serviced Loan if efforts by such Master Servicer to collect required financial information have been unsuccessful or any other issues remain unresolved. Such contact shall be coordinated through and with the cooperation of the applicable Master Servicer. No provision herein contained shall be construed as an express or implied guarantee by the applicable Master Servicer or the applicable Special Servicer of the collectability or recoverability of payments on the Mortgage Loans or any related Serviced Companion Loan or be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or such Special Servicer (including with respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed for Advances and interest accrued thereon). Any provision in this Agreement for any Advance by either Master Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans or any related Serviced Companion Loans. No provision hereof shall be construed to impose liability on the Master Servicers or the Special Servicers for the reason that any recovery to the Certificateholders in respect of a Mortgage Loan at any time after a determination of present value recovery is less than the amount reflected in such determination.

 

(b)       Subject only to the Servicing Standard and the terms of this Agreement (including, without limitation, Section 6.08) and of the respective Mortgage Loans, any related Serviced Companion Loans and any related Intercreditor Agreement, if applicable, and applicable law, each of the Master Servicers and the Special Servicers shall have full power and authority, acting alone or, subject to Section 3.20, through one or more Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration for which it is responsible which it may deem necessary or desirable. Without limiting the generality of the foregoing, each Master Servicer and each Special Servicer, in its own name (or in the name of the Trustee and, if applicable, the related Serviced Companion Noteholder), is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders (and, with respect to a Serviced Companion Loan, the related Serviced Companion Noteholder) and the Trustee or any of them, with respect to each Mortgage Loan and any related Serviced Companion Loan it is obligated to service under this Agreement: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the related Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral, and shall, from time to time, execute and/or deliver such financing statements, continuation statements and other documents or instruments as necessary to maintain the lien created by the related Mortgage or

 

 -179-

 

 

other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) subject to Sections 3.08, 3.18 and 6.08, any and all modifications, waivers, amendments or consents to, under or with respect to any documents contained in the related Mortgage File; (iii) any and all instruments of satisfaction or cancellation, pledge agreements and other documents in connection with a defeasance, or of partial or full release or discharge, and all other comparable instruments; and (iv) any or all complaints or other pleadings to initiate and/or to terminate any action, suit or proceeding on behalf of the Trust in their representative capacities (except as set forth below in this paragraph). The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall provide to the Mortgagor related to such Mortgage Loans that it is servicing any reports required to be provided to them pursuant to the related Mortgage Loan documents. Subject to Section 3.10, the Trustee shall (i) on the Closing Date, furnish to the applicable Master Servicer and the applicable Special Servicer original powers of attorney in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and (ii) upon request, furnish, or cause to be furnished, to the applicable Master Servicer or the applicable Special Servicer any powers of attorney substantially in the form of Exhibit R-1 or Exhibit R-2 attached hereto, as applicable (or such other form as mutually agreed to by the Trustee and such Master Servicer or such Special Servicer, as applicable) and other documents necessary or appropriate to enable the applicable Master Servicer or the applicable Special Servicer, as the case may be, to carry out its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held responsible or liable for any acts of the applicable Master Servicer or the applicable Special Servicer, or for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer. Notwithstanding anything contained herein to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not, without the Trustee’s written consent: (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating such Master Servicer’s or such Special Servicer’s, as the case may be, representative capacity (unless prohibited by any requirement of the applicable jurisdiction in which any such action, suit or proceeding is brought and if so prohibited, in the manner required by such jurisdiction (provided that such Master Servicer or such Special Servicer, as applicable, shall then provide five (5) Business Days’ written notice to the Trustee of the initiation of such action, suit or proceeding (or such shorter time period as is reasonably required in the judgment of such Master Servicer or such Special Servicer, as applicable, made in accordance with the Servicing Standard) prior to filing such action, suit or proceeding, and shall not be required to obtain the Trustee’s consent or indicate such Master Servicer’s or such Special Servicer’s, as applicable, representative capacity)) or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be required to be registered to do business in any state.

 

(c)        To the extent the applicable Master Servicer is permitted pursuant to the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) to exercise its discretion with respect to any action that requires Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to

 

 -180-

 

 

Section 3.25), the applicable Master Servicer shall require the costs of such Rating Agency Confirmation to be borne by the related Mortgagor. To the extent the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) require the Mortgagor to bear the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall not waive the requirement that such costs and expenses be borne by the related Mortgagor. To the extent that the terms of the related Mortgage Loan documents or Companion Loan documents (including any related Intercreditor Agreement) are silent as to who bears the costs of any Rating Agency Confirmation or confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), the applicable Master Servicer shall use reasonable efforts to have the Mortgagor bear such costs and expenses. The applicable Master Servicer shall not be responsible for the payment of such costs and expenses out of pocket other than as a Servicing Advance.

 

(d)       The relationship of each of the Master Servicers and the Special Servicers to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent.

 

(e)       Each Master Servicer shall, to the extent permitted by the related Mortgage Loan documents or any related Companion Loan documents, and consistent with the Servicing Standard, permit Escrow Payments to be invested only in Permitted Investments.

 

(f)        Within sixty (60) days (or such shorter time period as is required by the terms of the applicable Mortgage Loan documents) after the later of (i) the receipt thereof by the applicable Master Servicer and (ii) the Closing Date, the applicable Master Servicer shall notify each lessor under a Ground Lease for each Mortgage Loan identified as subject to a leasehold interest on the Mortgage Loan Schedule, that the Trust is the leasehold mortgagee and that the applicable Master Servicer or the applicable Special Servicer shall service the related Mortgage Loan for the benefit of the Certificateholders. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor.

 

With respect to letters of credit delivered in accordance with subclause (B) of clause (xii) of the definition of “Mortgage File”, (a) within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the related Mortgage Loan Seller shall notify the bank issuing the letter of credit that the applicable Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit, and (b) within sixty (60) days of the Closing Date, the applicable Master Servicer shall present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller in accordance with such subclause of the definition of “Mortgage File” to the letter of credit bank issuing such letter of credit and request

 

 -181-

 

 

that such letter of credit bank reissue the letter of credit in the name of (x) in the case of the Mortgage Loans other than the NCB Mortgage Loans, “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” or (y) in the case of the NCB Mortgage Loans, “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37”. The applicable Master Servicer shall otherwise use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The related Mortgage Loan Seller shall provide such reasonable cooperation as requested by the applicable Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

 

(g)       If a letter of credit is required to be drawn upon earlier than the date that the letter of credit has been revised as contemplated in clause (f) above, such Mortgage Loan Seller shall cooperate with the reasonable requests of the applicable Master Servicer or the applicable Special Servicer in connection with making a draw under such letter of credit. If the Mortgage Loan documents do not require the related Mortgagor to pay any costs and expenses relating to any modifications to or assignment of the related letter of credit, then the applicable Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. If the Mortgage Loan documents require the related Mortgagor to pay any costs and expenses relating to any modifications to the related letter of credit, and such Mortgagor fails to pay such costs and expenses after the applicable Master Servicer has exercised reasonable efforts to collect such costs and expenses from such Mortgagor, then such Master Servicer shall give the applicable Mortgage Loan Seller notice of such failure and the amount of costs and expenses, and such Mortgage Loan Seller shall pay such costs and expenses as and to the extent required under the applicable Mortgage Loan Purchase Agreement. The costs and expenses of any modifications to Ground Leases shall be paid by the related Mortgagor. Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement.

 

Each Master Servicer acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if such Master Servicer sells its rights to service the applicable Mortgage Loan, such Master Servicer shall assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Loan) at the direction of the applicable Special Servicer to such party as such Special Servicer may instruct, in each case at the expense of the applicable Master Servicer. Each Master Servicer shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment.

 

(h)       Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer (or the Trustee, as applicable) make an Advance with respect to any Companion Loan to the extent the related Serviced Mortgage Loan has been paid in full or is no longer included in the Trust Fund.

 

 -182-

 

 

(i)        Servicing and administration of each Serviced Companion Loan shall continue hereunder and in accordance with the related Intercreditor Agreement for so long as the corresponding Serviced Mortgage Loan or any related REO Property is part of the Trust Fund or for such longer period as is contemplated by the related Intercreditor Agreement and, to the extent consistent with the related Intercreditor Agreement, as any amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

 

(j)        The applicable Special Servicer agrees that upon the occurrence of a Servicing Transfer Event with respect to any Mortgage Loan or Serviced Whole Loan that is subject to or becomes subject to an Intercreditor Agreement in the future, it shall, subject to Section 3.19, use commercially reasonable efforts to enforce, on behalf of the Trust, subject to the Servicing Standard and to the extent such Special Servicer determines such action is in the best interests of the Trust, all rights conveyed to the Trustee pursuant to any such Intercreditor Agreement. The costs and expenses incurred by such Special Servicer in connection with such enforcement shall be paid as a Trust Fund expense or, subject to the terms of the applicable Intercreditor Agreement, (i) with respect to any Serviced Pari Passu Whole Loan, pro rata and pari passu, by the Trust and Serviced Pari Passu Companion Loan Holder(s), in accordance with the respective outstanding principal balances of the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan(s) or (ii) with respect to any Serviced AB Whole Loan, first, by any related AB Subordinate Companion Loan holders and then, pro rata and pari passu, by the Trust and any Serviced Pari Passu Companion Loan Holders, in accordance with the respective outstanding principal balances of the related Serviced AB Mortgage Loan and Serviced Pari Passu Companion Loan(s).

 

(k)       Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that, to the extent required under the related Intercreditor Agreement, the servicing and administration of a Serviced Whole Loan shall continue hereunder (but not with respect to making Advances) even if the related Serviced Mortgage Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with the related Intercreditor Agreement (it being acknowledged that neither the Master Servicers nor the Special Servicers shall be obligated under a separate agreement to which it is not a party); provided that, other than pursuant to Section 6.04 (and, with respect to Section 6.04, solely with respect to claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with a legal claim or action resulting from an action or inaction taken or not taken while the related Serviced Mortgage Loan was part of the Trust Fund), no costs, expenses, losses or fees accruing with respect to such Serviced Whole Loan on and after the date the related Serviced Mortgage Loan is no longer part of the Trust Fund shall be payable out of the Trust Fund and the applicable Master Servicer shall have no obligation to make any Advance on or after the date such Serviced Mortgage Loan ceases to be part of the Trust Fund; provided, however, that if, in the case of any Serviced Whole Loan, the related Serviced Companion Loan continues to be included in an Other Securitization, then for so long as a separate servicing agreement (pursuant to the related Intercreditor Agreement) has not been entered into, the applicable Master Servicer shall inform the related Other Servicer of any need to make Servicing Advances with respect to a Serviced Whole Loan within three (3) Business Days of determining that such an Advance is necessary or being notified that such an Advance is necessary, or in the case of a Servicing Advance that

 

 -183-

 

 

needs to be made on an emergency or urgent basis, within one (1) Business Day. With respect to Servicing Advances made by any Other Servicer as contemplated in the second proviso to the preceding sentence, the applicable Master Servicer shall, from collections on the related Serviced Whole Loan (but never out of general collections on the Mortgage Loans and REO Properties) received by such Master Servicer, reimburse the Other Servicer for such Servicing Advances in the same manner and on the same level of priority as if such Servicing Advances had been made by such Master Servicer hereunder.

 

(l)        Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Non-Serviced Mortgage Loan are limited by and subject to the terms of the related Non-Serviced Intercreditor Agreement and the rights of the related Non-Serviced Master Servicer and Non-Serviced Special Servicer with respect thereto under the related Non-Serviced PSA. The applicable Master Servicer (or, with respect to any Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standards to enforce the rights of the Trustee (as holder of a Non-Serviced Mortgage Loan) under the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA.

 

(m)      The parties hereto acknowledge that each Non-Serviced Mortgage Loan is subject to the terms and conditions of the related Non-Serviced Intercreditor Agreement and further acknowledge that, pursuant to the related Non-Serviced Intercreditor Agreement, (i) the related Non-Serviced Mortgage Loan is to be serviced and administered by the related Non-Serviced Master Servicer and Non-Serviced Special Servicer in accordance with the related Non-Serviced PSA, and (ii) in the event that (A) the related Non-Serviced Companion Loan is no longer part of the trust fund created by the related Non-Serviced PSA and (B) the related Non-Serviced Mortgage Loan is included in the Trust Fund, then, as set forth in the related Non-Serviced Intercreditor Agreement, the related Non-Serviced Whole Loan shall continue to be serviced in accordance with the related Non-Serviced PSA, until such time as a new servicing agreement has been agreed to by the parties to the related Non-Serviced Intercreditor Agreement in accordance with the provisions of such agreement and confirmation has been obtained from the Rating Agencies that such new servicing agreement would not result in a downgrade, qualification or withdrawal of then-current ratings of any Class of Certificates then outstanding.

 

(n)       Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the applicable Master Servicer’s and the applicable Special Servicer’s obligations and responsibilities hereunder and the applicable Master Servicer’s and the applicable Special Servicer’s authority with respect to a Serviced Whole Loan are limited by, and subject to, the terms of the related Intercreditor Agreement. The applicable Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Loan, the applicable Special Servicer) shall use reasonable efforts consistent with the Servicing Standard to obtain the benefits of the rights of the Trust (as holder of the related Serviced Mortgage Loan) under the related Intercreditor Agreement.

 

(o)       In connection with the securitization of any Serviced Companion Loan (in each case, only while it is a Serviced Companion Loan), upon the request of (and at the expense

 

 -184-

 

 

of) a related Serviced Companion Noteholder (or its designee), each of the applicable Master Servicer (if such Serviced Companion Loan is not a Specially Serviced Loan), the applicable Special Servicer (if such Serviced Companion Loan is a Specially Serviced Loan) and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Noteholder in attempting to cause the related Mortgagor to provide information relating to the related Whole Loan, and that such Serviced Companion Noteholder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

 

(p)       For the avoidance of doubt, none of the Master Servicers, the Special Servicers, the Certificate Administrator or the Trustee have any obligation or authority to (a) supervise any related Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Certificate Administrator or Non-Serviced Trustee or (b) make Servicing Advances with respect to any Non-Serviced Whole Loan. The obligation of the applicable Master Servicer to provide information and collections and make P&I Advances to the Certificate Administrator for the benefit of the Certificateholders with respect to each Non-Serviced Mortgage Loan is dependent on its receipt of the corresponding information and/or collections from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer.

 

(q)       Nothing contained in this Agreement shall limit the ability of the applicable Master Servicer or the applicable Special Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property, except, in the case of an NCB Co-op Mortgage Loan, any such indebtedness as to which the NCB Subordinate Debt Conditions have been satisfied, which indebtedness may be secured by a lien on the related Mortgaged Property), accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though the applicable Master Servicer or the applicable Special Servicer was not a party to this Agreement or to the transactions contemplated hereby; provided that this sentence shall not be construed to modify or supersede the Servicing Standard.

 

Section 3.02      Collection of Mortgage Loan Payments.  (a) Each of the applicable Master Servicer and the applicable Special Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Serviced Companion Loans it is obligated to service hereunder, and shall follow such collection procedures as are consistent with this Agreement (including, without limitation, the Servicing Standard); provided that with respect to each Mortgage Loan that has an Anticipated Repayment Date, for so long as the related Mortgagor is in compliance with each provision of the related Mortgage Loan documents, the applicable Master Servicer and the applicable Special Servicer shall be permitted to take any enforcement action with respect to the failure of the related Mortgagor to make any payment of Excess Interest to the extent permitted under the related Mortgage Loan documents; provided, further, that the applicable Master Servicer or the applicable Special Servicer, as the case may be, may take action to enforce the Trust’s right to apply excess cash flow to principal in accordance with the terms of the Mortgage Loan documents. The applicable Master Servicer or the applicable Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan that it is obligated to service hereunder three (3) times during any period of twenty-four (24) consecutive months with respect to any Mortgage Loan or Serviced Companion Loan; provided that such

 

 -185-

 

 

Master Servicer or such Special Servicer, as applicable, may in its discretion waive any Penalty Charge in connection with any delinquent payment on a Mortgage Loan or Serviced Companion Loan one additional time in such 24-month period so long as with respect to any of the foregoing waivers, no Advance or additional expense of the Trust has been incurred and remains unreimbursed to the Trust with respect to such Mortgage Loan or Serviced Companion Loan. Any additional waivers during such 24-month period with respect to such Mortgage Loan may be made, subject to the Servicing Standard, only after the applicable Master Servicer or the applicable Special Servicer, as the case may be, has, prior to the occurrence and continuance of a Consultation Termination Event, given notice of a proposed waiver to the Directing Certificateholder and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder has consented to such additional waiver (provided that if such Master Servicer or such Special Servicer, as applicable, fails to receive a response to such notice from the Directing Certificateholder in writing within five (5) days of giving such notice, then the Directing Certificateholder shall be deemed to have consented to such proposed waiver); provided, further, that after the occurrence and during the continuance of a Control Termination Event, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may waive any Penalty Charge in accordance with the Servicing Standard without the consent of the Directing Certificateholder; provided, further, that the Directing Certificateholder shall have no consent or consultation rights with respect to the foregoing waivers in relation to any Excluded Loan with respect to the Directing Certificateholder. For the avoidance of doubt, the right to waive any Penalty Charge shall be provided to both the applicable Master Servicer and applicable Special Servicer individually and not cumulatively (in total).

 

(b)       (i) All amounts collected by or on behalf of the Trust in respect of a Mortgage Loan shall be applied to amounts due and owing under the Mortgage Loan documents (including for principal and accrued and unpaid interest) in accordance with the express provisions of the Mortgage Loan documents (including any related Intercreditor Agreement); provided, however, that absent express provisions in the related Mortgage Loan documents (including any related Intercreditor Agreement) or to the extent otherwise agreed to by the related Mortgagor in connection with a workout of a Mortgage Loan, all amounts collected by or on behalf of the Trust in respect of a Mortgage Loan in the form of payments from the related Mortgagor, Liquidation Proceeds or Insurance and Condemnation Proceeds under the Mortgage Loan (in the case of each Serviced Whole Loan, exclusive of amounts payable to any applicable Companion Loan pursuant to the terms of the related Intercreditor Agreement) shall be applied in the following order of priority:

 

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to the related Mortgage Loan and unpaid interest at the Reimbursement Rate on such Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust from general collections);

 

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

 -186-

 

 

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that either (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

 

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan then due and owing, including by reason of acceleration of such Mortgage Loan following a default thereunder (or, if the Mortgage Loan has been liquidated, as a recovery of principal to the extent of its entire remaining unpaid principal balance);

 

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance, plus (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of such accrued and unpaid interest pursuant to this clause fifth on earlier dates);

 

sixth, as a recovery of amounts to be currently allocated to the payment of, or, to the extent required under the loan documents, escrowed for the future payment of, real estate taxes, assessments and insurance premiums and similar items relating to such Mortgage Loan;

 

seventh, as a recovery of any other reserves to the extent then required to be held in escrow with respect to such Mortgage Loan;

 

 -187-

 

 

eighth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

 

ninth, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

 

tenth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

 

eleventh, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees);

 

twelfth, as a recovery of any remaining principal of such Mortgage Loan to the extent of its entire remaining unpaid principal balance; and

 

thirteenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

 

provided that to the extent required under the REMIC Provisions, payments or proceeds received (or receivable by exercise of the lender’s rights under the related Mortgage Loan documents) with respect to any partial release of a Mortgaged Property (including in connection with a condemnation) at a time when the loan to value ratio of the related Mortgage Loan or Serviced Whole Loan, as applicable, exceeds 125%, or would exceed 125% following any partial release (based solely on the value of real property and excluding personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC Provisions as evidenced by an Opinion of Counsel to the Trustee) must be collected and allocated to reduce the principal balance of the Mortgage Loan or Serviced Whole Loan in the manner required by the REMIC Provisions; provided, further, that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan become REO Loans, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

 

(ii)        Collections by or on behalf of the Trust in respect of any REO Property (exclusive of the amounts to be allocated to the payment of the costs of operating, managing, leasing, maintaining and disposing of such REO Property and, if applicable, in the case of each Serviced Whole Loan, exclusive of any amounts payable to the holder of the related Companion Loan(s), as applicable, pursuant to the related Intercreditor Agreement) shall be applied in the following order of priority:

 

first, as a recovery of any unreimbursed Advances (including any Workout-Delayed Reimbursement Amount) with respect to the related Mortgage Loan

 

 -188-

 

 

and interest at the Reimbursement Rate on all Advances and, if applicable, unreimbursed and unpaid additional trust fund expenses (including Special Servicing Fees, Liquidation Fees and Workout Fees previously paid by the Trust from general collections) with respect to the related Mortgage Loan;

 

second, as a recovery of Nonrecoverable Advances and any interest on those Nonrecoverable Advances at the Reimbursement Rate, to the extent previously paid or reimbursed from principal collections on the Mortgage Loans (as described in the first proviso in the definition of Aggregate Principal Distribution Amount);

 

third, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the excess of (i) accrued and unpaid interest (exclusive of default interest and Excess Interest) on such Mortgage Loan at the related Mortgage Rate in effect from time to time through the end of the applicable mortgage interest accrual period, over (ii) after taking into account any allocations pursuant to clause fifth below or clause fifth of the prior paragraph on earlier dates, the aggregate portion of the accrued and unpaid interest described in sub-clause (i) of this clause third that either (A)(x) was not advanced because of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or (y) with respect to any accrued and unpaid interest that was not advanced due to a determination that the related P&I Advance would be a Nonrecoverable Advance, the amount of interest that (absent such determination of nonrecoverability preventing such P&I Advance from being made) would not have been advanced because of the reductions in the amount of related P&I Advances for such Mortgage Loan that would have occurred in connection with related Appraisal Reduction Amounts, or (B) accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made;

 

fourth, to the extent not previously so allocated pursuant to clause first or second above, as a recovery of principal of such Mortgage Loan to the extent of its entire unpaid principal balance;

 

fifth, as a recovery of accrued and unpaid interest on such Mortgage Loan to the extent of the sum of (A) the cumulative amount of the reductions (if any) in the amount of related P&I Advances for such Mortgage Loan that have occurred in connection with related Appraisal Reduction Amounts or would have occurred in connection with related Appraisal Reduction Amounts but for such P&I Advance not having been made as a result of a determination that such P&I Advance would have been a Nonrecoverable Advance plus (B) any unpaid interest (exclusive of default interest and Excess Interest) that accrued at the related Net Mortgage Rate on the portion of the Stated Principal Balance of such Mortgage Loan equal to any related Collateral Deficiency Amount in effect from time to time and as to which no P&I Advance was made (in each case, to the extent collections have not been allocated as recovery of accrued and unpaid interest pursuant to this clause fifth or clause fifth of the prior paragraph on earlier dates);

 

 -189-

 

 

sixth, as a recovery of any Yield Maintenance Charge or Prepayment Premium then due and owing under such Mortgage Loan;

 

seventh, as a recovery of any late payment charges and default interest then due and owing under such Mortgage Loan;

 

eighth, as a recovery of any assumption fees and Modification Fees then due and owing under such Mortgage Loan;

 

ninth, as a recovery of any other amounts then due and owing under such Mortgage Loan other than remaining unpaid principal (if both consent fees and Operating Advisor Consulting Fees are due and owing, first, allocated to consent fees and then, allocated to Operating Advisor Consulting Fees); and

 

tenth, in the case of an ARD Loan after the related Anticipated Repayment Date, any accrued but unpaid Excess Interest;

 

provided that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion Loan comprising a Non-Serviced Whole Loan becomes an REO Loan, the treatment of the foregoing amounts with respect to such Non-Serviced Whole Loan shall be subject to the terms of the related Non-Serviced Intercreditor Agreement and Non-Serviced PSA, in that order; provided, further, that with respect to each Mortgage Loan related to a Serviced Whole Loan, amounts collected with respect to the related Serviced Whole Loan shall be allocated first pursuant to the terms of the related Intercreditor Agreement and then, any amounts allocated to the related Serviced Mortgage Loan shall be subject to application as described above.

 

(iii)      Notwithstanding clauses (i) and (ii) above, such provisions shall not be deemed to affect the priority of distributions of payments pursuant to the provisions of this Agreement. To the extent that such amounts are paid by a party other than a Mortgagor, such amounts shall be deemed to have been paid in respect of a purchase of all or part of the Mortgaged Property (in the case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or Companion Loan, as applicable, or in accordance with Section 3.02(b)(ii) above.

 

(c)       To the extent consistent with the terms of the Mortgage Loans (and, with respect to each Serviced Whole Loan, the related Serviced Companion Loan, as applicable, and the related Intercreditor Agreement) and applicable law, the applicable Master Servicer shall apply all Insurance and Condemnation Proceeds it receives on a day other than the Due Date to amounts due and owing under the related Mortgage Loan or Companion Loan as if such Insurance and Condemnation Proceeds were received on the Due Date immediately succeeding the month in which Insurance and Condemnation Proceeds were received and otherwise in accordance with Section 3.02(b)(ii) above.

 

(d)       In the event that the applicable Master Servicer or the applicable Special Servicer receives Excess Interest prior to the Determination Date for any Collection Period, or receives notice from the related Mortgagor that such Master Servicer or such Special Servicer will be receiving Excess Interest prior to the Determination Date for any Collection Period, such Master Servicer or such Special Servicer, as the case may be, shall notify the Trustee and the

 

 -190-

 

 

Certificate Administrator two (2) Business Days prior to the related Distribution Date. None of the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee shall be responsible for any failure of the related Mortgagor to pay any Excess Interest or prepayment penalty. The preceding statements shall not, however, be construed to limit the provisions of Section 3.02(a).

 

(e)       With respect to any Mortgage Loan or any Serviced Pari Passu Companion Loan for which the related Mortgagor was required to escrow funds or to post a letter of credit related to obtaining certain performance objectives, such as targeted debt service coverage levels or leasing criteria with respect to the Mortgaged Property as a whole or particular portions thereof, if the mortgagee has the discretion under the applicable Mortgage Loan documents to retain the cash or letter of credit (or the proceeds of such letters of credit) as additional collateral if the relevant conditions to release are not satisfied, then the related Master Servicer may continue to hold such escrows or letters of credit (or the proceeds of such letters of credit) as additional collateral or use such funds to reduce the principal balance of the related Mortgage Loan or Serviced Pari Passu Companion Loan (to the extent the related Mortgage Loan documents allow such action), unless holding or application of such funds would otherwise be inconsistent with the Mortgage Loan documents or the Servicing Standard.

 

(f)        Promptly following the Closing Date, in the case of any Non-Serviced Whole Loan and, with respect to the Servicing Shift Mortgage Loan, promptly following receipt of notice in connection with the Servicing Shift Securitization Date, the Certificate Administrator shall send written notice (in the form attached hereto as Exhibit T) to the related Non-Serviced Master Servicer (with a copy to any other applicable party set forth on the schedule of addresses to Exhibit T) stating that, as of such date, the Trustee is the holder of the related Non-Serviced Mortgage Loan and directing such Non-Serviced Master Servicer to remit to the applicable Master Servicer all amounts payable to, and to forward, deliver or otherwise make available, as the case may be, to the applicable Master Servicer all reports, statements, documents, communications and other information that are to be forwarded, delivered or otherwise made available to, the holder of such Non-Serviced Mortgage Loan under the related Non-Serviced Intercreditor Agreement and the related Non-Serviced PSA. The applicable Master Servicer shall, within two (2) Business Days of receipt of properly identified funds, deposit into the Collection Accounts all amounts received with respect to the related Non-Serviced Mortgage Loan, the related Non-Serviced Mortgaged Property or any related REO Property.

 

Section 3.03      Collection of Taxes, Assessments and Similar Items; Servicing Accounts.  (a) Each Master Servicer shall establish and maintain one or more accounts (the “Servicing Accounts”), into which all Escrow Payments received by it shall be deposited and retained, and shall administer such Servicing Accounts in accordance with the related Mortgage Loan documents and, if applicable, the Companion Loan documents. Any Servicing Account related to a Serviced Whole Loan shall be held for the benefit of the Certificateholders and the related Serviced Companion Noteholders collectively, but this shall not be construed to modify the respective interests of any noteholder therein as set forth in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts may only be invested in accordance with the terms of the related Mortgage Loan documents and Companion Loan documents, or in Permitted Investments in accordance with the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent permitted by the terms of the related Mortgage Loan

 

 -191-

 

 

documents. Withdrawals of amounts so deposited from a Servicing Account may be made only to: (i) effect payment of items for which Escrow Payments were collected and comparable items; (ii) reimburse the Trustee and then the applicable Master Servicer, if applicable, for any Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to be overages; (iv) pay interest to Mortgagors on balances in the Servicing Account, if required by applicable law or the terms of the related Mortgage Loan or Companion Loan and as described below or, if not so required, to the applicable Master Servicer; (v) after the occurrence of an event of default under the related Mortgage Loan or Companion Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage Loan documents; or (viii) clear and terminate the Servicing Account at the termination of this Agreement in accordance with Section 9.01. As part of its servicing duties, the applicable Master Servicer shall pay or cause to be paid to the related Mortgagors interest on funds in Servicing Accounts, to the extent required by law or the terms of the related Mortgage Loan or Companion Loan; provided, however, that in no event shall the applicable Master Servicer be required to remit to any Mortgagor any amounts in excess of actual net investment income or funds in the related Servicing Account. If allowed by the related Mortgage Loan documents and applicable law, the applicable Master Servicer may charge the related Mortgagor an administrative fee for maintenance of the Servicing Accounts.

 

(b)       The applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Mortgage Loans (other than a Non-Serviced Mortgage Loan) and each related Serviced Companion Loan, shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of real estate taxes, assessments and other similar items that are or may become a lien thereon and the status of insurance premiums and any ground rents payable in respect thereof. The applicable Special Servicer, in the case of REO Loans (other than any REO Loan succeeding a Non-Serviced Mortgage Loan), and the applicable Master Servicer, in the case of all other related Mortgage Loans (other than a Non-Serviced Mortgage Loan) and each related Serviced Companion Loan, shall use reasonable efforts consistent with the Servicing Standard to obtain, from time to time, all bills for the payment of such items (including renewal premiums) and shall effect payment thereof from the REO Account or by the applicable Master Servicer as Servicing Advances prior to the applicable penalty or termination date and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items, employing for such purpose Escrow Payments (which shall be so applied by the applicable Master Servicer at the written direction of the applicable Special Servicer in the case of REO Loans) as allowed under the terms of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and Companion Loan. Other than with respect to any Non-Serviced Mortgage Loan, the applicable Master Servicer shall service and administer any reserve accounts (including monitoring, maintaining or changing the amounts of required escrows) in accordance with the terms of such Mortgage Loan and the related Serviced Companion Loan, as applicable, and the Servicing Standard. To the extent that a Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any related Companion Loan, as applicable, does not require a Mortgagor to escrow for the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items, the applicable Special Servicer, in the case of REO Loans, and the applicable Master Servicer, in the case of all other such Mortgage Loans or Companion Loan, as

 

 -192-

 

 

applicable, that it is responsible for servicing hereunder, shall use reasonable efforts consistent with the Servicing Standard to cause the Mortgagor to comply with its obligation to make payments in respect of such items at the time they first become due and, in any event, prior to the institution of foreclosure or similar proceedings with respect to the related Mortgaged Property for nonpayment of such items.

 

(c)       In accordance with the Servicing Standard and for each Mortgage Loan (other than any Non-Serviced Mortgage Loans) and each Serviced Whole Loan, as applicable, the applicable Master Servicer shall advance all such funds as are necessary for the purpose of effecting the payment of (i) real estate taxes, assessments and other similar items that are or may become a lien thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance Policies, in each instance if and to the extent Escrow Payments collected from the related Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such item when due and the related Mortgagor has failed to pay such item on a timely basis, and provided, however, that the particular advance would not, if made, constitute a Nonrecoverable Servicing Advance and provided, further, however, that with respect to the payment of taxes and assessments, the applicable Master Servicer shall not be required to make such advance until the later of (i) five (5) Business Days after such Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, has received confirmation that such item has not been paid and (ii) the date prior to the date after which any penalty or interest would accrue in respect of such taxes or assessments. The applicable Special Servicer shall give the applicable Master Servicer and the Trustee no less than five (5) Business Days’ written (facsimile or electronic) notice before the date on which such Master Servicer is requested to make any Servicing Advance with respect to a given Specially Serviced Loan or REO Property; provided, however, that only two (2) Business Days’ written (facsimile or electronic) notice shall be required in respect of Servicing Advances required to be made on an emergency or urgent basis provided, further, that the applicable Special Servicer shall not be entitled to make such a request (other than for Servicing Advances required to be made on an urgent or emergency basis) more frequently than once per calendar month (although such request may relate to more than one Servicing Advance). The applicable Master Servicer may pay the aggregate amount of such Servicing Advances listed on a monthly request to the applicable Special Servicer, in which case such Special Servicer shall remit such Servicing Advances to the ultimate payees. The applicable Special Servicer shall have no obligation to make any Servicing Advances; provided that in an urgent or emergency situation requiring the making of a Servicing Advance, such Special Servicer may make a Servicing Advance in its sole discretion. Within five (5) Business Days of making such a Servicing Advance, the applicable Special Servicer shall deliver to the applicable Master Servicer a request for reimbursement for such Servicing Advance, along with all information and documentation in such Special Servicer’s possession regarding the subject Servicing Advance as such Master Servicer may reasonably request, and such Master Servicer shall be obligated, out of such Master Servicer’s own funds, to reimburse such Special Servicer for any unreimbursed Servicing Advances (other than Nonrecoverable Servicing Advances) made by such Special Servicer pursuant to the terms hereof, together with interest thereon at the Reimbursement Rate from the date made to, but not including, the date of reimbursement. Such reimbursement and any accompanying payment of interest shall be made within five (5) Business Days of the written request therefor pursuant to the preceding sentence by wire transfer of immediately available funds to an account designated in writing by such Special Servicer. Upon the applicable Master Servicer’s reimbursement to the applicable Special Servicer of any

 

 -193-

 

 

Servicing Advance and payment to such Special Servicer of interest thereon, all in accordance with this Section 3.03, such Master Servicer shall for all purposes of this Agreement be deemed to have made such Servicing Advance at the same time as such Special Servicer actually made such Servicing Advance, and accordingly, such Master Servicer shall be entitled to be reimbursed for such Servicing Advance, together with interest thereon at the Reimbursement Rate, at the same time, in the same manner and to the same extent as such Master Servicer would otherwise have been entitled if it had actually made such Servicing Advance at the time such Special Servicer did. Notwithstanding the foregoing provisions of this Section 3.03(c), the applicable Master Servicer shall not be required to reimburse the applicable Special Servicer out of its own funds for, or to make at the direction of such Special Servicer, any Servicing Advance if such Master Servicer determines in its reasonable judgment that such Servicing Advance, although not characterized by such Special Servicer as a Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance. The applicable Master Servicer shall notify such Special Servicer in writing of such determination and, if applicable, such Nonrecoverable Servicing Advance shall instead be reimbursed to such Special Servicer pursuant to Section 3.05 of this Agreement.

 

Any request by a Special Servicer that the applicable Master Servicer make a Servicing Advance shall be deemed to be a determination by such Special Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing Advance, and such Master Servicer and the Trustee shall be entitled to conclusively rely on such determination, provided that the determination shall not be binding on such Master Servicer or Trustee. On the first Business Day after the Determination Date for the related Distribution Date, the applicable Special Servicer shall report to the applicable Master Servicer if such Special Servicer determines any Servicing Advance previously made by such Master Servicer with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable Servicing Advance. Such Master Servicer shall be entitled to conclusively rely on such a determination, and such determination shall be binding upon such Master Servicer, and shall in no way limit the ability of such Master Servicer in the absence of such determination to make its own determination that any Advance is a Nonrecoverable Advance. If the applicable Special Servicer makes a determination that only a portion of, and not all of, any previously made or proposed Servicing Advance is a Nonrecoverable Advance, the applicable Master Servicer shall have the right to make its own subsequent determination that any remaining portion of any such previously made or proposed Servicing Advance is a Nonrecoverable Advance. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed Servicing Advance with respect to a Serviced Whole Loan, if made, or any outstanding Servicing Advance with respect to a Serviced Whole Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the Master Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. Any such determination by the applicable Special Servicer that such Servicing Advance is or would be a Nonrecoverable Servicing Advance shall be binding on the applicable Master Servicer and the Trustee. All such Advances shall be reimbursable in the first instance from related collections from the Mortgagors and further as provided in Section 3.05(a). No costs incurred by a Master Servicer or a Special Servicer in effecting the payment of real estate taxes, assessments and, if applicable, ground rents on or in respect of the Mortgaged Properties shall, for purposes hereof, including, without limitation, the Certificate Administrator’s calculation of monthly distributions to Certificateholders, be added to the unpaid principal

 

 -194-

 

 

balances of the related Mortgage Loans, any related Serviced Companion Loan, if applicable, notwithstanding that the terms of such Mortgage Loans, related Serviced Companion Loan, if applicable, so permit. If a Master Servicer fails to make any required Servicing Advance as and when due (including any applicable cure periods), to the extent the Trustee has actual knowledge of such failure, the Trustee shall make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no Servicing Advance shall be required hereunder if such Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance. In addition, the Master Servicers shall consider Unliquidated Advances in respect of prior Servicing Advances for purposes of nonrecoverability determinations. The Special Servicers shall have no obligation to make any Servicing Advances under this Agreement.

 

Notwithstanding anything to the contrary contained in this Section 3.03(c), the applicable Master Servicer may in its good faith judgment elect (but shall not be required unless directed by the applicable Special Servicer with respect to Specially Serviced Loans and REO Loans) to make a payment from amounts on deposit in its Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by a Companion Paying Agent, if applicable) (which shall be deemed first made from amounts distributable as principal and then from all other amounts comprising general collections) to pay for certain expenses set forth below notwithstanding that the applicable Master Servicer (or the applicable Special Servicer, as the case may be) has determined that a Servicing Advance with respect to such expenditure would be a Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced Loans or REO Loans, the applicable Special Servicer has notified the applicable Master Servicer to not make such expenditure), where making such expenditure would prevent (i) the related Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any event that would cause a loss of the priority of the lien of the related Mortgage, or the loss of any security for the related Mortgage Loan or Serviced Companion Loan; provided that in each instance, the applicable Master Servicer or the applicable Special Servicer, as the case may be, determines in accordance with the Servicing Standard (as evidenced by an Officer’s Certificate delivered to the Trustee) that making such expenditure is in the best interest of the Certificateholders (and, if applicable, the Companion Holders), all as a collective whole (taking into account the pari passu nature of any Companion Loans). The applicable Master Servicer or the Trustee may elect to obtain reimbursement of Nonrecoverable Servicing Advances from the Trust pursuant to the terms of Section 3.17(c). The parties acknowledge that pursuant to the applicable Non-Serviced PSA, the applicable Non-Serviced Master Servicer is obligated to make servicing advances with respect to the related Non-Serviced Whole Loan. The applicable Non-Serviced Master Servicer shall be entitled to reimbursement for nonrecoverable servicing advances with respect to such Non-Serviced Whole Loan (with, in each case, any accrued and unpaid interest thereon provided for under the applicable Non-Serviced PSA) in the manner set forth in the applicable Non-Serviced PSA and the applicable Non-Serviced Intercreditor Agreement.

 

(d)       In connection with its recovery of any Servicing Advance out of the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) pursuant to Section 3.05(a), the Trustee, the applicable Special Servicer and then the applicable Master Servicer, as the case may be and in that order, shall be entitled to receive, out of any amounts then on deposit in the applicable Collection Account interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such Servicing Advance from the date made to, but not including, the

 

 -195-

 

 

date of reimbursement. Subject to Section 3.17(c), the applicable Master Servicer shall reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any outstanding Servicing Advance as soon as practically possible after funds available for such purpose are deposited in the applicable Collection Account (or any Companion Distribution Account maintained as a subaccount thereof by the Companion Paying Agent, if applicable) subject to the applicable Master Servicer’s or the Trustee’s options and rights to defer recovery of such amounts as provided herein; provided, however, that such Master Servicer’s or Trustee’s options and rights to defer recovery of such amounts shall not alter such Master Servicer’s obligation to reimburse such Special Servicer for any outstanding Servicing Advance as provided for in this sentence. To the extent amounts on deposit in the Companion Distribution Account with respect to the related Companion Loan are insufficient for any such reimbursement, the applicable Master Servicer shall use efforts in accordance with the Servicing Standard to enforce the rights of the holder of the related Mortgage Loan under the related Intercreditor Agreement to obtain any reimbursement available from the holder of the related Companion Loan.

 

(e)        To the extent an operations and maintenance plan is required to be established and executed pursuant to the terms of a Mortgage Loan (other than a Non-Serviced Mortgage Loan), the applicable Master Servicer shall request from the Mortgagor written confirmation thereof within a reasonable time after the later of the Closing Date and the date as of which plan is required to be established or completed. To the extent any repairs, capital improvements, actions or remediations are required to have been taken or completed pursuant to the terms of the Mortgage Loan (other than a Non-Serviced Mortgage Loan), the applicable Master Servicer shall request from the Mortgagor written confirmation of such actions and remediations within a reasonable time after the later of the Closing Date and the date as of which action or remediations are required to be or to have been taken or completed. To the extent a Mortgagor shall fail to promptly respond to any inquiry described in this Section 3.03(e), the applicable Master Servicer shall report any such failure to the applicable Special Servicer within a reasonable time after the date as of which actions or remediations are required to be or to have been taken or completed.

 

Section 3.04      The Collection Accounts, the Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Companion Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the Retained Certificate Gain-on-Sale Reserve Account.  (a) Each Master Servicer shall establish and maintain, or cause to be established and maintained, a Collection Account in which such Master Servicer shall deposit or cause to be deposited on a daily basis and in no event later than the second Business Day following receipt of available and properly identified funds (in the case of payments by Mortgagors or other collections on the Mortgage Loans or Companion Loans), except as otherwise specifically provided herein, the following payments and collections received or made by or on behalf of it subsequent to the Cut-off Date (other than in respect of principal and interest on the Mortgage Loans or Companion Loans due and payable on or before the Cut-off Date, which payments shall be delivered promptly to the appropriate Mortgage Loan Seller or its respective designee and other than any amounts received from Mortgagors which are received in connection with the purchase of defeasance collateral), or payments (other than Principal Prepayments) received by it on or prior to the Cut-off Date but allocable to a period subsequent thereto, in each case, with respect to the Mortgage Loans for which it acts as Master Servicer:

 

 -196-

 

 

(i)         all payments on account of principal, including Principal Prepayments on the Mortgage Loans or principal prepayments on Serviced Companion Loans;

 

(ii)        all payments on account of interest on the Mortgage Loans or the Serviced Companion Loans, including Excess Interest, Prepayment Premiums, Yield Maintenance Charges and Default Interest;

 

(iii)       late payment charges and other Penalty Charges to the extent required to offset interest on Advances and additional expenses of the Trust (including Special Servicing Fees, Workout Fees or Liquidation Fees) as required by Section 3.11(d);

 

(iv)      all Insurance and Condemnation Proceeds and Liquidation Proceeds (other than Gain-on-Sale Proceeds or Non-Serviced Gain-on-Sale Proceeds) received in respect of any Mortgage Loan, Serviced Companion Loan or REO Property (other than (A) Liquidation Proceeds that are received in connection with the purchase by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class, or the Holders of the Class R Certificates of all the Mortgage Loans and any REO Properties in the Trust Fund and that are to be deposited in the Lower-Tier REMIC Distribution Account pursuant to Section 9.01 and (B) any proceeds that are received in connection with the purchase, if any, of a Serviced Pari Passu Companion Loan from a securitization by the related mortgage loan seller, which shall be paid directly to the servicer of such securitization) together with any recovery of Unliquidated Advances in respect of the related Mortgage Loans;

 

(v)       any amounts required to be transferred from the applicable REO Account pursuant to Section 3.14(c);

 

(vi)      any amounts required to be deposited by either Master Servicer pursuant to Section 3.06 in connection with losses incurred with respect to Permitted Investments of funds held in its Collection Account; and

 

(vii)     any amounts required to be deposited by either Master Servicer or either Special Servicer pursuant to Section 3.07(b) in connection with losses resulting from a deductible clause in a blanket hazard or master single interest policy.

 

Notwithstanding the foregoing requirements, a Master Servicer need not deposit into its Collection Account any amount that such Master Servicer would be authorized to withdraw immediately from such account in accordance with the terms of Section 3.05 and shall be entitled to instead immediately pay such amount directly to the Person(s) entitled thereto; provided that such amounts shall be applied in accordance with the terms hereof and shall be reported as if deposited in its Collection Account and then withdrawn.

 

The foregoing requirements for deposit in the Collection Accounts shall be exclusive, it being understood and agreed that, without limiting the generality of the foregoing, actual payments from Mortgagors in the nature of Escrow Payments, charges for beneficiary statements or demands, assumption fees, modification fees, extension fees, defeasance fees, amounts collected for Mortgagor checks returned for insufficient funds or other amounts either Master Servicer or either Special Servicer would be entitled to retain as additional servicing

 

 -197-

 

 

compensation need not be deposited by such Master Servicer in its Collection Account. If either Master Servicer shall deposit in its Collection Account any amount not required to be deposited therein, it may at any time withdraw such amount from its Collection Account, any provision herein to the contrary notwithstanding. Assumption, extension and modification fees actually received from Mortgagors on Specially Serviced Loans shall be promptly delivered to the applicable Special Servicer as additional servicing compensation.

 

Upon receipt of any of the foregoing amounts in clauses (i) through (iv) above with respect to any Specially Serviced Loans, the applicable Special Servicer shall remit within two (2) Business Days of properly identified and available amounts to the applicable Master Servicer for deposit into the applicable Collection Account, in accordance with this Section 3.04(a). Any such amounts received by the applicable Special Servicer with respect to an REO Property shall be deposited by such Special Servicer into its REO Account and remitted to the applicable Master Servicer for deposit into its Collection Account, pursuant to Section 3.14(c). With respect to any such amounts paid by check to the order of the applicable Special Servicer, such Special Servicer shall endorse without recourse or warranty such check to the order of the applicable Master Servicer and shall promptly deliver any such check to such Master Servicer by overnight courier. Funds in the Collection Accounts may only be invested in Permitted Investments in accordance with the provisions of Section 3.06. As of the Closing Date, the Collection Account for the General Master Servicer shall be located at the offices of Wells Fargo Bank, National Association. As of the Closing Date, the Collection Account for the NCB Master Servicer shall be located at the offices of Wells Fargo Bank, National Association. Each Master Servicer shall give written notice to the Trustee, the Special Servicers, the Certificate Administrator and the Depositor of the new location of its Collection Account prior to any change thereof.

 

(b)       The Certificate Administrator, on behalf of the Trustee, shall establish and maintain (i) the Lower-Tier REMIC Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders, (ii) the Upper Tier REMIC Distribution Account in trust for the benefit of the Certificateholders, and (iii) the Excess Interest Distribution Account in trust for the benefit of the Holders of the RR Interest. Each Master Servicer shall deliver to the Certificate Administrator each month on or before the P&I Advance Date therein, for deposit (x) in the Lower-Tier REMIC Distribution Account, that portion of the Aggregate Available Funds attributable to the Mortgage Loans for which it acts as Master Servicer (in each case, calculated without regard to clauses (a)(iii)(B), (a)(iv), (c), (d) and (e) of the definition of Aggregate Available Funds) for the related Distribution Date and (y) in the Excess Interest Distribution Account all Excess Interest for the related Distribution Date then on deposit in the applicable Collection Account maintained by the applicable Master Servicer after giving effect to withdrawals of funds pursuant to Section 3.05(a)(ii). For the avoidance of doubt, so long as Computershare Trust Company, N.A. is the Certificate Administrator, all funds held in the Distribution Account, the Interest Reserve Account and the Excess Interest Distribution Account shall remain uninvested. The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j) of this Agreement.

 

 -198-

 

 

With respect to the Serviced Companion Noteholders, the Companion Paying Agent shall establish and maintain the Companion Distribution Account, which may be a subaccount of the related Collection Account, for distributions to the Serviced Companion Noteholders. Funds in the Companion Distribution Account shall be held for the benefit of the related Serviced Companion Noteholders. The Companion Paying Agent shall separately track for each Serviced Companion Loan all amounts deposited in the Companion Distribution Account with respect to such Serviced Companion Loan. On each Serviced Whole Loan Remittance Date, (1) first, the applicable Master Servicer shall withdraw from its Collection Account (or applicable portion thereof) an aggregate amount equal to all payments and/or collections actually received on, and payable in respect of, the applicable Serviced Companion Loan prior to such date and deposit such amount in the Companion Distribution Account; provided, however, that in no event shall the applicable Master Servicer be required to transfer to the Companion Distribution Account any portion thereof that is payable or reimbursable to or at the direction of any party to this Agreement under the other provisions of this Agreement and/or the related Intercreditor Agreement; and (2) then, the Companion Paying Agent shall make the payments and remittance described in Section 4.01(k). With respect to any Serviced Whole Loan, in the event the applicable Master Servicer has received written notice that an Other Servicer or Other Trustee has made an advance of a monthly debt service payment on a related Serviced Pari Passu Companion Loan and such Master Servicer subsequently receives Late Collections in respect of such advanced payment, such Master Servicer shall remit to the applicable Other Servicer or Other Trustee, within two (2) Business Days following receipt of such Late Collections in properly identified funds, the amount allocable to such Serviced Pari Passu Companion Loan in accordance with the terms of this Agreement and the related Intercreditor Agreement.

 

The Lower-Tier REMIC Distribution Account, the Upper-Tier REMIC Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Excess Interest Distribution Account and the Interest Reserve Account, may be subaccounts of a single Eligible Account, which shall be maintained as a segregated account separate from other accounts.

 

In addition to the amounts required to be deposited in the Lower-Tier REMIC Distribution Account pursuant to this Section 3.04, each Master Servicer shall, as and when required hereunder, deliver to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account:

 

(i)         any amounts required to be deposited by such Master Servicer pursuant to Section 3.17(a) as Compensating Interest Payments (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) in connection with Prepayment Interest Shortfalls;

 

(ii)        any P&I Advances required to be made by such Master Servicer in accordance with Section 4.03;

 

(iii)       any Liquidation Proceeds paid by such Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates in connection with the purchase of all of the Mortgage Loans and any REO

 

 -199-

 

 

Properties in the Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof required to be deposited in the applicable Collection Account pursuant to Section 9.01);

 

(iv)      any Prepayment Premiums and Yield Maintenance Charges with respect to the Mortgage Loans actually collected; and

 

(v)       any other amounts required to be so delivered for deposit in the Lower-Tier REMIC Distribution Account pursuant to any provision of this Agreement.

 

If, as of the close of business (New York City time) on any P&I Advance Date or on such other date as any amount referred to in the foregoing clauses (i) through (v) or any Excess Interest are required to be delivered hereunder, the applicable Master Servicer shall not have delivered to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, the amounts required to be deposited therein pursuant to the provisions of this Agreement (including any P&I Advance with respect to the Mortgage Loans, pursuant to Section 4.03(a)), the applicable Master Servicer shall pay the Certificate Administrator interest on such late payment at the Prime Rate from and including the date such payment was required to be made (without regard to any Grace Period set forth in Section 7.01(a)(i)) until (but not including) the date such late payment is received by the Certificate Administrator.

 

The Certificate Administrator shall, upon receipt, deposit in the Lower-Tier REMIC Distribution Account or the Excess Interest Distribution Account, as applicable, any and all amounts received by the Certificate Administrator that are required by the terms of this Agreement to be deposited therein by the applicable Master Servicer.

 

Promptly on each Distribution Date, the Certificate Administrator shall be deemed to withdraw from the Lower-Tier REMIC Distribution Account and deposit in the Upper-Tier REMIC Distribution Account an aggregate amount of immediately available funds equal to the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges for such Distribution Date allocated in payment of the Lower-Tier Regular Interests as specified in Section 4.01(a), Section 4.01(b) and Section 4.01(e), as applicable.

 

Funds on deposit in the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account or the Lower-Tier REMIC Distribution Account shall not be invested for so long as Computershare Trust Company, N.A. is the Certificate Administrator; provided, however, that such funds may be invested and, if invested, shall be invested by, and at the risk of, the Certificate Administrator (but only if the Certificate Administrator is not Computershare Trust Company, N.A.) in Permitted Investments selected by the party hereunder that maintains such account which shall mature, unless payable on demand, not later than such time on the Distribution Date which will allow the Certificate Administrator to make withdrawals from the Distribution Account, and any such Permitted Investment shall not be sold or disposed of prior to its maturity unless payable on demand. All such Permitted Investments to be administered by the Certificate Administrator, shall be made in the name of “Computershare Trust Company, N.A., as Certificate Administrator, for the benefit of

 

 -200-

 

 

Wilmington Trust, National Association, as Trustee for the Holders of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 as their interests may appear”, or in the name of any successor trustee, as Trustee for the Holders of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 as their interests may appear. None of the Trust, the Depositor, the Mortgagors, the Master Servicers or the Special Servicers shall be liable for any loss incurred on such Permitted Investments.

 

An amount equal to all income and gain realized from any such investment shall be paid to the Certificate Administrator as additional compensation and shall be subject to its withdrawal at any time from time to time. The amount of any losses incurred in respect of any such investments shall be for the account of the Certificate Administrator which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Distribution Accounts, as the case may be, out of its own funds immediately as realized. If the Certificate Administrator deposits in or transfers to the Distribution Accounts, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Distribution Accounts, as the case may be, any provision herein to the contrary notwithstanding.

 

On the Closing Date, the Depositor shall deposit $250,000 with the Certificate Administrator, to be credited to the Legal Fee Reserve Account. Funds held in the Legal Fee Reserve Account shall remain uninvested. Annually, on or about April 1st beginning 2022 upon receipt by the Certificate Administrator from the Depositor of a legal invoice related to Commission compliance matters, the Certificate Administrator shall pay such legal invoice from and solely to the extent of funds then on deposit in the Legal Fee Reserve Account. Any such instruction shall be sent by email to cts.cmbs.bond.admin@wellsfargo.com, along with a copy of the invoice, and a subject line reference of “BANK-2021-BNK37- Legal Fee Reserve Account”. The Legal Fee Reserve Account will not be a part of the Trust Fund, either Trust REMIC or the Grantor Trust. The Depositor will be the beneficial owner of the Legal Fee Reserve Account for all federal income tax purposes, and shall be taxable on all income earned therefrom.

 

Upon the depletion of the Legal Fee Reserve Account, or if there are insufficient funds to pay any invoice, the Certificate Administrator shall notify the Depositor, and thereafter the Depositor shall pay any additional legal invoices from its own funds and the Certificate Administrator shall have no responsibility in connection therewith.

 

The Certificate Administrator shall have no responsibility for verifying the accuracy, reasonableness, or appropriateness of any invoice received. On the final Distribution Date, the Certificate Administrator shall pay to the Depositor any funds then remaining in the Legal Fee Reserve Account in accordance with directions provided by the Depositor.

 

As of the Closing Date, the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account and the Lower-Tier REMIC Distribution Account shall be located at the offices of the Certificate Administrator. The Certificate Administrator shall give notice to the Trustee, the Master Servicers and the Depositor of the proposed location of the Interest Reserve Account, the Excess Interest Distribution Account, the Upper-Tier REMIC Distribution Account, the Lower-Tier REMIC Distribution

 

 -201-

 

 

Account, and, if established, the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account prior to any change thereof.

 

For the avoidance of doubt, the Collection Accounts (other than (i) any portion holding Excess Interest and (ii) the Companion Distribution Account, if it is a sub-account of a Collection Account), the Lower-Tier REMIC Distribution Account, the Gain-on-Sale Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account, any Servicing Account, the REO Account and the Interest Reserve Account (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Lower-Tier REMIC; the Excess Interest Distribution Account (and any portion of the Collection Accounts holding Excess Interest) (including interest, if any, earned on the investment of funds in such accounts) will be owned by the Grantor Trust for the benefit of the Holders of the RR Interest; the Companion Distribution Account (including interest, if any, earned on the investment of funds in such account) will be owned by the Companion Holders; and the Upper-Tier REMIC Distribution Account (including interest, if any, earned on the investment of funds such account) will be owned by the Upper-Tier REMIC, each for federal income tax purposes.

 

(c)       Prior to any Determination Date for the first Collection Period during which Excess Interest is received on any Mortgage Loan, and upon notification from a Master Servicer or a Special Servicer pursuant to Section 3.02(d), the Certificate Administrator, on behalf of the Certificateholders, shall establish and maintain the Excess Interest Distribution Account in its own name on behalf of the Trustee in trust for the benefit of the Holders of the RR Interest, which shall be an asset of the Grantor Trust, but shall not be an asset of any Trust REMIC. The Excess Interest Distribution Account shall be established and maintained as an Eligible Account (or as a subaccount of an Eligible Account). Prior to the applicable Distribution Date, the applicable Master Servicer shall remit to the Certificate Administrator for deposit in the Excess Interest Distribution Account an amount equal to the Excess Interest received by such Master Servicer prior to the Determination Date for the applicable Collection Period.

 

(d)       Following the distribution of the applicable portions of Excess Interest to Holders of the RR Interest, as applicable, on the first Distribution Date after which there are no longer any Mortgage Loans outstanding which pursuant to their terms could pay Excess Interest, the Certificate Administrator shall terminate the Excess Interest Distribution Account.

 

(e)        The Certificate Administrator shall establish (upon notice from the applicable Special Servicer of an event occurring that generates Gain-on-Sale Proceeds) and maintain (i) the Gain-on-Sale Reserve Account for the benefit of the Certificateholders (other than Holders of the RR Interest) and (ii) the Retained Certificate Gain-on-Sale Reserve Account for the benefit of the Holders of the RR Interest. Each of the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account shall be maintained as an Eligible Account (or as a subaccount of an Eligible Account), separate and apart from trust funds for mortgage pass-through certificates of other series administered by the Certificate Administrator.

 

Upon the disposition of any REO Property, in accordance with Section 3.09 or Section 3.16, the applicable Special Servicer will calculate the Gain-on-Sale Proceeds, if any, realized that are allocable to the Mortgage Loan and any gain that is allocable to any related

 

 -202-

 

 

Serviced Companion Loan in connection with such sale and remit such funds to the applicable Master Servicer on the later of (x) the date that is on or prior to each Determination Date or (y) two (2) Business Days after such amounts are received and properly identified, along with a notation of the amount of Gain-on-Sale Proceeds in the CREFC^® REO Liquidation Report. On the related Remittance Date, the applicable Master Servicer shall remit such funds that are allocable to the Mortgage Loan to the Certificate Administrator, who shall (i) deposit the Non-Retained Percentage of such funds into the Gain-on-Sale Reserve Account and (ii) deposit the Required Credit Risk Retention Percentage of such funds into the Retained Certificate Gain-on-Sale Reserve Account. Any gain on such disposition that is allocable to any related Companion Loan in accordance with the terms of the related Intercreditor Agreement shall be remitted to the Companion Paying Agent for deposit into the Companion Distribution Account.

 

(f)        Any Non-Serviced Gain-on-Sale Proceeds received with respect to any Non-Serviced Mortgage Loan pursuant to the related Non-Serviced PSA shall be remitted to the Certificate Administrator as follows: (i) the Non-Retained Percentage of such funds for deposit into the Gain-on-Sale Reserve Account and (ii) the Required Credit Risk Retention Percentage of such funds for deposit into the Retained Certificate Gain-on-Sale Reserve Account.

 

(g)       If any Loss of Value Payments are received in connection with a Material Defect pursuant to or as contemplated by Section 3.05(g) of this Agreement, the applicable Special Servicer shall establish and maintain one or more non-interest bearing accounts (collectively, the “Loss of Value Reserve Fund”) to be held for the benefit of the Certificateholders, for purposes of holding such Loss of Value Payments. Each account that constitutes the Loss of Value Reserve Fund shall be an Eligible Account or a sub-account of an Eligible Account. The applicable Special Servicer shall, within two (2) Business Days of receipt of properly identified and available Loss of Value Payments, deposit in the Loss of Value Reserve Fund all Loss of Value Payments received by it. The Certificate Administrator shall account for the Loss of Value Reserve Fund as an outside reserve fund within the meaning of Treasury Regulations Section 1.860G-2(h) and not an asset of any Trust REMIC or the Grantor Trust. Furthermore, for all federal tax purposes, the Certificate Administrator shall (i) treat amounts paid out of the Loss of Value Reserve Fund through the Collection Accounts to the Certificateholders as paid to and distributed by the Trust REMICs and (ii) treat any amounts paid out of the Loss of Value Reserve Fund through the Collection Accounts to a Mortgage Loan Seller as distributions by the Trust to such Mortgage Loan Seller as beneficial owner of the Loss of Value Reserve Fund. The applicable Mortgage Loan Seller will be the beneficial owner of the Loss of Value Reserve Fund for all federal income tax purposes, and shall be taxable on all income earned thereon.

 

Section 3.05       Permitted Withdrawals from the Collection Accounts, the Distribution Accounts and the Companion Distribution Account.  (a) Each Master Servicer may, from time to time, make withdrawals from its Collection Account (or the applicable subaccount of its Collection Account exclusive of the Companion Distribution Account) for any of the following purposes (the following not being an order of priority and without duplication of the same payment or reimbursement):

 

(i)         (A) no later than 4:00 p.m., New York City time, on each P&I Advance Date, to remit to the Certificate Administrator for deposit in the Lower-Tier REMIC

 

 -203-

 

 

Distribution Account and the Excess Interest Distribution Account the amounts required to be remitted by such Master Servicer pursuant to the first paragraph of Section 3.04(b) or that may be applied to make P&I Advances pursuant to Section 4.03(a); and (B) pursuant to the second paragraph of Section 3.04(b), to remit to the Companion Paying Agent for deposit in the Companion Distribution Account the amounts required to be so deposited with respect to the Companion Loans;

 

(ii)        (A) to pay itself (or, with respect to any Transferable Servicing Interest, to pay Wells Fargo Bank, National Association if Wells Fargo Bank, National Association is no longer the General Master Servicer or NCB if NCB is no longer the NCB Master Servicer, any such interest pursuant to Section 3.11(a)) unpaid Servicing Fees in respect of each Mortgage Loan, Serviced Companion Loan, Specially Serviced Loan, and REO Loan, as applicable, the applicable Master Servicer’s rights to payment of Servicing Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan, related Serviced Companion Loan, Specially Serviced Loan or REO Loan, as applicable, being limited to amounts received on or in respect of such Mortgage Loan or related Serviced Companion Loan (whether in the form of payments, Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, (B) to pay the applicable Special Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in respect of each Specially Serviced Loan or REO Loan or Corrected Loan, as applicable, and any expense incurred by such Special Servicer in connection with performing any inspections pursuant to Section 3.12(a), remaining unpaid first, out of related REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds and collections in respect of the related Specially Serviced Loan (provided that, in the case of such payment relating to a Serviced Whole Loan, such payment shall be made, subject to the terms of the related Intercreditor Agreement with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan, as applicable, and then, pro rata and pari passu, from the related Mortgage Loan and any related Serviced Pari Passu Companion Loan, in accordance with their respective outstanding principal balances) and then out of general collections on the Mortgage Loans and REO Properties, (C) to pay the Operating Advisor (or the applicable Master Servicer, if applicable) any unpaid Operating Advisor Fees or Operating Advisor Consulting Fees in respect of each Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, the Operating Advisor’s right to payment of the Operating Advisor Fee or Operating Advisor Consulting Fee pursuant to this clause (ii)(C) with respect to any Mortgage Loan, Specially Serviced Loan or REO Loan (other than any related Companion Loan), as applicable, being limited to amounts received on or in respect of such Mortgage Loan (whether in the form of payments, P&I Advances (solely with respect to the Operating Advisor Fee), Liquidation Proceeds or Insurance and Condemnation Proceeds), such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds), that are allocable as recovery of interest thereon, and (D) to pay the Asset Representations Reviewer, any unpaid Asset Representations Reviewer Fee and (subject to Section 12.02(b)) Asset Representations Reviewer Asset Review Fee, if any, payable in connection with any Asset Review performed as a result of an Affirmative Asset Review Vote;

 

 -204-

 

 

(iii)      to reimburse the Trustee and itself, as applicable (in that order), for unreimbursed P&I Advances, the applicable Master Servicer’s or the Trustee’s right to reimbursement pursuant to this clause (iii) being limited to amounts received which represent Late Collections of interest (net of the related Servicing Fee) on and principal of the particular Mortgage Loans and REO Loans with respect to which P&I Advances were made; provided that with respect to each Serviced Whole Loan, reimbursement of P&I Advances shall be made only from amounts collected with respect to the related Serviced Mortgage Loan and not from any amounts collected with respect to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan) prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in the applicable Collection Account; provided, further, that if such P&I Advance with respect to a Mortgage Loan becomes a Workout-Delayed Reimbursement Amount, then the maker of such P&I Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such P&I Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties serviced by such Master Servicer on deposit in its Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (iv) below; and provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

 

(iv)      to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order), for unreimbursed Servicing Advances, the applicable Master Servicer’s, the applicable Special Servicer’s or the Trustee’s respective rights to receive payment pursuant to this clause (iv) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or any related Companion Loan or any REO Property being limited to, as applicable, related payments, Liquidation Proceeds, Insurance and Condemnation Proceeds and REO Revenues (provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursements shall be made, subject to the terms of the related Intercreditor Agreement with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan (if any) and then, pro rata and pari passu, from the related Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan)), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in the applicable Collection Account related to any Mortgage Loan; provided, however, that if such Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then the maker of such Servicing Advance shall additionally, but without duplication, thereafter be entitled to reimbursement for such Servicing Advance from the portion of general collections and recoveries on or in respect of the Mortgage Loans and REO Properties

 

 -205-

 

 

serviced by such Master Servicer on deposit in the applicable Collection Account from time to time that represent collections or recoveries of principal to the extent provided in clause (v) below; provided, further, that if such Advance becomes a Nonrecoverable Advance, then such Advance shall be reimbursable pursuant to clause (v) below;

 

(v)       to reimburse the Trustee, the applicable Special Servicer and itself, as applicable (in that order) (1) for Nonrecoverable Advances first, out of REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds, if any, received on the related Mortgage Loan and any related Companion Loan (with respect to such Companion Loan, only for Nonrecoverable Servicing Advances made with respect thereto), then, out of the principal portion of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, then, to the extent the principal portion of general collections is insufficient and with respect to such excess only, subject to any exercise of the sole option to defer reimbursement thereof pursuant to Section 3.17(c), out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, (2) for Workout-Delayed Reimbursement Amounts, out of the principal portion of the general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer net of such amounts being reimbursed pursuant to (1) above; (provided that, in case of such reimbursement of a Nonrecoverable Servicing Advance relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan (if any) and then, pro rata and pari passu, from the related Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances and provided, further, that, in case of such reimbursement with respect to Nonrecoverable Servicing Advances relating to a Serviced Whole Loan, such reimbursement shall be made as described above in this subclauses (1) and (2) of this clause (v), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in the applicable Collection Account; provided, further, that with respect to a Serviced Mortgage Loan, reimbursement of Nonrecoverable P&I Advances from funds collected from the related Serviced Whole Loan shall be made only from amounts collected with respect to such Serviced Mortgage Loan (and not from any amounts collected with respect to the related Serviced Companion Loan), in accordance with the terms of the related Intercreditor Agreement (provided that, with respect to any AB Subordinate Companion Loan, the foregoing with respect to Nonrecoverable Servicing Advances and Nonrecoverable P&I Advances shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced Mortgage Loan, any Serviced Pari Passu Companion Loans and AB Subordinate Companion Loan), prior to reimbursement from other funds unrelated to such Serviced Whole Loan on deposit in the Collection Accounts related to any Mortgage Loan) or (3) to pay itself, with respect to any Mortgage Loan, any related Companion Loan, if applicable, or REO Property any related earned Servicing Fee that remained unpaid in accordance with clause (ii) above following a Final Recovery Determination made with respect to such Mortgage Loan or REO Property and the deposit into the Collection Accounts of all amounts received in connection therewith;

 

 -206-

 

 

(vi)      at such time as it reimburses the Trustee and itself, as applicable (in that order) or any Other Trustee or Other Servicer for a related securitization trust in respect of any Serviced Pari Passu Companion Loan for (a) any unreimbursed P&I Advance (including any such P&I Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iii) or clause (v) above, to pay itself and/or the Trustee or such other servicing party, as applicable, any interest accrued and payable thereon in accordance with Section 4.03(d) or Section 3.11(d), (b) any unreimbursed Servicing Advances (including any such Servicing Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) or clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon in accordance with Section 3.03(d) or Section 3.11(d) or (c) any Nonrecoverable Advances pursuant to clause (v) above, to pay itself, the applicable Special Servicer or the Trustee, or Other Trustee or Other Servicer as the case may be, any interest accrued and payable thereon; provided that in all events, subject to the related Intercreditor Agreement, interest on P&I Advances on any Serviced Mortgage Loan shall not be paid from funds actually distributable to any related Serviced Companion Loan (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan);

 

(vii)     to reimburse itself, the applicable Special Servicer or the Trustee, as the case may be, for any unreimbursed expenses reasonably incurred by such Person in respect of any Material Defect giving rise to a repurchase or substitution obligation of the applicable Mortgage Loan Seller or any other obligation of the Mortgage Loan Seller under Section 4 of the applicable Mortgage Loan Purchase Agreement, including, without limitation, any expenses arising out of the enforcement of the repurchase or substitution obligation or any other obligation of the Mortgage Loan Seller, each such Person’s right to reimbursement pursuant to this clause (vii) with respect to any Mortgage Loan being limited to that portion of the Purchase Price, the Loss of Value Payment or Substitution Shortfall Amount paid with respect to such Mortgage Loan, that represents such expense in accordance with clause (iv) of the definition of Purchase Price;

 

(viii)    in accordance with Section 2.03(f), to reimburse itself or the applicable Special Servicer, as the case may be, first, out of Liquidation Proceeds, Insurance and Condemnation Proceeds, if any, with respect to the related Mortgage Loan or REO Loan, and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer, for any unreimbursed expense reasonably incurred by such Person in connection with the enforcement of the applicable Mortgage Loan Seller’s obligations under Section 4 of the applicable Mortgage Loan Purchase Agreement, but only to the extent that such expenses are not reimbursable pursuant to clause (vii) above or otherwise; provided that, in case of such reimbursement out of Liquidation Proceeds, and Insurance and Condemnation Proceeds described above relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan and then, pro rata and pari passu, from the related

 

 -207-

 

 

Serviced Pari Passu Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(ix)       to pay for costs and expenses incurred by the Trust pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation Proceeds, Insurance and Condemnation Proceeds with respect to the related Mortgage Loan, Serviced Companion Loan or REO Loan and then out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer; provided that, in case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan and then, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan), in each case, prior to being payable out of general collections with respect to the Mortgage Loan;

 

(x)        to pay itself, as additional servicing compensation in accordance with Section 3.11(a), (a) (1) interest and investment income earned in respect of amounts relating to the Trust Fund held in its Collection Account and the Companion Distribution Account as provided in Section 3.06(b) (but only to the extent of the Net Investment Earnings with respect to its Collection Account and the Companion Distribution Account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to such Distribution Date) and (2) Penalty Charges (other than Penalty Charges collected while the related Mortgage Loan and any related Serviced Companion Loan is a Specially Serviced Loan), but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Mortgage Loan and any related Serviced Companion Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d); and (b) to pay the applicable Special Servicer, as additional servicing compensation in accordance with Section 3.11(d), Penalty Charges collected on Specially Serviced Loans (but only to the extent collected from the related Mortgagor and to the extent that all amounts then due and payable with respect to the related Specially Serviced Loan have been paid and such Penalty Charges are not needed to pay interest on Advances or costs and expenses incurred by the Trust (including Special Servicing Fees, Liquidation Fees and Workout Fees) in accordance with Section 3.11(d));

 

 -208-

 

 

(xi)       to recoup any amounts deposited in its Collection Account in error;

 

(xii)      to pay itself, the applicable Special Servicer, the Depositor, the Operating Advisor, the Asset Representations Reviewer or any of their respective directors, officers, members, managers, employees and agents, or CREFC^®, as the case may be, out of general collections, any amounts payable to any such Person pursuant to Section 3.11(g), Section 6.04(a) or Section 6.04(b); provided that, in the case of such reimbursement (other than a reimbursement of any amounts payable to CREFC^®) relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement, with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan and then, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(xiii)     to pay for (a) the cost of the Opinions of Counsel contemplated by Sections 3.09(b), 3.14(a), 3.15(b), 3.18(b), 3.18(d), 3.18(i), 3.18(m), Section 5.08(a) and 10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any Opinion of Counsel contemplated by Section 13.01(a) or Section 13.01(c) in connection with an amendment to this Agreement requested by the Trustee or the applicable Master Servicer, which amendment is in furtherance of the rights and interests of Certificateholders and (c) the cost of obtaining the REO Extension contemplated by Section 3.14(a); provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement (i) with respect to the related Serviced Pari Passu Whole Loan, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances or (ii) with respect to a Serviced AB Whole Loan, first, from the related AB Subordinate Companion Loan (if any) and then, from the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans on a pro rata and pari passu basis (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan), in each case, prior to being payable out of general collections with respect to the Mortgage Loans;

 

(xiv)    to pay out of general collections on the Mortgage Loans and the REO Properties serviced by such Master Servicer any and all federal, state and local taxes imposed on any Trust REMIC, or any of their assets or transactions, together with all incidental costs and expenses, to the extent that none of the applicable Master Servicer,

 

 -209-

 

 

the applicable Special Servicer, the Certificate Administrator or the Trustee is liable therefor pursuant to Section 10.01(g);

 

(xv)      to reimburse the Certificate Administrator out of general collections on the Mortgage Loans and REO Properties serviced by such Master Servicer for expenses incurred by and reimbursable to it by the Trust pursuant to Section 10.01(c);

 

(xvi)     to pay the applicable Mortgage Loan Seller or any other Person, with respect to each Mortgage Loan, if any, previously purchased by such Person pursuant to this Agreement, all amounts received thereon subsequent to the date of purchase relating to periods after the date of purchase; or, in the case of the substitution for a Mortgage Loan by a Mortgage Loan Seller as contemplated by Section 2.03(b), to pay such Mortgage Loan Seller with respect to the replaced Mortgage Loan all amounts received thereon subsequent to the date of substitution, and with respect to the related Qualified Substitute Mortgage Loan(s), all Periodic Payments due thereon during or prior to the month of substitution, in accordance with Section 2.03(b);

 

(xvii)    to remit to the Certificate Administrator for deposit in the Interest Reserve Account the amounts required to be deposited in the Interest Reserve Account pursuant to Section 3.21;

 

(xviii)   to reimburse the Operating Advisor for any Operating Advisor Expenses incurred by and reimbursable to it by the Trust pursuant to Section 3.26(i);

 

(xix)     [RESERVED];

 

(xx)      so long as such Master Servicer has received notice of the applicable Uncovered Amount on or before the related Determination Date, to pay or reimburse the applicable Person for any Uncovered Amount in respect of the other Master Servicer’s Collection Account, any such Person’s right to payment or reimbursement for any such Uncovered Amount being limited to any general funds in the subject Master Servicer’s Collection Account that are not otherwise to be applied to make any of the payments or reimbursements contemplated to be made out of the subject Master Servicer’s Collection Account pursuant to any of clauses (i) – (xviii) above;

 

(xxi)     to remit to the Companion Paying Agent for deposit into the Companion Distribution Account the amounts required to be deposited pursuant to Section 3.04(b) without duplication of amounts remitted to the Companion Paying Agent pursuant to clause (i) above;

 

(xxii)    to clear and terminate its Collection Account at the termination of this Agreement pursuant to Section 9.01; and

 

(xxiii)   to pay for any expenditures to be borne by the Trust pursuant to the third paragraph of Section 3.03(c).

 

Each Master Servicer shall also be entitled to make withdrawals from time to time, from its Collection Account of amounts necessary for the payments or reimbursement of

 

 -210-

 

 

amounts required to be paid to the applicable Non-Serviced Trust, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer, the applicable Non-Serviced Trustee, the applicable Non-Serviced Paying Agent or any other applicable party to the applicable Non-Serviced PSA by the holder of a Non-Serviced Mortgage Loan pursuant to or as contemplated by this Agreement, the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA.

 

Each Master Servicer shall keep and maintain separate accounting records, on a loan-by-loan and, when appropriate, on a property-by-property basis, for the purpose of justifying any withdrawal from its Collection Account.

 

Each Master Servicer shall pay to the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer from its Collection Account amounts permitted to be paid to it therefrom monthly upon receipt of a certificate of a Servicing Officer of such Special Servicer, or an officer of the Operating Advisor or the Asset Representations Reviewer or a Responsible Officer of the Trustee or the Certificate Administrator describing the item and amount to which such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer is entitled. The applicable Master Servicer may rely conclusively on any such certificate and shall have no duty to re-calculate the amounts stated therein. The applicable Special Servicer shall keep and maintain separate accounting for each Specially Serviced Loan and REO Loan, on a loan-by-loan and, when appropriate, on a property-by-property basis, for the purpose of justifying any request for withdrawal from the Collection Account. Notwithstanding the above, no written certificate is required for a payment of Special Servicing Fees and/or Workout Fees arising from collections other than the initial collection on a Corrected Loan.

 

Notwithstanding anything to the contrary in this Section 3.05 or elsewhere in this Agreement, no amounts payable or reimbursable to the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer out of general collections that do not specifically relate to a Serviced Whole Loan may be reimbursable from amounts that would otherwise be payable to the related Companion Loan, as applicable.

 

(b)       The Certificate Administrator may, from time to time, make withdrawals from the Lower-Tier REMIC Distribution Account for any of the following purposes (the following not being an order of priority):

 

(i)         to be deemed to make deposits of the Lower-Tier Distribution Amount pursuant to Section 4.01(c) and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant to Section 4.01(e) in the Upper-Tier REMIC Distribution Account, and to make distributions on the Class R Certificates in respect of the Class LR Interest pursuant to Section 4.01(c);

 

(ii)        to pay to the Trustee and the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person with respect to the Mortgage Loans pursuant to Section 8.05(b);

 

 -211-

 

 

(iii)       to pay the Certificate Administrator and the Trustee, the Certificate Administrator Fee and the Trustee Fee, as applicable, as contemplated by Section 8.05(a) with respect to the Mortgage Loans;

 

(iv)      to pay for the cost (without duplication) of the Opinions of Counsel sought by (A) the Trustee or the Certificate Administrator as provided in clause (vi) of the definition of “Disqualified Organization,” (B) the Trustee, the Certificate Administrator, either Master Servicer or either Special Servicer as contemplated by Section 3.18(d), (C) the Trustee or the Certificate Administrator as contemplated by Section 5.08(c) or Section 8.02 to the extent payable out of the Trust Fund, (D) the Trustee, the Certificate Administrator, either Master Servicer or either Special Servicer as contemplated by Section 10.01(f) or Section 10.01(l) to the extent payable out of the Trust Fund, or (E) the Trustee, the Certificate Administrator, either Master Servicer or either Special Servicer as contemplated by Section 13.01(a) or Section 13.01(c) in connection with any amendment to this Agreement requested by the Trustee or the Certificate Administrator, which amendment is in furtherance of the rights and interests of Certificateholders, in each case, to the extent not paid pursuant to Section 13.01(g);

 

(v)       to pay any and all federal, state and local taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC or on the assets or transactions of any such REMIC, together with all incidental costs and expenses, to the extent none of the Trustee, the Certificate Administrator, the REMIC Administrator, the Master Servicers or the Special Servicers is liable therefor pursuant to Section 10.01(g);

 

(vi)      to pay the REMIC Administrator any amounts reimbursable to it pursuant to Section 10.01(c) with respect to the Lower-Tier REMIC or the Upper-Tier REMIC;

 

(vii)     to pay to the applicable Master Servicer any amounts deposited by such Master Servicer in the Distribution Accounts not required to be deposited therein;

 

(viii)    to clear and terminate the Lower-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01; and

 

(ix)       termination of this Agreement pursuant to Section 9.01.

 

(c)       The Certificate Administrator shall, on any Distribution Date, make withdrawals from the Excess Interest Distribution Account to the extent required to make the distributions of Excess Interest required by Section 4.01(j).

 

(d)       The Certificate Administrator shall make, or be deemed to make, withdrawals from the Upper-Tier REMIC Distribution Account for any of the following purposes:

 

(i)        to make distributions to the Holders of the Regular Certificates and the Exchangeable Certificates and to the Holders of the Class R Certificates in respect of the Class UR Interest on each Distribution Date pursuant to Section 4.01 or Section 9.01, as applicable; and

 

 -212-

 

 

(ii)       to clear and terminate the Upper-Tier REMIC Distribution Account at the termination of this Agreement pursuant to Section 9.01.

 

(e)       [RESERVED].

 

(f)        Notwithstanding anything herein to the contrary, with respect to any Mortgage Loan, (i) if amounts on deposit in the Collection Accounts and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of the Servicing Fee listed in Section 3.05(a)(ii), the Operating Advisor Fee listed in Section 3.05(a)(ii) and the Certificate Administrator Fee listed in Section 3.05(b)(iii), then the Certificate Administrator Fee shall be paid in full prior to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and then, after payment of Servicing Fees, the Operating Advisor Fees payable under Section 3.05(a)(ii) and in the event that amounts on deposit in the Collection Accounts and the Lower-Tier REMIC Distribution Account are not sufficient to pay the full amount of such Certificate Administrator Fee, the Certificate Administrator shall be paid based on the amount of such fees and (ii) if amounts on deposit in the Collection Accounts are not sufficient to reimburse the full amount of Advances and interest thereon listed in Sections 3.05(a)(ii), 3.05(a)(iii), 3.05(a)(iv), 3.05(a)(v), and 3.05(a)(vi) then reimbursements shall be paid first to the Certificate Administrator and to the Trustee, pro rata, second to the applicable Special Servicer, third to the applicable Master Servicer and then to the Operating Advisor.

 

(g)       If any Loss of Value Payments are deposited into the Loss of Value Reserve Fund with respect to any Mortgage Loan or any related Serviced REO Property, then the applicable Special Servicer shall promptly upon written direction from the applicable Master Servicer (provided that, (1) with respect to clause (iv) below, such Special Servicer shall have provided notice to the applicable Master Servicer of the occurrence of such Liquidation Event and (2) with respect to clause (v) below, the Certificate Administrator shall have provided the applicable Master Servicer and such Special Servicer with five (5) Business Days’ prior notice of such final Distribution Date) transfer such Loss of Value Payments (up to the remaining portion thereof) from the Loss of Value Reserve Fund to such Master Servicer for deposit into the applicable Collection Account for the following purposes:

 

(i)        to reimburse the applicable Master Servicer, the applicable Special Servicer or the Trustee, in accordance with Section 3.05(a) of this Agreement, for any Nonrecoverable Advance made by such party with respect to such Mortgage Loan or any related Serviced REO Property (together with any interest on such Advances);

 

(ii)       to pay, in accordance with Section 3.05(a) of this Agreement, or to reimburse the Trust for the prior payment of, any expense or Liquidation Fee relating to such Mortgage Loan or any related Serviced REO Property that constitutes or, if not paid out of such Loss of Value Payments, would constitute an additional expense of the Trust;

 

(iii)      to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be (as calculated without regard to the application of such Loss of Value Payments), incurred with respect to such Mortgage Loan or any related successor REO Loan;

 

 -213-

 

 

(iv)      following the occurrence of a Liquidation Event with respect to such Mortgage Loan or any related Serviced REO Property and any related transfers from the Loss of Value Reserve Fund with respect to the items contemplated by the immediately preceding clauses (i)-(iii) as to such Mortgage Loan, to cover the items contemplated by the immediately preceding clauses (i)-(iii) in respect of any other Mortgage Loan or Serviced REO Loan; and

 

(v)       On the final Distribution Date after all distributions have been made as set forth in clause (i) through (iv) above, to each Mortgage Loan Seller, its pro rata share, based on the amount that it contributed, net of any amount contributed by such Mortgage Loan Seller that was used pursuant to clauses (i)-(iii) to offset any portion of Realized Losses or Retained Certificate Realized Losses, as applicable, that are attributable to such Mortgage Loan or related REO Property, as the case may be, additional trust fund expenses or any Nonrecoverable Advances incurred with respect to the Mortgage Loan related to such contribution.

 

(h)       Any Loss of Value Payments transferred to the Collection Accounts pursuant to clauses (i)-(iii) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or any successor REO Loan with respect thereto for which such Loss of Value Payments were received; and any Loss of Value Payments transferred to the Collection Accounts pursuant to clause (iv) of the prior paragraph shall be treated as Liquidation Proceeds received by the Trust in respect of the related Mortgage Loan or REO Loan for which such Loss of Value Payments are being transferred to the Collection Accounts to cover an item contemplated by clauses (i)-(iv) of the prior paragraph.

 

(i)         The Companion Paying Agent may, from time to time, make withdrawals from the Companion Distribution Account to make distributions pursuant to Section 4.01(k).

 

Section 3.06      Investment of Funds in the Collection Account, REO Account and Loss of Value Reserve Fund.  (a) Each Master Servicer may direct any depository institution maintaining its Collection Account, the Companion Distribution Account, or any Servicing Account maintained by or for such Master Servicer (for purposes of this Section 3.06, an “Investment Account”), each Special Servicer may direct any depository institution maintaining its REO Account and Loss of Value Reserve Fund (also for purposes of this Section 3.06, an “Investment Account”) to invest or if it is such depository institution, may itself invest, the funds held therein, only in one or more Permitted Investments bearing interest or sold at a discount, and maturing, unless payable on demand, (i) no later than the Business Day immediately preceding the next succeeding date on which funds are required to be withdrawn from such account pursuant to this Agreement, if a Person other than the depository institution maintaining such account is the obligor thereon and (ii) no later than the date on which funds are required to be withdrawn from such account pursuant to this Agreement, if the depository institution maintaining such account is the obligor thereon. All such Permitted Investments shall be held to maturity, unless payable on demand. Any funds held in an Investment Account shall be held in the name of the applicable Master Servicer or the applicable Special Servicer, as the case may be, on behalf of the Trustee (in its capacity as such) for the benefit of the Certificateholders. Each Master Servicer (in the case of the Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), each Special

 

 -214-

 

 

Servicer (in the case of the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) on behalf of the Trustee, shall maintain continuous physical possession of any Permitted Investment of amounts in such Collection Account, such Companion Distribution Account, such Servicing Accounts, such Loss of Value Reserve Fund or such REO Account, as applicable, that is either (i) a “certificated security,” as such term is defined in the UCC (such that the Trustee shall have control pursuant to Section 8-106 of the UCC) or (ii) other property in which a secured party may perfect its security interest by physical possession under the UCC or any other applicable law. In the case of any Permitted Investment held in the form of a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC), each Master Servicer or each Special Servicer, as the case may be, shall take or cause to be taken such action as the Trustee deems reasonably necessary to cause the Trustee to have control over such security entitlement. In the event amounts on deposit in an Investment Account are at any time invested in a Permitted Investment payable on demand, the applicable Master Servicer (in the case of the Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer) or the applicable Special Servicer (in the case of the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall:

 

(i)        consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (a) all amounts then payable thereunder and (b) the amount required to be withdrawn on such date; and

 

(ii)       demand payment of all amounts due thereunder promptly upon determination by the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee, as the case may be, that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the Investment Account.

 

(b)       Interest and investment income realized on funds deposited in the Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for the applicable Master Servicer to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date, shall be for the sole and exclusive benefit of the applicable Master Servicer to the extent (with respect to Servicing Accounts) not required to be paid to the related Mortgagor and shall be subject to its withdrawal, or withdrawal at its direction, in accordance with Section 3.03 or Section 3.05(a), as the case may be. Interest and investment income realized on funds deposited in the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for the applicable Special Servicer, to the extent of the Net Investment Earnings, if any, with respect to such account for each period from and including any Distribution Date to and including the immediately succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the applicable Special Servicer and shall be subject to its withdrawal in accordance with Section 3.14(c). In the event that any loss shall be incurred in respect of any Permitted Investment (as to which the applicable Master Servicer or applicable Special Servicer, as the case may be, would have been entitled to any Net Investment Earnings hereunder) directed to be made by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and on deposit in any of the

 

 -215-

 

 

Collection Account, the Companion Distribution Account, the Servicing Account, Loss of Value Reserve Fund or the REO Account, the applicable Master Servicer (in the case of the Collection Account, the Companion Distribution Account or any Servicing Account maintained by or for such Master Servicer), the applicable Special Servicer (in the case of the REO Account, Loss of Value Reserve Fund or any Servicing Account maintained by or for such Special Servicer) shall deposit therein, no later than the P&I Advance Date, without right of reimbursement, the amount of Net Investment Loss, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date; provided that neither the applicable Master Servicer nor the applicable Special Servicer shall be required to deposit any loss on an investment of funds in an Investment Account if such loss is incurred solely as a result of the insolvency of the federal or state chartered depository institution or trust company that holds such Investment Account, so long as such depository institution or trust company satisfied the qualifications set forth in the definition of Eligible Account at the time such investment was made (and such federal or state chartered depository institution or trust company is not an Affiliate of such Master Servicer or such Special Servicer, as applicable, unless such depository institution or trust company satisfied the qualification set forth in the definition of Eligible Account both (x) at the time the investment was made and (y) thirty (30) days prior to such insolvency).

 

(c)        Except as otherwise expressly provided in this Agreement, if any default occurs in the making of a payment due under any Permitted Investment, or if a default occurs in any other performance required under any Permitted Investment, the applicable Master Servicer may and, upon the request of Holders of Certificates entitled to a majority of the Voting Rights allocated to any Class shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings.

 

Section 3.07      Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage.  (a) Each Master Servicer (with respect to the applicable Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) shall use its efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (other than with respect to a Non-Serviced Mortgage Loan), and each Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Properties) shall maintain, to the extent required by the terms of the related Mortgage Loan documents, all insurance coverage as is required under the related Mortgage Loan documents except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default (and except as provided in the next sentence with respect to the applicable Master Servicer or the applicable Special Servicer, as the case may be). If the Mortgagor does not so maintain such insurance coverage, subject to its recoverability determination with respect to any required Servicing Advance, each Master Servicer (with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan) or each Special Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is required under the related Mortgage, but only in the event the Trustee has an insurable interest therein and such insurance is available to such Master Servicer or such Special Servicer, as applicable, and, if available, can be obtained at commercially reasonable rates, as determined (provided that any determination that such insurance coverage is not available or not available at commercially reasonable rates shall be made (i) prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Excluded Loan as to the Directing

 

 -216-

 

 

Certificateholder, with the consent of the Directing Certificateholder, (ii) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, after consultation with the Directing Certificateholder, and (iii) with respect to any REO Property and other than with respect to an Excluded Loan as to the Risk Retention Consultation Party, after consultation with the Risk Retention Consultation Party (pursuant to Section 6.08(a) or, in each case, with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, with the consent of the holder of the related AB Subordinate Companion Loan) and, after consultation by the applicable Special Servicer with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in the case of the Directing Certificateholder and Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party)). Such determination shall be made by the Master Servicer (with respect to the Serviced Mortgage Loans and any related Serviced Companion Loan) or the applicable Special Servicer (with respect to REO Properties other than any Non-Serviced Mortgaged Property) except to the extent that the failure of the related Mortgagor to do so is an Acceptable Insurance Default as determined by such Master Servicer (with respect to a Non-Specially Serviced Loan) or such Special Servicer (with respect to a Specially Serviced Loan); provided, however, that if any Mortgage permits the holder thereof to dictate to the Mortgagor the insurance coverage to be maintained on such Mortgaged Property, such Master Servicer or, with respect to REO Property, such Special Servicer, as applicable, shall impose or maintain, as applicable, such insurance requirements as are consistent with the Servicing Standard taking into account the insurance in place at the closing of the Mortgage Loan, provided that, with respect to the immediately preceding proviso, a Master Servicer shall be obligated to use efforts consistent with the Servicing Standard to cause the Mortgagor to maintain (or to itself maintain) insurance against property damage resulting from terrorist or similar acts unless the Mortgagor’s failure is an Acceptable Insurance Default (as determined by the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan)) (i) unless a Control Termination Event has occurred and is continuing and other than with respect to any Excluded Loan as to the Directing Certificateholder, with the consent of the Directing Certificateholder, (ii) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to an Excluded Loan as to the Directing Certificateholder, after consultation with the Directing Certificateholder, (iii) with respect to any Specially Serviced Loan other than an Excluded Loan as to the Risk Retention Consultation Party, after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (or, in each case, with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, the applicable Special Servicer with the consent of the Serviced AB Whole Loan Controlling Holder) and (iv) other than with respect to any Excluded Loan, the consent of the Directing Certificateholder, and only in the event the Trustee has an insurable interest therein and such insurance is available to the applicable Master Servicer or the applicable Special Servicer, as the case may be, and, if available, can be obtained at commercially reasonable rates. Each Master Servicer and each Special Servicer shall be entitled to rely on insurance consultants (at the applicable servicer’s expense) in determining whether any insurance is available at commercially reasonable rates. Subject to Section 3.15(a) and the costs of such insurance being reimbursed or paid to the applicable Special Servicer as provided in the third-to-last sentence of this paragraph, such Special Servicer shall maintain for each REO

 

 -217-

 

 

Property (other than any Non-Serviced Mortgaged Property) no less insurance coverage than was previously required of the Mortgagor under the related Mortgage Loan documents unless such Special Servicer determines ((i) unless a Control Termination Event has occurred and is continuing and other than with respect to any Excluded Loan as to the Directing Certificateholder, with the consent of the Directing Certificateholder, (ii) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event and other than with respect to an Excluded Loan as to the Directing Certificateholder, after consultation with the Directing Certificateholder, and (iii) with respect to any Specially Serviced Loan other than an Excluded Loan as to the applicable Special Servicer, after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (or, in each case, with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, with the consent of the Serviced AB Whole Loan Controlling Holder)) that such insurance is not available at commercially reasonable rates or that the Trustee does not have an insurable interest, in which case the applicable Master Servicer shall be entitled to conclusively rely on such Special Servicer’s determination. All Insurance Policies maintained by a Master Servicer or a Special Servicer shall (i) contain a “standard” mortgagee clause, with loss payable to the applicable Master Servicer on behalf of the Trustee (in the case of insurance maintained in respect of Mortgage Loans (other than any Non-Serviced Mortgage Loan), including any related Serviced Companion Loan, other than REO Properties) or to the applicable Special Servicer on behalf of the Trustee (in the case of insurance maintained in respect of REO Properties), (ii) be in the name of the Trustee (in the case of insurance maintained in respect of REO Properties), (iii) include coverage in an amount not less than the lesser of (x) the full replacement cost of the improvements securing Mortgaged Property or the REO Property, as applicable, and (y) the outstanding principal balance owing on the related Mortgage Loan (including any related Serviced Companion Loan) or REO Loan, as applicable, and in any event, the amount necessary to avoid the operation of any co-insurance provisions, (iv) include a replacement cost endorsement providing no deduction for depreciation (unless such endorsement is not permitted under the related Mortgage Loan documents), (v) be noncancelable without thirty (30) days prior written notice to the insured party (except in the case of nonpayment, in which case such policy shall not be cancelled without ten (10) days’ prior notice) and (vi) subject to the first proviso in the second sentence of this Section 3.07(a), be issued by a Qualified Insurer authorized under applicable law to issue such Insurance Policies. Any amounts collected by a Master Servicer or a Special Servicer under any such Insurance Policies (other than amounts to be applied to the restoration or repair of the related Mortgaged Property or REO Property or amounts to be released to the related Mortgagor, in each case in accordance with the Servicing Standard and the provisions of the related Mortgage Loan documents) shall be deposited in the Collection Account, subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by a Master Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans (including any related Serviced Companion Loan) (other than REO Properties and other than any Non-Serviced Mortgage Loan) (i) if the Mortgagor defaults on its obligation to do so, shall be advanced by such Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account) and will be charged to the related Mortgagor and (ii) shall not, for purposes of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan and

 

 -218-

 

 

Serviced Companion Loan (if any), notwithstanding that the terms of such Mortgage Loan or Serviced Companion Loan so permit. Any cost incurred by a Special Servicer in maintaining any such Insurance Policies with respect to REO Properties shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, advanced by the applicable Master Servicer as a Servicing Advance (so long as such Advance would not be a Nonrecoverable Advance and if such Advance would be a Nonrecoverable Advance then such cost shall instead be paid out of the applicable Collection Account). The foregoing provisions of this Section 3.07 shall apply to any Serviced Whole Loan as if it were a single “Mortgage Loan”. Notwithstanding any provision to the contrary, no Master Servicer shall be required to maintain, and will not be in default for failing to obtain, any earthquake or environmental insurance on any Mortgaged Property unless such insurance was required at the time of origination of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) and is currently available at commercially reasonable rates.

 

Notwithstanding the foregoing, with respect to the Mortgage Loans (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that either (x) require the Mortgagor to maintain “all risk” property insurance (and do not expressly permit an exclusion for terrorism) or (y) contain provisions generally requiring the applicable Mortgagor to maintain insurance in types and against such risks as the holder of such Mortgage Loan (including any related Serviced Companion Loan) reasonably requires from time to time in order to protect its interests, the applicable Master Servicer shall, consistent with the Servicing Standard, (A) monitor in accordance with the Servicing Standard whether the insurance policies for the related Mortgaged Property contain Additional Exclusions; provided that such Master Servicer shall be entitled to conclusively rely upon certificates of insurance in determining whether such policies contain Additional Exclusions, (B) request the Mortgagor to either purchase insurance against the risks specified in the Additional Exclusions or provide an explanation as to its reasons for failing to purchase such insurance and (C) if the related Mortgage Loan is a Specially Serviced Loan, notify the applicable Special Servicer if it has knowledge that any insurance policy contains Additional Exclusions or if it has knowledge (such knowledge to be based upon such Master Servicer’s compliance with the immediately preceding clauses (A) and (B) above) that any Mortgagor fails to purchase the insurance requested to be purchased by the Master Servicer pursuant to clause (B) above. In addition, upon the written request of the Risk Retention Consultation Party with respect to any individual triggering event, the applicable Special Servicer will be required to consult on a non-binding basis pursuant to Section 6.08(a) with the Risk Retention Consultation Party (only with respect to a Specially Serviced Loan and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) within the same time period as it would obtain consent of, or consult with, the Directing Certificateholder in connection with any such determination, by such Special Servicer, of an Acceptable Insurance Default. If the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) or the applicable Special Servicer (with respect to a Specially Serviced Loan) determines in accordance with the Servicing Standard that such failure is not an Acceptable Insurance Default, such Special Servicer (with respect to such determination made by the Special Servicer) shall notify the applicable Master Servicer and such Master Servicer shall use efforts consistent with the Servicing Standard to cause such insurance to be maintained. Each Master Servicer and each Special Servicer (at the expense of the Trust) shall be entitled to rely on insurance consultants in making such determinations. Each Master Servicer shall be entitled to rely on insurance consultants (at the expense of such Master Servicer) in determining

 

 -219-

 

 

whether Additional Exclusions exist. Furthermore, each Master Servicer or each Special Servicer, as applicable, shall promptly deliver such conclusions in writing to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for those Mortgage Loans that (i) have one of the ten (10) highest outstanding Stated Principal Balances of all of the Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance of the Mortgage Loans then included in the Trust. During the period that the applicable Master Servicer or the applicable Special Servicer is evaluating the availability of such insurance or waiting for a response from the Directing Certificateholder or the holder of any Companion Loan, and/or (solely with respect to Specially Serviced Loans) upon the request of the Risk Retention Consultation Party, consulting (on a non-binding basis) with the Risk Retention Consultation Party, neither the applicable Master Servicer nor the applicable Special Servicer will be liable for any loss related to its failure to require the Mortgagor to maintain (or its failure to maintain) such insurance and will not be in default of its obligations as a result of such failure and such Master Servicer will not itself maintain such insurance or cause such insurance to be maintained.

 

(b)       (i) If either Master Servicer or either Special Servicer shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer insuring against fire and hazard losses on all of the Mortgage Loans (including any related Serviced Companion Loan, but excluding any Non-Serviced Mortgage Loan) or REO Properties (other than with respect to a Non-Serviced Mortgaged Property), as the case may be, required to be serviced and administered hereunder, then, to the extent such Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause fire and hazard insurance to be maintained on the related Mortgaged Properties or REO Properties. Such Insurance Policy may contain a deductible clause, in which case the applicable Master Servicer or the applicable Special Servicer shall, if there shall not have been maintained on the related Mortgaged Property or REO Property a fire and hazard Insurance Policy complying with the requirements of Section 3.07(a), and there shall have been one or more losses which would have been covered by such Insurance Policy, promptly deposit into its Collection Account from its own funds the amount of such loss or losses that would have been covered under the individual policy but are not covered under the blanket Insurance Policy because of such deductible clause to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan (including any related Serviced Companion Loan), or in the absence of such deductible limitation, the deductible limitation which is consistent with the Servicing Standard. In connection with its activities as administrator and Master Servicer of the Mortgage Loans or any Serviced Companion Loans, the applicable Master Servicer agrees to prepare and present, on behalf of itself, the Trustee and Certificateholders, claims under any such blanket Insurance Policy in a timely fashion in accordance with the terms of such policy. Each Special Servicer, to the extent consistent with the Servicing Standard, may maintain, earthquake insurance on REO Properties (other than with respect to a Non-Serviced Mortgaged Property), provided coverage is available at commercially reasonable rates, the cost of which shall be a Servicing Advance.

 

(ii)        If either Master Servicer or either Special Servicer shall cause any Mortgaged Property or REO Property to be covered by a master single interest or force-placed insurance policy with a Qualified Insurer naming such Master Servicer or such Special Servicer on behalf of the Trustee as the loss payee, then to the extent such

 

 -220-

 

 

Insurance Policy provides protection equivalent to the individual policies otherwise required, such Master Servicer or such Special Servicer shall conclusively be deemed to have satisfied its obligation to cause such insurance to be maintained on the related Mortgaged Properties and REO Properties. In the event either Master Servicer or either Special Servicer shall cause any Mortgaged Property or REO Property to be covered by such master single interest or force-placed insurance policy, the incremental costs of such insurance applicable to such Mortgaged Property or REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgaged Property or REO Property is covered thereby) shall be paid by such Master Servicer as a Servicing Advance. Such master single interest or force-placed policy may contain a deductible clause, in which case such Master Servicer or such Special Servicer shall, in the event that there shall not have been maintained on the related Mortgaged Property or REO Property a policy otherwise complying with the provisions of Section 3.07(a), and there shall have been one or more losses which would have been covered by such policy had it been maintained, deposit into the applicable Collection Account from its own funds the amount not otherwise payable under the master single or force-placed interest policy because of such deductible clause, to the extent that any such deductible exceeds the deductible limitation that pertained to the related Mortgage Loan, including any related Serviced Companion Loan, or, in the absence of any such deductible limitation, the deductible limitation which is consistent with the Servicing Standard.

 

(c)       Each Master Servicer and each Special Servicer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and omissions insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s misappropriation of funds or errors or omissions. Such amount of coverage shall be in such form and amount as are consistent with the Servicing Standard. Coverage of the applicable Master Servicer or the applicable Special Servicer under a policy or bond obtained by an Affiliate of such Master Servicer or such Special Servicer and providing the coverage required by this Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). Each Special Servicer and each Master Servicer will promptly report in writing to the Trustee any material changes that may occur in their respective fidelity bonds, if any, and/or their respective errors and omissions insurance policies, as the case may be, and will furnish to the Trustee copies of all binders and policies or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect.

 

(d)       At the time the applicable Master Servicer determines in accordance with the Servicing Standard that any Mortgaged Property (other than a Non-Serviced Mortgaged Property) is in a federally designated special flood hazard area (and such flood insurance has been made available), such Master Servicer will use efforts consistent with the Servicing Standard to cause the related Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan and related Serviced Companion Loan documents) to maintain, and, if the related Mortgagor shall default in its obligation to so maintain, shall itself maintain to the extent such insurance is available at commercially reasonable rates (as determined by such Master Servicer in accordance with the Servicing Standard and to the extent the Trustee, as mortgagee, has an insurable interest therein), flood insurance in respect thereof, but only to the extent the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) or related Serviced Companion Loan permits the mortgagee to require such coverage and the maintenance of such

 

 -221-

 

 

coverage is consistent with the Servicing Standard. Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan (and any related Serviced Companion Loan, if applicable), and (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, as amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount consistent with the Servicing Standard. If the cost of any insurance described above is not borne by the Mortgagor, such Master Servicer shall promptly make a Servicing Advance for such costs.

 

(e)       During all such times as any REO Property (other than with respect to a Non-Serviced Mortgaged Property) shall be located in a federally designated special flood hazard area, the applicable Special Servicer will cause to be maintained, to the extent available at commercially reasonable rates (as determined by such Special Servicer prior to the occurrence and continuance of a Control Termination Event, with the consent of the Directing Certificateholder (other than with respect to any Mortgage Loan that is an Excluded Loan as to such party)) and, with respect to a Specially Serviced Loan and upon request of the Risk Retention Consultation Party within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder in accordance with and to the extent provided in Section 6.08 (in either such case, in accordance with the Servicing Standard), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, amended, plus such additional excess flood coverage with respect to the Mortgaged Property, if any, in an amount consistent with the Servicing Standard. The cost of any such flood insurance with respect to an REO Property shall be an expense of the Trust payable out of the related REO Account pursuant to Section 3.14(c) or, if the amount on deposit therein is insufficient therefor, paid by the applicable Master Servicer as a Servicing Advance.

 

(f)        Notwithstanding anything to the contrary in this Section 3.07, so long as the long-term debt obligations or the deposit account or claims-paying ability of the applicable Master Servicer (or its immediate or remote parent) or the applicable Special Servicer (or its immediate or remote parent), as applicable, is rated at least “A3” by Moody’s or “A-” by Fitch (if rated by Fitch), such Master Servicer (or its public parent) or such Special Servicer (or its public parent), as applicable, shall be allowed to provide self-insurance with respect to any of its obligations under this Section 3.07.

 

(g)       Each of the Operating Advisor and Asset Representations Reviewer shall obtain and maintain at its own expense and keep in full force and effect throughout the term of this Agreement an “errors and omissions” insurance policy with a Qualified Insurer covering losses that may be sustained as a result of an officer’s or employee’s errors or omissions.

 

Section 3.08       Enforcement of Due-on-Sale Clauses; Assumption Agreements.  (a) As to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-sale” clause, which by its terms:

 

(i)        provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the sale or other

 

 -222-

 

 

transfer of an interest in the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

 

(ii)       provides that such Mortgage Loan and any related Companion Loan may not be assumed without the consent of the mortgagee in connection with any such sale or other transfer;

 

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to any Non-Specially Serviced Loan as to which such matter does not involve a Major Decision) or the applicable Special Servicer (with respect to any Specially Serviced Loan or any Non-Specially Serviced Loan as to which such matter involves a Major Decision), on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right it may have with respect to such Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to any sale or transfer, consistent with the Servicing Standard or (b) waive any right to exercise such rights, provided that if such matter is a Major Decision, (i) the applicable Special Servicer (A) prior to the occurrence and continuance of a Control Termination Event and other than with respect to an Excluded Loan with respect to the Directing Certificateholder has obtained the consent (or deemed consent) of the Directing Certificateholder to the extent required by, and pursuant to the process described under Section 6.08(a), (B) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, a Control Termination Event shall have occurred and be continuing, and no Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) and (C) if such Mortgage Loan is not an Excluded Loan as to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation), and (ii) with respect to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal to $20,000,000, (y) with a Stated Principal Balance greater than or equal to 5% of the aggregated Stated Principal Balance of the Mortgage Loans then outstanding or (z) together with all other Mortgage Loans with which it is cross-collateralized or cross-defaulted or together with all other Mortgage Loans with the same Mortgagor (or an Affiliate thereof), that is one of the ten (10) largest Mortgage Loans outstanding (by Stated Principal Balance), the applicable Master Servicer or the applicable Special Servicer, as the case may be, prior to consenting to any action, shall obtain, a Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to

 

 -223-

 

 

Section 3.25), provided, however, that with respect to sub-clauses (y) and (z) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

With respect to any “due-on-sale” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest, upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans, within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

 

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(a), the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

 

If any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or related Serviced Companion Loan provides that such Mortgage Loan or related Serviced Companion Loan may be assumed or transferred without the consent of the mortgagee, provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine in accordance with the Servicing Standard whether such conditions have been satisfied.

 

(b)       As to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that contains a provision in the nature of a “due-on-encumbrance” clause that by its terms:

 

(i)        provides that such Mortgage Loan and any related Companion Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any

 

 -224-

 

 

additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor; or

 

(ii)        requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property or equity interests in the Mortgagor or principals of the Mortgagor;

 

then, for so long as such Mortgage Loan or related Serviced Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to any Non-Specially Serviced Loan as to which such matter does not involve a Major Decision) or the applicable Special Servicer (with respect to any Specially Serviced Loan or any Non-Specially Serviced Loan as to which such matter involves a Major Decision), on behalf of the Trustee as the mortgagee of record, shall (a) exercise any right it may have with respect to such Mortgage Loan or related Companion Loan (x) to accelerate the payments thereon or (y) to withhold its consent to the creation of any additional lien or other encumbrance, consistent with the Servicing Standard or (b) waive its right to exercise such rights, provided that, if such matter is a Major Decision, (i) (A) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, no Control Termination Event shall have occurred and be continuing and the matter involves a Major Decision, the consent (or deemed consent) of the Directing Certificateholder shall have been obtained by the Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a), and (B) if such Mortgage Loan is not an Excluded Loan with respect to the Directing Certificateholder, a Control Termination Event shall have occurred and be continuing, and no Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) and (C) if such Mortgage Loan is not an Excluded Loan as to the Risk Retention Consultation Party and (x) such Mortgage Loan is a Specially Serviced Loan or (y) a Consultation Termination Event shall have occurred and be continuing, the applicable Special Servicer shall have consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a) (provided that in the case of clause (A), clause (B) and clause (C) such consent shall be deemed given or such consultation shall be deemed to have occurred, as applicable, if a response to the request for consent or consultation, as the case may be, is not provided within ten (10) Business Days after receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, and reasonably available to such Special Servicer in order to grant or withhold such consent or conduct such consultation), and (ii) such Master Servicer or such Special Servicer, as the case may be, has obtained Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) if such Mortgage Loan (A) has an outstanding principal balance that is greater than or equal to 2% of the Stated Principal Balance of the outstanding Mortgage Loans or (B) has an LTV Ratio greater than 85% (including any existing and proposed debt) or (C) has a debt service coverage ratio less than 1.20x (in each case, determined based upon the aggregate of the Stated Principal Balance of the Mortgage Loan and related Companion Loan, if any, and the principal amount of the proposed

 

 -225-

 

 

additional lien) or (D) is one of the ten largest Mortgage Loans (by Stated Principal Balance) or (E) has a Stated Principal Balance greater than $20,000,000; provided, however, that with respect to sub-clauses (A), (B), (C) and (D) of this sub-clause (ii), such Mortgage Loan shall also have a Stated Principal Balance of at least $10,000,000 for such Rating Agency Confirmation requirement to apply. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

With respect to any “due-on-encumbrance” matter described above that is a Major Decision related to any Mortgage Loan that is not an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest, upon request of the Risk Retention Consultation Party, the applicable Special Servicer shall consult on a non-binding basis with the Risk Retention Consultation Party with respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, Specially Serviced Loans; and (ii) following the occurrence and during the continuance of a Consultation Termination Event, all Mortgage Loans (for the avoidance of doubt, other than with respect to any transfer or assumptions provided for in clause (xiv) or (xvi) of the definition of “Master Servicer Decision” or any waiver of a “due-on-encumbrance” clause which waiver constitutes a Master Servicer Decision pursuant to clause (xiv), (xv) or (xvi) of the definition thereof), within the same time period as it would obtain the consent of, or consult with, the Directing Certificateholder with respect to such Major Decision.

 

In connection with any request for a Rating Agency Confirmation from a Rating Agency (or, with respect to any Serviced Companion Loan Securities, the related rating agencies) pursuant to this Section 3.08(b), the applicable Special Servicer shall (if not already provided in accordance with Section 3.25 of this Agreement) deliver a Review Package to the 17g-5 Information Provider (or, with respect to any Serviced Companion Loan Securities, the related 17g-5 information provider) in accordance with Section 3.25 of this Agreement.

 

To the extent permitted by the related Mortgage Loan documents, the Rating Agency Confirmation described in the immediately preceding paragraph or in Section 3.08(a) shall be an expense of the related Mortgagor; provided that if the Mortgage Loan documents are silent as to who bears the costs of obtaining any such Rating Agency Confirmation, the applicable Special Servicer shall use reasonable efforts to make the related Mortgagor bear such costs and expenses. Unless determined to be a Nonrecoverable Advance such costs not collected from the related Mortgagor shall be advanced as a Servicing Advance.

 

If any Mortgage Loan or related Companion Loan provides that such Mortgage Loan or related Companion Loan may be further encumbered without the consent of the mortgagee, provided that certain conditions contained in the related Mortgage Loan documents are satisfied where no mortgagee discretion is necessary in order to determine if such conditions are satisfied, then for so long as such Mortgage Loan or related Companion Loan is being serviced under this Agreement, the applicable Master Servicer (with respect to all Non-Specially

 

 -226-

 

 

Serviced Loans) and the applicable Special Servicer (with respect to all Specially Serviced Loans), on behalf of the Trustee as the mortgagee of record, shall determine whether such conditions have been satisfied.

 

After receiving a request for any matter described in Section 3.08(a) or this Section 3.08(b) that constitutes a consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan that is a Non-Specially Serviced Loan as to which such matter involves a Major Decision, the applicable Master Servicer shall promptly provide the applicable Special Servicer with written notice of any such request for such matter, and, unless the applicable Master Servicer and the applicable Special Servicer mutually agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and such Master Servicer shall have no further obligation with regard to such request or due-on-sale or due-on-encumbrance, except as provided in the next sentence. The applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in such Master Servicer’s possession to such Special Servicer requested by such Special Servicer relating to such consent or waiver with respect to a “due-on-sale” or “due-on-encumbrance” clause. If the applicable Master Servicer and the applicable Special Servicer mutually agree that the applicable Master Servicer shall process such request, the applicable Master Servicer will be required to provide the applicable Special Servicer with such Master Servicer’s written recommendation and analysis, to the extent such Master Servicer is recommending approval, and all information in such Master Servicer’s possession that may be reasonably requested in order to grant or withhold such consent by the applicable Special Servicer or the Directing Certificateholder or other person with consent or consultation rights; provided that in the event that such Special Servicer does not respond within ten (10) Business Days after receipt of such written recommendation and analysis and all such reasonably requested information, plus the time period provided to the Directing Certificateholder or other relevant party under this Agreement and, if applicable, any additional time period provided to a Companion Holder under a related Intercreditor Agreement, such Special Servicer’s consent to such matter shall be deemed granted.

 

(c)       Nothing in this Section 3.08 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assumption of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any additional lien or other encumbrance with respect to such Mortgaged Property.

 

(d)       Except as otherwise permitted by Section 3.08(a) and (b) and/or Section 3.18, neither the Master Servicers nor the Special Servicers shall agree to modify, waive or amend any term of any Mortgage Loan and related Serviced Companion Loan, as applicable, in connection with the taking of, or the failure to take, any action pursuant to this Section 3.08. The applicable Master Servicer and the applicable Special Servicer, as the case may be, shall provide copies of any final waivers (except with respect to provision of any such waivers to the 17g-5 Information Provider, exclusive of any Privileged Information) it effects pursuant to Section 3.08(a) or (b) to each other and to the 17g-5 Information Provider with respect to each Mortgage Loan, and shall notify the Trustee, the Certificate Administrator, each other and, subject to the terms of this Agreement, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website in accordance with Section 3.25) and, with respect to a Whole

 

 -227-

 

 

Loan, the related Serviced Companion Noteholder, of any assumption or substitution agreement executed pursuant to Section 3.08(a) or (b) and shall forward thereto a copy of such agreement.

 

(e)       [RESERVED].

 

(f)        For the avoidance of doubt, neither the Master Servicer nor the Special Servicer may waive its rights or grant its consent under any “due-on-sale” or “due-on-encumbrance” clause other than in compliance with the provisions of Section 3.08(a) through (d) hereof or, with respect to an NCB Co-op Mortgage Loan, in compliance with the provisions of the following paragraph. In the case of a Special Servicer, no such waiver or consent that constitutes a Major Decision shall be made without (x) (i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained if and to the extent required by, and pursuant to the process described under Section 6.08(a), (y) (i) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, after having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a) or (z) other than with respect to any Excluded Loan with respect to the Risk Retention Consultation Party, after having consulted with the Risk Retention Consultation Party if and to the extent required pursuant to Section 6.08(a).

 

(g)       Notwithstanding the foregoing, and regardless of whether a particular NCB Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval of, or to consult with, the Directing Certificateholder hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Mortgagor to incur subordinate debt if the NCB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.

 

(h)       Notwithstanding the foregoing provisions of this Section 3.08, if a Master Servicer or a Special Servicer, as applicable, makes a determination under Section 3.08(a) or Section 3.08(b) that the applicable conditions in the related Mortgage Loan or Companion Loan documents, as applicable, with respect to assumptions or encumbrances permitted without the consent of the mortgagee have been satisfied, the applicable assumptions and transfers may be subject to an assumption or other fee, unless such fees are otherwise prohibited pursuant to the Mortgage Loan documents; provided that any such fee not provided for in the Mortgage Loan documents does not constitute a “significant” change in yield pursuant to Treasury Regulations Section 1.1001-3(e)(2).

 

Section 3.09       Realization Upon Defaulted Loans and Companion Loans.  (a) Upon an event of default under the Mortgage Loan documents related to a Serviced Whole Loan

 

 -228-

 

 

or a Mortgage Loan with mezzanine debt, the applicable Master Servicer shall promptly provide written notice to the related Companion Holder or mezzanine lender, as applicable, with a copy of such notice to the applicable Special Servicer. The applicable Special Servicer shall, subject to subsections (b) through (d) of this Section 3.09, Section 3.24, subject to the Directing Certificateholders’ and the Risk Retention Consultation Party’s respective rights pursuant to Section 6.08, and any Companion Holder or mezzanine lender’s rights under the related Intercreditor Agreement (in the case of a Serviced Whole Loan, on behalf of the holders of the beneficial interest of the related Companion Loan) or this Agreement, exercise reasonable efforts, consistent with the Servicing Standard, to foreclose upon or otherwise comparably convert (which may include an REO Acquisition) the ownership of property securing any such Mortgage Loan (other than any Non-Serviced Mortgage Loan) and related Companion Loan, if any, as come into and continue in default as to which no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments, and which are not released from the Trust Fund pursuant to any other provision hereof. The foregoing is subject to the provision that, in any case in which a Mortgaged Property shall have suffered damage from an Uninsured Cause, the applicable Master Servicer or the applicable Special Servicer shall not be required to make a Servicing Advance and expend funds toward the restoration of such property unless such Special Servicer has determined in its reasonable discretion that such restoration will increase the net proceeds of liquidation of such Mortgaged Property to Certificateholders after reimbursement to such Master Servicer or such Special Servicer, as applicable, for such Servicing Advance, and such Master Servicer or such Special Servicer has not determined that such Servicing Advance together with accrued and unpaid interest thereon would constitute a Nonrecoverable Advance. The costs and expenses incurred by the applicable Special Servicer in any such proceedings shall be advanced by the applicable Master Servicer; provided that, in each case, such cost or expense would not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall be construed so as to require a Master Servicer or a Special Servicer, on behalf of the Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that is in excess of the fair market value of such property, as determined by the applicable Master Servicer or the applicable Special Servicer in its reasonable judgment taking into account the factors described in Section 3.16(b) and the results of any Appraisal obtained pursuant to the following sentence, all such bids to be made in a manner consistent with the Servicing Standard. If and when the applicable Special Servicer or the applicable Master Servicer deems it necessary and prudent for purposes of establishing the fair market value of any Mortgaged Property securing a Defaulted Loan or any related defaulted Companion Loan, whether for purposes of bidding at foreclosure or otherwise, the applicable Special Servicer or the applicable Master Servicer, as the case may be, is authorized to have an Appraisal performed with respect to such property by an Independent MAI-designated appraiser the cost of which shall be paid by such Master Servicer as a Servicing Advance.

 

(b)       The applicable Special Servicer shall not acquire any personal property pursuant to this Section 3.09 unless either:

 

(i)        such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by such Special Servicer; or

 

 -229-

 

 

 

(ii)     such Special Servicer shall have obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that the holding of such personal property by the Trust (to the extent not allocable to the related Companion Loan) will not cause an Adverse REMIC Event.

 

(c)     Notwithstanding the foregoing provisions of this Section 3.09 and Section 3.24, neither the applicable Master Servicer nor the applicable Special Servicer shall, on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or take any other action with respect to any Mortgaged Property, if, as a result of any such action, the Trustee, on behalf of the Certificateholders and/or any related Companion Holder, would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged Property within the meaning of CERCLA or any comparable law, unless (as evidenced by an Officer’s Certificate to such effect delivered to the Trustee) the applicable Special Servicer has previously determined in accordance with the Servicing Standard, based on an Environmental Assessment of such Mortgaged Property performed by an Independent Person who regularly conducts Environmental Assessments and performed within six (6) months prior to any such acquisition of title or other action, that:

 

(i)       such Mortgaged Property is in compliance with applicable environmental laws or, if not, after consultation with an environmental consultant, that it would be in the best economic interest of the Certificateholders (and with respect to any Serviced Whole Loan, the related Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions as are necessary to bring such Mortgaged Property in compliance with such laws, and

 

(ii)      there are no circumstances present at such Mortgaged Property relating to the use, management or disposal of any hazardous materials for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any currently effective federal, state or local law or regulation, or that, if any such hazardous materials are present for which such action could be required, after consultation with an environmental consultant, it would be in the best economic interest of the Certificateholders (and with respect to any Serviced Whole Loan, the Companion Holders), as a collective whole as if such Certificateholders and, if applicable, Companion Holders constituted a single lender, to take such actions with respect to the affected Mortgaged Property.

 

The cost of any such Environmental Assessment shall be paid by the applicable Master Servicer as a Servicing Advance and the cost of any remedial, corrective or other further action contemplated by clause (i) and/or clause (ii) of the preceding sentence shall be paid by the applicable Master Servicer as a Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which case it shall be an expense of the Trust and, in the case of a Serviced Whole Loan, shall be withdrawn in accordance with the related Intercreditor Agreement by the applicable Master Servicer from its Collection Account, including from the Companion Distribution Account (such withdrawal to be made from amounts on deposit therein that are otherwise payable on or allocable to such Serviced Whole Loan)); and if any such Environmental Assessment so warrants, the applicable Special Servicer shall, except with respect to any Companion Loan and any Environmental Assessment ordered after such Mortgage Loan has

 

 -230-

 

 

been paid in full, perform such additional environmental testing at the expense of the Trust as it deems necessary and prudent to determine whether the conditions described in clauses (i) and (ii) of the preceding sentence have been satisfied. With respect to Non-Specially Serviced Loans, the applicable Master Servicer and, with respect to Specially Serviced Loans, the applicable Special Servicer (other than any Non-Serviced Mortgage Loan) shall review and be familiar with the terms and conditions relating to enforcing claims and shall monitor the dates by which any claim or action must be taken (including delivering any notices to the insurer and using reasonable efforts to perform any actions required under such policy) under each environmental insurance policy in effect and obtained on behalf of the mortgagee to receive the maximum proceeds available under such policy for the benefit of the Certificateholders and the Trustee (as holder of the Lower-Tier Regular Interests).

 

(d)      If (i) the environmental testing contemplated by subsection (c) above establishes that either of the conditions set forth in clauses (i) and (ii) of subsection (c) above of the first sentence thereof has not been satisfied with respect to any Mortgaged Property securing a Defaulted Loan and, in the case of a Serviced Mortgage Loan, any related Companion Loan, and (ii) there has been no breach of any of the representations and warranties set forth in or required to be made pursuant to Section 4 of each of the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan Seller could be required to repurchase such Defaulted Loan pursuant to Section 5 of the applicable Mortgage Loan Purchase Agreement, then the applicable Special Servicer shall take such action as it deems to be in the best economic interest of the Trust (other than proceeding to acquire title to the Mortgaged Property) and is hereby authorized, with the consent of the Directing Certificateholder and after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a) (in each case, (A) prior to the occurrence and continuance of a Control Termination Event (or with respect to any AB Mortgage Loan, after the occurrence and during the continuation of an AB Control Appraisal Period, but prior to the occurrence and continuance of a Control Termination Event) and (B) other than with respect to any Excluded Loan as to such party) at such time as it deems appropriate to release such Mortgaged Property from the lien of the related Mortgage, provided that, if such Mortgage Loan has a then-outstanding principal balance of greater than $1,000,000, then prior to the release of the related Mortgaged Property from the lien of the related Mortgage, (i) the applicable Special Servicer shall have notified the Rating Agencies, the Trustee, the Certificate Administrator, the applicable Master Servicer, the Directing Certificateholder and the Risk Retention Consultation Party ((A) in the case of the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event and (B) in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party), in writing of its intention to so release such Mortgaged Property and the bases for such intention, (ii) the Certificate Administrator shall have posted such notice of the applicable Special Servicer’s intention to so release such Mortgaged Property to the Certificate Administrator’s Website pursuant to Section 3.13(b) and (iii) in addition to the prior written consent of the Directing Certificateholder as required above, the Holders of Certificates entitled to more than 50% of the Voting Rights shall have consented or have been deemed to have consented to such release within thirty (30) days of the Certificate Administrator’s posting such notice to the Certificate Administrator’s Website (failure to respond by the end of such 30-day period being deemed consent of the Holders of the Certificates). To the extent any fee charged by any Rating Agency in connection with rendering such written confirmation is not paid by the related Mortgagor, such fee is to be an expense of

 

 -231-

 

 

the Trust; provided that the applicable Special Servicer shall use commercially reasonable efforts to collect such fee from the Mortgagor to the extent permitted under the related Mortgage Loan documents.

 

(e)      Each Special Servicer shall provide written reports and a copy of any Environmental Assessments in electronic format to the Directing Certificateholder and the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party), the Master Servicers and the 17g-5 Information Provider monthly regarding any actions taken by such Special Servicer with respect to any Mortgaged Property securing a Defaulted Loan, or defaulted Companion Loan as to which the environmental testing contemplated in subsection (c) above has revealed that either of the conditions set forth in clauses (i) and (ii) of the first sentence thereof has not been satisfied, in each case until the earlier to occur of satisfaction of both such conditions, repurchase of the related Mortgage Loan by the applicable Mortgage Loan Seller or release of the lien of the related Mortgage on such Mortgaged Property.

 

(f)      Each Special Servicer shall notify the applicable Master Servicer of any abandoned and/or foreclosed properties which require reporting to the Internal Revenue Service and shall provide such Master Servicer with all information regarding forgiveness of indebtedness and required to be reported with respect to any Mortgage Loan or related Companion Loan that is abandoned or foreclosed and such Master Servicer shall report to the Internal Revenue Service and the related Mortgagor, in the manner required by applicable law, such information and such Master Servicer shall report, via Form 1099A or Form 1099C (or any successor form), all forgiveness of indebtedness and abandonment and foreclosure to the extent such information has been provided to such Master Servicer by such Special Servicer. Upon request, the applicable Master Servicer shall deliver a copy of any such report to the Trustee and the Certificate Administrator.

 

(g)      Each Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of the maintenance of an action to obtain a deficiency judgment if the state in which the Mortgaged Property is located and the terms of the Mortgage Loan (and if applicable, the related Companion Loan) permit such an action.

 

(h)      Each Special Servicer shall maintain accurate records, prepared by one of its Servicing Officers, of each Final Recovery Determination in respect of a Defaulted Loan (other than with respect to a Non-Serviced Mortgage Loan) or defaulted Companion Loan or any REO Property (other than any Non-Serviced Mortgaged Property) and the basis thereof. Each Final Recovery Determination shall be evidenced by an Officer’s Certificate promptly delivered to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Risk Retention Consultation Party (but in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party) and the applicable Master Servicer and in no event later than the next succeeding P&I Advance Determination Date.

 

Section 3.10   Trustee and Certificate Administrator to Cooperate; Release of Mortgage Files. (a) Upon the payment in full of any Mortgage Loan (other than a Non-Serviced Mortgage Loan), or the receipt by the applicable Master Servicer or the applicable Special

 

 -232-

 

 

Servicer, as the case may be, of a notification that payment in full shall be escrowed in a manner customary for such purposes, the applicable Master Servicer or the applicable Special Servicer, as the case may be, will promptly notify the Trustee and the Custodian and request delivery of the related Mortgage File. Any such notice and request shall be in the form of a Request for Release signed by a Servicing Officer and shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the applicable Collection Account pursuant to Section 3.04(a) or remitted to the applicable Master Servicer to enable such deposit, have been or will be so deposited. Within seven (7) Business Days (or within such shorter period as release can reasonably be accomplished if the applicable Master Servicer or the applicable Special Servicer notifies the Custodian of an exigency) of receipt of such notice and request, the Custodian shall release the related Mortgage File to the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that in the case of the payment in full of a Serviced Companion Loan or its related Mortgage Loan, the related Mortgage File shall not be released by the Custodian unless the related Serviced Whole Loan is paid in full. No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Collection Account.

 

(b)       From time to time as is appropriate for servicing or foreclosure of any Mortgage Loan (other than any Non-Serviced Mortgage Loan) (and any related Companion Loan), the applicable Master Servicer or the applicable Special Servicer shall deliver to the Custodian a Request for Release signed by a Servicing Officer. Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File or any document therein to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be. Upon return of such Mortgage File or such document to the Custodian, or the delivery to the Trustee and the Custodian of a certificate of a Servicing Officer of the applicable Master Servicer or the applicable Special Servicer, as the case may be, stating that such Mortgage Loan (and, in the case of a Serviced Whole Loan, the related Companion Loan), was liquidated and that all amounts received or to be received in connection with such liquidation which are required to be deposited into the applicable Collection Account (including amounts related to the related Companion Loan, if applicable) pursuant to Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan has become an REO Property, a copy of the Request for Release shall be released by the Custodian to the applicable Master Servicer or the applicable Special Servicer (or a designee), as the case may be, with the original being released upon termination of the Trust.

 

(c)       Within seven (7) Business Days (or within such shorter period as delivery can reasonably be accomplished if the applicable Special Servicer notifies the Trustee of an exigency) of receipt thereof, the Trustee shall execute and deliver to the applicable Special Servicer any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal action brought to obtain judgment against any Mortgagor on the Mortgage Note (including any note evidencing a related Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity. The applicable Special Servicer shall be responsible for the preparation of all such documents and pleadings. When submitted to the Trustee for signature, such documents or pleadings shall be accompanied by a certificate of a Servicing Officer requesting that such pleadings or documents be executed by the Trustee and certifying as to the reason such

 

 -233-

 

 

documents or pleadings are required and that the execution and delivery thereof by the Trustee will not invalidate or otherwise affect the lien of the Mortgage, except for the termination of such a lien upon completion of the foreclosure or trustee’s sale. The Trustee shall not be required to review such documents for their sufficiency or enforceability.

 

(d)      If, from time to time, pursuant to the terms of the applicable Non-Serviced Intercreditor Agreement and the applicable Non-Serviced PSA, and as appropriate for enforcing the terms of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer requests delivery to it of the original Mortgage Note for a Non-Serviced Mortgage Loan, then the Custodian shall release or cause the release of such original Mortgage Note to such Non-Serviced Master Servicer or its designee.

 

Section 3.11   Servicing Compensation. (a) As compensation for its activities hereunder, each Master Servicer shall be entitled to receive the Servicing Fee with respect to each Mortgage Loan, Serviced Companion Loan and REO Loan (other than the portion of any REO Loan related to any Non-Serviced Companion Loan) (including Specially Serviced Loans and any Non-Serviced Mortgage Loan constituting a “specially serviced loan” under any related Non-Serviced PSA) for which it acts as a master servicer. As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Mortgage Loan or Companion Loan or deemed to be due on such REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan, except that if such Mortgage Loan is part of a Serviced Whole Loan and such Serviced Whole Loan continues to be serviced and administered under this Agreement notwithstanding such Liquidation Event, then the applicable Servicing Fee shall continue to accrue and be payable as if such Liquidation Event did not occur. The Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise provided by Section 3.05(a). Each Master Servicer shall be entitled to recover unpaid Servicing Fees in respect of any applicable Mortgage Loan, Companion Loan or REO Loan out of that portion of related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as recoveries of interest, to the extent permitted by Section 3.05(a).

 

Except as set forth in the following sentence, the fourth paragraph of this Section 3.11(a), Section 6.03, Section 6.05 and Section 7.01(c), the right to receive the Servicing Fee may not be transferred in whole or in part (except in connection with a transfer of all of the applicable Master Servicer’s duties and obligations hereunder to a successor servicer in accordance with the terms hereof). With respect to each Serviced Pari Passu Companion Loan, the Servicing Fee shall be payable to the applicable Master Servicer from amounts payable in respect of such Serviced Pari Passu Companion Loan, subject to the terms of the related Intercreditor Agreement.

 

 -234-

 

 

Each Master Servicer shall be entitled to retain, and shall not be required to deposit in its Collection Account pursuant to Section 3.04(a), additional servicing compensation (other than with respect to a Non-Serviced Mortgage Loan) in the form of the following amounts to the extent collected from the related Mortgagor and any related Companion Loan for which it acts as Master Servicer: (i) 100% of Excess Modification Fees related to any modifications, waivers, extensions or amendments of any Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) that are Master Servicer Decisions; provided, that if any such matter involves a Major Decision (other than with respect to a Payment Accommodation or a Government-Sponsored Relief Modification) (regardless of whether it relates to a Master Servicer Decision), then such Master Servicer shall be entitled to 50% of such Excess Modification Fees; provided, however, that no Master Servicer shall be entitled to any COVID Forbearance Fees with respect to a Payment Accommodation or any fees or other charges with respect to a Government-Sponsored Relief Modification; (ii) 100% of all assumption application fees and other similar items received on any Mortgage Loans (other than a Non-Serviced Mortgage Loan) that are Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) to the extent the applicable Master Servicer is processing the underlying transaction and 100% of all defeasance fees (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees in connection with a defeasance that the applicable Special Servicer is entitled to under this Agreement); and (iii) 100% of assumption, waiver, consent and earnout fees, and other similar fees (other than assumption application and defeasance fees) or other actions performed in connection with this Agreement on the Non-Specially Serviced Loans (including any related Serviced Companion Loan, to the extent not prohibited by the related Intercreditor Agreement) relating to Master Servicer Decisions; provided, that if any such matter involves a Major Decision (regardless of whether it relates to a Master Servicer Decision), then such Master Servicer shall be entitled to 50% of such assumption, waiver, consent and earnout fees and other similar fees. In addition, the applicable Master Servicer shall be entitled to charge and retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) any charges for beneficiary statements or demands (to the extent such beneficiary statements or demands are prepared by the applicable Master Servicer) and other customary charges, amounts collected for checks returned for insufficient funds (relating to the accounts held by such applicable Master Servicer) and reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, in each case only to the extent actually paid by or on behalf of the related Mortgagor and shall not be required to deposit such amounts in its Collection Account or the Companion Distribution Account pursuant to Section 3.04(a) or Section 3.04(b), respectively. Subject to Section 3.11(d), the applicable Master Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest or other income earned on deposits relating to the Trust Fund in its Collection Account or the Companion Distribution Account in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to the current Distribution Date), (iii) interest or other income earned on deposits in its Servicing Accounts which are not required by applicable law or the related Mortgage Loan to be paid to the Mortgagor, and (iv) the difference, if positive, between Prepayment Interest Excesses and Prepayment Interest Shortfalls

 

 -235-

 

 

collected on the Mortgage Loans and any Serviced Pari Passu Companion Loan, during the related Collection Period to the extent not required to be paid as Compensating Interest Payments. The applicable Master Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not payable directly out of its Collection Account and the applicable Master Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

 

With respect to any of the preceding fees as to which both the applicable Master Servicer and the applicable Special Servicer are entitled to receive a portion thereof (other than a split fee with respect to Penalty Charges), such Master Servicer and such Special Servicer shall each have the right in their sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or elect not to charge the portion of any such fee due to the other and (B) to the extent either of the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any such fee, the party that reduced or elected not to charge its respective portion of such fee will not have any right to share in any part of the other party’s portion of such fee. If the applicable Master Servicer decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Special Servicer would have been entitled if such Master Servicer had charged a fee and such Master Servicer will not be entitled to any of such fee charged by such Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which such Master Servicer would have been entitled if such Special Servicer had charged a fee and such Special Servicer shall not be entitled to any portion of such fee charged by such Master Servicer.

 

Notwithstanding anything herein to the contrary, each of Wells Fargo Bank, National Association and National Cooperative Bank, N.A. may, at its option, assign or pledge to any third party or retain for itself the Transferable Servicing Interest with respect to any Mortgage Loan and any Serviced Pari Passu Companion Loan (and any successor REO Loan) for which it acts as Master Servicer; provided, however, that in the event of any resignation or termination of such Master Servicer, all or any portion of the Transferable Servicing Interest may be reduced by the Trustee to the extent reasonably necessary (in the sole discretion of the Trustee) for the Trustee to obtain a qualified successor master servicer that meets the requirements of Section 6.05 and who requires market-rate servicing compensation that accrues at a per annum rate in excess of the Retained Fee Rate, and any such assignment of the Transferable Servicing Interest shall, by its terms be expressly subject to the terms of this Agreement and such reduction. The applicable Master Servicer shall pay the Transferable Servicing Interest to the holder of the Transferable Servicing Interest at such time and to the extent such Master Servicer is entitled to receive payment of its Servicing Fees hereunder, notwithstanding any resignation or termination of Wells Fargo Bank, National Association as General Master Servicer or National Cooperative Bank, N.A. as NCB Master Servicer, as applicable, hereunder (subject to reduction pursuant to the preceding sentence).

 

 -236-

 

 

A Liquidation Fee shall be payable to each Master Servicer with respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan) with respect to which such Master Servicer is acting as Enforcing Servicer and obtains Liquidation Proceeds described in clauses (iv) or (vii) of the definition thereof.

 

(b)     As compensation for its activities hereunder, each Special Servicer shall be entitled to receive the Special Servicing Fee with respect to each Specially Serviced Loan and REO Loan (other than a Non-Serviced Mortgage Loan and any REO Loan relating to a Non-Serviced Mortgaged Property). As to each Specially Serviced Loan and REO Loan, the Special Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Specially Serviced Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the Specially Serviced Loans or REO Loans, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on such Specially Serviced Loan or deemed to be due on such REO Loan is computed. The Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan shall cease to accrue if a Liquidation Event occurs with respect to the related Mortgage Loan. The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in accordance with the provisions of Section 3.05(a). The right to receive the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the applicable Special Servicer’s responsibilities and obligations under this Agreement. The Special Servicers shall not be entitled to any Special Servicing Fees with respect to a Non-Serviced Mortgage Loan.

 

(c)       Each Special Servicer shall be entitled to additional servicing compensation in the form of

 

(i)       100% of all Excess Modification Fees related to modifications, waivers, extensions or amendments of any Specially Serviced Loans, 100% of COVID Forbearance Fees related to any Payment Accommodation and 100% of any fees or other charges related to any Government-Sponsored Relief Modification,

 

(ii)      100% of all assumption application fees and other similar items received with respect to Specially Serviced Loans and 100% of all assumption application fees and other similar items received with respect to Mortgage Loans (other than Non-Serviced Mortgage Loans) and Serviced Companion Loans that are Non-Specially Serviced Loans to the extent such Special Servicer processes the underlying transaction,

 

(iii)     100% of waiver, consent and earnout fees, or other actions performed in connection with this Agreement on the Specially Serviced Loans or certain other similar fees paid by the related Mortgagor on Specially Serviced Loans,

 

(iv)     100% of assumption fees and other similar fees received with respect to Specially Serviced Loans,

 

(v)     50% of all Excess Modification Fees and assumption, waiver, consent and earnout fees and other similar fees (other than assumption application fees and defeasance fees) received with respect to any Mortgage Loans (other than Non-Serviced

 

 -237-

 

 

Mortgage Loans, but including any related Serviced Pari Passu Companion Loan(s)) that are Non-Specially Serviced Loans to the extent that the matter involves a Major Decision (other than with respect to a Payment Accommodation or a Government-Sponsored Relief Modification),

 

(vi)     with respect to the accounts held by such applicable Special Servicer, 100% of charges by such Special Servicer collected for checks returned for insufficient funds, and

 

(vii)    100% of charges for beneficiary statements and demand charges actually paid by the Mortgagors to the extent such beneficiary statements or demand charges are prepared by the applicable Special Servicer,

 

shall be promptly paid to the applicable Special Servicer by the applicable Master Servicer (or directly from the related Mortgagor) to the extent such fees are paid by the Mortgagor and shall not be required to be deposited in the Collection Account pursuant to Section 3.04(a). Subject to Section 3.11(d), the applicable Special Servicer shall also be entitled to additional servicing compensation in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d) and (ii) interest or other income earned on deposits relating to the Trust Fund in the REO Account and Loss of Value Reserve Fund in accordance with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any, with respect to such account for the period from and including the prior Distribution Date to and including the P&I Advance Date related to such Distribution Date). In addition, the Special Servicer shall be entitled to retain as additional servicing compensation (other than with respect to any Non-Serviced Mortgage Loan) reasonable review fees in connection with any Mortgagor request to the extent such review fees are not prohibited under the related Mortgage Loan documents, and only to the extent actually paid by or on behalf of the related Mortgagor. Each Special Servicer shall also be entitled to additional servicing compensation in the form of a Workout Fee with respect to each Corrected Loan at the Workout Fee Rate on such Corrected Loan for so long as it remains a Corrected Loan; provided, however, that after receipt by the applicable Special Servicer of Workout Fees with respect to such Corrected Loan in an amount equal to $25,000, any Workout Fees in excess of such amount shall be reduced by the Excess Modification Fee Amount received by the applicable Special Servicer; provided, further, however, that in the event the Workout Fee collected over the course of such workout calculated at the Workout Fee Rate is less than $25,000, then the applicable Special Servicer shall be entitled to an amount from the final payment on the related Corrected Loan (including any related Serviced Companion Loan) that would result in the total Workout Fees payable to the Special Servicer in respect of that Corrected Loan (including any related Serviced Companion Loan) being equal to $25,000. The Workout Fee shall be reduced (but not below zero) with respect to each collection on such Corrected Loan from which fee would otherwise be payable until an amount equal to the Excess Modification Fee Amount has been deducted in full. The Workout Fee with respect to any Corrected Loan will cease to be payable if such loan again becomes a Specially Serviced Loan; provided that a new Workout Fee will become payable if and when such Specially Serviced Loan again becomes a Corrected Loan. The Special Servicers shall not be entitled to any Workout Fee with respect to a Non-Serviced Mortgage Loan. If the applicable Special Servicer is terminated (other than for cause) or resigns, it shall retain the right to receive any and all Workout Fees payable in respect of Mortgage Loans or any related Companion Loan that became Corrected Loans prior to the time of that termination or

 

 -238-

 

 

resignation except the Workout Fees will no longer be payable if the Corrected Loan subsequently becomes a Specially Serviced Loan. If the applicable Special Servicer resigns or is terminated (other than for cause), it will receive any Workout Fees payable on Specially Serviced Loans for which the resigning or terminated Special Servicer had determined to grant a forbearance or cured the event of default through a modification, restructuring or workout negotiated by the Special Servicer and evidenced by a signed writing, but which had not as of the time the Special Servicer resigned or was terminated become a Corrected Loan solely because the Mortgagor had not had sufficient time to make three (3) consecutive timely Periodic Payments and which subsequently becomes a Corrected Loan as a result of the Mortgagor making such three (3) consecutive timely Periodic Payments. The successor special servicer will not be entitled to any portion of such Workout Fees. The applicable Special Servicer will not be entitled to receive any Workout Fees after termination for cause. A Liquidation Fee will be payable to the Special Servicer with respect to (a) each Non-Specially Serviced Loan with respect to which the Special Servicer acts as the Enforcing Servicer, (b) each Specially Serviced Loan (other than a Non-Serviced Mortgage Loan), (c) each REO Property (other than a Non-Serviced Mortgaged Property) as to which the applicable Special Servicer receives any Liquidation Proceeds or Insurance and Condemnation Proceeds and (d) each Mortgage Loan repurchased by a Mortgage Loan Seller or for which a Loss of Value Payment was paid, in each case, subject to the exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation Proceeds, Insurance and Condemnation Proceeds). If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds are received with respect to any Corrected Loan and the applicable Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable based on and out of the portion of such Liquidation Proceeds and Insurance and Condemnation Proceeds that constitute principal and/or interest on such Mortgage Loan. Notwithstanding anything herein to the contrary, a Special Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to any Companion Loan, the Liquidation Fee, Workout Fee and Special Servicing Fees, if any, will be computed as provided in the related Intercreditor Agreement or to the extent such Intercreditor Agreement is silent or refers to this Agreement or indicates such fees are paid in accordance with this Agreement, as provided herein as though such Companion Loan were a Mortgage Loan. Subject to Section 3.11(b), each Special Servicer will also be entitled to additional fees in the form of Penalty Charges. The applicable Special Servicer shall be required to pay out of its own funds all expenses incurred by it in connection with its servicing activities hereunder (including, without limitation, payment of any amounts, other than management fees in respect of REO Properties, due and owing to any of its Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it insuring against hazard losses pursuant to Section 3.07), if and to the extent such expenses are not expressly payable directly out of the Collection Account or the REO Account, and the applicable Special Servicer shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.

 

With respect to any of the preceding fees as to which both the applicable Master Servicer and the applicable Special Servicer are entitled to receive a portion thereof (other than a split fee with respect to Penalty Charges), the applicable Master Servicer and the applicable Special Servicer shall each have the right in their sole discretion, but not any obligation, to reduce or elect not to charge its respective portion of such fee; provided, that (A) neither the applicable Master Servicer nor the applicable Special Servicer will have the right to reduce or

 

 -239-

 

 

elect not to charge the portion of any such fee due to the other and (B) to the extent either the applicable Master Servicer or the applicable Special Servicer exercises its right to reduce or elect not to charge its respective portion in any such fee, the party that reduced or elected not to charge its respective portion of such fee will not have any right to share in any part of the other party’s portion of such fee. If the applicable Master Servicer decides not to charge any fee (other than Penalty Charges), the applicable Special Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Special Servicer would have been entitled if the applicable Master Servicer had charged a fee and the applicable Master Servicer will not be entitled to any of such fee charged by the applicable Special Servicer. Similarly, if the applicable Special Servicer decides not to charge any fee (other than Penalty Charges), the applicable Master Servicer shall nevertheless be entitled to charge its portion of the related fee to which the applicable Master Servicer would have been entitled if the applicable Special Servicer had charged a fee and the applicable Special Servicer shall not be entitled to any portion of such fee charged by the applicable Master Servicer.

 

(d)      In determining the compensation of the Master Servicers or the Special Servicers, as applicable, with respect to Penalty Charges, on any Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any related Companion Loan since the prior Distribution Date shall be applied (in such order) to reimburse (i) the applicable Master Servicer, the applicable Special Servicer or the Trustee for interest on Advances on such Mortgage Loan or related Companion Loan, if applicable (and, in connection with a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the applicable Non-Serviced Trustee for interest on the servicing advances made by any such party with respect to a Non-Serviced Whole Loan pursuant to the applicable Non-Serviced PSA, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) due on such Distribution Date, (ii) the Trust for all interest on Advances previously paid to the applicable Master Servicer or the Trustee pursuant to Section 3.05(a)(vi) (and, in connection with a Non-Serviced Mortgage Loan, the related trust for all interest on servicing advances reimbursed by such trust to any party under the applicable Non-Serviced PSA, which resulted in an additional expense for the Trust, to the extent not prohibited by the applicable Non-Serviced Intercreditor Agreement) with respect to such Mortgage Loan or related Companion Loan, if applicable and (iii) the Trust for all additional expenses of the Trust (including Special Servicing Fees, Workout Fees and Liquidation Fees), including without limitation, inspections by the applicable Special Servicer and all unpaid Advances incurred since the Closing Date with respect to such Mortgage Loan. Penalty Charges (other than with respect to a Non-Serviced Mortgage Loan, which shall be payable as additional servicing compensation under the related Non-Serviced PSA) remaining thereafter shall be distributed to the applicable Master Servicer, if and to the extent accrued while such Mortgage Loan and any related Companion Loan was a Non-Specially Serviced Loan, and to the applicable Special Servicer, if and to the extent accrued on such Mortgage Loan during the period such Mortgage Loan was a Specially Serviced Loan or REO Loan. Any Penalty Charges paid or payable as additional servicing compensation to the Master Servicers and the Special Servicers shall be distributed between the applicable Master Servicer and the applicable Special Servicer, on a pro rata basis, based on such Master Servicer’s and such Special Servicer’s respective entitlements to such compensation described in the previous sentence. Notwithstanding the foregoing or anything else herein to the contrary, Penalty Charges with respect to any Companion Loan will be allocated pursuant to the applicable Intercreditor

 

 -240-

 

 

Agreement after payment of all related Advances and interest thereon and additional expenses of the Trust in accordance with this Section 3.11(d).

 

If a Servicing Shift Whole Loan becomes a Specially Serviced Loan prior to the applicable Servicing Shift Securitization Date, the applicable Special Servicer shall service and administer such Servicing Shift Whole Loan and any related REO Property in the same manner as any other Specially Serviced Loan or Serviced REO Property and shall be entitled to all rights and compensation earned with respect to such Serviced Whole Loan as the applicable Special Servicer of such Serviced Whole Loan. With respect to a Servicing Shift Mortgage Loan, prior to the applicable Servicing Shift Securitization Date, no other special servicer will be entitled to any such compensation or have such rights and obligations. If a Servicing Shift Whole Loan is still a Specially Serviced Loan on the applicable Servicing Shift Securitization Date, the Non-Serviced Special Servicer and the applicable Special Servicer shall be entitled to compensation with respect to such Servicing Shift Whole Loan as if such Special Servicer were being terminated as the Special Servicer with respect to such Servicing Shift Whole Loan and the Non-Serviced Special Servicer were replacing such Special Servicer as the successor Special Servicer with respect to such Servicing Shift Whole Loan.

 

(e)      With respect to each Distribution Date, each Special Servicer shall deliver or cause to be delivered to the applicable Master Servicer within two (2) Business Days following the Determination Date, and such Master Servicer shall deliver, to the extent it has received, to the Certificate Administrator, without charge and on the related Remittance Date, an electronic report (which may include HTML, Word or Excel compatible format, clean and searchable PDF format or such other format as mutually agreeable between the Certificate Administrator and the applicable Special Servicer) that discloses and contains an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, if any, with respect to such Distribution Date; provided that no such report shall be due in any month during which no Disclosable Special Servicer Fees were received.

 

(f)       Each Special Servicer and its Affiliates shall be prohibited from receiving or retaining any compensation or any other remuneration (including, without limitation, in the form of commissions, brokerage fees, rebates, or as a result of any other fee-sharing arrangement) from any Person (including, without limitation, the Trust, any Mortgagor, any property manager, any guarantor or indemnitor in respect of a Mortgage Loan and any purchaser of any Mortgage Loan or REO Property) in connection with the disposition, workout or foreclosure of any Mortgage Loan, the management or disposition of any REO Property, or the performance of any other special servicing duties under this Agreement, other than as expressly provided in this Section 3.11; provided that such prohibition shall not apply to Permitted Special Servicer/Affiliate Fees.

 

(g)       Pursuant to the CREFC^® License Agreement, CREFC^® shall be paid (according to the payment instructions set forth on Exhibit JJ hereto or such other payment instructions as CREFC^® may provide to the Master Servicers in writing at least two Business Days prior to the Remittance Date) the CREFC^® Intellectual Property Royalty License Fee on a monthly basis. Each Master Servicer shall withdraw from its Collection Account and, to the extent sufficient funds are on deposit therein, pay the CREFC^® Intellectual Property Royalty

 

 -241-

 

 

License Fee to CREFC^® in accordance with Section 3.05(a)(xii) on a monthly basis, from funds on deposit in its Collection Account.

 

Section 3.12   Inspections; Collection of Financial Statements; Delivery of Reports. (a) Each Master Servicer shall perform (at its own expense), or shall cause to be performed (at its own expense), a physical inspection of each Mortgaged Property relating to a Mortgage Loan (other than a Non-Serviced Mortgage Loan, an REO Loan or a Specially Serviced Loan) for which it is acting as Master Servicer with a Stated Principal Balance of (i) $2,000,000 or more at least once every twelve (12) months and (ii) less than $2,000,000 at least once every twenty-four (24) months, in each case, commencing in the calendar year 2023 (and each Mortgaged Property shall be inspected on or prior to December 31, 2024); provided, however, that if a physical inspection has been performed by the applicable Special Servicer in the previous twelve (12) months, such Master Servicer will not be required to perform, or cause to be performed, such physical inspection; provided, further, that if any scheduled payment becomes more than sixty (60) days delinquent on the related Mortgage Loan (excluding a delinquency that would have existed but for a Payment Accommodation, for so long as the related borrower is complying with the terms of such Payment Accommodation), the applicable Special Servicer shall inspect or cause to be inspected the related Mortgaged Property as soon as practicable after such Mortgage Loan becomes a Specially Serviced Loan and annually thereafter for so long as such Mortgage Loan remains a Specially Serviced Loan. The cost of such inspection by a Special Servicer pursuant to the second proviso of the immediately preceding sentence shall be an expense of the Trust, and, to the extent not paid by the related Mortgagor, reimbursed first from Penalty Charges actually received from the related Mortgagor and then from the applicable Collection Account pursuant to Section 3.05(a)(ii), provided that, in the case of such reimbursement relating to a Serviced Whole Loan, such reimbursement shall be made, subject to the terms of the related Intercreditor Agreement, with respect to a Serviced Whole Loan, first, from any related AB Subordinate Companion Loan (if any) and then, pro rata and pari passu, from the related Serviced Pari Passu Mortgage Loan and any related Serviced Pari Passu Companion Loan in accordance with their respective outstanding principal balances (provided that, with respect to any AB Subordinate Companion Loan, the foregoing shall not limit or otherwise modify the terms of the related Intercreditor Agreement pursuant to which any amounts collected with respect to the related Whole Loan are allocated to the related Serviced AB Mortgage Loan, any Serviced Pari Passu Companion Loans and the AB Subordinate Companion Loan), in each case, prior to being payable out of general collections. The applicable Special Servicer or the applicable Master Servicer, as applicable, shall prepare or cause to be prepared a written report of each such inspection detailing the condition of and any damage to the Mortgaged Property to the extent evident from the inspection and specifying the existence of (i) any vacancy at the Mortgaged Property that the preparer of such report has knowledge of and the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (ii) any sale, transfer or abandonment of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, (iii) any adverse change in the condition of the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection, and that the applicable Master Servicer or the applicable Special Servicer, as the case may be, deems material, (iv) any visible material waste committed on the Mortgaged Property of which the preparer of such report has knowledge or that is evident from the inspection and (v) photographs of each inspected Mortgaged Property. The applicable Special Servicer and the applicable Master Servicer shall promptly following preparation deliver

 

 -242-

 

 

or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, respectively, to the other party, to the Directing Certificateholder ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan (as to the Directing Certificateholder) that is a Specially Serviced Loan). Within five (5) Business Days after request for copies of such reports by the Rating Agencies, the applicable Special Servicer or the applicable Master Servicer, as applicable, shall deliver or make available a copy (in electronic format) of each such report prepared by such Special Servicer and such Master Servicer, as applicable, to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website for review by NRSROs (including Rating Agencies) that are Privileged Persons. In respect of any Mortgage Loan other than an Excluded Loan (as to the Directing Certificateholder) that is a Specially Serviced Loan and prior to the occurrence of a Consultation Termination Event, the applicable Master Servicer shall deliver or make available a copy of each such report to the Directing Certificateholder and upon request to each Controlling Class Certificateholder (which request may state that such items may be delivered until further notice).

 

(b)       Each Special Servicer, in the case of any Specially Serviced Loan, and each Master Servicer, in the case of any Non-Specially Serviced Loan, shall make reasonable efforts to collect promptly and review from each related Mortgagor under the Mortgage Loans for which it acts as Master Servicer or Special Servicer, as applicable, quarterly and annual operating statements, financial statements, budgets, rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and sales reports of the related Mortgaged Property, and the quarterly and annual financial statements of such Mortgagor commencing with the calendar quarter ending on March 31, 2022 and the calendar year ending on December 31, 2022, whether or not delivery of such items is required pursuant to the terms of the related Mortgage Loan documents and any other reports or documents required to be delivered under the terms of the Mortgage Loans (and each Serviced Companion Loan), if delivery of such items is required pursuant to the terms of the related Mortgage Loan documents. The applicable Master Servicer and the applicable Special Servicer shall not be required to request such operating statements or rent rolls (or, with respect to residential cooperative properties, maintenance schedules) more than once if the related Mortgagor is not required to deliver such statements pursuant to the terms of the Mortgage Loan documents. In addition, the applicable Special Servicer shall cause quarterly and annual operating statements, budgets and rent rolls to be regularly prepared in respect of each REO Property and shall collect all such items promptly following their preparation. The applicable Special Servicer shall deliver all such items to the applicable Master Servicer within five (5) Business Days of receipt, and such Master Servicer and such Special Servicer, as applicable, shall deliver or make available copies of all the foregoing items so collected to the Trustee, the Certificate Administrator, the Directing Certificateholder and the Depositor, in electronic format, in each case within sixty (60) days of its receipt thereof, but in no event, in the case of annual statements, later than June 30 of each year commencing 2023. Upon the request of any Privileged Person (other than the NRSROs) to receive copies of such items, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall deliver or make available electronic copies of such items to the Certificate Administrator to be posted on the Certificate Administrator’s Website. Upon the request of any NRSRO, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Loans) shall

 

 -243-

 

 

deliver or make available copies of all or any portion of the foregoing items so collected thereby to the 17g-5 Information Provider pursuant to Section 3.13(c).

 

In addition, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans and REO Properties), as applicable, shall prepare with respect to each Mortgaged Property securing a Mortgage Loan (other than a Non-Serviced Mortgage Loan) and REO Property:

 

(i)        Within forty-five (45) days after receipt of a quarterly operating statement, if any, commencing within forty-five (45) days of receipt of such quarterly operating statement for the quarter ending March 31, 2022, a CREFC^® Operating Statement Analysis Report (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information) for such Mortgaged Property or REO Property as of the end of that calendar quarter and provides sufficient information to report pursuant to CREFC^® guidelines, provided, however, that any analysis or report with respect to the first calendar quarter of each year will not be required to the extent provided in then-current applicable CREFC^® guidelines (it being understood that as of the Closing Date, the applicable CREFC^® guidelines provide that such analysis or report with respect to the first calendar quarter (in each year) is not required for a Mortgaged Property or REO Property unless such Mortgaged Property or REO Property is analyzed on a trailing 12 month basis, or if the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) is on the CREFC^® Servicer Watch List). The applicable Master Servicer (with respect to all Mortgage Loans (other than Non-Serviced Mortgage Loans)) or the applicable Special Servicer (with respect to REO Properties that do not relate to Non-Serviced Mortgage Loans), as applicable, shall deliver or make available copies (in electronic format) of each CREFC^® Operating Statement Analysis Report and, upon request, the related operating statements (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder, the related Companion Holder (with respect to any Serviced Companion Loan).

 

(ii)      Within forty-five (45) days after receipt of an annual operating statement or rent rolls (or, with respect to the residential cooperative properties, maintenance schedules) (if and to the extent any such information is in the form of normalized year-end financial statements that have been based on a minimum number of months of operating results as recommended by CREFC^® in the instructions to the CREFC^® guidelines) for each calendar year commencing within forty-five (45) days of receipt of such annual operating statement for the calendar year ending December 31, 2022, a CREFC^® NOI Adjustment Worksheet (but only to the extent the related Mortgagor is required by the related Mortgage Loan documents to deliver and does deliver, or otherwise agrees to provide and does provide, such information), presenting the computation to “normalize” the full year net operating income and debt service coverage numbers used by the applicable Master Servicer in preparing the CREFC^® Comparative Financial Status Report. The applicable Master Servicer (with respect to all Mortgage Loans (other than Non-Serviced Mortgage Loans)) or the applicable Special Servicer (with respect to REO Properties that do not relate to Non-Serviced Mortgage Loans), as

 

 -244-

 

 

applicable, shall deliver or make available copies (in electronic format) of each CREFC® NOI Adjustment Worksheet and, upon request, the related operating statements or rent rolls (or, with respect to the residential cooperative properties, maintenance schedules) (in each case, promptly following the initial preparation and each material revision thereof) to the Certificate Administrator, the Directing Certificateholder, the related Companion Holder (with respect to any Serviced Companion Loan) and, upon request, the 17g-5 Information Provider, and the 17g-5 Information Provider shall post all such items to the 17g-5 Information Provider’s Website.

 

(c)     At or before 2:00 p.m. (New York City time) on each Determination Date, each Special Servicer shall prepare and deliver or cause to be delivered to the applicable Master Servicer and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, the CREFC^® Special Servicer Loan File and any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports with respect to the Specially Serviced Loans (excluding, for the Directing Certificateholder, any Excluded Loans) and any REO Properties (other than a Non-Serviced Mortgaged Property), providing the information required of the applicable Special Servicer in an electronic format, reasonably acceptable to the applicable Master Servicer as of the Business Day preceding such Determination Date, which CREFC^® Special Servicer Loan File shall include data, to enable the applicable Master Servicer to produce the following supplemental CREFC^® reports: (i) a CREFC^® Delinquent Loan Status Report, (ii) a CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report, (iii) a CREFC^® REO Status Report, (iv) a CREFC^® Comparative Financial Status Report and (v) a CREFC^® NOI Adjustment Worksheet and a CREFC^® Operating Statement Analysis Report, in each case with the supporting financial statements, budgets, operating statements and rent rolls (or, with respect to residential cooperative properties, maintenance schedules) submitted by the Mortgagor.

 

(d)      Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning December 2021, each Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the Certificate Administrator the following reports and data files with respect to the Mortgage Loans for which it acts as Master Servicer: (A) to the extent such Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan Report and the CREFC^® REO Status Report, (B) CREFC^® Loan Setup File (only with respect to the first Distribution Date), (C) the most recent CREFC^® Property File, and CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the applicable Special Servicer and the applicable Master Servicer), (D) a CREFC^® Servicer Watch List with information that is current as of such Determination Date, (E) CREFC^® Financial File, (F) CREFC^® Loan Level Reserve/LOC Report, (G) the CREFC^® Advance Recovery Report, (H) CREFC^® Total Loan Report and (I) the report on Disclosable Special Servicer Fees delivered pursuant to Section 3.11(e) to the extent received from the applicable Special Servicer, if any. Additionally, not later than 5:00 p.m. (New York City time) on the P&I Advance Date beginning December 2021, the applicable Master Servicer shall deliver or cause to be delivered in electronic format to the Certificate Administrator any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports received

 

 -245-

 

 

from the applicable Special Servicer. Not later than 2:00 p.m. (New York City time) two (2) Business Days prior to the Distribution Date beginning December 2021, the applicable Master Servicer shall deliver or cause to be delivered to the Certificate Administrator via electronic format the CREFC^® Loan Periodic Update File and, to the extent received by such Master Servicer, the CREFC^® Appraisal Reduction Template, if provided for such Distribution Date. In no event shall any report described in this subsection be required to reflect information that has not been collected by or delivered to the applicable Master Servicer, or any payments or collections not received by the applicable Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due.

 

Not later than two (2) Business Days prior to each P&I Advance Date, the NCB Master Servicer shall deliver to the General Master Servicer an NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File in both EDGAR-Compatible Format and Excel format; provided, however, that the NCB Master Servicer shall have no obligation to prepare or deliver such NCB CREFC^® Schedule AL File unless the NCB Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(i). If the General Master Servicer does not receive such NCB CREFC^® Schedule AL File from the NCB Master Servicer by two (2) Business Days prior to the related P&I Advance Date, it shall immediately request such NCB CREFC® Schedule AL File from the NCB Master Servicer via email at BANK2021BNK37@ncb.com and send a copy of such request to the Depositor via email at CRRCompliance@wellsfargo.com. In preparing the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the NCB Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial Schedule AL File and Annex A-1 to the Prospectus. The NCB CREFC^® Schedule AL File and the NCB Schedule AL Additional File delivered by the NCB Master Servicer shall each be a single file.

 

Not later than 5:00 p.m. (New York City time) on each P&I Advance Date beginning December 2021, the General Master Servicer shall deliver to the Certificate Administrator a CREFC^® Schedule AL File and may deliver to the Certificate Administrator a Schedule AL Additional File, each covering all of the Mortgage Loans (which CREFC^® Schedule AL File and Schedule AL Additional File shall include the information contained in the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File, respectively, delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph), and each in both EDGAR-Compatible Format and Excel format; provided, however, that the General Master Servicer shall have no obligation to prepare or deliver the CREFC^® Schedule AL File for any given Distribution Date unless the General Master Servicer receives the Initial Schedule AL File from the Depositor pursuant to Section 2.01(i) and the NCB CREFC^® Schedule AL File for such Distribution Date pursuant to the immediately preceding paragraph. If the Certificate Administrator does not receive the CREFC^® Schedule AL File from the General Master Servicer by 5:00 p.m. (New York City time) on the P&I Advance Date, it shall request the CREFC^® Schedule AL File from the General Master Servicer via email at ssreports@wellsfargo.com and send a copy of such request to the Depositor via email at CRRCompliance@wellsfargo.com. In preparing the CREFC^® Schedule AL File and any Schedule AL Additional File for any given Distribution Date, and without any due diligence, investigation or verification, the General Master Servicer shall be entitled to conclusively rely, absent manifest error, on the content, completeness and accuracy of the Initial

 

 -246-

 

 

Schedule AL File and Annex A-1 to the Prospectus and the NCB CREFC^® Schedule AL File and any NCB Schedule AL Additional File delivered to the General Master Servicer by the NCB Master Servicer for such Distribution Date pursuant to the immediately preceding paragraph. The CREFC^® Schedule AL File and the Schedule AL Additional File delivered by the General Master Servicer shall each be a single file. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files provided or prepared by or on behalf of either or both Master Servicers. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File. The Certificate Administrator shall not be deemed to have actual knowledge of the contents of any CREFC^® Schedule AL File or Schedule AL Additional File solely by its receipt thereof.

 

In the absence of manifest error, each Master Servicer shall be entitled to conclusively rely upon, without investigation or inquiry, any information and reports delivered to it by any third party, and the Certificate Administrator shall be entitled to conclusively rely upon each Master Servicer’s reports and each Special Servicer’s reports and any information provided by the Trustee, without any duty or obligation to recompute, verify or recalculate any of the amounts and other information stated therein.

 

(e)       Each Special Servicer shall deliver to the applicable Master Servicer the reports and information required of such Special Servicer pursuant to Section 3.11(e), Section 3.12(b) and Section 3.12(c), and such Master Servicer shall deliver or make available to the Certificate Administrator the reports and data files set forth in Section 3.12(d). Each Master Servicer may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Special Servicer pursuant to Section 3.11(e), Section 3.12(b) and Section 3.12(c). The Certificate Administrator may, absent manifest error, conclusively rely on the reports and/or data to be provided by the applicable Master Servicer pursuant to Section 3.12(d). In the case of information or reports to be furnished by the applicable Master Servicer to the Certificate Administrator pursuant to Section 3.12(d), to the extent that such information or reports are, in turn, based on information or reports to be provided by the applicable Special Servicer pursuant to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to be prepared and delivered by the applicable Special Servicer pursuant to Section 3.11(e), Section 3.12(b) or Section 3.12(c), the applicable Master Servicer shall have no obligation to provide such information or reports to the Certificate Administrator until it has received the requisite information or reports from the applicable Special Servicer, and the applicable Master Servicer shall not be in default hereunder due to a delay in providing the reports required by Section 3.12(d) caused by the applicable Special Servicer’s failure to timely provide any information or report required under Section 3.11(e), Section 3.12(b) or Section 3.12(c) of this Agreement.

 

(f)       Notwithstanding the foregoing, however, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by this Section 3.12 shall not constitute a breach of this Section 3.12 to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Mortgaged Properties. A Master Servicer and a Special Servicer may

 

 -247-

 

 

disclose any such information or any additional information to any Person so long as such disclosure is consistent with applicable law and the Servicing Standard. A Master Servicer or a Special Servicer may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

 

(g)       Unless otherwise specifically stated herein, if a Master Servicer or a Special Servicer is required to deliver any statement, report or information under any provisions of this Agreement, such Master Servicer or such Special Servicer, as the case may be, may satisfy such obligation by (x) physically delivering a paper copy of such statement, report or information, (y) delivering such statement, report or information in a commonly used electronic format or (z) making such statement, report or information available on such Master Servicer’s website (with respect to items delivered by such Master Servicer (except with respect to items delivered by such Master Servicer to the Certificate Administrator)) or the Certificate Administrator’s Website, unless this Agreement expressly specifies a particular method of delivery.

 

Notwithstanding anything to the contrary in the foregoing, each Master Servicer and each Special Servicer shall deliver any required statements, reports or other information to the Certificate Administrator in an electronic format mutually agreeable to the Certificate Administrator and the applicable Master Servicer or the applicable Special Servicer, as the case may be. The applicable Master Servicer or the applicable Special Servicer may physically deliver a paper copy of any such statement, report or information as a temporary measure due to system problems, however, copies in electronic format shall follow upon the correction of such system problems.

 

Section 3.13   Access to Certain Information.  (a) Each Master Servicer and Special Servicer shall provide or cause to be provided to the Certificate Administrator, and the Certificate Administrator shall afford access to any Mortgage Loan Seller and to any Certificateholder that is a federally insured financial institution, the OCC, the FDIC, the Board of Governors of the Federal Reserve System of the United States of America and the supervisory agents and examiners of such boards and such corporations, and any other federal or state banking or insurance regulatory authority that may exercise authority over any such Certificateholder, and to each Holder of a Non-Registered Certificate, access to any documentation or information regarding the Mortgage Loans (other than any Non-Serviced Mortgage Loan) and, in the case of a Mortgage Loan that is a portion of a Serviced Whole Loan, the related Companion Loan, and the Trust within its control which may be required by applicable law. At the election of the applicable Master Servicer, the applicable Special Servicer or the Certificate Administrator, such access may be afforded to such Person identified above by the delivery of copies of information as requested by such Person and such Master Servicer, such Special Servicer or the Certificate Administrator shall be permitted to require payment (other than from the Directing Certificateholder and the Trustee and the Certificate Administrator on its own behalf or on behalf of the Certificateholders, as applicable) of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it in making such copies. Such access shall (except as described in the preceding sentence) be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Certificate Administrator or the Custodian.

 

 -248-

 

 

The failure of a Master Servicer or a Special Servicer to provide access as provided in this Section 3.13 as a result of a confidentiality obligation shall not constitute a breach of this Section 3.13. In connection with providing information pursuant to this Section 3.13, the Master Servicers and Special Servicers may each (i) affix a reasonable disclaimer to any information provided by it for which it is not the original source (without suggesting liability on the part of any other party hereto); (ii) affix to any information provided by it a reasonable statement regarding securities law restrictions on such information and/or condition access to information on (x) the execution of a confidentiality agreement substantially in the form of Exhibit X, or (y) execution of a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s or the applicable Special Servicer’s website; (iii) withhold access to confidential information or any intellectual property; and/or (iv) withhold access to items of information contained in the Servicing File for any Mortgage Loan if the disclosure of such items is prohibited by applicable law or the provisions of any related Mortgage Loan documents or would constitute a waiver of the attorney-client privilege. Notwithstanding any provision of this Agreement to the contrary, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed by it pursuant to this Agreement shall not constitute a breach of this Agreement to the extent that such Master Servicer or such Special Servicer, as the case may be, determines, in its reasonable good faith judgment consistent with the applicable Servicing Standard, that such disclosure would violate applicable law or any provision of a Mortgage Loan or Companion Loan document prohibiting disclosure of information with respect to the Mortgage Loans or Companion Loans or the Mortgaged Properties, constitute a waiver of the attorney-client privilege on behalf of the Trust or otherwise materially harm the Trust. Without limiting the generality of the foregoing, a Master Servicer or a Special Servicer may refrain from disclosing information that it reasonably determines would prejudice the interests of the Certificateholders with respect to a workout or exercise of remedies as to any particular Mortgage Loan.

 

Notwithstanding the limitation set forth in the next succeeding paragraph, but subject to the last sentence of the immediately preceding paragraph, upon the reasonable request of any Certificateholder (or with respect to any AB Subordinate Companion Loan related to a Serviced AB Whole Loan, the holder of such AB Subordinate Companion Loan) that has delivered an Investor Certification to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, may provide (or make available electronically) or make available at the expense of such Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, copies of any appraisals, operating statements, rent rolls (or, with respect to residential cooperative properties, maintenance schedules) and financial statements (in each case, solely relating to the related Serviced Whole Loan or Serviced AB Whole Loan, if requested by the holder of an AB Subordinate Companion Loan, as the case may be) obtained by the applicable Master Servicer or the applicable Special Servicer, as the case may be; provided that, in connection with such request, such Master Servicer or such Special Servicer, as applicable, may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, generally to the effect that such Person will keep such information confidential and shall use such information only for the purpose of analyzing asset performance and evaluating any continuing rights the

 

 -249-

 

 

Certificateholder or holder of such AB Subordinate Companion Loan, as applicable, may have under this Agreement.

 

Notwithstanding anything to the contrary herein (other than as permitted in the preceding paragraph with respect to any Certificateholder or as specifically provided for herein with respect to the Directing Certificateholder), unless required by applicable law or court order, no Certificateholder (except, with respect to a Mortgage Loan Seller, to the extent necessary for such party to comply with its obligations under the related Mortgage Loan Purchase Agreement, and except for the Master Servicers and the Certificate Administrator, acting in such capacities) or beneficial owner shall be given access to, or be provided copies of, the Mortgage Files or Diligence Files.

 

(b)         The Certificate Administrator shall make available to Privileged Persons (provided that the Prospectus, Distribution Date Statements, Mortgage Loan Purchase Agreements, this Agreement and the Commission EDGAR filings referred to below will be available to the general public) via the Certificate Administrator’s Website, the following items, in each case, to the extent such items were prepared by or delivered to the Certificate Administrator in electronic format:

 

(i)          The following documents, which will initially be made available under a tab or heading designated “deal documents”:

 

(A)     the Prospectus and any other disclosure document relating to the Registered Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;

 

(B)      this Agreement and any amendments and exhibits hereto;

 

(C)      any Sub-Servicing Agreements delivered to the Certificate Administrator on or after the Closing Date;

 

(D)      the Mortgage Loan Purchase Agreements and any amendments and exhibits thereto; and

 

(E)       the CREFC^® Loan Setup File provided by each applicable Master Servicer to the Certificate Administrator;

 

(ii)          the following documents, which will initially be made available under a tab or heading designated “SEC EDGAR filings”;

 

(A)      any reports on Forms 10-D, ABS-EE, 10-K and 8-K that have been filed by the Certificate Administrator with respect to the Trust through the EDGAR system; and

 

(B)      any notice delivered to the Certificate Administrator by the Depositor relating to the filing of a Form 8-K/A;

 

 -250-

 

 

(iii)        The following documents, which will initially be made available under a tab or heading designated “periodic reports”:

 

(A)      all Distribution Date Statements prepared by the Certificate Administrator pursuant to Section 4.02; and

 

(B)      the CREFC^® Loan Periodic Update File, the CREFC^® Bond Level File, the CREFC^® Collateral Summary File, the CREFC^® Property File, the CREFC^® Financial File, each of the “surveillance reports” identified as such in the definition of “CREFC^® Investor Reporting Package” (including, without limitation, the CREFC^® Operating Statement Analysis Report and the CREFC^® NOI Adjustment Worksheets), the CREFC^® Advance Recovery Report to the extent delivered by the applicable Master Servicer pursuant to this Agreement from time to time;

 

(iv)        The following documents, which will initially be made available under a tab or heading designated “additional documents”:

 

(A)      summaries of Final Asset Status Reports or, prior to an AB Control Appraisal Period, summaries of Asset Status Reports approved by the holder of the related Companion Loan, and related information delivered to the Certificate Administrator pursuant to Section 3.19(d);

 

(B)      all property inspection reports and environmental reports delivered to the Certificate Administrator pursuant to Section 3.12(a);

 

(C)      any Appraisals delivered to the Certificate Administrator pursuant to Section 3.19;

 

(D)      the CREFC® Appraisal Reduction Template; and

 

(E)      all Operating Advisor Annual Reports provided by the Operating Advisor to the Certificate Administrator;

 

(v)         The following documents, which will initially be made available under a tab or heading designated “special notices”:

 

(A)      any notice with respect to a release pursuant to Section 3.09(d);

 

(B)      any notice regarding a waiver, modification or amendment of the terms of any Mortgage Loan pursuant to Section 3.18(g);

 

(C)      any notice of final payment on the Certificates delivered to the Certificate Administrator pursuant to Section 4.01(h);

 

(D)      any notice of the occurrence of any Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

 

 -251-

 

 

(E)      any notice of the Certificate Administrator’s determination that an Asset Review Trigger has occurred and any other notice required to be delivered to the Certificateholders pursuant to Section 12.01;

 

(F)      any Asset Review Report Summary received by the Certificate Administrator;

 

(G)      any notice of the termination of the Sub-Servicer delivered pursuant to Section 3.20(g);

 

(H)      any notice of resignation of the Trustee or the Certificate Administrator, and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

 

(I)       any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

 

(J)       any notice of resignation or termination of a Master Servicer or a Special Servicer pursuant to Section 7.03;

 

(K)      any notice of termination pursuant to Section 9.01;

 

(L)      any notice of resignation or termination of the Operating Advisor or the Asset Representations Reviewer and any notice of the acceptance of appointment by the successor operating advisor or the successor asset representations reviewer pursuant to Section 3.26(j) or Section 12.03, respectively;

 

(M)     any notice of any request by requisite percentage of Certificateholders for a vote to terminate a Special Servicer pursuant to Section 7.01(d), the Operating Advisor pursuant to Section 3.26(j) or the Asset Representations Reviewer pursuant to Section 12.05(b);

 

(N)      any notice of recommendation of termination of a Special Servicer by the Operating Advisor and the related report prepared by the Operating Advisor in connection with such recommendation;

 

(O)      any notice that a Control Termination Event has occurred or is terminated or that a Consultation Termination Event has occurred or is terminated;

 

(P)      any notice of the occurrence of an Operating Advisor Termination Event;

 

(Q)      any notice of the occurrence of an Asset Representations Reviewer Termination Event;

 

 -252-

 

 

(R)      any assessments of compliance delivered to the Certificate Administrator; and

 

(S)      any attestation reports delivered to the Certificate Administrator;

 

(T)      any “special notices” required by a Certificateholder to be posted on the Certificate Administrator’s website pursuant to Section 5.06;

 

(U)      any notice or documents provided to the Certificate Administrator by the Depositor or a Master Servicer directing the Certificate Administrator to post to the “Special Notices” tab;

 

(V)      any Proposed Course of Action Notice;

 

(vi)        the “Investor Q&A Forum” pursuant to Section 4.07(a);

 

(vii)       solely to Certificateholders and Certificate Owners that are Privileged Persons, the “Investor Registry” pursuant to Section 4.07(b); and

 

(viii)      the “U.S. Risk Retention Special Notices” tab relating to any notices as to ongoing compliance by each Retaining Party with the retention and hedging covenants in any agreement between the Retaining Parties and the Retaining Sponsor in respect of compliance with credit risk retention regulations; and

 

provided, that with respect to a Control Termination Event or Consultation Termination Event that is deemed to exist due solely to the existence of an Excluded Loan, the Certificate Administrator will only be required to provide notice of the occurrence and continuance of such event if it has been notified of or has knowledge of the existence of such Excluded Loan.

 

The Certificate Administrator shall post on the Certificate Administrator’s Website the items and reports identified in clauses (iii)(A) and (B) above on each Distribution Date. In addition, if the Depositor so directs the Certificate Administrator, and on terms acceptable to the Certificate Administrator, the Certificate Administrator shall make certain other information and reports related to the Mortgage Loans available through its Internet website.

 

The Certificate Administrator shall, in addition to posting the applicable notices on the “U.S. Risk Retention Special Notices” tab described in clause (viii) above, provide e-mail notification to any Privileged Person (other than certain financial market information providers under this agreement) that has registered to receive access to the Certificate Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab.

 

In the event that Wells Fargo Bank, National Association in its capacity as the Retaining Sponsor determines that any Retaining Party no longer complies with the provisions of the Risk Retention Rule, the Retaining Sponsor will be required to send a written notice of such non-compliance to the Certificate Administrator who will post such notice on its website under the “U.S. Risk Retention Special Notices” tab.

 

 -253-

 

 

Notwithstanding the foregoing, all Excluded Information shall be made available under a separate tab or heading designated “Excluded Information” on the Certificate Administrator’s Website (and not under any of the tabs or headings described in items (i) through (vii) above) and made available to Privileged Persons other than any Excluded Controlling Class Holder that is a Borrower Party (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)).

 

Any Person that is a Borrower Party shall only be entitled to access (a) the Distribution Date Statements, and the following items made available to the general public: the Prospectus, this Agreement, the Mortgage Loan Purchase Agreements and the Commission filings on the Certificate Administrator’s Website, and (b) in the case of the Directing Certificateholder or a Controlling Class Certificateholder, if any such Person becomes an Excluded Controlling Class Holder, upon delivery to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) of an investor certification substantially in the form of Exhibit P-1D and upon delivery to the Certificate Administrator in physical form of an investor certification substantially in the form of Exhibit P-1F, which shall include each of the CTSLink User ID associated with such Excluded Controlling Class Holder, all information (other than the Excluded Information with respect to any Excluded Controlling Class Loans (unless a loan-by-the applicable loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans)) available on the Certificate Administrator’s Website.

 

In the case of the Directing Certificateholder or a Controlling Class Certificateholder that is not an Excluded Controlling Class Holder, upon delivery of an investor certification substantially in the form of Exhibit P-1B hereto, such Directing Certificateholder or Controlling Class Certificateholder shall be entitled to access all information on the Certificate Administrator’s Website. The Master Servicers, the Special Servicers, the Operating Advisor, the Certificate Administrator and the Trustee may each rely on (i) an investor certification in the form of Exhibit P-1B hereto from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is not an Excluded Controlling Class Holder and (ii) an investor certification in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) hereto from the Directing Certificateholder or a Controlling Class Certificateholder to the effect that such Person is an Excluded Controlling Class Holder with respect to one or more Excluded Controlling Class Loan(s). In the event the Directing Certificateholder or a Controlling Class Certificateholder becomes an Excluded Controlling Class Holder, such party shall promptly notify each of the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor, the Certificate Administrator and the Trustee in writing substantially in the form of Exhibit P-1E that such party has become an Excluded Controlling Class Holder with respect to the Excluded Controlling Class Loan(s) listed in such notice and shall also provide the Certificate Administrator a notice substantially in the form of Exhibit P-1F listing each of the CTSLink User ID associated with such Excluded Controlling Class Holder and directing the Certificate Administrator to restrict such Excluded Controlling Class Holder’s access to the Certificate Administrator’s Website as and to the extent provided in this Agreement. Upon confirmation from the Certificate Administrator that such

 

 -254-

 

 

access has been restricted, such Excluded Controlling Class Holder shall submit a new investor certification substantially in the form of Exhibit P-1D in physical form (or, solely with respect to the applicable Master Servicer, in electronic form) to access the information on the Certificate Administrator’s Website, except that such Excluded Controlling Class Holder shall not be entitled to access any Excluded Information related to any Excluded Controlling Class Loan(s) (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loan(s)) made available on the Certificate Administrator’s Website. With respect to any Excluded Information sent for posting on the Certificate Administrator’s Website, each of the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor shall mark or label such information as “Excluded Information” prior to delivery to the Certificate Administrator, and the Certificate Administrator shall segregate on the Certificate Administrator’s Website such Excluded Information (and, if possible at a later time, on loan-by-loan basis) from information relating to other Mortgage Loans or Whole Loans, as applicable.

 

Notwithstanding anything herein to the contrary, each of the Master Servicers, the Special Servicers, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively assume that the Directing Certificateholder and all beneficial owners of the Certificates of the Controlling Class are not Excluded Controlling Class Holders except to the extent that the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, has received a notice substantially in the form of Exhibit P-1E from the Directing Certificateholder or a Controlling Class Certificateholder that it has become an Excluded Controlling Class Holder. None of the Master Servicers, the Special Servicers, the Operating Advisor or the Certificate Administrator shall be liable for any communication to the Directing Certificateholder or a Controlling Class Certificateholder that is an Excluded Controlling Class Holder or disclosure of any information relating to an Excluded Controlling Class Loan (including any related Excluded Information delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website) if the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor or the Certificate Administrator, as the case may be, did not receive prior written notice that the related Mortgage Loan is an Excluded Controlling Class Loan and/or, with respect to any related Excluded Information posted on the Certificate Administrator’s Website, such information was not delivered to the Certificate Administrator in accordance with Section 3.33.

 

Each of the Master Servicers, the Special Servicers, the Operating Advisor and the Certificate Administrator shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder of an investor certification substantially in the form of Exhibit P-1B that it is not or is no longer an Excluded Controlling Class Holder. To the extent the Directing Certificateholder or a Controlling Class Certificateholder receives access pursuant to this Agreement to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, such Directing Certificateholder or Controlling Class Certificateholder shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of such Directing Certificateholder or Controlling Class Certificateholder or any of its Affiliates involved in the management of any investment in the related Borrower Party or the

 

 -255-

 

 

related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

 

To the extent the Risk Retention Consultation Party or a Holder of an RR Interest receives access pursuant to this Agreement to any information solely related to a Mortgage Loan with respect to which such party is a Borrower Party (which shall include any Asset Status Reports, Final Asset Status Reports (or summaries thereof), inspection reports related to Specially Serviced Loans conducted by a Special Servicer or any Excluded Special Servicer and which may include any Operating Advisor reports delivered to the Certificate Administrator regarding such Special Servicer’s net present value determination or any Appraisal Reduction Amount calculations delivered pursuant to Section 3.26(d) and Section 3.26(e), and any Officer’s Certificates delivered by the Trustee, a Master Servicer or a Special Servicer, supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance, but in each case other than information with respect to such Mortgage Loan that is aggregated with information of other Mortgage Loans at a pool level), on the Certificate Administrator’s Website or otherwise receives access to such information, such Risk Retention Consultation Party or Holder of an RR Interest shall be deemed to have agreed that it (i) will not directly or indirectly provide any such information to (A) the related Borrower Party, (B) any employees or personnel of such Risk Retention Consultation Party or Holder of an RR Interest or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (C) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above. For the avoidance of doubt, (i) any file or report contained in the CREFC^® Investor Reporting Package (CREFC^® IRP) (other than the CREFC^® Special Servicer Loan File relating to any such Excluded Loan) shall be considered information that is aggregated with information of other Mortgage Loans at a pool level and (ii) the covenants and restrictions in this paragraph are not applicable to Wells Fargo Bank, National Association, acting in its capacity as General Master Servicer.

 

The Certificate Administrator makes no representation or warranty as to the accuracy or completeness of any report, document or other information made available on its Internet website and assumes no responsibility therefor, other than with respect to such reports, documents or other information prepared by the Certificate Administrator. In addition, the Certificate Administrator may disclaim responsibility for any information distributed by it for which it is not the original source. Notwithstanding anything herein to the contrary, the Certificate Administrator shall not be liable for any disclosure of information relating to any Excluded Controlling Class Loan to the extent such information was included in the Asset Status Report or the Final Asset Status Report delivered to the Certificate Administrator for posting to the Certificate Administrator’s Website and not properly identified as relating to any Excluded Controlling Class Loan.

 

In connection with providing access to the Certificate Administrator’s Website (other than with respect to access provided to the general public in accordance with Section 3.13(b)), the Certificate Administrator may require registration and the acceptance of a

 

 -256-

 

 

disclaimer. The Certificate Administrator shall not be liable for the dissemination of information in accordance herewith. Questions regarding the Certificate Administrator’s Website can be directed to the Certificate Administrator’s CMBS customer service desk at (866) 846-4526.

 

(c)       The 17g-5 Information Provider shall make available solely to the Depositor and the NRSROs the following items to the extent such items are delivered to it (in the form of an electronic document suitable for posting) via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK37” and an identification of the type of information being provided in the body of such electronic mail; or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:

 

(i)        any notices of waivers under Section 3.08(d);

 

(ii)       any Asset Status Report delivered by the applicable Special Servicer under Section 3.19(d);

 

(iii)      any notice of final payment on the Certificates;

 

(iv)      any environmental reports delivered by the applicable Special Servicer under Section 3.09(c);

 

(v)       any Appraisals delivered to the 17g-5 Information Provider pursuant to Section 3.19;

 

(vi)      any annual statements as to compliance and related Officer’s Certificates delivered under Section 11.09 or Section 11.10;

 

(vii)     any annual independent public accountants’ attestation reports delivered pursuant to Section 11.11;

 

(viii)    any notice to the Rating Agencies relating to the applicable Special Servicer’s determination to take action without receiving Rating Agency Confirmation from any Rating Agency as set forth in Section 3.25(a);

 

(ix)      copies of requests or questions that were submitted by the Rating Agencies relating to a request for Rating Agency Confirmation;

 

(x)       any requests for Rating Agency Confirmation that are delivered to the 17g-5 Information Provider pursuant to Section 3.25(a);

 

(xi)      any notice of resignation of the Trustee or the Certificate Administrator and any notice of the acceptance of appointment by the successor trustee or the successor certificate administrator pursuant to Section 8.07 or Section 8.08;

 

(xii)     any Officer’s Certificate supporting any determination that any Advance was (or, if made, would be) a Nonrecoverable Advance;

 

 -257-

 

 

(xiii)    any notice of a Servicer Termination Event or termination of a Master Servicer or a Special Servicer delivered pursuant to Section 7.01;

 

(xiv)    any notice of the merger or consolidation of the Certificate Administrator or the Trustee pursuant to Section 8.09;

 

(xv)     any notice of any amendment that modifies the procedures herein relating to Rule 17g-5 of the Exchange Act pursuant to Section 13.01(a)(ix);

 

(xvi)    any Operating Advisor Annual Report pursuant to Section 3.26;

 

(xvii)   any summary of oral communication with the Rating Agencies or any written question or request from the Rating Agencies directed toward the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Trustee regarding any of the information delivered to the 17g-5 Information Provider pursuant to this Section 3.13(c) or regarding any request for a Rating Agency Confirmation or regarding any of the Mortgage Loan documents or any matter related to the Certificates, Mortgage Loans, any related Companion Loan, the related Mortgaged Properties, the related Mortgagors or any other matters related to this Agreement or any applicable Intercreditor Agreement; provided that the summary of such oral communication shall not identify the Rating Agency with whom the communication was held pursuant to Section 3.13(g);

 

(xviii)  any other information delivered to the 17g-5 Information Provider pursuant to this Agreement including, without limitation, Section 2.03(b), Section 3.07(a), Section 3.12, Section 3.17, Section 3.18(g); Section 11.09 or Section 11.10; and

 

(xix)    any other information delivered to the Rating Agencies pursuant to this Agreement including, without limitation, Section 13.10.

 

The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Information Provider’s Website. Information will be posted on the same Business Day of receipt unless such information is received after 2:00 p.m., New York City time, on such Business Day, in which case, it shall be posted by 12:00 p.m., New York City time, on the next Business Day. The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. In the event that any information is delivered or posted in error, each of the Certificate Administrator and the 17g-5 Information Provider may remove such information from the 17g-5 Information Provider’s Website. The Certificate Administrator and the 17g-5 Information Provider have not obtained and shall not be deemed to have obtained actual knowledge of any information merely by posting such information to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website to the extent such information was not produced by the Certificate Administrator or the 17g-5 Information Provider, as applicable. Access will be provided by the 17g-5 Information Provider to the NRSROs upon receipt of an NRSRO Certification in the form of Exhibit P-2 hereto (which

 

 -258-

 

 

certification may be submitted electronically via the 17g-5 Information Provider’s Website). Questions regarding delivery of information to the 17g-5 Information Provider may be directed to (866) 846-4526 or 17g5informationprovider@wellsfargo.com (specifically referencing “BANK 2021-BNK37” in the subject line).

 

Upon delivery by the Depositor to the 17g-5 Information Provider of information designated by the Depositor as pre-closing information from the Depositor’s 17g-5 Website (the “Pre-Close Information”), the 17g-5 Information Provider shall make such information available only to the Depositor and to NRSROs via the 17g-5 Information Provider’s Website pursuant to this Section 3.13(c). Such information shall be provided to the 17g-5 Information Provider via electronic media and delivered to the 17g-5 Information Provider as mutually agreed. The Depositor shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-Close Information or any other information on the 17g-5 Information Provider’s Website to any designee or third party.

 

Upon request of the Depositor or the Rating Agencies, the 17g-5 Information Provider shall post on the 17g-5 Information Provider’s Website any additional information requested by the Depositor or the Rating Agencies to the extent such information is delivered to the 17g-5 Information Provider electronically in accordance with this Section 3.13. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Information Provider’s Website the Rating Agency that requested such additional information.

 

The 17g-5 Information Provider shall notify any party that delivers any information, report, notice or document to the 17g-5 Information Provider under this Agreement that such information, report, notice or document was received and that it has been posted. The Master Servicers and the Special Servicers may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider. The 17g-5 Information Provider shall notify-each Person that has signed-up for access to the 17g-5 Information Provider’s Website and such notice shall specifically identify such document in the subject line or otherwise in the body of the email notice. The 17g-5 Information Provider shall send such notice to such Person’s email address provided by and used by such Person for the purpose of accessing the 17g-5 Information Provider’s Website, including a general email address if such general email address has been provided to the 17g-5 Information Provider in connection with a completed NRSRO Certification in the form of Exhibit P-2 hereto.

 

Any information required to be delivered to the 17g-5 Information Provider by any party under this Agreement shall be delivered to it via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “BANK 2021-BNK37” and an identification of the type of information being provided in the body of such electronic mail, or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider.

 

(d)      The applicable Master Servicer or the applicable Special Servicer, as applicable, may, but shall not be obligated to, provide bulk information that relates to two or

 

 -259-

 

 

more transactions to the 17g-5 Information Provider. Any such information shall be posted by the 17g-5 Information Provider and the 17g-5 Information Provider may, but shall not be obligated to, post such information in accordance with the timeframe provided in Section 3.13(c) above; provided, however, that if the 17g-5 Information Provider is not able to post such information in accordance with the timeframe in Section 3.13(c), then it shall post such information within a reasonable time.

 

(e)      Certain information concerning the Mortgage Loans and the Certificates (including the Distribution Date Statements, CREFC^® reports and supplemental notices with respect to such Distribution Date Statements and CREFC^® reports) shall be provided by the Certificate Administrator at the direction of the Depositor to third parties (including Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Interactive Data Corp., Markit Group Limited, BlackRock Financial Management, Inc., CMBS.com, Inc., Moody’s Analytics, Inc., Morningstar Credit Information & Analytics, LLC, KBRA Analytics, LLC, MBS Data, LLC, RealInsight and Thomson Reuters Corporation) with the consent of the Depositor, and providing such information shall not constitute a breach of this Agreement by the Certificate Administrator. Such information will be made available to such third parties upon receipt of a certificate in the form of Exhibit P-3 hereto, which certification may be submitted electronically via the Certificate Administrator’s Website.

 

(f)       Each Master Servicer and each Special Servicer may, in accordance with such reasonable rules and procedures as it may adopt, also deliver, produce or otherwise make available through its website or otherwise, any additional information relating to the Mortgage Loans (other than any Non-Serviced Mortgage Loan), any related Serviced Companion Loan, the Mortgaged Properties (other than any Non-Serviced Mortgaged Property), or the related Mortgagors, for review by the Depositor, the Underwriters and any other Persons who deliver an Investor Certification in accordance with this Section 3.13 and the Rating Agencies (collectively, the “Disclosure Parties”) (in the case of deliveries to a Rating Agency, only to the extent such additional information is simultaneously delivered to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)), in each case, except to the extent doing so is prohibited by this Agreement (including without limitation, any prohibitions on dissemination of any confidential information, including, without limitation, any Privileged Information), applicable law or by the related Mortgage Loan documents. Each Master Servicer and each Special Servicer shall be entitled to (i) indicate the source of such information and affix thereto any disclaimer it deems appropriate in its discretion and/or (ii) require that the recipient of such information (A) except for the Depositor and the Rating Agencies, enter into (x) an Investor Certification, (y) a confidentiality agreement substantially in the form of Exhibit X or (z) a “click-through” confidentiality agreement if such information is being provided through the applicable Master Servicer’s website, and (B) acknowledge that such Master Servicer or such Special Servicer may contemporaneously provide such information to any other Disclosure Party. In addition, to the extent access to such information is provided via the applicable Master Servicer’s website, such Master Servicer and such Special Servicer may require registration and the acceptance of a reasonable and customary disclaimer and/or an additional or alternative agreement as to the confidential nature of such information. In connection with providing access to or copies of the information described in this Section 3.13(f) to current or prospective Certificateholders the form of confidentiality agreement used by the applicable Master Servicer or the applicable Special

 

 -260-

 

 

Servicer, as applicable, shall be: (i) in the case of a Certificateholder, an Investor Certification executed by the requesting Person indicating that such Person is a Holder of Certificates and will keep such information confidential (except that such Certificateholder may provide such information (x) to its auditors, legal counsel and regulators and (y) to any other Person that holds or is contemplating the purchase of any Certificate or interest therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (ii) in the case of a prospective purchaser of Certificates or interests therein or an investment advisor related thereto, an Investor Certification indicating that such Person is a prospective purchaser of a Certificate or an interest therein or an investment advisor related thereto and is requesting the information for use in evaluating a possible investment in Certificates and will otherwise keep such information confidential with no further dissemination (except that such Certificateholder may provide such information to its auditors, legal counsel and regulators). In the case of a licensed or registered investment advisor acting on behalf of a current or prospective Certificateholder, the Investor Certification shall be executed and delivered by both the investment advisor and such current or prospective Certificateholder.

 

Neither the Master Servicers nor the Special Servicers shall be liable for its dissemination of information in accordance with this Agreement or by others in violation of the terms of this Agreement. Neither the Master Servicers nor the Special Servicers shall be responsible or have any liability for the completeness or accuracy of the information delivered, produced or otherwise made available pursuant to this Section 3.13 unless such information was produced by the applicable Master Servicer or the applicable Special Servicer, as the case may be.

 

(g)      The Master Servicers, the Special Servicers, the Certificate Administrator and the Trustee shall be permitted (but not obligated) to orally communicate with the Rating Agencies regarding any of the Mortgage Loan documents and any other matter related to the Mortgage Loans, the related Mortgaged Properties, the related Mortgagors or any other matters relating to this Agreement or related Intercreditor Agreement; provided that such party summarizes the information provided to the Rating Agencies in such communication in writing and provides the 17g-5 Information Provider with such written summary in accordance with the procedures set forth in Section 3.13(c) the same day such communication takes place; provided, further that the summary of such oral communications shall not identify which Rating Agency the communication was with. The 17g-5 Information Provider shall post such written summary on the 17g-5 Information Provider’s Website in accordance with the procedures set forth in Section 3.13(c).

 

(h)       The Special Servicers, subject to the limitations on delivery of Privileged Communications, shall deliver to the Operating Advisor such reports and other information produced or otherwise available to the Directing Certificateholder or the Risk Retention Consultation Party (in each case, other than, prior to the occurrence and continuance of a Control Termination Event, any Asset Status Reports that are not Final Asset Status Reports), or Certificateholders generally, requested by the Operating Advisor in support of the performance of its obligations under this Agreement in electronic format.

 

 -261-

 

 

(i)        None of the foregoing restrictions in this Section 3.13 or otherwise in this Agreement shall prohibit or restrict oral or written communications, or providing information, between the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, on the one hand, and any Rating Agency or NRSRO, on the other hand, with regard to (i) such Rating Agency’s or NRSRO’s review of the ratings it assigns to the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as the case may be, (ii) such Rating Agency’s or NRSRO’s approval of the applicable Master Servicer, the Operating Advisor, the Asset Representations Reviewer or the applicable Special Servicer, as applicable, as a commercial mortgage master, special or primary servicer, or (iii) such Rating Agency’s or NRSRO’s evaluation of the applicable Master Servicer’s, the Operating Advisor, the Asset Representations Reviewer’s or the applicable Special Servicer’s, as the case may be, servicing operations in general; provided that such Master Servicer, the Operating Advisor, the Asset Representations Reviewer or such Special Servicer, as applicable, shall not provide any information relating to the Certificates or the Mortgage Loans, to any Rating Agency or NRSRO in connection with such review and evaluation by such Rating Agency or NRSRO unless (x) Mortgagor, property and other deal specific identifiers are redacted; (y) such information has already been provided to the 17g-5 Information Provider and has been uploaded on to the 17g-5 Information Provider’s Website or (z) the Rating Agency confirms that it does not intend to use such information in undertaking credit rating surveillance with respect to the Certificates; provided, however, that the Rating Agencies may use information delivered under this clause (z) for any purpose to the extent it is publicly available (unless the availability results from a breach of this Agreement) or comprised of information collected by the applicable Rating Agency from the 17g-5 Information Provider’s Website (or another 17g-5 information provider’s website that they have access to) other than pursuant to this Section 3.13(i).

 

(j)        The costs and expenses of compliance with this Section 3.13 by the Depositor, the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and any other party hereto shall not be additional expenses of the Trust, but shall be borne by the applicable party hereto.

 

Section 3.14   Title to REO Property; REO Account. (a) If title to any Mortgaged Property is acquired (directly or through a single member limited liability company established for that purpose) and thus becomes REO Property, the deed or certificate of sale shall be issued in the name of the Trust where permitted by applicable law or regulation and consistent with customary servicing procedures, and otherwise, in the name of the Trustee or its nominee on behalf of the Certificateholders and, if applicable, on behalf of the related Companion Holders, in the case of a Serviced Companion Loan. REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.14. Each Special Servicer, on behalf of the Trust and, if applicable, the related Serviced Companion Noteholder, shall sell any REO Property prior to the close of the third calendar year following the year in which the Trust acquires ownership of such REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless such Special Servicer either (i) applies for a qualifying extension of time no later than sixty (60) days prior to the close of the third calendar year in which it acquired ownership (or the period provided in then-applicable REMIC Provisions) and such extension is granted or is not denied (an “REO Extension”) by the Internal Revenue Service to sell such REO Property or (ii) obtains

 

 -262-

 

 

for the Trustee and the Certificate Administrator an Opinion of Counsel, addressed to the Trustee and the Certificate Administrator, to the effect that the holding by the Trust of such REO Property subsequent to the close of the third calendar year following the year in which acquisition occurred will not cause an Adverse REMIC Event. If the applicable Special Servicer is granted or not denied the REO Extension contemplated by clause (i) of the immediately preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the immediately preceding sentence, such Special Servicer shall sell such REO Property within such longer period as is permitted by such REO Extension or such Opinion of Counsel, as the case may be. Any expense incurred by such Special Servicer in connection with its being granted the REO Extension contemplated by clause (i) of the second preceding sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of the second preceding sentence, shall be an expense of the Trust payable out of the Collection Accounts pursuant to Section 3.05(a).

 

(b)       Each Special Servicer shall segregate and hold all funds collected and received in connection with any REO Property separate and apart from its own funds and general assets. If an REO Acquisition shall occur, the applicable Special Servicer shall establish and maintain one or more REO Accounts, held on behalf of the Trustee for the benefit of the Certificateholders and, if applicable, on behalf of any related Companion Holder(s), as applicable, as their interest shall appear, and the Trustee (as holder of the Lower-Tier Regular Interests), for the retention of revenues and other proceeds derived from each REO Property. The REO Account shall be an Eligible Account. The applicable Special Servicer shall deposit, or cause to be deposited, in the REO Account, within two (2) Business Days after receipt of properly identified funds, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO Property. Funds in the REO Account may be invested in Permitted Investments in accordance with Section 3.06. The applicable Special Servicer shall give notice to the Trustee, the Certificate Administrator, and the applicable Master Servicer of the location of the REO Account when first established and of the new location of the REO Account prior to any change thereof.

 

(c)       The applicable Special Servicer shall withdraw from the REO Account funds necessary for the proper operation, management, insuring, leasing, maintenance and disposition of any REO Property, but only to the extent of amounts on deposit in the REO Account relating to such REO Property. On the later of the date that is (x) on or prior to each Determination Date or (y) two Business Days after such amounts are received and properly identified (or, with respect to a Serviced Companion Loan (and disregarding the foregoing later of clauses (x) and (y)), on the Business Day preceding each Serviced Whole Loan Remittance Date), the applicable Special Servicer shall withdraw from the REO Account and remit to the applicable Master Servicer, which shall deposit into the applicable Collection Account (or the Companion Distribution Account, as applicable), the aggregate of all amounts received in respect of each REO Property during the most recently ended Collection Period, net of (i) any withdrawals made out of such amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on amounts on deposit in the REO Account; provided, however, that such Special Servicer may retain in such REO Account, in accordance with the Servicing Standard, such portion of such balance as may be necessary to maintain a reasonable reserve for repairs, replacements, leasing, management and tenant improvements and other related expenses for the related REO Property. In addition, on or prior to the day the applicable Special Servicer remits funds as provided in this Section 3.14(c), the applicable Special Servicer shall provide the

 

 -263-

 

 

applicable Master Servicer with a written accounting of amounts remitted to such Master Servicer for deposit in the Collection Account, as applicable, on such date. Such Master Servicer shall apply all such amounts as instructed by such Special Servicer on the Determination Date (or with respect to a Serviced Companion Loan, on each Serviced Whole Loan Remittance Date) for the related Distribution Date.

 

(d)      The applicable Special Servicer shall keep and maintain separate records, on a property-by-property basis, for the purpose of accounting for all deposits to, and withdrawals from, the REO Account pursuant to Section 3.14(b) or Section 3.14(c).

 

Section 3.15   Management of REO Property. (a) If title to any REO Property is acquired, the applicable Special Servicer shall manage, conserve, protect, operate and lease such REO Property (other than any Non-Serviced Mortgaged Property) for the benefit of the Certificateholders and the related Companion Holders and the Trustee (as holder of the Lower-Tier Regular Interests) solely for the purpose of its timely disposition and sale in a manner that does not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust or any Serviced Companion Noteholder of any “income from non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the foregoing, however, the applicable Special Servicer shall have full power and authority to do any and all things in connection therewith as are in the best interests of and for the benefit of the Certificateholders (and, in the case of each Serviced Whole Loan, the related Companion Holder(s)) and the Trustee (as holder of the Lower-Tier Regular Interests) all as a collective whole (taking into account the pari passu nature of any Companion Loan, as the case may be) (as determined by the applicable Special Servicer in its reasonable judgment in accordance with the Servicing Standard). Notwithstanding anything to the contrary herein, REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.15. Subject to this Section 3.15, the applicable Special Servicer may allow the Trust or any commercial mortgage securitization that holds any Serviced Companion Loan to earn “net income from foreclosure property” within the meaning of Section 860G(d) of the Code if it determines that earning such income is in the best interests of Certificateholders and, if applicable, any related Companion Holder(s) on a net after-tax basis as compared with net leasing such REO Property or operating such REO Property on a different basis. In connection therewith, the applicable Special Servicer shall deposit or cause to be deposited on a daily basis (and in no event later than two (2) Business Days following receipt of such properly identified funds) in the applicable REO Account all revenues received by it with respect to each REO Property and the related REO Loan, and shall withdraw from the REO Account, to the extent of amounts on deposit therein with respect to such REO Property, funds necessary for the proper operation, management, leasing and maintenance of such REO Property, including, without limitation:

 

(i)        all insurance premiums due and payable in respect of such REO Property;

 

(ii)       all real estate taxes and assessments in respect of such REO Property that may result in the imposition of a lien thereon;

 

(iii)      any ground rents in respect of such REO Property, if applicable; and

 

 -264-

 

 

(iv)      all costs and expenses necessary to maintain and lease such REO Property.

 

To the extent that amounts on deposit in the REO Account in respect of any REO Property are insufficient for the purposes set forth in clauses (i) through (iv) above with respect to such REO Property, the applicable Master Servicer (subject to receiving notice from the applicable Special Servicer in accordance with the procedures set forth elsewhere in this Agreement) shall advance from its own funds such amount as is necessary for such purposes unless (as evidenced by an Officer’s Certificate delivered to the Trustee, the applicable Special Servicer, the Depositor, the Certificate Administrator and the Directing Certificateholder (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder, and prior to the occurrence and continuance of a Consultation Termination Event)) such advances would, if made, constitute Nonrecoverable Servicing Advances.

 

(b)       Without limiting the generality of the foregoing, no Special Servicer shall:

 

(i)        permit the Trust to enter into, renew or extend any New Lease with respect to any REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;

 

(ii)       permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;

 

(iii)      authorize or permit any construction on any REO Property, other than the completion of a building or other improvement thereon, and then only if more than 10% of the construction of such building or other improvement was completed before default on the related Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or

 

(iv)      Directly Operate, or allow any other Person, other than an Independent Contractor, to Directly Operate, any REO Property on any date more than ninety (90) days after its acquisition date;

 

unless, in any such case, the applicable Special Servicer has obtained an Opinion of Counsel (the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance) to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code at any time that it is held for the benefit of the Trust, in which case the applicable Special Servicer may take such actions as are specified in such Opinion of Counsel.

 

(c)       Each Special Servicer shall contract with any Independent Contractor for the operation and management of any REO Property within ninety (90) days of the acquisition date thereof, provided that:

 

(i)       the terms and conditions of any such contract may not be inconsistent herewith and shall reflect an agreement reached at arm’s length;

 

 -265-

 

 

(ii)       the fees of such Independent Contractor (which shall be an expense of the Trust) shall be reasonable and customary in light of the nature and locality of the Mortgaged Property;

 

(iii)      any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such REO Property, including, without limitation, those listed in subsection (a) hereof, and (B) remit all related revenues collected (net of its fees and such costs and expenses) to the applicable Special Servicer upon receipt;

 

(iv)      none of the provisions of this Section 3.15(c) relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the applicable Special Servicer of any of its duties and obligations hereunder with respect to the operation and management of any such REO Property; and

 

(v)       each Special Servicer shall be obligated to manage and supervise such Independent Contractor in accordance with the Servicing Standard.

 

Each Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for it related to its duties and obligations hereunder for indemnification of the applicable Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.

 

(d)      When and as necessary, each Special Servicer shall send to the Trustee, the Certificate Administrator and the applicable Master Servicer a statement prepared by such Special Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting Rents from Real Property in respect of, any REO Property in accordance with Section 3.15(a) and Section 3.15(b).

 

Section 3.16   Sale of Defaulted Loans and REO Properties. (a) (i) Within thirty (30) days after a Defaulted Loan has become a Specially Serviced Loan, the applicable Special Servicer shall order (but shall not be required to have received) an Appraisal and within thirty (30) days of receipt of the Appraisal shall determine the fair value of such Defaulted Loan in accordance with the Servicing Standard; provided, however, that if the applicable Special Servicer is then in the process of obtaining an Appraisal with respect to the related Mortgaged Property, such Special Servicer shall make its fair value determination as soon as reasonably practicable (but in any event within thirty (30) days) after its receipt of such an Appraisal. The applicable Special Servicer may, from time to time, adjust its fair value determination based upon changed circumstances, new information and other relevant factors, in each instance in accordance with a review of such circumstances and new information in accordance with the Servicing Standard including, without limitation, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy; provided that the applicable Special Servicer shall promptly notify the applicable Master Servicer in writing of the initial fair value determination and any adjustment to its fair value determination.

 

 -266-

 

 

(ii)       If any Mortgage Loan or Serviced Companion Loan subject to an Intercreditor Agreement is a Specially Serviced Loan or to the extent otherwise required pursuant to the terms of the related Intercreditor Agreement, then the applicable Special Servicer (with respect to a Specially Serviced Loan) or the applicable Master Servicer (with respect to a Non-Specially Serviced Loan) shall promptly notify in writing the other, any related Companion Holder and any related mezzanine lender, as applicable, of any events requiring notice under the Intercreditor Agreement in accordance with the terms thereof. Thereafter, any related Companion Holder and related mezzanine lender, as applicable, will, notwithstanding anything in this Section 3.16 to the contrary, have the option to purchase the related Mortgage Loan and cure defaults relating thereto as and to the extent set forth in the related Intercreditor Agreement.

 

(iii)      If any Mortgage Loan not subject to an Intercreditor Agreement becomes a Specially Serviced Loan, or if the related Companion Holder or related mezzanine lender, as applicable, for any such Mortgage Loan subject to an Intercreditor Agreement has not previously exercised the option to purchase the Mortgage Loan pursuant to the previous paragraph, the applicable Special Servicer shall use reasonable efforts to solicit offers for each Defaulted Loan on behalf of the Certificateholders and the holder of any related Serviced Companion Loan in such manner as will be reasonably likely to maximize the value of the Defaulted Loan on a net present value basis, if and when the applicable Special Servicer determines, consistent with the Servicing Standard, that no satisfactory arrangements (including by way of a discounted pay-off) can be made for collection of delinquent payments thereon and such a sale would be in the best economic interests of the Trust and, if applicable, the related Companion Holder. In the case of a Non-Serviced Mortgage Loan, to the extent permitted under the related Intercreditor Agreement, and such Non-Serviced Mortgage Loan is not sold together with the Non-Serviced Companion Loan by the Non-Serviced Special Servicer, the applicable Special Servicer will be entitled to sell ((i) with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing and (ii) after consulting with the Risk Retention Consultation Party pursuant to Section 6.08(a), in each case, provided such Non-Serviced Mortgage Loan is not an Excluded Loan as to such party) such Non-Serviced Mortgage Loan if it determines in accordance with the Servicing Standard that such action would be in the best interests of the Certificateholders and, subject to the terms of the related Intercreditor Agreement (and provided that the related Non-Serviced Special Servicer will not be entitled to a liquidation fee), the applicable Special Servicer will be entitled to the liquidation fee that the related Non-Serviced Special Servicer would have otherwise been entitled to in connection with the sale of such Non-Serviced Mortgage Loan. Each Special Servicer is required to give the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor and the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, other than in respect of any Excluded Loan as to such party) not less than ten (10) days’ prior written notice of its intention to sell any Defaulted Loan. In the absence of a cash offer at least equal to the Purchase Price, the applicable Special Servicer may purchase the Defaulted Loan for the Purchase Price or may accept the first cash offer received from any Person that constitutes a fair price for the Defaulted Loan.

 

 -267-

 

 

(iv)      (A) In the case of a Specially Serviced Loan as to which a default has occurred and is continuing, in the absence of any offer at least equal to the Purchase Price pursuant to clause (iii) above (or purchase by the applicable Special Servicer for such price), the applicable Special Servicer shall solicit offers and, subject to sub-clause (B) below, accept the highest offer received from any Person that is determined by such Special Servicer to be a fair price for such Specially Serviced Loan, if the offeror is a Person other than an Interested Person. In determining whether any offer from a Person other than an Interested Person constitutes a fair price for any Defaulted Loan, the applicable Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative appraisal that it may have obtained pursuant to this Agreement within the prior 9 months), among other factors, the period and amount of the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. If the offeror is an Interested Person (provided that the Trustee may not be an offeror), the Trustee shall determine whether the offer constitutes a fair price unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (x) it is the highest offer received and (y) at least two other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for any such Defaulted Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the applicable Master Servicer.

 

Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee must (at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan or Serviced Whole Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan or Serviced Whole Loan. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable by, the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. The applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. Neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any Specially Serviced Loan.

 

 -268-

 

 

(B)      The applicable Special Servicer will not be obligated to accept the highest offer if the applicable Special Servicer determines (in consultation with the Directing Certificateholder and the Risk Retention Consultation Party, subject to the limitations on consultation set forth in and in accordance with Section 6.08(b) (in each case, unless a Consultation Termination Event shall have occurred and be continuing and other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) and, in the case of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder), in accordance with the Servicing Standard (and subject to the requirements of any related Intercreditor Agreement), that the rejection of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender). In addition, the applicable Special Servicer may accept a lower offer from any Person other than an Affiliate of such Special Servicer if it determines, in accordance with the Servicing Standard, that the acceptance of such offer would be in the best interests of the Holders of Certificates and, in the case of a sale of a Serviced Whole Loan or an REO Property related to a Serviced Whole Loan, the related Companion Holder (as a collective whole, as if such Certificateholders and, if applicable, the related Companion Holder constituted a single lender) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer. The applicable Special Servicer shall use reasonable efforts to sell all Defaulted Loans prior to the Rated Final Distribution Date. For the avoidance of doubt, the Trustee shall have no obligation to make any fair value determination, to the extent required to do so pursuant to this Section 3.16, on the basis of anything other than the related Appraisal.

 

(v)       Unless and until any Specially Serviced Loan is sold pursuant to this Section 3.16(a), the applicable Special Servicer shall pursue such other resolution strategies with respect to such Specially Serviced Loan, including, without limitation, workout and foreclosure, as the applicable Special Servicer may deem appropriate, consistent with the Asset Status Report and the Servicing Standard and the REMIC Provisions.

 

(b)       (i) The applicable Special Servicer may purchase any REO Property at the Purchase Price therefor (in the case of a Serviced Whole Loan, such purchase shall be a purchase of the entire REO Property, including the portion relating to the related Companion Loan). The applicable Special Servicer may also offer to sell to any Person any REO Property (in the case of a Serviced Whole Loan, such sale shall be a sale of the entire REO Property, including the portion relating to the related Companion Loan), if and when the applicable Special Servicer determines, consistent with the Servicing Standard, that such a sale would be in the best economic interest of the Trust and the related Companion Holders. Each Special Servicer shall give the Trustee, the applicable Master Servicer, each Companion Holder, the Certificate

 

 -269-

 

 

Administrator, the Directing Certificateholder and the Risk Retention Consultation Party ((A) in the case of the Directing Certificateholder and the Risk Retention Consultation Party, in respect of any Mortgage Loan other than an Excluded Loan as to such party and (B) in the case of the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event) not less than ten (10) days’ prior written notice of the Purchase Price and its intention to (i) purchase any REO Property at the Purchase Price therefor or (ii) sell any REO Property, in which case such Special Servicer shall accept the highest offer received from any Person for any REO Property in an amount at least equal to the Purchase Price therefor. To the extent permitted by applicable law, and subject to the Servicing Standard, the applicable Master Servicer, an Affiliate of the applicable Master Servicer, the applicable Special Servicer or an Affiliate of such Special Servicer, or an employee of either of them may act as broker in connection with the sale of any REO Property and may retain from the proceeds of such sale a brokerage commission that does not exceed the commission that would have been earned by an independent broker pursuant to a brokerage agreement entered into at arm’s length.

 

(ii)       In the absence of any such offer as set forth in sub-clause (A) above, the applicable Special Servicer shall, subject to sub-clause (C) below, accept the highest offer for such REO Property received from any Person that is determined to be a fair price (1) by such Special Servicer, if the highest offeror is a Person other than an Interested Person, or (2) by the Trustee, if the highest offeror is an Interested Person unless such offer by an Interested Person (i) is equal to or greater than the applicable Purchase Price and (ii) is the highest offer received; provided, however, that absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (A) it is the highest offer received and (B) at least two other offers are received from independent third parties. Notwithstanding anything to the contrary herein, neither the Trustee, in its individual capacity, nor any of its Affiliates may make an offer for or purchase any REO Property pursuant hereto.

 

(iii)      The Special Servicers shall not be obligated by either of the foregoing paragraphs or otherwise to accept the highest offer if such Special Servicer determines, in accordance with the Servicing Standard, that rejection of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the pari passu nature of any Serviced Companion Loans). In addition, such Special Servicer may accept a lower offer if it determines, in accordance with the Servicing Standard, that acceptance of such offer would be in the best interests of the Certificateholders and, with respect to any Serviced Whole Loan, the related Companion Holder, and in either case, as a collective whole (taking into account the pari passu nature of any Serviced Companion Loans) (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable); provided that the offeror is not the applicable Special Servicer or a Person that is an Affiliate of such Special Servicer.

 

(iv)      In determining whether any offer received from an Interested Person represents a fair price for any REO Property, the Trustee shall obtain and may conclusively rely on the opinion of an Independent appraiser or other Independent expert

 

 -270-

 

 

in real estate matters retained by the Trustee in connection with making such determination. The reasonable cost of such Independent appraiser or other Independent expert shall be an expense of the offering Interested Person purchaser. The reasonable fees and costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person. In determining whether any offer constitutes a fair price for any REO Property, the applicable Special Servicer or the Trustee (or, if applicable, such appraiser) shall take into account, and any appraiser or other expert in real estate matters shall be instructed to take into account, as applicable, among other factors, the physical condition of such REO Property, the state of the local economy and the Trust’s obligation to comply with REMIC Provisions.

 

(v)      Subject to the Servicing Standard, the applicable Special Servicer shall act on behalf of the Trust and the related Companion Holders in negotiating and taking any other action necessary or appropriate in connection with the sale of any REO Property, including the collection of all amounts payable in connection therewith. A sale of any REO Property shall be without recourse to, or representation or warranty by, the Trustee, the Depositor, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Operating Advisor or the Trust (except that any contract of sale and assignment and conveyance documents may contain customary warranties of title, so long as the only recourse for breach thereof is to the Trust) and, if consummated in accordance with the terms of this Agreement, none of the Master Servicers, the Special Servicers, the Depositor, the Certificate Administrator, the Operating Advisor or the Trustee shall have any liability to the Trust or any Certificateholder or related Companion Holder (if applicable) with respect to the purchase price therefor accepted by the applicable Special Servicer or the Trustee.

 

(c)     Any sale of a Defaulted Loan or any REO Property shall be for cash only (unless changes in the REMIC Provisions or authoritative interpretations thereof made or issued subsequent to the Startup Day allow a sale for other consideration).

 

(d)      With respect to each Serviced Pari Passu Whole Loan, pursuant to the terms of the related Intercreditor Agreement and this Agreement, if the related Serviced Pari Passu Whole Loan becomes a Defaulted Loan, and if the applicable Special Servicer determines to sell the related Mortgage Loan that has become a Defaulted Loan in accordance with this Section 3.16, then the applicable Special Servicer shall sell the related Serviced Pari Passu Companion Loan together with such Mortgage Loan as one whole loan and shall require that all offers be submitted to such Special Servicer in writing. To the extent a determination is required to be made hereunder as to whether any cash offer constitutes a fair price for a Serviced Whole Loan, such determination shall be made by the applicable Special Servicer unless the offeror is an Interested Person and by the Trustee if the offeror is an Interested Person and the offer is less

 

 -271-

 

 

than the Purchase Price. Notwithstanding the foregoing, the applicable Special Servicer will not be permitted to sell the related Mortgage Loan together with the related Serviced Pari Passu Companion Loan(s) if it becomes a defaulted Whole Loan without the written consent of the holder of the related Serviced Pari Passu Companion Loan (provided that such consent is not required if the holder of the Serviced Pari Passu Companion Loan is the Mortgagor or an Affiliate of the Mortgagor) unless the applicable Special Servicer has delivered to the holder of the related Serviced Pari Passu Companion Loan: (a) at least fifteen (15) Business Days prior written notice of any decision to attempt to sell such Serviced Whole Loan; (b) at least ten (10) days prior to the permitted sale date, a copy of each bid package (together with any amendments to such bid packages) received by the applicable Special Servicer in connection with any such proposed sale; (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for such Serviced Pari Passu Whole Loan, and any documents in the servicing file reasonably requested by the holder of the related Serviced Pari Passu Companion Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Directing Certificateholder and the Risk Retention Consultation Party) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the applicable Master Servicer or the applicable Special Servicer in connection with the proposed sale. The holder of the related Serviced Pari Passu Companion Loan (or its representative) will be permitted to submit an offer at any sale of such Whole Loan; however, the related Mortgagor and its agents and Affiliates shall not be permitted to submit an offer at such sale. Notwithstanding the foregoing, with respect to each Serviced Whole Loan, the holder of the related Companion Loan may waive any of the delivery or timing requirements set forth in this paragraph with respect to the related Whole Loan. If the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the subject Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for such Mortgage Loan. The Trustee shall act in a commercially reasonable manner in making such determination. If the Trustee designates such a third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person and the applicable Special Servicer shall use efforts consistent with the Servicing Standard to collect payment from such Interested Person. If such expense is not paid by the applicable Interested Person within thirty (30) days of demand for payment, such expense shall be reimbursable to the Trustee by the applicable Master Servicer as a Servicing Advance but the applicable Special Servicer shall continue to use efforts consistent with the Servicing Standard to collect such amounts from the applicable Interested Person.

 

(e)       (i) Notwithstanding anything in this Section 3.16 to the contrary, with respect to each Serviced AB Whole Loan, pursuant to the terms of the related Intercreditor Agreement, the related Subordinate Companion Holder will have the right to purchase the related Mortgage Loan or related REO Property, as applicable. Such right of such Subordinate Companion Holder shall be given priority over any provision described in this Section 3.16 as and to the extent set forth in the related Intercreditor Agreement. If the related Mortgage Loan or

 

 -272-

 

 

related REO Property is purchased by such Subordinate Companion Holder, repurchased by the applicable Mortgage Loan Seller or otherwise ceases to be subject to this Agreement, the related AB Subordinate Companion Loan will no longer be subject to this Agreement.

 

(ii)      Notwithstanding anything in this Section 3.16 to the contrary, any mezzanine lender will have the right to purchase the related Mortgage Loan or REO Property, as applicable, and cure defaults relating thereto, as and to the extent set forth in the related Intercreditor Agreement.

 

(f)       Unless otherwise provided in an Intercreditor Agreement the sale of any Mortgage Loan pursuant to this Section 3.16 will be on a servicing released basis.

 

(g)      In the event the applicable Master Servicer or the applicable Special Servicer has the right to purchase any Companion Loan on behalf of the Trust pursuant to the related Intercreditor Agreement, neither such Master Servicer nor such Special Servicer shall exercise such right.

 

Section 3.17   Additional Obligations of Master Servicers and Special Servicers. (a) Each Master Servicer shall deliver all Compensating Interest Payments with respect to the Mortgage Loans for which it acts as Master Servicer (other than the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan) to the Certificate Administrator for deposit in the Lower-Tier REMIC Distribution Account on each P&I Advance Date, without any right of reimbursement therefor. Each Master Servicer shall deliver the portion of any Compensating Interest Payment allocated to a Serviced Pari Passu Companion Loan to the Companion Paying Agent for deposit in the Companion Distribution Account on each P&I Advance Date, without any right of reimbursement therefor.

 

(b)       Each Master Servicer or each Special Servicer, as applicable, shall provide to each applicable Companion Holder any reports or notices required to be delivered to such Companion Holder pursuant to the related Intercreditor Agreement.

 

(c)     Upon the determination that a previously made Advance is a Nonrecoverable Advance, to the extent that the reimbursement thereof would exceed the full amount of the principal portion of general collections on the Mortgage Loans deposited in the Collection Accounts and available for distribution on the next Distribution Date, the applicable Master Servicer or the Trustee, each at its own option and in its sole discretion, as applicable, instead of obtaining reimbursement for the remaining amount of such Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to refrain from obtaining such reimbursement for such portion of the Nonrecoverable Advance during the one month collection period ending on then-current Determination Date, for successive one-month periods for a total period not to exceed twelve (12) months (provided that, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, any such deferral exceeding six (6) months shall require, prior to the occurrence and continuance of any Control Termination Event, the consent of the Directing Certificateholder), and any election to so defer or not to defer shall be deemed to be in accordance with the Servicing Standard. If the applicable Master Servicer or the Trustee makes such an election at its sole option and in its sole discretion to defer reimbursement

 

 -273-

 

 

with respect to all or a portion of a Nonrecoverable Advance (together with interest thereon), then such Nonrecoverable Advance (together with interest thereon) or portion thereof shall continue to be fully reimbursable in the subsequent collection period (subject, again, to the same sole option to defer; it is acknowledged that, in such a subsequent period, such Nonrecoverable Advance shall again be payable first from principal collections as described above prior to payment from other collections). In connection with a potential election by the applicable Master Servicer or the Trustee to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the applicable Master Servicer or the Trustee shall further be authorized to wait for principal collections on the Mortgage Loans serviced by such Master Servicer to be received until the end of such Collection Period before making its determination of whether to refrain from the reimbursement of a particular Nonrecoverable Advance or portion thereof; provided, however, that if, at any time the applicable Master Servicer or the Trustee, as applicable, elects, in its sole discretion, not to refrain from obtaining such reimbursement or otherwise determines that the reimbursement of a Nonrecoverable Advance during a Collection Period will exceed the full amount of the principal portion of general collections on or in respect of Mortgage Loans deposited in the applicable Collection Account for such Distribution Date, then such Master Servicer or the Trustee, as applicable, shall use its reasonable efforts to give the 17g-5 Information Provider fifteen (15) days’ notice of such determination for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), unless extraordinary circumstances make such notice impractical, which shall mean that (i) the applicable Master Servicer or the Trustee, as the case may be, determines in its sole discretion that waiting fifteen (15) days after such a notice could jeopardize its ability to recover such Nonrecoverable Advance, (ii) changed circumstances or new or different information becomes known to the applicable Master Servicer or the Trustee, as the case may be, that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance or whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (i) above, or (iii) in the case of a Master Servicer, it has not timely received from the Trustee information required by such Master Servicer to determine whether to defer reimbursement for a Nonrecoverable Advance. If any of the circumstances described in clause (i), (ii) or (iii) of the foregoing sentence apply, the applicable Master Servicer or Trustee, as applicable, shall give the 17g-5 Information Provider a notice for posting of the anticipated reimbursement as soon as reasonably practicable. Notwithstanding the foregoing, failure to give notice as required by the preceding or second preceding sentence shall in no way affect the applicable Master Servicer’s or the Trustee’s election whether to refrain from obtaining such reimbursement or right to obtain such reimbursement as described in this Section 3.17(c). Nothing herein shall give the applicable Master Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable Advance to the extent of any principal collections then available in the applicable Collection Account pursuant to Section 3.05(a)(v). The applicable Master Servicer or the Trustee, as the case may be, shall have no liability for any loss, liability or expenses resulting from any notice provided to the Rating Agencies contemplated by this Section 3.17(c).

 

The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this Section 3.17(c) or to comply with the terms of this Section 3.17(c) and the other provisions of this Agreement that apply once such an election, if any, has been made; provided, however, that the fact that a decision to recover such

 

 -274-

 

 

Nonrecoverable Advances over time, or not to do so, benefits some classes of Certificateholders to the detriment of other classes shall not, with respect to the applicable Master Servicer or the applicable Special Servicer, as applicable, constitute a violation of the Servicing Standard and/or with respect to the Trustee (solely in its capacity as Trustee), constitute a violation of any fiduciary duty to Certificateholders or any contractual obligation hereunder. If the applicable Master Servicer or the Trustee, as the case may be, determines, in its sole discretion, to fully recover the Nonrecoverable Advances immediately instead of deferring such reimbursement, then such Master Servicer or the Trustee, as applicable, shall be entitled to immediate reimbursement of Nonrecoverable Advances with interest thereon at the Reimbursement Rate from all amounts in the applicable Collection Account for such Distribution Date (deemed first from principal and then interest). Any such election by any such party to refrain from reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or portion thereof with respect to any one or more collection periods shall not limit the accrual of interest at the Reimbursement Rate on such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance. The applicable Master Servicer’s or the Trustee’s, as the case may be, agreement to defer reimbursement of such Nonrecoverable Advances as set forth above is an accommodation to the Certificateholders and shall not be construed as an obligation on the part of such Master Servicer or the Trustee, as applicable, or a right of the Certificateholders. Nothing herein shall be deemed to create in the Certificateholders a right to prior payment of distributions over such Master Servicer’s or the Trustee’s, as applicable, right to reimbursement for Advances (deferred or otherwise) and accrued interest thereon. In all events, the decision to defer reimbursement or to seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be in accordance with the Servicing Standard and none of the applicable Master Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders or any of the Companion Holders for any such election that such party makes as contemplated by this Section 3.17(c) or for any losses, damages or other adverse economic or other effects that may arise from such an election, nor shall such election constitute a violation of the Servicing Standard or any duty under this Agreement. Neither the applicable Master Servicer nor the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this Section 3.17(c).

 

No determination by a Master Servicer (or the Trustee, as applicable) to exercise its sole option to defer the reimbursement of Advances and/or interest thereon under this section shall be construed as an agreement by the applicable Master Servicer (or the Trustee, as applicable) to subordinate (in respect of realizing losses), to any Class of Certificates, such party’s right to such reimbursement during such period of deferral.

 

With respect to any modification or amendment of any Intercreditor Agreement related to a Serviced Whole Loan (to the extent received), the applicable Master Servicer or the applicable Special Servicer, as applicable, shall provide to the 17g-5 Information Provider a copy of any such modification or amendment, which the 17g-5 Information Provider shall promptly post on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

(d)      With respect to any Mortgage Loan (or Serviced Whole Loan), if the related loan documents permit the lender to (but do not require the lender to), at its option, prior to an event of default under the related Mortgage Loan (or Serviced Whole Loan), apply amounts 

 

 -275-

 

 

held in any reserve account as a prepayment or hold such amounts in a reserve account, the applicable Master Servicer or the applicable Special Servicer, as the case may be, may not apply such amounts as a prepayment, and will instead continue to hold such amounts in the applicable reserve account, unless not applying those amounts as a prepayment would be a violation of the Servicing Standard. Such amount may be used, if permitted under the loan documents, to defease the loan, or may be used to prepay the Mortgage Loan (or Serviced Whole Loan), or for other purpose consistent with the Servicing Standard and the loan documents, upon a subsequent default.

 

(e)       Within one (1) Business Day after the execution of any amendment or modification of any Intercreditor Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall provide to the Certificate Administrator a copy of any such modification or amendment of any Intercreditor Agreement, and such amendment or modification shall be a Reportable Event.

 

Section 3.18   Modifications, Waivers, Amendments and Consents.  (a) The applicable Special Servicer shall process waivers, modifications, amendments and consents with respect to Specially Serviced Loans and all such matters that involve a Major Decision for all Mortgage Loans (and any related Serviced Companion Loan) that are Non-Specially Serviced Loans, and the applicable Master Servicer shall process waivers, modifications, amendments and consents with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) and any related Serviced Companion Loan that, in either case, is not a Specially Serviced Loan and does not involve a Major Decision. The applicable Master Servicer and applicable Special Servicer may mutually agree that a modification, waiver, amendment or consent that constitutes a Major Decision shall be processed by the applicable Master Servicer, subject to the applicable Special Servicer’s consent. Except as set forth in Section 3.08(a), Section 3.08(b), this Section 3.18(a), Section 3.18(d), Section 3.18(h), Section 3.18(i), Section 3.18(m) and Section 6.08, but subject to any other conditions set forth thereunder and, with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or any Serviced Whole Loan (and with respect to any Serviced Whole Loan, subject to the rights of the related Companion Holder, as applicable, to advise or consult with the applicable Master Servicer or applicable Special Servicer with respect to, or to consent to, a modification, waiver or amendment, in each case, pursuant to the terms of the related Intercreditor Agreement), the applicable Special Servicer shall not modify, waive or amend the terms of a Mortgage Loan and/or related Companion Loan (and the applicable Special Servicer shall not consent to any such modification, waiver or amendment by the applicable Master Servicer) that would constitute a Major Decision without (x) (i) prior to the occurrence of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the consent (or deemed consent) of the Directing Certificateholder having been obtained by the applicable Special Servicer to the extent required by, and pursuant to the process described under, Section 6.08(a) or (y) (i) after the occurrence and during the continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder, but prior to the occurrence and continuance of a Consultation Termination Event, the applicable Special Servicer having consulted with the Directing Certificateholder if and to the extent required pursuant to Section 6.08(a); and provided, further, that no extension entered into pursuant to this Section 3.18(a) shall extend the Maturity Date beyond the earlier of (i) five (5) years prior to the Rated Final Distribution Date and (ii) in the case of a Mortgage Loan secured

 

 -276-

 

 

solely or primarily by a leasehold estate and not also the related fee interest, the date twenty (20) years or, to the extent consistent with the Servicing Standard giving due consideration to the remaining term of the Ground Lease, ten (10) years, prior to the expiration of such leasehold estate. If such extension would extend the Maturity Date of such Mortgage Loan and/or related Companion Loan for more than twelve (12) months from and after the original Maturity Date of such Mortgage Loan and/or related Companion Loan and such Mortgage Loan and/or related Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, prior to any such extension, (1) the applicable Special Servicer shall provide the Trustee, the Certificate Administrator, the applicable Master Servicer, the Operating Advisor, the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder and the Risk Retention Consultation Party, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party), with an Opinion of Counsel (at the expense of the related Mortgagor to the extent permitted under the Mortgage Loan documents and, if not required or permitted to be paid by the Mortgagor, to be paid as an expense of the Trust in accordance with Section 3.11(d)) that such extension would not constitute a “significant modification” of the Mortgage Loan and/or Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (2) subject to the Servicing Standard, (x) prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the applicable Special Servicer shall obtain the consent (or deemed consent) of the Directing Certificateholder, (y) after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, consult with the Directing Certificateholder and (z) (i) prior to the occurrence and continuance of a Consultation Termination Event, with respect to any Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party and (ii) after the occurrence and during the continuance of a Consultation Termination Event, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, consult with the Risk Retention Consultation Party, in each case, pursuant to the process described in Section 6.08(a).

 

Notwithstanding the foregoing, subject to the rights of the related Companion Holder to advise the applicable Master Servicer with respect to, or consent to, such modification, waiver or amendment pursuant to the terms of the related Intercreditor Agreement, the applicable Master Servicer, with respect to Non-Specially Serviced Loans, without the consent of the applicable Special Servicer or the Directing Certificateholder, may modify or amend the terms of any Non-Specially Serviced Loan and/or related Serviced Companion Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error; provided that, if the Mortgage Loan (other than any Non-Serviced Mortgage Loan) and/or related Serviced Companion Loan is not in default or default with respect thereto is not reasonably foreseeable, such modification or amendment would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

 

Any fees or other charges charged by the applicable Special Servicer in connection with processing any Payment Accommodation with respect to any Mortgage Loan or

 

 -277-

 

 

Serviced Whole Loan (in the aggregate with each other such Payment Accommodation with respect to such Mortgage Loan or Serviced Whole Loan), in each case as a result of the COVID-19 emergency, shall not exceed an amount equal to 0.30% of the Stated Principal Balance of such Mortgage Loan or Serviced Whole Loan (“COVID Forbearance Fees”) (excluding attorneys’ fees and third party expenses) and shall only be borne by the borrower, not the Trust.

 

Subject to Section 6.08, applicable law and the Mortgage Loan and/or related Serviced Companion Loan documents, neither the applicable Master Servicer nor the applicable Special Servicer shall permit the substitution of any Mortgaged Property (or any portion thereof) for one or more other parcels of real property at any time the Mortgage Loan and/or related Serviced Companion Loan is not in default pursuant to the terms of the related Mortgage Loan and/or related Serviced Companion Loan documents or default with respect thereto is not reasonably foreseeable unless (i) the applicable Master Servicer or the applicable Special Servicer, as the case may be, obtains Rating Agency Confirmation from each Rating Agency (and delivers such Rating Agency Confirmation to the Directing Certificateholder and the Risk Retention Consultation Party, if permitted by the applicable Rating Agency) and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (ii) such substitution would not be a “significant modification” of the Mortgage Loan and/or related Serviced Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event (and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may obtain and rely upon an Opinion of Counsel (at the expense of the related Mortgagor if not prohibited by the terms of the related Mortgage Loan documents, and if so prohibited, at the expense of the Trust) with respect thereto).

 

Upon receiving a request for any matter described in this Section 3.18(a) that constitutes a Major Decision with respect to a Mortgage Loan that is a Non-Specially Serviced Loan, the applicable Master Servicer shall forward such request to the applicable Special Servicer and, unless the applicable Master Servicer and the applicable Special Servicer mutually agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and, except as provided in the next sentence, such Master Servicer shall have no further obligation with respect to such request or the Major Decision. With respect to such request, the applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in the applicable Master Servicer’s possession to the applicable Special Servicer requested by the applicable Special Servicer relating to such Major Decision. The applicable Master Servicer shall not be required to interface with the Mortgagor or provide a written recommendation and/or analysis with respect to any Major Decision. If the applicable Master Servicer and the applicable Special Servicer mutually agree that such Master Servicer will (subject to the consent (or deemed consent) of such Special Servicer) process a request with respect to a Major Decision and such Master Servicer is recommending approval of such request, such Master Servicer will prepare and submit its written analysis and recommendation to such Special Servicer with all information in the possession of such Master Servicer that such Special Servicer may reasonably request in order to withhold or grant its consent, and in all cases such

 

 -278-

 

 

Special Servicer will be entitled (subject to any applicable consultation rights of the Operating Advisor or any applicable consent or consultation rights of the Directing Certificateholder or any applicable consultation rights of any related Companion Holders) to approve or disapprove any modification, waiver, amendment or other action that constitutes a Major Decision. In addition, the applicable Master Servicer shall provide the applicable Special Servicer with any notice that it receives relating to a default by the Mortgagor under a Ground Lease where the collateral for the Mortgage Loan is the Ground Lease, and such Special Servicer will determine in accordance with the Servicing Standard whether the Trust as lender should cure any Mortgagor defaults relating to Ground Leases. Any costs relating to any such cure of a Mortgagor default relating to a Ground Lease shall be paid by the applicable Master Servicer as a Servicing Advance.

 

Neither the applicable Master Servicer nor the applicable Special Servicer shall enter into, or structure (including, without limitation, by way of the application of credits, discounts, forgiveness or otherwise), any modification, waiver, amendment, work-out, consent or approval with respect to a Mortgage Loan in a manner that would have the effect of placing amounts payable as compensation, or otherwise reimbursable, to such Master Servicer or Special Servicer in a higher priority than the allocation and payment priorities set forth in Section 3.02(b) or in the related Intercreditor Agreement.

 

(b)       If the applicable Special Servicer determines that a modification, waiver or amendment (including, without limitation, the forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the Mortgage Loan (other than any Non-Serviced Mortgage Loan) and/or related Serviced Companion Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Specially Serviced Loan with respect to which a payment default or other material default has occurred or a payment default or other material default is, in the applicable Special Servicer’s judgment, reasonably foreseeable (as evidenced by an Officer’s Certificate of such Special Servicer), is reasonably likely to produce a greater (or equivalent) recovery on a net present value basis (the relevant discounting to be performed at the related Mortgage Rate) to the Trust and, if applicable, the Companion Holders, as the holders of the related Serviced Companion Loan, than liquidation of such Specially Serviced Loan, then the applicable Special Servicer may agree to a modification, waiver or amendment of such Specially Serviced Loan, subject to (w) the provisions of this Section 3.18(b) and Section 3.18(c), (x) (a) the approval of the Directing Certificateholder with respect to any Major Decision, with respect to any Mortgage Loan other than any Excluded Loan as to such party (prior to the occurrence and continuance of a Control Termination Event or after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, upon consultation with the Directing Certificateholder) as provided in Section 6.08, and (b) with respect to any Major Decision in respect of a Specially Serviced Loan other than an Excluded Loan with respect to the Risk Retention Consultation Party, upon consultation with the Risk Retention Consultation Party as provided in Section 6.08, and (y) with respect to any Serviced AB Whole Loan, any rights of the related Subordinate Companion Holder to consent to such modification, waiver or amendment and (z) additionally, with respect to a Serviced Whole Loan, the rights of the related Serviced Companion Noteholder or with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) with mezzanine debt, the rights of the related mezzanine lender, to advise or consult with the applicable Special Servicer with respect to, or consent to, such modification, waiver or amendment, in each case, pursuant to the terms of the

 

 -279-

 

 

related Intercreditor Agreement; provided that with respect to any Serviced AB Whole Loan, prior to the occurrence and continuance of a related AB Control Appraisal Period, the related Serviced AB Whole Loan Controlling Holder will be required to the extent set forth in the related Intercreditor Agreement and the Directing Certificateholder shall have no consent or consultation rights, and the Risk Retention Consultation Party shall have no consultation rights, regarding the matter; provided, further, that in the case of any release or substitution of collateral (other than a defeasance), the applicable Special Servicer shall have obtained an Opinion of Counsel that such release or substitution would not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) or otherwise cause an Adverse REMIC Event. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

In connection with (i) the release of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property from the lien of the related Mortgage or (ii) the taking of a Mortgaged Property (other than any Non-Serviced Mortgaged Property), or any portion of such Mortgaged Property by exercise of the power of eminent domain or condemnation, if the related Mortgage Loan documents require the applicable Master Servicer or the applicable Special Servicer, as the case may be, to calculate (or to approve the calculation of the related Mortgagor of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation shall, unless then permitted by the REMIC Provisions, exclude the value of personal property and going concern value, if any, as determined by an appropriate third party.

 

If, following any such release or taking, the loan-to-value ratio as calculated is greater than 125%, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall require payment of principal by a “qualified amount” as determined under Revenue Procedure 2010-30 or successor provisions, unless the related Mortgagor provides an Opinion of Counsel that if such amount is not paid, the related Mortgage Loan will not fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code.

 

The applicable Special Servicer shall use its reasonable efforts to the extent possible to cause each Specially Serviced Loan to fully amortize prior to the Rated Final Distribution Date and shall not agree to a modification, waiver or amendment of any term of any Specially Serviced Loan for which it is acting as special servicer if such modification, waiver or amendment would (1) extend the maturity date of any such Specially Serviced Loan to a date occurring later than the earlier of (a) five (5) years prior to the Rated Final Distribution Date and (b) if such Specially Serviced Loan is secured solely or primarily by a leasehold estate and not also the related fee interest, the date occurring twenty (20) years or, to the extent consistent with the Servicing Standard giving due consideration to the remaining term of the ground lease and (A) prior to the occurrence and continuance of a Control Termination Event, with the consent of

 

 -280-

 

 

the Directing Certificateholder and (B) to the extent such modification, waiver or amendment constitutes a Major Decision, after consultation with the Risk Retention Consultation Party pursuant to Section 6.08(a), (in each case, other than with respect to a Mortgage Loan that is an Excluded Loan as to such party), ten (10) years prior to the expiration of such leasehold estate (including any options to extend such leasehold estate exercisable unilaterally by the related Mortgagor), or (2) provide for the deferral of interest unless interest accrues on the related Mortgage Loan, or Serviced Whole Loan generally at the related Mortgage Rate.

 

(c)     Any provision of this Section 3.18 to the contrary notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default or default with respect thereto is reasonably foreseeable, no fee described in this Section 3.18 shall be collected by any Master Servicer or any Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan or Companion Loan, as applicable (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).

 

(d)      To the extent consistent with this Agreement (including, without limitation, the first sentence of Section 3.18(a), and Section 6.08), the applicable Master Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18 if such matter constitutes a Master Servicer Decision) or the applicable Special Servicer (as provided in Section 3.08(a), Section 3.08(b) and Section 3.18(a) if any such waiver, modification or amendment constitutes a Major Decision or relates to a Specially Serviced Loan) may, consistent with the Servicing Standard, agree to any waiver, modification or amendment of a Mortgage Loan and/or Serviced Companion Loan that is not in default or as to which default is not reasonably foreseeable only if the contemplated waiver, modification or amendment (i) will not be a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not cause an Adverse REMIC Event. In making this determination, the Master Servicer or the Special Servicer may obtain and rely upon (and shall provide to the Trustee and the Certificate Administrator if obtained) an Opinion of Counsel (at the expense of the related Mortgagor or such other Person requesting such modification or, if such expense cannot be collected from the related Mortgagor or such other Person, to be paid out of the Collection Account pursuant to Section 3.05(a); provided that the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use its reasonable efforts to collect such fee from the Mortgagor or such other Person to the extent permitted under the related Mortgage Loan documents). Notwithstanding the foregoing, neither the applicable Master Servicer nor the applicable Special Servicer may waive the payment of any Prepayment Premium or Yield Maintenance Charge or the requirement that any prepayment of a Mortgage Loan be made on a Due Date, or if not made on a Due Date, be accompanied by all interest that would be due on the next Due Date with respect to any Mortgage Loan or Serviced Companion Loan that is not a Specially Serviced Loan.

 

(e)       Subject to Section 3.18(c), the applicable Master Servicer and the applicable Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification (including extensions), waiver or indulgence or any other matter or thing, the granting of which is within such Master Servicer’s or such Special Servicer’s, as the

 

 -281-

 

 

case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan or Companion Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to such Master Servicer or such Special Servicer, as the case may be, as additional servicing compensation, a reasonable or customary fee, for the additional services performed in connection with such request; provided that the charging of such fee is not a “significant modification” of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).

 

(f)       All modifications (including extensions), waivers and amendments of the Mortgage Loans and/or Companion Loans entered into pursuant to this Section 3.18 shall be in writing, signed by the applicable Master Servicer or the applicable Special Servicer, as the case may be, and the related Mortgagor (and by any guarantor of the related Mortgage Loan, if such guarantor’s signature is required by the applicable Special Servicer in accordance with the Servicing Standard).

 

(g)      With respect to any modification, waiver or amendment for which it is responsible for processing pursuant to Section 3.18, the applicable Special Servicer shall notify the applicable Master Servicer, the Trustee, the Certificate Administrator, the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Directing Certificateholder and the Risk Retention Consultation Party (in the case of the Directing Certificateholder, other than following the occurrence and continuance of a Consultation Termination Event, and in the case of the Directing Certificateholder or the Risk Retention Consultation Party, other than with respect to any Excluded Loan as to such party), the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB Subordinate Companion Loan, an AB Control Appraisal Period has occurred, if applicable), the related Mortgage Loan Seller (if such Mortgage Loan Seller is not the Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or the Risk Retention Consultation Party) and the 17g-5 Information Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) in writing of any modification, waiver or amendment (in each case, after it is finalized and executed) of any term of any Mortgage Loan or Companion Loan that is modified, waived or amended and the date thereof. With respect to any modification, waiver or amendment (in each case, after it is finalized and executed) for which it is responsible for processing pursuant to Section 3.18, the applicable Master Servicer shall provide written notice of any such modification, waiver or amendment to the Trustee, the Certificate Administrator, the applicable Special Servicer, the Directing Certificateholder (only prior to the occurrence and continuance of a Consultation Termination Event, and other than with respect to an Excluded Loan as to such party) and the Risk Retention Consultation Party (in the case of the Risk Retention Consultation Party, other than with respect to an Excluded Loan as to such party)), the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement) (unless, with respect to a holder of an AB Subordinate Companion Loan, an AB Control Appraisal Period has occurred, if applicable) and the related Mortgage Loan Seller (so long as such Mortgage Loan Seller is not the Master Servicer or Sub-Servicer of such Mortgage Loan or the Directing Certificateholder or Risk Retention Consultation Party) and the 17g-5 Information

 

 -282-

 

 

Provider (which shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). The party responsible for delivering notice shall deliver to the Custodian with a copy to the applicable Master Servicer (if such notice is being delivered by the applicable Special Servicer) for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and in any event within ten (10) Business Days) following the execution thereof, with a copy to the applicable Companion Holder (or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer under the related Other Pooling and Servicing Agreement), if any. Following receipt of the applicable Master Servicer’s or the applicable Special Servicer’s, as the case may be, delivery of the aforesaid modification, waiver or amendment to the Certificate Administrator, the Certificate Administrator shall forward a copy thereof to each Holder of a Certificate (other than the Class R Certificates). With respect to the processing of any modification, waiver or consent related to any Mortgagor incurring additional secured debt or mezzanine debt, the applicable Special Servicer (if such Special Servicer processes such modification, waiver or consent pursuant to Section 3.18(a)) or the applicable Master Servicer (if such Master Servicer processes such modification, waiver or consent pursuant to Sections 3.18(a) and (m)) shall, on or before the later of (i) 3:00 p.m. on the related P&I Advance Date and (ii) five (5) Business Days immediately following the applicable Master Servicer or the applicable Special Servicer, as the case may be, obtaining actual knowledge of the incurrence of such additional secured debt or mezzanine debt, deliver notice of the Mortgagor’s incurrence of such debt, substantially in the form of Exhibit KK, to cts.sec.notifications@wellsfargo.com and an Additional Disclosure Notification in the form attached hereto as Exhibit DD. The notice contemplated in the preceding sentence shall set forth, to the extent the applicable Special Servicer or the applicable Master Servicer, as the case may be, has the requisite information or can reasonably obtain such information, (1) the amount of additional secured debt that was incurred in the related Collection Period, (2) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and additional secured debt, and (3) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and additional secured debt. In the event that either (i) the CREFC^® Investor Reporting Package is amended to include such information set forth above, in a manner reasonably acceptable to the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator, as applicable, and such Master Servicer confirms with the Certificate Administrator that such amended CREFC^® Investor Reporting Package enables the Certificate Administrator to include such information on Form 10-D in a manner reasonably acceptable to the Certificate Administrator, or (ii) the Trust is no longer subject to the Exchange Act, the additional report in the form of Exhibit KK shall no longer be required hereunder. From time to time, the applicable Master Servicer, the applicable Special Servicer and the Certificate Administrator may agree on a different delivery time and format for the information set forth in this paragraph.

 

(h)       Subject to the consent rights and processes set forth in Section 6.08 with respect to Major Decisions, each Master Servicer shall process all defeasance transactions for the Mortgage Loans for which it acts as Master Servicer and shall be entitled to all defeasance fees paid related thereto (provided that for the avoidance of doubt, any such defeasance fee shall not include any Modification Fees or waiver fees in connection with a defeasance that any Special Servicer is entitled to under this Agreement). Notwithstanding the foregoing, such Master Servicer shall not permit (or, with regard to any Non-Serviced Mortgage Loan, take any act in furtherance of) the substitution of any Mortgaged Property pursuant to the defeasance provisions

 

 -283-

 

 

of any Mortgage Loan or a Serviced Whole Loan unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8)(ii) and such Master Servicer has received (i) replacement collateral consisting of government securities within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), which satisfies the requirements of the applicable Mortgage Loan documents, in an amount sufficient to make all scheduled payments under the related Mortgage Loan (or defeased portion thereof) when due, (ii) a certificate of an Independent certified public accountant to the effect that such substituted property will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on such Mortgage Loan or Serviced Whole Loan in compliance with the requirements of the terms of the related Mortgage Loan documents and, if applicable, Companion Loan documents, (iii) one or more Opinions of Counsel (at the expense of the related Mortgagor) to the effect that the Trustee, on behalf of the Trust, will have a first priority perfected security interest in such substituted Mortgaged Property; provided, however, that, to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the related Mortgagor shall pay the cost of any such opinion as a condition to granting such defeasance, (iv) to the extent consistent with the related Mortgage Loan documents and, if applicable, Companion Loan documents, the Mortgagor shall establish a single purpose entity to act as a successor mortgagor, if so required by the Rating Agencies, (v) to the extent permissible under the related Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall use its reasonable efforts to require the related Mortgagor to pay all costs of such defeasance, including but not limited to the cost of maintaining any successor mortgagor, and (vi) to the extent permissible under the Mortgage Loan documents and, if applicable, Companion Loan documents, the applicable Master Servicer shall obtain, at the expense of the related Mortgagor, Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided, further, however, that no such confirmation from any Rating Agency shall be required to the extent that the applicable Master Servicer has delivered a defeasance certificate substantially in the form of Exhibit U hereto for any Mortgage Loan that (together with any Mortgage Loans cross-collateralized with such Mortgage Loans) is: (i) a Mortgage Loan with a Cut-off Date Balance less than $20,000,000, (ii) a Mortgage Loan that represents less than 5% of the aggregate Cut-off Date Balance of all Mortgage Loans a, and (iii) a Mortgage Loan that is not one of the ten (10) largest Mortgage Loans by Stated Principal Balance. Notwithstanding the foregoing, in the event that requiring the Mortgagor to pay for the items specified in clauses (ii), (iv) and (v) in the preceding sentence would be inconsistent with the related Mortgage Loan documents, such reasonable costs shall be paid by the related Mortgage Loan Seller as and to the extent set forth in the applicable Mortgage Loan Purchase Agreement.

 

(i)        Notwithstanding anything herein or in the related Mortgage Loan documents and, if applicable, Companion Loan documents, to the contrary, the applicable Master Servicer may permit the substitution of “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii) for any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole Loan, as applicable (or any portion thereof), in lieu of

 

 -284-

 

 

the defeasance collateral specified in the related Mortgage Loan documents or Serviced Whole Loan documents, as applicable; provided that such substitution is consistent with the Servicing Standard and the applicable Master Servicer reasonably determines that allowing their use would not cause a default or event of default to become reasonably foreseeable and the applicable Master Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the extent permitted under the Mortgage Loan documents and, if applicable or Companion Loan documents or otherwise as a Trust Fund expense) to the effect that such use would not be and would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any Trust REMIC; and provided, further, that the requirements set forth in Section 3.18(h) (including receipt of any Rating Agency Confirmation) are satisfied; and provided, further, that such securities are backed by the full faith and credit of the United States government, or the applicable Master Servicer shall obtain Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

Notwithstanding the foregoing, with respect to (i) all of the Mortgage Loans originated or acquired by Bank of America, National Association that are subject to defeasance and (ii) all of the Mortgage Loans originated or acquired by Morgan Stanley Mortgage Capital Holdings LLC that are subject to defeasance, each of Bank of America, National Association and Morgan Stanley Mortgage Capital Holdings LLC, as applicable, has transferred to a third party or has retained on behalf of itself or an Affiliate the related Retained Defeasance Rights and Obligations. In the event the General Master Servicer receives notice of a defeasance request with respect to a Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller, which such Mortgage Loan provides for Retained Defeasance Rights and Obligations in the related Mortgage Loan documents, the General Master Servicer shall provide, within five (5) Business Days of receipt of such notice, written notice of such defeasance request to Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, in the case of any such Mortgage Loan for which Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, is the related Mortgage Loan Seller. Until such time as Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, provides the General Master Servicer with written notice to the contrary, the notice of a defeasance of a Mortgage Loan with Retained Defeasance Rights and Obligations as to which (i) Bank of America, National Association is the related Mortgage Loan Seller shall be delivered to Bank of America, National Association, One Bryant Park, Mail Code: NY1-100-11-07, New York, New York 10036, Attention: Director of CMBS Securitization, email: leland.f.bunch@bofa.com, with copies to W. Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Legal Department, 150 North College Street, Mail Code: NC1 028-24-02, Charlotte, North Carolina 28255, email: todd.stillerman@bofa.com, cmbsnotices@bofa.com and Joshua J. Yablonski, Katten Muchin Rosenman LLP, 550 S. Tryon Street, Suite 2900, Charlotte, North Carolina 28202-4213, email: joshua.yablonski@katten.com or (ii) Morgan Stanley Mortgage Capital Holdings LLC is the related Mortgage Loan Seller shall be delivered to Morgan Stanley Mortgage Capital Holdings

 

 -285-

 

 

LLC, 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Mortgage Capital Holdings LLC, 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com. With respect to any Mortgage Loan originated or acquired by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as applicable, that is subject to defeasance, if the successor borrower is not designated or formed by Bank of America, National Association or Morgan Stanley Mortgage Capital Holdings LLC, as the case may be, or any Affiliate or successor thereto, the successor borrower shall be reasonably acceptable to the General Master Servicer in accordance with the Servicing Standard.

 

(j)        If required under the related Mortgage Loan or Companion Loan documents or if otherwise consistent with the Servicing Standard, the applicable Master Servicer shall establish and maintain one or more accounts (the “Defeasance Accounts”), which shall be Eligible Accounts, into which all payments received by such Master Servicer from any defeasance collateral substituted for any Mortgaged Property shall be deposited and retained, and shall administer such Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan documents. Notwithstanding the foregoing, in no event shall the applicable Master Servicer permit such amounts to be maintained in the Defeasance Account for a period in excess of ninety (90) days, unless such amounts are reinvested by such Master Servicer in “government securities,” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8)(ii). To the extent not required or permitted to be placed in a separate account, the applicable Master Servicer shall deposit all payments received by it from defeasance collateral substituted for any Mortgaged Property into the Collection Account and treat any such payments as payments made on the Mortgage Loan or Companion Loan in advance of its Due Date in accordance with clause (a)(i) of the definition of “Aggregate Available Funds” and not as a prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding anything herein to the contrary, in no event shall the applicable Master Servicer permit such amounts to be maintained in the Collection Account for a period in excess of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in the case of a leap year).

 

(k)       Notwithstanding anything to the contrary in this Agreement, neither the applicable Master Servicer nor the applicable Special Servicer, as the case may be, shall, unless it has received Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) (the cost of which shall be paid by the related Mortgagor, if so allowed by the terms of the related loan documents and otherwise paid out of general collections) grant or accept any consent, approval or direction regarding the termination of the related property manager or the designation of any replacement property manager, with respect to any Mortgaged Property that secures a Mortgage Loan that (i) is one of the ten (10) largest Mortgage Loans a by Stated Principal Balance or (ii) has an unpaid principal balance that is at least equal to 5% of the then-aggregate principal balance of all Mortgage Loans or $35,000,000.

 

 -286-

 

 

(l)        Notwithstanding anything to the contrary in this Agreement, in connection with any modification, waiver, consent or amendment in connection with any release of collateral securing any Mortgage Loan in connection with a defeasance of such collateral, the applicable Special Servicer shall not approve any such modification, waiver or amendment or consent thereto without first having received a copy of an Opinion of Counsel addressed to such Special Servicer and the applicable Master Servicer that such modification, waiver, consent or amendment will not cause an Adverse REMIC Event to the extent the Special Servicer determines in its reasonable good faith business judgment consistent with the Servicing Standard that such Opinion of Counsel is reasonably necessary.

 

In addition to the foregoing, the applicable Special Servicer shall be allowed to grant a forbearance on a Mortgage Loan related to the COVID-19 emergency if (i) prior to September 30, 2021 (or prior to such later date as may be provided by the IRS in any future guidance), the period of forbearance granted, when added to any prior periods of forbearance granted before or after the Trust acquired such Mortgage Loan (whether or not such prior grants of forbearance were covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12 and any future guidance)), does not exceed six months (or such longer period of time as may be allowed by future guidance that is binding on federal income tax authorities) or the applicable forbearance program pursuant to which the related forbearance was granted is otherwise identical or similar to those described in Section 2.07 of the Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12 and any future guidance) and such forbearance is covered by Revenue Procedure 2020-26 (as extended by Revenue Procedure 2021-12 and any future guidance), (ii) such forbearance is permitted under another provision of this Agreement and the requirements under such provision are satisfied, or (iii) an Opinion of Counsel is delivered to the effect that such forbearance will not result in an Adverse REMIC Event.

 

(m)      Notwithstanding any other provisions of this Section 3.18 or Section 3.08, but subject to any related Intercreditor Agreement, the applicable Master Servicer may, without any Directing Certificateholder approval, consent or consultation (except as otherwise provided below in the definition of Master Servicer Decision), Risk Retention Consultation Party consultation or the applicable Special Servicer’s approval, consent or consultation take any of the following actions with respect to Mortgage Loans that are not Specially Serviced Loans and any related Serviced Companion Loans (each such action, a “Master Servicer Decision”): (i) grant waivers of non-material covenant defaults (other than financial covenants) including late (but not waived) financial statements (except that, other than with respect to any NCB Co-op Mortgage Loan or any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder’s consent (or deemed consent) shall be required to grant waivers of more than 3 consecutive late deliveries of financial statements); (ii) consents to releases of non-material, non-income producing parcels of a Mortgaged Property that do not materially affect the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the Mortgage Loan as and when due, provided such releases are required by the related Mortgage Loan documents; (iii) approve or consent to grants of easements or rights of way (including, without limitation, for utilities, access, parking, public improvements or another purpose) or subordination of the lien of the Mortgage Loan to easements except that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing

 

 -287-

 

 

Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required to approve or consent to grants of easements or rights of way that materially affect the use or value of a Mortgaged Property or a Mortgagor’s ability to make payments with respect to the related Mortgage Loan or any related Companion Loan; (iv) grant routine approvals, including granting of subordination, non-disturbance and attornment agreements and consents involving leasing activities, including approval of new leases and amendments to current leases (other than for ground leases) (provided that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required for leasing activities that affect an area greater than or equal to the lesser of (1) 30% of the net rentable area of the improvements at the Mortgaged Property or (2) 30,000 square feet), including approval of new leases and amendments to current leases; (v) consent to actions and releases related to condemnation of parcels of a Mortgaged Property (provided that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required in connection with any condemnation with respect to a material parcel or a material income producing parcel or any condemnation that materially affects the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or any related Companion Loan when due); (vi) consent to a change in property management relating to any Mortgage Loan or any related Companion Loan if the replacement property manager is not a Borrower Party (provided that, prior to the occurrence and continuance of any Control Termination Event, and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, and other than any NCB Co-op Mortgage Loan, the Directing Certificateholder’s consent (or deemed consent) shall be required for any Mortgage Loan (including any related Companion Loans) that has an outstanding principal balance equal to or greater than $10,000,000); (vii) approve annual operating budgets for Mortgage Loans; (viii) consent to any releases or reductions of or withdrawals from (as applicable) any letters of credit, escrow funds, reserve funds or other additional collateral with respect to any Mortgage Loan, other than any release, reduction, or withdrawal that would constitute a Major Decision; (ix) grant any extension or enter into any forbearance with respect to the anticipated refinancing of a Mortgage Loan or sale of a Mortgaged Property after the related Maturity Date of such Mortgage Loan so long as (A) such extension or forbearance does not extend beyond 120 days after the related Maturity Date and (B) the related Mortgagor, on or before the related Maturity Date, has delivered documentation reasonably satisfactory in form and substance to the applicable Master Servicer, which provides that a refinancing of such Mortgage Loan or sale of the related Mortgaged Property will occur within 120 days after the date on which such Balloon Payment will become due; (x) any modification, amendment, consent to a modification or waiver of any term of any Intercreditor Agreement, except that (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class and other than amendments to split or resize notes consistent with the terms of such Intercreditor Agreement) the Directing Certificateholder’s consent (or deemed consent) shall be required for any such modification to an Intercreditor Agreement other than during a Control Termination Event, and if any such modification or amendment would adversely impact

 

 -288-

 

 

the applicable Special Servicer, such modification or amendment will additionally require the consent of such Special Servicer as a condition to its effectiveness; (xi) any determination of an Acceptable Insurance Default, except that, prior to the occurrence and continuance of a Control Termination Event and other than in the case of any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class, the Directing Certificateholder’s consent (or deemed consent) shall be required in accordance with this Agreement for any such determination; (xii) approve or consent to any defeasance of the related Mortgage Loan or Serviced Companion Loan other than agreeing to (A) a modification of the type of defeasance collateral required under the Mortgage Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the Mortgage Loan documents do not otherwise permit such principal prepayment; (xiii) [reserved]; (xiv) any assumption of the Mortgage Loan or transfer of the Mortgaged Property, in each case, that the Mortgage Loan documents allow without the consent of the lender but subject to satisfaction of conditions specified in the Mortgage Loan documents where no lender discretion is necessary in order to determine if such conditions are satisfied; (xv) with respect to NCB Co-op Mortgage Loans, consent to the related Mortgagor incurring subordinate debt secured by the related Mortgaged Property, subject to the satisfaction of the NCB Subordinate Debt Conditions with respect to such subordinate debt; and (xvi) grant or agree to any other waiver, modification, amendment and/or consent that does not constitute a Major Decision; provided that (w) any such action would not in any way affect a payment term of the Certificates, (x) any such action would not constitute a “significant modification” of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise cause either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes (as evidenced by an Opinion of Counsel (at the expense of the Trust to the extent not reimbursed or paid by the related Mortgagor), to the extent requesting such opinion is consistent with the Servicing Standard), (y) agreeing to such action would be consistent with the Servicing Standard, and (z) agreeing to such action would not violate the terms, provisions or limitations of this Agreement or any Intercreditor Agreement; provided, further, that, with respect to any Serviced AB Whole Loan, the foregoing matters shall not include (and Master Servicer Decision shall not include) any action that constitutes a “major decision” under the related Intercreditor Agreement. In the case of any Master Servicer Decision that requires the consent of the Directing Certificateholder, such consent shall be deemed given if a response to the request for consent is not provided within ten (10) Business Days after receipt of the applicable Master Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to such Master Servicer in order to grant or withhold such consent. The foregoing is intended to be an itemization of actions the Master Servicers may take without having to obtain the approval of any other party and is not intended to limit the responsibilities of the Master Servicers hereunder.

 

(n)       No Master Servicer or Special Servicer shall modify any Mortgage Loan into an AB Modified Loan unless the documents evidencing such modification provide that all payments on the junior or “B” portion of such AB Modified Loan (including interest, principal and other amounts) shall only be payable after the point in time at which all interest and principal on the senior or “A” portion of such AB Modified Loan shall have been paid in full and such senior or “A” portion shall no longer be outstanding; provided, however, that interest and other amounts in respect of such junior or “B” portion may accrue prior to such point in time.

 

 -289-

 

 

Section 3.19   Transfer of Servicing Between the Master Servicers and the Special Servicers; Recordkeeping; Asset Status Report.  (a)  Upon determining that a Servicing Transfer Event has occurred with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Companion Loan, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall promptly give notice to the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Operating Advisor and the Directing Certificateholder (in the case of the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) thereof, and the applicable Master Servicer shall deliver the related Mortgage File and Servicing File to the applicable Special Servicer and concurrently provide a copy of such Servicing File, exclusive of all Privileged Communications, to the Operating Advisor. The applicable Master Servicer shall use its reasonable efforts to provide the applicable Special Servicer with all documents and records (including records stored electronically on computer tapes, magnetic discs and the like) relating to such Mortgage Loan and, if applicable, the related Serviced Companion Loan, either in the applicable Master Servicer’s possession or otherwise available to such Master Servicer without undue burden or expense, and reasonably requested by the applicable Special Servicer to enable it to assume its functions hereunder with respect thereto. Such Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each related Servicing Transfer Event (or, in the case of clauses (iii), (iv), (viii) or (ix) of the definition of Servicing Transfer Event, within five (5) Business Days of receiving notice from the applicable Special Servicer of such Servicing Transfer Event when such Special Servicer makes the determination) and in any event shall continue to act as Master Servicer and administrator of such Mortgage Loan and, if applicable, the related Serviced Companion Loan until such Special Servicer has commenced the servicing of such Mortgage Loan and, if applicable, the related Serviced Companion Loan. The applicable Master Servicer shall deliver to the Trustee, the Certificate Administrator, the Operating Advisor, the Directing Certificateholder (with respect to the Directing Certificateholder (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party), a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer to the applicable Special Servicer, or by the applicable Special Servicer to the applicable Master Servicer, pursuant to this Section 3.19. Prior to the occurrence and continuance of a Consultation Termination Event, the Certificate Administrator shall deliver to each Controlling Class Certificateholder a copy of the notice of such Servicing Transfer Event provided by the applicable Master Servicer pursuant to this Section 3.19.

 

Upon determining that a Specially Serviced Loan (other than an REO Loan) has become current and has remained current for three (3) consecutive Periodic Payments (provided that (i) no additional Servicing Transfer Event is foreseeable in the reasonable judgment of the applicable Special Servicer, and (ii) for such purposes taking into account any modification or amendment of such Mortgage Loan and, if applicable, the related Companion Loan), and that no other Servicing Transfer Event is continuing with respect thereto, the applicable Special Servicer shall promptly give notice thereof to the applicable Master Servicer, the Operating Advisor, the related Serviced Companion Noteholder (unless with respect to an AB Subordinate Companion Loan an AB Control Appraisal Period has occurred) and the Directing Certificateholder (with respect to the Directing Certificateholder, (i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such

 

 -290-

 

 

party) and shall return the related Mortgage File and Servicing File to the applicable Master Servicer (or copies thereof if copies only were delivered to the applicable Special Servicer) and upon giving such notice, and returning such Mortgage File and Servicing File to such Master Servicer, such Special Servicer’s obligation to service such Corrected Loan shall terminate and the obligations of such Master Servicer to service and administer such Mortgage Loan and, if applicable, the related Companion Loan shall recommence.

 

(b)       In servicing any Specially Serviced Loans and Serviced Companion Loans, the applicable Special Servicer will provide to the Custodian originals of documents included within the definition of “Mortgage File” for inclusion in the related Mortgage File to the extent within its possession (with a copy of each such original to the applicable Master Servicer), and provide the applicable Master Servicer with copies of any additional related Mortgage Loan or Serviced Companion Loan information including material written correspondence with the related Mortgagor.

 

(c)       Notwithstanding the provisions of Section 3.12(c), the applicable Master Servicer shall maintain ongoing payment records with respect to each of the Specially Serviced Loans, Serviced Companion Loans and REO Properties (other than with respect to a Non-Serviced Mortgage Loan) and shall provide the applicable Special Servicer with any information in its possession with respect to such records to enable such Special Servicer to perform its duties under this Agreement; provided that this statement shall not be construed to require such Master Servicer to produce any additional reports.

 

(d)      No later than sixty (60) days after a Servicing Transfer Event for a Mortgage Loan (other than a Non-Serviced Mortgage Loan) and, if applicable, the related Companion Loan, the applicable Special Servicer shall deliver in electronic format a report (the “Asset Status Report”) with respect to such Mortgage Loan and related Companion Loan, if applicable, and the related Mortgaged Property to the applicable Master Servicer, the Directing Certificateholder (but with respect to the Directing Certificateholder, only in respect of any Mortgage Loan other than (A) any Excluded Loan as to the Directing Certificateholder or (B) any Serviced AB Whole Loan prior to the occurrence of an AB Control Appraisal Period, and in any event prior to the occurrence and continuance of a Consultation Termination Event), the Risk Retention Consultation Party (but only in respect of any Mortgage Loan other than an Excluded Loan as to the Risk Retention Consultation Party), the Operating Advisor (but, other than with respect to an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, only after the occurrence and during the continuance of a Control Termination Event) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)) and, with respect to any related Serviced Companion Loan, to the related Companion Holder or, to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the applicable master servicer of such Other Securitization into which the related Serviced Companion Loan has been sold; the applicable Special Servicer shall also deliver a summary of each Final Asset Status Report to the Certificate Administrator and the Certificate Administrator shall post the summary of the Final Asset Status Report to the Certificate Administrator’s Website. For the avoidance of doubt, neither Master Servicer shall make any Asset Status Reports available to any Certificateholders on its website. None of the parties to this Agreement shall provide any Asset Status Report or any Final Asset Status Report

 

 -291-

 

 

to the Certificate Administrator. The applicable Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Certificateholder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the applicable Special Servicer. Further, the Certificate Administrator shall not request any Asset Status Report or Final Asset Status Report from either Master Servicer. Such Asset Status Report shall set forth the following information to the extent reasonably determinable based on the information that was delivered to the applicable Special Servicer in connection with the transfer of servicing pursuant to the Servicing Transfer Event:

 

(i)        a summary of the status of such Specially Serviced Loan and any negotiations with the related Mortgagor;

 

(ii)       a discussion of the legal and environmental considerations reasonably known to the applicable Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the related Mortgage Loan (and any related Serviced Companion Loan) and whether outside legal counsel has been retained;

 

(iii)      the most current rent roll (or with respect to a residential cooperative properties, maintenance schedule), and income or operating statement available for the related Mortgaged Property;

 

(iv)      (A) the applicable Special Servicer’s recommendations on how such Specially Serviced Loan might be returned to performing status (including the modification of a monetary term, and any workout, restructure or debt forgiveness) and returned to the applicable Master Servicer for regular servicing or otherwise realized upon (including any proposed sale of a Defaulted Loan or REO Property), (B) a description of any such proposed or taken actions, and (C) the alternative courses of action that were or are being considered by such Special Servicer in connection with the proposed or taken actions;

 

(v)       the status of any foreclosure actions or other proceedings undertaken with respect to the Specially Serviced Loan, any proposed workouts and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Whole Loan;

 

(vi)      a description of any amendment, modification or waiver of a material term of any ground lease (or any space lease or air rights lease, if applicable) or franchise agreement;

 

(vii)     the decision that the applicable Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth such Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives;

 

 -292-

 

 

(viii)    an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the applicable Special Servicer made such determination and (y) the net present value calculation and all related assumptions;

 

(ix)      the appraised value of the related Mortgaged Property (and a copy of the last obtained Appraisal of such Mortgaged Property) together with a description of any adjustments to the valuation of such Mortgaged Property made by the applicable Special Servicer together with an explanation of those adjustments; and

 

(x)       such other information as the applicable Special Servicer deems relevant in light of the Servicing Standard.

 

If within ten (10) Business Days of receiving an Asset Status Report, the Directing Certificateholder does not disapprove such Asset Status Report in writing or if the applicable Special Servicer makes a determination, in accordance with the Servicing Standard that the disapproval by the Directing Certificateholder (communicated to the applicable Special Servicer within ten (10) Business Days) is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), the applicable Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the applicable Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan documents. If, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the Directing Certificateholder disapproves such Asset Status Report within ten (10) Business Days of receipt and the applicable Special Servicer has not made the affirmative determination described above, the applicable Special Servicer shall revise such Asset Status Report and deliver a new Asset Status Report as soon as practicable, but in no event later than thirty (30) days after such disapproval, to the applicable Master Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event and, in the case of a Serviced AB Whole Loan, only prior to the occurrence and continuance of a Consultation Termination Event and during an AB Control Appraisal Period with respect to the related AB Subordinate Companion Loan), the Operating Advisor (but only after the occurrence and during the continuance of a Control Termination Event) and the 17g-5 Information Provider (which shall promptly post such report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence and continuance of any Control Termination Event, the applicable Special Servicer shall revise such Asset Status Report as described above in this Section 3.19(d) until the Directing Certificateholder shall fail to disapprove such revised Asset Status Report in writing within ten (10) Business Days of receiving such revised Asset Status Report or until the applicable Special Servicer makes a determination, in accordance with the Servicing Standard, that the disapproval is not in the best interests of the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan); provided that, if the Directing Certificateholder has not approved the Asset Status Report for a period of sixty (60) Business

 

 -293-

 

 

Days following the first submission of an Asset Status Report, the applicable Special Servicer shall act pursuant to the Directing Certificateholder’s direction, if consistent with the Servicing Standard, and after the occurrence and continuance of a Control Termination Event, may act upon the most recently submitted form of Asset Status Report; provided, however, that such Asset Status Report does not, and is not intended to be, a substitute for the approvals that are specifically required pursuant to Section 6.08. Each Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report; provided that such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.19(d). Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with an Asset Status Report for an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class that includes a Major Decision and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in Section 6.08 for consulting with the Operating Advisor.

 

No direction or disapproval of the Directing Certificateholder hereunder or under a related Intercreditor Agreement or failure of the Directing Certificateholder to consent to or approve (including any deemed consents or approvals) any request of the applicable Special Servicer, shall (a) require or cause the applicable Special Servicer to violate the terms of a Specially Serviced Loan, applicable law or any provision of this Agreement, including the applicable Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, or (b) result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or (c) expose the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Operating Advisor, the Mortgage Loan Sellers, the Trust, the Trustee, the Certificate Administrator or their respective officers, directors, members, employees or agents to any claim, suit or liability or (d) materially expand the scope of the applicable Special Servicer’s, the Trustee’s or the applicable Master Servicer’s responsibilities under this Agreement.

 

If a Control Termination Event has occurred and is continuing (or, with respect to a Serviced AB Whole Loan, if both a Control Termination Event has occurred and is continuing and an AB Control Appraisal Period is in effect), the applicable Special Servicer shall promptly deliver each Asset Status Report prepared in connection with a Specially Serviced Loan to the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)). The Operating Advisor shall provide comments to the applicable Special Servicer in respect of the Asset Status Report, if any, within ten (10) Business Days following the later of (i) receipt of such Asset Status Report or (ii) receipt of such additional information reasonably requested by the Operating Advisor related thereto, and propose possible alternative courses of action to the extent it determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that are holders of the Control Eligible Certificates), as a collective whole. The applicable Special Servicer shall consider such alternative courses of action and any other feedback provided by the Operating Advisor (and the

 

 -294-

 

 

Directing Certificateholder (in each case, if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party or a Non-Serviced Mortgage Loan)) in connection with the applicable Special Servicer’s preparation of any Asset Status Report. The applicable Special Servicer may revise the Asset Status Report as it deems necessary to take into account any input and/or comments from the Operating Advisor (and the Directing Certificateholder (if no Consultation Termination Event has occurred and is continuing and such Specially Serviced Loan is not an Excluded Loan as to such party)), to the extent the applicable Special Servicer determines that the Operating Advisor’s and/or Directing Certificateholder’s input and/or recommendations are consistent with the Servicing Standard and in the best interest of the Certificateholders as a collective whole (or, with respect to a Serviced Whole Loan, the best interest of the Certificateholders and the holders of the related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of such Companion Loan)). Promptly upon determining whether or not to revise any Asset Status Report to take into account any input and/or comments from the Operating Advisor or the Directing Certificateholder, the applicable Special Servicer shall revise the Asset Status Report, if applicable, and deliver to the Operating Advisor and the Directing Certificateholder the revised Asset Status Report (until a Final Asset Status Report is issued) or notice that the applicable Special Servicer has decided not to revise such Asset Status Report, as applicable.

 

After the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class), the Directing Certificateholder shall have no right to consent to any Asset Status Report under this Section 3.19. After the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder (except with respect to any Excluded Loan as to such party) and the Operating Advisor shall consult with the applicable Special Servicer and propose alternative courses of action and provide other feedback in respect of any Asset Status Report. The Directing Certificateholder (other than in its capacity as a Certificateholder) (in each case, after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan as to such party)), shall have no right to receive any Asset Status Report or otherwise consult with the applicable Special Servicer with respect to Asset Status Reports and the applicable Special Servicer shall only be obligated to consult with the Operating Advisor with respect to any Asset Status Report as described above. The applicable Special Servicer may choose to revise the Asset Status Report as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of the Operating Advisor or the Directing Certificateholder during the applicable periods described above, but is under no obligation to follow any particular recommendation of the Operating Advisor or the Directing Certificateholder.

 

Notwithstanding the foregoing, prior to the occurrence and continuance of an AB Control Appraisal Period with respect to an AB Subordinate Companion Loan, the applicable Special Servicer shall prepare an Asset Status Report for any Serviced AB Whole Loan, upon it becoming a Specially Serviced Loan pursuant to this Agreement and the related Intercreditor Agreement, but the Directing Certificateholder will have no approval rights over any such Asset Status Report, and the consent or approval rights with respect to such Asset Status Report shall be as set forth in the related Intercreditor Agreement.

 

 -295-

 

 

(e)       (i) Upon receiving notice of the occurrence of the events described in clause (iv) or (ix) of the definition of Servicing Transfer Event (without regard to the 60-day or 30-day period, respectively, set forth therein), the applicable Master Servicer shall with reasonable promptness give notice thereof, and shall use its reasonable efforts to provide the applicable Special Servicer with all information relating to the Mortgage Loan or Serviced Companion Loan and reasonably requested by such Special Servicer to enable it to negotiate with the related Mortgagor. The applicable Master Servicer shall use its reasonable efforts to comply with the preceding sentence within five (5) Business Days of the occurrence of each such event.

 

(ii)       After the occurrence and during the continuance of a Control Termination Event, upon receiving notice of the occurrence of an event described in clause (iv) or (x) of the definition of Servicing Transfer Event (without regard to the 60-day or 30-day period, respectively, set forth therein), the applicable Master Servicer shall deliver notice thereof to the Operating Advisor at the same time such notice is provided to the applicable Special Servicer pursuant to clause (i) above.

 

(f)       Prior to the occurrence and continuance of a Control Termination Event, no later than five (5) Business Days following the establishment of a Final Asset Status Report with respect to any Specially Serviced Loan, the applicable Special Servicer shall deliver in electronic format to the Directing Certificateholder (other than any Excluded Loan with respect to such party) a draft notice that will include a draft summary of the Final Asset Status Report (which briefly summarizes such Final Asset Status Report, but shall not include any Privileged Information) (and shall deliver each Asset Status Report with respect to a Serviced AB Mortgage Loan prior to the occurrence and continuance of an AB Control Appraisal Period (to the extent approved by the related Serviced AB Whole Loan Controlling Holder), to the Directing Certificateholder). With respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, if, prior to the occurrence and continuance of a Control Termination Event, within five (5) Business Days of receipt of such draft summary, the Directing Certificateholder approves of, or does not disapprove of such draft summary, then the applicable Special Servicer shall deliver in electronic format such notice and summary of the Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b). If the Directing Certificateholder affirmatively disapproves of such summary in writing, then within two (2) Business Days of receipt of such disapproval, the applicable Special Servicer shall revise the summary and deliver such new summary to the Directing Certificateholder until the Directing Certificateholder approves such draft summary; provided, however, that if the Directing Certificateholder has not approved of the draft summary of the Final Asset Status Report within twenty (20) Business Days of receipt of the initial draft summary of the Final Asset Status Report, then the most recent draft summary of the Final Asset Status Report delivered by the applicable Special Servicer prior to such 20th Business Day shall be deemed to be the final summary of the Final Asset Status Report; provided, further, however, that if at any time the applicable Special Servicer determines that any affirmative disapproval of such draft summary by the Directing Certificateholder is not in the best interest of all the Certificateholders and the holder of any related Companion Loan, as a collective whole (taking into account the pari passu or subordinate nature of any Companion Loan), pursuant to the Servicing Standard, the applicable Special Servicer shall deliver in electronic format such notice and summary of the

 

 -296-

 

 

Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b) notwithstanding such disapproval. The applicable Special Servicer shall promptly deliver (but in any event no later than five (5) Business Days following its completion) a copy of each Final Asset Status Report to the Operating Advisor. The applicable Special Servicer shall prepare a summary of any Final Asset Status Report related to any Serviced AB Whole Loan for which the related holder of an AB Subordinate Companion Loan is not subject to an AB Control Appraisal Period, which Final Asset Status Report has been approved or deemed approved by the holder of the related AB Subordinate Companion Loan in accordance with the related Intercreditor Agreement (to the extent such Intercreditor Agreement requires such approval or deemed approval), and deliver in electronic format notice of such Final Asset Status Report and the summary of such Final Asset Status Report to the Certificate Administrator for posting on the Certificate Administrator’s Website pursuant to Section 3.13(b).

 

(g)       No provision of this Section 3.19 shall require a Special Servicer to take or to refrain from taking any action because of any proposal, objection or comment by the Operating Advisor or a recommendation of the Operating Advisor.

 

Section 3.20   Sub-Servicing Agreements. (a) Each Master Servicer and each Special Servicer may enter into Sub-Servicing Agreements to provide for the performance by third parties of any or all of its respective obligations hereunder; provided that the Sub-Servicing Agreement as amended or modified: (i) is consistent with this Agreement in all material respects and requires the Sub-Servicer to comply with all of the applicable conditions of this Agreement; (ii) provides that if the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall for any reason no longer act in such capacity hereunder (including, without limitation, by reason of a Servicer Termination Event), the Trustee or its designee shall thereupon assume all of the rights and, except to the extent they arose prior to the date of assumption, obligations of such party under such agreement, or, alternatively, may act in accordance with Section 7.02 under the circumstances described therein (subject to Section 3.20(g)); (iii) provides that the Trustee (for the benefit of the Certificateholders and the related Companion Holder (if applicable)) and the Trustee (as holder of the Lower-Tier Regular Interests) shall be a third party beneficiary under such Sub-Servicing Agreement, but that (except to the extent the Trustee or its designee assumes the obligations of such party thereunder as contemplated by the immediately preceding clause (ii)) none of the Trust, the Trustee, the Operating Advisor, the Certificate Administrator, the Master Servicers or Special Servicers, as applicable (other than the applicable Master Servicer or applicable Special Servicer that enters into such Sub-Servicing Agreement), any successor master servicer or successor special servicer or any Certificateholder (or the related Companion Holder, if applicable) shall have any duties under such Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its option and without penalty; provided, however, that the Initial Sub-Servicing Agreements may only be terminated by the Trustee or its designees as contemplated by Section 3.20(g) and in such additional manner and by such other Persons as is provided in such Sub-Servicing Agreement; (v) does not permit the Sub-Servicer any direct rights of indemnification that may be satisfied out of assets of the Trust except through the applicable Master Servicer or the applicable Special Servicer, as the case may be, if and only to the extent provided pursuant to Section 6.04; (vi) does not permit the

 

 -297-

 

 

Sub-Servicer to modify any Mortgage Loan unless and to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, is permitted hereunder to modify such Mortgage Loan; (vii) does not permit the Sub-Servicer to take any action constituting a Major Decision without the consent of the applicable Master Servicer or the applicable Special Servicer, as applicable (which consent shall not be granted except in accordance with Section 6.08); (viii) with respect to any Sub-Servicing Agreement entered into after the Closing Date, if such Sub-Servicer is a Servicing Function Participant or an Additional Servicer, such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered into, is not a Prohibited Party; and (ix) provides that the Sub-Servicer shall be in default under the related Sub-Servicing Agreement and such Sub-Servicing Agreement shall be terminated (following the expiration of any applicable grace period) if the Sub-Servicer fails (A) to deliver by the due date any Exchange Act reporting items required to be delivered to the applicable Master Servicer, the Certificate Administrator or the Depositor under Article XI or under the Sub-Servicing Agreement or to the master servicer under any other pooling and servicing agreement that the Depositor is a party to, or (B) to perform in any material respect any of its covenants or obligations contained in the Sub-Servicing Agreement regarding creating, obtaining or delivering any Exchange Act reporting items required for any party to this Agreement to perform its obligations under Article XI or under the Exchange Act reporting items required under any other pooling and servicing agreement that the Depositor is a party to. Any successor master servicer or successor special servicer, as applicable, hereunder shall, upon becoming a successor master servicer or successor special servicer, as applicable, be assigned and may assume any Sub-Servicing Agreements from the predecessor Master Servicer or Special Servicer, as the case may be (subject to Section 3.20(g)). In addition, each Sub-Servicing Agreement entered into by the applicable Master Servicer may but need not provide that the obligations of the Sub-Servicer thereunder may terminate with respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced Loan; provided, however, that the Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) that the Sub-Servicer will continue to make all Advances and calculations and prepare all reports required under the Sub-Servicing Agreement with respect to Specially Serviced Loans and continue to collect its Primary Servicing Fees as if no Servicing Transfer Event had occurred and with respect to REO Properties (and the related REO Loans) as if no REO Acquisition had occurred and to render such incidental services with respect to such Specially Serviced Loans and REO Properties as are specifically provided for in such Sub-Servicing Agreement. The applicable Master Servicer or applicable Special Servicer, as the case may be, shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any amendments thereto and modifications thereof, entered into by it, in each case promptly upon its execution and delivery of such documents. References in this Agreement to actions taken or to be taken by the applicable Master Servicer include actions taken or to be taken by a Sub-Servicer on behalf of each Master Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it need not so provide) to satisfy the obligations of the applicable Master Servicer hereunder to make Advances shall be deemed to have been advanced by the applicable Master Servicer out of its own funds and, accordingly, in such event, such Advances shall be recoverable by such Sub-Servicer in the same manner and out of the same funds as if such Sub-Servicer were the applicable Master Servicer, and, for so long as they are outstanding, such Advances shall accrue interest in accordance with Section 3.03(d), such

 

 -298-

 

 

interest to be allocable between the applicable Master Servicer and such Sub-Servicer as may be provided (if at all) pursuant to the terms of the Sub-Servicing Agreement. For purposes of this Agreement, each Master Servicer shall be deemed to have received any payment when a Sub-Servicer retained by it receives such payment. The applicable Master Servicer or the applicable Special Servicer, as the case may be, shall notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, the Trustee and the Depositor (and such Special Servicer shall notify the Operating Advisor) in writing promptly of the appointment by it of any Sub-Servicer, except that a Master Servicer need not provide such notice as to the Initial Sub-Servicing Agreements.

 

(b)       Each Sub-Servicer shall be authorized to transact business in the state or states in which the related Mortgaged Properties it is to service are situated, if and to the extent required by applicable law to the extent necessary to ensure the enforceability of the related Mortgage Loans or the compliance with its obligations under the Sub-Servicing Agreement and the applicable Master Servicer’s obligations under this Agreement.

 

(c)       As part of its servicing activities hereunder, the applicable Master Servicer and the applicable Special Servicer for the benefit of the Trustee and the Certificateholders, shall (at no expense to the Trustee, the Certificateholders or the Trust) monitor the performance and enforce the obligations of each of its Sub-Servicers under the related Sub-Servicing Agreement, except that the applicable Master Servicer shall be required only to use reasonable efforts to cause any Initial Sub-Servicer to comply with the requirements of Article XI. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Sub-Servicing Agreements in accordance with their respective terms and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as is in accordance with the Servicing Standard. The applicable Master Servicer shall have the right to remove a Sub-Servicer retained by it pursuant to the terms of the related Sub-Servicing Agreement.

 

(d)      In the event the Trustee or its designee becomes a successor master servicer and assumes the rights and obligations of a Master Servicer under any Sub-Servicing Agreement, the applicable Master Servicer, at its expense, shall deliver to the assuming party all documents and records relating to such Sub-Servicing Agreement and the Mortgage Loans and, if applicable, the Companion Loans then being serviced thereunder and an accounting of amounts collected and held on behalf of it thereunder, and otherwise use reasonable efforts to effect the orderly and efficient transfer of the Sub-Servicing Agreement to the assuming party.

 

(e)       Notwithstanding the provisions of any Sub-Servicing Agreement and this Section 3.20, except to the extent provided in Article XI with respect to the obligations of any Sub-Servicer that is an Initial Sub-Servicer, the applicable Master Servicer shall remain obligated and responsible to the Trustee, the applicable Special Servicer, holders of the Companion Loans serviced hereunder and the Certificateholders for the performance of its obligations and duties under this Agreement in accordance with the provisions hereof to the same extent and under the same terms and conditions as if it alone were servicing and administering the Mortgage Loans for which it is responsible, and the applicable Master Servicer shall pay the fees of any Sub-Servicer thereunder as and when due from its own funds. In no event shall the

 

 -299-

 

 

Trust bear any termination fee required to be paid to any Sub-Servicer as a result of such Sub-Servicer’s termination under any Sub-Servicing Agreement.

 

(f)       The Trustee, upon the request of the applicable Master Servicer, shall furnish to any Sub-Servicer any documents necessary or appropriate to enable such Sub-Servicer to carry out its servicing and administrative duties under any Sub-Servicing Agreement.

 

(g)       Each Sub-Servicing Agreement shall provide that, in the event the Trustee or any other Person becomes a successor master servicer, the Trustee or such successor master servicer shall have the right to terminate such Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding the foregoing or any other contrary provision in this Agreement, the Trustee and any successor master servicer shall assume each Initial Sub-Servicing Agreement and (i) the Initial Sub-Servicer’s rights and obligations under the Initial Sub-Servicing Agreement shall expressly survive a termination of the applicable Master Servicer’s servicing rights under this Agreement; provided that the Initial Sub-Servicing Agreement has not been terminated in accordance with its provisions; (ii) any successor master servicer, including, without limitation, the Trustee (if it assumes the servicing obligations of the applicable Master Servicer) shall be deemed to automatically assume and agree to the then-current Initial Sub-Servicing Agreement without further action upon becoming the successor master servicer and (iii) this Agreement may not be modified in any manner which would increase the obligations or limit the rights of the Initial Sub-Servicer hereunder and/or under the Initial Sub-Servicing Agreement, without the prior written consent of the Initial Sub-Servicer (which consent shall not be unreasonably withheld).

 

(h)       With respect to Mortgage Loans subject to a Sub-Servicing Agreement with either Master Servicer, the applicable Special Servicer shall, upon request (such request to be made reasonably in advance as appropriate to the circumstances surrounding such request) of the related Sub-Servicer, reasonably cooperate in delivering reports and information, including remittance information, and affording access to information to the related Sub-Servicer that would be required to be delivered or afforded, as the case may be, to the applicable Master Servicer pursuant to the terms hereof.

 

(i)        Notwithstanding any other provision of this Agreement, no Special Servicer shall enter into any Sub-Servicing Agreement that provides for the performance by third parties of any or all of its obligations herein, without, prior to the occurrence and continuance of any Control Termination Event and other than with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder, the consent of the Directing Certificateholder, except to the extent necessary for the applicable Special Servicer to comply with applicable regulatory requirements.

 

Section 3.21   Interest Reserve Account.

 

(a)       On the P&I Advance Date occurring in each February and in any January that occurs in a year that is not a leap year (in each case, unless the related Distribution Date is the final Distribution Date), the Certificate Administrator, in respect of the Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account, an amount equal to one (1) day’s interest on the Stated Principal Balance of the Actual/360 Mortgage Loans as of the Due Date occurring

 

 -300-

 

 

in the month preceding the month in which the P&I Advance Date occurs at the related Net Mortgage Rate, to the extent a full Periodic Payment or P&I Advance is made in respect thereof (all amounts so deposited in any consecutive February and January “Withheld Amounts”).

 

(b)       On each P&I Advance Date occurring in March (or February, if the related Distribution Date is the final Distribution Date), the Certificate Administrator shall withdraw, from the Interest Reserve Account an amount equal to the Withheld Amounts from the preceding January (if applicable) and February, if any, and deposit such amount into the Lower-Tier REMIC Distribution Account.

 

Section 3.22   Directing Certificateholder and Operating Advisor Contact with Master Servicers and Special Servicers. Within a reasonable time upon request from the Directing Certificateholder or the Operating Advisor, as applicable, and no more often than on a monthly basis, each of the Master Servicers and the Special Servicers shall, without charge, make a knowledgeable Servicing Officer via telephone available to verbally answer questions from (a) the Directing Certificateholder ((i) prior to the occurrence and continuance of a Consultation Termination Event and (ii) other than with respect to any Excluded Loan as to such party) and (b) upon the occurrence and during the continuance of any Control Termination Event, the Operating Advisor (with respect to a Special Servicer only), regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is responsible.

 

Section 3.23   Controlling Class Certificateholders, Directing Certificateholder and the Risk Retention Consultation Party; Certain Rights and Powers of Directing Certificateholder and the Risk Retention Consultation Party. (a) Each Controlling Class Certificateholder is hereby deemed to have agreed by virtue of its purchase of a Certificate to provide its name and address to the Certificate Administrator and to notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer and the Operating Advisor of the transfer of any Certificate of a Controlling Class by delivering a notice to each such Person substantially in the form of Exhibit NN attached hereto, the selection of a Directing Certificateholder or the resignation or removal thereof. The Directing Certificateholder (other than the Loan-Specific Directing Certificateholder) is hereby deemed to have agreed by virtue of its purchase of a Certificate to notify the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator, the Trustee and the Operating Advisor when such Certificateholder is appointed Directing Certificateholder and when it is removed or resigns. To the extent there is only one Controlling Class Certificateholder and it is also the General Special Servicer, it shall be the Directing Certificateholder.

 

On the Closing Date, the initial Directing Certificateholder (other than any Loan-Specific Directing Certificateholder) shall execute and deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1G to this Agreement. Upon the resignation or removal of the existing Directing Certificateholder (other than any Loan-Specific Directing Certificateholder), any successor directing certificateholder shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1G to this Agreement prior to being recognized as the new Directing Certificateholder.

 

 -301-

 

 

On the Closing Date, the initial Risk Retention Consultation Party shall execute and deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1H to this Agreement. Upon the resignation or removal of the existing Risk Retention Consultation Party, any successor Risk Retention Consultation Party shall deliver to the parties to this Agreement a certification substantially in the form of Exhibit P-1H to this Agreement prior to being recognized as the new Risk Retention Consultation Party.

 

(b)       Once a Directing Certificateholder has been selected, each of the Master Servicers, the Special Servicers, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Controlling Class Certificateholders entitled to appoint the Directing Certificateholder, by Certificate Balance, or such Directing Certificateholder shall have notified the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor and each other Controlling Class Certificateholder, in writing, of the resignation of such Directing Certificateholder or the selection of a new Directing Certificateholder. In the event that (i) the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee or the Operating Advisor receives written notice from a majority of the Controlling Class Certificateholders that a Directing Certificateholder is no longer designated and (ii) the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or a representative thereof) becomes the Directing Certificateholder pursuant to the proviso of the definition of “Directing Certificateholder”, then the Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class (or its representative) shall provide its name and address to the Certificate Administrator and notify the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor that it is the new Directing Certificateholder; provided that the applicable Master Servicer, the Certificate Administrator, the applicable Special Servicer, the Trustee and the Operating Advisor shall be entitled to rely on the written notification provided by the purported Controlling Class Certificateholder that owns the largest aggregate Certificate Balance of the Controlling Class without independently verifying that such Controlling Class Certificateholder actually owns the largest aggregate Certificate Balance of the Controlling Class. The foregoing provisions shall not be applicable to the Directing Certificateholder that is a Loan-Specific Directing Certificateholder. Additionally, once a Risk Retention Consultation Party has been selected, each of the Master Servicers, the Special Servicers, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor and each other Certificateholder (or Certificate Owner, if applicable) shall be entitled to rely on such selection unless the Holders of the RR Interest entitled to appoint the Risk Retention Consultation Party, by Certificate Balance, or such Risk Retention Consultation Party shall have notified the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor and each other Holder of the RR Interest, in writing, of the selection of a new Risk Retention Consultation Party.

 

(c)       Until it receives notice to the contrary, each of the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor and the Trustee shall be entitled to rely on the most recent notification with respect to the identity of the Controlling Class Certificateholder, the Directing Certificateholder and the Risk Retention Consultation Party.

 

 -302-

 

 

(d)      In the event that no Directing Certificateholder or Risk Retention Consultation Party, as applicable, has been appointed or identified to either Master Servicer or either Special Servicer, as applicable, and such Master Servicer or such Special Servicer, as the case may be, has attempted to obtain such information from the Certificate Administrator and no such entity has been identified to such Master Servicer or such Special Servicer, as applicable, then until such time as the new Directing Certificateholder or Risk Retention Consultation Party, as applicable, is identified to such Master Servicer or such Special Servicer, as applicable, such Master Servicer or such Special Servicer, as applicable, shall have no duty to consult with, provide notice to, or seek the approval or consent of any such Directing Certificateholder or Risk Retention Consultation Party, as applicable, as the case may be.

 

(e)       Upon request, the Certificate Administrator shall deliver to the Depositor, Trustee, the Special Servicers, the Operating Advisor, the Master Servicers and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, a list of each Controlling Class Certificateholder as reflected in the Certificate Register, including names and addresses. In addition to the foregoing, within five (5) Business Days of receiving notice of the selection of a new Directing Certificateholder or Risk Retention Consultation Party or the existence of a new Controlling Class Certificateholder, the Certificate Administrator shall notify the Trustee, the Operating Advisor, the applicable Master Servicer and the applicable Special Servicer. Notwithstanding the foregoing, (A) BIG BNK37, LLC shall be the initial Directing Certificateholder (but not the Loan-Specific Directing Certificateholder) and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing; provided that if such Directing Certificateholder resigns, there shall be no Directing Certificateholder until such time as one is appointed pursuant to the terms of this Agreement and the Special Servicer or any other party under this Agreement shall not be required to consent or consult with, or provide notices or documents to, such Directing Certificateholder, and (B) Wells Fargo Bank, National Association shall be the initial Risk Retention Consultation Party and shall remain so until a successor is appointed pursuant to the terms of this Agreement or until a Consultation Termination Event occurs and is continuing.

 

Until it receives notice to the contrary, each of the Master Servicers, the Special Servicers, the Operating Advisor, the Certificate Administrator and the Trustee shall be entitled to rely on the preceding sentence with respect to the identity of the Directing Certificateholder and the Risk Retention Consultation Party.

 

(f)        If the Certificate Administrator determines that a Class of Book-Entry Certificates is the Controlling Class, the Certificate Administrator shall notify the related Certificateholders of such Class (through the Depository) of the Class becoming the Controlling Class.

 

(g)       Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class or in its own interest; (iii) the Directing Certificateholder does not have any liability or duties to the Holders of any Class of Certificates other than the Controlling Class (or in the case of the Loan-

 

 -303-

 

 

Specific Directing Certificateholder has no liabilities or duties to the Controlling Class or the Holders of any Class of Certificates); (iv) the Directing Certificateholder may take actions that favor interests of the Holders of one or more Classes including the Controlling Class or itself over the interests of the Holders of one or more other Classes of Certificates, or in the case of the Loan-Specific Directing Certificateholder, its own interests; and (v) the Directing Certificateholder shall have no liability whatsoever (other than to a Controlling Class Certificateholder; provided that the Loan-Specific Directing Certificateholder shall have no such liability) for having so acted as set forth in clauses (i) through (iv) above, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal of the Directing Certificateholder for having so acted.

 

Each Certificateholder acknowledges and agrees, by its acceptance of its Certificates, that: (i) the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of one or more Classes of Certificates; (ii) the Risk Retention Consultation Party may act solely in the interests of the Holders of the RR Interest; (iii) the Risk Retention Consultation Party does not have any liability or duties to the Holders of any Class of Certificates other than the RR Interest; (iv) the Risk Retention Consultation Party may take actions that favor interests of the Holders of one or more Classes including the RR Interest over the interests of the Holders of one or more other Classes of Certificates; and (v) the Risk Retention Consultation Party shall have no liability whatsoever (other than to a Holder of an RR Interest) for having so acted as set forth in clauses (i) through (iv) above, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal of the Risk Retention Consultation Party for having so acted.

 

(h)       All requirements of each Master Servicer and each Special Servicer to provide notices, reports, statements or other information (including the access to information on a website) to the Directing Certificateholder contained in this Agreement shall also apply to each Companion Holder with respect to information relating to the related Serviced AB Mortgage Loan or a Serviced Whole Loan, as applicable; provided, however, that nothing in this subsection (h) shall in any way eliminate the obligation to deliver any information required to be delivered under the related Intercreditor Agreement.

 

(i)        Until it receives notice to the contrary, each of the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee and the Operating Advisor shall be entitled to rely on the most recent notification with respect to the identity and contact information of the Controlling Class Certificateholder, the Directing Certificateholder, the Risk Retention Consultation Party and any Serviced AB Whole Loan Controlling Holder.

 

(j)        With respect to a Serviced Whole Loan and any approval and consent rights in this Agreement with respect to such Serviced Whole Loan, the related Serviced Whole Loan Controlling Holder shall exercise such rights in accordance with the related Intercreditor Agreement.

 

(k)       The Certificate Registrar shall determine which Class of Certificates is then-current Controlling Class within two (2) Business Days of a request from the applicable

 

 -304-

 

 

Master Servicer, the applicable Special Servicer, Certificate Administrator, Trustee, or any Certificateholder and provide such information to the requesting party.

 

(l)        [RESERVED].

 

(m)      Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall (i) include on its statement made available pursuant to Section 4.02(a) of this Agreement the identity of the new Controlling Class and (ii) provide to the Master Servicers, the Special Servicers and the Operating Advisor notice of such event and the identity and contact information of the new Controlling Class Certificateholder (the cost of obtaining such information from DTC being an expense of the Trust). The Certificate Administrator shall notify the Operating Advisor, the Master Servicers and the Special Servicers within ten (10) Business Days of the existence or cessation of (i) any Control Termination Event, or (ii) any Consultation Termination Event. Upon the Certificate Administrator’s determination that a Control Termination Event or a Consultation Termination Event has occurred or is terminated, the Certificate Administrator shall, within ten (10) Business Days, post a “special notice” on the Certificate Administrator’s Website pursuant to this provision.

 

In the event that a Control Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Control Termination Event has occurred due to the reduction of the Certificate Balance of the Class F Certificates to less than 25% of the aggregate Original Certificate Balance thereof, with regard to the application of any Cumulative Appraisal Reduction Amounts.”

 

In the event that a Consultation Termination Event has occurred pursuant to clause (i) of the definition thereof, such special notice shall state “A Consultation Termination Event has occurred due to the reduction of the Certificate Balance of the Class F Certificates to less than 25% of the aggregate Original Certificate Balance thereof, without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts.”

 

In the event that a Consultation Termination Event has occurred due to the reduction of each Class of Control Eligible Certificates below 25% of its Original Certificate Balance, in each case without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts, such special notice shall state: “A Consultation Termination Event has occurred because no Class of Control Eligible Certificates exists where such class’s aggregate Certificate Balance is at least equal to 25% of the Original Certificate Balance of that class, in each case without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts.”

 

In the event of any transfer of a Class F Certificate, and upon notice to the Certificate Administrator in the form of Exhibit NN that results in a termination of a Control Termination Event or a Consultation Termination Event, such “special notice” shall state: “A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class Certificates to an unaffiliated third party which has terminated any waiver by the prior Holder.”

 

 -305-

 

 

The Directing Certificateholder shall not have any consent or consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either the Directing Certificateholder or the Holder of the majority of the Controlling Class. Likewise, the Risk Retention Consultation Party shall not have any consultation rights with respect to any Mortgage Loan determined to be an Excluded Loan as to either such Risk Retention Consultation Party or the Holder of the majority of the RR Interest. Notwithstanding the proviso to each of the definitions of “Control Termination Event” and “Consultation Termination Event”, in either such case, in respect of the servicing of any such Excluded Loan, a Control Termination Event and Consultation Termination Event will be deemed to have occurred with respect to such Excluded Loan.

 

Section 3.24   Intercreditor Agreements. (a) Each Master Servicer and Special Servicer acknowledges and agrees that each Serviced Whole Loan being serviced under this Agreement and each Mortgage Loan with mezzanine debt is subject to the terms and provisions of the related Intercreditor Agreement and each agrees to service each such Serviced Whole Loan, and each Mortgage Loan with mezzanine debt in accordance with the related Intercreditor Agreement and this Agreement, including, without limitation, effecting distributions and allocating reimbursement of expenses in accordance with the related Intercreditor Agreement and, in the event of any conflict between the provisions of this Agreement and the related Intercreditor Agreement, the related Intercreditor Agreement shall govern. Notwithstanding anything contrary in this Agreement, each of the Master Servicers and Special Servicers agrees not to take any action with respect to a Serviced Whole Loan, or a Mortgage Loan with mezzanine debt or the related Mortgaged Property without the prior consent of the related Companion Holder or mezzanine lender, as applicable, to the extent that the related Intercreditor Agreement provides that such Companion Holder or mezzanine lender, as applicable, is required or permitted to consent to such action. Each of the Master Servicers and Special Servicers acknowledges and agrees that each Companion Holder and each mezzanine lender or its respective designee has the right to purchase the related Mortgage Loan pursuant to the terms and conditions of this Agreement and the related Intercreditor Agreement to the extent provided for therein. Each Master Servicer and each Special Servicer further acknowledges and agrees that any Serviced Whole Loan Controlling Holder will have the right to replace the applicable Special Servicer solely with respect to the related Serviced Whole Loan, to the extent provided for herein and in the related Intercreditor Agreement.

 

(b)       Neither the applicable Master Servicer nor the applicable Special Servicer shall have any liability for any cost, claim or damage that arises from any entitlement in favor of a Companion Holder or a mezzanine lender under the related Intercreditor Agreement or conflict between the terms of this Agreement and the terms of such Intercreditor Agreement. Notwithstanding any provision of any Intercreditor Agreement that may otherwise require such Master Servicer or such Special Servicer to abide by any instruction or direction of a Companion Holder or a mezzanine lender, neither such Master Servicer nor such Special Servicer shall be required to comply with any instruction or direction the compliance with which requires an Advance that constitutes or would constitute a Nonrecoverable Advance. In no event shall any expense arising from compliance with an Intercreditor Agreement constitute an expense to be borne by the applicable Master Servicer or the applicable Special Servicer for its own account without reimbursement. In no event shall the applicable Master Servicer or the applicable Special Servicer be required to consult with or obtain the consent of any Companion Holder or a

 

 -306-

 

 

mezzanine lender unless such Companion Holder or mezzanine lender has delivered notice of its identity and contact information to each of the parties to this Agreement (upon which notice each of the parties to this Agreement shall be conclusively entitled to rely). As of the Closing Date, the contact information for the Companion Holders and mezzanine lenders is as set forth in the related Intercreditor Agreement. In no event shall the applicable Master Servicer or the applicable Special Servicer, as the case may be, be required to consult with or obtain the consent of a new Directing Certificateholder or a new Controlling Class Certificateholder or consult with a new Risk Retention Consultation Party unless the Certificate Administrator has delivered notice to such Master Servicer or such Special Servicer, as applicable, as required under Section 3.23(e) or such Master Servicer or such Special Servicer, as applicable, have actual knowledge of the identity and contact information of a new Directing Certificateholder or a new Controlling Class Certificateholder or a new Risk Retention Consultation Party.

 

(c)       No direction or disapproval of the Companion Holders or any mezzanine lender shall (a) require or cause the applicable Master Servicer or the applicable Special Servicer to violate the terms of a Mortgage Loan or Serviced Companion Loan, applicable law or any provision of this Agreement, including such Master Servicer’s or such Special Servicer’s obligation to act in accordance with the Servicing Standard and to maintain the REMIC status of each Trust REMIC and the grantor trust status of the Grantor Trust, (b) result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions or (c) materially expand the scope of the applicable Special Servicer’s, Trustee’s, the Certificate Administrator’s or the applicable Master Servicer’s responsibilities under this Agreement.

 

(d)      With respect to any Serviced Pari Passu Companion Loan, notwithstanding any rights the Operating Advisor, the Directing Certificateholder or the Risk Retention Consultation Party hereunder may have to consult with respect to any action or other matter with respect to the servicing of such Companion Loan, to the extent the related Intercreditor Agreement provides that such right is exercisable by the related Companion Holder or is exercisable in conjunction with any related Companion Holder, the Directing Certificateholder and the Risk Retention Consultation Party shall not be permitted to exercise such right or, to the extent provided in the related Intercreditor Agreement, shall be required to exercise such right in conjunction with the related Companion Holder, as applicable (except to the extent that the Directing Certificateholder or the Risk Retention Consultation Party is the related Serviced Whole Loan Controlling Holder). Additionally, notwithstanding anything in this Agreement to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall consult, seek the approval or obtain the consent of the holder of any Serviced Companion Loan with respect to any matters with respect to the servicing of such Companion Loan to the extent required under related Intercreditor Agreement and shall not take such actions requiring consent of the related Companion Holder without such consent. In addition, notwithstanding anything to the contrary, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall deliver reports and notices to the related Companion Holder as required under the Intercreditor Agreement.

 

(e)       Notwithstanding anything in this Agreement to the contrary, the applicable Special Servicer shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Controlling Class Certificateholder pursuant to this Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined

 

 -307-

 

 

in an Asset Status Report relating to a Serviced Whole Loan, to the related Companion Holder, within the same time frame it is required to provide to the Controlling Class Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Certificateholder under this Agreement due to the occurrence and continuance of a Control Termination Event or the occurrence and continuance of a Consultation Termination Event) and (ii) to consult with any related Companion Holder on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Companion Holder requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to a Serviced Whole Loan, and consider alternative actions recommended by such related Companion Holder; provided that after the expiration of a period of ten (10) Business Days from the delivery to such related Companion Holder by the applicable Special Servicer of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Controlling Class Certificateholder, the applicable Special Servicer shall no longer be obligated to consult with such related Companion Holder, whether or not such related Companion Holder has responded within such ten (10) Business Day period (unless, such Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the related Companion Holder set forth in the immediately preceding sentence, such Special Servicer may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if such Special Servicer determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Holder. In no event shall the applicable Special Servicer be obligated at any time to follow or take any alternative actions recommended by the related Companion Holder.

 

(f)       Each Serviced Pari Passu Companion Loan Holder shall have the right to attend (in person or telephonically, in the discretion of the applicable Master Servicer or applicable Special Servicer, as the case may be) annual meetings with the applicable Master Servicer or the applicable Special Servicer at the offices of such Master Servicer or such Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to such Master Servicer or such Special Servicer, as applicable, in which servicing issues related to the related Whole Loan are discussed.

 

(g)       With respect to any Serviced Whole Loan, the applicable Special Servicer shall not modify, waive or amend the terms of the related Intercreditor Agreement such that the monthly remittance to the holder of the related Companion Loan is required earlier than 2 Business Days after receipt by the applicable Master Servicer of the related Periodic Payment without the consent of such Master Servicer.

 

(h)       To the extent not otherwise expressly included herein, any provisions required to be included herein pursuant to any Intercreditor Agreement for a Whole Loan are deemed incorporated herein by reference, and the parties hereto shall comply with those provisions as if set forth herein in full.

 

 -308-

 

 

Section 3.25   Rating Agency Confirmation. (a) Notwithstanding the terms of any related Mortgage Loan documents or other provisions of this Agreement, if any action under any Mortgage Loan documents or this Agreement requires Rating Agency Confirmation as a condition precedent to such action, if the party (the “RAC Requesting Party”) attempting and/or required to obtain such Rating Agency Confirmation from each Rating Agency has made a request to any Rating Agency for such Rating Agency Confirmation and, within ten (10) Business Days of the Rating Agency Confirmation request being posted to the 17g-5 Information Provider’s Website, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then such RAC Requesting Party shall be required to confirm (through direct communication and not by posting any confirmation on the 17g-5 Information Provider’s Website) that the applicable Rating Agency has received the Rating Agency Confirmation request, and, if it has not, promptly request the related Rating Agency Confirmation again (which may be through direct communication). The circumstances described in the preceding sentence are referred to in this Agreement as a “RAC No-Response Scenario.” Once the RAC Requesting Party has sent a request for a Rating Agency Confirmation to the 17g-5 Information Provider, such RAC Requesting Party may, but shall not be obligated to send such request directly to the Rating Agencies in accordance with the procedures set forth in Section 13.10(d).

 

If there is no response to such Rating Agency Confirmation request within five (5) Business Days of such second request in a RAC No-Response Scenario or if such Rating Agency has responded in a manner that indicates such Rating Agency is neither reviewing such request nor waiving the requirement for Rating Agency Confirmation, then (x) with respect to any condition in any Mortgage Loan document requiring such Rating Agency Confirmation or with respect to any other matter under this Agreement relating to the servicing of the Mortgage Loans (other than as set forth in clause (y) below), the requirement to obtain a Rating Agency Confirmation shall be deemed not to apply (as if such requirement did not exist) with respect to such Rating Agency and the applicable Master Servicer or the applicable Special Servicer, as the case may be, may then take such action if the applicable Master Servicer or the applicable Special Servicer, as the case may be, confirms its original determination (made prior to making such request) that taking the action with respect to which it requested the Rating Agency Confirmation would still be consistent with the Servicing Standard, and (y) with respect to a replacement of the applicable Master Servicer or the applicable Special Servicer, such condition shall be deemed not to apply (as if such requirement did not exist) if (i) the applicable replacement master servicer or special servicer has been appointed and currently serves as a master servicer or a special servicer, as applicable, on a transaction-level basis on a commercial mortgage-backed securities transaction currently rated by Moody’s that currently has securities outstanding and for which Moody’s has not cited servicing concerns with respect to such replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a rating downgrade or withdrawal) of securities in a commercial mortgage-backed securitization transaction serviced by the applicable replacement master servicer or special servicer prior to the time of determination, if Moody’s is the non-responding Rating Agency, (ii) the applicable replacement master servicer or special servicer is rated at least “CMS3” (in the case of the replacement master servicer) or “CSS3” (in the case of the replacement special servicer), if Fitch is the non-responding Rating Agency or (iii) KBRA has

 

 -309-

 

 

not publicly cited servicing concerns with respect to the applicable replacement master servicer or special servicer as the sole or a material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any other commercial mortgage-backed securitization transaction serviced by such replacement master servicer or special servicer prior to the time of determination, if KBRA is the non-responding Rating Agency.

 

Any Rating Agency Confirmation request made by the Master Servicers, Special Servicers, Certificate Administrator or Trustee, as applicable, pursuant to this Agreement, shall be made in writing, which writing shall contain a cover page indicating the nature of the Rating Agency Confirmation request, and shall contain all back-up material necessary for the Rating Agency to process such request. Such written Rating Agency Confirmation request shall be provided in electronic format to the 17g-5 Information Provider, and the 17g-5 Information Provider shall post such request on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

Promptly following the applicable Master Servicer’s or the applicable Special Servicer’s determination to take any action discussed in this Section 3.25(a) following any requirement to obtain a Rating Agency Confirmation being deemed not to apply (as if such requirement did not exist), such Master Servicer or such Special Servicer, as applicable, shall provide electronic written notice to the 17g-5 Information Provider of the action taken for the particular item at such time, and the 17g-5 Information Provider shall promptly post such notice on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

(b)      Notwithstanding anything to the contrary in this Section 3.25, for purposes of the provisions of any Mortgage Loan document relating to defeasance (including without limitation the type of collateral acceptable for use as defeasance collateral) or release or substitution of any collateral, any Rating Agency Confirmation requirement in the Mortgage Loan documents for which the applicable Master Servicer or the applicable Special Servicer would have been permitted to waive obtaining or to make a determination with respect to such Rating Agency Confirmation pursuant to Section 3.25(a) shall be deemed not to apply (as if such requirement did not exist).

 

(c)       For all other matters or actions not specifically discussed in Section 3.25(a) above, the applicable RAC Requesting Party shall deliver Rating Agency Confirmation from each Rating Agency.

 

(d)      With respect to any Serviced Pari Passu Companion Loan as to which there exists Serviced Pari Passu Companion Loan Securities, if any action relating to the servicing and administration of the related Whole Loan or any related REO Property (including, but not limited to, the replacement of the applicable Master Servicer, the applicable Special Servicer or a sub-servicer) (the “Relevant Action”) requires delivery of a Rating Agency Confirmation as a condition precedent to such action pursuant to this Agreement, then such action will also require delivery of a confirmation of each Companion Loan Rating Agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Pari Passu Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency

 

 -310-

 

 

Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) as a condition precedent to such action, which confirmation shall be sought by the applicable Master Servicer or the applicable Special Servicer, as applicable, seeking the corresponding Rating Agency Confirmation(s) in connection with the Relevant Action.

 

Section 3.26   The Operating Advisor. (a) The Operating Advisor shall promptly review (i) all information made available to Privileged Persons on the Certificate Administrator’s Website (A) that relates to any Specially Serviced Loan, and (B) that is contained in the CREFC^® Servicer Watch List prepared by the applicable Master Servicer and (ii) each Final Asset Status Report delivered to the Operating Advisor by the applicable Special Servicer.

 

(b)       The Operating Advisor and its Affiliates will be obligated to keep confidential any information appropriately labeled as Privileged Information received from the applicable Special Servicer or Directing Certificateholder in connection with the Directing Certificateholder’s exercise of its rights under this Agreement (including, without limitation, in connection with the review and/or approval of any Asset Status Report), subject to any law, rule, regulation, order, judgment or decree requiring the disclosure of such Privileged Information. Subject to the terms and conditions in this Agreement related to Privileged Information, the Operating Advisor agrees that it shall use information received from the applicable Special Servicer pursuant to the terms of this Agreement solely for purposes of complying with its duties and obligations hereunder.

 

(c)       (i) After the occurrence and during the continuance of a Control Termination Event, based on the Operating Advisor’s review of any assessment of compliance report, attestation report, Asset Status Report and other information (other than any communications between the Directing Certificateholder and the applicable Special Servicer that would be Privileged Information) delivered to the Operating Advisor by such Special Servicer, including each Asset Status Report delivered during the prior calendar year, the Operating Advisor shall (if any Mortgage Loans were Specially Serviced Loans during the prior calendar year) deliver to the Certificate Administrator, the applicable Special Servicer and the 17g-5 Information Provider within one hundred-twenty (120) days of the end of the prior calendar year for which a Control Termination Event was continuing as of December 31, an annual report (the “Operating Advisor Annual Report”), substantially in the form of Exhibit V (which form may be modified or altered as to either its organization or content by the Operating Advisor, subject to compliance of such form with the terms and provisions of this Agreement including, without limitation, provisions herein relating to Privileged Information; provided, however, that in no event shall the information or any other content included in the Operating Advisor Annual Report contravene any provision of this Agreement), setting forth the Operating Advisor’s assessment of the applicable Special Servicer’s performance of its duties under this Agreement during the prior calendar year with respect to the resolution and/or liquidation of Specially Serviced Loans that the applicable Special Servicer is responsible for servicing under this Agreement; provided, further, however, that in the event the applicable Special Servicer is replaced, the Operating Advisor Annual Report shall only relate to such Special Servicer that was acting as Special Servicer as of December 31 in the prior calendar year and is continuing in such capacity through the date of such Operating Advisor Annual Report. Notwithstanding the foregoing, with respect to any Serviced AB Whole Loan, no Operating Advisor Annual Report will be permitted to include an assessment of the applicable Special Servicer’s performance in

 

 -311-

 

 

respect of such Serviced AB Whole Loan until after the occurrence and during the continuance of an AB Control Appraisal Period under the related Intercreditor Agreement. Subject to the restrictions in this Agreement, including, without limitation, Section 3.26(c), each such Operating Advisor Annual Report shall (A) identify any material deviations (i) from the Servicing Standard and (ii) from the applicable Special Servicer’s obligations under this Agreement with respect to the resolution or liquidation of Specially Serviced Loans or REO Properties that the applicable Special Servicer is responsible for servicing under this Agreement (other than with respect to any REO Property related to a Non-Serviced Mortgage Loan or any Servicing Shift Mortgage Loan) and (B) comply with all of the confidentiality requirements described in this Agreement regarding Privileged Information (subject to any permitted exceptions); provided that the Operating Advisor shall not be required to report on any instances of non-compliance with, or deviations from, the Servicing Standard or the applicable Special Servicer’s obligations under this Agreement that the Operating Advisor determines, in accordance with the Operating Advisor Standard, to be immaterial. Such Operating Advisor Annual Report shall be delivered to the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator (which shall promptly post such Operating Advisor Annual Report on the Certificate Administrator’s Website in accordance with Section 3.13(b)) and the 17g-5 Information Provider (which shall promptly post such Operating Advisor Annual Report on the 17g-5 Information Provider’s Website in accordance with Section 3.13(c)); provided, however, that the applicable Special Servicer shall be given an opportunity to review the Operating Advisor Annual Report at least five (5) Business Days prior to its delivery to the Certificate Administrator and the 17g-5 Information Provider. The Operating Advisor shall have no obligation to adopt any comments to the Operating Advisor Annual Report that are provided by the applicable Special Servicer. The Operating Advisor Annual Report shall be prepared on the basis of the applicable Special Servicer’s performance of its duties as they relate to the resolution and/or liquidation of Specially Serviced Loans, taking into account the applicable Special Servicer’s specific duties under this Agreement as well as the extent to which those duties were performed in accordance with the Servicing Standard, with reasonable consideration by the Operating Advisor of the items required to be reviewed by it pursuant to this Agreement. Notwithstanding the foregoing, no Operating Advisor Annual Report shall be required from the Operating Advisor with respect to any calendar year as to which no Final Asset Status Report was prepared by the applicable Special Servicer in connection with a Specially Serviced Loan or REO Property.

 

(ii)       In the event the Operating Advisor’s ability to perform its obligations in respect of the Operating Advisor Annual Report is limited or prohibited due to the failure of a party hereto to timely deliver information required to be delivered to the Operating Advisor or because such information is inaccurate or incomplete, the Operating Advisor shall set forth such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from such limitations or prohibitions. The Operating Advisor shall be entitled to conclusively rely on the accuracy and completeness of any information it is provided without liability for any such reliance hereunder. In the event a lack of access to Privileged Information limits or prohibits the Operating Advisor from performing its duties under this Agreement, the Operating Advisor shall set forth any such limitations or prohibitions in the related Operating Advisor Annual Report, and the Operating Advisor shall not be subject to any liability arising from its lack of access to Privileged Information.

 

 -312-

 

 

(d)      Prior to the occurrence and continuance of a Control Termination Event (or, with respect to a Serviced AB Whole Loan, prior to the occurrence and continuance of both a Control Termination Event and a related AB Control Appraisal Period), the applicable Special Servicer will forward any Appraisal Reduction Amount and net present value calculations used in the applicable Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan to the Operating Advisor after such calculations have been finalized. The Operating Advisor shall review such calculations but shall not opine on or take any affirmative action with respect to such Appraisal Reduction Amount calculations and/or net present value calculations (except that if the Operating Advisor discovers a material mathematical error contained in such calculations, then the Operating Advisor shall notify the Special Servicer of such error).

 

(e)       (i) After the occurrence and during the continuance of a Control Termination Event, and with respect to any Serviced AB Whole Loan, after the occurrence and during the continuance of both a Control Termination Event and an AB Control Appraisal Period, after the calculation but prior to the utilization by the applicable Special Servicer of any of the calculations related to (i) Appraisal Reduction Amounts or Collateral Deficiency Amount (if the applicable Special Servicer has calculated any such Appraisal Reduction Amount or Collateral Deficiency Amount) or (ii) net present value in accordance with Section 1.02(iv), the applicable Special Servicer shall forward such calculations, together with any supporting material or additional information that is either in the applicable Special Servicer’s possession or reasonably obtainable by the applicable Special Servicer and reasonably requested by the Operating Advisor to confirm the mathematical accuracy of such calculations, but not including any Privileged Communications), to the Operating Advisor promptly, but in any event no later than two (2) Business Days after preparing such calculations, and the Operating Advisor shall promptly, but no later than three (3) Business Days after receipt of such calculations and any supporting or additional materials, recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portion of the applicable formulas required to be utilized in connection with any such calculation.

 

(ii)       In connection with this Section 3.26(e), in the event the Operating Advisor does not agree with the mathematical calculations of the Appraisal Reduction Amount or Collateral Deficiency Amount (if calculated by the applicable Special Servicer) or net present value or the application of the applicable non-discretionary portions of the formula required to be utilized for such calculation, the Operating Advisor and the applicable Special Servicer shall consult with each other in order to resolve any material inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations or any disagreement within five (5) Business Days of delivery of such calculations. The applicable Master Servicer shall cooperate with such Special Servicer and provide any information reasonably requested by such Special Servicer necessary for the calculation of the Appraisal Reduction Amount or Collateral Deficiency Amount that is either in such Master Servicer’s possession or, solely with respect to Non-Specially Serviced Loans, reasonably obtainable by such Master Servicer. In the event the Operating Advisor and the applicable Special Servicer are not able to resolve such inaccuracies or disagreement prior to the end of such five (5) Business Day period, the Operating Advisor shall promptly notify the Certificate Administrator of such disagreement and the

 

 -313-

 

 

Certificate Administrator shall examine the calculations and supporting materials provided by the Operating Advisor and the applicable Special Servicer and determine which calculation is to apply and shall provide such parties prompt written notice of its determination.

 

(iii)       Notwithstanding the foregoing, the consultation duties of the Operating Advisor set forth in this Agreement shall not be permitted to be exercised by the Operating Advisor with respect to any Serviced AB Whole Loan until after the occurrence and during the continuance of both a Control Termination Event (except with respect to any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) and a related AB Control Appraisal Period.

 

(f)       Notwithstanding the foregoing, prior to the occurrence and continuance of an Control Termination Event, the Operating Advisor will be limited to an after-the-action review of any assessment of compliance, attestation report, Final Asset Status Report and other information delivered to the Operating Advisor by the applicable Special Servicer or made available to Privileged Persons that are posted on the Certificate Administrator’s Website during the prior calendar year (together with any additional information and material reviewed by the Operating Advisor), and, therefore, it shall have no specific involvement with respect to collateral substitutions, assignments, workouts, modifications, consents, waivers, lockbox management, insurance policies, borrower substitutions, lease changes, additional borrower debt, defeasances, property management changes, releases from escrow, assumptions and other similar actions that such Special Servicer may perform under this Agreement.

 

(g)       The Operating Advisor and its Affiliates shall keep all labeled Privileged Information confidential and shall not disclose such Privileged Information to any Person (including Certificateholders other than the Directing Certificateholder), other than (1) to the extent expressly required by this Agreement to the other parties to this Agreement with a notice indicating that such information is Privileged Information, (2) pursuant to a Privileged Information Exception or (3) where necessary to support specific findings or conclusions concerning allegations of deviations from the Servicing Standard (i) in the Operating Advisor Annual Report or (ii) in connection with a recommendation by the Operating Advisor to replace the applicable Special Servicer. Each party to this Agreement that receives Privileged Information from the Operating Advisor with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer and, unless a Control Termination Event has occurred and is continuing, the Directing Certificateholder (with respect to any Mortgage Loan other than a Non-Serviced Whole Loan and other than any Mortgage Loan that is an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) other than pursuant to a Privileged Information Exception. Notwithstanding the foregoing, the Operating Advisor shall be permitted to share Privileged Information with its Affiliates and any subcontractors of the Operating Advisor that agree in writing to be bound by the same confidentiality provisions applicable to the Operating Advisor.

 

(h)       Subject to the requirements of confidentiality imposed on the Operating Advisor herein (including without limitation in respect of Privileged Information), the Operating

 

 -314-

 

 

Advisor shall respond to Inquiries proposed by Privileged Persons from time to time in accordance with the terms of Section 4.07(a).

 

(i)        As compensation for its activities hereunder, the Operating Advisor shall be entitled to receive the Operating Advisor Fee on each Remittance Date with respect to each Mortgage Loan (including each Non-Serviced Mortgage Loan and Servicing Shift Mortgage Loan, but not any Companion Loan) and each REO Loan. As to each Mortgage Loan and each REO Loan, the Operating Advisor Fee shall accrue from time to time at the Operating Advisor Fee Rate and shall be computed on the basis of the Stated Principal Balance of such Mortgage Loan or REO Loan, as the case may be, and in the same manner as interest is calculated on the related Mortgage Loan or REO Loan, as the case may be, and, in connection with any partial month interest payment, for the same period respecting which any related interest payment due on the related Mortgage Loan or deemed to be due on such REO Loan is computed. In addition, the Depositor shall pay the Operating Advisor a fee of $5,000 (the “Operating Advisor Upfront Fee”) on the Closing Date.

 

The Operating Advisor shall be entitled to reimbursement of any Operating Advisor Expenses provided for pursuant to Section 3.26(d) and/or 6.04(b), such amounts to be reimbursed from amounts on deposit in the applicable Collection Account as provided by Section 3.26(e). Each successor operating advisor shall be required to acknowledge and agree to the terms of the preceding sentence.

 

In addition, the Operating Advisor Consulting Fee shall be payable to the Operating Advisor with respect to each Major Decision for which the Operating Advisor has consultation obligations hereunder. The Operating Advisor Consulting Fee shall be payable from funds on deposit in the Collection Accounts as provided in Section 3.05(a)(ii) of this Agreement, but, with respect to the period when the outstanding Certificate Balances of the Control Eligible Certificates has not been reduced to zero as a result of the allocation of Realized Losses to such Certificates, only to the extent such Operating Advisor Consulting Fee is actually received from the related Mortgagor. When the Operating Advisor has consultation obligations with respect to a Major Decision under this Agreement, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall use commercially reasonable efforts consistent with the Servicing Standard to collect the applicable Operating Advisor Consulting Fee from the related Mortgagor in connection with such Major Decision only to the extent not prohibited by the related Mortgage Loan documents, and in no event will it take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee. The applicable Master Servicer or applicable Special Servicer, as the case may be, may waive or reduce the amount of any Operating Advisor Consulting Fee payable by the related Mortgagor if it determines that such full or partial waiver is in accordance with the Servicing Standard, but in no event shall such Master Servicer or such Special Servicer take any enforcement action with respect to the collection of such Operating Advisor Consulting Fee other than requests for collection; provided that the Master Servicer or the Special Servicer, as applicable, shall consult, on a non-binding basis, with the Operating Advisor prior to any such waiver or reduction. Notwithstanding the foregoing, the Operating Advisor will have no obligations or consultation rights in its capacity as operating advisor with respect to: (i) any Non-Serviced Whole Loan or any related REO Property, (ii) any Serviced AB Whole Loan, prior to the occurrence and continuance of both an AB Control Appraisal Period and a Control Termination Event or (iii)

 

 -315-

 

 

any Servicing Shift Whole Loan or related REO Property; provided, further, that the Operating Advisor shall not be entitled to an Operating Advisor Consulting Fee with respect to any Non-Serviced Whole Loan.

 

(j)        After the occurrence and during the continuance of a Consultation Termination Event, the Operating Advisor may be removed upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Allocated Cumulative Appraisal Reduction Amounts are allocable) requesting a vote to replace the Operating Advisor with a replacement Operating Advisor selected by such Certificateholders (provided that the proposed replacement Operating Advisor is an Eligible Operating Advisor), (ii) payment by such requesting Holders to the Certificate Administrator of all reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote and (iii) receipt by the Trustee and the Certificate Administrator of Rating Agency Confirmation from each Rating Agency (which confirmations will be obtained by the Certificate Administrator at the expense of such Holders and will not constitute an additional expense of the Trust). The Certificate Administrator shall promptly provide written notice to all Certificateholders of such request by posting such notice on the Certificate Administrator’s Website in accordance with Section 3.13(b), and concurrently by mail, and conduct the solicitation of votes of all Certificates in such regard. Upon the vote or written direction of Holders of Certificates evidencing at least 75% of the Voting Rights (taking into account the application of Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances of Classes to which such Allocated Cumulative Appraisal Reduction Amounts are allocable), the Trustee shall immediately replace the Operating Advisor with the replacement Operating Advisor.

 

(k)       After the occurrence of an Operating Advisor Termination Event, the Trustee may, and upon the written direction of Holders of Certificates representing at least 25% of the Voting Rights (taking into account the application of any Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balance of the Classes of Certificates), the Trustee shall promptly terminate the Operating Advisor for cause and appoint a replacement Operating Advisor that is an Eligible Operating Advisor; provided that no such termination shall be effective until a successor operating advisor has been appointed and has assumed all of the obligations of the Operating Advisor under this Agreement. No such termination shall terminate, change, reduce, or otherwise modify the rights and obligations of the Operating Advisor that accrued prior to such termination, including the right to receive all amounts accrued and owing to it under this Agreement, and other than indemnification rights (arising out of events occurring prior to such termination). The Trustee may rely on a certification by the replacement Operating Advisor that it is an Eligible Operating Advisor. Upon any termination of the Operating Advisor and appointment of a successor to the Operating Advisor, the Trustee will, as soon as possible, be required to give written notice of the termination and appointment to the Special Servicers, the Master Servicers, the Certificate Administrator, the 17g-5 Information Provider (for posting to the 17g-5 Information Provider’s Website), the Depositor, the Directing Certificateholder, the Risk Retention Consultation Party, any Companion Holder and the Certificateholders.

 

(l)        The Holders of Certificates representing at least 25% of the Voting Rights affected by any Operating Advisor Termination Event hereunder may waive such Operating

 

 -316-

 

 

Advisor Termination Event within twenty (20) days of the receipt of notice from the Trustee of the occurrence of such Operating Advisor Termination Event. Upon any such waiver of an Operating Advisor Termination Event, such Operating Advisor Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of an Operating Advisor Termination Event by certificateholders, the trustee and the certificate administrator will be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Operating Advisor Termination Event prior to such waiver from the Trust.

 

(m)      Prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder shall have the right to consent, such consent not to be unreasonably withheld, conditioned or delayed, to the identity of any replacement Operating Advisor appointed pursuant to this Section 3.26; provided, further, that such consent will be deemed to have been granted if no objection is made within ten (10) Business Days following the Directing Certificateholder’s receipt of the request for consent and, if granted or deemed granted, such consent cannot thereafter be revoked or withdrawn.

 

(n)       The Operating Advisor may resign from its obligations and duties hereby imposed on it (a) upon thirty (30) days prior written notice to the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Asset Representations Reviewer, the Directing Certificateholder and the Risk Retention Consultation Party, if applicable, and (b) upon the appointment of, and the acceptance of such appointment by, a successor operating advisor that is an Eligible Operating Advisor and receipt by the Trustee of Rating Agency Confirmation from each Rating Agency. No such resignation by the Operating Advisor shall become effective until the replacement Operating Advisor shall have assumed the resigning Operating Advisor’s responsibilities and obligations. The resigning Operating Advisor shall pay all costs and expenses (including costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 3.26.

 

(o)       In the event there are no Classes of Certificates outstanding other than the Control Eligible Certificates, the Class R Certificates and the RR Interest, then all of the rights and obligations of the Operating Advisor shall terminate without payment of any termination fee (other than any rights or obligations that accrued prior to the date of such termination (including accrued and unpaid compensation) and other than indemnification rights arising out of events occurring prior to such termination). In connection with any termination pursuant to this Section 3.26(o), no successor operating advisor shall be appointed. Upon receipt of written notice of such acts by a Responsible Officer of the Trustee, the Trustee shall provide the Operating Advisor with prompt notice upon its termination pursuant to this Section 3.26(o).

 

(p)       In the event the Operating Advisor resigns or is otherwise terminated for any reason it shall remain entitled to any accrued and unpaid Operating Advisor Fees and Operating Advisor Consulting Fees and reimbursement of accrued and unpaid Operating Advisor Expenses pursuant to Section 3.26(i) and shall also remain entitled to any rights of indemnification provided hereunder.

 

(q)       The parties hereto agree, and the Certificateholders by their acceptance of their Certificates shall be deemed to have agreed, that (i) subject to Section 6.04, the Operating

 

 -317-

 

 

Advisor shall have no liability to any Certificateholder for any actions taken or for refraining from taking any actions under this Agreement, (ii) the Operating Advisor shall act solely as a contracting party to the extent set forth in this Agreement, (iii) the Operating Advisor shall have no (A) fiduciary duty, or (B) other duty except with respect to its specific obligations under this Agreement, and shall have no duty to any particular class of Certificates or particular Certificateholders, and (iv) the Operating Advisor does not constitute an “investment adviser” within the meaning of the Investment Advisers Act of 1940, as amended.

 

(r)       Neither the Operating Advisor nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker-dealer Affiliate of the Operating Advisor or (ii) investments by an Affiliate of the Operating Advisor if the Operating Advisor and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Operating Advisor under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Operating Advisor and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

 

(s)       The Operating Advisor shall at all times be an Eligible Operating Advisor and if the Operating Advisor ceases to be an Eligible Operating Advisor, the Operating Advisor shall immediately resign under Section 3.26(n) of this Agreement and the Trustee shall appoint a successor operating advisor subject to and in accordance with this Section 3.26. Notwithstanding the foregoing, if the Trustee is unable to find a successor operating advisor within thirty (30) days of the termination of the Operating Advisor, the Depositor shall be permitted to find a replacement.

 

(t)      The Operating Advisor may delegate its duties and obligations to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Agreement related to the Operating Advisor’s duties and obligations; provided that no agent or subcontractor may (i) be affiliated with a Sponsor, the Master Servicers, the Special Servicers, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, the Master Servicers, the Special Servicers, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Operating Advisor shall remain obligated and primarily liable for its obligations hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Operating Advisor alone were performing its obligations under this Agreement. The Operating Advisor shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Operating Advisor by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

 

 -318-

 

 

(u)       With respect to the determination of whether a Control Termination Event or Consultation Termination Event has occurred and is continuing, or has terminated, the Operating Advisor is entitled to rely solely on its receipt from the Certificate Administrator of notice thereof pursuant to Section 3.23(m), and, with respect to any obligations of the Operating Advisor that are performed only after the occurrence and continuance of a Control Termination Event and/or Consultation Termination Event, the Operating Advisor shall have no obligation to perform any such duties until the receipt of such notice or actual knowledge of the occurrence of a Control Termination Event or Consultation Termination Event, as applicable.

 

Section 3.27   Companion Paying Agent.  (a) With respect to each of the Serviced Companion Loans, the applicable Master Servicer shall be the Companion Paying Agent hereunder. The Companion Paying Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.

 

(b)       No provision of this Agreement shall be construed to relieve the Companion Paying Agent from liability for its negligent failure to act, bad faith or its own willful misfeasance; provided, however, that the duties and obligations of the Companion Paying Agent shall be determined solely by the express provisions of this Agreement. The Companion Paying Agent shall not be liable except for the performance of such duties and obligations, no implied covenants or obligations shall be read into this Agreement against the Companion Paying Agent. In the absence of bad faith on the part of the Companion Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth and correctness of the statements or conclusions expressed therein, upon any resolutions, certificates, statements, opinions, reports, documents, orders or other instrument furnished to the Companion Paying Agent by any Person and which on their face do not contradict the requirements of this Agreement.

 

(c)      In the case of each of the Serviced Companion Loans, upon the resignation or removal of the applicable Master Servicer pursuant to Article VII of this Agreement, the applicable Master Servicer, as the Companion Paying Agent, shall be deemed simultaneously to resign or be removed.

 

(d)      This Section 3.27 shall survive the termination of this Agreement or the resignation or removal of the Companion Paying Agent, as regards to rights accrued prior to such resignation or removal.

 

Section 3.28   Serviced Companion Noteholder Register.  The Companion Paying Agent shall maintain a register (the “Serviced Companion Noteholder Register”) with respect to each Serviced Companion Loan on which it will record the names and address of, and wire transfer instructions for, the Serviced Companion Noteholders from time to time, to the extent such information is provided in writing to it by each Serviced Companion Noteholder. The initial Serviced Companion Noteholders, along with their respective name and address, are listed on Exhibit S hereto. In the event a Serviced Companion Noteholder transfers a Serviced Companion Loan without notice to the Companion Paying Agent, the Companion Paying Agent shall have no liability for any misdirected payment in such Serviced Companion Loan and shall have no obligation to recover and redirect such payment.

 

 -319-

 

 

The Companion Paying Agent shall promptly provide the name and address of any Serviced Companion Noteholder to any party hereto or any successor Serviced Companion Noteholder upon written request and any such Person may, without further investigation, conclusively rely upon such information. The Companion Paying Agent shall have no liability to any Person for the provision of any such name and address.

 

For the avoidance of doubt, any notices or information required to be delivered pursuant to this Agreement by any party hereto to a Serviced Companion Noteholder with respect to a Serviced Companion Loan that has been included in an Other Securitization shall be provided to the Other Servicer under the Other Pooling and Servicing Agreement.

 

Section 3.29   Certain Matters Relating to the Whole Loans.  (a) In the event that any of the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer shall be replaced in accordance with the terms of the applicable Non-Serviced PSA, upon receipt of notice of a replacement, the applicable Master Servicer and the applicable Special Servicer shall acknowledge its successor as the successor to the applicable Non-Serviced Trustee, the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be.

 

(b)       If any of the Trustee, the Certificate Administrator or the applicable Master Servicer receives notice from a Rating Agency that the applicable Master Servicer is no longer an “approved” master servicer by any of the Rating Agencies rating the Certificates, then the Trustee, the Certificate Administrator or such Master Servicer, as applicable, shall promptly notify each Non-Serviced Master Servicer of the same.

 

(c)       In connection with the securitization of each Serviced Pari Passu Companion Loan (in each case, only while it is a Serviced Companion Loan), upon the request of (and at the expense of) the related Serviced Companion Noteholder (or its designee), each of the applicable Master Servicer, the applicable Special Servicer and the Trustee, as applicable, shall use reasonable efforts to cooperate with such Serviced Companion Noteholder in attempting to cause the related Mortgagor to provide information relating to such Whole Loan and the related notes, and that such holder reasonably determines to be necessary or appropriate, for inclusion in any disclosure document(s) relating to such Other Securitization.

 

(d)      In connection with the sale of any Non-Serviced Whole Loan by any Non-Serviced Special Servicer, upon receipt of any notices or materials required to be furnished by the Non-Serviced Special Servicer to the holder of the related Non-Serviced Mortgage Loan pursuant to the related Intercreditor Agreement, the applicable Special Servicer shall, prior to the occurrence and continuance of a Control Termination Event, forward such materials to the Directing Certificateholder for its consent, if such consent is required. The applicable Special Servicer may (with the consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event) waive any timing or delivery requirements related to such sale to the extent set forth in the related Intercreditor Agreement.

 

(e)       With respect to any Non-Serviced Mortgage Loan, the Directing Certificateholder, prior to the occurrence and continuance of a Consultation Termination Event, or the applicable Special Servicer, following the occurrence and during the continuance of a

 

 -320-

 

 

Consultation Termination Event, shall be entitled to exercise any consultation rights held by the holder of such Mortgage Loan in its capacity as a “Non-Controlling Note Holder” (or similar term identified in the related Intercreditor Agreement) under the related Intercreditor Agreement.

 

(f)         With respect to each Mortgage Loan that is part of a Whole Loan, this Agreement is subject to the related Intercreditor Agreement and incorporates by reference all provisions required to be included herein pursuant to such Intercreditor Agreement.

 

(g)       With respect to each Serviced Whole Loan, if any Serviced Companion Loan becomes the subject of an “asset review” (or such analogous term defined in the related Other Pooling and Servicing Agreement) pursuant to the related Other Pooling and Servicing Agreement, the applicable Master Servicer, the applicable Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the Other Asset Representations Reviewer or any other party to the Other Pooling and Servicing Agreement in connection with such Asset Review by providing the Other Asset Representations Reviewer or such other requesting party with any documents reasonably requested by the Other Asset Representations Reviewer or such other requesting party, but only to the extent such documents are in the possession of such Master Servicer, such Special Servicer, the Trustee or the Custodian, as the case may be, but in any event excluding any documents known to such Master Servicer, such Special Servicer, the Trustee or the Custodian to contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications.

 

(h)       With respect to any Non-Serviced Mortgage Loan, if the applicable Master Servicer or Special Servicer shall receive any communication from the applicable Non-Serviced Master Servicer or Non-Serviced Special Servicer regarding any “Master Servicer Decision” pursuant to clause (x) of the definition of such term, then such Master Servicer or Special Servicer shall forward the communication to the Directing Certificateholder (other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class and other than amendments to split or resize notes consistent with the terms of such Intercreditor Agreement) (and to the applicable Master Servicer, if the applicable Special Servicer is forwarding such communication, and to the applicable Special Servicer, if the applicable Master Servicer is forwarding such communication), and the applicable Master Servicer shall reasonably cooperate with the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, as the case may be, in effecting any action by the applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special Servicer, in any such case subject to and consistent with the related Intercreditor Agreement.

 

(i)        During the period from and after the date on which a Serviced Pari Passu Companion Loan is deposited into an Other Securitization, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date the General Master Servicer shall prepare (if and to the extent necessary) and deliver or cause to be delivered in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement the following reports and data files with respect to such Serviced Pari Passu Companion Loan: (A) to the extent the General Master Servicer has received the CREFC^® Special Servicer Loan File at the time required, the most recent CREFC^® Delinquent Loan Status Report, CREFC^® Historical Loan Modification/Forbearance and Corrected Mortgage Loan

 

 -321-

 

 

Report and the CREFC^® REO Status Report, (B) the CREFC^® Loan Setup File (only with respect to the first “distribution date” (or analogous term) as defined in the related Other Pooling and Servicing Agreement), (C) the most recent CREFC^® Property File and the CREFC^® Comparative Financial Status Report (in each case incorporating the data required to be included in the CREFC^® Special Servicer Loan File pursuant to Section 3.12(c) by the General Special Servicer and the General Master Servicer), (D) a CREFC^® Servicer Watch List with information that is current as of such Serviced Whole Loan Remittance Date, (E) a CREFC^® Financial File, (F) a CREFC^® Loan Level Reserve/LOC Report, (G) a CREFC^® Advance Recovery Report, (H) a CREFC^® Total Loan Report and (I) the CREFC^® Loan Periodic Update File. Additionally, not later than 5:00 p.m. (New York City time) on each related Serviced Whole Loan Remittance Date, the General Master Servicer shall deliver or cause to be delivered or make available in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement any applicable CREFC^® Loan Liquidation Reports, CREFC^® Loan Modification Reports and CREFC^® REO Liquidation Reports received from the General Special Servicer. In no event shall any report described in this subsection be required to reflect information that has not been collected by or delivered to the General Master Servicer, or any payments or collections not received by the General Master Servicer, as of the close of business on the Business Day prior to the Business Day on which the report is due. In addition, the General Master Servicer shall deliver or cause to be delivered or make available in electronic format to the related other master servicer under the related Other Pooling and Servicing Agreement, any and all other reports required to be delivered by the General Master Servicer to the Certificate Administrator hereunder pursuant to the terms hereof to the extent related to such Serviced Pari Passu Companion Loan.

 

(j)        On a Servicing Shift Securitization Date, (i) the Custodian shall, upon receipt of a Request for Release, transfer the related Mortgage File (other than the Mortgage Note evidencing the related Servicing Shift Mortgage Loan, the original of which shall be retained by the Custodian) for the related Servicing Shift Whole Loan to the related Non-Serviced Trustee under the related Non-Serviced PSA and retain a copy of such Mortgage File and (ii) the Master Servicer shall, upon receipt of notice from the applicable Mortgage Loan Seller that the applicable Servicing Shift Lead Note has been or is being securitized on the related Servicing Shift Securitization Date, transfer (and cooperate with reasonable requests in connection with such transfer of) the Servicing File for the related Servicing Shift Whole Loan, and any Escrow Payments, reserve funds and originals of items specified in clauses (x) and (xii) of the definition of “Mortgage File” for the related Servicing Shift Whole Loan, to the related Non-Serviced Master Servicer on the related Servicing Shift Securitization Date.

 

(k)       Promptly upon any change in the identity of the applicable Master Servicer, the successor Master Servicer shall deliver notice of such change (together with the contact information of such successor Master Servicer) to each Non-Serviced Trustee, Non-Serviced Certificate Administrator, Non-Serviced Special Servicer, Non-Serviced Master Servicer and Non-Serviced Operating Advisor.

 

Section 3.30   Certain Matters with Respect to Joint Mortgage Loans.

 

(a) If a Mortgage Loan Seller with respect to a Joint Mortgage Loan (a “Repurchasing Mortgage Loan Seller”) repurchases the Mortgage Note(s) (as such term is

 

 -322-

 

 

defined in this Section 3.30(a)) (a “Repurchased Note”) related to such Joint Mortgage Loan that it sold to the Depositor, but the other Mortgage Loan Seller with respect to such Joint Mortgage Loan does not repurchase the Mortgage Note(s) related to such Joint Mortgage Loan that it sold to the Depositor, the provisions of this Section 3.30 shall apply prior to the adoption, pursuant to Section 13.01(l), of any amendment to this Agreement that provides otherwise. Each Mortgage Loan Seller of a Joint Mortgage Loan has agreed pursuant to the terms of the related Mortgage Loan Purchase Agreement that the terms set forth in this Section 3.30 with respect to the servicing and administration of such Joint Mortgage Loan shall apply if one or more of the Mortgage Notes related to such Joint Mortgage Loan has been repurchased from the Trust and at least one other Mortgage Note related to such Joint Mortgage Loan is included in the Trust until such time as all of the Mortgage Notes related to such Joint Mortgage Loan are no longer included in the Trust. For purposes of this Section 3.30, Section 13.01(l) and Section 13.08(a) only, “Mortgage Note” shall mean with respect to any Joint Mortgage Loan, each original promissory note that collectively represents the Mortgage Note (as defined in Article I) with respect to such Joint Mortgage Loan and shall not be a collective reference to such promissory notes. With respect to any Joint Mortgage Loan that is part of a Whole Loan, clauses (b)–(j) below shall not apply, and the terms of the related Intercreditor Agreement shall continue to govern the relationship between the related Mortgage Notes as if each related Repurchased Note were a Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Companion Loan, as applicable. With respect to any other Joint Mortgage Loan, clauses (b)–(j) below shall apply to such Joint Mortgage Loan.

 

(b)       Custody of and record title under the Mortgage Loan documents with respect to the applicable Joint Mortgage Loan shall be held exclusively by the Custodian as provided under this Agreement or, with respect to a Non-Serviced Mortgage Loan, the Non-Serviced Custodian as provided under the related Non-Serviced PSA, except that the Repurchasing Mortgage Loan Seller shall hold and retain title to its original Repurchased Note(s) and any related endorsements thereof.

 

(i)        All of the Mortgage Notes with respect to any Joint Mortgage Loan shall be of equal priority with each other, and no portion of any Mortgage Note shall have priority or preference over any other portion of the other Mortgage Notes or security therefor. Payments from the related Mortgagor (including, without limitation, any Penalty Charges) or any other amounts received with respect to each Mortgage Note shall be collected as provided in this Agreement by the applicable Master Servicer and shall be applied upon receipt by such Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Payments or any other amounts received with respect to the related Repurchased Note shall be held in trust for the benefit of the applicable Repurchasing Mortgage Loan Seller and remitted (net of its pro rata share of amounts payable at the Administrative Cost Rate and any other amounts due to the applicable Master Servicer or the applicable Special Servicer) to the applicable Repurchasing Mortgage Loan Seller or its designee by the applicable Master Servicer on each Distribution Date pursuant to instructions provided by the applicable Repurchasing Mortgage Loan Seller and deposited and applied in accordance with this Agreement, subject to Section 3.30(b)(ii). If any Joint Mortgage Loan to which this Section 3.30 applies becomes an REO Loan, payments or any other amounts received with respect to any such Joint Mortgage Loan

 

 -323-

 

 

shall be collected and shall be applied upon receipt by the applicable Master Servicer pro rata to each related Mortgage Note based on its respective Mortgage Loan Seller Percentage Interest, subject to Section 3.30(b)(ii). Any Appraisal Reduction Amounts calculated with respect to any Joint Mortgage Loan subject to this Section 3.30 shall be allocated to each related Mortgage Note pro rata based upon the respective unpaid principal balances thereof.

 

(ii)       If the applicable Master Servicer or the applicable Special Servicer, as applicable, receives an aggregate payment of less than the aggregate amount due under any such Joint Mortgage Loan at any particular time, the applicable Repurchasing Mortgage Loan Seller shall receive from such Master Servicer an amount equal to its Mortgage Loan Seller Percentage Interest of such payment. All expenses, losses and shortfalls relating solely to such Joint Mortgage Loan including, without limitation, losses of principal or interest, Nonrecoverable Advances, interest on Servicing Advances, Special Servicing Fees, Workout Fees and Liquidation Fees (including any such fees related to the applicable Mortgage Notes), shall be allocated between the holders of the related Mortgage Notes pro rata based upon the respective unpaid principal balances thereof. In no event shall any costs, expenses, fees or any other amounts related to any Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage Loan be deducted from payments or any other amounts received with respect to such Joint Mortgage Loan and payable to the applicable Repurchasing Mortgage Loan Seller.

 

(iii)      A Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies shall be serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller and the Certificateholders pursuant to the terms and conditions of this Agreement in accordance with the Servicing Standard and in accordance with the provisions herein as if (A) such Joint Mortgage Loan were a Serviced Whole Loan, (B) the related Mortgage Note(s) not repurchased were (1) a Serviced Pari Passu Mortgage Loan and (2) the only Mortgage Loan that is part of such Joint Mortgage Loan (or related Serviced Whole Loan), and (C) the related Repurchased Note were a Serviced Pari Passu Companion Loan. No Repurchasing Mortgage Loan Seller shall be permitted to terminate the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor as servicer, special servicer or operating advisor, respectively, of the related Repurchased Note. All rights of the mortgagee under each such Joint Mortgage Loan shall be exercised by the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the Trust to the extent of its interest therein and the applicable Repurchasing Mortgage Loan Seller in accordance with this Agreement.

 

(iv)      With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the related Repurchasing Mortgage Loan Seller shall be treated hereunder as if it were a Serviced Pari Passu Companion Loan Holder on a pari passu basis. Funds collected by the applicable Master Servicer or the applicable Special Servicer, as applicable, and applied to the applicable Mortgage Notes shall be deposited and disbursed in accordance with the provisions hereof relating to holders of promissory notes comprising Serviced Whole Loans that are pari passu in right of payment. Compensation shall be paid to the applicable Master

 

 -324-

 

 

Servicer, the applicable Special Servicer and the Operating Advisor with respect to each Repurchased Note as provided in this Agreement as if each such Repurchased Note were a Serviced Pari Passu Companion Loan. None of the Trustee, the Certificate Administrator, the Custodian, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor shall have any obligation to make P&I Advances with respect to any Repurchased Note or, if no related Mortgage Note is part of the Trust, a Servicing Advance with respect to any Repurchased Note. Except as otherwise specified herein, the applicable Master Servicer and the applicable Special Servicer shall have no reporting requirement with respect to any Repurchased Note other than to deliver to the related Repurchasing Mortgage Loan Seller any document as is required to be delivered to a holder of a Serviced Pari Passu Companion Loan hereunder.

 

(c)       If any non-repurchased Mortgage Note relating to a Joint Mortgage Loan to which this Section 3.30 applies is a Specially Serviced Loan, then any related Repurchased Note shall also be a Specially Serviced Loan under this Agreement. The applicable Special Servicer shall cause such related Repurchased Note to be specially serviced for the benefit of the applicable Repurchasing Mortgage Loan Seller in accordance with the terms and provisions set forth in this Agreement and shall be entitled to any Special Servicing Fee, Workout Fee or Liquidation Fee payable to such Special Servicer under this Agreement as with respect to a Serviced Pari Passu Companion Loan.

 

(d)      If (A) the applicable Master Servicer shall pay any amount to any Repurchasing Mortgage Loan Seller pursuant to the terms hereof in the belief or expectation that a related payment has been made or will be received or collected in connection with any or all of the applicable Mortgage Notes and (B) such related payment is not received or collected by such Master Servicer, then the applicable Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer return such amount to such Master Servicer. If such Master Servicer determines at any time that any amount received or collected by such Master Servicer in respect of any Joint Mortgage Loan to which this Section 3.30 applies must be returned to the related Mortgagor or paid to any other person or entity pursuant to any insolvency law or otherwise, notwithstanding any other provision of this Agreement, such Master Servicer shall not be required to distribute any portion thereof to the related Repurchasing Mortgage Loan Seller, and such Repurchasing Mortgage Loan Seller shall promptly on demand by such Master Servicer repay (which obligation shall survive the termination of this Agreement) any portion thereof that such Master Servicer shall have distributed to such Repurchasing Mortgage Loan Seller, together with interest thereon at such rate, if any, as such Master Servicer may pay to the related Mortgagor or such other person or entity with respect thereto.

 

(e)       With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, subject to this Agreement (including, without limitation, the consent and consultation rights of the Directing Certificateholder and any consultation rights of the Operating Advisor), the applicable Master Servicer or the applicable Special Servicer, as applicable, on behalf of the holders of any of the Repurchased Notes, shall have the exclusive right and obligation to (i) administer, service and make all decisions and determinations regarding the related Joint Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as provided hereunder. Without limiting the generality of the preceding sentence, the applicable Master Servicer or the applicable Special Servicer, as

 

 -325-

 

 

applicable, may agree to any modification, waiver or amendment of any term of, forgive interest on and principal of, capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release of the related Mortgagor on or any guarantor of any Joint Mortgage Loan it is required to service and administer as contemplated by this Section 3.30, without the consent of the related Repurchasing Mortgage Loan Seller, subject, however, to the terms of this Agreement as they pertain to a Serviced Pari Passu Companion Loan.

 

(f)       In taking or refraining from taking any action permitted hereunder, the applicable Master Servicer and the applicable Special Servicer shall each be subject to the same degree of care with respect to the administration and servicing of the Joint Mortgage Loans that are not Non-Serviced Mortgage Loans and to which this Section 3.30 applies as is consistent with this Agreement and shall be liable to any Repurchasing Mortgage Loan Seller only to the same extent as set forth herein with respect to any holder of a Serviced Pari Passu Companion Loan.

 

(g)       If the Trustee, the applicable Master Servicer or the applicable Special Servicer has made a Servicing Advance with respect to any Repurchased Note which would otherwise be reimbursable to such advancing party under this Agreement, and such Advance is determined to be a Nonrecoverable Advance, the applicable Repurchasing Mortgage Loan Seller shall reimburse the Trust in an amount equal to such Repurchasing Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest of such Nonrecoverable Advance with interest thereon. Notwithstanding the foregoing, the applicable Repurchasing Mortgage Loan Seller shall not be obligated to reimburse the Trustee, the applicable Master Servicer or the applicable Special Servicer (and amounts due to the applicable Repurchasing Mortgage Loan Seller shall not be offset) for Advances or interest thereon or any amounts related to any Mortgage Loans or any other Joint Mortgage Loan other than such amounts relating to the applicable Repurchased Note. To the extent that the applicable Repurchasing Mortgage Loan Seller reimburses any such Nonrecoverable Advances and such amounts are subsequently recovered, the applicable Repurchasing Mortgage Loan Seller shall receive a reimbursement from such recovery based on its Mortgage Loan Seller Percentage Interest of such recovery. This reimbursement right shall not limit the Trustee’s, the applicable Master Servicer’s or the applicable Special Servicer’s rights to reimbursement under this Agreement. Notwithstanding anything to the contrary contained herein, the total liability of each Repurchasing Mortgage Loan Seller shall not exceed an amount equal to its Mortgage Loan Seller Percentage Interest of the amount to be reimbursed.

 

(h)       Each Repurchasing Mortgage Loan Seller shall have the right to assign the related Repurchased Note; provided that, with respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the assignee of the related Repurchased Note shall agree in writing to be bound by the terms of this Agreement.

 

(i)        With respect to a Joint Mortgage Loan that is not a Non-Serviced Mortgage Loan and to which this Section 3.30 applies, the applicable Master Servicer and the applicable Special Servicer shall, in connection with their servicing and administrative duties under this Agreement, exercise efforts consistent with the Servicing Standard to execute and deliver, on behalf of each Repurchasing Mortgage Loan Seller as a holder of a pari passu interest in the applicable Joint Mortgage Loan, any and all financing statements, continuation statements and other documents and instruments necessary to maintain the lien created by any Mortgage or

 

 -326-

 

 

other security document related to the applicable Joint Mortgage Loan on the related Mortgaged Property and related collateral, any and all modifications, waivers, amendments or consents to or with respect to the related Joint Mortgage Loan documents, and any and all instruments of satisfaction or cancellation, or of full release or discharge, and all other comparable instruments with respect to the related Repurchased Note or related Repurchased Notes and the related Mortgaged Property all in accordance with, and subject to, the terms of this Agreement. Each Repurchasing Mortgage Loan Seller agrees to furnish, or cause to be furnished, to the applicable Master Servicer and the applicable Special Servicer any powers of attorney or other documents necessary or appropriate to enable such Master Servicer or such Special Servicer, as the case may be, to carry out its servicing and administrative duties under this Agreement related to the applicable Joint Mortgage Loan; provided, that such Repurchasing Mortgage Loan Seller shall not be liable, and shall be indemnified by the applicable Master Servicer or the applicable Special Servicer, as applicable, for any negligence with respect to, or misuse of, any such power of attorney by such Master Servicer or such Special Servicer, as the case may be; provided, further, that the applicable Master Servicer or the applicable Special Servicer, without the written consent of the applicable Repurchasing Mortgage Loan Seller, shall not initiate any action in the name of such Repurchasing Mortgage Loan Seller without indicating its representative capacity or take any action with the intent to cause and that actually causes, such Repurchasing Mortgage Loan Seller to be registered to do business in any state.

 

(j)        Pursuant to the related Mortgage Loan Purchase Agreement, the applicable Repurchasing Mortgage Loan Seller is required to deliver to the applicable Master Servicer or the applicable Special Servicer, as applicable, the Mortgage Loan documents related to the applicable Repurchased Note, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or otherwise available at law or equity with respect to the related Repurchased Note.

 

Section 3.31   [RESERVED].

 

Section 3.32   Litigation Control. (a) With respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan), any Serviced Companion Loan or any related REO Loan or related REO Property, the applicable Special Servicer shall, in accordance with the Servicing Standard, direct, manage, prosecute and/or defend any action brought by a Mortgagor, guarantor, or other obligor on the related Note or any Affiliates thereof (each a “Borrower-Related Party”) against the Trust, either Master Servicer and/or any Special Servicer or any predecessor master servicer or special servicer, and represent the interests of the Trust in any litigation relating to the rights and obligations of the Trust, or of the Mortgagor or other Borrower-Related Party under the related Mortgage Loan documents, or with respect to the related Mortgaged Property or other collateral securing such Mortgage Loan (or Serviced Whole Loan), or otherwise with respect to the enforcement of the obligations of a Borrower-Related Party under the related Mortgage Loan documents (“Trust-Related Litigation”). In the event that either Master Servicer is named in any Trust-Related Litigation but neither of the Special Servicers is named in such Trust-Related Litigation (regardless of whether the Trust is named in such Trust-Related Litigation), the applicable Master Servicer shall notify the applicable Special Servicer of such litigation as soon as practicable but in any event no later than within ten (10) Business Days of such Master

 

 -327-

 

 

Servicer receiving service of such Trust-Related Litigation. The Operating Advisor shall not be required to review the actions of the applicable Special Servicer with respect to Trust-Related Litigation unless such review is otherwise related to the performance of the Operating Advisor’s duties, rights and obligations in respect of a Final Asset Status Report and/or Asset Status Report.

 

(b)       To the extent a Master Servicer is named in the Trust-Related Litigation, and neither the Trust nor a Special Servicer is named, in order to effectuate the role of the applicable Special Servicer as contemplated by the immediately preceding subsection, such Master Servicer shall (i) provide monthly status reports to the applicable Special Servicer regarding such Trust-Related Litigation; (ii) seek to have the Trust replace such Master Servicer as the appropriate party to the lawsuit; and (iii) so long as such Master Servicer remains a party to the lawsuit, consult with and act at the direction of the applicable Special Servicer with respect to decisions and resolutions related to the interests of the Trust in such Trust-Related Litigation, including but not limited to the selection of counsel; provided that such Master Servicer shall have the right to engage separate counsel relating to claims against such Master Servicer to the extent set forth in Section 3.32(e); and provided, however, that if there are claims against such Master Servicer and such Master Servicer has not determined that separate counsel is required for such claims, such counsel shall be reasonably acceptable to such Master Servicer.

 

(c)       Neither Special Servicer shall (i) undertake (or direct either Master Servicer to undertake) any material settlement of any Trust-Related Litigation or (ii) initiate any material Trust-Related Litigation unless and until it has notified in writing the Directing Certificateholder (only if the related Mortgage Loan is not an Excluded Loan and prior to the occurrence and continuance of a Consultation Termination Event) (to the extent the identity of the Directing Certificateholder is actually known to such Special Servicer; provided that such Special Servicer shall make due inquiry of the Certificate Administrator as to the identity of the Directing Certificateholder) and the related holder of any Serviced Companion Loan (if such matter affects such related Serviced Companion Loan) (to the extent the identity of the holder of such Serviced Companion Loan is actually known to such Special Servicer) and the Directing Certificateholder (only if the related Mortgage Loan is not an Excluded Loan and prior to the occurrence and continuation of a Control Termination Event) has not objected in writing within five (5) Business Days of having been notified thereof and having been provided with all information that the Directing Certificateholder has reasonably requested with respect thereto promptly following its receipt of the subject notice (it being understood and agreed that if such written objection has not been received by such Special Servicer within such five (5) Business Day period, then the Directing Certificateholder shall be deemed to have approved the taking of such action); provided that, if the applicable Special Servicer determines (consistent with the Servicing Standard) that immediate action is necessary to protect the interests of the Certificateholders and, with respect to a Serviced Whole Loan, the related Companion Holders, such Special Servicer may take such action without waiting for the Directing Certificateholder’s response.

 

(d)      Notwithstanding the foregoing, none of the Special Servicers or Master Servicers shall follow any advice, direction or consultation provided by the Directing Certificateholder or the Risk Retention Consultation Party (or any other party to this Agreement) that would require or cause such Special Servicer or Master Servicer, as applicable, to violate

 

 -328-

 

 

any applicable law, be inconsistent with the Servicing Standard, require or cause such Special Servicer or Master Servicer, as applicable, to violate provisions of this Agreement, require or cause such Special Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage Loan or Serviced Whole Loan, expose any Certificateholder or any party to this Agreement or their Affiliates, officers, directors or agents to any claim, suit or liability, cause any REMIC created hereunder to fail to qualify as a REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions or materially expand the scope of such Special Servicer’s or Master Servicer’s, as the case may be, responsibilities under this Agreement.

 

(e)       Notwithstanding the right of a Special Servicer to represent the interests of the Trust in Trust-Related Litigation, and subject to the rights of such Special Servicer to direct the applicable Master Servicer’s actions in this Section 3.32, such Master Servicer shall retain the right to make determinations relating to claims against such Master Servicer, including but not limited to the right to engage separate counsel and to appear in any proceeding on its own behalf in such Master Servicer’s reasonable discretion, the cost of which shall be subject to indemnification as and to the extent provided in this Agreement.

 

(f)       Further, nothing in this section shall require a Master Servicer to take or fail to take any action which, in such Master Servicer’s good faith and reasonable judgment, may (i) result in a violation of the REMIC Provisions or (ii) subject such Master Servicer to liability or materially expand the scope of such Master Servicer’s obligations under this Agreement.

 

(g)       Notwithstanding either Master Servicer’s right to make determinations relating to claims against such Master Servicer, the applicable Special Servicer shall have the right at any time in accordance with the Servicing Standard to (i) direct such Master Servicer to settle any claims asserted against such Master Servicer (whether or not the Trust or the applicable Special Servicer is named in any such claims or Trust-Related Litigation) (and with respect to any material settlements with respect to any Mortgage Loan other than an Excluded Loan, with the consent or consultation of the Directing Certificateholder prior to a Control Termination Event or Consultation Termination Event, respectively) and (ii) otherwise reasonably direct the actions of such Master Servicer relating to claims against such Master Servicer (whether or not the Trust or the applicable Special Servicer is named in any such claims or Trust-Related Litigation), provided in either case that (A) such settlement or other direction does not require any admission of liability or wrongdoing on the part of such Master Servicer, (B) the cost of such settlement or any resulting judgment is and shall be paid by the Trust and payment of such cost or judgment is provided for in this Agreement, (C) such Master Servicer is and shall be indemnified as and to the extent provided in this Agreement for all costs and expenses of such Master Servicer incurred in defending and settling the Trust-Related Litigation and for any judgment, (D) any such action taken by such Master Servicer at the direction of the applicable Special Servicer shall be deemed (as to such Master Servicer) to be in compliance with the Servicing Standard and (E) the applicable Special Servicer provides such Master Servicer with assurance reasonably satisfactory to such Master Servicer as to the items in clauses (A), (B) and (C).

 

(h)       In the event both a Master Servicer and a Special Servicer or Trust are named in Trust-Related Litigation, such Master Servicer and Special Servicer shall cooperate

 

 -329-

 

 

with each other to afford such Master Servicer and Special Servicer the rights afforded to such party in this Section 3.32.

 

This Section 3.32 shall not apply in the event the applicable Special Servicer authorizes the applicable Master Servicer, and such Master Servicer agrees (both authority and agreement to be in writing), to make certain decisions or control certain Trust-Related Litigation on behalf of the Trust in accordance with the Servicing Standard.

 

Notwithstanding the foregoing, (i) in the event that any action, suit, litigation or proceeding names the Trustee in its individual capacity, or in the event that any judgment is rendered against the Trustee in its individual capacity, the Trustee, upon prior written notice to the applicable Master Servicer or the applicable Special Servicer, as the case may be, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (ii) in the event of any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or Mortgaged Properties, none of the applicable Master Servicers or Special Servicers shall, without the prior written consent of the Trustee, (A) initiate an action, suit, litigation or proceeding in the name of the Trustee, whether in such capacity or individually, (B) engage counsel to represent the Trustee, or (C) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other similar actions with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state (provided that none of the Master Servicers or Special Servicers shall be responsible for any delay due to the unwillingness of the Trustee to grant such consent); and (iii) in the event that any court finds that the Trustee is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Trustee shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests, whether as Trustee or individually (but not to otherwise direct, manage or prosecute such litigation or claim); provided, however, that nothing in this subsection shall be interpreted to preclude the applicable Special Servicer (with respect to any material Trust-Related Litigation with respect to any Mortgage Loan other than an Excluded Loan, with the consent or consultation of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event or Consultation Termination Event, respectively, to the extent required in Section 3.32(c), respectively) from initiating any action, suit, litigation or proceeding in its name as representative of the Trustee of the Trust.

 

Section 3.33   Delivery of Excluded Information to the Certificate Administrator.  Any Excluded Information that a Master Servicer, a Special Servicer or the Operating Advisor identifies and delivers to the Certificate Administrator for posting to the Certificate Administrator’s Website shall be delivered to the Certificate Administrator via e-mail (or such other electronic means as is mutually acceptable to the parties) in one or more separate files labeled “Excluded Information” followed by the applicable loan name and loan file to cmbsexcludedinformation@wellsfargo.com. For the avoidance of doubt, any information that is not appropriately labeled and delivered in accordance with this Section 3.33 shall not be separately posted as Excluded Information on the Certificate Administrator’s Website, and any information appropriately labeled and delivered to the Certificate Administrator pursuant to this

 

 -330-

 

 

Section 3.33 shall be posted on the Certificate Administrator’s Website under the “Excluded Information” section, as provided under Section 3.13. When so posted, the Excluded Controlling Class Holders shall be prohibited from the access of Excluded Information with respect to any Excluded Controlling Class Loans on the Certificate Administrator’s Website (unless a loan-by-loan segregation is later performed by the Certificate Administrator in which case such access shall only be prohibited with respect to the related Excluded Controlling Class Loans). None of the Master Servicers, the Special Servicers or the Operating Advisor shall have any obligations to separately label and deliver any Excluded Information in accordance with this Section 3.33 until such party has received written notice with respect to the related Excluded Controlling Class Loan in the form of Exhibit P-1E to this Agreement. Nothing set forth in this Agreement shall prohibit the Directing Certificateholder or any Controlling Class Certificateholder from receiving, requesting or reviewing any Excluded Information relating to any Excluded Controlling Class Loan with respect to which the Directing Certificateholder or such Controlling Class Certificateholder is not a Borrower Party and, if such Excluded Information is not available on the Certificate Administrator’s Website on account of it constituting Excluded Information, such Directing Certificateholder or Controlling Class Certificateholder that is not a Borrower Party with respect to the related Excluded Controlling Class Loan shall be permitted to obtain such information in accordance with Section 4.02(f) of this Agreement, and each Master Servicer and each Special Servicer may require and rely on such certifications and other reasonable information prior to releasing any such information.

 

[End of Article III]

 

Article IV

DISTRIBUTIONS TO CERTIFICATEHOLDERS

 

Section 4.01   Distributions of Available Funds.  (a) On each Distribution Date, to the extent of the Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to each Class of Lower-Tier Regular Interests (other than the LRR Uncertificated Interest), and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

 

(i)        first, to the Holders of the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class A-SB Certificates, the Class X-A Certificates, the Class X-B Certificates, the Class X-D Certificates, the Class X-F Certificates, the Class X-G Certificates and the Class X-H Certificates and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest, Class A-4-X1 Upper-Tier Regular Interest, Class A-4-X2 Upper-Tier Regular Interest, Class A-5 Upper-Tier Regular Interest, Class A-5-X1 Upper-Tier Regular Interest and Class A-5-X2 Upper-Tier Regular Interest pro rata (based upon their respective entitlements to interest for such Distribution Date), in respect of interest, up to an amount equal to the aggregate

 

 -331-

 

 

Interest Distribution Amount in respect of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests for such Distribution Date;

 

(ii)       second, to the Holders of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, in reduction of the Certificate Balances thereof: (I) prior to the Cross-Over Date (1) first, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount, until the outstanding Certificate Balance of the Class A-SB Certificates has been reduced to the Class A-SB Planned Principal Balance for such Distribution Date; (2) second, to the Holders of the Class A-1 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clause (1) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-1 Certificates has been reduced to zero; (3) third, to the Holders of the Class A-2 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1) and (2) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-2 Certificates has been reduced to zero; (4) fourth, to the Holders of the Class A-3 Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2) and (3) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-3 Certificates has been reduced to zero; (5) fifth, to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3) and (4) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-4 Upper-Tier Regular Interest has been reduced to zero; (6) sixth, to the Grantor Trust in respect of the Class A-5 Upper-Tier Regular Interest in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4) and (5) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-5 Upper-Tier Regular Interest has been reduced to zero; and (7) seventh, to the Holders of the Class A-SB Certificates, in an amount up to the Principal Distribution Amount (or the portion thereof remaining after any distributions specified in sub-clauses (1), (2), (3), (4), (5) and (6) above have been made) for such Distribution Date, until the outstanding Certificate Balance of the Class A-SB Certificates has been reduced to zero; and (II) on or after the Cross-Over Date, to the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-SB Certificates, and the Class A-4 Upper-Tier Regular Interest, and Class A-5 Upper-Tier Regular Interest, pro rata (based on their respective Certificate Balances) in an amount equal to the Principal Distribution Amount for such Distribution Date, until the Certificate Balance of each of the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-SB Certificates and the Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest is reduced to zero;

 

(iii)      third, to the Holders of the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates, and to the Grantor Trust in respect of the Class A-4 Upper-Tier Regular Interest and the Class A-5 Upper-Tier Regular Interest, first, (A) up to an amount

 

 -332-

 

 

equal to, and pro rata with, the aggregate unreimbursed Realized Losses previously allocated to each such Class, then (B) up to an amount equal to, and pro rata in accordance with, all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for each such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed;

 

(iv)      fourth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, the Class A-S-X1 Upper-Tier Regular Interest and the Class A-S-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(v)       fifth, after the Certificate Balances of the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-SB Certificates and the Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest have been reduced to zero, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-SB Certificates and the Class A-4 Upper-Tier Regular Interest and Class A-5 Upper-Tier Regular Interest on such Distribution Date), until the outstanding Certificate Balance of the Class A-S Upper-Tier Regular Interest has been reduced to zero;

 

(vi)      sixth, to the Grantor Trust in respect of the Class A-S Upper-Tier Regular Interest, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest until the date such Realized Loss is reimbursed;

 

(vii)     seventh, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, the Class B-X1 Upper-Tier Regular Interest and the Class B-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(viii)    eighth, after the Certificate Balances of the Class A Certificates have been reduced to zero, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates on such Distribution Date), until the outstanding Certificate Balance of the Class B Upper-Tier Regular Interest has been reduced to zero;

 

(ix)      ninth, to the Grantor Trust in respect of the Class B Upper-Tier Regular Interest, first, (A) up to an amount equal to the aggregate of unreimbursed Realized

 

 -333-

 

 

Losses previously allocated to such Upper-Tier Regular Interest, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest until the date such Realized Loss is reimbursed;

 

(x)       tenth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, the Class C-X1 Upper-Tier Regular Interest and the Class C-X2 Upper-Tier Regular Interest, in respect of interest, up to an amount equal to, and pro rata in accordance with, the respective Interest Distribution Amounts in respect of such Upper-Tier REMIC Interests for such Distribution Date;

 

(xi)      eleventh, after the Certificate Balances of the Class A Certificates and Class B Upper-Tier Regular Interest have been reduced to zero, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates and the Class B Upper-Tier Regular Interest on such Distribution Date), until the outstanding Certificate Balance of the Class C Upper-Tier Regular Interest has been reduced to zero;

 

(xii)     twelfth, to the Grantor Trust in respect of the Class C Upper-Tier Regular Interest, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Upper-Tier Regular Interest, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Upper-Tier Regular Interest compounded monthly from the date the related Realized Loss was allocated to such Upper-Tier Regular Interest until the date such Realized Loss is reimbursed;

 

(xiii)    thirteenth, to the Holders of the Class D Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xiv)    fourteenth, after the Certificate Balances of the Class A Certificates, Class B Upper-Tier Regular Interest and Class C Upper-Tier Regular Interest have been reduced to zero, to the Holders of the Class D Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates, the Class B Upper-Tier Regular Interest and the Class C Upper-Tier Regular Interest on such Distribution Date), until the outstanding Certificate Balance of the Class D Certificates has been reduced to zero;

 

(xv)     fifteenth, to the Holders of the Class D Certificates, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed;

 

 -334-

 

 

(xvi)    sixteenth, to the Holders of the Class E Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xvii)   seventeenth, after the Certificate Balances of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest and Class D Certificates have been reduced to zero, to the Holders of the Class E Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest and Class D Certificates on such Distribution Date), until the outstanding Certificate Balance of the Class E Certificates has been reduced to zero;

 

(xviii)  eighteenth, to the Holders of the Class E Certificates, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed;

 

(xix)    nineteenth, to the Holders of the Class F Certificates, in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xx)     twentieth, after the Certificate Balances of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D Certificates and Class E Certificates have been reduced to zero, to the Holders of the Class F Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D Certificates and Class E Certificates on such Distribution Date), until the outstanding Certificate Balance of the Class F Certificates has been reduced to zero;

 

(xxi)    twenty-first, to the Holders of the Class F Certificates, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed;

 

(xxii)   twenty-second, to the Holders of the Class G Certificates in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xxiii)  twenty-third, after the Certificate Balances of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D

 

 -335-

 

 

Certificates, Class E Certificates and Class F Certificates have been reduced to zero, to the Holders of the Class G Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D Certificates, Class E Certificates and Class F Certificates on such Distribution Date), until the outstanding Certificate Balance of the Class G Certificates has been reduced to zero;

 

(xxiv)  twenty-fourth, to the Holders of the Class G Certificates, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed;

 

(xxv)    twenty-fifth, to the Holders of the Class H Certificates in respect of interest, up to an amount equal to the Interest Distribution Amount in respect of such Class of Certificates for such Distribution Date;

 

(xxvi)  twenty-sixth, after the Certificate Balances of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D Certificates, Class E Certificates, Class F Certificates and Class G Certificates have been reduced to zero, to the Holders of the Class H Certificates, in reduction of the Certificate Balance thereof, up to an amount equal to the Principal Distribution Amount (or the portion thereof remaining after any distributions in respect of the Class A Certificates, Class B Upper-Tier Regular Interest, Class C Upper-Tier Regular Interest, Class D Certificates, Class E Certificates, Class F Certificates and Class G Certificates on such Distribution Date), until the outstanding Certificate Balance of the Class H Certificates has been reduced to zero;

 

(xxvii) twenty-seventh, to the Holders of the Class H Certificates, first, (A) up to an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Class, then (B) up to an amount equal to all accrued and unpaid interest on the amount set forth in clause (A) at the Pass-Through Rate for such Class compounded monthly from the date the related Realized Loss was allocated to such Class until the date such Realized Loss is reimbursed; and

 

(xxviii) twenty-eighth, to the Holders of the Class R Certificates in respect of the Class UR Interest, the amount, if any, of the Available Funds remaining in the Upper-Tier REMIC Distribution Account with respect to such Distribution Date.

 

If, in connection with any Distribution Date, the Certificate Administrator has reported the amount of an anticipated distribution to DTC based on the receipt of payments as of the Determination Date and additional Periodic Payments, balloon payments or unscheduled principal payments are subsequently received by the applicable Master Servicer and required to be part of the Aggregate Available Funds for such Distribution Date, such Master Servicer shall promptly notify the Certificate Administrator and the Certificate Administrator will use

 

 -336-

 

 

commercially reasonable efforts to cause DTC to make the revised distribution on a timely basis on such Distribution Date. None of the Master Servicers, the Special Servicers or the Certificate Administrator shall be liable or held responsible for any resulting delay in the making of such distribution to Certificateholders solely on the basis of the actions described in the preceding sentence.

 

(b)       Distributions of Retained Certificate Available Funds. On each Distribution Date, to the extent of the Retained Certificate Available Funds for such Distribution Date, the Certificate Administrator shall be deemed to transfer the Lower-Tier Distribution Amount from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account in the amounts and priorities set forth in Section 4.01(c) with respect to the LRR Uncertificated Interest, and immediately thereafter, shall make distributions thereof from the Upper-Tier REMIC Distribution Account in the following order of priority, satisfying in full, to the extent required and possible, each priority before making any distribution with respect to any succeeding priority:

 

(i)        first, to the Holders of the RR Interest, in respect of interest, up to an amount equal to the Retained Certificate Interest Distribution Amount for such Distribution Date;

 

(ii)       second, to the Holders of the RR Interest, in reduction of the Certificate Balance thereof, an amount equal to the Retained Certificate Principal Distribution Amount for such Distribution Date, until the outstanding Certificate Balance of the RR Interest has been reduced to zero; and

 

(i)        third, to the Holders of the RR Interest, in an amount equal to the Retained Certificate Realized Loss Distribution Amount for such Distribution Date;

 

provided, however, that to the extent any Retained Certificate Available Funds remain in the Upper-Tier REMIC Distribution Account after applying amounts as set forth in clauses (i) – (iii) above, any such amounts so remaining shall be disbursed to the Holders of the Class R Certificates in respect of the Class UR Interest.

 

Amounts distributable or otherwise allocable to any Exchangeable Upper-Tier Regular Interest set forth above will be distributed to the corresponding Classes of Exchangeable Certificates in accordance with their Class Percentage Interests therein pursuant to Section 5.11.

 

(c)       On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to receive distributions in respect of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, in an amount equal to the amount of principal or reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, actually distributable to the Holders of the respective Related Certificates or Related Exchangeable Upper-Tier Regular Interests as provided in Section 4.01(a), Section 4.01(b), Section 4.01(d), Section 4.01(f) and Section 4.01(i) such that at all times the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests is equal to the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interests. On each Distribution Date, each Lower-Tier Regular Interest shall be deemed to

 

 -337-

 

 

receive distributions in respect of interest in an amount equal to the Interest Distribution Amount or Retained Certificate Interest Distribution Amount, as applicable, in respect of its Related Certificates or Related Exchangeable Upper-Tier Regular Interests, plus (A) a pro rata portion of the Interest Distribution Amount in respect of (i) in the case of the Class LA1, Class LA2, Class LA3, Class LASB, Class LA4 and Class LA5 Uncertificated Interests, the Class X-A Certificates, (ii) in the case of the Class LAS and Class LB Uncertificated Interests, the Class X-B Certificates, (iii) in the case of the Class LD and Class LE Uncertificated Interests, the Class X-D Certificates, (iv) in the case of the Class LF Uncertificated Interest, the Class X-F Certificates, (vi) in the case of the Class LG Uncertificated Interest, the Class X-G Certificates, and (vii) in the Case of the Class LH Uncertificated Interest, the Class X-H Certificates, and (B) in the case of the LRR Uncertificated Interest, the Retained Certificate Interest Distribution Amount in respect of the RR Interest, in each case, computed based on an interest rate equal to the excess of the Weighted Average Net Mortgage Rate over the Pass-Through Rate of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interests and a notional amount equal to its related Lower-Tier Principal Amount, in each case to the extent actually distributable thereon as provided in Section 4.01(a) or Section 4.01(b), as applicable. Amounts distributable pursuant to this paragraph are referred to herein collectively as the “Lower-Tier Distribution Amount”, and shall be made by the Certificate Administrator by deeming such Lower-Tier Distribution Amount to be withdrawn from the Lower-Tier REMIC Distribution Account to be deposited in the Upper-Tier REMIC Distribution Account.

 

As of any date, the principal balance of each Lower-Tier Regular Interest shall equal the Certificate Balance of the Class of Related Certificates or Related Exchangeable Upper-Tier Regular Interests with respect thereto, as adjusted for the allocation of Realized Losses and Retained Certificate Realized Losses, as provided in Section 4.01(b) and 4.04(c). The initial principal balance of each Lower-Tier Regular Interest shall equal the respective Original Lower-Tier Principal Amount. The pass-through rate with respect to each Lower-Tier Regular Interest shall be the rate per annum set forth in the Preliminary Statement hereto.

 

Any amount that remains in the Lower-Tier REMIC Distribution Account on each Distribution Date after distribution of the Lower-Tier Distribution Amount and distribution of Prepayment Premiums and Yield Maintenance Charges pursuant to Section 4.01(e) shall be distributed to the Holders of the Class R Certificates in respect of the Class LR Interest (but only to the extent of the Aggregate Available Funds for such Distribution Date remaining in the Lower-Tier REMIC Distribution Account, if any).

 

(d)      After the Certificate Balance of any Class of Certificates has been reduced to zero, such Class shall not be entitled to any further distributions in respect of interest or principal other than reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable (with interest as provided herein) and other amounts provided for in this Section 4.01.

 

(e)     Funds on deposit in the Distribution Account on each Distribution Date that represent Prepayment Premiums or Yield Maintenance Charges received by the Trust with respect to any Mortgage Loan or REO Loan during the related Collection Period, in each case net of any Liquidation Fees payable therefrom, shall be distributable as follows: if any Yield Maintenance Charge or Prepayment Premium is collected during any particular Collection

 

 -338-

 

 

Period with respect to any Mortgage Loan, then on the Distribution Date corresponding to that Collection Period, the Certificate Administrator shall pay that Yield Maintenance Charge or Prepayment Premium (net of Liquidation Fees or Workout Fees payable therefrom) in the following manner: (x) to the Non-Retained Certificates, in the following amounts: (i) to each of the Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1, Class A-5-2, Class A-S, Class A-S-1, Class A-S-2, Class B, Class B-1, Class B-2, Class C, Class C-1, Class C-2, Class D and Class E Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) the related Base Interest Fraction for such Class of Certificates, and (C) a fraction, the numerator of which is equal to the amount of principal distributed to such Class of Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date, (ii) to the Class A-4-X1 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-4-1 Certificates and the applicable principal prepayment; (iii) to the Class A-4-X2 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-4-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class A-4 Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-4-2 Certificates and the applicable principal prepayment; (iv) to the Class A-5-X1 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class A-5 Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-5-1 Certificates and the applicable principal prepayment; (v) to the Class A-5-X2 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-5-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base

 

 -339-

 

 

Interest Fraction for the Class A-5 Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-5-2 Certificates and the applicable principal prepayment; (vi) to the Class A-S-X1 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-S-1 Certificates and the applicable principal prepayment; (vii) to the Class A-S-X2 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-S-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class A-S Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class A-S-2 Certificates and the applicable principal prepayment; (viii) to the Class B-X1 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class B-1 Certificates and the applicable principal prepayment; (ix)

 

 

 -340-

 

 

to the Class B-X2 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class B-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class B Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class B-2 Certificates and the applicable principal prepayment; (x) to the Class C-X1 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-1 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class C-1 Certificates and the applicable principal prepayment; (xi) to the Class C-X2 Certificates, the product of (A) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium, (B) a fraction, the numerator of which is equal to the amount of principal distributed to the Class C-2 Certificates for that Distribution Date, and the denominator of which is the total amount of principal distributed to the Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date and (C) the difference between (I) the Base Interest Fraction for the Class C Certificates and the applicable principal prepayment and (II) the Base Interest Fraction for the Class C-2 Certificates and the applicable principal prepayment; (xii) to the Class X-A Certificates, the excess, if any, of (A) the product of (I) the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium and (II) a fraction, the numerator of which is equal to the amount of principal distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates (collectively) and the Class A-5 Exchangeable Certificates (collectively) for that Distribution Date, and the denominator of which is the total amount of principal distributed to Class A-1, Class A-2, Class A-3, Class A-SB, Class D, Class E, Class F, Class G and Class H Certificates and the Class A-4 Exchangeable Certificates (collectively), the Class A-5 Exchangeable Certificates (collectively), the Class A-S Exchangeable Certificates (collectively) the Class B Exchangeable Certificates (collectively) and the Class C Exchangeable Certificates (collectively) for that Distribution Date, over (B) the amount of such Yield Maintenance Charge or Prepayment Premium distributed to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 Exchangeable Certificates (collectively) and the Class A-5 Exchangeable Certificates (collectively) as described above; and (xiii) to the Class X-B

 

 -341-

 

 

certificates, any remaining portion of the Non-Retained Percentage of such Yield Maintenance Charge or Prepayment Premium; and (y) to the RR Interest, the Required Credit Risk Retention Percentage of such Yield Maintenance Charge or Prepayment Premium.

 

For purposes of the first paragraph of this Section 4.01(e), the relevant “Base Interest Fraction” in connection with any Principal Prepayment of any Mortgage Loan that provides for the payment of a Yield Maintenance Charge or Prepayment Premium, and with respect to any Class of Principal Balance Certificates (other than the RR Interest), shall be a fraction (A) the numerator of which is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on such Class for the related Distribution Date, and (ii) the applicable Discount Rate and (B) the denominator of which is the difference between (i) the Mortgage Rate on such Mortgage Loan and (ii) the applicable Discount Rate; provided that: (a) under no circumstances will the Base Interest Fraction be greater than 1.0; (b) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is greater than or equal to the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction will equal zero; and (c) if the applicable Discount Rate is greater than or equal to the Mortgage Rate on such Mortgage Loan and is less than the Pass-Through Rate on such Class for the related Distribution Date, then the Base Interest Fraction shall be equal to 1.0. If a Mortgage Loan provides for a step-up in the Mortgage Rate, then the Mortgage Rate used in the determination of the Base Interest Fraction will be the Mortgage Rate in effect at the time of the prepayment.

 

For purposes of the preceding paragraph, the relevant “Discount Rate” in connection with any Prepayment Premium or Yield Maintenance Charge collected on any prepaid Mortgage Loan or REO Loan and distributable on any Distribution Date shall be a rate per annum equal to (i) if a discount rate was used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, such discount rate (as reported by the applicable Master Servicer), converted (if necessary) to a monthly equivalent yield, or (ii) if a discount rate was not used in the calculation of the applicable Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the relevant Mortgage Loan or REO Loan, as the case may be, the yield calculated by the linear interpolation of the yields (as reported under the heading “U.S. Government Securities/Treasury Constant Maturities” in Federal Reserve Statistical Release H.15 (519) published by the Federal Reserve Board for the week most recently ended before the date of the relevant prepayment (or deemed prepayment) of U.S. Treasury constant maturities with a maturity date, one longer and one shorter, most nearly approximating the related stated Maturity Date (in the case of a Mortgage Loan or REO Loan that is not related to an ARD Loan) or the related Anticipated Repayment Date (in the case of a Mortgage Loan or REO Loan that is related to an ARD Loan)), such interpolated yield converted to a monthly equivalent yield. If Federal Reserve Statistical Release H.15 (519) is no longer published, the Certificate Administrator shall select a comparable publication as the source of the applicable yields of U.S. Treasury constant maturities.

 

No Yield Maintenance Charge or Prepayment Premium shall be distributed to the Class X-D, Class X-F, Class X-G, Class X-H, Class F, Class G, Class H or Class R Certificates. After the Certificate Balances of the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and Class A-4 Exchangeable Certificates, Class A-5 Exchangeable

 

 -342-

 

 

Certificates, Class A-S Exchangeable Certificates, Class B Exchangeable Certificates and Class C Exchangeable Certificates have been reduced to zero, the Non-Retained Percentage of all Yield Maintenance Charges and Prepayment Premiums with respect to the Mortgage Loans shall be distributed to the Class X-B Certificates and the Required Credit Risk Retention Percentage of all Yield Maintenance Charges and Prepayment Premiums with respect to the Mortgage Loans shall be distributed to the RR Interest.

 

All distributions of Yield Maintenance Charges and Prepayment Premiums made in respect of the respective Classes of Regular Certificates and Exchangeable Certificates on each Distribution Date pursuant to this Section 4.01(e) shall first be deemed to be distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Lower-Tier Regular Interests, pro rata based upon the amount of principal distributed in respect of each such Class of Lower-Tier Regular Interests for such Distribution Date pursuant to Section 4.01(c) above.

 

(f)       On each Distribution Date, the Certificate Administrator shall (i) withdraw amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts to reimburse the Holders of the Regular Certificates (other than the RR Interest) and the Exchangeable Upper-Tier Regular Interests (and, correspondingly, the Exchangeable Certificates) (in order of distribution priority) (first deeming such amounts to be distributed with respect to the Related Lower Tier Regular Interests) up to an amount equal to all Realized Losses, if any, previously deemed allocated to them and unreimbursed after application of the Available Funds for such Distribution Date and (ii) withdraw amounts from the Retained Certificate Gain-on-Sale Reserve Account and shall distribute such amounts to reimburse the Holders of the RR Interest (first deeming such amounts to be distributed with respect to the Related Lower Tier Regular Interests) up to an amount equal to all Retained Certificate Realized Losses, if any, previously deemed allocated to them and unreimbursed after application of the Retained Certificate Available Funds for such Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account shall not reduce the Certificate Balances of the Classes of Certificates receiving such distributions. Any amounts remaining in the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Account after such distributions shall be applied to offset future shortfalls and Realized Losses and Retained Certificate Realized Losses, as applicable, with respect to the Principal Balance Certificates and related Realized Losses and Retained Certificate Realized Losses, as applicable, in each case allocable to the Regular Certificates and the Exchangeable Certificates. Upon termination of the Trust, any amounts remaining in the Gain-on-Sale Reserve Account and the Retained Certificate Gain-on-Sale Reserve Account shall be distributed to the Holders of the Class R Certificates from the Lower-Tier REMIC in respect of the Class LR Interest.

 

(g)       All distributions made with respect to each Class of Certificates on each Distribution Date shall be allocated pro rata among the outstanding Certificates in such Class based on their respective Percentage Interests. Except as otherwise specifically provided in Section 4.01(h), 4.01(i) and 9.01, all such distributions with respect to each Class on each Distribution Date shall be made to the Certificateholders of the respective Class of record at the close of business on the related Record Date and shall be made by wire transfer of immediately available funds to the account of any such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided the Certificate Administrator with wiring instructions no less than five (5) Business Days prior to the related

 

 -343-

 

 

Record Date (which wiring instructions may be in the form of a standing order applicable to all subsequent Distribution Dates), or otherwise by check mailed to such Certificateholder at its address in the Certificate Register. The final distribution on each Certificate (determined without regard to any possible future reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Certificate) will be made in like manner, but only upon presentation and surrender of such Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

 

Each distribution with respect to a Book-Entry Certificate shall be paid to the Depository, as Holder thereof, and the Depository shall be responsible for crediting the amount of such distribution to the accounts of its Depository Participants in accordance with its normal procedures. Each Depository Participant shall be responsible for disbursing such distribution to the Certificate Owners that it represents and to each indirect participating brokerage firm (a “brokerage firm” or “indirect participating firm”) for which it acts as agent. Each brokerage firm shall be responsible for disbursing funds to the Certificate Owners that it represents. None of the Trustee, the Certificate Administrator, the Certificate Registrar, the Depositor, the Master Servicers, the Special Servicers or the Underwriters shall have any responsibility therefor except as otherwise provided by this Agreement or applicable law.

 

(h)       Except as otherwise provided in Section 9.01, whenever the Certificate Administrator expects that the final distribution with respect to any Class of Certificates (determined without regard to any possible future reimbursement of any amount of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to such Class of Certificates) will be made on the next Distribution Date, the Certificate Administrator shall, no later than the related P&I Advance Determination Date, post on the Certificate Administrator’s Website pursuant to Section 3.13(b) a notice in electronic format to the effect that:

 

(i)        the Certificate Administrator expects that the final distribution with respect to such Class of Certificates will be made on such Distribution Date but only upon presentation and surrender of such Certificates at the offices of the Certificate Registrar or such other location therein specified; and

 

(ii)        no interest shall accrue on such Certificates from and after such Distribution Date.

 

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to this Section 4.01(h) shall not have been surrendered for cancellation within six (6) months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the

 

 -344-

 

 

surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust hereunder by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with this Section 4.01(h).

 

(i)        Distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to the Regular Certificates and Exchangeable Certificates shall be made in the amounts and manner specified in Section 4.01(a), Section 4.01(b) or Section 4.01(d), as applicable, to the Holders of the respective Class otherwise entitled to distributions of interest and principal on such Class on the relevant Distribution Date; provided that all distributions in reimbursement of Realized Losses or Retained Certificate Realized Losses, as applicable, previously allocated to a Class of Certificates which has since been retired shall be to the prior Holders that surrendered the Certificates of such Class upon retirement thereof and shall be made by check mailed to the address of each such prior Holder last shown in the Certificate Register. Notice of any such distribution to a prior Holder shall be made in accordance with Section 13.05 at such last address. The amount of the distribution to each such prior Holder shall be based upon the aggregate Percentage Interest evidenced by the Certificates surrendered thereby. If the check mailed to any such prior Holder is returned uncashed, then the amount thereof shall be set aside and held uninvested in trust for the benefit of such prior Holder, and the Certificate Administrator shall attempt to contact such prior Holder in the manner contemplated by Section 4.01(h) as if such Holder had failed to surrender its Certificates.

 

(j)       On each Distribution Date, any Excess Interest received during the related Collection Period with respect to the Mortgage Loans shall be distributed to the Holders of the RR Interest in an amount equal to the Required Credit Risk Retention Percentage of such Excess Interest, in each case, from the Excess Interest Distribution Account. Excess Interest will not be available to pay any other amounts except for distributions on the RR Interest as set forth in the prior sentence.

 

(k)       On each Serviced Whole Loan Remittance Date, with respect to any Serviced Companion Loan, the Companion Paying Agent shall make withdrawals and payments from the Companion Distribution Account for each Companion Loan in the following order of priority:

 

(i)        to pay to the applicable Master Servicer for deposit into the Collection Account, as applicable, any amounts deposited by such Master Servicer in the Companion Distribution Account not required to be deposited therein;

 

(ii)       to the extent permitted under the related Intercreditor Agreement and not otherwise previously reimbursed, to pay the Trustee or the Certificate Administrator or any of their directors, officers, employees and agents, as the case may be, any amounts payable or reimbursable to any such Person pursuant to Section 8.05, to the extent any such amounts relate solely to a Serviced Whole Loan related to such Companion Loan,

 

 -345-

 

 

and such amounts are to be paid by the related Companion Holder pursuant to the related Intercreditor Agreement;

 

(iii)      to pay all amounts remaining in the Companion Distribution Account related to such Serviced Companion Loan to the related Companion Holder, in accordance with the related Intercreditor Agreement; and

 

(iv)      to clear and terminate the Companion Distribution Account at the termination of this Agreement pursuant to Section 9.01.

 

All distributions from the Companion Distribution Account required hereunder shall be made by the Companion Paying Agent to the related Companion Holder by wire transfer in immediately available funds on each Serviced Whole Loan Remittance Date (and on each additional date required by this Agreement or the related Intercreditor Agreement) to the account of such Companion Holder or an agent therefor appearing on the Serviced Companion Noteholder Register on the related Record Date (or, if no such account so appears or information relating thereto is not provided at least five (5) Business Days prior to the related Record Date, by check sent by first class mail to the address of such Companion Holder or its agent appearing on the Serviced Companion Noteholder Register). Any such account shall be located at a commercial bank in the United States.

 

On the final Remittance Date, each Master Servicer shall withdraw from Collection Account and deliver to the Certificate Administrator who shall distribute to the Mortgage Loan Sellers, any Loss of Value Payments relating to the Mortgage Loans that it is servicing and that were transferred from the Loss of Value Reserve Fund to its Collection Account on the immediately preceding Remittance Date.

 

Section 4.02   Distribution Date Statements; CREFC^® Investor Reporting Packages; Grant of Power of Attorney.  (a) On each Distribution Date, the Certificate Administrator shall make available pursuant to Section 3.13(b) on the Certificate Administrator’s Website to any Privileged Person a statement (substantially in the form set forth as Exhibit G hereto and based in part upon information supplied to the Certificate Administrator in the related CREFC^® Investor Reporting Package in accordance with CREFC^® guidelines) as to the distributions made on such Distribution Date (each, a “Distribution Date Statement”) which shall include:

 

(i)        the amount of the distribution on such Distribution Date to the Holders of each Class of Certificates in reduction of the Certificate Balance thereof;

 

(ii)       the aggregate amount of Advances made, with respect to the pool of Mortgage Loans, during the period from but not including the previous Distribution Date to and including such Distribution Date and details of P&I Advances as of the P&I Advance Date;

 

(iii)    the aggregate amount of compensation paid to the Trustee and the Certificate Administrator, servicing compensation paid to the applicable Master Servicer and the applicable Special Servicer, compensation paid to the Operating Advisor, compensation paid to the Asset Representations Reviewer and CREFC^® Intellectual

 

 -346-

 

 

Property Royalty License Fees paid to CREFC^®, in each case, with respect to the Collection Period for such Determination Date together with detailed calculations of servicing compensation paid to such Master Servicer and such Special Servicer;

 

(iv)      the aggregate Stated Principal Balance of the Mortgage Loans and any REO Loans, with respect to the pool of Mortgage Loans, outstanding immediately before and immediately after such Distribution Date;

 

(v)       the aggregate amount of unscheduled payments received;

 

(vi)      the number of loans, their aggregate principal balance, weighted average remaining term to maturity and weighted average Mortgage Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans, as of the end of the related Collection Period for such Distribution Date;

 

(vii)     the number and aggregate principal balance of the Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 days to 120 days, (D) current but specially serviced or in foreclosure but not an REO Property and (E) for which the related Mortgagor is subject to oversight by a bankruptcy court;

 

(viii)    the value of any REO Property (and, with respect to any Serviced Whole Loan, the trust’s interest therein) included in the Trust Fund as of the end of the related Determination Date for such Distribution Date, on a loan-by-loan basis, based on the most recent Appraisal or valuation;

 

(ix)      the Available Funds and Retained Certificate Available Funds for such Distribution Date;

 

(x)       the (A) Interest Distribution Amount, Interest Accrual Amount and Interest Shortfall or (B) Retained Certificate Interest Distribution Amount, as applicable, in respect of such Class of Certificates for such Distribution Date, separately identifying any Interest Distribution Amount, Interest Accrual Amount, Interest Shortfall or Retained Certificate Interest Distribution Amount, as applicable, for such Distribution Date allocated to such Class of Certificates;

 

(xi)      the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates allocable to (A) Yield Maintenance Charges, (B) in the case of the RR Interest, Excess Interest and (C) Prepayment Premiums;

 

(xii)     the Pass-Through Rate for such Class of Certificates for such Distribution Date and the next succeeding Distribution Date;

 

(xiii)    the Scheduled Principal Distribution Amount and the Unscheduled Principal Distribution Amount for such Distribution Date, with respect to the pool of Mortgage Loans;

 

(xiv)    the Certificate Balance or Notional Amount, as the case may be, of each Class of Certificates immediately before and immediately after such Distribution Date,

 

 -347-

 

 

separately identifying any reduction therein as a result of the allocation of any Realized Loss or Retained Certificate Realized Loss, as applicable, on such Distribution Date and the aggregate amount of all reductions as a result of allocations of Realized Losses or Retained Certificate Realized Losses, as applicable, in respect of the Principal Balance Certificates (other than the RR Interest) and the RR Interest, respectively, to date;

 

(xv)     the Certificate Factor for each Class of Certificates (other than the Class R Certificates) immediately following such Distribution Date;

 

(xvi)    the amount of any Appraisal Reduction Amounts effected (including, with respect to any Serviced Whole Loan, the amount allocable to the related Mortgage Loan and Serviced Companion Loan) in connection with such Distribution Date on a loan-by-loan basis and the total Appraisal Reduction Amount effected in connection with such Distribution Date;

 

(xvii)   the current Controlling Class;

 

(xviii)  the number and related Stated Principal Balance of any Mortgage Loans extended or modified since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) on a loan-by-loan basis;

 

(xix)    a loan-by-loan listing of each Mortgage Loan which was the subject of a Principal Prepayment since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) and the amount and the type of Principal Prepayment occurring;

 

(xx)     a loan-by-loan listing of each Mortgage Loan which was defeased since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

 

(xxi)    all deposits into, withdrawals from, and the balance of the Interest Reserve Account on the P&I Advance Date;

 

(xxii)   in the case of the Class R Certificates, the amount of any distributions on such Certificates pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(d) and Section 4.01(f);

 

(xxiii)  the amount of the distribution on such Distribution Date to the Holders of such Class of Certificates in reimbursement of previously allocated Realized Losses or Retained Certificate Realized Losses, as applicable;

 

(xxiv)  the aggregate unpaid principal balance of the Mortgage Loans outstanding as of the close of business on the related Determination Date, with respect to the pool of Mortgage Loans;

 

(xxv)   with respect to any Mortgage Loan as to which a Liquidation Event occurred since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date) or prior to the related Determination Date (other than a

 

 -348-

 

 

payment in full), (A) the loan number thereof, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with such Liquidation Event (separately identifying the portion thereof allocable to distributions on the Certificates), and (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in connection with such Liquidation Event, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in connection with such Liquidation Event;

 

(xxvi)  with respect to any REO Property (including, with respect to any Non-Serviced Whole Loan, the Trust’s interest therein) included in the Trust as to which the applicable Special Servicer determined, in accordance with the Servicing Standard, that all payments or recoveries with respect to the Mortgaged Property have been ultimately recovered since the previous Determination Date, (A) the loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Certificates), (C) the amount of any Realized Loss allocated to the Principal Balance Certificates (other than the RR Interest) in respect of the related REO Loan in connection with that determination, and (D) the amount of any Retained Certificate Realized Loss allocated to the RR Interest in respect of the related REO Loan in connection with that determination;

 

(xxvii)  the aggregate amount of interest on P&I Advances paid to the applicable Master Servicer and the Trustee since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date), with respect to the pool of Mortgage Loans;

 

(xxviii) exchanges of Exchangeable Certificates that took place since the last Distribution Date and the designations of the applicable Classes that were exchanged or, if applicable, that no such exchanges have occurred;

 

(xxix)    then-current credit support levels for each Class of Certificates;

 

(xxx)     the aggregate amount of Prepayment Premiums and Yield Maintenance Charges on the Mortgage Loans (each separately identified) collected since the previous Determination Date (or in the case of the first Distribution Date, as of the Cut-off Date);

 

(xxxi)     a loan-by-loan listing of any material modification, extension or waiver of a Mortgage Loan;

 

(xxxii)    a loan-by-loan listing of any material breach of the representations and warranties given with respect to a Mortgage Loan by the applicable Mortgage Loan Seller;

 

(xxxiii)   an itemized listing of any Disclosable Special Servicer Fees received by the applicable Special Servicer or any of its Affiliates, which information will be provided to the Certificate Administrator by the applicable Master Servicer; and

 

(xxxiv)   the amount of any Excess Interest actually received.

 

 -349-

 

 

In the case of information furnished pursuant to clauses (i), (ix), (x), (xi), (xiv), (xxiii), (xxiv), (xxv) and (xxxiv) above, the amounts shall be expressed as a dollar amount in the aggregate for all Certificates of each applicable Class and per Definitive Certificate.

 

The Certificate Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information only by virtue of its receipt and posting of such information to the Certificate Administrator’s website or filing such information pursuant to this Agreement, including, but not limited to, filing via through the EDGAR system, unless the Certificate Administrator has an explicit obligation to review or prepare such information.

 

Within a reasonable period of time after the end of each calendar year, the Certificate Administrator shall furnish to each Person who at any time during the calendar year was a Holder of a Certificate, a statement containing the information set forth in clauses (i) and (x) above as to the applicable Class, aggregated for such calendar year or applicable portion thereof during which person was a Certificateholder, together with such other information as the Certificate Administrator deems necessary or desirable, or that a Certificateholder or Certificate Owner reasonably requests, to enable Certificateholders to prepare their tax returns for such calendar year. Such obligation of the Certificate Administrator shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Certificate Administrator pursuant to any requirements of the Code as from time to time are in force.

 

Upon receipt of an Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall (i) include such Asset Review Report Summary in Item 1B on the Form 10-D for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

 

(b)       [RESERVED].

 

(c)       Each of the Master Servicers and the Special Servicers may, at its sole cost and expense, make available by electronic media, bulletin board service or Internet website (in addition to making information available as provided herein) any reports or other information such Master Servicer or such Special Servicer, as applicable, is required or permitted to provide to any party to this Agreement, the Rating Agencies or any Certificateholder or any prospective Certificateholder that has provided such Master Servicer or such Special Servicer, as applicable, with an Investor Certification or has executed a “click-through” confidentiality agreement in accordance with Section 3.13 (which may be a licensed or registered investment advisor) to the extent such action does not conflict with the terms of this Agreement (including without limitation, any requirements to keep Privileged Information confidential), the terms of the Mortgage Loans or applicable law. Notwithstanding this paragraph, the availability of such information or reports on the Internet or similar electronic media shall not be deemed to satisfy any specific delivery requirements in this Agreement except as set forth herein. In connection with providing access to the applicable Master Servicer’s or Special Servicer’s Internet website, such Master Servicer or such Special Servicer, as applicable, shall take reasonable measures to

 

 -350-

 

 

ensure that only such parties listed above may access such information including, without limitation, requiring registration, a confidentiality agreement and acceptance of a disclaimer. No Master Servicer or Special Servicer, as the case may be, shall be liable for dissemination of this information in accordance with this Agreement, and no Master Servicer or the Special Servicer shall be responsible for any information delivered, produced, or made available pursuant to Section 3.13, other than information produced by such Master Servicer or such Special Servicer, as applicable; provided that such information otherwise meets the requirements set forth herein with respect to the form and substance of such information or reports. The applicable Master Servicer shall be entitled to attach to any report provided pursuant to this subsection, any reasonable disclaimer with respect to information provided, or any assumptions required to be made by such report.

 

Each Special Servicer shall from time to time (and, in any event, as may be reasonably required by the applicable Master Servicer) provide the applicable Master Servicer with such information in its possession regarding the Specially Serviced Loans and REO Properties as may be necessary for the applicable Master Servicer to prepare each report and any supplemental information to be provided by the applicable Master Servicer to the Certificate Administrator. None of the Certificate Administrator, the Trustee or the Depositor shall have any obligation to recompute, verify or recalculate the information provided thereto by the applicable Master Servicer. Unless the Certificate Administrator has actual knowledge that any report or file received from such Master Servicer contains erroneous information, the Certificate Administrator is authorized to rely thereon in calculating and making distributions to Certificateholders in accordance with Section 4.01, preparing the Distribution Date Statement required by Section 4.02(a) and allocating Realized Losses and/or Retained Certificate Realized Losses, as applicable, to the Certificates in accordance with Section 4.04.

 

Notwithstanding the foregoing, the failure of a Master Servicer or a Special Servicer to disclose any information otherwise required to be disclosed pursuant to this Section 4.02(c) or Section 4.02(d) shall not constitute a breach of this Section 4.02(c) or of Section 4.02(d) to the extent such Master Servicer or such Special Servicer so fails because such disclosure, in the reasonable belief of such Master Servicer or such Special Servicer, as the case may be, would violate any applicable law or any provision of a Mortgage Loan document prohibiting disclosure of information with respect to the Mortgage Loans or the Mortgaged Properties. The applicable Master Servicer or the applicable Special Servicer may affix to any information provided by it any disclaimer it deems appropriate in its reasonable discretion (without suggesting liability on the part of any other party hereto).

 

(d)      Upon the written request of a Certificateholder, any beneficial owner of a Certificate, or any prospective purchaser of a Certificate that is a Qualified Institutional Buyer and is designated by a Certificateholder or a beneficial owner of a Certificate as such and, in any case, has delivered an Investor Certification to the Depositor and the Certificate Administrator, as soon as reasonably practicable, at the expense of the requesting party, the Certificate Administrator shall make available to the requesting party such information that is in the Certificate Administrator’s possession or can reasonably be obtained by the Certificate Administrator as is requested by such person, for purposes of satisfying applicable reporting requirements under Rule 144A under the Securities Act. Neither the Certificate Registrar, nor the Certificate Administrator shall have any responsibility for the sufficiency under Rule 144A

 

 -351-

 

 

or any other securities laws of any available information so furnished to any person including any prospective purchaser of a Certificate or any interest therein, nor for the content or accuracy of any information so furnished which was prepared or delivered to them by another.

 

(e)       The information to which any Certificateholder is entitled is limited to the information gathered and provided to the Certificateholder by the parties hereto pursuant to this Agreement and by acceptance of any Certificate, each Certificateholder agrees that except as specifically provided herein, no Certificateholder shall contact any Mortgagor directly with respect to any Mortgage Loan.

 

(f)       Upon the reasonable request of the Directing Certificateholder or any Controlling Class Certificateholder that, in either case, is an Excluded Controlling Class Holder with respect to any Excluded Controlling Class Loan identified to the applicable Master Servicer’s (in the case of a Non-Specially Serviced Loan) or the applicable Special Servicer’s (in the case of a Specially Serviced Loan) reasonable satisfaction (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder) and if such information is in such Master Servicer’s or such Special Servicer’s possession, as applicable, such Master Servicer or such Special Servicer, shall provide or make available (or make available electronically) to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, (at the expense of the Directing Certificateholder or such Controlling Class Certificateholder, as applicable) any Excluded Information (available to Privileged Persons through the Certificate Administrator’s Website but not accessible to the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, through the Certificate Administrator’s Website because the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, is an Excluded Controlling Class Holder with respect to another Excluded Controlling Class Loan) relating to any Excluded Controlling Class Loan with respect to which the Directing Certificateholder or such Controlling Class Certificateholder, as applicable, is not a Borrower Party; provided that, in connection therewith, the applicable Master Servicer or the applicable Special Servicer may require a written confirmation executed by the requesting Person substantially in such form as may be reasonably acceptable to such Master Servicer or such Special Servicer, generally to the effect that such Person is the Directing Certificateholder or a Controlling Class Certificateholder, will keep such Excluded Information confidential and is not a Borrower Party, upon which such Master Servicer or such Special Servicer may conclusively rely. In addition, the applicable Master Servicer and the applicable Special Servicer shall be entitled to conclusively rely on delivery from the Directing Certificateholder or a Controlling Class Certificateholder, as applicable, of an Investor Certification substantially in the form of Exhibit P-1B that the Directing Certificateholder or Controlling Class Certificateholder is not an Excluded Controlling Class Holder with respect to a particular Mortgage Loan. For the avoidance of doubt, the applicable Special Servicer referenced in this Section 4.02(f) shall include any applicable Excluded Special Servicer with respect to the related Excluded Special Servicer Loan(s).

 

Section 4.03   P&I Advances. (a) On or before 4:00 p.m., New York City time, on each P&I Advance Date, the applicable Master Servicer shall (i) remit to the Certificate Administrator for deposit from its own funds into the Lower-Tier REMIC Distribution Account, an amount equal to the aggregate amount of P&I Advances, if any, with respect to the Mortgage Loans serviced by such Master Servicer to be made in respect of the related Distribution Date,

 

 -352-

 

 

(ii) apply amounts held in the Collection Account, for future distribution to Certificateholders in subsequent months in discharge of any such obligation to make such P&I Advances or (iii) make such P&I Advances in the form of any combination of (i) and (ii) aggregating the total amount of P&I Advances to be made. Any amounts held in the applicable Collection Account for future distribution and so used to make P&I Advances shall be appropriately reflected in the applicable Master Servicer’s records and replaced by such Master Servicer by deposit in its Collection Account on or before the next succeeding P&I Advance Date (to the extent not previously replaced through the deposit of Late Collections of the delinquent principal and/or interest in respect of which such P&I Advances were made). The applicable Master Servicer shall notify the Certificate Administrator of (i) the aggregate amount of P&I Advances to be made by such Master Servicer for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances with respect to Mortgage Loans serviced by such Master Servicer for such Distribution Date, on or before two (2) Business Days prior to such Distribution Date. If the applicable Master Servicer fails to make a required P&I Advance by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on the related Distribution Date, unless such Master Servicer shall have cured such failure (and provided written notice of such cure to the Trustee and the Certificate Administrator) by 11:00 a.m., New York City time, on such Distribution Date. In the event that the applicable Master Servicer fails to make a required P&I Advance hereunder, the Certificate Administrator shall notify the Trustee of such circumstances by 4:30 p.m., New York City time, on the related P&I Advance Date. Notwithstanding the foregoing, the portion of any P&I Advance equal to the CREFC^® Intellectual Property Royalty License Fee shall not be remitted to the Certificate Administrator for deposit into the Lower-Tier REMIC Distribution Account but shall be deposited into the applicable Collection Account for payment to CREFC^® on such Distribution Date.

 

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to any Mortgage Loan that is part of a Whole Loan with a related Serviced Companion Loan, then it shall provide to the related other master servicer and Other Trustee under the Other Pooling and Servicing Agreement written notice of the amount of such P&I Advance with respect to such Mortgage Loan within two (2) Business Days of making such P&I Advance.

 

If the applicable Master Servicer or the Trustee makes a P&I Advance with respect to a Non-Serviced Mortgage Loan, then it shall provide to the related Non-Serviced Master Servicer and Non-Serviced Trustee written notice of the amount of such P&I Advance within two (2) Business Days of making such P&I Advance.

 

(b)       Subject to Section 4.03(c) and Section 4.03(e) below, the amount of P&I Advances to be made by each Master Servicer with respect to any Distribution Date, and each Mortgage Loan for which it acts as Master Servicer, shall be equal to: (i) the Periodic Payments (net of related Servicing Fees and, in the case of any Non-Serviced Mortgage Loan, a fee accruing at the related Non-Serviced Primary Servicing Fee Rate) other than Balloon Payments, that were due on such Mortgage Loan (including any Non-Serviced Mortgage Loan) and any REO Loan (other than any portion of an REO Loan related to a Companion Loan) for which it acts as Master Servicer during the related Collection Period and were not received as of the close of business on the Business Day preceding the related P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the applicable Master Servicer) and (ii) with respect to each such

 

 -353-

 

 

Mortgage Loan for which it acts as Master Servicer that is delinquent in respect of its Balloon Payment as of the P&I Advance Date (including any REO Loan (other than any portion of an REO Loan related to a Companion Loan) as to which the related Balloon Payment would have been past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to subsection (c) below, the obligation of the applicable Master Servicer to make such P&I Advances is mandatory, and with respect to any Mortgage Loan (including any Non-Serviced Mortgage Loan) or REO Loan (other than any portion of an REO Loan related to a Companion Loan), shall continue until the Distribution Date on which the proceeds, if any, received in connection with a Liquidation Event or the disposition of the REO Property, as the case may be, with respect thereto are to be distributed. No P&I Advances shall be made with respect to any Companion Loan.

 

(c)       Notwithstanding anything herein to the contrary, no P&I Advance shall be required to be made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. With respect to each Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination that a P&I Advance that has been made on such Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Serviced Mortgage Loan independently of any determination made by the applicable Other Servicer or Other Trustee, as the case may be, under the applicable Other Pooling and Servicing Agreement in respect of the related Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Other Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Other Servicer, as the case may be, that an Other Servicer or the Other Trustee has determined, in accordance with the applicable Other Pooling and Servicing Agreement with respect to a Serviced Companion Loan, that any proposed advance under the applicable Other Pooling and Servicing Agreement that is similar to a P&I Advance would be, or any outstanding advance under such Other Pooling and Servicing Agreement that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Other Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

 

 -354-

 

 

With respect to each Non-Serviced Mortgage Loan, the applicable Master Servicer, the applicable Special Servicer or the Trustee shall make its determination (based on information provided by the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer) that a P&I Advance that has been made on such Non-Serviced Mortgage Loan is a Nonrecoverable Advance or that any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance with respect to such Non-Serviced Mortgage Loan independently of any determination made by the applicable Non-Serviced Master Servicer, the applicable Non-Serviced Special Servicer or the Non-Serviced Trustee, as the case may be, under the applicable Non-Serviced PSA in respect of the related Non-Serviced Companion Loan. If the applicable Master Servicer, the applicable Special Servicer or the Trustee determines that a proposed P&I Advance with respect to a Non-Serviced Mortgage Loan, if made, or any outstanding P&I Advance with respect to a Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as applicable, shall provide the applicable Non-Serviced Master Servicer and Non-Serviced Special Servicer written notice of such determination within two (2) Business Days of the date of such determination. If the applicable Master Servicer receives written notice from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, that either has determined, or the Non-Serviced Trustee has determined, in accordance with the applicable Non-Serviced PSA with respect to a Non-Serviced Companion Loan, that any proposed advance under the applicable Non-Serviced PSA that is similar to a P&I Advance would be, or any outstanding advance under such Non-Serviced PSA that is similar to a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer, the applicable Special Servicer or the Trustee may, based upon such determination, determine that any P&I Advance previously made or proposed to be made with respect to the related Non-Serviced Mortgage Loan will be a Nonrecoverable P&I Advance. Thereafter, in either case, the applicable Master Servicer and the Trustee shall not be required to make any additional P&I Advances with respect to the related Non-Serviced Mortgage Loan unless and until such Master Servicer or the Trustee, as the case may be, determines that any such additional P&I Advances with respect to the related Non-Serviced Mortgage Loan would not be a Nonrecoverable P&I Advance, which determination may be as a result of consultation with the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as the case may be, or otherwise. For the avoidance of doubt, the applicable Master Servicer, the applicable Special Servicer or the Trustee, as the case may be, shall have the sole discretion provided in this Agreement to determine that any future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable Advance.

 

(d)      In connection with the recovery of any P&I Advance out of the Collection Account, pursuant to Section 3.05(a), the applicable Master Servicer shall be entitled to pay the Trustee and itself (in that order of priority) as the case may be, out of any amounts then on deposit in the applicable Collection Account (but in no event from any funds allocable to a Serviced Companion Noteholder (unless related thereto), except to the extent permitted pursuant to the terms of the related Intercreditor Agreement), interest at the Reimbursement Rate in effect from time to time, accrued on the amount of such P&I Advance from the date made to but not including the date of reimbursement; provided, however, that no interest will accrue on any P&I Advance (i) if the related Periodic Payment is received on or before the related Due Date has passed and any applicable Grace Period has expired or (ii) if the related Periodic Payment is received after the Determination Date but on or prior to the related P&I Advance Date. The

 

 -355-

 

 

applicable Master Servicer shall reimburse itself and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject to Section 3.17 of this Agreement, as soon as practicably possible after funds available for such purpose are deposited in the Collection Account.

 

(e)       Notwithstanding the foregoing, (i) neither the applicable Master Servicer nor the Trustee shall make an advance for Excess Interest, Yield Maintenance Charges, Default Interest, late payment charges, Prepayment Premiums, or Balloon Payments or make any P&I Advance with respect to any Companion Loan and (ii) if an Appraisal Reduction Amount has been determined with respect to any Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan, an “appraisal reduction amount” has been made in accordance with the related Non-Serviced PSA and the applicable Master Servicer has notice of such appraisal reduction amount) then in the event of subsequent delinquencies thereon, the interest portion of the P&I Advance in respect of such Mortgage Loan for the related Distribution Date shall be reduced (it being herein acknowledged that there shall be no reduction in the principal portion of such P&I Advance) to equal the product of (x) the amount of the interest portion of such P&I Advance for such Mortgage Loan for such Distribution Date without regard to this Section 4.03(e), and (y) a fraction, expressed as a percentage, the numerator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date, net of the related Appraisal Reduction Amount (or, in the case of any Whole Loan, the portion of such Appraisal Reduction Amount allocated to the related Mortgage Loan), if any, and the denominator of which is equal to the Stated Principal Balance of such Mortgage Loan immediately prior to such Distribution Date. For purposes of the immediately preceding sentence, the Periodic Payment due on the Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment for the related Distribution Date.

 

(f)       In no event shall either the applicable Master Servicer or the Trustee be required to make a P&I Advance with respect to any Companion Loan.

 

Section 4.04   Allocation of Realized Losses.  (a)On each Distribution Date, immediately following the distributions to be made on such date pursuant to Section 4.01, the Certificate Administrator shall calculate the Realized Loss and Retained Certificate Realized Loss for such Distribution Date. Any allocation of Realized Losses or Retained Certificate Realized Losses to a Class of Regular Certificates or Exchangeable Certificates or Exchangeable Upper-Tier Regular Interests shall be made by reducing the Certificate Balance thereof by the amount so allocated. Any Realized Losses or Retained Certificate Realized Losses so allocated to a Class of Regular or Exchangeable Certificates shall be allocated among the respective Certificates of such Class of Regular Certificates or Exchangeable Certificates in proportion to the Percentage Interests evidenced thereby. The allocation of Realized Losses or Retained Certificate Realized Losses shall constitute an allocation of losses and other shortfalls experienced by the Trust. Reimbursement of previously allocated Realized Losses and Retained Certificate Realized Losses will not constitute distributions of principal for any purpose and will not result in an additional reduction in the Certificate Balance of the applicable Class of Certificates or Upper-Tier Regular Interest in respect of which any such reimbursement is made. With respect to any Class of Principal Balance Certificates (other than any Exchangeable Certificates) and Exchangeable Upper-Tier P&I Regular Interests, to the extent any Nonrecoverable Advances (plus interest thereon) that were reimbursed from principal collections on the Mortgage Loans and previously resulted in a reduction of the Aggregate Principal

 

 -356-

 

 

Distribution Amount (and corresponding to a reduction of the Principal Distribution Amount and Retained Certificate Principal Distribution Amount) are subsequently recovered on the related Mortgage Loan, the amount of such recovery will be added to the Certificate Balance of the Class or Classes of Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interests that previously were allocated Realized Losses and Retained Certificate Realized Losses, as applicable, and in the case of Realized Losses, in sequential order according to the priority of payments for the Principal Balance Certificates (other than the RR Interest and any Exchangeable Certificates) and Exchangeable Upper-Tier P&I Regular Interests (and with respect to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable), on a pro rata basis according to the amount of unreimbursed Realized Losses on such Classes), in each case up to the amount of the unreimbursed Realized Losses and Retained Certificate Realized Losses, as applicable, allocated to such Class of Principal Balance Certificates or Exchangeable Upper-Tier P&I Regular Interests.

 

(b)       (I) On each Distribution Date, the Certificate Balances of the Principal Balance Certificates (other than the RR Interest and any Exchangeable Certificates) and the Exchangeable Upper-Tier P&I Regular Interests will be reduced without distribution, as a write-off to the extent of any Realized Losses, if any, allocable to such Certificates or Exchangeable Upper-Tier Regular Interests with respect to such Distribution Date; (II) on each Distribution Date, the Certificate Balance of the RR Interest will be reduced without distribution, as a write-off to the extent of any Retained Certificate Realized Losses with respect to such Distribution Date. Any such write off under (I) above shall be allocated in the following order:

 

(i)        first, to the Class H certificates;

 

(ii)       second, to the Class G certificates;

 

(iii)      third, to the Class F certificates;

 

(iv)      fourth, to the Class E certificates;

 

(v)       fifth, to the Class D certificates;

 

(vi)      sixth, to the Class C Upper-Tier Regular Interest (and, correspondingly, to the Class C, Class C-1 and Class C-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class C Upper-Tier Regular Interest);

 

(vii)     seventh, to the Class B Upper-Tier Regular Interest (and, correspondingly, to the Class B, Class B-1 and Class B-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class B Upper-Tier Regular Interest);

 

(viii)    eighth, to the Class A-S Upper-Tier Regular Interest (and, correspondingly, to the Class A-S, Class A-S-1 and Class A-S-2 Certificates, pro rata in

 

 -357-

 

 

proportion to their Class Percentage Interests in the Class A-S Upper-Tier Regular Interest); and

 

(ix)      then, pro rata (based on their respective Certificate Balances), to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests (and, correspondingly, to the Class A-4, Class A-4-1, Class A-4-2, Class A-5, Class A-5-1 and Class A-5-2 Certificates, pro rata in proportion to their Class Percentage Interests in the Class A-4 Upper-Tier Regular Interest or the Class A-5 Upper-Tier Regular Interest, as applicable), in each case until the remaining Certificate Balances of such Classes of Certificates or Exchangeable Upper-Tier Regular Interests have been reduced to zero.

 

Any Realized Losses applied to the Class A-4, Class A-5, Class A-S, Class B or Class C Upper-Tier Regular Interest shall be allocated to the corresponding Classes of Exchangeable Certificates with Certificate Balances that represent an interest therein pro rata to reduce their Certificate Balances in accordance with their Class Percentage Interests therein.

 

(c)       With respect to any Distribution Date, any Realized Losses or Retained Certificate Realized Losses allocated to a Class of Principal Balance Certificates (other than any Exchangeable Certificates) or Exchangeable Upper-Tier P&I Regular Interest pursuant to Section 4.04(a) or Section 4.04(b), with respect to such Distribution Date shall reduce the Lower-Tier Principal Amount of the Related Lower-Tier Regular Interest with respect thereto as a write-off.

 

Section 4.05   Appraisal Reduction Amounts; Collateral Deficiency Amounts.  (a) For purposes of (x) determining the Controlling Class (and whether a Control Termination Event has occurred and is continuing) and (y) determining the Voting Rights of the related Classes for purposes of removal of the applicable Special Servicer or the Operating Advisor, Allocated Cumulative Appraisal Reduction Amounts (with respect to a Serviced Whole Loan, to the extent allocated to the related Mortgage Loan) shall be allocated to each Class of Certificates (other than the RR Interest and any Exchangeable Certificates) and the Exchangeable Upper-Tier P&I Regular Interests in reverse sequential order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class is reduced to zero (i.e., first, to the Class H Certificates, second, to the Class G Certificates, third, to the Class F Certificates, fourth, to the Class E Certificates, fifth, to the Class D Certificates, sixth, to the Class C Upper-Tier Regular Interest, seventh, to the Class B Upper-Tier Regular Interest, eighth, to the Class A-S Upper-Tier Regular Interest and finally, pro rata based on their respective interest entitlements, to the Class A-1, Class A-2, Class A-3 and Class A-SB Certificates and the Class A-4 and Class A-5 Upper-Tier Regular Interests. Allocated Appraisal Reduction Amounts and Allocated Collateral Deficiency Amounts allocated to any Exchangeable Upper-Tier Regular Interest as set forth above will be allocated to the Classes of Exchangeable P&I Certificates representing interests therein pro rata in accordance with their respective Class Percentage Interests in such Exchangeable Upper-Tier Regular Interest.

 

Appraisal Reduction Amounts and Cumulative Appraisal Reduction Amounts allocated to a related Mortgage Loan will be allocated between the RR Interest on the one hand

 

 -358-

 

 

and the Senior Certificates and Subordinate Certificates, on the other hand, based on the Required Credit Risk Retention Percentage and the Non-Retained Percentage, respectively.

 

As of the first Determination Date following a Mortgage Loan (other than a Non-Serviced Mortgage Loan) becoming an AB Modified Loan, the applicable Special Servicer shall calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent Appraisal obtained by the applicable Special Servicer with respect to such Mortgage Loan, and all other information relevant to a Collateral Deficiency Amount determination. Upon obtaining knowledge or receipt of notice by the applicable Master Servicer that a Non-Serviced Mortgage Loan has become an AB Modified Loan, the applicable Master Servicer shall (i) promptly request from the related Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee the most recent appraisal with respect to such AB Modified Loan, in addition to all other information reasonably required by the applicable Master Servicer to calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, and (ii) as of the first Determination Date following receipt by the applicable Master Servicer of the appraisal and any other information set forth in the immediately preceding clause (i) that the applicable Master Servicer reasonably expects to receive, calculate whether a Collateral Deficiency Amount exists with respect to such AB Modified Loan, taking into account the most recent appraisal obtained by the Non-Serviced Special Servicer with respect to such Non-Serviced Mortgage Loan, and all other information in its possession relevant to a Collateral Deficiency Amount determination. Upon obtaining knowledge or receipt of notice by any other party to this Agreement that a Non-Serviced Mortgage Loan has become an AB Modified Loan, such party shall promptly notify the applicable Master Servicer thereof. Upon reasonable prior written request, the applicable Master Servicer shall provide the applicable Special Servicer with information in its possession that is reasonably required to calculate or recalculate any Collateral Deficiency Amount. None of the Master Servicers (with respect to Mortgage Loans (other than the Non-Serviced Mortgage Loans)), the Special Servicers (with respect to Non-Serviced Mortgage Loans), the Operating Advisor, the Trustee or the Certificate Administrator shall calculate or verify any Collateral Deficiency Amount.

 

For purposes of determining the Controlling Class and whether a Control Termination Event has occurred and is continuing, Collateral Deficiency Amounts allocated to an AB Modified Loan will be allocated to each Class of Control Eligible Certificates in Reverse Sequential Order to notionally reduce the related Certificate Balances until the Certificate Balance of each such Class of Control Eligible Certificates is reduced to zero. For the avoidance of doubt, for purposes of determining the Controlling Class or the occurrence and continuance of a Control Termination Event, any Class of Control Eligible Certificates shall be allocated both applicable Appraisal Reduction Amounts and applicable Collateral Deficiency Amounts (the sum of which shall constitute the applicable Cumulative Appraisal Reduction Amount), in accordance with this Section 4.05(a), but only to the extent of the Allocated Appraisal Reduction Amounts and Allocated Cumulative Appraisal Reduction Amounts.

 

With respect to (i) any Appraisal Reduction Amount calculated for the purposes of determining the Voting Rights of the related Classes for purposes of removal of the applicable Special Servicer or Operating Advisor and (ii) any Appraisal Reduction Amount or Collateral Deficiency Amount calculated for purposes of determining the Controlling Class or the

 

 -359-

 

 

occurrence and continuance of a Control Termination Event, the appraised value of the related Mortgaged Property shall be determined on an “as is” basis.

 

The applicable Special Servicer (in the case of a Mortgage Loan (other than a Non-Serviced Mortgage Loan)) or the Master Servicer (in the case of a Non-Serviced Mortgage Loan) shall promptly notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, and the applicable Master Servicer shall notify the Certificate Administrator, to the extent it receives such information, of the amount of any Appraisal Reduction Amount, any Collateral Deficiency Amount and any resulting Cumulative Appraisal Reduction Amount allocated to each Mortgage Loan, AB Modified Loan or Serviced Whole Loan (which notification shall be satisfied through delivery of such Appraisal Reduction Amount as included in the CREFC® Appraisal Reduction Amount Template included in the CREFC® Investor Reporting Package with respect to the Collateral Deficiency Amount and the Cumulative Appraisal Reduction Amount) and the Certificate Administrator shall promptly post notice of such Appraisal Reduction Amount, Collateral Deficiency Amount and/or Cumulative Appraisal Reduction Amount, as applicable, to the Certificate Administrator’s Website. Based on information in its possession, the Certificate Administrator shall determine from time to time which Class of Certificates is the Controlling Class. Promptly upon its determination of a change in the Controlling Class, the Certificate Administrator shall notify the applicable Master Servicer, the applicable Special Servicer and the Operating Advisor of such event, including the identity and contact information of the new Controlling Class Certificateholder and the identity of the Controlling Class as set forth in Section 3.23(m) (the cost of obtaining such information from the Depository being an expense of the Trust).

 

(b)       (i) The Holders of the majority of Voting Rights of any Class of Control Eligible Certificates that is determined at any time of determination to no longer be the Controlling Class (any such Class, an “Appraised-Out Class”) as a result of an Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) in respect of such Class shall have the right, at their sole expense, to require the applicable Special Servicer to order (or, with respect to a Non-Serviced Mortgage Loan, require the applicable Master Servicer to request from the applicable Non-Serviced Special Servicer) a second Appraisal with respect to any Mortgage Loan (or Serviced Whole Loan) for which an Appraisal Reduction Event has occurred or as to which there exists a Collateral Deficiency Amount (such Holders, the “Requesting Holders”). The applicable Special Servicer shall use its reasonable best efforts to ensure that such second Appraisal is delivered within thirty (30) days from receipt of the Requesting Holders’ written request and shall ensure that such Appraisal is prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Requesting Holders are requesting the applicable Special Servicer to obtain an additional Appraisal). With respect to any such Non-Serviced Mortgage Loan, the applicable Master Servicer shall use commercially reasonable efforts to obtain such second Appraisal from the applicable Non-Serviced Special Servicer and to forward such second Appraisal to the applicable Special Servicer.

 

(ii)  Upon receipt of any supplemental Appraisal pursuant to clause (i) above, the applicable Master Servicer (for Collateral Deficiency Amounts on Non-Serviced Mortgage Loans), the Non-Serviced Special Servicer (for Appraisal Reduction Amounts on Non-Serviced Mortgage Loans to extent provided for in the applicable Non-Serviced

 

 -360-

 

 

PSA and applicable Intercreditor Agreement) and the applicable Special Servicer (for any Mortgage Loan (other than a Non-Serviced Mortgage Loan)) shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such supplemental Appraisal, any recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount (as applicable) is warranted, and if so warranted, such Person shall recalculate the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on such supplemental Appraisal and (for any Mortgage Loan (other than a Non-Serviced Mortgage Loan)) any information received from the applicable Master Servicer. If required by such recalculation, the Appraised-Out Class shall be reinstated as the Controlling Class and each other Appraised-Out Class shall, if applicable, have its related Certificate Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount, Allocated Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable. The Certificate Administrator, the Operating Advisor and the Special Servicers shall be entitled to conclusively rely on the applicable Master Servicer’s calculation or determination of any Collateral Deficiency Amount with respect to Non-Serviced Mortgage Loans. The Holders of an Appraised-Out Class requesting any supplemental Appraisal pursuant to clause (i) above shall refrain from exercising any direction, control, consent and/or similar rights of the Controlling Class until such time, if any, as the Class is reinstated as the Controlling Class (such period beginning upon receipt by the applicable Special Servicer of any request to obtain a supplemental Appraisal pursuant to clause (i) above to but excluding the date on which either (A) the applicable Special Servicer determines that no recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount is warranted or (B) the applicable Special Servicer recalculates the Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, based on the supplemental Appraisal, the “Appraisal Review Period”). The rights of the Controlling Class during each Appraisal Review Period shall be exercised by the next most senior Class of Control Eligible Certificates that is not an Appraised-Out Class, if any.

 

(c)       With respect to each Mortgage Loan (other than a Non-Serviced Mortgage Loan), and each Serviced Whole Loan as to which an Appraisal Reduction Event has occurred (unless such Mortgage Loan or Serviced Whole Loan has become a Corrected Loan (for such purposes taking into account any amendment or modification of such Mortgage Loan, any related Companion Loan or Serviced Whole Loan)), the applicable Special Servicer shall (1) within thirty (30) days of the occurrence or of each anniversary of the related Appraisal Reduction Event, and (2) upon its determination that the value of the related Mortgaged Property has materially changed, notify the applicable Master Servicer of the occurrence of such anniversary or determination and order an Appraisal (which may be an update of a prior Appraisal), the cost of which shall be paid by the applicable Master Servicer as a Servicing Advance or to the extent it would be a Nonrecoverable Advance, an expense of the Trust, or conduct an internal valuation, as applicable and, promptly following receipt of any such Appraisal or performance of such valuation (or receipt of any Appraisal obtained in accordance with Section 4.05(b) above), shall deliver a copy thereof to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder. Based upon such Appraisal or internal valuation (or any Appraisal obtained in accordance with Section

 

 -361-

 

 

4.05(b) above) and receipt of information reasonably requested by the applicable Special Servicer from the applicable Master Servicer that is in the possession of such Master Servicer and reasonably necessary to calculate the Appraisal Reduction Amount, the applicable Special Servicer shall determine or redetermine, as applicable, and report to the applicable Master Servicer, the Certificate Administrator, the Trustee, the Operating Advisor and ((i) prior to the occurrence and continuance of any Consultation Termination Event and (ii) other than with respect to any Mortgage Loan that is an Excluded Loan as to such party) the Directing Certificateholder, the amount and calculation or recalculation of the Appraisal Reduction Amount or Collateral Deficiency Amount with respect to such Mortgage Loan, Companion Loan or Serviced Whole Loan, as applicable, and such report shall be delivered in the CREFC® Appraisal Reduction Template format; provided, however, that the applicable Special Servicer shall not be liable for failure to comply with such duties insofar as such failure results from a failure of the applicable Master Servicer to provide sufficient information to the applicable Special Servicer to comply with such duties or failure by the applicable Master Servicer to otherwise comply with its obligations hereunder. Following the applicable Master Servicer’s receipt from the applicable Special Servicer of the calculation of the Appraisal Reduction Amounts, the applicable Master Servicer shall provide such information to the Certificate Administrator in the form of the CREFC^® Loan Periodic Update File and the CREFC® Appraisal Reduction Template provided to it by the applicable Special Servicer or such other report or reports mutually agreed upon between the applicable Master Servicer and the Certificate Administrator will calculate the Allocated Appraisal Reduction Amount and the Allocated Cumulative Appraisal Reduction Amount. Such report of the Appraisal Reduction Amount shall also be promptly forwarded by the applicable Master Servicer (or the applicable Special Servicer if the related Mortgage Loan is a Specially Serviced Loan), to the extent the related Serviced Companion Loan has been included in an Other Securitization, to the Other Servicer and Other Trustee of such Other Securitization into which the related Serviced Companion Loan has been sold, or to the holder of any related Serviced Companion Loan by the applicable Master Servicer (or the applicable Special Servicer if the related Mortgage Loan is a Specially Serviced Loan). If the applicable Special Servicer is required to redetermine the Appraisal Reduction Amount or Collateral Deficiency Amount, such redetermined Appraisal Reduction Amount or Collateral Deficiency Amount shall replace the prior Appraisal Reduction Amount or Collateral Deficiency Amount, as applicable, with respect to such Mortgage Loan, Companion Loan or Serviced Whole Loan, as applicable. Prior to the occurrence and continuance of a Consultation Termination Event (and unless the related Mortgage Loan is an Excluded Loan as to such party), the applicable Special Servicer shall consult with the Directing Certificateholder with respect to any Appraisal, valuation or downward adjustment in connection with an Appraisal Reduction Amount or Collateral Deficiency Amount. Notwithstanding the foregoing but subject to Section 4.05(b), the applicable Special Servicer will not be required to obtain an Appraisal or conduct an internal valuation, as applicable, with respect to a Mortgage Loan or related Companion Loan or Serviced Whole Loan as to which an Appraisal Reduction Event has occurred to the extent the applicable Special Servicer has obtained an Appraisal or conducted such a valuation (in accordance with requirements of this Agreement), as applicable, with respect to the related Mortgaged Property within the twelve-month period immediately prior to the occurrence of such Appraisal Reduction Event. Instead, the applicable Special Servicer may use such prior Appraisal or valuation, as applicable, in calculating any Appraisal Reduction Amount with respect to such Mortgage Loan or related Companion Loan or Serviced Whole

 

 -362-

 

 

Loan; provided that the applicable Special Servicer has no knowledge of any material change to the related Mortgaged Property having occurred and affecting the validity of such Appraisal or valuation.

 

The applicable Master Servicer shall deliver by electronic mail to the applicable Special Servicer any information in its possession or, with respect to Non-Specially Serviced Loans, reasonably obtainable by such Master Servicer, that is reasonably required to determine, calculate, redetermine or recalculate any Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, using reasonable efforts to deliver such information, within four (4) Business Days following the applicable Special Servicer’s reasonable request therefor; provided that the applicable Special Servicer’s failure to timely make such request shall not relieve the applicable Master Servicer of its obligation to use reasonable efforts to provide such information to the applicable Special Servicer within four (4) Business Days following the applicable Special Servicer’s reasonable request. The Master Servicer shall not calculate Appraisal Reduction Amounts.

 

(d)      Any Mortgage Loan (other than a Non-Serviced Mortgage Loan), any related Serviced Companion Loan and any Serviced Whole Loan previously subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount, which has become a Corrected Loan (for such purposes taking into account any amendment or modification of such Mortgage Loan, any related Serviced Companion Loan and any Serviced Whole Loan, as applicable), and with respect to which no other Appraisal Reduction Event has occurred and is continuing, will no longer be subject to an Appraisal Reduction Amount and Allocated Appraisal Reduction Amount. Any Appraisal Reduction Amount in respect of a Non-Serviced Whole Loan shall be calculated by the applicable party under and in accordance with and pursuant to the terms of the applicable Non-Serviced PSA.

 

(e)       Each Serviced Whole Loan will be treated as a single Mortgage Loan for purposes of calculating an Appraisal Reduction Amount with respect to the Mortgage Loan and Companion Loan(s) that comprise such Serviced Whole Loan. Any Appraisal Reduction Amount in respect of a Serviced AB Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, first, to the related AB Subordinate Companion Loan (until its principal balance is notionally reduced to zero by such Appraisal Reduction Amounts) and second, pro rata, between the related Serviced AB Mortgage Loan and any Serviced Pari Passu Companion Loans. Any Appraisal Reduction Amount in respect of any Serviced Pari Passu Whole Loan will be allocated in accordance with the related Intercreditor Agreement or, if no allocation is specified in the related Intercreditor Agreement, then, pro rata, between the related Serviced Pari Passu Mortgage Loan and the related Serviced Pari Passu Companion Loan, based upon their respective outstanding principal balances.

 

Section 4.06   Grantor Trust Reporting. (a) The parties intend that the portions of the Trust Fund constituting the Grantor Trust, shall constitute, and that the affairs of the Grantor Trust shall be conducted so as to qualify such portion as, a “grantor trust” under subpart E, part I of subchapter J of the Code, and the provisions hereof shall be interpreted consistently with this intention. In furtherance of such intention, neither the Trustee nor the Certificate Administrator shall have the power to vary the investment of the Holders of the Exchangeable

 

 -363-

 

 

Certificates or the RR Interest in the Grantor Trust so as to improve their rate of return. The Certificate Administrator shall prepare or cause to be prepared, submit to the Trustee for execution (and the Trustee shall timely execute and timely return to the Certificate Administrator) and timely file all Tax Returns in respect of the Grantor Trust. In addition, the Certificate Administrator shall (A) file, or cause to be filed, Internal Revenue Service Form 1041, Form 1099 or such other form as may be applicable with the Internal Revenue Service with copies of the statements in the following clause, (B) furnish, or cause to be furnished, to the Holders of the RR Interest, their allocable share of income and expense with respect to the Excess Interest and Excess Interest Distribution Account, in the time or times and in the manner required by the Code, and (C) furnish, or cause to be furnished, to the Holders of the Exchangeable Certificates, their allocable share of income and expense with respect to the Exchangeable Upper-Tier REMIC Regular Interests, in the time or times and in the manner required by the Code.

 

(b)       The Exchangeable Certificates are held through a “middleman” as defined by the WHFIT Regulations, and accordingly the Grantor Trust will be treated as a WHFIT that is a WHMT. Therefore, the Certificate Administrator will report as required under the WHFIT Regulations to the extent such information as is reasonably necessary to enable the Certificate Administrator to do so is provided to the Certificate Administrator on a timely basis. The Certificate Administrator shall be entitled to rely on the notice provided by the first sentence of this Section 4.06(b) and shall be entitled to indemnification in accordance with the terms of this Agreement in the event that the Internal Revenue Service makes a determination that such notice provided by the first sentence of this paragraph is incorrect.

 

(c)       The Certificate Administrator shall report required WHFIT information using the accrual method, except to the extent the WHFIT Regulations specifically require a different method. The Certificate Administrator shall be under no obligation to determine whether any Certificateholder uses the cash or accrual method. The Certificate Administrator shall make available (via its website) WHFIT information to Certificateholders annually. In addition, the Certificate Administrator shall not be responsible or liable for providing subsequently amended, revised or updated information to any Certificateholder, unless requested by the Certificateholder.

 

(d)      The Certificate Administrator shall not be liable for failure to meet the reporting requirements of the WHFIT Regulations nor for any penalties thereunder if such failure is due to: (i) the lack of reasonably necessary information being provided to the Certificate Administrator or (ii) incomplete, inaccurate or untimely information being provided to the Certificate Administrator. Each Holder of an Exchangeable Certificate or an RR Interest, by acceptance of its interest in such Class of securities, will be deemed to have agreed to provide the Certificate Administrator with information regarding any sale of such securities, including the price, amount of proceeds and date of sale. Absent receipt of information regarding any sale of an Exchangeable Certificate or an RR Interest, including the price, amount of proceeds and date of sale from the beneficial owner thereof or the Depositor, the Certificate Administrator shall assume there is no secondary market trading of WHFIT interests.

 

 -364-

 

 

(e)       To the extent required by the WHFIT Regulations, the Certificate Administrator shall use reasonable efforts to publish on an appropriate website the CUSIP for the Exchangeable Certificates. The CUSIP so published shall represent the Rule 144A CUSIP. The Certificate Administrator shall make reasonable good faith efforts to keep the website accurate and updated to the extent such CUSIP has been received. Absent the receipt of such CUSIP, the Certificate Administrator will use a reasonable identifier number in lieu of a CUSIP. The Certificate Administrator shall not be liable for investor reporting delays that result from the receipt of inaccurate or untimely CUSIP information.

 

Section 4.07     Investor Q&A Forum; Investor Registry; and Rating Agency Q&A Forum and Document Request Tool. (a) The Certificate Administrator shall make available, only to Privileged Persons, the Investor Q&A Forum. The “Investor Q&A Forum” shall be a service available on the Certificate Administrator’s Website, where (i) Certificateholders and beneficial owners of Certificates that are Privileged Persons may submit questions to (A) the Certificate Administrator relating to the Distribution Date Statement, (B) the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports being made available pursuant to Section 3.13(b) and Section 3.13(e), the Mortgage Loans (excluding any Non-Serviced Mortgage Loan) or the related Mortgaged Properties or (C) the Operating Advisor relating to the Operating Advisor Annual Report or other reports prepared by the Operating Advisor or actions by the applicable Special Servicer referenced in any Operating Advisor Annual Report (each an “Inquiry” and collectively, “Inquiries”), and (ii) Privileged Persons may view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for the applicable Master Servicer, the applicable Special Servicer, Certificate Administrator or the Operating Advisor, as applicable, and in the case of any Inquiry relating to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master Servicer or related Non-Serviced Special Servicer, as applicable, the Certificate Administrator shall forward the Inquiry to the appropriate person (in the case of the General Master Servicer to the following: REAM_InvestorRelations@wellsfargo.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of an Inquiry, the applicable Master Servicer, the applicable Special Servicer, the Certificate Administrator or the Operating Advisor, as applicable, unless such party determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall be delivered to the Certificate Administrator by electronic mail. In the case of an Inquiry relating to a Non-Serviced Mortgage Loan, the Certificate Administrator shall make reasonable efforts to obtain an answer from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as applicable; provided that the Certificate Administrator shall not be responsible for the content of such answer or any delay or failure to obtain such answer. The Certificate Administrator shall post (within a commercially reasonable period of time following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Certificate Administrator’s Website. If the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described above, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law, the applicable Mortgage Loan documents or this Agreement, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the applicable Master Servicer, the applicable Special

 

 -365-

 

 

Servicer, the Certificate Administrator or the Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged Information (subject to the Privileged Information Exception), (vi) that answering the Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege or disclosure of attorney work product or (vii) answering any Inquiry is otherwise, for any reason, not advisable, it shall not be required to answer such Inquiry and, in the case of the applicable Master Servicer, the applicable Special Servicer or the Operating Advisor, shall promptly notify the Certificate Administrator of such determination. In addition, no party shall post or otherwise disclose any direct communications with the Directing Certificateholder or the Risk Retention Consultation Party (in its capacity as Risk Retention Consultation Party) as part of its response to any Inquiries. The Certificate Administrator shall notify the Person who submitted such Inquiry in the event that the Inquiry will not be answered. Any notice by the Certificate Administrator to the Person who submitted an Inquiry that will not be answered shall include the following statement: “Because the Pooling and Servicing Agreement provides that a Master Servicer, a Special Servicer, the Certificate Administrator and the Operating Advisor shall not answer an Inquiry if it determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described in the Pooling and Servicing Agreement, (ii) answering any Inquiry would not be in the best interests of the Trust and/or the Certificateholders, (iii) answering any Inquiry would be in violation of applicable law or the applicable Mortgage Loan documents, (iv) answering any Inquiry would materially increase the duties of, or result in significant additional costs or expenses to the Trustee, a Master Servicer, a Special Servicer, the Certificate Administrator or Operating Advisor, as applicable, (v) answering any Inquiry would require the disclosure of Privileged Information, or (vi) answering any Inquiry is otherwise, for any reason, not advisable, no inference should or may be drawn from the fact that a Master Servicer, a Special Servicer, the Certificate Administrator or the Operating Advisor has declined to answer the Inquiry.” Answers posted on the Investor Q&A Forum will be attributable only to the respondent, and shall not be deemed to be answers from any of the Depositor, the Underwriters or any of their respective Affiliates. None of the Underwriters, Depositor, the applicable Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee or the Operating Advisor or any of their respective Affiliates will certify to any of the information posted in the Investor Q&A Forum and no such party shall have any responsibility or liability for the content of any such information. The Certificate Administrator shall not be required to post to the Certificate Administrator’s Website any Inquiry or answer thereto that the Certificate Administrator determines, in its sole discretion, is administrative or ministerial in nature. The Investor Q&A Forum will not reflect questions, answers and other communications that are not submitted via the Certificate Administrator’s Website. Notwithstanding the foregoing, the Operating Advisor shall not be required to respond to any Inquiries from Certificateholders for which its response would require the Operating Advisor to provide information to such inquiring Certificateholders that they are otherwise not entitled to receive under the terms of this Agreement.

 

(b)       The Certificate Administrator shall make available to any Certificateholder and any Certificate Owner that is a Privileged Person, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Certificate Administrator’s Website, where Certificateholders and Certificate Owners that are Privileged Persons can register and thereafter obtain information with respect to any other Certificateholder or Certificate Owner that has so registered. Any person registering to use the Investor Registry shall certify that (a) it is a Certificateholder or a Certificate Owner and a Privileged Person and (b) it grants

 

 -366-

 

 

authorization to the Certificate Administrator to make its name and contact information available on the Investor Registry for at least forty-five (45) days from the date of such certification to persons entitled to access to the Investor Registry. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain optional fields such as address, phone, and Class(es) of Certificates owned. If any Certificateholder or Certificate Owner notifies the Certificate Administrator that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of its registration), the Certificate Administrator shall promptly remove it from the Investor Registry. The Certificate Administrator will not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or otherwise maintaining the accuracy of any information thereon. The Certificate Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.

 

(c)       The 17g-5 Information Provider shall make available, only to NRSROs, the Rating Agency Q&A Forum and Document Request Tool. The “Rating Agency Q&A Forum and Document Request Tool” shall be a service available on the 17g-5 Information Provider’s Website, where NRSROs may (i) submit questions to the Certificate Administrator relating to any Distribution Date Statements, or submit questions to the applicable Master Servicer or the applicable Special Servicer, as the case may be, relating to the reports prepared by such parties (each such submission, a “Rating Agency Inquiry”), and (ii) view Rating Agency Inquiries that have been previously submitted and answered, together with the responses thereto. In addition, NRSROs may use the forum to submit requests (each such submission also, a “Rating Agency Inquiry”) to the applicable Master Servicer for loan-level reports and other related information. Upon receipt of a Rating Agency Inquiry for the applicable Master Servicer or the applicable Special Servicer, the 17g-5 Information Provider shall forward the Rating Agency Inquiry to the appropriate person (in the case of the General Master Servicer to the following: RAInvRequests@wellsfargo.com; and, in the case of the NCB Master Servicer, to the following: BANK2021BNK37@ncb.com), in each case within a commercially reasonable period of time following receipt thereof. Following receipt of a Rating Agency Inquiry from the 17g-5 Information Provider, the applicable Master Servicer or the applicable Special Servicer, as the case may be, unless it determines not to answer such Rating Agency Inquiry as provided below, shall reply by email to the Certificate Administrator. The 17g-5 Information Provider shall post (within a commercially reasonable period of time following receipt of such response) such Rating Agency Inquiry with the related response thereto (or such reports, as applicable) to the Rating Agency Q&A Forum and Document Request Tool. Any reports posted by the 17g-5 Information Provider in response to an inquiry may be posted on a separate website or web page accessible by a link on the 17g-5 Information Provider’s Website. If the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer determines, in its respective sole discretion, that (i) answering any Rating Agency Inquiry would be in violation of applicable law, the Servicing Standard, this Agreement or any Mortgage Loan documents, (ii) answering any Rating Agency Inquiry would or is reasonably expected to result in a waiver of an attorney-client privilege with, or the disclosure of attorney work product, or (iii) (A) answering any Rating Agency Inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, and (B) the Certificate Administrator, such Master Servicer or such Special Servicer, as applicable, determines in accordance with the Servicing Standard (or in good faith, in the case of the Certificate Administrator) that the performance of such duties or the

 

 -367-

 

 

payment of such costs and expenses is beyond the scope of its duties in its capacity as Certificate Administrator, Master Servicer or Special Servicer, as applicable, under this Agreement, it shall not be required to answer such Rating Agency Inquiry and shall promptly notify the 17g-5 Information Provider by email of such determination. The 17g-5 Information Provider shall promptly thereafter post the Rating Agency Inquiry with the reason it was not answered to the Rating Agency Q&A Forum and Document Request Tool. The 17g-5 Information Provider shall not be liable for the failure by any other such Person to so answer. Questions posted on the Rating Agency Q&A Forum and Document Request Tool shall not be attributed to the submitting NRSRO. Answers posted on the Rating Agency Q&A Forum and Document Request Tool will be attributable only to the respondent, and shall not be deemed to be answers from any other person. None of the Underwriters, the Depositor, or any of their respective Affiliates will certify to any of the information posted in the Rating Agency Q&A Forum and Document Request Tool and no such party shall have any responsibility or liability for the content of any such information. The 17g-5 Information Provider shall not be required to post to the 17g-5 Information Provider’s Website any Rating Agency Inquiry or answer thereto that the 17g-5 Information Provider determines, in its sole discretion, is administrative or ministerial in nature. The Rating Agency Q&A Forum and Document Request Tool will not reflect questions, answers and other communications that are not submitted via the 17g-5 Information Provider’s Website.

 

Section 4.08    Secure Data Room. (a) The Certificate Administrator shall create a Secure Data Room and the Depositor shall, upon the receipt of each Mortgage Loan Seller’s Diligence File Certification and within 120 days following the Closing Date, deliver to the Certificate Administrator an electronic copy of the Diligence Files for the Mortgage Loans that have been uploaded by the Mortgage Loan Sellers to the Designated Site. Upon receipt thereof, the Certificate Administrator shall promptly upload the contents of each Diligence File actually received by it to the Secure Data Room. Access to the Secure Data Room shall be granted by the Certificate Administrator to (i) the Asset Representations Reviewer and (ii) any other Person at the direction of the Depositor, in each case, upon the occurrence of an Affirmative Asset Review Vote and receipt by the Certificate Administrator of a certification substantially in the form of Exhibit RR hereto (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s website). In no case whatsoever shall Certificateholders be permitted to access the Secure Data Room. For the avoidance of doubt, the Certificate Administrator shall be under no obligation to post any documents or information to the Secure Data Room other than the contents of the Diligence Files initially delivered to it by the Depositor.

 

(b)       The Certificate Administrator shall not have any obligation or duty to verify, review, confirm or otherwise determine whether the type, number or contents of any Diligence File delivered to the Certificate Administrator is accurate, complete, or relates to the transaction or confirm that all documents and information constituting any Diligence File have actually been delivered to the Certificate Administrator. In no case shall the Certificate Administrator be deemed to have obtained actual or constructive knowledge of the contents of, or information contained in, any Diligence File by virtue of posting such Diligence File to the Secure Data Room. In the event that any document or information is posted in error, the Certificate Administrator may remove such document or information from the Secure Data Room. The Certificate Administrator shall not have any obligation to produce physical or electronic copies of any document or information provided to it for posting to the Secure Data

 

 -368-

 

 

Room. The Certificate Administrator shall not be responsible or held liable for any other Person’s use or dissemination of the documents or information contained on the Secure Data Room; provided that such event or occurrence is not also a result of its own negligence, bad faith or willful misconduct. The Certificate Administrator shall not be required to restrict access to the Secure Data Room on a loan-by-loan basis and any Person with access to the Secure Data Room shall covenant to access only the information necessary to perform its duties and responsibilities under this Agreement.

 

(c)       Upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07, the Certificate Administrator shall transfer electronic copies of the Diligence Files to a successor certificate administrator designated in writing by the Depositor or the applicable Master Servicer, and all costs and expenses associated with the transfer of the Diligence Files shall be payable as part of the costs and expenses associated with the transfer of its responsibilities upon the resignation or removal of the Certificate Administrator pursuant to Section 8.07. Following the date on which any Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from the Trust, the applicable Special Servicer may direct the Certificate Administrator in writing to delete the Diligence File related to such Mortgage Loan from the Secure Data Room; provided that absent such direction, the Certificate Administrator shall not be obligated to delete any Diligence File from the Secure Data Room. Following the termination of the Trust pursuant to Section 9.01, the Certificate Administrator shall be permitted to delete all files from the Secure Data Room. Upon deletion, in no event shall the Certificate Administrator be obligated to reproduce or retrieve such deleted files.

 

[End of Article IV]

 

Article V

THE CERTIFICATES

 

Section 5.01    The Certificates. (a) The Certificates will be substantially in the respective forms annexed hereto as Exhibits A-1 through and including A-3, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may, in the reasonable judgment of the Certificate Registrar, be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required by law, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof. The Class X Certificates will be issuable only in minimum Denominations of authorized initial Notional Amount of not less than $1,000,000 and in integral multiples of $1.00 in excess thereof. The Registered Certificates (other than the Class X-A Certificates and Class X-B Certificates) will be issuable only in minimum Denominations of authorized initial Certificate Balance of not less than $10,000, and in integral multiples of $1.00 in excess thereof. The Non-Registered Certificates (other than the Class X-D, Class X-F, Class X-G, Class X-H and Class R Certificates and the RR Interest) will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $100,000, and in integral multiples of $1.00 in excess thereof. The RR Interest will be issuable in minimum Denominations of authorized initial Certificate Balance of not less than $1.00 and in integral multiples of $0.01 in excess thereof. If the Original Certificate

 

 -369-

 

 

Balance or initial Notional Amount, as applicable, of any Class of Certificates (other than the RR Interest) does not equal an integral multiple of $1.00, then a single additional Certificate of such Class may be issued in a minimum denomination of authorized initial Certificate Balance or initial Notional Amount, as applicable, that includes the excess of (i) the Original Certificate Balance or initial Notional Amount, as applicable, of such Class over (ii) the largest integral multiple of $1.00 that does not exceed such amount. The Class R Certificates shall be issued, maintained and transferred in minimum percentage interests of 10% of such Class R Certificates and in integral multiples of 1% in excess thereof.

 

(b)       One authorized signatory shall sign the Certificates for the Certificate Registrar by manual or facsimile signature. If an authorized signatory whose signature is on a Certificate no longer holds that office at the time the Certificate Registrar countersigns the Certificate, the Certificate shall be valid nevertheless. A Certificate shall not be valid until an authorized signatory of the Certificate Registrar (who may be the same officer who executed the Certificate) manually countersigns the Certificate. The signature shall be conclusive evidence that the Certificate has been executed and countersigned under this Agreement.

 

Section 5.02     Form and Registration. No transfer of any Non-Registered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer (other than one by the Depositor to an Affiliate thereof or by the Initial Purchasers to BIG BNK37, LLC) is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, then the following subsections (a)-(d) shall apply.

 

(a)       Each Class of the Non-Registered Certificates sold to institutions that are non-United States Securities Persons in Offshore Transactions in reliance on Regulation S under the Act shall initially be represented by a temporary book-entry certificate in definitive, fully registered form without interest coupons, substantially in the applicable form set forth as an exhibit hereto (each a “Temporary Regulation S Book-Entry Certificate”), which shall be deposited on the Closing Date on behalf of the purchasers of the Non-Registered Certificates represented thereby with the Certificate Registrar, at its principal trust office, as custodian, for the Depository, and registered in the name of the Depository or the nominee of the Depository for the account of designated agents holding on behalf of Euroclear and/or Clearstream. Prior to the expiration of the 40-day period commencing on the later of the commencement of the offering and the Closing Date (the “Restricted Period”), beneficial interests in each Temporary Regulation S Book-Entry Certificate may be held only through Euroclear or Clearstream. After the expiration of the Restricted Period, a beneficial interest in a Temporary Regulation S Book-Entry Certificate may be exchanged for an interest in the related Regulation S Book-Entry Certificate in the applicable form set forth as an exhibit hereto in accordance with the procedures set forth in Section 5.03(f). During the Restricted Period, distributions due in respect of a beneficial interest in a Temporary Regulation S Book-Entry Certificate shall only be made upon delivery to the Certificate Registrar by Euroclear or Clearstream, as applicable, of a Non-U.S. Beneficial Ownership Certification. After the expiration of the Restricted Period, distributions due in respect of any beneficial interests in a Temporary Regulation S Book-Entry Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial

 

 -370-

 

 

interest in the Regulation S Book-Entry Certificate of the same Class is improperly withheld or refused. The aggregate Certificate Balance of a Temporary Regulation S Book-Entry Certificate or a Regulation S Book-Entry Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided;

 

On the Closing Date, the Certificate Administrator shall execute, the Authenticating Agent shall authenticate, and the Certificate Administrator shall deliver to the Certificate Registrar the Regulation S Book-Entry Certificates, which shall be held by the Certificate Registrar for purposes of effecting the exchanges contemplated by the preceding paragraph. Computershare Trust Company, N.A. is hereby initially appointed the Authenticating Agent with the power to act, on the Trustee’s behalf, in the authentication and delivery of the Certificates in connection with transfers and exchanges as herein provided. If Computershare Trust Company, N.A. is removed as Certificate Administrator, then Computershare Trust Company, N.A. shall be terminated as Authenticating Agent. If the Authenticating Agent is terminated, the Trustee shall appoint a successor authenticating agent, which may be the Trustee or an Affiliate thereof.

 

(b)       Certificates of each Class of Non-Registered Certificates (other than any RR Interest during the RR Interest Transfer Restriction Period) offered and sold to Qualified Institutional Buyers in reliance on Rule 144A shall be represented by Rule 144A Book-Entry Certificates, which shall be deposited with the Certificate Registrar or an agent of the Certificate Registrar, as custodian for the Depository, and registered in the name of the Depository or a nominee of the Depository. The aggregate Certificate Balance of a Rule 144A Book-Entry Certificate may from time to time be increased or decreased by adjustments made on the records of the Certificate Registrar, as custodian for the Depository, as hereinafter provided.

 

(c)       Certificates of each Class of Non-Registered Certificates that are initially offered and sold to investors that are Institutional Accredited Investors that are not Qualified Institutional Buyers (the “Non-Book Entry Certificates”) shall be in the form of Definitive Certificates, substantially in the applicable form set forth as an exhibit hereto, and shall be registered in the name of such investors or their nominees by the Certificate Registrar who shall deliver the certificates for such Non-Book Entry Certificates to the respective beneficial owners or owners. Additionally, the Class R Certificates shall only be in the form of Definitive Certificates, and the RR Interest shall be issued in the form of Definitive Certificates at all times during the RR Interest Transfer Restriction Period.

 

(d)       Owners of beneficial interests in Book-Entry Certificates of any Class shall not be entitled to receive physical delivery of certificated Certificates unless: (i) the Depository advises the Certificate Registrar in writing that the Depository is no longer willing or able to discharge properly its responsibilities as depository with respect to the Book-Entry Certificates of such Class or ceases to be a Clearing Agency, and the Certificate Registrar and the Depository are unable to locate a qualified successor within ninety (90) days of such notice or (ii) the Trustee has instituted or has been directed to institute any judicial proceeding to enforce the rights of the Holders of such Class and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or appropriate for the Certificate Registrar to obtain possession of the Certificates of such Class; provided, however, that under no

 

 -371-

 

 

circumstances will certificated Non-Registered Certificates be issued to beneficial owners of a Temporary Regulation S Book-Entry Certificate. Upon notice of the occurrence of any of the events described in clause (i) or (ii) above with respect to any Certificates of a Class that are in the form of Book-Entry Certificates and upon surrender by the Depository of any Book-Entry Certificate of such Class and receipt from the Depository of instructions for re-registration, the Certificate Registrar shall issue Certificates of such Class in the form of Definitive Certificates (bearing, in the case of a Definitive Certificate issued for a Rule 144A Book-Entry Certificate, the same legends regarding transfer restrictions borne by such Book-Entry Certificate), and thereafter the Certificate Registrar shall recognize the Holders of such Definitive Certificates as Certificateholders under this Agreement. Unless and until Definitive Certificates are issued in respect of a Class of Book-Entry Certificates, beneficial ownership interests in such Class of Certificates will be maintained and transferred on the book entry records of the Depository and Depository Participants, and all references to actions by Holders of such Class of Certificates will refer to action taken by the Depository upon instructions received from the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures and, except as otherwise set forth herein, all references herein to payments, notices, reports and statements to Holders of such Class of Certificates will refer to payments, notices, reports and statements to the Depository or its nominee as the registered Holder thereof, for distribution to the related registered Holders of Certificates through the Depository Participants in accordance with the Depository’s procedures.

 

(e)       Subject to the following provisions, during the RR Interest Transfer Restriction Period, any RR Interest shall only be held as a Definitive Certificate in the Retained Interest Safekeeping Account by the Certificate Administrator (and each Retaining Party’s respective interest shall be tracked in the form of an entry in the Certificate Administrator’s trust accounting system under the Retained Interest Safekeeping Account), for the benefit of the Holder of the related Certificate. The Certificate Administrator shall hold the RR Interest in safekeeping and shall release the Definitive Certificate representing a portion of the requesting Retaining Party’s RR Interest only upon receipt of written instructions from the applicable Holder of the RR Interest and the Retaining Sponsor’s written consent, or in connection with a transfer, in accordance with Section 5.03(i), and in accordance with any authentication procedures as may be utilized by the Certificate Administrator and with this Agreement. There shall be, and hereby is, established by the Certificate Administrator an account which will be designated the “Retained Interest Safekeeping Account” and into which the RR Interest shall be held and which shall be governed by and subject to this Agreement. In addition, on and after the date hereof, the Certificate Administrator may establish any number of subaccounts to the Retained Interest Safekeeping Account for each Retaining Party. The RR Interest to be delivered in physical form to the Certificate Administrator shall be delivered as set forth herein. No amounts distributable to the RR Interest shall be remitted to the Retained Interest Safekeeping Account, but shall be remitted directly to each Retaining Party in accordance with written instructions provided separately by each Retaining Party to the Certificate Administrator. Under no circumstances by virtue of safekeeping the RR Interest shall the Certificate Administrator be obligated to bring legal action or institute proceedings against any person on behalf of the Retaining Parties. During the RR Interest Transfer Restriction Period and for such longer time as the Retaining Parties may request, the Certificate Administrator shall hold the Definitive Certificate representing the RR Interest at the below location, or any other location;

 

 -372-

 

 

provided the Certificate Administrator has given notice to each of the Retaining Parties of such new location:

 

Computershare Trust Company, N.A. 

Attn: Security Control and Transfer (SCAT) – MAC N9345-010 

425 E Hennepin Avenue 

Minneapolis, MN 55414

 

The Certificate Administrator shall make available to each Retaining Party its respective account information as mutually agreed upon by the Certificate Administrator and each respective Retaining Party, and in accordance with the Certificate Administrator’s policies and procedures. Any transfer of an RR Interest shall be subject to Section 5.03(g) and Section 5.03(i). The Certificate Administrator is directed by the Depositor to enter into a safekeeping account agreement to facilitate the initial settlement and sale of the RR Interest on the Closing Date.

 

On the Closing Date, and upon completion of each transfer of the RR Interest during the RR Interest Transfer Restriction Period, the Certificate Administrator shall deliver written confirmation to the Depositor, the Retaining Sponsor and the Retaining Parties substantially in the form of Exhibit UU hereto evidencing its receipt of the RR Interest.

 

Section 5.03     Registration of Transfer and Exchange of Certificates. (a) The Certificate Administrator shall keep or cause to be kept at the Corporate Trust Office books (the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided (the Certificate Administrator, in such capacity, being the “Certificate Registrar”). In such capacities, the Certificate Administrator shall be responsible for, among other things, (i) maintaining the Certificate Register and a record of the aggregate holdings of Certificates of each Class of Non-Registered Certificates represented by a Temporary Regulation S Book-Entry Certificate, a Regulation S Book-Entry Certificate and a Rule 144A Book-Entry Certificate and accepting Certificates for exchange and registration of transfer, (ii) holding the RR Interest as Definitive Certificates on behalf of each Holder of such Class and (iii) transmitting to the Depositor, the Master Servicers and the Special Servicers any notices from the Certificateholders. No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of Transfer or exchange of any Certificate (other than Definitive Certificates) referred to in this Section 5.03(a).

 

(b)       Subject to the restrictions on transfer set forth in this Article V, upon surrender for registration of transfer of any Certificate, the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations, in like aggregate interest and of the same Class.

 

(c)       Rule 144A Book-Entry Certificate to Temporary Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time during the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, or to transfer

 

 -373-

 

 

its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Temporary Regulation S Book-Entry Certificate of the same Class, such holder may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in such Temporary Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit, or cause to be credited, a beneficial interest in the Temporary Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account and (3) a certificate in the form of Exhibit I hereto given by the holder of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions (who shall be the agent member of Euroclear or Clearstream, or both) a beneficial interest in the Temporary Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

 

(d)       Rule 144A Book-Entry Certificate to Regulation S Book-Entry Certificate. If a holder of a beneficial interest in the Rule 144A Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time following the Restricted Period to exchange its interest in such Rule 144A Book-Entry Certificate for an interest in the Regulation S Book-Entry Certificate of the same Class, or to transfer its interest in such Rule 144A Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in a Regulation S Book-Entry Certificate, such holder may, subject to the rules and procedures of the Depository, exchange, or cause the exchange of, such interest for an equivalent beneficial interest in such Regulation S Book-Entry Certificate. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions given in accordance with the Depository’s procedures from a Depository Participant directing the Certificate Registrar to credit or cause to be credited a beneficial interest in the Regulation S Book-Entry Certificate in an amount equal to the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, (2) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with such increase and (3) a certificate in the form of Exhibit J hereto given by the holder of such beneficial interest stating (A) that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Book-Entry Certificates and pursuant to and in accordance with Regulation S, or (B) that the transferee is otherwise entitled to hold its interest in the applicable Certificates in the form of an interest in the Regulation S Book-Entry Certificate, without any registration of such Certificates under the Act

 

 -374-

 

 

(in which case such certificate shall enclose an Opinion of Counsel to such effect and such other documents as the Certificate Registrar may reasonably require), then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Rule 144A Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Regulation S Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Rule 144A Book-Entry Certificate to be exchanged, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Book-Entry Certificate equal to the reduction in the Certificate Balance of the Rule 144A Book-Entry Certificate, and to debit, or cause to be debited, from the account of the Person making such exchange or transfer the beneficial interest in the Rule 144A Book-Entry Certificate that is being exchanged or transferred.

 

(e)       Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to Rule 144A Book-Entry Certificate. If a holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate deposited with the Certificate Registrar as custodian for the Depository wishes at any time to exchange its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate of the same Class, or to transfer its interest in such Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to a Person who is required to take delivery thereof in the form of an interest in the Rule 144A Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, as the case may be, and the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in the Rule 144A Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) instructions from Euroclear or Clearstream, if applicable, and the Depository, directing the Certificate Registrar, as registrar, to credit or cause to be credited a beneficial interest in the Rule 144A Book-Entry Certificate equal to the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, (2) with respect to a transfer of an interest in the Regulation S Book-Entry Certificate, information regarding the participant account of the Depository to be debited with such decrease and (3) with respect to a transfer of an interest in the Temporary Regulation S Book-Entry Certificate for an interest in the Rule 144A Book-Entry Certificate (i) during the Restricted Period, a certificate in the form of Exhibit K hereto given by the holder of such beneficial interest and stating that the Person transferring such interest in the Temporary Regulation S Book-Entry Certificate reasonably believes that the Person acquiring such interest in the Rule 144A Book-Entry Certificate is a Qualified Institutional Buyer or (ii) after the Restricted Period, an Investment Representation Letter in the form of Exhibit C attached hereto from the transferee to the effect that such transferee is a Qualified Institutional Buyer (an “Investment Representation Letter”) and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, then the Certificate Registrar shall instruct the Depository to reduce, or cause to be reduced, the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to increase, or cause to be increased, the Certificate Balance of the Rule 144A Book-Entry Certificate by the aggregate Certificate Balance of the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate to be exchanged, and the Certificate Registrar shall instruct the Depository, concurrently with such

 

 -375-

 

 

reduction, to credit, or cause to be credited, to the account of the Person specified in such instructions, a beneficial interest in the Rule 144A Book-Entry Certificate equal to the reduction in the Certificate Balance of the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate and to debit, or cause to be debited, from the account of the Person making such transfer the beneficial interest in the Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate that is being transferred.

 

(f)       Temporary Regulation S Book-Entry Certificate to Regulation S Book-Entry Certificate. Interests in a Temporary Regulation S Book-Entry Certificate as to which the Certificate Registrar has received from Euroclear or Clearstream, as the case may be, a certificate (a “Non-U.S. Beneficial Ownership Certification”) to the effect that Euroclear or Clearstream, as applicable, has received a certificate substantially in the form of Exhibit L hereto from the holder of a beneficial interest in such Temporary Regulation S Book-Entry Certificate, shall be exchanged after the Restricted Period, for interests in the Regulation S Book-Entry Certificate of the same Class. The Certificate Registrar shall effect such exchange by delivering to the Depository for credit to the respective accounts of such holders, a duly executed and authenticated Regulation S Book-Entry Certificate, representing the aggregate Certificate Balance of interests in the Temporary Regulation S Book-Entry Certificate initially exchanged for interests in the Regulation S Book-Entry Certificate. The delivery to the Certificate Registrar by Euroclear or Clearstream of the certificate or certificates referred to above may be relied upon by the Depositor and the Certificate Registrar as conclusive evidence that the certificate or certificates referred to therein has or have been delivered to Euroclear or Clearstream pursuant to the terms of this Agreement and the Temporary Regulation S Book-Entry Certificate. Upon any exchange of interests in the Temporary Regulation S Book-Entry Certificate for interests in the Regulation S Book-Entry Certificate, the Certificate Registrar shall endorse the Temporary Regulation S Book-Entry Certificate to reflect the reduction in the Certificate Balance represented thereby by the amount so exchanged and shall endorse the Regulation S Book-Entry Certificate to reflect the corresponding increase in the amount represented thereby. Until so exchanged in full and except as provided therein, the Temporary Regulation S Book-Entry Certificate, and the Certificates evidenced thereby, shall in all respects be entitled to the same benefits under this Agreement as the Regulation S Book-Entry Certificate and Rule 144A Book-Entry Certificate authenticated and delivered hereunder.

 

(g)       Non-Book Entry Certificate to Book-Entry Certificate. If a holder of a Non-Book Entry Certificate (other than (a) an RR Interest during the Transfer Restriction Period or (b) a Class R Certificate) wishes at any time to exchange its interest in such Non-Book Entry Certificate for an interest in a Book-Entry Certificate of the same Class, or to transfer all or part of such Non-Book Entry Certificate to a Person who is entitled to take delivery thereof in the form of an interest in a Book-Entry Certificate, such holder may, subject to the rules and procedures of Euroclear or Clearstream, if applicable, and the Depository, cause the exchange of all or part of such Non-Book Entry Certificate for an equivalent beneficial interest in the appropriate Book-Entry Certificate of the same Class. Upon receipt by the Certificate Registrar, as registrar, at its office designated in Section 5.07, of (1) such Non-Book Entry Certificate, duly endorsed as provided herein, (2) instructions from such holder directing the Certificate Registrar, as registrar, to credit, or cause to be credited, a beneficial interest in the applicable Book-Entry Certificate equal to the portion of the Certificate Balance of the Non-Book Entry Certificate to be exchanged, such instructions to contain information regarding the participant account with the

 

 -376-

 

 

Depository to be credited with such increase and (3) a certificate in the form of Exhibit M hereto (in the event that the applicable Book-Entry Certificate is the Temporary Regulation S Book-Entry Certificate), in the form of Exhibit N hereto (in the event that the applicable Book-Entry Certificate is the Regulation S Book-Entry Certificate) or in the form of Exhibit O hereto (in the event that the applicable Book-Entry Certificate is the Rule 144A Book-Entry Certificate), then the Certificate Registrar, as registrar, shall cancel, or cause to be canceled, all or part of such Non-Book Entry Certificate, shall, if applicable, execute, authenticate and deliver to the transferor a new Non-Book Entry Certificate equal to the aggregate Certificate Balance of the portion retained by such transferor and shall instruct the Depository to increase, or cause to be increased, such Book-Entry Certificate by the aggregate Certificate Balance of the portion of the Non-Book Entry Certificate to be exchanged and to credit, or cause to be credited, to the account of the Person specified in such instructions a beneficial interest in the applicable Book-Entry Certificate equal to the Certificate Balance of the portion of the Non-Book Entry Certificate so canceled. Upon the written direction of the Depositor (which may be by email to cts.cmbs.bond.admin@wellsfargo.com) or its Affiliate, the Certificate Registrar shall execute any instrument as may be reasonably required by the Depository to effect such exchange.

 

(h)       Non-Book Entry Certificates on Initial Issuance Only. Subject to the issuance of Definitive Certificates, if and when permitted by Section 5.02(d), and subject to the issuance and transfer of an RR Interest during the Transfer Restriction Period in accordance with Section 5.03(i), no Non-Book Entry Certificate shall be issued to a transferee of an interest in any Rule 144A Book-Entry Certificate, Temporary Regulation S Book-Entry Certificate or Regulation S Book-Entry Certificate or to a transferee of a Non-Book Entry Certificate (or any portion thereof).

 

(i)       Transfers of RR Interest. At all times, if a Transfer of any RR Interest after the Closing Date is to be made, then the following documents shall be delivered to the Certificate Administrator, who will facilitate the transfer in conjunction with the Certificate Registrar who shall refuse to register such transfer unless it receives (and, upon receipt, may conclusively rely upon) (i) if such RR Interest is in the possession of the Certificate Administrator, a letter notifying the Certificate Administrator in writing of the Holder of an RR Interest’s intention to transfer such RR Interest from the Retained Interest Safekeeping Account and identifying the transferee, (ii) a certification from such Certificateholder’s prospective Transferee substantially in the form attached hereto as Exhibit D-3, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (iii) a certification from the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit D-4, which such certification must be countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, (iv) if such RR Interest will be in the possession of the Certificate Administrator after such transfer, a completed W-9 by the prospective transferee and (v) contact information and wiring instructions for the prospective transferee. Upon the completion of any transfer during the RR Interest Transfer Restriction Period, the Certificate Administrator shall issue a receipt to such transferor and transferee. Upon receipt of the foregoing certifications, the Certificate Registrar shall, subject to Section 5.02(e) and Section 5.03(n), reflect such RR Interest in the name of the prospective Transferee. For the avoidance of doubt, in no event shall an RR Interest be held as a Book-Entry Certificate during the RR Interest Transfer Restriction Period. Any attempted or purported transfer in violation of this Section 5.03(i) shall be null and void ab initio

 

 -377-

 

 

and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

 

(j)       Other Exchanges. In the event that a Book-Entry Certificate is exchanged for a Definitive Certificate, such Certificates may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of subsections (c) through (f) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S under the Act, at the case may be) and such other procedures as may from time to time be adopted by the Certificate Registrar.

 

(k)       Restricted Period. Prior to the termination of the Restricted Period with respect to the issuance of the Certificates, transfers of interests in the Temporary Regulation S Book-Entry Certificate to U.S. persons (as defined in Regulation S) shall be limited to transfers made pursuant to the provisions of subsection (e) above.

 

(l)       If Non-Registered Certificates are issued upon the transfer, exchange or replacement of Certificates bearing a restrictive legend relating to compliance with the Act, or if a request is made to remove such legend on Certificates, the Non-Registered Certificates so issued shall bear the restrictive legend, or such legend shall not be removed, as the case may be, unless there is delivered to the Certificate Registrar such satisfactory evidence, which may include an Opinion of Counsel that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Regulation S under the Act. Upon provision of such satisfactory evidence, the Certificate Registrar shall authenticate and deliver Certificates that do not bear such legend.

 

(m)       All Certificates surrendered for registration of transfer and exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with the Certificate Registrar’s customary procedures.

 

(n)       With respect to the ERISA Restricted Certificates, no sale, transfer, pledge or other disposition (other than any initial transfer to the Initial Purchasers or, with respect to the RR Interest, the applicable Retaining Parties) of any such Certificate shall be made unless the Trustee and Certificate Administrator shall have received either (i) a representation letter from the proposed purchaser or transferee of such Certificate substantially in the form of Exhibit F-1 attached hereto, to the effect that such proposed purchaser or transferee is not and will not be (A) an employee benefit plan subject to the fiduciary responsibility provisions of ERISA or a plan subject to Section 4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA) or other plan subject to any federal, state or local law (“Similar Law”) which is, to a material extent, similar to the foregoing provisions of ERISA or the Code (each, a “Plan”) or (B) a person acting on behalf of or using the assets of any such Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such Plan and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA), other than an insurance company using the assets of its general account under circumstances whereby the purchase and holding of such Certificates by such insurance company will be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of Prohibited Transaction Class Exemption 95-60 (or, in the case of a Plan subject to Similar Law, where the purchase, holding and disposition of such Certificate will not constitute

 

 -378-

 

 

or result in a non-exempt violation of Similar Law) or (ii) if such Certificate is presented for registration in the name of a purchaser or transferee that is any of the foregoing, an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a non-exempt “prohibited transaction” within the meaning of ERISA or Section 4975 of the Code or a non-exempt violation of any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, the Master Servicers, the Special Servicers, any sub-servicer, the Initial Purchasers, the Underwriters, the Operating Advisor, the Asset Representations Reviewer or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Agreement. The Trustee and Certificate Administrator shall not register the sale, transfer, pledge or other disposition of any ERISA Restricted Certificate unless the Trustee and Certificate Administrator have received either the representation letter described in clause (i) above or the Opinion of Counsel described in clause (ii) above. The costs of any of the foregoing representation letters or Opinions of Counsel shall not be borne by any of the Depositor, either Master Servicer, either Special Servicer, any sub-servicer, the Trustee, the Certificate Administrator, the Certificate Registrar, the Initial Purchasers, the Underwriters, the Operating Advisor, the Asset Representations Reviewer or the Trust. Each Certificate Owner of an ERISA Restricted Certificate shall be deemed to represent that it is not and will not become a Person specified in clauses (i)(A) or (i)(B) above. Any transfer, sale, pledge or other disposition of any ERISA Restricted Certificates that would constitute or result in a prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate the provisions of this Section 5.03(n) shall be deemed absolutely null and void ab initio, to the extent permitted under applicable law.

 

(o)       No Class R Certificate may be purchased by or transferred to any prospective purchaser or transferee that is or will be a Plan, or any person acting on behalf of a Plan or using the assets of a Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such Plan and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) to purchase such Class R Certificate. Each prospective transferee of a Class R Certificate shall deliver to the transferor and the Certificate Administrator a representation letter, substantially in the form of Exhibit F-2, stating that the prospective transferee is not and will not become a Plan or a person acting on behalf of or using the assets of a Plan. Each Holder of a Class R Certificate shall be deemed to represent that it is not and will not become a Person specified in the second preceding sentence. Any attempted or purported transfer in violation of these transfer restrictions shall be null and void ab initio and shall vest no rights in any purported transferee and shall not relieve the transferor of any obligations with respect to the applicable Certificates.

 

(p)       Each Person who has or acquires any Residual Ownership Interest shall be deemed by the acceptance or acquisition of such Residual Ownership Interest to have agreed to be bound by the following provisions and the rights of each Person acquiring any Residual Ownership Interest are expressly subject to the following provisions:

 

(i)       Each Person acquiring or holding any Residual Ownership Interest shall be a Permitted Transferee and shall not acquire or hold such Residual Ownership Interest as agent (including a broker, nominee or other middleman) on behalf of any Person that is

 

 -379-

 

 

not a Permitted Transferee. Any such Person shall promptly notify the Certificate Registrar of any change or impending change in its status (or the status of the beneficial owner of such Residual Ownership Interest) as a Permitted Transferee. Any acquisition described in the first sentence of this Section 5.03(p) by a Person who is not a Permitted Transferee or by a Person who is acting as an agent of a Person who is not a Permitted Transferee shall be void ab initio and of no effect, and the immediately preceding owner who was a Permitted Transferee shall be restored to registered and beneficial ownership of the Residual Ownership Interest as soon and as fully as possible.

 

(ii)       No Residual Ownership Interest may be Transferred, and no such Transfer shall be registered in the Certificate Register, without the express written consent of the Certificate Registrar, and the Certificate Registrar shall not recognize the Transfer, and such proposed Transfer shall not be effective, without such consent with respect thereto. In connection with any proposed Transfer of any Residual Ownership Interest, the Certificate Registrar shall, as a condition to such consent, (x) require the proposed transferee to deliver, and the proposed transferee shall deliver to the Certificate Registrar and to the proposed transferor, an affidavit in substantially the form attached as Exhibit D-1 (a “Transferee Affidavit”) of the proposed transferee (A) that such proposed transferee is a Permitted Transferee and (B) stating that (1) the proposed transferee historically has paid its debts as they have come due and intends to do so in the future, (2) the proposed transferee understands that, as the holder of a Residual Ownership Interest, it may incur tax liabilities in excess of cash flows generated by the residual interest, (3) the proposed transferee intends to pay taxes associated with holding the Residual Ownership Interest as they become due, (4) the proposed transferee will not cause income with respect to the Residual Ownership Interest to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such proposed transferee or any other U.S. Tax Person, (5) the proposed transferee will not transfer the Residual Ownership Interest to any Person that does not provide a Transferee Affidavit or as to which the proposed transferee has actual knowledge that such Person is not a Permitted Transferee or is acting as an agent (including a broker, nominee or other middleman) for a Person that is not a Permitted Transferee, and (6) the proposed transferee expressly agrees to be bound by and to abide by the provisions of this Section 5.03(p) and (y) other than in connection with the initial issuance of a Class R Certificate, require a statement from the proposed transferor substantially in the form attached as Exhibit D-2 (the “Transferor Letter”), that the proposed transferor has no actual knowledge that the proposed transferee is not a Permitted Transferee and has no actual knowledge or reason to know that the proposed transferee’s statements in its Transferee Affidavit are false.

 

(iii)       Notwithstanding the delivery of a Transferee Affidavit by a proposed transferee under clause (ii) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed transferee is not a Permitted Transferee, no Transfer to such proposed transferee shall be effected and such proposed Transfer shall not be registered on the Certificate Register; provided, however, that the Certificate Registrar shall not be required to conduct any independent investigation to determine whether a proposed transferee is a Permitted Transferee. Upon notice to the Certificate Registrar that there has occurred a Transfer to any Person that is a Disqualified Organization or an

 

 -380-

 

 

agent thereof (including a broker, nominee or middleman) in contravention of the foregoing restrictions, and in any event not later than sixty (60) days after a request for information from the transferor of such Residual Ownership Interest or such agent, the Certificate Registrar agrees to furnish to the Internal Revenue Service and the transferor of such Residual Ownership Interest or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code, including, but not limited to, the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such Transfer. At the election of the Certificate Registrar, the Certificate Registrar may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; provided, however, that such Persons shall in no event be excused from furnishing such information.

 

(q)       The Class R Certificates may only be transferred to and owned by Qualified Institutional Buyers.

 

(r)       Notwithstanding any other provision of this Agreement, the Certificate Administrator shall comply with all federal withholding requirements respecting payments to Certificateholders and other payees of interest or original issue discount that the Certificate Administrator reasonably believes are applicable under the Code. The consent of Certificateholders or payees shall not be required for such withholding, and the Certificateholders shall be required to provide the Certificate Administrator with such forms and such other information reasonably required by the Certificate Administrator. If the Certificate Administrator does withhold any amount from interest or original issue discount payments or advances thereof to any Certificateholder or payee pursuant to federal withholding requirements, the Certificate Administrator shall indicate the amount withheld to such Person. Such amounts shall be deemed to have been distributed to such Persons for all purposes of this Agreement.

 

(s)       Each Certificate Owner of a Non-Registered Certificate shall be deemed to have represented and agreed as follows:

 

(i)       Such Certificate Owner (A)(i) is a Qualified Institutional Buyer, (ii) is acquiring such Non-Registered Certificate for its own account or for the account of another Qualified Institutional Buyer, as the case may be, and (iii) is aware that the sale of the Non-Registered Certificates to it is being made in reliance on Rule 144A, (B)(i)(except with respect to the Class R Certificates) is an Institutional Accredited Investor that is not a Qualified Institutional Buyer and that is purchasing such Non-Registered Certificate for its own account or for the account of another Institutional Accredited Investor, and (ii) is not acquiring such Non-Registered Certificate with a view to any resale or distribution of such Non-Registered Certificate other than in accordance with the restrictions set forth in this Section 5.03(s), or (C) (except with respect to the Class R Certificates) is an institution that is not a United States Securities Person, and is purchasing such Non-Registered Certificate in an Offshore Transaction.

 

(ii)       Such Certificate Owner understands that the Non-Registered Certificates have not been and will not be registered or qualified under the Securities Act or any state or foreign securities laws and may not be reoffered, resold, pledged or otherwise

 

 -381-

 

 

transferred except (A) to a person whom the purchaser reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A, (B) (except with respect to the Class R Certificates) to an institution that is a non-United States Securities Person in an Offshore Transaction in accordance with Rule 903 or 904 of Regulation S, or (C) (except with respect to the Class R Certificates) to an Institutional Accredited Investor that is not a Qualified Institutional Buyer, and in each case, in accordance with any applicable federal securities laws and any applicable securities laws of any state of the United States or any other jurisdiction.

 

(iii)       Such Certificate Owner understands that, if the purchaser of a Non-Registered Certificate is not a Qualified Institution Buyer or a non-United States Securities Person, the Non-Registered Certificates purchased by such purchaser may not be transferred in book-entry form and may be transferred in physical form only in compliance with the restrictions in clause (ii)(C) above and no such transfer of the Non-Registered Certificates owned by such Certificate Owner will be permitted unless the purchaser provides certification that the transfer complies with such restrictions, as described in this Section 5.03(s).

 

(iv)       Such Certificate Owner is duly authorized to purchase the Non-Registered Certificates and its purchase of investments having the characteristics of the Non-Registered Certificate is authorized under, and not directly or indirectly in contravention of, any law, rule, regulation, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to such Certificate Owner.

 

(t)       Each beneficial owner of a Certificate or any interest therein that is a Plan subject to ERISA or Section 4975 of the Code (an “ERISA Plan”) or a person acting on behalf of an ERISA Plan, as a condition of its purchase of such Certificate, will be deemed to have represented that (i) none of the Depositor, any Underwriter, any Initial Purchaser, the Trustee, the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer, or any of their respective affiliated entities (the “Transaction Parties”), has provided any investment recommendation or investment advice on which the ERISA Plan or the fiduciary making the investment decision for the ERISA Plan has relied in connection with the decision to acquire Certificates, and the Transaction Parties are not otherwise acting as a fiduciary (within the meaning of Section 3(21) of ERISA or Section 4975(e)(3) of the Code) to the ERISA Plan in connection with the ERISA Plan’s acquisition of Certificates (except where an exemption applies (all of the conditions of which are satisfied) or it would not otherwise result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code), and (ii) the ERISA Plan fiduciary is exercising its own independent judgment in evaluating the investment in the Certificates.

 

Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of actual notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute,

 

 -382-

 

 

authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust. In connection with the issuance of any new Certificate under this Section 5.04, the Certificate Registrar may require the payment of a sum sufficient to cover any expenses (including the fees and expenses of the Certificate Registrar) connected therewith. Any replacement Certificate issued pursuant to this Section 5.04 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

 

Section 5.05    Persons Deemed Owners. The Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and none of the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee, the Certificate Registrar or any agent of any of them shall be affected by any notice to the contrary; provided, however, that to the extent that a party to this Agreement responsible for distributing any report, statement or other information required to be distributed to Certificateholders has been provided an Investor Certification, such party to this Agreement shall distribute such report, statement or other information to such beneficial owner (or prospective transferee).

 

Section 5.06    Access to List of Certificateholders’ Names and Addresses; Special Notices. (a) The Certificate Registrar shall maintain in as current form as is reasonably practicable the most recent list available to it of the names and addresses of the Certificateholders. If any Certificateholder that has provided an Investor Certification (i) requests in writing from the Certificate Registrar a list of the names and addresses of Certificateholders, (ii) states that such Certificateholder desires to communicate with other Certificateholders with respect to its rights under this Agreement or under the Certificates and (iii) provides a copy of the communication which Certificateholder proposes to transmit, then the Certificate Registrar shall, within ten (10) Business Days after the receipt of such request, furnish such Certificateholder (at such Certificateholder’s sole cost and expense) a current list of the Certificateholders. In addition, upon written request to the Certificate Administrator of any Certificateholder or Certificate Owner (if applicable) that has provided an Investor Certification, the Certificate Administrator shall promptly notify such Certificateholder or Certificate Owner of the identity of then-current Directing Certificateholder. Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar shall not be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which information was derived. The Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor and the Depositor shall be entitled to a list of the names and addresses of Certificateholders from time to time upon request therefor.

 

(b)       (i) The Certificate Administrator shall include in any Form 10-D any written request received in accordance with Section 11.04(a) prior to the Distribution Date to which the Form 10-D relates (and on or after the Distribution Date preceding such Distribution Date) from a Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners related to Certificateholders or Certificate Owners

 

 -383-

 

 

exercising their rights under the terms of this Agreement. Any Form 10-D containing such disclosure (a “Special Notice”) regarding the request to communicate shall include the following and no more than the following (a) the name of the Certificateholder or Certificate Owner making the request, (b) the date the request was received, (c) a statement to the effect that the Certificate Administrator has received such request, stating that such Certificateholder or Certificate Owner is interested in communicating with other Certificateholders or Certificate Owners with regard to the possible exercise of rights under this Agreement, and (d) a description of the method other Certificateholders or Certificate Owners may use to contact the requesting Certificateholder or Certificate Owner. It is hereby understood that a disclosure in substantially the following form shall be deemed to satisfy the requirements in the preceding sentence: “On [date], the Certificate Administrator received from [name], a Certificateholder or Certificate Owner, a request to communicate with other Certificateholders and Certificate Owners in the securitization transaction to which this report on Form 10-D relates (the “Securitization”). The requesting Certificateholder or Certificate Owner is interested in communicating with other Certificateholders and Certificate Owners with regard to the possible exercise of rights under the pooling and servicing agreement governing the Securitization. Other Certificateholders and Certificate Owners may contact the requesting Certificateholder or Certificate Owner at [telephone number], [email address] and/or [mailing address].”

 

(ii)       In verifying the identity of any Certificateholder or Certificate Owner in connection with any request to communicate, (i) if the Certificateholder or Certificate Owner is the holder of record with respect to any Certificate, the Certificate Administrator shall not require any further verification or (ii) if the Certificateholder or Certificate Owner is not the holder of record with respect to any Certificate, the Certificate Administrator shall require no more than (x) a written certification from such Certificateholder or Certificate Owner that it is the beneficial owner of a Certificate and (y) one of the following documents confirming ownership of such Certificate: a trade confirmation, an account statement, a letter from a broker-dealer or another document acceptable to the Certificate Administrator that is similar to any of the foregoing documents. The Certificate Administrator shall not have any obligation to verify the information provided by any Certificateholder or Certificate Owner in any request to communicate and may rely on such information conclusively. Additionally, any expenses the Certificate Administrator incurs in connection with any request to communicate will be paid by the Trust.

 

Section 5.07    Maintenance of Office or Agency. The Certificate Registrar shall maintain or cause to be maintained an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Certificate Registrar in respect of the Certificates and this Agreement may be served. The Certificate Registrar initially designates its office at 600 South 4^th Street, 7^th Floor, Minneapolis, Minnesota 55415 as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Certificateholders and the Mortgagors of any change in the location of the Certificate Register or any such office or agency.

 

Section 5.08    Appointment of Certificate Administrator. (a) Computershare Trust Company, N.A. is hereby initially appointed Certificate Administrator in accordance with the terms of this Agreement. If the Certificate Administrator resigns or is terminated, the Trustee

 

 -384-

 

 

shall appoint a successor certificate administrator which may be the Trustee or an Affiliate thereof to fulfill the obligations of the Certificate Administrator hereunder which must satisfy the eligibility requirements set forth in Section 8.06.

 

(b)       The Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.

 

(c)       The Certificate Administrator, at the expense of the Trust (but only if such amount constitutes “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith.

 

(d)       The Certificate Administrator shall not be personally liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.

 

(e)       The Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided, however, that the appointment of such agents or attorneys shall not relieve the Certificate Administrator of its duties or obligations hereunder. Computershare Trust Company, N.A. shall perform its duties as Custodian hereunder through its Document Custody division Computershare Trust Company, N.A. and shall perform its duties as the Certificate Administrator role through its Corporate Trust Services division.

 

(f)       The Certificate Administrator shall not be responsible for any act or omission of the Trustee, the Master Servicers, the Special Servicers or the Depositor.

 

Section 5.09    [RESERVED]

 

Section 5.10    Voting Procedures. With respect to any matters submitted to Certificateholders for a vote, the Certificate Administrator shall administer such vote through the Depository with respect to Book-Entry Certificates and directly with registered Holders by mail with respect to Definitive Certificates. In each case, such vote shall be administered in accordance with the following procedures, unless different procedures are otherwise described herein with respect to a specific vote:

 

(a)       Any matter submitted to Certificateholders for a vote shall be announced in a notice prepared by the Certificate Administrator. Such notice shall include the record date determined by the Certificate Administrator for purposes of the vote and a voting deadline which shall be no less than thirty (30) days and no later than sixty (60) days after the date such notice is distributed. The notice and related ballot shall be sent to Holders of Book-Entry Certificates through the Depository and by mail to the registered Holders of Definitive Certificates. In addition, the notice and related ballot shall be posted to the Certificate Administrator’s Website.

 

 -385-

 

 

Notices delivered in this manner shall be considered delivered to all Holders regardless of whether any Holder actually receives the notice and ballot.

 

(b)       In connection with any vote administered pursuant to this Agreement, voting Holders shall be required to certify their holdings in the manner set forth on the ballot, unless a specific manner is otherwise provided herein. Holders may only vote in accordance with their Voting Rights. Voting Rights with respect to any outstanding Class of Certificates shall be calculated by the Certificate Administrator in accordance with the definition of Voting Rights as of the record date for the vote. Only Classes with an outstanding Certificate Balance greater than zero as of the record date of the vote shall be permitted to vote. Once a Holder has cast its vote, the vote may be changed or retracted on or before the vote deadline. Any changes or retractions shall be communicated by the Certificateholder to the Certificate Administrator in writing on a ballot. After the vote deadline has passed, votes may not be changed or retracted by any Holder unless the Holder wishing to change or retract its vote holds a sufficient portion of the Voting Rights such that the Holder, by its vote alone, could approve or deny the proposition subject to a vote without taking into consideration the votes cast by any other Holder. Transferees or purchasers of any Class of Certificates are subject to and shall be bound by all votes of Holders initiated or conducted prior to its acquisition of such Certificate.

 

(c)       The Certificate Administrator may take up to fifteen (15) Business Days to tabulate the results of any vote. The Certificate Administrator shall use its reasonable efforts to resolve any illegible or incomplete ballots received prior to the voting deadline. Illegible or incomplete ballots that are received on the voting deadline or that cannot be resolved by the voting deadline shall not be counted. Promptly after the votes are tabulated, the Certificate Administrator shall prepare a notice announcing the results of the vote. Such notice shall include the percentage of Voting Rights in favor of the proposition, the percentage against the proposition and the percentage abstaining. In addition, the notice will announce whether the proposition has been adopted by Certificateholders. The notice shall be distributed in accordance with the methods described in Section 5.10(a) above. The Certificate Administrator shall also include such notice on the Form 10-D prepared in connection with the distribution period that corresponds with the date such notice is distributed. All vote tabulations shall be final and the Certificate Administrator shall not, absent manifest error, re-tabulate the votes or conduct a new vote for the same proposition.

 

(d)       Any and all reasonable expenses incurred by the Certificate Administrator in connection with administering any vote shall be borne by the Trust. The Certificate Administrator is under no obligation to advise Holders about the matter being voted on or answer questions other than process-related questions regarding the administration of the vote.

 

(e)       If any party to this Agreement believes a vote of Certificateholders is needed for some matter related to the administration of the Trust that is not specifically contemplated herein, such party may request the Certificate Administrator to conduct a vote and the Certificate Administrator will conduct the requested vote in accordance with these procedures. Unless specifically provided herein, all such votes require a majority of Certificateholders to carry a proposition.

 

 -386-

 

 

Section 5.11     Exchangeable Certificates. (a) On the Closing Date, the Grantor Trust shall issue the several Classes of Exchangeable Certificates. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest. All amounts allocated to an Exchangeable Upper-Tier Regular Interest hereunder, including principal and interest payable thereon, shall be allocated to the Classes of Exchangeable Certificates representing an interest therein, in proportion to their Class Percentage Interests therein.

 

(b)       Certificates of each Class of Exchangeable Certificates (each such Class, in connection with any exchange, an applicable “Surrendered Class”) may be exchanged on the books of DTC for Certificates of the corresponding Classes of Exchangeable Certificates set forth next to such Class in the table below (each, an applicable “Received Class”), and vice versa. The Denomination of each of the Received Classes of Certificates must be equal to the Denomination of each of the Surrendered Classes of Certificates. No fee shall be required with respect to any exchange of Exchangeable Certificates. Following any exchange of Certificates of one or more Surrendered Classes for Certificates of one or more Received Classes, the Class Percentage Interests in the Corresponding Exchangeable Upper-Tier Regular Interests that are represented by the Surrendered Classes (and consequently their related Certificate Balances or Notional Amounts) shall be decreased, and those of the Received Classes (and consequently their related Certificate Balances or Notional Amounts) shall be increased. The Certificate Administrator or Certificate Registrar, as applicable, shall (i) make the appropriate notation of such exchange on the Certificate Register and on the Book-Entry Certificate for each Class of Exchangeable Certificates involved in such exchange to reflect such reductions and increases and (ii) give appropriate instructions to the Depository to reflect such reductions and increases.

 

Surrendered Classes (or Received Classes) of Certificates	Received Classes (or Surrendered Classes) of Certificates
Class A-4	Class A-4-1, Class A-4-X1
Class A-4	Class A-4-2, Class A-4-X2
Class A-5	Class A-5-1, Class A-5-X1
Class A-5	Class A-5-2, Class A-5-X2
Class A-S	Class A-S-1, Class A-S-X1
Class A-S	Class A-S-2, Class A-S-X2
Class B	Class B-1, Class B-X1
Class B	Class B-2, Class B-X2
Class C	Class C-1, Class C-X1
Class C	Class C-2, Class C-X2

 

For example, a Certificateholder holding Class A-S Certificates with a Denomination of $143,001,000 may surrender Class A-S Certificates with a Denomination of $71,500,500 (the Certificates of the applicable Surrendered Class) and receive in exchange Class A-S-1 Certificates with a Denomination of $71,500,500 and Class A-S-X1 Certificates with a Denomination of $71,500,500 (collectively, the Certificates of the applicable Received Classes). In such event, (i) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be reduced from

 

 -387-

 

 

100% to 50%, (ii) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% to 50%, and (iii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be increased from 0% to 50%.

 

Similarly a Certificateholder holding Class A-S-1 Certificates with a Denomination of $71,500,500 that seeks to surrender all such Certificates in exchange for Class A-S Certificates will be required to surrender all such Certificates, as well as Class A-S-X1 Certificates with a Denomination of $71,500,500 in order to accomplish such exchange. In such event, (i) the Class Percentage Interest of the Class A-S-1 Certificates in each of the Class A-S and Class A-S-X2 Upper-Tier Regular Interests would be reduced from 50% to 0%, (ii) the Class Percentage Interest of the Class A-S-X1 Certificates in the Class A-S-X1 Upper-Tier Regular Interest would be reduced from 50% to 0%, and (iii) the Class Percentage Interest of the Class A-S Certificates in each of the Class A-S, Class A-S-X1 and Class A-S-X2 Upper-Tier Regular Interests would be increased from 0% (assuming no other Class A-S Certificates are then outstanding) to 50%.

 

(c)       The maximum Certificate Balance or Notional Amount of each Class of Class A-4 Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class A-4 Upper-Tier Regular Interest, the maximum Certificate Balance or Notional Amount of each Class of Class A-5 Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class A-5 Upper-Tier Regular Interest, the maximum Certificate Balance or Notional Amount of each Class of Class A-S Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class A-S Upper-Tier Regular Interest, the maximum Certificate Balance or Notional Amount of each Class of Class B Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class B Upper-Tier Regular Interest, and the maximum Certificate Balance or Notional Amount of each Class of Class C Exchangeable Certificates that may be issued in an exchange is equal to the Certificate Balance of the Class C Upper-Tier Regular Interest.

 

(d)       In order to effect an exchange of Exchangeable Certificates, the Certificateholder shall deliver a notice substantially in the form of Exhibit VV to the Certificate Administrator by e-mail to cts.cmbs.bond.admin@wellsfargo.com (with a subject line referencing “BANK 2021-BNK37” and setting forth the proposed Exchange Date) no later than three (3) Business Days before the proposed exchange date (the “Exchange Date”). The Exchange Date may be any Business Day other than the first or last Business Day of the month. The notice must (i) be set forth on the applicable Certificateholder’s letterhead, (ii) carry a medallion stamp guarantee and (iii) set forth the following information: (x) the CUSIP number, outstanding Certificate Balance or Notional Amount and Original Certificate Balance or Original Notional Amount of each proposed Surrendered Class and of each proposed Received Class; (y) the Certificateholder’s DTC participant number; and (z) the proposed Exchange Date. A notice shall become irrevocable on the second Business Day before the proposed Exchange Date.

 

(e)       Upon the satisfaction of the conditions to an exchange described in this Section 5.11, the Certificate Administrator shall deliver Certificates of the applicable Received Classes to the requesting Certificateholder. The Certificate Administrator shall reduce the

 

 -388-

 

 

outstanding Certificate Balance(s) or Notional Amount(s) of the Surrendered Classes, and increase the outstanding Certificate Balance(s) or Notional Amount(s) of the Received Classes, on the Certificate Register. The Certificateholder and the Certificate Administrator shall utilize the “deposit and withdrawal system” at the Depository to effect the exchange.

 

(f)       The Certificate Administrator shall make the first distribution on Certificates of any Received Classes related to an exchange on the Distribution Date in the month following the month of exchange to the Certificateholder of record as of the applicable Record Date for such Certificates and Distribution Date. If an Exchange Date occurs in any month before the Distribution Date in such month, then any distributions to be made on such Distribution Date on Certificates of any Surrendered Classes shall be so made to the Certificateholders of record as of the applicable Record Date for such Certificates and such Distribution Date. Neither the Certificate Administrator nor the Depositor shall have any obligation to ensure the availability in the market of the applicable Certificates to accomplish any exchange.

 

[End of Article V]

 

Article VI

THE DEPOSITOR, THE MASTER SERVICERS, THE SPECIAL SERVICERS, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE DIRECTING CERTIFICATEHOLDER AND THE RISK RETENTION CONSULTATION PARTY

 

Section 6.01    Representations, Warranties and Covenants of the Master Servicers, the Special Servicers, the Operating Advisor and the Asset Representations Reviewer. (a) Each Master Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Special Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

 

(i)        The Master Servicer is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America, and the Master Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)       The execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, do not (A) violate the Master Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets or (C) violate any law, rule, regulation, order, judgment or decree to which the Master Servicer or its property is subject, which, in the case of either (B) or (C), is likely to

 

 -389-

 

 

materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(iii)       The Master Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)        The Master Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(vi)       No litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer which would prohibit the Master Servicer from entering into this Agreement or, in the Master Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;

 

(vii)      The Master Servicer has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)     No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required under federal or state law for the execution, delivery and performance by the Master Servicer of, or compliance by the Master Servicer with, this Agreement or the Master Servicer’s consummation of any transactions contemplated hereby, other than (A) such consents, approvals, authorizations, orders, qualifications, registrations, filings or notices as have been obtained, made or given prior to the actual performance by the Master Servicer of its obligations under this Agreement or (B) where the lack of such consent, approval, authorization, order, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Master Servicer under this Agreement;

 

 -390-

 

 

(b)       Each Special Servicer, for itself only, hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, the Asset Representations Reviewer and the Operating Advisor, as of the Closing Date, that:

 

(i)        The Special Servicer is (x) in the case of the General Special Servicer, a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and (y) in the case of the NCB Special Servicer, a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America, and in each case, the Special Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)        The execution and delivery of this Agreement by the Special Servicer, and the performance and compliance with the terms of this Agreement by the Special Servicer, do not (A) violate the Special Servicer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Special Servicer or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Special Servicer to perform its obligations under this Agreement or its financial condition;

 

(iii)       The Special Servicer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and, to the extent applicable, the rights of creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Act) or their Affiliates, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       The Special Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

 

 -391-

 

 

(vi)       No litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer, which would prohibit the Special Servicer from entering into this Agreement or, in the Special Servicer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;

 

(vii)      The Special Servicer has errors and omissions coverage which is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)     No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Special Servicer of, or compliance by the Special Servicer with, this Agreement or the consummation of the transactions of the Special Servicer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Special Servicer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Special Servicer to perform its obligations hereunder.

 

(c)       The Operating Advisor hereby represents, warrants and covenants to the Trustee, for its own benefit and the benefit of the Certificateholders, each Serviced Companion Noteholder, the Depositor, the Certificate Administrator, each Master Servicer, each Special Servicer, as of the Closing Date, that:

 

(i)        The Operating Advisor is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of New York, and the Operating Advisor is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

(ii)       The execution and delivery of this Agreement by the Operating Advisor, and the performance and compliance with the terms of this Agreement by the Operating Advisor, do not (A) violate the Operating Advisor’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Operating Advisor or its property is subject, which, in the case of either (B) or (C), is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or its financial condition;

 

(iii)       The Operating Advisor has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

 -392-

 

 

(iv)       This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Operating Advisor, enforceable against the Operating Advisor in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       The Operating Advisor is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Operating Advisor to perform its obligations under this Agreement or the financial condition of the Operating Advisor;

 

(vi)       The Operating Advisor has errors and omissions insurance coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07;

 

(vii)      No litigation is pending or, to the best of the Operating Advisor’s knowledge, threatened against the Operating Advisor, which would prohibit the Operating Advisor from entering into this Agreement or, in the Operating Advisor’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Operating Advisor to perform its obligations under this Agreement; and

 

(viii)     No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and performance by the Operating Advisor of, or compliance by the Operating Advisor with, this Agreement or the consummation of the transactions of the Operating Advisor contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Operating Advisor of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Operating Advisor to perform its obligations hereunder

 

(d)       The Asset Representations Reviewer hereby represents and warrants to the Trustee, for its own benefit and the benefit of the Certificateholders, and to the Depositor, each Master Servicer, each Special Servicer and the Certificate Administrator, as of the Closing Date, that:

 

(i)        The Asset Representations Reviewer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of New York, and the Asset Representations Reviewer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;

 

 -393-

 

 

(ii)        The execution and delivery of this Agreement by the Asset Representations Reviewer, and the performance and compliance with the terms of this Agreement by the Asset Representations Reviewer, do not (A) violate the Asset Representations Reviewer’s organizational documents, (B) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or which is applicable to it or any of its assets, or (C) violate any law, rule, regulation, order, judgment or decree to which the Asset Representations Reviewer or its property is subject, which, in the case of either (B) or (C) above, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or its financial condition;

 

(iii)       The Asset Representations Reviewer has the full power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)      This Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Asset Representations Reviewer, enforceable against the Asset Representations Reviewer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       The Asset Representations Reviewer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Asset Representations Reviewer to perform its obligations under this Agreement or the financial condition of the Asset Representations Reviewer;

 

(vi)       No litigation is pending or, to the best of the Asset Representations Reviewer’s knowledge, threatened against the Asset Representations Reviewer, which would prohibit the Asset Representations Reviewer from entering into this Agreement or, in the Asset Representations Reviewer’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Asset Representations Reviewer to perform its obligations under this Agreement;

 

(vii)     The Asset Representations Reviewer has errors and omissions coverage that is in full force and effect or is self-insuring with respect to such risks, which in either case complies with the requirements of Section 3.07; and

 

(viii)    No consent, approval, authorization or order of any court or governmental agency or body is required under federal or state law for the execution, delivery and 

 

 -394-

 

 

performance by the Asset Representations Reviewer of, or compliance by the Asset Representations Reviewer with, this Agreement or the consummation of the transactions of the Asset Representations Reviewer contemplated by this Agreement, except for any consent, approval, authorization or order which has been obtained or can be obtained prior to the actual performance by the Asset Representations Reviewer of its obligations under this Agreement, or which, if not obtained would not have a materially adverse effect on the ability of the Asset Representations Reviewer to perform its obligations hereunder; and

 

(ix)       The Asset Representations Reviewer is an Eligible Asset Representations Reviewer.

 

(e)       The representations and warranties set forth in paragraphs (a)-(d) above shall survive the execution and delivery of this Agreement. Upon written notice or actual knowledge by any party to this Agreement (or upon written notice thereof from any Certificateholder or any Companion Holder) of a breach of any of the representations and warranties set forth in this Section 6.01 which materially and adversely affects the interests of any party to this Agreement, the Certificateholders, the party discovering such breach shall give prompt written notice to the other parties hereto, each certifying Certificateholder, and, prior to the occurrence and continuance of a Control Termination Event, the Directing Certificateholder.

 

Section 6.02    Liability of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers and the Asset Representations Reviewer. The Depositor, each Master Servicer, the Operating Advisor, each Special Servicer and the Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the respective obligations specifically imposed upon and undertaken by the Depositor, such Master Servicer, the Operating Advisor, such Special Servicer and the Asset Representations Reviewer herein.

 

Section 6.03    Merger, Consolidation or Conversion of the Depositor, the Master Servicers, the Operating Advisor, the Special Servicers or the Asset Representations Reviewer.  (a) Subject to subsection (b) below, each of the Depositor, the Master Servicers and the Special Servicers will keep in full effect its existence, rights and franchises as an entity under the laws of the jurisdiction of its incorporation or organization, and each will obtain and preserve its qualification to do business as a foreign entity in each jurisdiction in which qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the Certificates or any of the Mortgage Loans or Companion Loans and to perform its respective duties under this Agreement.

 

(b)       Each of the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor and the Asset Representations Reviewer may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets (which may be limited to all or substantially all of its assets related to commercial mortgage loan servicing or commercial mortgage surveillance, as the case may be) to any Person, in which case any Person resulting from any merger or consolidation to which the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, shall be the successor of the Depositor, such

 

 -395-

 

 

Master Servicer, such Special Servicer, the Operating Advisor, or the Asset Representations Reviewer (such Person, in the case of a Master Servicer or a Special Servicer, in each of the foregoing cases, the “Surviving Entity”), as the case may be, hereunder, without the execution or filing of any paper (other than an assumption agreement wherein the successor shall agree to perform the obligations of and serve as the Depositor, a Master Servicer, a Special Servicer, the Operating Advisor, or the Asset Representations Reviewer, as the case may be, in accordance with the terms of this Agreement) or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that with respect to such merger, consolidation or succession, Rating Agency Confirmation is received from each Rating Agency with respect to the Classes of Certificates and, with respect to any class of Serviced Companion Loan Securities, a confirmation is received from each applicable rating agency that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates as described in Section 3.25); provided, further, that if a Master Servicer, a Special Servicer or the Operating Advisor enters into a merger and such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, is the surviving entity under applicable law, such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, shall not, as a result of the merger, be required to provide a Rating Agency Confirmation with respect to ratings of the Classes of Certificates or, with respect to any class of Serviced Companion Loan Securities, a confirmation of the rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings; provided, further, that for so long as the Trust, and, with respect to any Serviced Companion Loan included as part of the trust in a related Other Securitization, is subject to the reporting requirements of the Exchange Act, if such Master Servicer, such Special Servicer or the Operating Advisor notifies the Depositor in writing (a “Merger Notice”) of any such merger, consolidation, conversion or other change in form, and the Depositor or the depositor in such Other Securitization, as the case may be, notifies such Master Servicer, such Special Servicer or the Operating Advisor, as applicable, in writing that the Depositor or the depositor in such Other Securitization, as the case may be, has discovered that such successor entity has not complied with its Exchange Act reporting obligations under any other commercial mortgage loan securitization (and specifically identifying the instance of noncompliance), then it shall be an additional condition to such succession that the Depositor or the depositor in such Other Securitization, as the case may be, shall have consented (which consent shall not be unreasonably withheld or delayed) to such successor entity. Notwithstanding the foregoing, no Master Servicer, Special Servicer or Operating Advisor may remain a Master Servicer, a Special Servicer or the Operating Advisor, as applicable, under this Agreement after (x) being merged or consolidated with or into any Person that is a Prohibited Party, or (y) transferring all or substantially all of its assets to any Person if such Person is a Prohibited Party, except to the extent (i) such Master Servicer, such Special Servicer or Operating Advisor, as applicable, is the surviving entity of such merger, consolidation or transfer and has been and continues to be in compliance with its Regulation AB reporting obligations hereunder or (ii) the Depositor consents to such merger, consolidation or transfer, which consent shall not be unreasonably withheld. If, within sixty (60) days following the date of delivery of the Merger Notice to the Depositor or the depositor in such Other Securitization, as the case may be, the Depositor or depositor in such Other Securitization, as the case may be, shall have failed to notify such Master Servicer or such Special Servicer, as applicable, in writing of the

 

 -396-

 

 

Depositor’s determination, or depositor’s determination, in the case of an Other Securitization, to grant or withhold such consent, such failure shall be deemed to constitute a grant of such consent. If the conditions to the provisions in the second preceding sentence are not met, the Trustee may terminate, and if the conditions set forth in the third proviso of the third preceding sentence are not met the Trustee shall terminate, the applicable Surviving Entity’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 7.01.

 

(i)        The Asset Representations Reviewer shall keep in full effect its existence and rights as an entity under the laws of the jurisdiction of its organization, and shall be in compliance with the laws of all jurisdictions to the extent necessary to perform its duties under this Agreement.

 

(ii)       Any Person into which the Asset Representations Reviewer may be merged or consolidated, or any Person resulting from any merger or consolidation to which the Asset Representations Reviewer shall be a party, or any Person succeeding to the business of the Asset Representations Reviewer, shall be the successor of the Asset Representations Reviewer hereunder, and shall be deemed to have assumed all of the liabilities and obligations of such Asset Representations Reviewer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the Trustee has received a Rating Agency Confirmation with respect to such successor or surviving Person.

 

Section 6.04    Limitation on Liability of the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and Others. a) None of the Depositor, the Master Servicers (including in its capacity as Companion Paying Agent, if applicable), the Special Servicers, the Operating Advisor, the Asset Representations Reviewer or any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing shall be under any liability to the Trust, the Certificateholders or the Companion Holders for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Depositor, either Master Servicer (including in its capacity as Companion Paying Agent, if applicable), either Special Servicer, the Operating Advisor, the Asset Representations Reviewer or any such Person against any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of such party’s duties or by reason of negligent disregard of such party’s obligations and duties hereunder. The Depositor, the Master Servicers (including in its capacity as Companion Paying Agent, if applicable), the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and any partner, director, officer, shareholder, member, manager, employee or agent of the Depositor, a Master Servicer (including in its capacity as Companion Paying Agent, if applicable), a Special Servicer, the Operating Advisor or the Asset Representations Reviewer, and any of the partners, directors, officers, shareholders, members, managers, employees or agents of any of the foregoing may rely on any document of any kind which, prima facie, is properly executed and submitted by any Person respecting any matters arising hereunder. The Depositor, the Master Servicers (including in its capacity as Companion Paying Agent, if

 

 -397-

 

 

applicable), the Special Servicers, the Asset Representations Reviewer and the Operating Advisor and any partner, director, officer, shareholder, member, manager, employee or agent of any of the foregoing shall be indemnified and held harmless by the Trust against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (including, without limitation, costs and expenses of litigation and of enforcement of this indemnity, and of investigation, counsel fees, damages, judgments and amounts paid in settlement) incurred in connection with any actual or threatened legal or administrative action (whether in equity or at law) or claim relating to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates, other than any loss, liability or expense: (i) specifically required to be borne thereby pursuant to the terms hereof; (ii) incurred in connection with any breach of a representation or warranty made by it herein; (iii) incurred by reason of bad faith, willful misconduct or negligence in the performance of its obligations or duties hereunder, or by reason of negligent disregard of such obligations or duties; or (iv) in the case of the Depositor and any of its partners, directors, officers, shareholders, members, managers, employees and agents, incurred in connection with any violation by any of them of any state or federal securities law. In addition, absent actual fraud (as determined by a final non-appealable court order), neither the Trustee nor the Certificate Administrator (including in its capacity as Custodian, Certificate Registrar and 17g-5 Information Provider) shall be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or the Certificate Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action. Each of the Master Servicers (including in its capacity as Companion Paying Agent, if applicable), the Special Servicers, the Asset Representations Reviewer and the Operating Advisor conclusively may rely on, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) as contemplated by and in accordance with this Agreement and reasonably believed or in good faith believed by the applicable Master Servicer (including in its capacity as Companion Paying Agent, if applicable), the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor to be genuine and to have been signed or presented by the proper party or parties and each of them may consult with counsel, in which case any written advice of counsel or Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel.

 

(b)       None of the Depositor, the Master Servicers (including in its capacity as Companion Paying Agent, if applicable), the Special Servicers, the Operating Advisor or the Asset Representations Reviewer shall be under any obligation to appear in, prosecute or defend any legal or administrative action (whether in equity or at law), proceeding, hearing or examination that is not incidental to its respective duties under this Agreement or which in its opinion may involve it in any expense or liability not recoverable from the Trust; provided, however, that each of the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor and the Asset Representations Reviewer may in its discretion undertake any such action, proceeding, hearing or examination that it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders (and, in the case of any Serviced Whole Loan, the rights of the Certificateholders and the holders of a Serviced Companion Loan (as a collective whole) taking

 

 -398-

 

 

into account the subordinate or pari passu nature of such Serviced Companion Loan); provided, however, that if a Serviced Whole Loan and/or the holder of any related Companion Loan are involved, such expenses, costs and liabilities will be payable out of funds related to the applicable Serviced Whole Loan in accordance with the related Intercreditor Agreement and will also be payable out of the other funds in the applicable Collection Account if amounts on deposit with respect to such Serviced Whole Loan are insufficient therefor. If any such expenses, costs or liabilities relate to a Mortgage Loan or Companion Loan, then any subsequent recovery on that Mortgage Loan or Companion Loan, as applicable, will be used to reimburse the Trust for any amounts advanced for the payment of such expenses, costs or liabilities. In such event, the legal expenses and costs of such action, proceeding, hearing or examination and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust, and the Depositor, the Master Servicers (including in its capacity as Companion Paying Agent, if applicable), the Special Servicers, the Asset Representations Reviewer and the Operating Advisor shall be entitled to be reimbursed therefor out of amounts attributable to the Mortgage Loans or the Companion Loan on deposit in the applicable Collection Account (including, without duplication, any subaccount thereof), as provided by Section 3.05(a)(xii).

 

(c)       Each of the Master Servicers and the Special Servicers, as applicable, agrees to indemnify the Depositor, the Trustee, the related Serviced Companion Noteholder, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Master Servicer(s) (including in its capacity as Companion Paying Agent, if applicable) (in the case of the Special Servicers or in the case of the other Master Servicer), the Special Servicer(s) (in the case of the Master Servicers or in the case of the other Special Servicer) and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of such Master Servicer or such Special Servicer, as the case may be, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by such Master Servicer or such Special Servicer, as the case may be, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein by such Master Servicer or such Special Servicer, as applicable. The Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the applicable Master Servicer or the applicable Special Servicer, as applicable, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall assume the defense of such claim (with counsel reasonably satisfactory to the Trustee, the Certificate Administrator or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless such Master Servicer’s or such Special Servicer’s, as the case may be, defense of such claim is materially prejudiced thereby.

 

 -399-

 

 

Each of the Master Servicers and the Special Servicers shall indemnify and hold harmless the Depositor from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by the Depositor or its Affiliates that arise out of or are based upon, severally and not jointly (i) a breach by such Master Servicer or such Special Servicer, as applicable, of any obligation it has to deliver information to the 17g-5 Information Provider as set forth in this Agreement, including Section 3.07(a), Section 3.08, Section 3.09(e), Section 3.12, Section 3.17(c) and Section 3.18(g) or (ii) a breach by such Master Servicer or such Special Servicer, as applicable, of any obligation it has set forth in Section 3.13(d), Section 3.13(g) and Section 3.13(i).

 

(d)        Each of the Trustee and the Certificate Administrator (including in its role as Custodian), respectively agrees to indemnify the Depositor, each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Certificate Administrator (in the case of the Trustee), the Trustee (in the case of the Certificate Administrator), the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Trustee or the Certificate Administrator, respectively, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Trustee or the Certificate Administrator, respectively, of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The Depositor, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Trustee and the Certificate Administrator, respectively, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Trustee or the Certificate Administrator shall assume the defense of such claim (with counsel reasonably satisfactory to the Depositor, such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Asset Representations Reviewer or the Operating Advisor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Trustee or the Certificate Administrator shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Trustee’s or the Certificate Administrator’s defense of such claim is materially prejudiced thereby.

 

(e)        The Depositor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses

 

 -400-

 

and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Depositor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Depositor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor, as the case may be, shall immediately notify the Depositor if a claim is made by a third party with respect to this Agreement, whereupon the Depositor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable) or such Special Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Depositor shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Depositor’s defense of such claim is materially prejudiced thereby.

 

(f)        The Operating Advisor agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Operating Advisor, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Operating Advisor of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor, as the case may be, shall immediately notify the Operating Advisor if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Operating Advisor shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent), such Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Operating Advisor shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Operating Advisor’s defense of such claim is materially prejudiced thereby.

 

(g)       Neither the Operating Advisor nor its Affiliates or any of the partners, directors, officers, shareholders, members, managers, employees or agents of the Operating Advisor shall be under any liability to any Certificateholder for any action taken or for refraining from the taking of any action in good faith pursuant to this Agreement, or for errors in judgment;

 

 -401-

 

 

provided, however, that this provision shall not protect the Operating Advisor against any liability which would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties or by reason of negligent disregard of obligations and duties hereunder.

 

(h)       The Asset Representations Reviewer agrees to indemnify each Master Servicer (including in its capacity as Companion Paying Agent, if applicable), each Special Servicer, the Trustee, the Certificate Administrator, the Depositor, the Operating Advisor and the Trust and any partner, director, officer, shareholder, member, manager, employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses (for the avoidance of doubt, including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Asset Representations Reviewer, in the performance of its obligations and duties under this Agreement or by reason of negligent disregard by the Asset Representations Reviewer of its duties and obligations hereunder or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor, as the case may be, shall immediately notify the Asset Representations Reviewer if a claim is made by a third party with respect to this Agreement or the Mortgage Loans entitling the Trust to indemnification hereunder, whereupon the Asset Representations Reviewer shall assume the defense of such claim (with counsel reasonably satisfactory to such Master Servicer (including in its capacity as Companion Paying Agent, if applicable), such Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Depositor) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim. Any failure to so notify the Asset Representations Reviewer shall not affect any rights any of the foregoing Persons may have to indemnification under this Agreement or otherwise, unless the Asset Representations Reviewer’s defense of such claim is materially prejudiced thereby.

 

(i)        The applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Paying Agent, Non-Serviced Operating Advisor (if any), Non-Serviced Depositor, Non-Serviced Trustee, and any of their respective partners, directors, officers, shareholders, members, managers, employees or agents (collectively, the “Non-Serviced Indemnified Parties”), shall be indemnified by the Trust and held harmless against the Trust’s pro rata share (subject to the applicable Non-Serviced Intercreditor Agreement) of any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of a Non-Serviced Mortgage Loan and the related Non-Serviced Mortgaged Property under the applicable Non-Serviced PSA (as and to the same extent the applicable Non-Serviced Trust is required to indemnify such parties in respect of other mortgage loans in the applicable Non-Serviced Trust pursuant to the terms of the related Non-Serviced PSA).

 

The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of either Master Servicer (including in its capacity

 

 -402-

 

 

as Companion Paying Agent, if applicable), either Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor or the Asset Representations Reviewer.

 

(j)         For purposes of this Section 6.04 and Section 11.12, any Master Servicer or Special Servicer, as the case may be, will be deemed not to have engaged in willful misconduct or committed bad faith or negligence in the performance of their respective obligations and duties hereunder or acted in negligent disregard of such obligations and duties if such Master Servicer or such Special Servicer, as applicable, fails to follow any terms of any Mortgage Loan documents because such Master Servicer or such Special Servicer, as applicable, in accordance with the Servicing Standard, determines that compliance with such terms would or potentially would cause an Adverse REMIC Event or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code (for which determination such Master Servicer and such Special Servicer will be entitled to rely on advice of counsel, the cost of which will be reimbursed as an additional expense of the Trust).

 

(k)        The NCB Master Servicer shall indemnify and hold harmless the General Master Servicer and its partners, directors, officers, shareholders, members, managers, employees or agents from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by the General Master Servicer or such Persons in connection with any CREFC® Schedule AL File prepared by the General Master Servicer that arise out of or are based upon any error, inaccuracy or incompleteness in any NCB CREFC® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d) or any failure by the NCB Master Servicer to deliver to the General Master Servicer any NCB CREFC® Schedule AL File or NCB Schedule AL Additional File by the time specified in Section 3.12(d).

 

Section 6.05       Depositor, Master Servicers and Special Servicers Not to Resign.  Subject to the provisions of Section 6.03, none of the Master Servicers or the Special Servicers shall resign from their respective obligations and duties hereby imposed on each of them except upon (a) determination that such party’s duties hereunder are no longer permissible under applicable law or (b) in the case of a Master Servicer or a Special Servicer, upon the appointment of, and the acceptance of such appointment by, a successor (which may be appointed by the resigning Master Servicer or Special Servicer, as applicable), and receipt by the Certificate Administrator and the Trustee of Rating Agency Confirmation from each Rating Agency and a confirmation of any applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any class of Serviced Companion Loan Securities (if any) (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25). Any such determination permitting the resignation of such Master Servicer or such Special Servicer pursuant to clause (a) above shall be evidenced by an Opinion of Counsel (at the expense of the resigning party) to such effect delivered to the Trustee and (prior to the occurrence and continuance of a Consultation Termination Event) the Directing Certificateholder. Unless applicable law requires the resignation of such Master Servicer or such Special Servicer (as the case may be) to be effective immediately, and the Opinion of Counsel delivered pursuant to the prior sentence so states, no such resignation by such Master Servicer or such Special Servicer under clause (a) above shall become effective until

 

 -403-

 

 

the Trustee or a successor master servicer or special servicer, as applicable, shall have assumed such Master Servicer’s or such Special Servicer’s, as applicable, responsibilities and obligations in accordance with Section 7.02 and no such resignation by such Master Servicer or such Special Servicer shall become effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Upon any termination (as described in Section 7.01(c)) or resignation of such Master Servicer or such Special Servicer, pursuant to this Section 6.05, such Master Servicer or such Special Servicer, as applicable, shall have the right and opportunity to appoint any successor master servicer or special servicer with respect to this Section 6.05; provided that, such successor master servicer or special servicer shall not be the Asset Representations Reviewer, the Operating Advisor or one of their respective Affiliates and (prior to the occurrence and continuance of a Control Termination Event) such successor special servicer is approved by the Directing Certificateholder, such approval not to be unreasonably withheld. The resigning party shall pay all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket costs and expenses incurred by the Trustee and the Certificate Administrator) associated with a transfer of its duties pursuant to this Section 6.05. Except as provided in Section 7.01(c), in no event shall such Master Servicer or such Special Servicer have the right to appoint any successor master servicer or special servicer if such Master Servicer or Special Servicer, as applicable, is terminated or removed pursuant to Section 7.01.

 

Section 6.06       Rights of the Depositor in Respect of the Master Servicers and the Special Servicers.  The Depositor may, but is not obligated to, enforce the obligations of either Master Servicer and either Special Servicer hereunder and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of either Master Servicer and either Special Servicer hereunder or exercise the rights of either Master Servicer or either Special Servicer, as applicable, hereunder; provided, however, that either Master Servicer and either Special Servicer shall not be relieved of any of their respective obligations hereunder by virtue of such performance by the Depositor or its designee. The Depositor shall not have any responsibility or liability for any action or failure to act by either Master Servicer or either Special Servicer and is not obligated to supervise the performance of the Trustee, the Master Servicers, the Operating Advisor or the Special Servicers under this Agreement or otherwise.

 

Section 6.07       The Master Servicers and the Special Servicers as Certificate Owner.  Either Master Servicer, either Special Servicer or any Affiliate thereof may become the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect to) any Certificate with (except as otherwise set forth in the definition of “Certificateholder”) the same rights it would have if it were not a Master Servicer, a Special Servicer or an Affiliate thereof.

 

Section 6.08       The Directing Certificateholder and the Risk Retention Consultation Party.  (a) (A) Other than with respect to any Serviced AB Whole Loan that is not subject to an AB Control Appraisal Period, for so long as no Control Termination Event has occurred and is continuing, the Directing Certificateholder shall be entitled to advise (1) the applicable Special Servicer with respect to all Major Decisions (other than with respect to any applicable Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class) and (2) the applicable Master Servicer to the extent the Directing Certificateholder’s consent is required by the applicable clauses of the definition of “Master Servicer Decision”, and (B) the Risk Retention Consultation Party shall (other than with

 

 -404-

 

 

respect to any applicable Excluded Loan with respect to the Risk Retention Consultation Party) be entitled to consult on a strictly non-binding basis with the applicable Special Servicer with respect to any Major Decision (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan). For the avoidance of doubt, any consultation with the Risk Retention Consultation Party under this Agreement shall occur only upon the written request of the Risk Retention Consultation Party with respect to any individual triggering event, and any such consultation shall be on a strictly non-binding basis and shall be subject to all limitations with respect to the procedures and timing of such consultation set forth in this Section 6.08.

 

Notwithstanding anything herein to the contrary, except as set forth in, and in any event subject to, the third and fourth paragraphs of this Section 6.08(a) and Section 6.08(b), for so long as no Control Termination Event has occurred and is continuing, the applicable Special Servicer shall not be permitted to take (or consent to any Master Servicer’s taking) a Major Decision as to which the Directing Certificateholder has objected in writing within ten (10) Business Days (or thirty (30) days with respect to clause (ix) of the definition of “Major Decision”) after the Directing Certificateholder’s receipt of the applicable Special Servicer’s written recommendation and analysis and all information reasonably requested by the Directing Certificateholder, and reasonably available to the applicable Special Servicer in order to grant or withhold such consent (provided that if such written consent has not been received by the applicable Special Servicer within the applicable time period, then the Directing Certificateholder will be deemed to have approved such action); provided, however, that, in the event that the applicable Special Servicer or the applicable Master Servicer, as the case may be, determines that immediate action, with respect to the foregoing matters or any Master Servicer Decision, or any other matter requiring consent of the Directing Certificateholder prior to the occurrence and continuance of a Control Termination Event in this Agreement (or any matter requiring consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor), is necessary to protect the interests of the Certificateholders (or, with respect to any Serviced Whole Loan, the interest of the Certificateholders and the holders of any related Serviced Companion Loan) (as a collective whole (taking into account the subordinate or pari passu nature of any Companion Loans)), the applicable Special Servicer or the applicable Master Servicer, as the case may be, may take any such action without waiting for the Directing Certificateholder’s response (or without waiting to consult with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor, as the case may be); provided that if such matter requires consent of or consultation with the Directing Certificateholder, the Risk Retention Consultation Party or the Operating Advisor pursuant to this Agreement, the applicable Special Servicer or the applicable Master Servicer, as the case may be, provides the Directing Certificateholder (or the Operating Advisor, if applicable) and the Risk Retention Consultation Party (if applicable) with prompt written notice following such action including a reasonably detailed explanation of the basis therefor. None of the Master Servicers or the Special Servicers is required to obtain the consent of the Directing Certificateholder for any of the foregoing actions or any other matter requiring consent of the Directing Certificateholder after the occurrence and during the continuance of a Control Termination Event; provided, however, that, after the occurrence and during the continuance of a Control Termination Event, the applicable Special Servicer shall consult with the Directing Certificateholder (only prior to the occurrence and continuance of a Consultation Termination Event) in connection with any Major Decision not relating to an Excluded Loan with respect to

 

 -405-

 

 

the Directing Certificateholder (and any other actions which otherwise require consultation with the Directing Certificateholder prior to the occurrence and continuance of a Consultation Termination Event hereunder) and consider alternative actions recommended by the Directing Certificateholder in respect thereof. If the applicable Master Servicer and the applicable Special Servicer have mutually agreed that the applicable Master Servicer will process any Major Decision, the applicable Master Servicer shall not be permitted to take any of the actions that constitute Major Decisions unless it has obtained the consent of the applicable Special Servicer, which consent will be deemed given (unless earlier objected to by the applicable Special Servicer) ten (10) Business Days after the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendation and analysis with respect to such Major Decision and all information reasonably requested by the applicable Special Servicer and reasonably available to the applicable Master Servicer in order to make an informed decision with respect to such Major Decision plus the time period provided to the Directing Certificateholder or other relevant party under this Agreement and, if applicable, any additional time period permitted in the related Intercreditor Agreement. Additionally, upon request, the applicable Special Servicer shall consult with the Risk Retention Consultation Party on a non-binding basis (provided, that prior to the occurrence and continuance of a Consultation Termination Event, the related Mortgage Loan must also be a Specially Serviced Loan) in connection with any Major Decision not relating to an Excluded Loan with respect to the Risk Retention Consultation Party and consider alternative actions recommended by the Risk Retention Consultation Party, in respect thereof. In the event the applicable Special Servicer receives no response from the Directing Certificateholder or the Risk Retention Consultation Party within ten (10) Business Days following its written request for input on any required consultation, the applicable Special Servicer shall not be obligated to consult with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on the specific matter; provided, however, that the failure of the Directing Certificateholder or the Risk Retention Consultation Party to respond shall not relieve the applicable Special Servicer from consulting with the Directing Certificateholder or the Risk Retention Consultation Party, as applicable, on any future matters with respect to the applicable Mortgage Loan (other than a Non-Serviced Mortgage Loan or an Excluded Loan with respect to such party) or Serviced Whole Loan. In addition, after a Control Termination Event, the applicable Special Servicer will also be required to consult with the Operating Advisor in connection with any proposed Major Decision (and any other actions which otherwise require consultation with the Operating Advisor after the occurrence and during the continuance of a Control Termination Event hereunder) and consider alternative actions recommended by the Operating Advisor, in respect thereof, provided that such consultation is on a non-binding basis. In the event that the applicable Special Servicer receives no response from the Operating Advisor within ten (10) Business Days following the later of (i) its written request for input on any required consultation and (ii) delivery of all such additional information reasonably requested by the Operating Advisor and reasonably available to the applicable Special Servicer related to the subject matter of such consultation, the applicable Special Servicer shall not be obligated to consult with the Operating Advisor on the specific matter; provided, however, that the failure of the Operating Advisor to respond on any specific matters shall not relieve the applicable Special Servicer from its obligation to consult with the Operating Advisor on any future matter with respect to the applicable Mortgage Loan or any other Mortgage Loan. Notwithstanding anything herein to the contrary, with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the

 

 -406-

 

 

Controlling Class (regardless of whether a Control Termination Event has occurred and is continuing), the applicable Special Servicer shall consult with the Operating Advisor, on a non-binding basis, in connection with the related transactions involving proposed Major Decisions and consider alternative actions recommended by the Operating Advisor, in respect thereof, in accordance with the procedures set forth in this Section 6.08 for consulting with the Operating Advisor.

 

For the purposes of the foregoing, “Major Decision” means, with respect to any Mortgage Loan or Serviced Whole Loan, each of the following:

 

(i)        any proposed or actual foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of properties securing any Specially Serviced Loan that comes into and continues in default;

 

(ii)       any modification, consent to a modification or waiver of any monetary term (other than late fees and Default Interest) or material non-monetary term (including, without limitation, a Payment Accommodation, a Government-Sponsored Relief Modification, the timing of payments and acceptance of discounted payoffs) of a Mortgage Loan (other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan or any extension of the maturity date of such Mortgage Loan or Serviced Whole Loan other than in connection with a maturity default if a refinancing or sale is expected within 120 days as provided in clause (ix) of the definition of “Master Servicer Decision”;

 

(iii)      any sale of a Defaulted Loan and any related defaulted Companion Loan, or any REO Property (other than in connection with the termination of the Trust) or a defaulted Non-Serviced Mortgage Loan that the applicable Special Servicer is permitted to sell in accordance with Section 3.16(a)(iii) of this Agreement, in each case, for less than the applicable Purchase Price;

 

(iv)      any determination to bring a Mortgaged Property or an REO Property into compliance with applicable environmental laws or to otherwise address hazardous material located at a Mortgaged Property or an REO Property;

 

(v)       any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan or any consent to such a waiver or consent to a transfer of the Mortgaged Property or interests in the Mortgagor or consent to the incurrence of additional debt, other than (A) any such transfer or incurrence of debt as described under clauses (xiv) or (xv) of the definition of “Master Servicer Decision” or as may be effected (I) without the consent of the lender under the related loan agreement, (II) pursuant to the specific terms of such Mortgage Loan and (III) for which there is no lender discretion, or (B) solely with respect to an NCB Co-op Mortgage Loan, subject to the satisfaction of various conditions and subject to certain parameters set forth in this Agreement, (a) the waiver of a “due-on-encumbrance” clause pertaining to an NCB Co-op Mortgage Loan with respect to subordinate financing as to which the NCB Subordinate Debt Conditions have been satisfied and (b) the incurrence of additional indebtedness by a Mortgagor of an NCB Co-op Mortgage Loan;

 

 -407-

 

 

(vi)      (a) other than in the case of an NCB Co-op Mortgage Loan, any property management company changes with respect to a Specially Serviced Loan with a principal balance equal to or greater than $10,000,000, including, without limitation, approval of the termination of a manager and appointment of a new property manager, (b) with respect to any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Companion Loan that is a Non-Specially Serviced Loan, a change in property management if the replacement property manager is a Borrower Party or (c) franchise changes with respect to a Mortgage Loan for which the lender is required to consent or approve such changes under the related Mortgage Loan documents;

 

(vii)     other than in the case of any NCB Co-op Mortgage Loan, releases of any material amounts from any escrow accounts, reserve funds or letters of credit, in each case, held as performance escrows or reserves, other than those required pursuant to the specific terms of the related Mortgage Loan documents (provided, however, that any releases for which there is lender discretion of material amounts from any escrow accounts, reserve funds or letters of credit held as performance escrows or performance reserves specified (along with the related Mortgage Loans) on Schedule 3 hereto shall also constitute Major Decisions);

 

(viii)    any acceptance of an assumption agreement or any other agreement permitting a transfer of interests in a Mortgagor or guarantor releasing a Mortgagor or guarantor from liability under a Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan other than pursuant to the specific terms of such Mortgage Loan or Serviced Whole Loan and for which there is no lender discretion;

 

(ix)       other than in the case of a Non-Specially Serviced Loan, any determination of an Acceptable Insurance Default;

 

(x)        other than in the case of a Non-Specially Serviced Loan, any modification, waiver or amendment of any lease, the execution of any new lease or the granting of a subordination and non-disturbance or attornment agreement in connection with any lease (other than for ground leases), at a Mortgaged Property if (a) the lease affects an area greater than or equal to the lesser of (1) 30% of the net rentable area of the improvements at the Mortgaged Property or (2) 30,000 square feet and (b) such transaction is not a routine leasing matter;

 

(xi)       other than in the case of a Non-Specially Serviced Loan or a Non-Serviced Mortgage Loan, any modification, amendment, consent to a modification or waiver of any material term of any Intercreditor Agreement or any action to enforce rights (or decision not to enforce rights) with respect thereto; provided, however, that any such modification or amendment that would adversely impact the applicable Master Servicer shall additionally require the consent of such Master Servicer as a condition to its effectiveness;

 

(xii)      any consent to incurrence of additional debt by a Mortgagor or mezzanine debt by a direct or indirect parent of a Mortgagor, to the extent the Mortgagee’s approval is required under the related Mortgage Loan documents (including, without limitation, a

 

 -408-

 

 

Government-Sponsored Relief Modification), other than with respect to an NCB Co-op Mortgage Loan as to which the NCB Subordinate Debt Conditions have been satisfied;

 

(xiii)     requests for property or other collateral releases or substitutions, other than (A) grants of easements or rights of way, (B) releases of non-material, non-income producing parcels of a Mortgaged Property (including, without limitation, any such releases as to which the related Mortgage Loan documents expressly require the mortgagee thereunder to make such releases), (C) consents to releases related to condemnation of parcels of a Mortgaged Property, (D) the release of collateral securing any Mortgage Loan in connection with defeasance of the collateral for such Mortgage Loan or (E) the items listed in clause (vii) of this definition and clause (viii) of the definition of “Master Servicer Decision”;

 

(xiv)     other than in the case of a Non-Specially Serviced Loan, approval of easements and rights of way that materially affect the use or value of a Mortgaged Property or the Mortgagor’s ability to make any payments with respect to the related Mortgage Loan;

 

(xv)      agreeing to any modification, waiver, consent or amendment of the related Mortgage Loan or Serviced Whole Loan in connection with a defeasance if such proposed modification, waiver, consent or amendment is with respect to (A) a modification of the type of defeasance collateral required under the Mortgage Loan documents such that defeasance collateral other than direct, non-callable obligations of the United States of America would be permitted or (B) a modification that would permit a principal prepayment instead of defeasance if the applicable loan documents do not otherwise permit such principal prepayment;

 

(xvi)    determining whether to cure any default by a Mortgagor under a ground lease or permit any ground lease modification, amendment or subordination, non-disturbance and attornment agreement or entry into a new ground lease;

 

(xvii)   other than in the case of a Non-Specially Serviced Loan, consent to actions and releases related to condemnation of parcels of a Mortgaged Property with respect to a material parcel or a material income producing parcel or any condemnation that materially affects the use or value of the related Mortgaged Property or the ability of the related Mortgagor to pay amounts due in respect of the related Mortgage Loan or any related Companion Loan when due;

 

(xviii)  following a default or an event of default with respect to a Mortgage Loan or Serviced Whole Loan, any exercise of remedies, including the acceleration of the Mortgage Loan or Serviced Whole Loan or initiation of any proceedings, judicial or otherwise, under the related Mortgage Loan documents;

 

(xix)     other than with respect to the NCB Mortgage Loans and other than in the case of any Non-Specially Serviced Loan, approval of any waiver regarding the receipt of financial statements (other than immaterial timing waivers including late financial statements which in no event relieve any borrower of the obligation to provide financial

 

 -409-

 

 

statements on at least a quarterly basis) following three consecutive late deliveries of financial statements; and

 

(xx)      the voting on any plan of reorganization, restructuring or similar plan in the bankruptcy of a borrower.

 

Subject to the terms and conditions of this Section 6.08(a), (i) the applicable Special Servicer shall process all requests in respect of Specially Serviced Loans and any matter (other than as described in clause (ii)(B) below) that constitutes a Major Decision with respect to Non-Specially Serviced Loans, and (ii) the applicable Master Servicer shall process all requests in respect of (A) any matter that constitutes a Master Servicer Decision with respect to Non-Specially Serviced Loans and (B) any matter that constitutes a Major Decision with respect to a Non-Specially Serviced Loan that such Master Servicer and such Special Servicer have mutually agreed such Master Servicer shall process.

 

Upon receiving a request for any matter that constitutes a Major Decision with respect to a Mortgage Loan (other than any Non-Serviced Mortgage Loan) that is not a Specially Serviced Loan, the applicable Master Servicer shall forward such request to the applicable Special Servicer and, unless such Master Servicer and such Special Servicer mutually agree that such Master Servicer shall process such request, such Special Servicer shall process such request (including, without limitation, interfacing with the Mortgagor) and such Master Servicer will have no further obligation with respect to such request or the Major Decision. With respect to such request, the applicable Master Servicer shall continue to cooperate with the applicable Special Servicer by delivering any additional information in the applicable Master Servicer’s possession to the applicable Special Servicer requested by the applicable Special Servicer relating to such Major Decision. The applicable Master Servicer shall not be permitted to process any such Major Decision and shall not be required to interface with the Mortgagor or provide a written recommendation and analysis with respect to any such Major Decision. Prior to the occurrence of a Consultation Termination Event, the applicable Special Servicer shall within ten (10) Business Days forward such request to the Directing Certificateholder together with the Special Servicer’s written recommendation and analysis. The Directing Certificateholder shall promptly provide notice to the applicable Special Servicer of any objection the Directing Certificateholder has to such Special Servicer’s written recommendation and analysis (provided that if such written consent has not been received by the applicable Special Servicer within the applicable time period, then the Directing Certificateholder will be deemed to have approved such action).

 

With respect to (i) prior to the occurrence and continuance of a Consultation Termination Event, any Major Decision relating to a Specially Serviced Loan, and (ii) after the occurrence and during the continuance of a Consultation Termination Event, any Major Decision relating to a Mortgage Loan (in each case, other than with respect to an Excluded Loan with respect to the Risk Retention Consultation Party or the holder of the majority of the RR Interest), the Special Servicer shall provide copies of any notice, information and report that it is required to provide to the Directing Certificateholder pursuant to this Agreement with respect to such Major Decision to the Risk Retention Consultation Party, within the same time frame it is required to provide such notice, information or report to the Directing Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the

 

 -410-

 

 

Directing Certificateholder under this Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event).

 

In addition, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, for so long as no Control Termination Event has occurred and is continuing, the Directing Certificateholder, subject to any rights, if any, of the related Companion Holder to advise the applicable Special Servicer with respect to the related Serviced Whole Loan, pursuant to the terms of the related Intercreditor Agreement, may direct the applicable Special Servicer to take, or to refrain from taking, such other actions with respect to a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to which provision is otherwise made herein; provided that notwithstanding anything herein to the contrary, no such direction or objection contemplated by the preceding paragraphs of this Section 6.08(a) or this paragraph may require or cause the applicable Master Servicer or applicable Special Servicer to violate any provision of any Mortgage Loan or related Intercreditor Agreement, applicable law, this Agreement, or the REMIC Provisions (and, with respect to a Serviced Whole Loan, subject to the rights of the holders of the related Companion Loan), including without limitation the obligation of either Master Servicer and either Special Servicer to act in accordance with the Servicing Standard, or expose the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Trust or the Trustee to liability, or materially expand the scope of the responsibilities of either Master Servicer or either Special Servicer, as applicable, hereunder or cause either Master Servicer or either Special Servicer, as applicable, to act, or fail to act, in a manner which in the reasonable judgment of the applicable Master Servicer or the applicable Special Servicer, as the case may be, is not in the best interests of the Certificateholders.

 

In the event a Special Servicer or a Master Servicer, as applicable, determines that a refusal to consent by the Directing Certificateholder or any advice from the Directing Certificateholder or the Risk Retention Consultation Party, would cause such Special Servicer or such Master Servicer, as applicable, to violate the terms of any Mortgage Loan, applicable law or this Agreement, including without limitation, the Servicing Standard, such Special Servicer or such Master Servicer, as applicable, shall disregard such refusal to consent or advise and notify the Directing Certificateholder or the Risk Retention Consultation Party, respectively, and the Trustee and the Rating Agencies of its determination, including a reasonably detailed explanation of the basis therefor. The taking of, or refraining from taking, any action by such Master Servicer or such Special Servicer in accordance with the direction of or approval of the Directing Certificateholder or the approval of the Risk Retention Consultation Party that does not violate the terms of any Mortgage Loan, applicable law or the Servicing Standard or any other provisions of this Agreement, will not result in any liability on the part of such Master Servicer or such Special Servicer.

 

With respect to any matter for which the consent of the Directing Certificateholder is required, to the extent no specific time period for deemed consent is expressly stated, in the event no response from the Directing Certificateholder is received within ten (10) Business Days following written request for consent and its receipt of all reasonably requested information on any required consent, the Directing Certificateholder shall be deemed to have consented to or approved the specific matter; provided that the failure of the Directing

 

 -411-

 

 

Certificateholder to respond will not affect any future matters with respect to the applicable Mortgage Loan or Serviced Whole Loan.

 

The Directing Certificateholder shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Directing Certificateholder shall not be protected against any liability to a Controlling Class Certificateholder that would otherwise be imposed by reason of willful misconduct, bad faith or negligence in the performance of duties owed to the Controlling Class Certificateholders or by reason of reckless disregard of obligations or duties owed to the Controlling Class Certificateholders. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Directing Certificateholder may take actions that favor the interests of one or more Classes of the Certificates including the Holders of the Controlling Class over other Classes of the Certificates, and that the Directing Certificateholder may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Directing Certificateholder may act solely in the interests of the Holders of the Controlling Class, including the Holders of the Controlling Class, that the Directing Certificateholder does not have any duties or liability to the Holders of any Class of Certificates other than the Controlling Class, that the Directing Certificateholder shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the Controlling Class, and that the Directing Certificateholder shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Directing Certificateholder or any director, officer, employee, agent or principal thereof for having so acted.

 

The Risk Retention Consultation Party shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment; provided, however, that the Risk Retention Consultation Party shall not be protected against any liability to a Holder of an RR Interest that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in the performance of duties owed to the Holders of the RR Interest or by reason of reckless disregard of obligations or duties owed to the Holders of the RR Interest. By its acceptance of a Certificate, each Certificateholder acknowledges and agrees that the Risk Retention Consultation Party may take actions that favor the interests of one or more Classes of the Certificates including the Holders of an RR Interest over other Classes of the Certificates, and that the Risk Retention Consultation Party may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that the Risk Retention Consultation Party may act solely in the interests of the Holders of an RR Interest, that the Risk Retention Consultation Party does not have any duties or liability to the Holders of any Class of Certificates other than the RR Interest, that the Risk Retention Consultation Party shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holder of the RR Interest, and that the Risk Retention Consultation Party shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against the Risk Retention Consultation Party or any director, officer, employee, agent or principal thereof for having so acted.

 

Any Non-Serviced Whole Loan Controlling Holder, with respect to a Non-Serviced Whole Loan, shall have no liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, or for errors in judgment. By its

 

 -412-

 

 

acceptance of a Certificate, each Certificateholder acknowledges and agrees that any such Non-Serviced Whole Loan Controlling Holder, with respect to the related Non-Serviced Whole Loan, may take actions that favor the interests of one or more classes of the certificates issued under the related Non-Serviced PSA including the holders of the controlling class under such Non-Serviced PSA over other classes of the certificates issued under the Non-Serviced PSA and/or any Class of Certificates, and that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, that such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, may act solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, that such Non-Serviced Whole Loan Controlling Holder, shall not be liable to any Certificateholder, by reason of its having acted solely in the interests of the Holders of the controlling class under the related Non-Serviced PSA, and that the Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, shall have no liability whatsoever for having so acted, and no Certificateholder may take any action whatsoever against such Non-Serviced Whole Loan Controlling Holder, with respect to such Non-Serviced Whole Loan, or any director, officer, employee, agent or principal thereof for having so acted.

 

(b)          Notwithstanding anything to the contrary contained herein (i) after the occurrence and during the continuance of a Control Termination Event (and at any time with respect to any Excluded Loan with respect to a Directing Certificateholder), the Directing Certificateholder shall have no right to consent to or direct any action taken or not taken by any party to this Agreement; (ii) after the occurrence and during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder (other than a Loan-Specific Directing Certificateholder) and the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the applicable Special Servicer and any other applicable party shall consult (on a non-binding basis) with the Directing Certificateholder and, with respect to any Specially Serviced Loan, the Risk Retention Consultation Party (in each case, other than with respect to any Excluded Loan as to such party) to the extent set forth herein in connection with any action to be taken or refrained from being taken to the extent set forth herein; and (iii) after the occurrence and during the continuance of a Consultation Termination Event (and at any time with respect to any Excluded Loan with respect to the Directing Certificateholder or the holder of the majority of the Controlling Class), the Directing Certificateholder (other than a Loan-Specific Directing Certificateholder) shall have no direction, consultation or consent rights hereunder and no right to receive any notices, reports or information (other than notices, reports or information required to be delivered to all Certificateholders) or any other rights as Directing Certificateholder and, other than with respect to any Excluded Loan with respect to the Risk Retention Consultation Party or the holder of a majority of the RR Interest, the Risk Retention Consultation Party shall remain entitled to receive any notices, reports or information to which it is entitled pursuant to this Agreement, and the applicable Special Servicer and any other applicable party shall consult with the Risk Retention Consultation Party to the extent set forth herein in connection with any action to be taken or refrained from being taken to the extent set forth herein.

 

Section 6.09       Knowledge of Wells Fargo Bank, National Association.  Except as otherwise expressly set forth in this Agreement, Wells Fargo Bank, National Association acting

 

 -413-

 

 

in any particular capacity hereunder will not be deemed to be imputed with knowledge of (a) Wells Fargo Bank, National Association, acting in a capacity that is unrelated to the transactions contemplated by this Agreement, or (b) Wells Fargo Bank, National Association, acting in any other capacity hereunder, except, in the case of either clause (a) or clause (b), where some or all of the obligations performed in such capacities are performed by one or more employees within the same group or division of Wells Fargo Bank, National Association, or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same Responsible Officers or Servicing Officers, as applicable.

 

[End of Article VI]

 

Article VII

SERVICER TERMINATION EVENTS

 

Section 7.01       Servicer Termination Events; Master Servicers and Special Servicers Termination.  (a) “Servicer Termination Event”, wherever used herein, means, with respect to either Master Servicer or either Special Servicer, as the case may be, any one of the following events:

 

(i)         (A) any failure by such Master Servicer to make any deposit required to be made by such Master Servicer to its Collection Account, or remit to the Companion Paying Agent for deposit into the Companion Distribution Account, on the day and by the time such deposit or remittance is first required to be made under the terms of this Agreement, which failure is not remedied within one (1) Business Day or (B) any failure by such Master Servicer to deposit into, or remit to the Certificate Administrator for deposit into, any Distribution Account any amount required to be so deposited or remitted, which failure is not remedied by 11:00 a.m. (New York City time) on the relevant Distribution Date; or

 

(ii)        any failure by such Special Servicer to deposit into the REO Account, within one (1) Business Day after such deposit is required to be made or to remit to the applicable Master Servicer for deposit into the applicable Collection Account or any other required account hereunder, any amount required to be so deposited or remitted by such Special Servicer pursuant to, and at the time specified by, the terms of this Agreement; or

 

(iii)       any failure on the part of such Master Servicer or such Special Servicer, as the case may be, duly to observe or perform in any material respect any of its other covenants or obligations contained in this Agreement, which failure continues unremedied for a period of thirty (30) days (or (A) with respect to any year that a report on Form 10-K is required to be filed, five (5) Business Days in the case of such Master Servicer’s or such Special Servicer’s obligations, as the case may be, contemplated by Article XI, (B) fifteen (15) days in the case of such Master Servicer’s failure to make a Servicing Advance or (C) fifteen (15) days in the case of a failure to pay the premium for any property insurance policy required to be maintained) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given (A) to

 

 -414-

 

 

such Master Servicer or such Special Servicer, as the case may be, by any other party hereto, or (B) to such Master Servicer or such Special Servicer, as the case may be, with a copy to each other party to this Agreement, by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, solely as it relates to the servicing of a Serviced Pari Passu Whole Loan if affected by that failure, by the related Serviced Companion Noteholder; provided, however, if such failure is capable of being cured and such Master Servicer or such Special Servicer, as applicable, is diligently pursuing such cure, such period will be extended an additional thirty (30) days; provided, further, however, that such extended period will not apply to the obligations regarding Exchange Act reporting; or

 

(iv)      any breach on the part of such Master Servicer or such Special Servicer, as the case may be, of any representation or warranty contained in Section 6.01(a) or Section 6.01(b), as applicable, which materially and adversely affects the interests of any Class of Certificateholders or Companion Holders (excluding the holder of any Non-Serviced Companion Loan) and which continues unremedied for a period of thirty (30) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to such Master Servicer or such Special Servicer, as the case may be, by the Depositor, the Certificate Administrator or the Trustee, or to such Master Servicer, such Special Servicer, the Depositor, the Certificate Administrator and the Trustee by the Holders of Certificates evidencing not less than 25% of all Voting Rights or, as it relates to the servicing of a Serviced Pari Passu Whole Loan affected by such breach, by the related Serviced Companion Noteholder; provided, however, that if such breach is capable of being cured and such Master Servicer or such Special Servicer, as the case may be, is diligently pursuing such cure, such 30-day period will be extended an additional thirty (30) days; or

 

(v)       a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against such Master Servicer or such Special Servicer, as the case may be, and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of sixty (60) days; or

 

(vi)      such Master Servicer or such Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to such Master Servicer or such Special Servicer, as the case may be, or of or relating to all or substantially all of its property; or

 

(vii)     such Master Servicer or such Special Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or take any corporate action in furtherance of the foregoing; or

 

 -415-

 

 

(viii)    either Moody’s or KBRA (or, in the case of Serviced Pari Passu Companion Loan Securities, any Companion Loan Rating Agency) has (A) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, or (B) placed one or more Classes of Certificates or Serviced Pari Passu Companion Loan Securities, as applicable, on “watch status” in contemplation of a ratings downgrade or withdrawal (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by Moody’s or KBRA, as applicable (or, in the case of Serviced Pari Passu Companion Loan Securities, such Companion Loan Rating Agency), within sixty (60) days of such rating action) and, in the case of either of clauses (A) or (B), publicly citing servicing concerns with the applicable Master Servicer or the applicable Special Servicer, as the case may be, as the sole or a material factor in such rating action; or

 

(ix)       such Master Servicer or such Special Servicer, as the case may be, is no longer rated at least “CMS3” or “CSS3”, respectively, by Fitch and such Master Servicer or Special Servicer is not reinstated to at least that rating within sixty (60) days of the delisting.

 

(b)       If any Servicer Termination Event with respect to a Master Servicer or a Special Servicer (in either case, for purposes of this Section 7.01(b), the “Affected Party”) shall occur and be continuing, then, and in each and every such case, so long as such Servicer Termination Event shall not have been remedied, the Trustee may, and at the written direction of ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) the Directing Certificateholder (solely with respect to the Special Servicer) or the Holders of Certificates entitled to 25% or more of the Voting Rights, the Trustee shall, terminate (and the Depositor may direct the Trustee to terminate each of such Master Servicer or such Special Servicer, as the case may be, upon five (5) Business Days’ written notice if there is a Servicer Termination Event under clause (A) in the parenthetical in Section 7.01(a)(iii) above), by notice in writing to the Affected Party, with a copy of such notice to the Depositor and the Operating Advisor, all of the rights (subject to Section 3.11 and Section 6.04) and obligations of the Affected Party under this Agreement and in and to the Mortgage Loans and the proceeds thereof (other than as a Certificateholder or Companion Holder, if applicable); provided, however, that the Affected Party shall be entitled to the payment of accrued and unpaid compensation and reimbursement through the date of such termination as provided for under this Agreement for services rendered and expenses incurred. From and after the receipt by the Affected Party of such written notice except as otherwise provided in this Article VII, all authority and power of the Affected Party under this Agreement, whether with respect to the Certificates (other than as a Holder of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee with respect to a termination of such Master Servicer or such Special Servicer pursuant to and under this Section 7.01, and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Affected Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents, or otherwise. Such Master Servicer and such Special Servicer each agree that if it is terminated pursuant to this

 

 -416-

 

 

Section 7.01(b), it shall promptly (and in any event no later than twenty (20) Business Days subsequent to its receipt of the notice of termination) provide the Trustee with all documents and records requested by it to enable it to assume such Master Servicer’s or such Special Servicer’s, as the case may be, functions hereunder, and shall cooperate with the Trustee in effecting the termination of the Master Servicer’s or such Special Servicer’s, as the case may be, responsibilities and rights (subject to Section 3.11 and Section 6.04) hereunder, including, without limitation, the transfer within five (5) Business Days to the Trustee for administration by it of all cash amounts which shall at the time be or should have been credited by such Master Servicer to its Collection Account or any Servicing Account (if it is the Affected Party), by such Special Servicer to the REO Account (if it is the Affected Party) or thereafter be received with respect to the applicable Mortgage Loans or any REO Property (provided, however, that such Master Servicer and such Special Servicer each shall, if terminated pursuant to this Section 7.01(b) or pursuant to Section 7.01(d) (with respect to such Special Servicer), continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the date of such termination, whether in respect of Advances (in the case of such Special Servicer or such Master Servicer) or otherwise, and it and its Affiliates and the directors, managers, officers, members, employees and agents of it and its Affiliates shall continue to be entitled to the benefits of Section 3.11 and Section 6.04 notwithstanding any such termination).

 

(c)        If a Master Servicer receives notice of termination under Section 7.01(b) solely due to a Servicer Termination Event under Section 7.01(a)(viii) or (ix), such Master Servicer shall have a forty-five (45) day period after such notice in which to find a successor master servicer qualified to act as Master Servicer hereunder in accordance with Section 6.03 and Section 7.02 and to which such Master Servicer can sell its rights to service the Mortgage Loans under this Agreement. During such forty-five (45) day period such Master Servicer may continue to serve as a Master Servicer hereunder. In the event that such Master Servicer is unable, within such forty-five (45) day period, to cause a qualified successor master servicer to assume the duties of such Master Servicer hereunder, then and in such event, the Trustee shall assume the obligations of such Master Servicer hereunder.

 

Notwithstanding Section 7.01(b), if any Servicer Termination Event on the part of the General Special Servicer shall occur and be continuing that affects the Holder of a Serviced Pari Passu Companion Loan, then, so long as the General Special Servicer is not otherwise terminated, the Holder of such Serviced Pari Passu Companion Loan or the Other Trustee appointed under the related Other Pooling and Servicing Agreement, as applicable, shall be entitled to direct the Trustee to terminate the General Special Servicer with respect to the related Serviced Pari Passu Whole Loan. The General Special Servicer appointed to replace the General Special Servicer with respect to a Serviced Pari Passu Mortgage Loan cannot at any time be (without the prior written consent of the holder of such Serviced Pari Passu Companion Loan) the person (or Affiliate thereof) that was terminated at the direction of the holder of the related Serviced Pari Passu Companion Loan. Any such Special Servicer under this paragraph shall meet the eligibility requirements of Section 7.02 and the eligibility requirements of the related Other Pooling and Servicing Agreement, and the appointment thereof shall comply with the provisions of Section 7.02. Any appointment of a replacement General Special Servicer in accordance with this paragraph shall be subject to the receipt of Rating Agency Confirmation and confirmation from the applicable rating agencies that such appointment or replacement will not result in the downgrade, withdrawal or qualification of then-current ratings of any class of

 

 -417-

 

 

any related Serviced Companion Loan Securities (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

(d)       Subject to the rights of the holder of any Subordinate Companion Holder pursuant to the related Intercreditor Agreement at any time prior to the occurrence and continuance of a Control Termination Event and other than with respect to any Excluded Loan with respect to the Directing Certificateholder, the Directing Certificateholder shall be entitled to terminate the rights (subject to Section 3.11 and Section 6.04) and obligations of such Special Servicer under this Agreement, with or without cause, upon ten (10) Business Days’ notice to such Special Servicer, the Master Servicers, the Certificate Administrator, the Trustee and the Operating Advisor; such termination to be effective upon the appointment of a successor special servicer meeting the requirements of this Section 7.01(d); provided that, with respect to a Servicing Shift Whole Loan, the ten (10) Business Days’ notice set forth in this Section 7.01(d) shall not apply to the related Loan-Specific Directing Certificateholder’s right to terminate the applicable Special Servicer’s rights and obligations under this Agreement without cause with respect to such Servicing Shift Whole Loan pursuant to the terms of the related Intercreditor Agreement. Upon a termination of such Special Servicer, the Directing Certificateholder (other than with respect to any Excluded Loan with respect to the Directing Certificateholder) shall appoint a successor special servicer to assume the duties of such Special Servicer hereunder; provided, however, that (i) such successor will meet the requirements set forth in Section 7.02, (ii) each Rating Agency delivers Rating Agency Confirmation and, in the case of any class of any Serviced Companion Loan Securities, the applicable rating agencies deliver a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and (iii) no replacement of such Special Servicer shall be effective until the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan.

 

After the occurrence and during the continuance of a Control Termination Event and upon (a) the written direction of Holders of Principal Balance Certificates evidencing not less than 25% of the Voting Rights (taking into account the application of any Allocated Cumulative Appraisal Reduction Amounts to notionally reduce the Certificate Balances pursuant to Section 4.05) of the Principal Balance Certificates (other than the RR Interest) requesting a vote to replace the applicable Special Servicer with a new special servicer designated in such written direction to assume the duties of such Special Servicer hereunder, (b) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses (including any legal fees and any Rating Agency fees and expenses) to be incurred by the Certificate Administrator in connection with administering such vote and which will not be additional expenses of the Trust and (c) delivery by such Holders to the Certificate Administrator and Trustee of Rating Agency Confirmation from each Rating Agency (which Rating Agency Confirmation shall be obtained at the expense of such Holders) and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of then-current ratings of any class of any related Serviced Pari Passu Companion Loan Securities, the Certificate Administrator shall promptly post notice to all Certificateholders of such request

 

 -418-

 

 

on the Certificate Administrator’s Website in accordance with Section 3.13(b) and concurrently by mail, conduct the solicitation of votes of all Certificates (other than the RR Interest) in such regard, which requisite affirmative votes must be received within one hundred-eighty (180) days of the posting of such notice, and if not so received, such votes shall be null and void ab initio. Upon the written direction of Holders of Certificates evidencing at least 66-2/3% of a Certificateholder Quorum of Certificates, the Trustee shall terminate all of the rights and obligations of the applicable Special Servicer under this Agreement and appoint the successor special servicer to assume the duties of such Special Servicer (which must be a Qualified Replacement Special Servicer) designated by such Certificateholders. The Certificate Administrator shall include on each Distribution Date Statement a statement that each Certificateholder may (i) access such notices via the Certificate Administrator’s Website and (ii) register to receive electronic mail notifications when such notices are posted thereon. Notwithstanding the foregoing, the Certificateholder’s direction to remove a Special Servicer shall not apply to any Serviced AB Whole Loan that is not subject to an AB Control Appraisal Period or to any Servicing Shift Whole Loan.

 

A Serviced AB Whole Loan Controlling Holder shall have the right, prior to the occurrence and continuance of an AB Control Appraisal Period, to replace the applicable Special Servicer solely with respect to the related Serviced AB Whole Loan, so long as (A) each Rating Agency delivers a Rating Agency Confirmation; (B) the successor special servicer has assumed in writing (from and after the date such successor special servicer becomes a Special Servicer) all of the responsibilities, duties and liabilities of such Special Servicer under this Agreement from and after the date it becomes a Special Servicer as they relate to any Serviced AB Whole Loan pursuant to an assumption agreement reasonably satisfactory to the Certificate Administrator; and (C) the Certificate Administrator shall have received an opinion of counsel reasonably satisfactory to the Certificate Administrator to the effect that (x) the designation of such replacement to serve as Special Servicer is in compliance with this Agreement, (y) such replacement will be bound by the terms of this Agreement with respect to any Serviced AB Whole Loan and (z) subject to customary qualifications and exceptions, this Agreement will be enforceable against such replacement in accordance with the terms hereof.

 

The parties hereto acknowledge that, notwithstanding anything to the contrary contained in this section, in accordance with the related Intercreditor Agreement, if a servicer termination event on the part of a Non-Serviced Special Servicer under a Non-Serviced PSA remains unremedied and affects the holder of the related Non-Serviced Mortgage Loan, and the related Non-Serviced Special Servicer has not otherwise been terminated, the holder of the related Non-Serviced Mortgage Loan (or the Trustee, acting at the direction of the Directing Certificateholder) will be entitled to direct the related Non-Serviced Trustee to terminate the related Non-Serviced Special Servicer solely with respect to the related Non-Serviced Whole Loan. The appointment (or replacement) of the applicable Non-Serviced Special Servicer with respect to a Non-Serviced Whole Loan will in any event be subject to Rating Agency Confirmation from each Rating Agency. A replacement special servicer will be selected by the related Non-Serviced Trustee or, prior to the occurrence and continuance of a consultation termination event under the related Non-Serviced PSA, by the related Non-Serviced Whole Loan Controlling Holder; provided, however, that any successor special servicer appointed to replace such Special Servicer with respect to such Non-Serviced Whole Loan cannot at any time be the Person (or an Affiliate thereof) that was terminated at the direction of the holder of such

 

 -419-

 

 

Non-Serviced Mortgage Loan, without the prior written consent of the Directing Certificateholder.

 

Following the occurrence and continuance of a Consultation Termination Event, subject to the immediately succeeding paragraph, if the Operating Advisor determines in its sole discretion exercised in good faith that the applicable Special Servicer is not performing its duties as required hereunder or is otherwise not acting in accordance with the Servicing Standard, the Operating Advisor shall deliver to the Trustee and the Certificate Administrator, with a copy to such Special Servicer, a written report in the form of Exhibit W attached hereto, setting forth the reasons supporting its recommendation (along with any information the Operating Advisor considered relevant to its recommendation) and recommending a replacement Special Servicer (which form may be modified or supplemented from time to time to cure any ambiguity or error or to incorporate any additional information, subject to compliance of such form with the terms and provisions of this Agreement; provided, further, that in no event shall the information or any other content included in such written recommendation contravene any provision of this Agreement) detailing the reasons supporting its recommendation (along with relevant information justifying its recommendation) and recommending a suggested replacement special servicer to assume the duties of such Special Servicer, which shall be a Qualified Replacement Special Servicer. In such event, the Certificate Administrator shall promptly post notice to all Certificateholders of such recommendation and the related report on the Certificate Administrator’s Website in accordance with Section 3.13(b), and by mail conduct the solicitation of votes of all Certificates in such regard. Upon (i) the affirmative vote of Holders of Principal Balance Certificates evidencing at least a majority of the aggregate Voting Rights (taking into account the application of any Appraisal Reduction Amounts to notionally reduce the respective Certificate Balances of such Certificates) of all Principal Balance Certificates on an aggregate basis within 180 days of posting of the Operating Advisor’s recommendation to the Certificate Administrator’s Website, and if not so received, such votes shall be null and void ab initio, and (ii) receipt by the Certificate Administrator following satisfaction of the foregoing clause (i) of Rating Agency Confirmation from each Rating Agency and confirmation from the applicable rating agencies that such appointment (or replacement) will not result in the downgrade, withdrawal or qualification of then-current ratings of any class of any related Serviced Pari Passu Companion Loan Securities, the Trustee shall (i) terminate all of the rights and obligations of such Special Servicer under this Agreement and appoint a successor special servicer approved by the Certificateholders and (ii) promptly notify such outgoing Special Servicer of the effective date of such termination. The reasonable out-of-pocket costs and expenses (including reasonable legal fees and expenses of outside counsel) associated with obtaining such Rating Agency Confirmations and administering such vote and the Operating Advisor’s identification of a Qualified Replacement Special Servicer shall be an additional expense of the Trust. In the event that the Trustee does not receive at least a majority of the requested votes, then the Trustee shall have no obligation to remove such Special Servicer. Prior to the appointment of any replacement special servicer, such replacement special servicer shall have agreed to succeed to the obligations of such Special Servicer under this Agreement and to act as such Special Servicer’s successor hereunder. Notwithstanding the foregoing, the Operating Advisor shall not be permitted to recommend the replacement of a Special Servicer with respect to an AB Whole Loan so long as the related Serviced Companion Noteholder is not subject to an AB Control Appraisal Period under the related Intercreditor Agreement or with respect to any Servicing Shift Whole Loan.

 

 -420-

 

 

No penalty or fee shall be payable to the terminated Special Servicer with respect to any termination pursuant to this Section 7.01(d). All costs of any such termination made by the Directing Certificateholder without cause shall be paid by the Holders of the Controlling Class.

 

For the avoidance of doubt, the indemnification of the Operating Advisor in Section 6.04 shall include, subject to the limitations set forth in Section 6.04, any action or claim arising from, or relating to, the Operating Advisor’s determination under this Section 7.01(d) (regarding removal of a Special Servicer), or the result of the vote of the Certificateholders (regarding removal of a Special Servicer).

 

(e)        Each Master Servicer and each Special Servicer shall, as the case may be, from time to time, take all such reasonable actions as are required by it in accordance with the related Servicing Standard in order to prevent the Certificates from being placed on “watch” status or downgraded due to servicing or special servicing, as applicable, concerns by any Rating Agency with respect to such Master Servicer or Special Servicer, as applicable. In no event shall the remedy for a breach of the foregoing covenant extend beyond termination pursuant to Section 7.01(a)(viii) and the resulting operation of Section 7.01(b) and (c). The operation of this subsection (e) shall not be construed to limit the effect of Section 7.01(a)(viii).

 

(f)        Notwithstanding the foregoing, (1) if any Servicer Termination Event on the part of a Master Servicer affects a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, and if such Master Servicer is not otherwise terminated, or (2) if a Servicer Termination Event on the part of a Master Servicer affects only a Serviced Companion Loan, the related holder of a Serviced Companion Loan or the rating on any Serviced Companion Loan Securities, then such Master Servicer may not be terminated by or at the direction of the related holder of such Serviced Companion Loan or the holders of any Serviced Companion Loan Securities, but upon the written direction of the related holder of such Serviced Companion Loan, such Master Servicer shall be required to appoint a sub-servicer that will be responsible for servicing the related Serviced Whole Loan.

 

(g)       Notwithstanding anything to the contrary contained in this Section 7.01, with respect to any Excluded Special Servicer Loan, if any, the related Special Servicer shall resign as Special Servicer of that Excluded Special Servicer Loan. Prior to the occurrence and continuance of a Control Termination Event, if the applicable Excluded Special Servicer Loan is not also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, the Directing Certificateholder shall select an Excluded Special Servicer, as successor to the resigning Special Servicer, for the related Excluded Special Servicer Loan in accordance with this Agreement. After the occurrence and during the continuance of a Control Termination Event, if at any time the applicable Excluded Special Servicer Loan is also an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class or if the Directing Certificateholder is entitled to appoint the Excluded Special Servicer but does not so appoint within 30 days of notice of resignation, the resigning Special Servicer shall use reasonable efforts to select the related Excluded Special Servicer. The resigning Special Servicer shall not have any liability with respect to the actions or inactions of the applicable Excluded Special Servicer or with respect to

 

 -421-

 

 

the identity of the applicable Excluded Special Servicer. It shall be a condition to any such appointment that (i) the Rating Agencies confirm that the appointment would not result in a qualification, downgrade or withdrawal of any of their then-current ratings of the Certificates and each NRSRO hired to provide ratings with respect to any Serviced Companion Loan Securities makes the equivalent confirmation, (ii) the related Excluded Special Servicer is a Qualified Replacement Special Servicer and (iii) the related Excluded Special Servicer delivers to the Depositor and the Certificate Administrator and any applicable Other Depositor and Other Certificate Administrator, the information, if any, required under Item 6.02 of Form 8-K pursuant to the Exchange Act regarding itself in its role as Excluded Special Servicer.

 

If at any time the applicable Special Servicer that had previously acted as a Special Servicer is no longer a Borrower Party with respect to an Excluded Special Servicer Loan (including, without limitation, as a result of the related Mortgaged Property becoming REO Property), (1) the related Excluded Special Servicer shall resign, (2) the related Mortgage Loan or Serviced Whole Loan shall no longer be an Excluded Special Servicer Loan, (3) such original Special Servicer shall become the Special Servicer again for such related Mortgage Loan or Serviced Whole Loan and (4) such original Special Servicer shall be entitled to all special servicing compensation with respect to such Mortgage Loan or Serviced Whole Loan earned during such time on and after such Mortgage Loan or Serviced Whole Loan is no longer an Excluded Special Servicer Loan.

 

The applicable Excluded Special Servicer shall perform all of the obligations of the applicable Special Servicer for the related Excluded Special Servicer Loan and shall be entitled to all special servicing compensation with respect to such Excluded Special Servicer Loan earned during such time as the related Mortgage Loan or Serviced Whole Loan is an Excluded Special Servicer Loan (provided that the applicable Special Servicer shall remain entitled to all other special servicing compensation with respect to all Mortgage Loans and Serviced Whole Loans that are not Excluded Special Servicer Loans during such time).

 

If a Servicing Officer of the applicable Master Servicer, a related Excluded Special Servicer, or the applicable Special Servicer, as the case may be, has actual knowledge that a Mortgage Loan is no longer an Excluded Loan, an Excluded Controlling Class Loan or an Excluded Special Servicer Loan, as applicable, the applicable Master Servicer, the related Excluded Special Servicer or the applicable Special Servicer, as the case may be, shall provide prompt written notice thereof to each of the other parties to this Agreement.

 

Section 7.02       Trustee to Act; Appointment of Successor.  On and after the time a Master Servicer or a Special Servicer, as the case may be, either resigns pursuant to subsection (a) of the first sentence of Section 6.05 or receives a notice of termination for cause pursuant to Section 7.01(b), and provided that no acceptable successor has been appointed within the time period specified in Section 7.01(c), the Trustee shall be the successor to such party, until such successor to that Master Servicer or that Special Servicer, as applicable, is appointed as provided in this Section 7.02 or by the Directing Certificateholder as provided in Section 7.01(d), as applicable, in all respects in its capacity as such Master Servicer or such Special Servicer, as applicable, under this Agreement and the transactions set forth or provided for herein and shall be subject to, and have the benefit of, all of the rights, (subject to Section 3.11 and Section 6.04) benefits, responsibilities, duties, liabilities and limitations on liability relating thereto and that

 

 -422-

 

 

arise thereafter placed on or for the benefit of such Master Servicer or Special Servicer, as applicable, by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the terminated party’s failure under Section 7.01 to provide information or moneys required hereunder shall not be considered a default by such successor hereunder. The appointment of a successor master servicer shall not affect any liability of the predecessor Master Servicer which may have arisen prior to its termination as Master Servicer, and the appointment of a successor special servicer shall not affect any liability of the predecessor Special Servicer which may have arisen prior to its termination as Special Servicer. The Trustee in its capacity as successor to such Master Servicer or such Special Servicer, as the case may be, shall not be liable for any of the representations and warranties of such Master Servicer or such Special Servicer, respectively, herein or in any related document or agreement, for any acts or omissions of the predecessor master servicer or special servicer or for any losses incurred by the predecessor Master Servicer pursuant to Section 3.06 hereunder, nor shall the Trustee be required to purchase any Mortgage Loan hereunder solely as a result of its obligations as successor master servicer or special servicer, as the case may be. Subject to Section 3.11, as compensation therefor, the Trustee as successor master servicer shall be entitled to the Servicing Fees and all fees relating to the Mortgage Loans or the Companion Loans which that Master Servicer would have been entitled to if such Master Servicer had continued to act hereunder, including but not limited to any income or other benefit from any Permitted Investment pursuant to Section 3.06, and subject to Section 3.11, and the Trustee as successor to such Special Servicer shall be entitled to the Special Servicing Fees to which such Special Servicer would have been entitled if such Special Servicer had continued to act hereunder. Should the Trustee succeed to the capacity of such Master Servicer or such Special Servicer, as the case may be, the Trustee shall be afforded the same standard of care and liability as such Master Servicer or such Special Servicer, as applicable, hereunder notwithstanding anything in Section 8.01 to the contrary, but only with respect to actions taken by it in its role as successor master servicer or successor special servicer, as the case may be, and not with respect to its role as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling to act as successor to that Master Servicer or that Special Servicer, as applicable, or shall, if it is unable to so act, or if the Trustee is not approved as a servicer by each Rating Agency, or if the Directing Certificateholder (solely with respect to such Special Servicer) ((i) prior to the occurrence and continuance of a Control Termination Event and (ii) other than with respect to any Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class) or the Holders of Certificates entitled to more than 50% of the Voting Rights so request in writing to the Trustee, promptly appoint, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution which meets the criteria set forth in Section 6.05 and otherwise herein, as the successor to that Master Servicer or that Special Servicer, as applicable, hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of such Master Servicer or such Special Servicer hereunder. No appointment of a successor to such Master Servicer or such Special Servicer hereunder shall be effective until (i) the assumption in writing by the successor to such Master Servicer or such Special Servicer of all its responsibilities, duties and liabilities hereunder that arise thereafter, (ii) receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner

 -423-

 

as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), (iii) such appointment (solely with respect to such Special Servicer) has been approved (prior to the occurrence and continuance of a Control Termination Event) by the Directing Certificateholder, such approval not to be unreasonably withheld and (iv) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 hereof and any other Form 8-K filings have been completed with respect to any related Companion Loan. Pending appointment of a successor to such Master Servicer or such Special Servicer hereunder, unless the Trustee shall be prohibited by law from so acting, the Trustee shall act in such capacity as herein above provided. In connection with such appointment and assumption of a successor to such Master Servicer or such Special Servicer as described herein, the Trustee may make such arrangements for the compensation of such successor out of payments on the Mortgage Loans as it and such successor shall agree; provided, however, that no such compensation with respect to a successor master servicer or successor special servicer, as the case may be, shall be in excess of that permitted the terminated Master Servicer or Special Servicer, as the case may be, hereunder. The Trustee, the non-terminated Master Servicer or the non-terminated Special Servicer and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. Any reasonable out-of-pocket costs and expenses associated with the transfer of the servicing function (other than with respect to a termination without cause) under this Agreement shall be borne by the predecessor Master Servicer or Special Servicer, as applicable. If such predecessor Master Servicer or Special Servicer (as the case may be) has not reimbursed the party requesting such termination or the successor master servicer or special servicer for such expenses within 90 days after the presentation of reasonable documentation, such expense shall be reimbursed by the Trust; provided that the terminated Master Servicer or Special Servicer shall not thereby be relieved of its liability for such expenses. If and to the extent that the terminated Master Servicer or Special Servicer has not reimbursed such costs and expenses, the party requesting such termination shall have an affirmative obligation to take all reasonable actions to collect such expenses on behalf of the Trust. In the event of a termination without cause, such costs and expenses shall be borne by the party requesting such termination, or as otherwise set forth herein; provided that the Certificate Administrator and the Trustee shall not bear any such costs and expenses. For the avoidance of doubt, if the Trustee is terminating a Master Servicer or the Special Servicer in accordance with this Agreement at the direction of any party or parties permitted to direct the Trustee to so terminate such Master Servicer or such Special Servicer pursuant to this Agreement, the Trustee shall not have any liability for such expenses pursuant to this paragraph.

 

Section 7.03       Notification to Certificateholders.  (a) Upon any resignation of a Master Servicer or a Special Servicer pursuant to Section 6.05, any termination of a Master Servicer or a Special Servicer pursuant to Section 7.01 or any appointment of a successor to a Master Servicer or a Special Servicer pursuant to Section 7.02, the Certificate Administrator shall give prompt written notice thereof to Certificateholders at their respective addresses appearing in the Certificate Register.

 

(b)       Not later than the later of (i) sixty (60) days after the occurrence of any event which constitutes or, with notice or lapse of time or both, would constitute a Servicer Termination Event and (ii) five (5) days after the Certificate Administrator would be deemed to have notice of the occurrence of such an event in accordance with Section 8.02(ix), the

 

 -424-

 

 

Certificate Administrator shall transmit by mail to the Depositor and all Certificateholders (and, if a Serviced Whole Loan is affected, the related Serviced Companion Noteholder) notice of such occurrence, unless such default shall have been cured.

 

Section 7.04      Waiver of Servicer Termination Events.   The Holders of Certificates representing at least 66-2/3% of the Voting Rights allocated to each Class of Certificates affected by any Servicer Termination Event hereunder may waive such Servicer Termination Event; provided, however, that a Servicer Termination Event under clause (i), (ii) or (viii) of Section 7.01(a) may be waived only with the consent of all of the Certificateholders of the affected Classes, and a Servicer Termination Event under clause (iii) of Section 7.01(a) (with respect to obligations under Article XI) may be waived only with the consent of the Depositor. Upon any such waiver of a Servicer Termination Event, subject to the rights of any affected holder of a Serviced Companion Loan under Section 7.01(c) or Section 7.01(f), such Servicer Termination Event shall cease to exist and shall be deemed to have been remedied for every purpose hereunder. Upon any such waiver of a Servicer Termination Event by Certificateholders, the Trustee and the Certificate Administrator shall be entitled to recover all costs and expenses incurred by it in connection with enforcement action taken with respect to such Servicer Termination Event prior to such waiver from the Trust. No such waiver shall extend to any subsequent or other Servicer Termination Event or impair any right consequent thereon except to the extent expressly so waived. Notwithstanding any other provisions of this Agreement, for purposes of waiving any Servicer Termination Event pursuant to this Section 7.04, Certificates registered in the name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to the matters described above as they would if any other Person held such Certificates.

 

Section 7.05      Trustee as Maker of Advances.  In the event that a Master Servicer fails to fulfill its obligations hereunder to make any Advances and such failure remains uncured, the Trustee shall perform such obligations (x) within five (5) Business Days following such failure by a Master Servicer with respect to Servicing Advances resulting in a Servicer Termination Event under Section 7.01(a)(iii) to the extent a Responsible Officer of the Trustee has actual knowledge of such failure with respect to such Servicing Advances and (y) by noon, New York City time, on the related Distribution Date with respect to P&I Advances pursuant to the Certificate Administrator’s notice of failure pursuant to Section 4.03(a) unless such failure has been cured. With respect to any such Advance made by the Trustee, the Trustee shall succeed to all of such Master Servicer’s rights with respect to Advances hereunder, including, without limitation, such Master Servicer’s rights of reimbursement and interest on each Advance at the Reimbursement Rate, and rights to determine that a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without regard to any impairment of any such rights of reimbursement caused by such Master Servicer’s default in its obligations hereunder); provided, however, that if Advances made by the Trustee and a Master Servicer shall at any time be outstanding, or any interest on any Advance shall be accrued and unpaid, all amounts available to repay such Advances and the interest thereon hereunder shall be applied entirely to the Advances outstanding to the Trustee, until such Advances shall have been repaid in full, together with all interest accrued thereon, prior to reimbursement of such Master Servicer for such Advances. The Trustee shall be entitled to conclusively rely on any notice given with respect to a Nonrecoverable Advance hereunder.

 

 -425-

 

 

[End of Article VII]

 

Article VIII

CONCERNING THE TRUSTEE AND THE CERTIFICATE ADMINISTRATOR

 

Section 8.01       Duties of the Trustee and the Certificate Administrator.  (a) The Trustee and the Certificate Administrator, prior to the occurrence of a Servicer Termination Event and after the curing or waiving of all Servicer Termination Events which may have occurred, undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If a Servicer Termination Event occurs and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. Any permissive right of the Trustee and the Certificate Administrator contained in this Agreement shall not be construed as a duty.

 

(b)       The Trustee or the Certificate Administrator, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Certificate Administrator which are specifically required to be furnished pursuant to any provision of this Agreement (other than the Mortgage Files, the review of which is specifically governed by the terms of Article II, the Diligence Files, any CREFC^® reports and any information delivered for posting to the Certificate Administrator’s Website or the 17g-5 Information Provider’s Website), shall examine them to determine whether they conform to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement in a material manner, the Trustee or the Certificate Administrator shall notify the party providing such instrument and requesting the correction thereof. The Trustee or the Certificate Administrator shall not be responsible for the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, a Master Servicer or a Special Servicer or another Person, and accepted by the Trustee or the Certificate Administrator in good faith, pursuant to this Agreement.

 

(c)       No provision of this Agreement shall be construed to relieve the Trustee or the Certificate Administrator from liability for its own negligent action, its own negligent failure to act or its own willful misconduct or bad faith; provided, however, that:

 

(i)        Prior to the occurrence of a Servicer Termination Event, and after the curing of all such Servicer Termination Events which may have occurred, the duties and obligations of the Trustee and the Certificate Administrator shall be determined solely by the express provisions of this Agreement, the Trustee and the Certificate Administrator shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trustee and the Certificate Administrator and, in the absence of bad faith on the part of the Trustee and the Certificate Administrator, the Trustee and the Certificate Administrator may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or

 

 -426-

 

 

opinions furnished to the Trustee or the Certificate Administrator and conforming to the requirements of this Agreement;

 

(ii)       Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee or the Certificate Administrator, respectively, unless it shall be proved that the Trustee or the Certificate Administrator, as applicable, was negligent in ascertaining the pertinent facts; and

 

(iii)      Neither the Trustee nor the Certificate Administrator, as applicable, shall be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of Certificates entitled to greater than 25% (i) of the Percentage Interest of each affected Class, or (ii) if each Class is an affected Class of the aggregate Voting Rights of the Certificates, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Certificate Administrator, or exercising any trust or power conferred upon the Trustee or the Certificate Administrator, under this Agreement (unless a higher percentage of Voting Rights is required for such action).

 

(d)       The Certificate Administrator shall make available via its internet website initially located at www.ctslink.com to the Serviced Companion Noteholders all reports that the Certificate Administrator has made available to Certificateholders under this Agreement to the extent such reports relate to the related Serviced Companion Loan and upon the submission of an Investor Certification pursuant to this Agreement.

 

Section 8.02       Certain Matters Affecting the Trustee and the Certificate Administrator.  Except as otherwise provided in Section 8.01:

 

(i)        The Trustee and the Certificate Administrator may rely upon and shall be protected in acting or refraining from acting upon any resolution, direction of the Depositor, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, Appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(ii)       The Trustee and the Certificate Administrator may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance therewith;

 

(iii)      Neither the Trustee nor the Certificate Administrator shall be under any obligation to exercise any of the trusts or powers vested in it by this Agreement or the Certificates or to make any investigation of matters arising hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee or the Certificate Administrator, as applicable, security or indemnity reasonably satisfactory to it, against

 

 -427-

 

 

the costs, expenses and liabilities which may be incurred therein or thereby; neither the Trustee nor the Certificate Administrator shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is reasonably assured to it; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of a Servicer Termination Event which has not been cured, to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs;

 

(iv)      Neither the Trustee nor the Certificate Administrator shall be liable for any action reasonably taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;

 

(v)       Prior to the occurrence of a Servicer Termination Event hereunder and after the curing of all Servicer Termination Events which may have occurred, neither the Trustee nor the Certificate Administrator shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Certificates entitled to more than 50% of the Voting Rights; provided, however, that if the payment within a reasonable time to the Trustee or the Certificate Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee or the Certificate Administrator, respectively, not reasonably assured to the Trustee or the Certificate Administrator by the security afforded to it by the terms of this Agreement, the Trustee or the Certificate Administrator, respectively, may require indemnity reasonably satisfactory to it from such requesting Holders against such expense or liability as a condition to taking any such action. The reasonable expense of every such reasonable examination shall be paid by the requesting Holders;

 

(vi)      The Trustee or the Certificate Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, Affiliates or attorneys; provided, however, that the appointment of such agents, Affiliates or attorneys shall not relieve the Trustee or the Certificate Administrator of its duties or obligations hereunder; provided, further, that the Trustee or the Certificate Administrator, as the case may be, may not perform any duties hereunder through any Person that is a Prohibited Party;

 

(vii)     Computershare Trust Company, N.A. shall perform its duties as Custodian hereunder through its Document Custody division (including, as applicable, any agents or affiliates utilized thereby);

 

(viii)    Computershare Trust Company, N.A. shall perform its duties as Certificate Administrator role through its Corporate Trust Services division (including, as applicable, any agents or affiliates utilized thereby);

 

 -428-

 

 

(ix)       For all purposes under this Agreement, none of the Trustee, the Custodian or the Certificate Administrator shall be deemed to have actual knowledge or notice of any Servicer Termination Event or Asset Representations Reviewer Termination Event or any act, failure or breach of any Person upon the occurrence of which the Trustee or Certificate Administrator may be required to act unless a Responsible Officer of the Trustee or the Certificate Administrator, as applicable, has actual knowledge thereof or unless written notice of any event, act, failure or breach, as applicable, which is in fact such a default is received by the Trustee or the Certificate Administrator at the respective Corporate Trust Office, and such notice references the Certificates or this Agreement;

 

(x)        Neither the Trustee nor the Certificate Administrator shall be responsible for any act or omission of a Master Servicer or a Special Servicer (unless the Trustee is acting as a Master Servicer or a Special Servicer, as the case may be, in which case the Trustee shall only be responsible for its own actions as a Master Servicer or a Special Servicer) or of the Depositor, the Operating Advisor or the Asset Representations Reviewer;

 

(xi)       Neither the Trustee nor the Certificate Administrator shall in any way be liable by reason of any insufficiency in the Trust Fund unless it is determined by a court of competent jurisdiction that the Trustee’s or Certificate Administrator’s, as applicable, negligence or willful misconduct was the primary cause of such insufficiency;

 

(xii)      In no event shall the Trustee or the Certificate Administrator be liable for any failure or delay in the performance of its obligations hereunder due to force majeure or acts of God; provided that such failure or delay is not also a result of its own negligence, bad faith or willful misconduct;

 

(xiii)     Nothing herein shall require the Trustee or the Certificate Administrator to act in any manner that is contrary to applicable law; and

 

(xiv)    Nothing herein shall be construed as an obligation for any party to this Agreement to advise a Certificateholder with respect to its rights and protections relative to the Trust.

 

Each of the Trustee and the Certificate Administrator shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it as Trustee and Certificate Administrator, as the case may be, in each capacity for which it serves hereunder (including, without limitation, as Custodian, Certificate Registrar, 17g-5 Information Provider and Authenticating Agent).

 

Section 8.03      Trustee and Certificate Administrator Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans.  The recitals contained herein and in the Certificates, other than the acknowledgments of the Trustee or the Certificate Administrator in Section 2.01(h) and Section 2.04 and the signature, if any, of the Certificate Registrar and Authenticating Agent set forth on any outstanding Certificate, shall not be taken as the statements of the Trustee or the Certificate Administrator, and the Trustee or the Certificate Administrator assume no responsibility for their correctness. Neither the Trustee nor the

 

 -429-

 

 

Certificate Administrator makes any representations as to the validity or sufficiency of this Agreement or of any Certificate (other than as to the signature, if any, of the Trustee or the Certificate Administrator set forth thereon) or of any Mortgage Loan or related document. Neither the Trustee nor the Certificate Administrator shall be accountable for the use or application by the Depositor of any of the Certificates issued to it or of the proceeds of such Certificates, or for the use or application of any funds paid to the Depositor in respect of the assignment of the Mortgage Loans to the Trust, or any funds deposited in or withdrawn from the Collection Accounts or any other account by or on behalf of the Depositor, the applicable Master Servicer, the applicable Special Servicer or in the case of the Trustee, the Certificate Administrator. The Trustee and the Certificate Administrator shall not be responsible for and may rely upon the accuracy or content of any resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Depositor, the Master Servicers or the Special Servicers and accepted by the Trustee or the Certificate Administrator, in good faith, pursuant to this Agreement.

 

Section 8.04      Trustee or Certificate Administrator May Own Certificates.  The Trustee or the Certificate Administrator, each in its individual capacity, not as Trustee or Certificate Administrator, may become the owner or pledgee of Certificates, and may deal with the Depositor, either Master Servicer, either Special Servicer or the Underwriters in banking transactions, with the same rights it would have if it were not Trustee or the Certificate Administrator.

 

Section 8.05      Fees and Expenses of Trustee and Certificate Administrator; Indemnification of Trustee and Certificate Administrator.  (a) As compensation for the performance of their respective duties hereunder, the Trustee will be paid the Trustee Fee, which shall cover recurring and otherwise reasonably anticipated expenses of the Trustee, and the Certificate Administrator will be paid the Certificate Administrator Fee equal to the Certificate Administrator’s portion of one month’s interest at the Certificate Administrator Fee Rate, which shall cover recurring and otherwise reasonably anticipated expenses of the Certificate Administrator. The Trustee Fee and Certificate Administrator Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan (other than the portion of an REO Loan related to any Companion Loan), the Certificate Administrator shall pay to the Trustee monthly the Trustee Fee from the Certificate Administrator Fee, which Certificate Administrator Fee shall accrue from time to time at the Certificate Administrator Fee Rate and the Certificate Administrator Fee shall be computed in the same manner as interest is calculated thereon and for the same period respecting which any related interest payment due or deemed thereon is computed. The Trustee Fee (which shall not be limited to any provision of law in regard to the compensation of a trustee of an express trust) shall constitute the Trustee’s sole form of compensation for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties of the Trustee hereunder, except for the reimbursement of expenses specifically provided for herein. The Certificate Administrator Fee shall constitute the Certificate Administrator’s sole form of compensation for the exercise and performance of its powers and duties hereunder, except for the reimbursement of expenses specifically provided for herein. No Trustee Fee or Certificate Administrator Fee shall be payable with respect to any Companion Loan.

 

 -430-

 

 

(b)       The Trustee, the Certificate Administrator (in each case, including in its capacity as Custodian and in its individual capacity) and any director, officer, employee, representative or agent of the Trustee and the Certificate Administrator, respectively, shall be entitled to be indemnified and held harmless by the Trust (to the extent of amounts on deposit in the Collection Accounts or the Lower-Tier REMIC Distribution Account, as applicable, from time to time) against any loss, liability or expense (including, without limitation, costs and expenses of litigation, and of investigation, counsel fees, damages, judgments and amounts paid in settlement, and expenses incurred in becoming the successor to the applicable Master Servicer or the applicable Special Servicer, to the extent not otherwise paid hereunder, and including reasonable attorneys’ fees and expenses and expenses relating to the enforcement of such indemnity) arising out of, or incurred in connection with, any act or omission of the Trustee or the Certificate Administrator, respectively, relating to the exercise and performance of any of the powers, rights and duties of the Trustee or the Certificate Administrator, respectively (including in any capacities in which they serve, such as paying agent, REMIC Administrator, Authenticating Agent, Custodian, Certificate Registrar, and 17g-5 Information Provider) hereunder; provided, however, that none of the Trustee or the Certificate Administrator, nor any of the other above specified Persons shall be entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or made by or on behalf of the Trustee or the Certificate Administrator, respectively, in the normal course of the Trustee or the Certificate Administrator, respectively, performing its duties in accordance with any of the provisions hereof, which are not “unanticipated expenses of the REMIC” within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or expense incurred by reason of willful misconduct, bad faith or negligence in the performance of the Trustee’s or the Certificate Administrator’s, respectively, obligations and duties hereunder, or by reason of negligent disregard of such obligations or duties, or as may arise from a breach of any representation or warranty of the Trustee specified in Section 8.12 or the Certificate Administrator specified in Section 8.14, respectively, made herein. The provisions of this Section 8.05(b) shall survive the termination of this Agreement and any resignation or removal of the Trustee or the Certificate Administrator, respectively, and appointment of a successor thereto. The foregoing indemnity shall also apply to the Certificate Administrator in all of its capacities hereunder, including Custodian, Certificate Registrar and Authenticating Agent.

 

(c)       The Certificate Administrator shall indemnify and hold harmless the Depositor and Mortgage Loan Sellers from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by the Depositor, any Mortgage Loan Seller or its Affiliates that arise out of or are based upon (i) a breach by the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, of its obligations under this Agreement or (ii) negligence, bad faith or willful misconduct on the part of the Certificate Administrator, in its capacity as 17g-5 Information Provider or in any other capacity in which the Certificate Administrator is required to make available information to a Privileged Person that is an NRSRO, in the performance of such obligations or its negligent disregard of its obligations and duties under this Agreement.

 

 -431-

 

 

Section 8.06      Eligibility Requirements for Trustee and Certificate Administrator.  Each of the Trustee and the Certificate Administrator hereunder shall at all times be, and will be required to resign if it fails to be, (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred under this Agreement, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by federal or state authority and in the case of the Trustee, shall not be an Affiliate of either Master Servicer or either Special Servicer (except during any period when the Trustee is acting as, or has become successor to, either Master Servicer or either Special Servicer, as the case may be, pursuant to Section 7.02), (ii) in the case of the Trustee, an institution whose long-term senior unsecured debt is rated at least at least “A2” by Moody’s or a long term counterparty risk assessment of at least “A2(cr)” by Moody’s (provided however, that the Trustee may maintain a long term unsecured debt rating of at least “Baa3” by Moody’s if the General Master Servicer maintains a rating of at least “A2” by Moody’s), “A” by Fitch (or short-term rating of “F1” by Fitch) and “BBB-” by KBRA (or if not rated by KBRA then at least an equivalent rating by two other NRSROs which may include Moody’s and Fitch), and in the case of the Certificate Administrator, an institution whose long-term senior unsecured debt is rated at least “Baa3” by Moody’s or in the case of each of the Trustee and the Certificate Administrator, or such other rating with respect to which the Rating Agencies have provided a Rating Agency Confirmation and (iii) an entity that is not a Prohibited Party.

 

If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.06 the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In the event the place of business from which the Certificate Administrator administers the Trust REMICs or in which the Trustee’s office is located is in a state or local jurisdiction that imposes a tax on the Trust on the net income of a REMIC (other than a tax corresponding to a tax imposed under the REMIC Provisions), the Certificate Administrator or the Trustee, as applicable shall elect either to (i) resign immediately in the manner and with the effect specified in Section 8.07, (ii) pay such tax at no expense to the Trust or (iii) administer the Trust REMICs from a state and local jurisdiction that does not impose such a tax.

 

Section 8.07      Resignation and Removal of the Trustee and Certificate Administrator.  (a) The Trustee and the Certificate Administrator may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Depositor, each Master Servicer, each Special Servicer and the Trustee or the Certificate Administrator, as applicable, the Operating Advisor, the Asset Representations Reviewer, 17g-5 Information Provider and to all Certificateholders. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c). Upon receiving such notice of resignation, the Depositor shall use its reasonable best efforts to promptly appoint a successor trustee or successor certificate administrator acceptable to the General Master Servicer and, prior to the

 

 -432-

 

 

occurrence and continuance of a Control Termination Event, the Directing Certificateholder by written instrument, in duplicate, which instrument shall be delivered to the resigning Trustee or Certificate Administrator and to the successor trustee or certificate administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer, the Certificateholders and the Trustee or Certificate Administrator, as applicable, by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of resignation, the resigning Trustee or Certificate Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, and such petition will be an expense of the Trust.

 

(b)       If at any time the Trustee or Certificate Administrator shall cease to be eligible in accordance with the provisions of Section 8.06 (and in the case of the Certificate Administrator, Section 5.08) and shall fail to resign after written request therefor by the Depositor or a Master Servicer, or if at any time the Trustee or Certificate Administrator shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate Administrator or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or Certificate Administrator or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, or if the Trustee or Certificate Administrator (if different than the Trustee) shall fail to timely publish any report to be delivered, published or otherwise made available by the Certificate Administrator pursuant to Section 4.02 and such failure shall continue unremedied for a period of five (5) days, or if the Certificate Administrator fails to make distributions required pursuant to Section 4.01 or Section 9.01, then the Depositor may remove the Trustee or Certificate Administrator, as applicable, and appoint a successor trustee or certificate administrator acceptable to the requesting Master Servicer, by written instrument, in duplicate, which instrument shall be delivered to the Trustee or Certificate Administrator so removed and to the successor trustee or certificate administrator in the case of the removal of the Trustee or Certificate Administrator. A copy of such instrument shall be delivered to each Master Servicer, each Special Servicer and the Certificateholders by the Depositor. If no successor trustee or certificate administrator shall have been so appointed and have accepted appointment within ninety (90) days after the giving of such notice of removal, the removed Trustee or Certificate Administrator may petition any court of competent jurisdiction for the appointment of a successor trustee or certificate administrator, as applicable, at the expense of the Trust.

 

(c)       The Holders of Certificates entitled to at least 75% of the Voting Rights may, upon thirty (30) days’ prior written notice, with or without cause, remove the Trustee or Certificate Administrator and appoint a successor trustee or certificate administrator by written instrument or instruments, in triplicate, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which instruments shall be delivered to each Master Servicer, one complete set to the Trustee or Certificate Administrator so removed and one complete set to the successor so appointed. A copy of such instrument shall be delivered to the Depositor, each Special Servicer and the remaining Certificateholders by the Master Servicers. In the event of any such termination without cause pursuant to this Section 8.07(c), the successor trustee or certificate administrator, as applicable, shall be responsible for all costs and expenses necessary to effect the transfer of responsibilities from its predecessor.

 

 -433-

 

 

(d)       Any resignation or removal of the Trustee or Certificate Administrator and appointment of a successor trustee or certificate administrator pursuant to any of the provisions of this Section 8.07 shall not become effective until (i) acceptance of appointment by the successor trustee or certificate administrator as provided in Section 8.08 and (ii) the Certificate Administrator shall have filed any required Form 8-K pursuant to Section 11.07 and any other Form 8-K filings have been completed with respect to any related Companion Loan. Further, the resigning Trustee or Certificate Administrator, as the case may be, shall pay all costs and expenses associated with the transfer of its duties.

 

If the same party is acting as Trustee and Certificate Administrator pursuant to this Agreement, any removal of either such party in its capacity as Trustee or Certificate Administrator, as applicable, shall also result in such party’s removal in its capacity as Trustee or Certificate Administrator, as applicable, and the Depositor shall appoint a successor certificate administrator and a successor trustee, in each instance meeting the eligibility requirements set forth hereunder.

 

Upon any succession of the Trustee or Certificate Administrator under this Agreement, the predecessor Trustee or Certificate Administrator shall be entitled to the payment of accrued and unpaid compensation and reimbursement as provided for under this Agreement for services rendered and expenses incurred (including without limitation, unreimbursed Advances). No Trustee or Certificate Administrator shall be personally liable for any action or omission of any successor trustee or certificate administrator.

 

(e)       Upon the resignation, assignment, merger, consolidation, or transfer of the Trustee or its business to a successor, or upon the termination of the Trustee, (a) the outgoing Trustee shall (i) endorse the original executed Mortgage Note for each Mortgage Loan (to the extent that the original executed Mortgage Note for each Mortgage Loan was endorsed to the outgoing trustee), without recourse, representation or warranty, express or implied, to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 or in blank, and (ii) in the case of the other assignable Mortgage Loan documents (to the extent such other Mortgage Loan documents were assigned to the outgoing trustee), assign such Mortgage Loan documents to such successor, and such successor shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsement and assignment has been made; (b) if any original executed Mortgage Note for a Mortgage Loan was not endorsed to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release, deliver such Mortgage Note to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Note is endorsed (without recourse, representation or warranty, express or implied) to the order of the successor, as trustee for the registered Holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 or in blank; provided, however, that, notwithstanding anything to the contrary herein, to the extent any such endorsement of such Mortgage Note requires the signature of the related Mortgage Loan Seller in order to comply with the foregoing, then the General Master Servicer shall use reasonable efforts to cause the related Mortgage Loan Seller to execute such endorsement; (c) if any other assignable Mortgage Loan document was not assigned to the outgoing trustee, the Custodian shall, upon its receipt of a Request for Release,

 

 -434-

 

 

deliver such Mortgage Loan document to the Depositor or the successor trustee, as requested, and the applicable Master Servicer and the Depositor shall cooperate with any successor trustee to ensure that such Mortgage Loan document is assigned to such successor trustee; and (d) in any case, such successor trustee shall review the documents delivered to it or to the Custodian with respect to each Mortgage Loan, and certify in writing that, as to each Mortgage Loan then subject to this Agreement, such endorsements and assignments have been made or, in the event such endorsement or assignment cannot be made for any reason, to note the same in such certification.

 

(f)       Neither the Asset Representations Reviewer nor any of its Affiliates may be appointed as successor trustee or certificate administrator.

 

Section 8.08      Successor Trustee or Certificate Administrator. (a) Any successor trustee or certificate administrator appointed as provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor, each Master Servicer, each Special Servicer and to its predecessor Trustee or Certificate Administrator an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Certificate Administrator shall become effective and such successor trustee or certificate administrator without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if originally named as Trustee or Certificate Administrator herein. The predecessor Trustee shall deliver to the successor trustee all Mortgage Files and related documents and statements held by it hereunder (other than any Mortgage Files at the time held on its behalf by the Custodian, which Custodian, at Custodian’s option shall become the agent of the successor trustee), and the Depositor, the applicable Master Servicer, the applicable Special Servicer and the predecessor Trustee shall execute and deliver such instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor trustee all such rights, powers, duties and obligations, and to enable the successor trustee to perform its obligations hereunder.

 

(b)       No successor trustee or successor certificate administrator shall, as applicable, accept appointment as provided in this Section 8.08 unless at the time of such acceptance such successor trustee or successor certificate administrator, as applicable, shall be eligible under the provisions of Section 8.06.

 

(c)       Upon acceptance of appointment by a successor trustee or successor certificate administrator as provided in this Section 8.08, the General Master Servicer shall deliver notice of the succession of such Trustee or Certificate Administrator, as applicable, to the Depositor and the Certificateholders. If the General Master Servicer fails to deliver such notice within ten (10) days after acceptance of appointment by the successor trustee or successor certificate administrator, as applicable, such successor trustee or successor certificate administrator shall cause such notice to be delivered at the expense of the General Master Servicer.

 

Section 8.09       Merger or Consolidation of Trustee or Certificate Administrator. Any Person into which the Trustee or the Certificate Administrator may be merged or converted or with which it may be consolidated or any Person resulting from any merger, conversion or

 

 -435-

 

 

consolidation to which the Trustee or the Certificate Administrator shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee or the Certificate Administrator shall be the successor of the Trustee or the Certificate Administrator, as applicable, hereunder; provided that, in the case of the Trustee, such successor person shall be eligible under the provisions of Section 8.06, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. The Certificate Administrator shall post such notice to the Certificate Administrator’s Website in accordance with Section 3.13(b) and shall provide notice of such event to each Master Servicer, each Special Servicer, the Depositor and the 17g-5 Information Provider, which shall post such notice to the 17g-5 Information Provider’s Website in accordance with Section 3.13(c).

 

Section 8.10       Appointment of Co-Trustee or Separate Trustee.  (a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the same may at the time be located, the Master Servicers and the Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section 8.10, such powers, duties, obligations, rights and trusts as the Master Servicers and the Trustee may consider necessary or desirable. If the Master Servicers shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request to do so, or in case a Servicer Termination Event shall have occurred and be continuing, the Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 8.06 hereunder and no notice to Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required under Section 8.08. All co-trustee fees shall be payable out of the Trust Fund.

 

(b)       In the case of any appointment of a co-trustee or separate trustee pursuant to this Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to a Master Servicer or a Special Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or co-trustee at the direction of the Trustee.

 

(c)       Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of then-separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided

 

 -436-

 

 

therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such instrument shall be filed with the Trustee.

 

(d)       Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

 

(e)       The appointment of a co-trustee or separate trustee under this Section 8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.

 

Section 8.11       Appointment of Custodians. The Certificate Administrator is hereby appointed as the Custodian to hold all or a portion of the Mortgage Files. The Custodian shall be a depository institution subject to supervision by federal or state authority, shall have combined capital and surplus of at least $15,000,000 and shall be qualified to do business in the jurisdiction in which it holds any Mortgage File. The Custodian shall be subject to the same obligations and standard of care as would be imposed on the Certificate Administrator hereunder in connection with the retention of Mortgage Files directly by the Certificate Administrator. Upon termination or resignation of the Custodian, the Certificate Administrator may appoint another Custodian meeting the foregoing requirements. The appointment of one or more Custodians by the Certificate Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible for all acts and omissions of any Custodian other than the initial Custodian. Any Custodian appointed hereunder must maintain a fidelity bond and errors and omissions policy in an amount customary for Custodians which serve in such capacity in commercial mortgage loan securitization transactions, or may self-insure.

 

Section 8.12       Representations and Warranties of the Trustee. The Trustee hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder and the Certificate Administrator for the benefit of the Certificateholders, as of the Closing Date, that:

 

(i)        The Trustee is a national banking association, duly organized, validly existing and in good standing under the laws of the United States of America;

 

(ii)       The execution and delivery of this Agreement by the Trustee, and the performance and compliance with the terms of this Agreement by the Trustee, will not violate the Trustee’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

 

 -437-

 

 

(iii)      The Trustee has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)      This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Trustee, enforceable against the Trustee in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       The Trustee is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Trustee’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Trustee to perform its obligations under this Agreement;

 

(vi)      No litigation is pending or, to the best of the Trustee’s knowledge, threatened against the Trustee which would prohibit the Trustee from entering into this Agreement or, in the Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Trustee to perform its obligations under this Agreement; and

 

(vii)     No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Trustee, or compliance by the Trustee with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Trustee of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Trustee to perform its obligations hereunder

 

Section 8.13      Provision of Information to Certificate Administrator, Master Servicers and Special Servicers. The applicable Master Servicer shall promptly, upon request, provide the applicable Special Servicer and the Certificate Administrator with notice of any change in the identity and/or contact information of any Serviced Companion Noteholder (to the extent it receives written notice of such change). The Certificate Administrator, the Master Servicers and the Special Servicers may each conclusively rely on the information provided to them regarding identity and/or contact information regarding any Serviced Companion Noteholder, and the Certificate Administrator, the Master Servicers and the Special Servicers, as applicable, shall have no liability for notices not sent to the correct Serviced Companion Noteholders or any obligation to determine the identity and/or contact information of the Serviced Companion Noteholders to the extent updated or correct information regarding the

 

 -438-

 

 

holders of any of the Serviced Companion Noteholders or the most recent identity and/or contact information regarding any of the Serviced Companion Noteholders has not been provided to the Certificate Administrator, the Master Servicers or the Special Servicers, as applicable.

 

Section 8.14      Representations and Warranties of the Certificate Administrator. The Certificate Administrator hereby represents and warrants to the Depositor, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, each Serviced Companion Noteholder, and the Trustee, for the benefit of the Certificateholders, as of the Closing Date, that:

 

(i)        The Certificate Administrator is a national banking association duly organized under the laws of the United States of America, duly organized, validly existing and in good standing under the laws thereof;

 

(ii)       The execution and delivery of this Agreement by the Certificate Administrator, and the performance and compliance with the terms of this Agreement by the Certificate Administrator, will not violate the Certificate Administrator’s charter and by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets;

 

(iii)      The Certificate Administrator has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;

 

(iv)      This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Certificate Administrator, enforceable against the Certificate Administrator in accordance with the terms hereof, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of national banking associations specifically and (b) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;

 

(v)       The Certificate Administrator is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Certificate Administrator’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator;

 

(vi)      No litigation is pending or, to the best of the Certificate Administrator’s knowledge, threatened against the Certificate Administrator which would prohibit the Certificate Administrator from entering into this Agreement or, in the Certificate

 

 -439-

 

 

Administrator’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Certificate Administrator to perform its obligations under this Agreement or the financial condition of the Certificate Administrator; and

 

(vii)     No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Certificate Administrator, or compliance by the Certificate Administrator with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for any consent, approval, authorization or order which has not been obtained or cannot be obtained prior to the actual performance by the Certificate Administrator of its obligations under this Agreement, and which, if not obtained would not have a materially adverse effect on the ability of the Certificate Administrator to perform its obligations hereunder.

 

Section 8.15      Compliance with the PATRIOT Act.  In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), each of the Trustee, the Certificate Administrator, the Special Servicers and the Master Servicers is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee, the Certificate Administrator, the Special Servicers or the Master Servicers, as applicable, arising out of the Trust or this Agreement. Accordingly, each of the parties to this Agreement agrees to provide to the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer, upon its respective reasonable request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee, the Certificate Administrator, each Special Servicer and each Master Servicer to comply with Applicable Laws.

 

[End of Article VIII]

 

Article IX

TERMINATION

 

Section 9.01      Termination upon Repurchase or Liquidation of All Mortgage Loans.  Subject to this Section 9.01 and Section 9.02, the Trust and the respective obligations and responsibilities under this Agreement of the Certificate Administrator (other than the obligations of the Certificate Administrator to provide for and make payments to Certificateholders as hereafter set forth), the Depositor, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and the Trustee, shall terminate upon payment (or provision for payment) to the Certificateholders of all amounts held by the Certificate Administrator and required hereunder to be so paid on the Distribution Date following the earlier to occur of (i) the final payment (or related Advance) or other liquidation of the last Mortgage Loan and REO Property (as applicable) subject hereto, (ii) the purchase or other liquidation by the Holders of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, of all

 

 -440-

 

 

the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund at a price equal to (a) the sum of (1) the Termination Purchase Amount and (2) the reasonable out-of-pocket expenses of the Master Servicers and the Special Servicers with respect to such termination, unless the Master Servicer or the Special Servicer, as applicable, is the purchaser of such Mortgage Loans, minus (b) solely in the case where a Master Servicer is exercising such purchase right, the aggregate amount of unreimbursed Advances, together with any interest accrued and payable to the applicable Master Servicer in respect of such Advances in accordance with Section 3.03 and 4.03(d) and any unpaid Servicing Fees, remaining outstanding and payable solely to such Master Servicer (which items shall be deemed to have been paid or reimbursed to the applicable Master Servicer in connection with such purchase) or (iii) so long as the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests, are no longer outstanding, the voluntary exchange by the Sole Certificateholder of all the outstanding Certificates (other than the Class R Certificates and the RR Interest) and the payment or deemed payment by such exchanging party of the Termination Purchase Amount for the remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the terms of the immediately succeeding paragraph, of which (a) an amount equal to the product of (i) the Required Credit Risk Retention Percentage and (ii) the Termination Purchase Amount will be paid to the Holders of the RR Interest in exchange for the surrender of the RR Interest, and (b) an amount equal to the product of (i) the Non-Retained Percentage and (ii) the Termination Purchase Amount will be deemed paid to the Trust and deemed distributed to the Holder or Holders of then-outstanding Certificates (other than the RR Interest) in exchange for such Certificates; provided, however, that in no event shall the trust created hereby continue beyond the expiration of twenty-one (21) years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James’s, living on the date hereof. Upon termination of the Trust pursuant to clause (i) of the immediately preceding sentence, the Custodian shall release or cause to be released to the applicable Master Servicer, at its address provided in Section 13.05 of this Agreement or to such other address designated by such Master Servicer in writing, any Mortgage File remaining in its possession with respect to the Mortgage Loans serviced by such Master Servicer.

 

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests, are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of then-outstanding Certificates (other than the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of the Master Servicers, to exchange all of its Certificates (other than the Class R Certificates and the RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01 by giving written notice to all the parties hereto no later than sixty (60) days prior to the anticipated date of exchange. In the event that the Sole Certificateholder elects to exchange all of its Certificates (other than the Class R Certificates and the RR Interest) and pay the Termination Purchase Amount for all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall (i) remit for deposit in the Collection Account of the General Master Servicer an amount in

 

 -441-

 

 

immediately available funds equal to (a) the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount plus (b) all amounts due and owing to the Depositor, the Master Servicers, the Special Servicers, the Trustee and the Certificate Administrator hereunder through the date of the liquidation of the Trust that may be withdrawn from the Collection Account, or an escrow account acceptable to the respective parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the Distribution Account pursuant to Section 3.05(b), but only to the extent that such amounts are not already on deposit in the Collection Account, and (ii) be deemed to pay to the Trust (which amount shall be further deemed distributed to the Holders of all outstanding Certificates (other than the RR Interest)) an amount equal to the product of the Non-Retained Percentage and the Termination Purchase Amount. In addition, each Master Servicer shall transfer all amounts required to be transferred to the Lower-Tier REMIC Distribution Account and Excess Interest Distribution Account on the P&I Advance Date related to such Distribution Date in which the final distribution on the Certificates is to occur from the Collection Accounts pursuant to the first paragraph of Section 3.04(b) (provided, however, that if a Serviced Whole Loan is secured by REO Property, the portion of the above-described purchase price allocable to such Trust’s portion of REO Property shall initially be deposited into the related REO Account). Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Class R Certificates and the RR Interest) on the applicable Distribution Date, (i) the Certificate Administrator shall remit to the Holders of the RR Interest in immediately available funds an amount equal to the product of the Required Credit Risk Retention Percentage and the Termination Purchase Amount and (ii) the Custodian shall, upon receipt of a Request for Release from the Master Servicers, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund, and the Trust shall be liquidated in accordance with Section 9.02. Solely for federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of the Lower-Tier REMIC for an amount equal to the remaining Certificate Balance of the Principal Balance Certificates (other than the Exchangeable Certificates) and the Exchangeable Upper-Tier P&I Regular Interests, plus accrued, unpaid interest with respect thereto, and the Certificate Administrator shall credit such amounts against amounts distributable in respect of such Certificates, Exchangeable Upper-Tier P&I Regular Interests and Related Lower-Tier Regular Interests.

 

The obligations and responsibilities under this Agreement of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator and the Companion Paying Agent shall terminate with respect to any Companion Loan to the extent (i) its related Serviced Mortgage Loan has been paid in full or is no longer part of the Trust Fund and (ii) no amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the related Intercreditor Agreement remain due and owing.

 

The Holder of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer, or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property

 

 -442-

 

 

acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of this Section 9.01 by giving written notice to the Trustee, the Certificate Administrator, and the other parties hereto no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, either Special Servicer, either Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans as set forth in the Preliminary Statement (in order to make such determination, the General Master Servicer may, at any time, request that the NCB Master Servicer commence to periodically inform the General Master Servicer of the Stated Principal Balance of the NCB Mortgage Loans and, commencing upon such request of the General Master Servicer, the NCB Master Servicer shall inform the General Master Servicer (which may be through providing the General Master Servicer access to the NCB Master Servicer’s website) of the Stated Principal Balance of the NCB Mortgage Loans on a monthly basis, or at an accelerated interval as requested by the General Master Servicer of the NCB Master Servicer). This purchase shall terminate the Trust and retire then-outstanding Certificates. In the event that a Master Servicer or a Special Servicer purchases, or the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund in accordance with the preceding sentence, the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, shall deposit in the Lower-Tier REMIC Distribution Account not later than the P&I Advance Date relating to the Distribution Date on which the final distribution on the Certificates is to occur, an amount in immediately available funds equal to the above-described purchase price (exclusive of any portion thereof payable to any Person other than the Certificateholders pursuant to Section 3.05(a), which portion shall be deposited in the Collection Account of the General Master Servicer). In addition, each Master Servicer shall transfer to the Lower-Tier REMIC Distribution Account all amounts required to be transferred thereto on such P&I Advance Date from its Collection Account pursuant to the first paragraph of Section 3.04(b), together with any other amounts on deposit in its Collection Account that would otherwise be held for future distribution. Upon confirmation that such final deposits and payments have been made, the Custodian shall release or cause to be released to the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the applicable Master Servicer, the applicable Special Servicer, the Holder of the majority of the Controlling Class or the Holders of the Class R Certificates, as the case may be, as shall be necessary to effectuate transfer of the Mortgage Loans as assets of the Trust and REO Properties remaining in the Trust Fund. If the Holders of the majority of the Controlling Class, the General Special Servicer, the NCB Special Servicer (if not then NCB), the General Master Servicer or the NCB Master Servicer (if not then NCB) makes such an election, then NCB (so long as NCB is either the NCB Special Servicer or the NCB Master Servicer) will have the option, by giving written notice to the other parties hereto no later than 30 days prior to the anticipated date of purchase, to purchase all of the NCB Mortgage Loans and each related

 

 -443-

 

 

REO Property remaining in the Trust, and the other party will then have the option to purchase only the remaining Mortgage Loans and each related REO Property.

 

For purposes of this Section 9.01, the Holder of the majority of the Controlling Class shall have the first option to terminate the Upper-Tier REMIC and Lower-Tier REMIC, then the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, then the other Special Servicer, then the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, then the other Master Servicer, and then the Holders of the Class R Certificates. For purposes of this Section 9.01, the Directing Certificateholder with the consent of the Holders of the Controlling Class, shall act on behalf of the Holders of the Controlling Class in purchasing the assets of the Trust and terminating the Trust.

 

Notice of any termination pursuant to this Section 9.01 shall be given promptly by the Certificate Administrator by letter to the Certificateholders, each Serviced Companion Noteholder and the 17g-5 Information Provider in accordance with the provisions of Section 3.13(c) (who shall promptly post a copy of such additional notice on the 17g-5 Information Provider’s Website in accordance with the provisions of Section 3.13(c)) and, if not previously notified pursuant to this Section 9.01, to the other parties hereto mailed (a) in the event such notice is given in connection with the purchase of all of the Mortgage Loans is an asset of the Trust and each REO Property remaining in the Trust Fund, not earlier than the 15th day and not later than the 25th day of the month next preceding the month of the final distribution on the Certificates, or (b) otherwise during the month of such final distribution on or before the P&I Advance Determination Date in such month, in each case specifying (i) the Distribution Date upon which the Trust will terminate and final payment of the Certificates will be made, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Certificates at the offices of the Certificate Registrar or such other location therein designated.

 

After transferring the Lower-Tier Distribution Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges distributable to the Regular Certificates and the Exchangeable Certificates pursuant to Section 4.01(e) to the Upper-Tier REMIC Distribution Account, in each case pursuant to Section 3.04(b) and upon presentation and surrender of the Certificates by the Certificateholders on the final Distribution Date, the Certificate Administrator shall distribute to each Certificateholder so presenting and surrendering its Certificates (i) such Certificateholder’s Percentage Interest of that portion of the amounts then on deposit in the Upper-Tier REMIC Distribution Account that are allocable to payments on the Class of Certificates so presented, (ii) to the Holders of the Excess Interest Certificates or the RR Interest so presented, any amounts remaining on deposit in the Excess Interest Distribution Account, and (iii) any remaining amount shall be distributed to the Class R Certificates in respect of the Class LR Interest or the Class UR Interest, as applicable. Amounts transferred from the Lower-Tier REMIC Distribution Account to the Upper-Tier REMIC Distribution Account as of the final Distribution Date, shall be distributed in termination and liquidation of the Lower-Tier Regular Interests and the Class LR Interest in accordance with Sections 4.01(a), 4.01(b), 4.01(c), 4.01(e) and Section 4.01(f). Any funds not distributed on such Distribution Date shall be set aside and held uninvested in trust for the benefit of the Certificateholders not presenting and

 

 -444-

 

 

surrendering their Certificates in the aforesaid manner and shall be disposed of in accordance with this Section 9.01 and Section 4.01(h).

 

Section 9.02      Additional Termination Requirements.  (a) In the event the Master Servicer or the Special Servicer purchases, or the Holders of the Controlling Class or the Holders of the Class R Certificates purchase, all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund as provided in Section 9.01, the Upper-Tier REMIC and Lower-Tier REMIC, as applicable, shall be terminated in accordance with the following additional requirements, which meet the definition of a “qualified liquidation” in Section 860F(a)(4) of the Code:

 

(i)        the Certificate Administrator shall specify the date of adoption of the plan of complete liquidation (which shall be the date of mailing of the notice specified in Section 9.01) in a statement attached to each of the related Trust REMICs’ final Tax Returns pursuant to Treasury Regulations Section 1.860F-1;

 

(ii)       during the 90-day liquidation period and at or prior to the time of the making of the final payment on the Certificates, the Certificate Administrator on behalf of the Trustee shall sell all of the assets of the related Trust REMICs to the applicable Master Servicer, the applicable Special Servicer, the Holders of the Controlling Class or the Holders of the Class R Certificates, as applicable, for cash; and

 

(iii)      within such 90-day liquidation period and immediately following the making of the final payment on the Lower-Tier Regular Interests and the Certificates, the Certificate Administrator shall distribute or credit, or cause to be distributed or credited, to the Holders of the Class R Certificates in respect of the Class LR Interest (in the case of the Lower-Tier REMIC) and in respect of the Class UR Interest (in the case of the Upper-Tier REMIC) all cash on hand (other than cash retained to meet claims), and the Trust (if applicable) or the related Trust REMIC(s) shall terminate at that time.

 

[End of Article IX]

 

Article X

ADDITIONAL REMIC PROVISIONS

 

Section 10.01     REMIC Administration.  (a) The Certificate Administrator shall make elections or cause elections to be made to treat each Trust REMIC as a REMIC under the Code and, if necessary, under Applicable State and Local Tax Law. Each such election will be made on Form 1066 or other appropriate federal tax return for the taxable year ending on the last day of the calendar year in which the Lower-Tier Regular Interests and the Certificates are issued. For the purposes of the REMIC election in respect of the Upper-Tier REMIC, each Class of the Regular Certificates and each of the Exchangeable Upper-Tier Regular Interests shall be designated as the “regular interests” and the Class UR Interest shall be designated as the sole class of “residual interests” in the Upper-Tier REMIC. For purposes of the REMIC election in respect of the Lower-Tier REMIC, each Class of Lower-Tier Regular Interests shall be designated as a class of “regular interests” and the Class LR Interest shall be designated as the

 

 -445-

 

 

sole class of “residual interests” in the Lower-Tier REMIC. None of the Special Servicers, the Master Servicers or the Trustee shall permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any Trust REMIC other than the foregoing interests. The Certificate Administrator shall prepare or cause to be prepared and timely produced to the Trustee to sign (and the Trustee shall timely sign) and file or cause to be filed with the Internal Revenue Service, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such Trust REMIC on IRS Form SS-4 or obtain such number by other permissible means. The Certificate Administrator shall be responsible for the preparation of the related IRS Form W-9, if such form is requested. The Trustee shall be entitled to rely on the information contained therein, and is hereby directed to execute such IRS Form W-9; provided, however, the Certificate Administrator shall also be directed to execute such IRS Form W-9 (in lieu of the Trustee) if permitted by IRS regulations.

 

(b)       The Closing Date is hereby designated as the “startup day” (“Startup Day”) of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.

 

(c)       The Certificate Administrator shall act on behalf of each Trust REMIC in relation to any tax matter or controversy involving either such REMIC and shall represent each such REMIC in any administrative or judicial proceeding relating to an examination or audit by any governmental taxing authority with respect thereto. The legal expenses, including without limitation attorneys’ or accountants’ fees, and costs of any such proceeding and any liability resulting therefrom shall be expenses of the Trust and the Certificate Administrator shall be entitled to reimbursement therefor out of amounts attributable to the Mortgage Loans and any REO Properties on deposit in the Collection Accounts as provided by Section 3.05 unless such legal expenses and costs are incurred by reason of the Certificate Administrator’s willful misconduct, bad faith or negligence. The Certificate Administrator is hereby designated as the “partnership representative” (within the meaning of Section 6223 of the Code) of each Trust REMIC and shall perform all the functions thereof. By their acceptance thereof, the Holders of the Class R Certificates hereby agree to such designation.

 

(d)       The Certificate Administrator shall prepare or cause to be prepared and shall file, or cause to be filed, all of the Tax Returns that it determines are required with respect to each Trust REMIC created hereunder, and shall cause the Trustee to sign (and the Trustee shall timely sign) such Tax Returns in a timely manner. The ordinary expenses of preparing such returns shall be borne by the Certificate Administrator without any right of reimbursement therefor. The Certificate Administrator shall prepare or cause to be prepared, and file or cause to be filed with the IRS, on behalf of each of the Lower-Tier REMIC and the Upper-Tier REMIC, an application for a taxpayer identification number for such REMIC on IRS Form SS-4 or obtain such number by other permissible means.

 

(e)       The Certificate Administrator shall provide or cause to be provided (i) to any Transferor of a Class R Certificate such information as is necessary for the application of any tax relating to the transfer of such Class R Certificate to any Person who is a Disqualified Organization, or in the case of a Transfer to an agent thereof, to such agent, (ii) to the Certificateholders such information or reports as are required by the Code or the REMIC Provisions including reports relating to interest, original issue discount and market discount or premium (using the Prepayment Assumption) and (iii) to the Internal Revenue Service on Form

 

 -446-

 

 

8811, within thirty (30) days after the Closing Date, the name, title, address and telephone number of the “partnership representative” who will serve as the representative of each of the Trust REMICs created hereunder.

 

(f)        The Certificate Administrator shall take such actions and shall cause the Trust to take such actions as are reasonably within the Certificate Administrator’s control and the scope of its duties more specifically set forth herein as shall be necessary to maintain the status of each Trust REMIC as a REMIC under the REMIC Provisions and the Trustee shall assist the Certificate Administrator to the extent reasonably requested by the Certificate Administrator to do so. Neither the Master Servicers nor the Special Servicers shall knowingly or intentionally take any action, cause the Trust to take any action or fail to take (or fail to cause to be taken) any action reasonably within its control and the scope of duties more specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) cause any Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon any Trust REMIC or the Trust (including but not limited to the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but not including the tax on “net income from foreclosure property”) (either such event, an “Adverse REMIC Event”) unless the Certificate Administrator receives an Opinion of Counsel (at the expense of the party seeking to take such action or, if such party fails to pay such expense, and the Certificate Administrator determines that taking such action is in the best interest of the Trust and the Certificateholders, at the expense of the Trust, but in no event at the expense of the Certificate Administrator or the Trustee) to the effect that the contemplated action will not, with respect to the Trust, any Trust REMIC created hereunder, cause the loss of such status or, unless the Certificate Administrator determines in its sole discretion to indemnify the Trust against such tax, result in the imposition of such a tax (not including a tax on “net income from foreclosure property”). The Trustee shall not take or fail to take any action (whether or not authorized hereunder) as to which the Certificate Administrator has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action. The Certificate Administrator may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not expressly permitted by this Agreement, but in no event at the expense of the Certificate Administrator or the Trustee. At all times as may be required by the Code, the Certificate Administrator will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each Trust REMIC as “qualified mortgages” as defined in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.

 

(g)       In the event that any applicable federal, state or local tax, including interest, penalties or assessments, additional amounts or additions to tax, is imposed on any Trust REMIC, such tax shall be charged against amounts otherwise distributable to the Holders of the Certificates, except as provided in the last sentence of this Section 10.01(g); provided that with respect to the estimated amount of tax imposed on any “net income from foreclosure property” pursuant to Section 860G(c) of the Code or any similar tax imposed by a state or local tax authority, the applicable Special Servicer shall retain in the related REO Account a reserve for the payment of such taxes in such amounts and at such times as it shall deem appropriate (or as advised by the Certificate Administrator in writing), and shall remit to the applicable Master Servicer such reserved amounts as the applicable Master Servicer shall request in order to pay

 

 -447-

 

 

such taxes. Except as provided in the preceding sentence, the applicable Master Servicer shall withdraw from the applicable Collection Account sufficient funds to pay or provide for the payment of, and to actually pay, such tax as is estimated to be legally owed by any Trust REMIC (but such authorization shall not prevent the Certificate Administrator from contesting, at the expense of the Trust (other than as a consequence of a breach of its obligations under this Agreement), any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The Certificate Administrator is hereby authorized to and shall segregate, into a separate non-interest bearing account, the net income from any “prohibited transaction” under Section 860F(a) of the Code or the amount of any taxable contribution to any Trust REMIC after the Startup Day that is subject to tax under Section 860G(d) of the Code and use such income or amount, to the extent necessary, to pay such prohibited transactions tax. To the extent that any such tax (other than any such tax paid in respect of “net income from foreclosure property”) is paid to the Internal Revenue Service or applicable state or local tax authorities, the Certificate Administrator shall retain an equal amount from future amounts otherwise distributable to the Holders of Class R Certificates (as applicable) and shall distribute such retained amounts, (x) in the case of the Lower-Tier Regular Interests, to the Upper-Tier REMIC to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class LR Interest in the manner specified in Section 4.01(c), and (y) in the case of the Upper-Tier REMIC, to the Holders of the Principal Balance Certificates in the manner specified in Section 4.01(a) or Section 4.01(b), as applicable, to the extent they are fully reimbursed for any Realized Losses or Retained Certificate Realized Losses, as applicable, arising therefrom and then to the Holders of the Class R Certificates in respect of the Class UR Interest. None of the Trustee, the Certificate Administrator, the Master Servicers or the Special Servicers shall be responsible for any taxes imposed on any Trust REMIC except to the extent such taxes arise as a consequence of a breach of their respective obligations under this Agreement which breach constitutes willful misconduct, bad faith, or negligence by such party.

 

(h)       The Certificate Administrator shall, for federal income tax purposes, maintain or cause to be maintained books and records with respect to each Trust REMIC on a calendar year and on an accrual basis or as otherwise may be required by the REMIC Provisions.

 

(i)        Following the Startup Day, neither the Certificate Administrator nor the Trustee shall accept any contributions of assets to any Trust REMIC unless the Certificate Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make such contribution) to the effect that the inclusion of such assets in such Trust REMIC will not cause an Adverse REMIC Event.

 

(j)        Neither the Certificate Administrator nor the Trustee shall enter into any arrangement by which the Trust or any Trust REMIC will receive a fee or other compensation for services nor permit the Trust or any Trust REMIC to receive any income from assets other than “qualified mortgages” as defined in Section 860(a)(3) of the Code or “permitted investments” as defined in Section 860G(a)(5) of the Code.

 

(k)       Solely for the purposes of Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” by which the Certificate Balance or

 

 -448-

 

 

Notional Amount of each Class of Regular Certificates or Exchangeable Upper-Tier Regular Interests and by which the Lower-Tier Principal Amount of each Class of Lower-Tier Regular Interests would be reduced to zero is the date that is the Rated Final Distribution Date.

 

(l)        None of the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as applicable, shall sell, dispose of or substitute for any of the Mortgage Loans (except in connection with (i) the default, imminent default or foreclosure of a Mortgage Loan, including but not limited to, the acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust, (iii) the termination of the Trust pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or Article III of this Agreement) or acquire any assets for the Trust or any Trust REMIC or sell or dispose of any investments in the applicable Collection Account or the REO Account for gain unless it has received an Opinion of Counsel that such sale, disposition or substitution will not (a) affect adversely the status of any Trust REMIC as a REMIC or (b) unless the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, has determined in its sole discretion to indemnify the Trust against such tax, cause the Trust or any Trust REMIC to be subject to a tax on “prohibited transactions” pursuant to the REMIC Provisions.

 

(m)      The Certificate Administrator’s authority under this Agreement includes the authority to make, and the Certificate Administrator is hereby directed to make, any elections allowed under the Code (i) to avoid the application of Section 6221 of the Code (or successor provisions) to either Trust REMIC and (ii) to avoid payment by either Trust REMIC under Section 6225 of the Code (or successor provisions) of any tax, penalty, interest or other amount imposed under the Code that would otherwise be imposed on any Holder of a Class R Certificate, past or present. Each Holder of a Class R Certificate agrees, by acquiring such Certificate, to any such elections.

 

(n)      The Exchangeable Upper-Tier Regular Interests shall be held in the Grantor Trust and have been placed in the Grantor Trust through the efforts of the Underwriters. The Exchangeable Upper-Tier Regular Interests shall be held by the Certificate Administrator on behalf of the Trustee for the benefit of the Holders of the Exchangeable Certificates, which Exchangeable Certificates, in the aggregate, will evidence 100% beneficial ownership of such assets from and after the Closing Date. Each Class of Exchangeable Certificates shall represent an undivided beneficial ownership interest in the Corresponding Exchangeable Upper-Tier Regular Interests in an amount equal to the Class Percentage Interest of such Class in each such Corresponding Exchangeable Upper-Tier Regular Interest.

 

Section 10.02    Use of Agents.  (a) The Trustee shall execute all of its obligations and duties under this Article X through its Corporate Trust Office. The Trustee may execute any of its obligations and duties under this Article X either directly or by or through agents or attorneys. The Trustee shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents or attorneys.

 

(b)       The Certificate Administrator may execute any of its obligations and duties under this Article X either directly or by or through agents or attorneys. The Certificate

 

 -449-

 

 

Administrator shall not be relieved of any of its duties or obligations under this Article X by virtue of the appointment of any such agents or attorneys.

 

Section 10.03    Depositor, Master Servicers and Special Servicers to Cooperate with Certificate Administrator. (a) The Depositor shall provide or cause to be provided to the Certificate Administrator within ten (10) days after the Depositor receives a request from the Certificate Administrator, all information or data that the Certificate Administrator reasonably determines to be relevant for tax purposes as to the valuations and issue prices of the Certificates, including, without limitation, the price, yield, Prepayment Assumptions and projected cash flow of the Certificates.

 

(b)          The Master Servicers and the Special Servicers shall each furnish such reports, certifications and information, and upon reasonable notice and during normal business hours, access to such books and records maintained thereby, as may relate to the Certificates or the Trust and as shall be reasonably requested by the Certificate Administrator in order to enable it to perform its duties hereunder.

 

Section 10.04    Appointment of REMIC Administrators.  (a) The Certificate Administrator may appoint at the Certificate Administrator’s expense, one or more REMIC Administrators, which shall be authorized to act on behalf of the Certificate Administrator in performing the functions set forth in Section 10.01 herein. The Certificate Administrator shall cause any such REMIC Administrator to execute and deliver to the Certificate Administrator an instrument in which REMIC Administrator shall agree to act in such capacity, with the obligations and responsibilities herein. The appointment of a REMIC Administrator shall not relieve the Certificate Administrator from any of its obligations hereunder, and the Certificate Administrator shall remain responsible and liable for all acts and omissions of the REMIC Administrator. Each REMIC Administrator must be acceptable to the Certificate Administrator and must be organized and doing business under the laws of the United States of America or of any State and be subject to supervision or examination by federal or state authorities. In the absence of any other Person appointed in accordance herewith acting as REMIC Administrator, the Certificate Administrator hereby agrees to act in such capacity in accordance with the terms hereof. If Computershare Trust Company, N.A. is removed as Certificate Administrator, then Computershare Trust Company, N.A. shall be terminated as REMIC Administrator.

 

(b)       Any Person into which any REMIC Administrator may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion, or consolidation to which any REMIC Administrator shall be a party, or any Person succeeding to the corporate agency business of any REMIC Administrator, shall continue to be the REMIC Administrator without the execution or filing of any paper or any further act on the part of the Certificate Administrator or the REMIC Administrator.

 

(c)        Any REMIC Administrator may at any time resign by giving at least thirty (30) days’ advance written notice of resignation to the Trustee, the Certificate Registrar, the Certificate Administrator, the Master Servicers, the Special Servicers and the Depositor. The Certificate Administrator may at any time terminate the agency of any REMIC Administrator by giving written notice of termination to such REMIC Administrator, the Master Servicers, the Certificate Registrar and the Depositor. Upon receiving a notice of resignation or upon such a

 

 -450-

 

 

termination, or in case at any time any REMIC Administrator shall cease to be eligible in accordance with the provisions of this Section 10.04, the Certificate Administrator may appoint a successor REMIC Administrator, in which case the Certificate Administrator shall give written notice of such appointment to the Master Servicers, the Trustee and the Depositor and shall mail notice of such appointment to all Certificateholders; provided, however, that no successor REMIC Administrator shall be appointed unless eligible under the provisions of this Section 10.04. Any successor REMIC Administrator upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as REMIC Administrator. No REMIC Administrator shall have responsibility or liability for any action taken by it as such at the direction of the Certificate Administrator.

 

[End of Article X]

 

Article XI

EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE

 

Section 11.01     Intent of the Parties; Reasonableness.  The parties hereto acknowledge and agree that the purpose of Article XI of this Agreement is to facilitate compliance by the Depositor (and any Other Depositor of any Other Securitization that includes a Serviced Companion Loan) with the provisions of Regulation AB and the related rules and regulations of the Commission. The Depositor shall not exercise its rights to request delivery of information or other performance under these provisions other than in reasonable good faith, or for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder. The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, due to interpretive guidance provided by the Commission or its staff, and agree to comply with requests made by the Depositor (or any Other Depositor or Other Trustee of any Other Securitization that includes a Serviced Companion Loan) in good faith for delivery of information under these provisions on the basis of such evolving interpretations of Regulation AB (to the extent such interpretations require compliance and are not “grandfathered”). In connection with the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, and any Other Securitization subject to Regulation AB that includes a Serviced Companion Loan, each of the Master Servicers, the Special Servicers, the Operating Advisor, the Trustee, the Custodian and the Certificate Administrator shall cooperate fully with the Depositor and the Certificate Administrator, and any Other Depositor, Other Trustee and Other Certificate Administrator of any Other Securitization that includes a Serviced Companion Loan, as applicable, to deliver or make available to the Depositor or the Certificate Administrator, and any such Other Depositor, Other Trustee or Other Certificate Administrator, as applicable (including any of its assignees or designees), any and all statements, reports, certifications, records and any other information (in its possession or reasonably attainable) necessary in the reasonable good faith determination of the Depositor or such Other Depositor, as applicable, to permit the Depositor or such Other Depositor, as applicable, to comply with the provisions of Regulation AB, together with such disclosures relating to the Master Servicers, the Special Servicers, the Operating Advisor, the Trustee, the Custodian, the Asset Representations

 

 -451-

 

 

Reviewer and the Certificate Administrator, as applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans (and the related Serviced Companion Loan, if applicable), reasonably believed by the Depositor or the related Other Depositor to be necessary in order to effect such compliance. Each party to this Agreement shall have a reasonable period of time to comply with any written request made under this Section 11.01, but in any event, shall, upon reasonable advance written request, provide information in sufficient time to allow the Depositor and each Other Depositor to satisfy any related filing requirements. For purposes of this Article XI, to the extent any party has an obligation to exercise commercially reasonable efforts to cause a third party to perform, such party hereunder shall not be required to bring any legal action against such third party in connection with such obligation.

 

Section 11.02    Succession; Subcontractors.  (a) As a condition to the succession to either Master Servicer and either Special Servicer or to any Sub-Servicer (but only if such Sub-Servicer is a servicer as contemplated by Item 1108(a)(2)) as servicer or sub-servicer or succession to the Certificate Administrator under this Agreement by any Person (i) into which the applicable Master Servicer and the applicable Special Servicer, such Sub-Servicer or Certificate Administrator may be merged or consolidated, or (ii) which may be appointed as a successor to the applicable Master Servicer and the applicable Special Servicer or to any such Sub-Servicer or Certificate Administrator, the person removing and replacing a Master Servicer and a Special Servicer or Certificate Administrator shall provide to the Depositor, the Master Servicers, the Special Servicers, the Certificate Administrator and each Other Depositor (and Other Certificate Administrator, as applicable), at least fifteen (15) calendar days prior to the effective date of such succession or appointment (or such shorter period as is agreed to by the Depositor), (x) written notice to the Depositor, the Other Depositor and the Other Certificate Administrator of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor and the Other Depositor, all information relating to such successor reasonably requested by the Depositor, Other Depositor or Other Certificate Administrator in order to comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act); provided, however that if disclosing such information prior to such effective date would violate any applicable law or confidentiality agreement, the Master Servicers, the Special Servicers, any Additional Servicer or the Certificate Administrator, as the case may be, shall submit such disclosure to the Depositor and the Other Depositor no later than the effective date of such succession or appointment.

 

(b)       Each of the Master Servicers, the Special Servicers, the Sub-Servicer, the Trustee, the Operating Advisor and the Certificate Administrator (each of the Master Servicers, the Special Servicers, the Trustee, the Operating Advisor and the Certificate Administrator and each Sub-Servicer, for purposes of this Section 11.02, a “Servicer”) is permitted to utilize one or more Subcontractors to perform certain of its obligations hereunder. If such Subcontractor will be a Servicing Function Participant, such Servicer shall promptly upon written request provide to the Depositor or any Mortgage Loan Seller (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) a written description (in form and substance satisfactory to the Depositor, such Mortgage Loan Seller or such Other Trustee, Other Certificate Administrator or Other Depositor, as applicable) of the role and function of each Subcontractor utilized by such Servicer, specifying (i) the identity of such Subcontractor and (ii) the elements of the Servicing

 

 -452-

 

 

Criteria that will be addressed in assessments of compliance provided by each such Subcontractor. As a condition to the utilization by such Servicer of any Subcontractor determined to be a Servicing Function Participant, such Servicer shall (i) with respect to any such Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause, and (ii) with respect to any other subcontractor with which it has entered into a servicing relationship, cause such Subcontractor used by such Servicer for the benefit of the Depositor and the Trustee (and any Other Trustee, Other Certificate Administrator and Other Depositor related to any Other Securitization that includes a related Serviced Companion Loan) to comply with the provisions of Section 11.10 and Section 11.11 of this Agreement to the same extent as if such Subcontractor were such Servicer. With respect to any Servicing Function Participant engaged by such Servicer that is an Initial Sub-Servicer, such Servicer shall be responsible for using commercially reasonable efforts to obtain, and with respect to each other Servicing Function Participant engaged by such Servicer, such Servicer shall obtain from each such Servicing Function Participant and deliver to the applicable Persons any assessment of compliance report and related accountant’s attestation required to be delivered by such Subcontractor under Section 11.10 and Section 11.11, in each case, as and when required to be delivered. For the avoidance of doubt, the Custodian shall not be permitted to utilize any Subcontractor to perform any of its obligations hereunder.

 

(c)        Notwithstanding the foregoing, if a Servicer engages a Subcontractor, other than an Initial Sub-Servicer in connection with the performance of any of its duties under this Agreement, such Servicer shall be responsible for determining whether such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and whether any such Subcontractor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines, pursuant to the preceding sentence, that such Subcontractor is a “servicer” within the meaning of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a Sub-Servicer for purposes of this Agreement, the engagement of such Sub-Servicer shall not be effective unless and until notice is given to the Depositor and the Certificate Administrator of any such Sub-Servicer and Sub-Servicing Agreement. Other than with respect to the Initial Sub-Servicer, no Sub-Servicing Agreement shall be effective until fifteen (15) days after such written notice is received by the Depositor and the Certificate Administrator (or such shorter period as is agreed to by the Depositor). Such notice shall contain all information reasonably necessary to enable the Certificate Administrator to accurately and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

 

(d)       In connection with the succession to the Trustee under this Agreement by any Person (i) into which the Trustee may be merged or consolidated, or (ii) which may be appointed as a successor to the Trustee, the Trustee shall deliver written notice to the Depositor, the Certificate Administrator and the 17g-5 Information Provider, which shall promptly post such notice to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), in each case at least thirty (30) calendar days prior to the effective date of such succession or appointment (or if such prior notice is violative of applicable law or any applicable confidentiality agreement, no later than one (1) Business Day after such effective date of succession) and shall furnish to the Depositor and the Certificate Administrator, in writing and in form and substance reasonably satisfactory to the Depositor and the Certificate Administrator, all information reasonably

 

 -453-

 

 

necessary for the Certificate Administrator to accurately and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act are required to be filed under the Exchange Act).

 

(e)       Notwithstanding anything to the contrary contained in this Article XI, in connection with any Sub-Servicer and/or any Mortgage Loan that is the subject of an Initial Sub-Servicing Agreement, with respect to all matters related to Regulation AB, the applicable Master Servicer shall not have any obligation other than to use commercially reasonable efforts to cause such Sub-Servicer to comply with its obligations under such Initial Sub-Servicing Agreement.

 

(f)        Any notice and/or information furnished or required to be furnished pursuant to this Section 11.02 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the information relates to a party that services, specially services or is trustee for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.02.

 

Section 11.03     Filing Obligations.  (a) The Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Trustee shall reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06 and 11.07 of this Agreement, the Certificate Administrator shall prepare for execution by the Depositor any Forms 10-D, ABS-EE, 10-K and 8-K required by the Exchange Act, in order to permit the timely filing thereof, and the Certificate Administrator shall file (via the Commission’s Electronic Data Gathering and Retrieval System (“EDGAR”)) such Forms executed by the Depositor.

 

Each party hereto shall be entitled to rely on the information in the Prospectus or this Agreement with respect to the identity of any “sponsor”, credit enhancer, derivative provider or “significant obligor” as of the Closing Date other than with respect to itself or any information required to be provided by it or indemnified for by it pursuant to any separate agreement.

 

(b)       In the event that the Certificate Administrator is unable to timely file with the Commission all or any required portion of any Form 10-D, ABS-EE, 10-K or 8-K required to be filed by this Agreement because required disclosure information was either not delivered to it or delivered to it after the delivery deadlines set forth in this Agreement, the Certificate Administrator will promptly notify the Depositor. In the case of Forms 10-D, ABS-EE and 10-K, the Depositor, the Master Servicers, the Certificate Administrator, the Operating Advisor and the Trustee will thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A, Form ABS-EE/A or Form 10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Certificate Administrator will, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the next succeeding Form 10-D to be filed for the Trust. In the event that any previously filed Form 10-D, Form ABS-EE, Form 10-K or Form 8-K needs to be amended, the Certificate Administrator will notify the Depositor, and such other parties as needed and the parties hereto will cooperate with the Certificate Administrator to prepare any necessary Form 10-D/A, Form ABS-EE/A, Form 10-K/A or Form 8-K/A. Any Form 15, Form 12b-25 or any amendment to Form 10-D, Form ABS-EE, Form 10-K or Form 8-K shall be

 

 -454-

 

 

signed by an officer of the Depositor. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.03 related to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 10-D, Form ABS-EE, Form 10-K or Form 8-K is contingent upon the parties observing all applicable deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10, 11.11 and 11.15 of this Agreement. The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25 or any amendments to Form 10-D, Form ABS-EE, Form 10-K or Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 15, Form 12b-25 or any amendments to Form 10-D, Form ABS-EE, Form 10-K or Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.

 

Section 11.04    Form 10-D and Form ABS-EE Filings.  (a) Within fifteen (15) days after each Distribution Date (subject to permitted extensions under the Exchange Act), the Certificate Administrator shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act. The Certificate Administrator shall file each Form 10-D with a copy of the related Distribution Date Statement attached thereto. Any disclosure in addition to the Distribution Date Statement that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit BB to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure, absent such reporting, direction and approval.

 

For so long as the Trust is subject to the reporting requirements of the Exchange Act, as set forth on Exhibit BB hereto, within five (5) calendar days after the related Distribution Date, (i) certain parties to this Agreement identified on Exhibit BB hereto shall be required to provide to the Certificate Administrator and the Depositor (and in the case of any Servicing Function Participant, with a copy to the applicable Master Servicer), to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format, or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-D Disclosure, if applicable; provided that information relating to any REO Account to be reported under “Item 9: Other Information” on Exhibit BB shall be reported by the applicable Special Servicer to the applicable Master Servicer within four (4) calendar days after the related Distribution Date on Exhibit MM; (ii) the parties listed on Exhibit BB hereto shall include with such Additional Form 10-D Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit EE (except with respect to the reporting of REO Account balances which shall be delivered in the form of Exhibit MM hereto) and (iii) the Depositor shall approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com (or such other e-mail address as the Certificate Administrator may instruct) or by facsimile to 410-715-2380, Attn: CTS SEC Notifications. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the

 

 -455-

 

 

parties listed on Exhibit BB of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-D Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee or Certificate Administrator in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.

 

The Certificate Administrator shall include in any Form 10-D filed by it (i) the information required by Rule 15Ga-1(a) of the Exchange Act concerning all assets of the Trust that were subject of a demand for the repurchase of, or the substitution of a Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by Section 2.03(b), (ii) a reference to the most recent Form ABS-15G filed by the Depositor and the Mortgage Loan Sellers, if applicable, and the Commission’s assigned “Central Index Key” for each such filer and (iii) to the extent such information is provided to the Certificate Administrator by the applicable Master Servicer in the form of Exhibit MM hereto for inclusion therein within the time period described in this Section 11.04, the balances of the REO Account (to the extent the related information has been received from the applicable Special Servicer within the time period specified in this Section 11.04) and the Collection Accounts as of the related Distribution Date and as of the immediately preceding Distribution Date and (iv) the balances of the Distribution Accounts, the Gain-on-Sale Reserve Account and the Interest Reserve Account, in each case as of the related Distribution Date and as of the immediately preceding Distribution Date. The Depositor and the Mortgage Loan Sellers, in accordance with Section 5(f) of the applicable Mortgage Loan Purchase Agreement, shall deliver such information as described in clause (i) and clause (ii) of this paragraph.

 

Form 10-D requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator by email to cts.sec.notifications@wellsfargo.com, no later than the 5th calendar day after the related Distribution Date with respect to the filing of a report on Form 10-D if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

 

With respect to any Mortgage Loan that permits Additional Debt or mezzanine debt in the future, the Certificate Administrator shall include as part of any applicable Form 10-D filed by it (to the extent it receives such information from the applicable Servicer) the identity of such Mortgage Loan and, to the extent such information is received by the Certificate Administrator from the applicable Master Servicer or the applicable Special Servicer, as the case may be, substantially in the form of Exhibit KK (A) the amount of any such Additional Debt or mezzanine debt, as applicable, that is incurred during the related Collection Period, (B) the total debt service coverage ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable, and (C) the aggregate LTV Ratio calculated on the basis of such Mortgage Loan and such Additional Debt or mezzanine debt, as applicable.

 

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Form 10-D for each reporting

 -456-

 

period: Name: A.J. Sfarra, Telephone: (212) 214-5613. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

 

Upon receipt of the Asset Review Report Summary from the Asset Representations Reviewer required to be delivered pursuant to Section 12.01(b), the Certificate Administrator shall (i) include such Asset Review Report Summary in Item 1B on the Form 10-D in accordance with Section 11.04 for such period in which such Asset Review Report Summary was delivered, and (ii) post such Asset Review Report Summary to the Certificate Administrator’s Website not later than two (2) Business Days after receipt of such Asset Review Report Summary from the Asset Representations Reviewer.

 

To the extent the Certificate Administrator receives a request from any Certificateholder or Certificate Owner to communicate with other Certificateholders or Certificate Owners pursuant to Section 5.06, the Certificate Administrator shall include on the Form 10-D relating to the reporting period in which such request was received a Special Notice including the information required to be included pursuant to Section 5.06.

 

(b)       After preparing the Form 10-D, the Certificate Administrator shall forward electronically a copy of the Form 10-D to the Depositor for review no later than ten (10) calendar days after the related Distribution Date or, if the 10th calendar day after the related Distribution Date is not a Business Day, the immediately preceding Business Day. Within two (2) Business Days after receipt of such copy, but no later than the two (2) Business Days prior to the 15th calendar day after the Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-D and, a duly authorized officer of the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. Alternatively, if the Certificate Administrator agrees in its sole discretion, the Depositor may deliver to the Certificate Administrator manually signed copies of a power of attorney meeting the requirements of Item 601(b)(24) of Regulation S-K under the Securities Act, and certified copies of a resolution of the Depositor’s board of directors authorizing such power of attorney, each to be filed with each Form 10-D, in which case the Certificate Administrator shall sign such Forms 10-D as attorney in fact for the Depositor. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Certificate Administrator shall follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator shall make available on its Internet website a final executed copy of each Form 10-D filed by the Certificate Administrator. The signing party at the Depositor can be contacted at c/o Wells Fargo Securities, LLC, 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, with a copy to: Troy B. Stoddard, Esq., Senior Counsel, Wells Fargo Legal Department, D1086-341, 550 South Tryon Street, 34th Floor, Charlotte, North Carolina 28202. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.04(b) related to the timely preparation and filing of Form 10-D is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.04(b). Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, or claim arising out of or with respect to any

 

 -457-

 

failure to properly prepare, arrange for execution and/or timely file such Form 10-D, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from any party to this Agreement needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct.

 

(c)       Prior to the filing of each Form 10-D by the Certificate Administrator pursuant to Section 11.04(a), the Certificate Administrator shall prepare and file on behalf of the Trust any Form ABS-EE in form and substance as required by the Exchange Act and the rules and regulations of the Commission thereunder; provided that the foregoing shall not apply to any Form ABS-EE required to be filed with the Commission and incorporated by reference in either the Preliminary Prospectus or the Prospectus. The Certificate Administrator shall file each Form ABS-EE with a copy of the related CREFC^® Schedule AL File received by the Certificate Administrator pursuant to Section 3.12(d) as Exhibit 102 thereto. To the extent the Certificate Administrator receives any Schedule AL Additional File with respect to such Form ABS-EE pursuant to Section 3.12(d), the Certificate Administrator shall file such Schedule AL Additional File as Exhibit 103 to such Form ABS-EE. The Certificate Administrator shall not be required to combine multiple CREFC^® Schedule AL Files or Schedule AL Additional Files. The Certificate Administrator shall not be required to review, redact, reconcile, edit or verify the content, completeness or accuracy of the information contained in any CREFC^® Schedule AL File or Schedule AL Additional File. After preparing the Form ABS-EE, the Certificate Administrator shall forward electronically a copy of such Form ABS-EE (together with the related CREFC^® Schedule AL File and any Schedule AL Additional File received by the Certificate Administrator in both XML format and tabular form) concurrently with the related Form 10-D to the Depositor for review and approval. Any questions shall be directed to ssreports@wellsfargo.com (or such other email address as is provided); provided, however, that if any such question pertains to information included in any NCB CREFC^® Schedule AL File or NCB Schedule AL Additional File delivered by the NCB Master Servicer to the General Master Servicer pursuant to Section 3.12(d), the General Master Servicer shall promptly provide a copy of such question to the NCB Master Servicer (via email at BANK2021BNK37@ncb.com) and consult with the NCB Master Servicer as to any response thereto. The General Master Servicer shall reasonably cooperate with the Depositor to answer any reasonable questions that the Depositor may pose to such Master Servicer regarding the data or information contained in any CREFC^® Schedule AL File or Schedule AL Additional File (other than questions regarding data that is in the Initial Schedule AL File, Initial Schedule AL Additional File or the Annex A-1 to the Prospectus) as of the time the Master Servicer delivered such CREFC^® Schedule AL File or Schedule AL Additional File, as applicable, to the Certificate Administrator. The Certificate Administrator, the General Master Servicer, the NCB Master Servicer and the Depositor shall each, to the extent related to such party’s obligations hereunder, reasonably cooperate to remedy any filing errors regarding any CREFC^® Schedule AL File or any Schedule AL Additional File in a timely manner.

 

Within two (2) Business Days after receipt of the copy of Form ABS-EE for review, but no later than the two (2) Business Days prior to the 15th calendar day after the Distribution Date, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form ABS-EE, and a duly authorized officer of the Depositor shall sign the Form ABS-EE and return an electronic or fax copy of such signed Form ABS-EE (with an original executed hard copy to follow by overnight

 

 -458-

 

 

mail) to the Certificate Administrator. The Certificate Administrator shall file such Form ABS-EE, upon receipt of the Depositor’s signature thereof, prior to the filing of the related Form 10-D. If a Form ABS-EE cannot be filed on time or if a previously filed Form ABS-EE needs to be amended, the Certificate Administrator shall follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator shall, pursuant to Section 3.13(b), make available on the Certificate Administrator’s website a final executed copy of each Form ABS-EE (together with the related CREFC® Schedule AL File and any Schedule AL Additional File received by the Certificate Administrator) filed by the Certificate Administrator. The signing party at the Depositor can be contacted at c/o Wells Fargo Securities, LLC, 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, with a copy to: Troy B. Stoddard, Esq., Senior Counsel, Wells Fargo Legal Department, D1086-341, 550 South Tryon Street, 34th Floor, Charlotte, North Carolina 28202. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.04(c) related to the timely preparation and filing of Form ABS-EE is contingent upon the responsible parties observing all applicable deadlines in the performance of their duties under this Section 11.04(c). The Certificate Administrator shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare or file such Form ABS-EE where such failure results from the Certificate Administrator’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form ABS-EE, not resulting from its own negligence, bad faith or willful misconduct.

 

The Depositor hereby directs the Certificate Administrator to include the following individual’s name and phone number on the cover of Form ABS-EE for each reporting period: Name: A.J. Sfarra, Telephone: (212) 214-5613. The Certificate Administrator may rely without further investigation that this information remains correct unless and until the Depositor provides the Certificate Administrator with a new individual’s name and phone number in writing.

 

(d)       Any notice and/or information furnished or required to be furnished pursuant to this Section 11.04 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.04.

 

Section 11.05    Form 10-K Filings. (a) Within ninety (90) days after the end of each fiscal year of the Trust (it being understood that the fiscal year for the Trust ends on December 31 of each year) or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”), commencing in March 2022, the Certificate Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act. Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Certificate Administrator within the applicable time frames set forth in this Agreement:

 

(i)         an annual compliance statement for the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Custodian and each Additional

 

 -459-

 

 

Servicer, as described under Section 11.09, including disclosure regarding any material instance of noncompliance and the nature and status thereof;

 

(ii)        (A) the annual reports on assessment of compliance with servicing criteria for the Trustee, the Master Servicers, the Special Servicers, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each other Servicing Function Participant utilized by the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Custodian or Trustee, as described under Section 11.10; and

 

(B)       if any such report on assessment of compliance with servicing criteria described under Section 11.10 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance (including whether such instance of noncompliance involved the servicing of the assets backing the Certificates issued pursuant to this Agreement and any steps taken to remedy such instance of noncompliance), or if such report on assessment of compliance with servicing criteria described under Section 11.10 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included;

 

(iii)         (A) the registered public accounting firm attestation report for the Trustee, the Master Servicers, the Special Servicers, the Certificate Administrator, the Custodian, the Operating Advisor, each Additional Servicer and each Servicing Function Participant utilized by the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Custodian or the Trustee, as described under Section 11.11; and

 

(B)       if any registered public accounting firm attestation report described under Section 11.11 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation why such report is not included; and

 

(iv)      a certification in the form attached hereto as Exhibit Y, with such changes as may be necessary or appropriate as a result of changes promulgated by the Commission (the “Sarbanes-Oxley Certification”), which shall, except as described below, be signed by the senior officer of the Depositor in charge of securitization.

 

Any disclosure or information in addition to clauses (i) through (iv) above that is required to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit CC to the Depositor and the Certificate Administrator and approved by the Depositor and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure, absent such reporting, direction and approval. Information delivered to the Certificate Administrator hereunder should be delivered (i) by email to cts.sec.notifications@wellsfargo.com or by facsimile to (410) 715-2380, Attn: CTS SEC Notifications and also (ii) by email to Form10k.Compliance@cwt.com.

 

 -460-

 

 

 

As set forth on Exhibit CC hereto, no later than March 1st of each year that the Trust is subject to the Exchange Act reporting requirements, commencing in 2022, (i) the parties listed on Exhibit CC shall be required to provide to the Certificate Administrator and the Depositor, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format as otherwise agreed upon by the Certificate Administrator, the Depositor and such providing parties, the form and substance of any Additional Form 10-K Disclosure, if applicable, (ii) the parties listed on Exhibit CC hereto shall include with such Additional Form 10-K Disclosure, an Additional Disclosure Notification in the form attached hereto as Exhibit EE and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K.  Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit CC of their duties under this paragraph or proactively solicit or procure from such parties any Additional Form 10-K Disclosure information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.

 

Form 10-K requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding twelve (12) months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past ninety (90) days.” The Depositor shall notify the Certificate Administrator in writing, no later than March 1st with respect to the filing of a report on Form 10-K, if the answer to the questions should be “no.” The Certificate Administrator shall be entitled to rely on such representations in preparing, executing and/or filing any such report.

 

(b)       After preparing the Form 10-K, the Certificate Administrator shall forward electronically a copy of the Form 10-K to the Depositor for review no later than six (6) Business Days prior to the 10-K Filing Deadline. Within three (3) Business Days after receipt of such copy, but no later than March 25th, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 10-K and the senior officer in charge of securitization for the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator at such time. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Certificate Administrator shall follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will make available on its Internet website a final executed copy of each Form 10-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at c/o Wells Fargo Securities, LLC, 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, with a copy to: Troy B. Stoddard, Esq., Senior Counsel, Wells Fargo Legal Department, D1086-341, 550 South Tryon Street, 34th Floor, Charlotte, North Carolina 28202. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.05 related to the timely preparation and filing of Form 10-K is contingent upon the parties to this Agreement (and any Additional Servicer or Servicing Function Participant engaged or utilized, as applicable, by any such parties) observing all applicable deadlines in the performance of their duties under this

 

 -461-

 

 

Section 11.05.  Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 10-K, where such failure results from the Certificate Administrator’s failure to receive, on a timely basis, any information from the parties to this Agreement (or any Sub-Servicer or Servicing Function Participant engaged by any such parties) needed to prepare, arrange for execution or file such Form 10-K, not resulting from its own negligence, bad faith or willful misconduct.

 

(c)       Upon written request from any Mortgage Loan Seller, Other Depositor, either Master Servicer or either Special Servicer, the Certificate Administrator shall confirm to such Mortgage Loan Seller, Other Depositor, Master Servicer or Special Servicer whether it has received notice that any party to this Agreement has changed since the Closing Date and will provide to such Mortgage Loan Seller or Other Depositor, the applicable Master Servicer or the applicable Special Servicer, if known to the Certificate Administrator, the identity of the new party.

  

(d)      Any notice and/or information furnished or required to be furnished pursuant to this Section 11.05 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.05.

 

Section 11.06 Sarbanes-Oxley Certification.  Each Form 10-K shall include a Sarbanes-Oxley Certification in the form attached as Exhibit Y required to be included therewith pursuant to the Sarbanes-Oxley Act. For so long as the Trust or the trust for any Other Securitization is subject to the reporting requirements of the Exchange Act, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer (in the case of the Asset Representations Reviewer, solely with respect to reporting periods in which the Asset Representations Reviewer is required to deliver an Asset Review Report) shall provide, and (i) with respect to each Initial Sub-Servicer engaged by the applicable Master Servicer or the applicable Special Servicer, as the case may be, that is a Servicing Function Participant shall use commercially reasonable efforts to cause such Initial Sub-Servicer to provide, and (ii) with respect to each other Servicing Function Participant with which either Master Servicer, either Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans, shall cause such Servicing Function Participant to provide, to each Person who signs the Sarbanes-Oxley Certification for the Trust or any Other Securitization that includes a Serviced Companion Loan (individually and collectively, the “Certifying Person”), on or before March 1st of each year commencing in March 2022, a certification substantially in the form attached hereto as Exhibits Z-1, Z-2, Z-3, Z-4, Z-5, Z-6 or Z-7 (each, a “Performance Certification”), as applicable, on which each Certifying Person, the entity for which such Certifying Person acts as an officer (if the Certifying Person is an individual), and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely; provided that, if a Servicing Function Participant (other than an Initial Sub-Servicer) with which the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor has entered into a servicing relationship with respect to the Mortgage Loans

 

 -462-

 

 

fails to provide a Performance Certification, the Performance Certification provided by the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor, as applicable, that engaged such Servicing Function Participant shall not exclude information that would have been provided by such Servicing Function Participant. In addition, in the event that any Companion Loan (other than a Non-Serviced Companion Loan) is deposited into a commercial mortgage securitization (an “Other Securitization”) and the Reporting Servicer is provided with timely and complete contact information for the parties to such Other Securitization, each Reporting Servicer, upon not less than thirty (30) days prior written request, shall provide to the Person who signs the Sarbanes-Oxley Certification with respect to such Other Securitization either the Performance Certification or a separate certification in form and substance similar to applicable Performance Certification (which shall address the matters contained in the applicable Performance Certification, but solely with respect to the related Companion Loan) on which such Person, the entity for which the Person acts as an officer (if the Person is an individual), and such entity’s officers, directors and Affiliates can reasonably rely. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure a Sarbanes-Oxley Certification from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to a Performance Certification. The senior officer in charge of securitization for the Depositor shall serve as the Certifying Person on behalf of the Trust. In addition, each Reporting Servicer shall execute a reasonable reliance certificate (which may be included as part of such other certifications being delivered by such Reporting Servicer) to enable the Certification Parties to rely upon each (i) annual compliance statement provided pursuant to Section 11.09, if applicable, (ii) annual report on assessment of compliance with servicing criteria provided pursuant to Section 11.10 and (iii) accountant’s report provided pursuant to Section 11.11, and shall include a certification that each such annual compliance statement or report discloses any deficiencies or defaults described to the registered public accountants of such Reporting Servicer to enable such accountants to render the certificates provided for in Section 11.11. In the event any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a certification to each affected Certifying Person pursuant to this Section 11.06 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be. Each such Performance Certification shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator, any affected Other Depositor and Other Certificate Administrator and such providing parties. Notwithstanding the foregoing, nothing in this Section 11.06 shall require any Reporting Servicer (i) to certify or verify the accurateness or completeness of any information provided to such Reporting Servicer by third parties (including a “significant obligor”, but other than an Additional Servicer or a Sub-Servicer appointed pursuant to Section 3.20), (ii) to certify information other than to such Reporting Servicer’s knowledge and in accordance with such Reporting Servicer’s responsibilities hereunder or (iii) with respect to completeness of information and reports, to certify anything other than that all fields of information called for in written reports prepared by such Reporting Servicer have been completed except as they have been left blank on their face.

 

Notwithstanding anything to the contrary contained in this Section 11.06, with respect to each year in which the Trust and the trust for each Other Securitization is not subject

 

 -463-

 

 

to the reporting requirements of the Exchange Act, none of the parties required to deliver any certification under this Section 11.06 shall be obligated to do so.

 

Section 11.07 Form 8-K Filings. Within four (4) Business Days after the occurrence of an event requiring disclosure on Form 8-K (each such event, a “Reportable Event”), and if requested by the Depositor and to the extent it receives the Form 8-K Disclosure Information described below, the Certificate Administrator shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act and shall provide notice thereof to Form10K.Compliance@cwt.com, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates. Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the following paragraph be reported by the parties set forth on Exhibit DD to the Depositor and the Certificate Administrator and approved by the Depositor, and the Certificate Administrator will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information or any Form 8-K, absent such reporting, direction and approval.

 

As set forth on Exhibit DD hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than close of business, New York City time, on the 2nd Business Day after the occurrence of a Reportable Event (i) the parties set forth on Exhibit DD hereto shall be required to provide to the Depositor and the Certificate Administrator, to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties any Form 8-K Disclosure Information, if applicable, (ii) the parties listed on Exhibit DD hereto shall include with such Form 8-K Disclosure Information, an Additional Disclosure Notification in the form attached hereto as Exhibit EE and (iii) the Depositor will approve, as to form and substance, or disapprove, as the case may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. Neither the Trustee nor the Certificate Administrator has any duty under this Agreement to monitor or enforce the performance by the parties listed on Exhibit DD of their duties under this paragraph or proactively solicit or procure from such parties any Form 8-K Disclosure Information. The Depositor will be responsible for any reasonable expenses incurred by the Trustee and the Certificate Administrator in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph. Information delivered to the Certificate Administrator hereunder should be delivered by email to cts.sec.notifications@wellsfargo.com or by facsimile to 410-715-2380, Attn: CTS SEC Notifications.

 

After preparing the Form 8-K, the Certificate Administrator shall forward electronically a copy of the Form 8-K to the Depositor for review no later than noon, New York City time, on the 3rd Business Day after the Reportable Event, but in no event earlier than 24 hours after having received the Form 8-K Disclosure Information pursuant to the immediately preceding paragraph. Promptly, but no later than the close of business on the 3rd Business Day after the Reportable Event, the Depositor shall notify the Certificate Administrator in writing (which may be furnished electronically) of any changes to or approval of such Form 8-K. No later than noon, New York City time, on the 4th Business Day after the Reportable Event, a duly authorized officer of the Depositor shall sign the Form 8-K and return an electronic or fax copy

 

 -464-

 

 

of such signed Form 8-K (with an original executed hard copy to follow by overnight mail) to the Certificate Administrator. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Certificate Administrator will follow the procedures set forth in Section 11.03(b). Promptly after filing with the Commission, the Certificate Administrator will, make available on its Internet website a final executed copy of each Form 8-K filed by the Certificate Administrator. The signing party at the Depositor can be contacted at c/o Wells Fargo Securities, LLC, 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, with a copy to: Troy B. Stoddard, Esq., Senior Counsel, Wells Fargo Legal Department, D1086-341, 550 South Tryon Street, 34th Floor, Charlotte, North Carolina 28202. The parties to this Agreement acknowledge that the performance by the Certificate Administrator of its duties under this Section 11.07 related to the timely preparation and filing of Form 8-K is contingent upon such parties observing all applicable deadlines in the performance of their duties under this Section 11.07.  Neither the Trustee nor the Certificate Administrator shall have any liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution and/or timely file such Form 8-K, where such failure results from the Certificate Administrator’s inability or failure to receive, on a timely basis, any information from the parties to this Agreement needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.

 

The Master Servicers, the Special Servicers, the Certificate Administrator and the Trustee shall promptly notify (and the applicable Master Servicer and the applicable Special Servicer, as the case may be, shall (i) with respect to each Initial Sub-Servicer that is an Additional Servicer engaged by such Master Servicer or such Special Servicer, as applicable, use commercially reasonable efforts to cause such Additional Servicer to promptly notify and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement) cause such Additional Servicer to promptly notify) the Depositor and the Certificate Administrator, but in no event later than noon, New York City time, on the 2nd Business Day after its occurrence, of any Reportable Event applicable to such party to the extent a Regulation AB Servicing Officer or Responsible Officer, as the case may be, has actual knowledge, in EDGAR-Compatible Format.

 

Notwithstanding anything to the contrary in this Section 11.07, with respect to each year in which the Trust and the trust for each Other Securitization is not subject to the reporting requirements of the Exchange Act, none of the parties hereto are required to deliver Form 8-K Disclosure Information.

 

Any notice and/or information furnished or required to be furnished pursuant to this Section 11.07 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.07.

 

For so long as the Trust is subject to the reporting obligations of the Exchange Act, with respect to any Non-Serviced Mortgage Loan serviced under a related Non-Serviced PSA, no resignation, removal or replacement of any party to such Non-Serviced PSA that would be required to be reported on a Form 8-K relating to this Trust shall become effective with

 

 -465-

 

 

respect to this Trust until the Certificate Administrator has filed any required Form 8-K pursuant to this Section 11.07.

 

Section 11.08 Form 15 Filing. On or prior to January 30th of the first year in which the Depositor shall provide notice to the Certificate Administrator of its ability under applicable law to suspend its Exchange Act filings, the Certificate Administrator shall prepare and file a notification relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act (the “Form 15 Suspension Notification”) or any form necessary to be filed with the Commission to suspend such reporting obligations. With respect to any reporting period occurring after the filing of such form, subject to Section 11.15(h), the obligations of the parties to this Agreement under Section 11.04, Section 11.05 and Section 11.07 shall be suspended and reports or certifications due under Section 11.09, 11.10 and 11.11 shall not be due until April 15th of each year. The Certificate Administrator shall provide prompt notice to the Mortgage Loan Sellers and all other parties hereto that such form has been filed. If, after the filing of a Form 15 Suspension Notification, the Depositor shall provide notice to the Certificate Administrator that it is required to resume its Exchange Act filings, the Certificate Administrator shall recommence preparing and filing reports on Forms 10-D, ABS-EE, 10-K and 8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07, and all parties’ obligations under this Article XI shall recommence.

 

Section 11.09  Annual Compliance Statements. The Master Servicers, the Special Servicers (regardless of whether the applicable Special Servicer has commenced special servicing of a Mortgage Loan), the Custodian, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it) and the Certificate Administrator (each, a “Certifying Servicer”) shall (and each such party shall (i) with respect to each Additional Servicer engaged by the Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer to deliver to and (ii) with respect to each other Additional Servicer that is also a Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to deliver to), on or before March 1st of each year, commencing in March 2022, deliver to the Trustee, the Certificate Administrator (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website), the Depositor and the 17g-5 Information Provider (who shall post to the 17g-5 Information Provider’s Website), an Officer’s Certificate, in the form attached hereto as Exhibit HH (or such other form, similar in substance, as may be reasonably acceptable to the Depositor) stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer has fulfilled all its obligations under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof. Such Officer’s Certificate shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and such providing parties. Each Certifying Servicer

 

 -466-

 

 

shall (i) with respect to each Additional Servicer engaged by such Certifying Servicer that is an Initial Sub-Servicer, use commercially reasonable efforts to cause such Additional Servicer, and (ii) with respect to each other Additional Servicer with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Additional Servicer to forward a copy of each such statement (or, in the case of the Certificate Administrator, make a copy of each such statement available on its Internet website) to the Directing Certificateholder and the 17g-5 Information Provider. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such Officer’s Certificate from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit HH. Promptly after receipt of each such Officer’s Certificate, the Depositor may review each such Officer’s Certificate and, if applicable, consult with the Certifying Servicer as to the nature of any failures by the Certifying Servicer or any related Additional Servicer with which the Certifying Servicer has entered into a servicing relationship with respect to the Mortgage Loans in the fulfillment of any of the Certifying Servicer’s or Additional Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement. The obligations of the Certifying Servicer and each Additional Servicer under this Section 11.09 apply to the Certifying Servicer and each Additional Servicer that serviced a Mortgage Loan during the applicable period, whether or not such Certifying Servicer or Additional Servicer is acting as a Master Servicer, a Special Servicer, the Trustee, the Certificate Administrator or Additional Servicer at the time such Officer’s Certificate is required to be delivered. None of the Master Servicers, Special Servicers or Additional Servicer shall be required to cause the delivery of any such statement until April 15 in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

 

In the event either Master Servicer, either Special Servicer, the Trustee or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer to provide and (ii) with respect to any other Additional Servicer engaged by such party that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide, an annual statement of compliance pursuant to this Section 11.09 with respect to the period of time that the applicable Master Servicer, the applicable Special Servicer, the Trustee or the Certificate Administrator was subject to this Agreement or the period of time that such Additional Servicer was subject to such other servicing agreement.

 

Any certificate, statement, report, notice and/or information furnished or required to be furnished pursuant to this Section 11.09 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.09.

 

 -467-

 

 

Section 11.10  Annual Reports on Assessment of Compliance with Servicing Criteria.  (a) On or before March 1st of each year, commencing in March 2022, the Master Servicers, the Special Servicers (regardless of whether either Special Servicer has commenced special servicing of the Mortgage Loans), the Trustee (provided, however, that the Trustee shall be required to deliver an assessment of compliance only if an Advance was made by the Trustee in such calendar year), the Custodian, the Operating Advisor, the Certificate Administrator and each Additional Servicer, each at its own expense, shall furnish (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by a Master Servicer, a Special Servicer, the Trustee, the Operating Advisor, the Custodian, or the Certificate Administrator that is a Servicing Function Participant, use commercially reasonable efforts to cause such Servicing Function Participant to furnish and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to furnish) to the Trustee, the Certificate Administrator, the Depositor (which copy shall be deemed furnished by the Certificate Administrator when made available on its Internet website) (and, with respect to the Special Servicers, also to the Operating Advisor), and the 17g-5 Information Provider, a report substantially in the form of Exhibit II or such other form provided by such Reporting Servicer that complies in all material respects with the requirements of Item 1122 of Regulation AB, on an assessment of compliance with the Servicing Criteria applicable to it that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Relevant Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 11.05, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance similar to the form attached hereto as Exhibit II. Such report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the Reporting Servicer.

 

Each such report shall be addressed to the Depositor and signed by an authorized officer of the applicable company, and shall address the Relevant Servicing Criteria specified on a certification substantially in the form of Exhibit AA hereto delivered to the Depositor on the Closing Date. Promptly after receipt of each such report, (i) the Depositor may review each such report and, if applicable, consult with each Reporting Servicer as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria applicable to it (and each Servicing Function Participant engaged or utilized by each Reporting Servicer, as applicable), and (ii) the Certificate Administrator shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Exhibit AA and notify the Depositor of any exceptions. None of the Master Servicers, the Special Servicers, the Certificate Administrator, the Trustee, the Operating Advisor or any Servicing Function Participant shall be required to cause the delivery of any such assessments until April 15th in any given year so long as it has received written confirmation from the Depositor (or, in the case of an Other

 

 -468-

 

 

Securitization, the related Other Depositor) that a report on Form 10-K is not required to be filed in respect of the Trust or the trust for any Other Securitization for the preceding calendar year.

 

Notwithstanding the foregoing, at any time that the Certificate Administrator and the Trustee are the same entity, the Certificate Administrator and Trustee may provide a combined assessment of compliance required pursuant to this Section 11.10(a) in respect of their combined Relevant Servicing Criteria as set forth on Exhibit AA hereto.

 

(b)       The Master Servicers, the Special Servicers, the Trustee, the Operating Advisor and the Certificate Administrator hereby acknowledge and agree that the Relevant Servicing Criteria set forth on Exhibit AA is appropriately set forth with respect to such party and any Servicing Function Participant with which the Master Servicers, Special Servicers, Trustee, Operating Advisor or Certificate Administrator has entered into a servicing relationship.

  

(c)       No later than ten (10) Business Days after the end of each fiscal year for the Trust, either Master Servicer and either Special Servicer shall notify the Certificate Administrator, the Depositor and each Mortgage Loan Seller as to the name of each Additional Servicer engaged by it and each Servicing Function Participant utilized by it, in each case other than with respect to any Initial Sub-Servicer, and the Trustee, the Operating Advisor and the Certificate Administrator shall notify the Depositor and each Mortgage Loan Seller as to the name of each Servicing Function Participant utilized by it, in each case by providing an updated Exhibit GG, and each such notice (except to a Mortgage Loan Seller) will specify what specific Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant. When the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator and the Operating Advisor submit their assessments pursuant to Section 11.10(a), the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator and the Operating Advisor, as applicable, will also at such time include the assessment (and related attestation pursuant to Section 11.11) of each Servicing Function Participant engaged by it.

 

In the event the Master Servicers, the Special Servicers, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator is terminated or resigns pursuant to the terms of this Agreement, such party shall provide, and each such party shall cause any Servicing Function Participant engaged by it to provide (and each of the applicable Master Servicer and the applicable Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such Master Servicer or Special Servicer that is an Additional Servicer that resigns or is terminated under any applicable servicing agreement, use its reasonable efforts to cause such Additional Servicer and (ii) with respect to any other Additional Servicer that resigns or is terminated under any applicable servicing agreement, cause such Additional Servicer to provide) an annual assessment of compliance pursuant to this Section 11.10, coupled with an attestation as required in Section 11.11 with respect to the period of time that the Master Servicers, the Special Servicers, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator was subject to this Agreement or the period of time that the Additional Servicer was subject to such other servicing agreement.

 

(d)      The Operating Advisor may at any time request from the Certificate Administrator confirmation of whether a Control Termination

 

 -469-

 

 

Event or Consultation Termination Event occurred during the previous calendar year, and upon such request the Certificate Administrator shall deliver such confirmation to the Operating Advisor within fifteen (15) days of such request.

 

(e)       Any certificate, statement, report, assessment, attestation, notice and/or information furnished or required to be furnished pursuant to this Section 11.10 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent such item and/or information relates to a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.10.

 

Section 11.11  Annual Independent Public Accountants’ Attestation Report. On or before March 1st of each year, commencing in March 2022, the Master Servicers, the Special Servicers, the Trustee (provided, however, that the Trustee shall not be required to deliver an assessment of compliance with respect to any period during which there was no Relevant Servicing Criteria applicable to it), the Custodian, the Operating Advisor and the Certificate Administrator, each at its own expense, shall cause (and each such party shall (i) with respect to each Initial Sub-Servicer engaged by such Master Servicers, Special Servicers, Trustee, Operating Advisor or Certificate Administrator that is a Servicing Function Participant use commercially reasonable efforts to cause such Servicing Function Participant to cause and (ii) with respect to each other Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, cause such Servicing Function Participant to cause) a registered public accounting firm (which may also render other services to the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor or the applicable Servicing Function Participant, as the case may be) and that is a member of the American Institute of Certified Public Accountants to furnish a report to the Trustee, the Certificate Administrator (who will promptly post such report on the Certificate Administrator’s Website pursuant to Section 3.13(b)) and the Depositor, the 17g-5 Information Provider and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder, and, promptly, but not earlier than the second Business Day following the delivery of such report to the 17g-5 Information Provider, to the Rating Agencies, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assertion that such Reporting Servicer has complied with the Relevant Servicing Criteria applicable to it and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is issuing an opinion as to whether such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria applicable to it was fairly stated in all material respects. In the event that an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express such an opinion. Each such related accountant’s attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act. Such report must be available for general use and not contain restricted use language. With respect to any Non-Serviced Companion Loan, the Certificate Administrator will use its reasonable efforts to procure such report from the applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee. Copies of such statement will be provided by the Certificate Administrator in accordance with Section 3.13(b).  Such

 

 -470-

 

 

report shall be provided in EDGAR-Compatible Format, or in such other format agreed upon by the Depositor, the Certificate Administrator and the providing parties.

 

Promptly after receipt of such report from either Master Servicer, either Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Servicing Function Participant, (i) the Depositor may review the report and, if applicable, consult with the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator as to the nature of any defaults by the Master Servicers, the Special Servicers, the Trustee, the Operating Advisor, the Custodian, the Certificate Administrator or any Servicing Function Participant with which it has entered into a servicing relationship with respect to the Mortgage Loans, as the case may be, in the fulfillment of any of the applicable Master Servicer’s, the applicable Special Servicer’s, the Trustee’s, the Certificate Administrator’s, the Operating Advisor’s, the Custodian’s or the applicable Servicing Function Participants’ obligations hereunder or under the applicable sub-servicing or primary servicing agreement, and (ii) the Certificate Administrator shall confirm that each accountants’ attestation report submitted pursuant to this Section 11.11 relates to an assessment of compliance meeting the requirements of Section 11.10 and notify the Depositor of any exceptions. None of the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian or any Additional Servicer shall be required to deliver, or shall be required to cause the delivery of such reports until April 15th in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed with respect to the Trust for the preceding fiscal year.

 

Any notice, report, assessment of compliance, statement, certificate and/or information furnished or required to be furnished pursuant to this Section 11.11 shall also be provided to each Other Depositor and each Other Certificate Administrator (to the extent the notice and/or information relates to a Serviced Companion Loan or a party that services, specially services or is trustee or custodian for a Serviced Companion Loan) in the same time frame as set forth in this Section 11.11.

 

Section 11.12 Indemnification. Each of the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Custodian, the Operating Advisor and the Asset Representations Reviewer shall indemnify and hold harmless each Certification Party from and against any claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of (i) an actual breach by such Master Servicer, such Special Servicer, the Trustee, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Certificate Administrator, as the case may be, of its obligations under this Article XI, (ii) negligence, bad faith or willful misconduct on the part of such Master Servicer, such Special Servicer, the Trustee, the Asset Representations Reviewer, the Operating Advisor, the Custodian or the Certificate Administrator in the performance of such obligations, or (iii) delivery of any Deficient Exchange Act Deliverable by, or on behalf of, such party.

 

The Master Servicers, the Special Servicers, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to

 

 -471-

 

 

cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, in each case, indemnify and hold harmless each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such Certification Party arising out of (a) a breach of its obligations to provide any of the annual compliance statements or annual assessment of compliance with the servicing criteria or attestation reports pursuant to the applicable sub-servicing or primary servicing agreement, (b) negligence, bad faith or willful misconduct on its part in the performance of such obligations, (c) any failure by it, as a Servicer (as defined in Section 11.02(b)) to identify a Servicing Function Participant pursuant to Section 11.02(c), or (d) delivery of any Deficient Exchange Act Deliverable.

 

In addition, each of the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator and the Trustee shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement) with the Depositor and each Other Depositor as necessary for the Depositor or such Other Depositor, as applicable, to conduct any reasonable due diligence necessary to evaluate and assess any material instances of non-compliance disclosed in any of the deliverables required by the applicable reporting requirements under the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder (“Reporting Requirements”).

 

In connection with comments provided to the Depositor or any Other Depositor from the Commission or its staff regarding information (x) delivered by the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Custodian, the Certificate Administrator, the Trustee, a Servicing Function Participant or an Additional Servicer, as applicable (“Affected Reporting Party”), (y) regarding such Affected Reporting Party, and (z) prepared by such Affected Reporting Party or any registered public accounting firm, attorney or other agent retained by such Affected Reporting Party to prepare such information, which information is contained in a report filed by the Depositor or any Other Depositor under the Reporting Requirements and which comments are received subsequent to the Depositor’s or any Other Depositor’s filing of such report, the Depositor or any Other Depositor shall promptly provide to such Affected Reporting Party any such comments which relate to such Affected Reporting Party. Such Affected Reporting Party shall be responsible for timely preparing a written response to the Commission or its staff for inclusion in the Depositor’s or any Other Depositor’s response to the Commission or its staff, unless such Affected Reporting Party elects, with the consent of the Depositor or any Other Depositor, as applicable (which consent shall not be unreasonably denied, withheld or delayed), to directly communicate with the Commission or its staff and negotiate a response and/or resolution with the Commission or its staff; provided, however, that if an Affected Reporting Party is a Servicing Function Participant or Additional Servicer retained by a Master Servicer, a Master Servicer shall receive copies of all material communications pursuant to this Section 11.12. If such election is made, the applicable Affected Reporting Party shall be responsible for directly negotiating such response and/or resolution with the Commission or its staff in a timely manner; provided that (i) such Affected Reporting Party shall use reasonable efforts to keep the Depositor or any Other Depositor informed of its progress with the Commission or its staff and copy the

 

 -472-

 

 

Depositor or any Other Depositor on all correspondence with the Commission or its staff and provide the Depositor or any Other Depositor with the opportunity to participate (at the Depositor’s or any Other Depositor’s expense) in any telephone conferences and meetings with the Commission or its staff and (ii) the Depositor or any Other Depositor shall cooperate with any Affected Reporting Party in order to authorize such Affected Reporting Party and its representatives to respond to and negotiate directly with the Commission or its staff with respect to any comments from the Commission or its staff relating to such Affected Reporting Party and to notify the Commission or its staff of such authorization. The Depositor (or any Other Depositor) and the Affected Reporting Party shall cooperate and coordinate with one another with respect to any requests made to the Commission or its staff for extension of time for submitting a response or compliance. All respective reasonable out-of-pocket costs and expenses incurred by the Depositor or any Other Depositor (including reasonable legal fees and expenses of outside counsel to the Depositor or any Other Depositor, as the case may be) in connection with the foregoing (other than those costs and expenses required to be at the Depositor’s or any Other Depositor’s expense as set forth above) and any amendments to any reports filed with the Commission or its staff related thereto shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from the Depositor or any Other Depositor, as the case may be. Each of the Master Servicers, the Special Servicers, the Operating Advisor, the Custodian, the Certificate Administrator and the Trustee shall (i) with respect to any Initial Sub-Servicer engaged by it that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer and each Servicing Function Participant with which, in each case, it has entered into a servicing relationship with respect to the Mortgage Loans, cause such party to, comply with the foregoing by inclusion of similar provisions in the related sub-servicing or similar agreement.

 

If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the applicable Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator, the Custodian or the Operating Advisor (the “Performing Party”) shall contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to Section 11.06, Section 11.09 (if applicable), Section 11.10 or Section 11.11 (or breach of its obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith. The applicable Master Servicer, the applicable Special Servicer, the Trustee, the Operating Advisor and the Certificate Administrator shall (i) with respect to any Initial Sub-Servicer engaged by such Master Servicer, such Special Servicer, Trustee or Certificate Administrator that is a Servicing Function Participant or Additional Servicer, use commercially reasonable efforts to cause such party to, and (ii) with respect to each other Additional Servicer or Servicing Function Participant, in each case, with which it has entered into a servicing relationship with respect to the Mortgage Loans cause such party, in each case, to agree to the foregoing indemnification and contribution obligations. This Section 11.12 shall survive the termination of this Agreement or the earlier resignation or removal of either Master

 

 -473-

 

 

Servicer, either Special Servicer, the Trustee, the Operating Advisor, the Custodian or the Certificate Administrator.

 

Section 11.13  Amendments. This Article XI may be amended with the written consent of the parties hereto pursuant to Section 13.01 for purposes of complying with Regulation AB and/or to conform to standards developed within the commercial mortgage-backed securities market and the Sarbanes-Oxley Act without any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25), or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement; provided that the reports and certificates required to be prepared pursuant to Section 3.13, 11.09, 11.10 and 11.11 shall not be eliminated without Rating Agency Confirmation with respect to the Certificates or, with respect to any Serviced Companion Loan Securities, without a confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25). For the avoidance of doubt, any amendment to this Article XI affecting a Serviced Companion Loan shall be subject to Section 13.01(k).

  

Section 11.14  Regulation AB Notices.  Any notice, report or certificate required to be delivered by any of the Master Servicers, the Special Servicers, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer, the Custodian or the Trustee, as the case may be, to the Depositor pursuant to this Article XI may be delivered via email (and additionally delivered via phone or telecopy), notwithstanding the provisions of Section 13.05, to cts.sec.notifications@wellsfargo.com and Form10K.compliance@cwt.com.

 

Section 11.15  Certain Matters Relating to the Future Securitization of the Serviced Pari Passu Companion Loans. (a) Each of the Trustee, the Certificate Administrator, the Master Servicers and the Special Servicers shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any sub-servicer appointed with respect to any Serviced Pari Passu Companion Loan to, upon written request or notice from a Mortgage Loan Seller (or a permitted transferee of such Mortgage Loan Seller pursuant to the related Intercreditor Agreement), reasonably cooperate with the Mortgage Loan Seller (or such permitted transferee) selling any Serviced Pari Passu Companion Loan into a securitization that is required to comply with Regulation AB (a “Regulation AB Companion Loan Securitization”) and, to the extent needed in order to comply with Regulation AB, provide to the Mortgage Loan Seller (or such permitted transferee) information about itself that such Mortgage Loan Seller reasonably requires to meet the requirements of Items 1117 and 1119 and paragraphs (b), (c)(2), (c)(3), (c)(4), (c)(5), (c)(6) and (e) of Item 1108 of Regulation AB and shall reasonably cooperate with such Mortgage Loan Seller to provide such other information as may be reasonably necessary to comply with the requirements of Regulation AB.  Each of the Trustee, the Certificate Administrator, either Master Servicer and either Special Servicer

 -474-

 

 

understands that such information may be included in the offering material related to a Regulation AB Companion Loan Securitization and agrees to (b) negotiate in good faith an agreement (subject to the final sentence of this sub-section) to indemnify and hold the related depositor and underwriters involved in the offering of the related commercial mortgage pass through certificates harmless for any costs, liabilities, fees and expenses incurred by the depositor or such underwriters as a result of any material misstatements or omissions or alleged material misstatements or omissions in any such offering material to the extent that such material misstatement or omission was made in reliance upon any such information provided by the Trustee (where such information pertains to the Trustee individually and not to any specific aspect of the Trustee’s duties or obligations under this Agreement), the Certificate Administrator (where such information pertains to the Certificate Administrator individually and not to any specific aspect of the Certificate Administrator’s duties or obligations under this Agreement), the applicable Master Servicer (where such information pertains to the applicable Master Servicer individually and not to any specific aspect of the applicable Master Servicer’s duties or obligations under this Agreement) or the applicable Special Servicer (where such information pertains to the applicable Special Servicer individually and not to any specific aspect of the applicable Special Servicer’s duties or obligations under this Agreement), as applicable, to such depositor, underwriters or Mortgage Loan Seller (or permitted transferee) as required by this Section 11.15(a) and (ii) deliver such securities law opinion(s) of counsel, certifications and/or indemnification agreement(s) (to the extent the cost thereof is paid by the related Mortgage Loan Seller) with respect to such information that are substantially similar to those delivered with respect to the offering material for this securitization by the applicable Master Servicer, the applicable Special Servicer, Trustee or Certificate Administrator, as the case may be, or their respective counsel, in connection with the information concerning such party in the offering material related to a Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent that the information provided by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, for inclusion in the offering materials related to such Regulation AB Companion Loan Securitization is substantially and materially similar to the information provided by such party with respect to the offering materials related to this transaction, subject to any required changes due to any amendments to Regulation AB or any changes in the interpretation of Regulation AB or changes in factual circumstances, such party shall be deemed to be in compliance with this Section 11.15(a). Any indemnification agreement executed by the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer in connection with the Regulation AB Companion Loan Securitization shall be substantially similar to the related indemnification agreement executed in connection with this Agreement. It shall be a condition precedent to any party’s obligations otherwise set forth above and/or elsewhere in Article XI that the Mortgage Loan Seller (or permitted transferee) shall have (a) provided reasonable advance notice (and, in any event, not less than 10 Business Days) of the exercise of its rights hereunder and (b) paid, or entered into reasonable agreement to cause to be paid, the reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by such party in reviewing and/or causing the delivery of any disclosure, opinion of counsel or indemnification agreement.

 

(b)       Each of the Trustee, the Certificate Administrator, the Master Servicers and the Special Servicers shall, and each of the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function

 

 -475-

 

 

Participant appointed thereby with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), cooperate with the depositor, trustee, certificate administrator, master servicer and special servicer for any Regulation AB Companion Loan Securitization in preparing each Form 10-D, Form ABS-EE, Form 8-K and Form 10-K required to be filed by such Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or other applicable party for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) and shall provide to such depositor, trustee, certificate administrator and master servicer within the time period set forth in the Other Pooling and Servicing Agreement (so long as such time period is no earlier than the time periods set forth herein) for such Regulation AB Companion Loan Securitization such information relating to a Serviced Securitized Companion Loan as may be reasonably necessary for the depositor, trustee, certificate administrator and master servicer of the Regulation AB Companion Loan Securitization to timely comply with the reporting requirements of Regulation AB and the Exchange Act; provided, however, that any parties to any Regulation AB Companion Loan Securitization shall consult with the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer (and the applicable Master Servicer shall consult with any sub-servicer appointed by it with respect to the related Serviced Whole Loan), and the Trustee, the Certificate Administrator, such Master Servicer and such Special Servicer shall cooperate with such parties in respect of establishing the time periods for preparation of the Form 10-D and Form ABS-EE reports in the documentation for such Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(b) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(b).

 

(c)       Each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicers and the Special Servicers shall, and each of the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed thereby with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide the depositor, trustee or certificate administrator, as applicable, under a Regulation AB Companion Loan Securitization (until January 30 of the first year in which the trustee or certificate administrator, as applicable, for such Regulation AB Companion Loan Securitization files a Form 15 Suspension Notification with respect to the related trust) information with respect to any event that is required to be disclosed under Form 8-K with respect to a Serviced Securitized Companion Loan within two (2) Business Days after the occurrence of such event of which it has knowledge.  Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, either Master Servicer or

 

 -476-

 

 

either Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(c) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(c).

 

(d)      On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, the Master Servicers and the Special Servicers shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), provide, with respect to itself, to the depositor, trustee or certificate administrator, as applicable, under such Regulation AB Companion Loan Securitization, to the extent required pursuant to Item 1122 of Regulation AB, (i) a report on an assessment of compliance with the servicing criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting firm’s attestation report on such Person’s assessment of compliance with the applicable servicing criteria to the extent required pursuant to Item 1122(b) of Regulation AB and (iii) such other information as may be required pursuant to Item 1122(c) of Regulation AB.  Notwithstanding the foregoing, to the extent the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(d) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(d).

  

(e)       On or before March 1st of each year during which a Regulation AB Companion Loan Securitization is required to file an annual report on Form 10-K (and not in respect of any year in which such Regulation AB Companion Loan Securitization is not required to file an annual report on Form 10-K because a Form 15 Suspension Notification with respect to the related trust was filed), each of the Trustee, the Certificate Administrator, the applicable Master Servicers and the applicable Special Servicers shall, and the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause any Servicing Function Participant appointed with respect to a Serviced Securitized Companion Loan to, to the extent required pursuant to Item 1123 of Regulation AB, deliver, with respect to itself, to the depositor, trustee or certificate administrator under such Regulation AB Companion Loan Securitization (provided that (a) such party has received notice of the occurrence of the related Regulation AB Companion Loan Securitization, or (b) such party is also a party to the related Other Pooling and Servicing Agreement, or (c) the applicable Regulation AB Companion Loan Securitization closed prior to the Closing Date, as reflected on Exhibit S), under such Regulation

 

 -477-

 

 

AB Companion Loan Securitization a servicer compliance statement signed by an authorized officer of such Person that satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding the foregoing, to the extent the Trustee, the Certificate Administrator, the applicable Master Servicer or the applicable Special Servicer, as the case may be, complies in all material respects with the timing, reporting and attestation requirements imposed on such party in Article XI of this Agreement (other than this Section 11.15) with respect to the comparable timing, reporting and attestation requirements contemplated in this Section 11.15(e) with respect to such Regulation AB Companion Loan Securitization, such party shall be deemed to be in compliance with the provisions of this Section 11.15(e).

 

(f)       Each of the Trustee, the Certificate Administrator, the applicable Master Servicer and the applicable Special Servicer shall use commercially reasonable efforts to cause a Servicing Function Participant to agree (severally but not jointly) to indemnify (such indemnity limited to each such parties respective failure described below) and hold the related Mortgage Loan Seller (or permitted transferee), depositor, sponsor(s), trustee, certificate administrator or master servicer under a Regulation AB Companion Loan Securitization harmless for any costs, liabilities, fees and expenses incurred by such Mortgage Loan Seller, depositor, sponsor(s), trustee, certificate administrator or master servicer as a result of any failure by the Servicing Function Participant to comply with the reporting requirements to the extent applicable set forth under Sections 11.15(b), (c), (d) or (e) above.

 

Any subservicing agreement related to a Serviced Securitized Companion Loan shall contain a provision requiring the related Sub-Servicer to provide to the applicable Master Servicer or the applicable Special Servicer, as applicable, information, reports, statements and certificates with respect to itself and such Serviced Securitized Companion Loan comparable to any information, reports, statements or certificates required to be provided by the applicable Master Servicer or the applicable Special Servicer pursuant to this Section 11.15, even if such Sub-Servicer is not otherwise required to provide such information, reports or certificates to any Person in order to comply with Regulation AB. Such information, reports or certificates shall be provided to the applicable Master Servicer or the applicable Special Servicer, as the case may be, no later than two Business Days prior to the date on which the applicable Master Servicer or the applicable Special Servicer, as the case may be, is required to deliver its comparable information, reports, statements or certificates pursuant to this Section 11.15.

 

(g)       With respect to any Mortgaged Property that secures a Serviced Pari Passu Companion Loan that the applicable Other Depositor has notified the applicable Master Servicer and the applicable Special Servicer in writing is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB) (together with notification of the relevant Distribution Date) with respect to an Other Securitization that includes such Serviced Companion Loan, to the extent that the applicable Master Servicer or the applicable Special Servicer is in receipt of the updated financial statements of such “significant obligor” for any calendar quarter (other than the fourth calendar quarter of any calendar year) from the Mortgagor, beginning with the first calendar quarter in which such notice from the Other Depositor was received, or the updated financial statements of such “significant obligor” for any calendar year, beginning for the calendar year in which such notice from the Other Depositor was received, as applicable, the applicable Master Servicer the applicable Special Servicer shall deliver to the Other Depositor, on or prior to the day that occurs two (2) Business Days prior to the related Significant Obligor

 

 -478-

 

 

NOI Quarterly Filing Deadline or seven (7) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, (A) if such financial statement receipt occurs twelve (12) or more Business Days prior to the related Significant Obligor NOI Quarterly Filing Deadline or seventeen (17) or more Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, the financial statements of such “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as calculated by the applicable Master Servicer (or by the applicable Special Servicer and provided to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or the applicable Special Servicer with respect to any Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer) in accordance with CREFC^® guidelines and (B) if such financial statement receipt occurs less than twelve (12) Business Day prior to the related Significant Obligor NOI Quarterly Filing Deadline or less than seventeen (17) Business Days prior to the related Significant Obligor NOI Yearly Filing Deadline, as applicable, such financial statements of the “significant obligor”, together with the net operating income of such “significant obligor” for the applicable period as reported by the related Mortgagor in such financial statements (or as reported by the related Mortgagor to the applicable Special Servicer and provided by the applicable Special Servicer to the applicable Master Servicer solely in the case of any related Specially Serviced Loan or as reported by the applicable Special Servicer with respect to Serviced REO Property and provided by the applicable Special Servicer to the applicable Master Servicer).

 

If the applicable Master Servicer or the applicable Special Servicer does not receive such financial information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b)(1) of Form 10-K, as the case may be, of such “significant obligor” within ten (10) Business Days after the date such financial information is required to be delivered under the related Mortgage Loan documents, the applicable Master Servicer or the applicable Special Servicer shall notify the Other Depositor with respect to such Other Securitization that includes the related Serviced Pari Passu Companion Loan (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to notify such Other Depositor) that it has not received such financial information. The applicable Master Servicer (in the case of Non-Specially Serviced Loans) or the applicable Special Servicer (in the case of Specially Serviced Loans) shall use efforts consistent with the Servicing Standard (taking into account, in addition, the ongoing reporting obligations of such Other Depositor under the Exchange Act) to obtain the periodic financial statements required to be delivered by the related Mortgagor under the related Mortgage Loan documents.

 

The applicable Master Servicer (with respect to Non-Specially Serviced Loans) and the applicable Special Servicer (with respect to Specially Serviced Loans) shall (and shall cause each applicable Sub-Servicing Agreement entered into after receipt of written notice from the Other Depositor that such Serviced Pari Passu Companion Loan is a significant obligor to require the related Sub-Servicer to) retain written evidence of each instance in which it (or a Sub-Servicer) attempts to contact the related Mortgagor related to any such “significant obligor” (identified to it as such by the Other Depositor in accordance with the second preceding paragraph) to obtain the required financial information and is unsuccessful and, within five (5) Business Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is required to be filed with respect to the Other Securitization, shall forward an Officer’s Certificate evidencing

 

 -479-

 

 

its attempts to obtain this information to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization; provided, however, the applicable Special Servicer shall provide such Officer’s Certificate to the applicable Master Servicer and the applicable Master Servicer shall forward such Officer’s Certificate to the Other Exchange Act Reporting Party and Other Depositor related to such Other Securitization. This Officer’s Certificate should be addressed to the certificate administrator at its corporate trust office, as specified in the related Other Pooling and Servicing Agreement.

 

(h)       If any Other Securitization includes a Serviced Companion Loan and is subject to the reporting requirements of the Exchange Act, then the obligations of the parties hereto set forth in this Article XI with respect such Other Securitization shall remain in full force and effect notwithstanding that the Trust may cease to be subject to the reporting requirements of the Exchange Act.

 

Section 11.16  Certain Matters Regarding Significant Obligors. As of the Closing Date, the United States General Services Administration for use by the U.S. Department of Justice (the “GSA-USDOJ”) is a “significant obligor” within the meaning of Item 1101(k) of Regulation AB  (“Significant Obligor”) with respect to the Trust, and there are no other Significant Obligors with respect to the Trust. The parties hereto acknowledge that no financial information will be provided with respect to the GSA-USDOJ as a “significant obligor” with respect to the Trust pursuant to Item 1112(b) of Regulation AB based on Instruction 1 to Item 1112(b) which states that “[n]o information need be provided pursuant to paragraph (b) of this section if the obligations of the significant obligor as they relate to the pool assets are backed by the full faith and credit of the United States.”

 

Section 11.17 Impact of Cure Period. For the avoidance of doubt, neither the Master Servicers nor the Special Servicers shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, during any grace period provided for in this Article XI; provided that if any such party fails to comply with the delivery requirements of this Article XI by the expiration of any applicable grace period such failure shall constitute a Servicer Termination Event.  Neither the Master Servicer nor the Special Servicers shall be subject to a Servicer Termination Event pursuant to clause (iii) of the definition thereof prior to the expiration of the grace period applicable to such party’s obligations under this Article XI as provided for in such clause (iii) nor shall any such party be deemed to not be in compliance under this Agreement, for failing to deliver any item required under this Article XI by the time required hereunder with respect to any reporting period for which the Trust (or any trust in a related Other Securitization) is not required to file Exchange Act reports.

 

[End of Article XI]

 

Article XII

THE ASSET REPRESENTATIONS REVIEWER

 

Section 12.01 Asset Review.

 -480-

 

(a)       On or prior to each Distribution Date, based either on the CREFC^® Delinquent Loan Status Report and/or the CREFC^® Loan Periodic Update File delivered by the applicable Master Servicer for such Distribution Date, the Certificate Administrator shall determine if an Asset Review Trigger has occurred. If an Asset Review Trigger is determined to have occurred, the Certificate Administrator shall promptly provide notice to all Certificateholders and each other party to this Agreement. Any notice required to be delivered to the Certificateholders pursuant to this Article XII shall be delivered by the Certificate Administrator by posting such notice on the Certificate Administrator’s Website, by mailing such notice to the Certificateholders’ addresses appearing in the Certificate Register in the case of Definitive Certificates and by delivering such notice via the Depository in the case of Book-Entry Certificates. The Certificate Administrator shall include in the Form 10-D relating to the reporting period in which the Asset Review Trigger occurred the following statement describing the events that caused the Asset Review Trigger to occur: “As of the [Date of Distribution], the following Mortgage Loans identified below are 60 or more days delinquent and an Asset Review Trigger as defined in the Pooling and Servicing Agreement has occurred.” On each Distribution Date occurring after providing such notice to Certificateholders, the Certificate Administrator, based on information provided to it by the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall determine whether (1) any additional Mortgage Loan has become a Delinquent Loan, (2) any Mortgage Loan has ceased to be a Delinquent Loan and (3) whether an Asset Review Trigger has ceased to exist, and, if there is an occurrence of any of the events or circumstances identified in clauses (1), (2) and/or (3), deliver such information in a written notice (which may be via email) in the form of Exhibit SS within two (2) Business Days to the applicable Master Servicer, the applicable Special Servicer, the Operating Advisor and the Asset Representations Reviewer.

 

If Certificateholders (other than Holders of the RR Interest) evidencing not less than 5% of the Voting Rights of the Certificates deliver to the Certificate Administrator, within 90 days after the filing of the Form 10-D reporting the occurrence of an Asset Review Trigger, a written direction requesting a vote to commence an Asset Review (an “Asset Review Vote Election”), then the Certificate Administrator shall promptly provide written notice thereof to all Certificateholders (with a copy to the Asset Representations Reviewer) and conduct a solicitation of votes in accordance with Section 5.10 to authorize an Asset Review. Upon the affirmative vote to authorize an Asset Review by Holders of Certificates evidencing at least (i) a majority of those Certificateholders who cast votes and (ii) a majority of an Asset Review Quorum within one-hundred fifty (150) days of receipt of the Asset Review Vote Election (an “Affirmative Asset Review Vote”), the Certificate Administrator shall promptly provide written notice thereof to all parties to this Agreement, the Underwriters, the Mortgage Loan Sellers, the Directing Certificateholder, the Risk Retention Consultation Party and the other Certificateholders (the “Asset Review Notice”). Upon receipt of an Asset Review Notice, the Asset Representations Reviewer shall request access to the Secure Data Room by providing the Certificate Administrator with a certification substantially in the form attached hereto as Exhibit RR (which shall be sent via email to trustadministrationgroup@wellsfargo.com or submitted electronically via the Certificate Administrator’s Website). Upon receipt of such certification, the Certificate Administrator shall promptly (and in any case within two (2) Business Days after such receipt) grant the Asset Representations Reviewer access to the Secure Data Room. In the event an Affirmative Asset Review Vote has not occurred within such 150-day period following the receipt of the Asset Review Vote Election, no Certificateholder may request a vote or cast a vote

 

 -481-

 

 

for an Asset Review and the Asset Representations Reviewer will not be required to review any Delinquent Loan unless and until (A) an additional Mortgage Loan has become a Delinquent Loan after the expiration of such 150-day period, (B) a new Asset Review Trigger has occurred as a result or an Asset Review Trigger is otherwise in effect, (C) the Certificate Administrator has timely received any Asset Review Vote Election after the occurrence of the events described in clauses (A) and (B) in this sentence and (D) an Affirmative Asset Review Vote has occurred within 150 days after the Asset Review Vote Election described in clause (C) in this sentence. After the occurrence of any Asset Review Vote Election or an Affirmative Asset Review Vote, no Certificateholder may make any additional Asset Review Vote Election except as described in the immediately preceding sentence. Any reasonable out-of-pocket expenses incurred by the Certificate Administrator in connection with administering such vote will be paid as an expense of the Trust from the applicable Collection Account. The Certificate Administrator shall be entitled to administer any vote in connection with the foregoing through an agent.

 

(b)       (i) Upon receipt of an Asset Review Notice, the Custodian (with respect to clauses (1)-(5) below), the applicable Master Servicer (with respect to clauses (6) and (7) below for Non-Specially Serviced Loans for which it acts as Master Servicer) and the applicable Special Servicer (with respect to clauses (6) and (7) below for Specially Serviced Loans) shall promptly, but in no event later than ten (10) Business Days, provide the following materials in electronic format to the extent in their possession to the Asset Representations Reviewer (collectively, with the Diligence Files posted on the Secure Data Room by the Certificate Administrator pursuant to Section 4.08, a copy of the Prospectus, a copy of each related Mortgage Loan Purchase Agreement and a copy of this Agreement, the “Review Materials”):

 

(1)        a copy of an assignment of the Mortgage in favor of the Trustee, with evidence of recording thereon, for each Delinquent Loan that is subject to an Asset Review;

 

(2)        a copy of an assignment of any related assignment of leases (if such item is a document separate from the Mortgage) in favor of the Trustee, with evidence of recording thereon, related to each Delinquent Loan that is subject to an Asset Review;

 

(3)        a copy of the assignment of all unrecorded documents relating to each Delinquent Loan that is subject to an Asset Review, if not already covered pursuant to items (1) or (2) above;

 

(4)        copies of all filed copies (bearing evidence of filing) or evidence of filing of any UCC financing statements related to each Delinquent Loan that is subject to an Asset Review;

 

(5)        a copy of an assignment in favor of the Trustee of any financing statement executed and filed in the relevant jurisdiction related to each Delinquent Loan that is subject to an Asset Review;

 -482-

 

(6)        a copy of any notice previously delivered by the applicable Master Servicer or applicable Special Servicer, as applicable, of any alleged defect or breach with respect to any Delinquent Loan; and

 

(7)        a copy of any other related documents that were entered into or delivered in connection with the origination of the related Mortgage Loan that the Asset Representations Reviewer has determined are necessary in connection with its completion of any Asset Review and that are requested by the Asset Representations Reviewer, in the time frames and as otherwise described in clause (ii) hereof.

 

(ii)       In addition, in the event that, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, the Asset Representations Reviewer shall promptly, but in no event later than ten (10) Business Days after receipt of the Review Materials, notify the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), as applicable, of such missing document(s), and request that the applicable Master Servicer or the applicable Special Servicer, as the case may be, promptly, but in no event later than ten (10) Business Days after receipt of notification from the Asset Representations Reviewer, deliver to the Asset Representations Reviewer such missing document(s) to the extent in its possession; provided that any such notification and/or request shall be in writing, specifically identifying the documents being requested and sent to the notice address for the related party set forth in Section 13.05 of this Agreement. In the event any missing documents are not provided by the applicable Master Servicer or the applicable Special Servicer, as the case may be, within such ten (10) Business Day period, the Asset Representations Reviewer shall request such documents from the related Mortgage Loan Seller; provided that the Mortgage Loan Seller shall be required under the related Mortgage Loan Purchase Agreement to deliver such missing document only to the extent such document is in the possession of such party but in any event excluding any documents that contain information that is proprietary to the related originator or Mortgage Loan Seller or any draft documents or privileged or internal communications.

 

(iii)     The Asset Representations Reviewer may, but is under no obligation to, consider and rely upon information furnished to it by a Person that is not a party to this Agreement or the applicable Mortgage Loan Seller, and shall do so only if such information can be independently verified (without unreasonable effort or expense to the Asset Representations Reviewer) and is determined by the Asset Representations Reviewer in its good faith and sole discretion to be relevant to the Asset Review conducted pursuant to this Section 12.01 (any such information, “Unsolicited Information”).

 

(iv)     Upon receipt by the Asset Representations Reviewer of the Asset Review Notice and access to the Diligence File with respect to a Delinquent Loan, the Asset Representations Reviewer, as an independent contractor, shall commence a review of the

 

 -483-

 

 

compliance of each Delinquent Loan with the representations and warranties related to that Delinquent Loan (such review, the “Asset Review”). The Asset Representations Reviewer shall perform an Asset Review with respect to each representation and warranty made by the related Mortgage Loan Seller with respect to such Delinquent Loan in accordance with the procedures set forth on Exhibit QQ (each such procedure, a “Test”); provided, however, the Asset Representations Reviewer may, but is under no obligation to, modify any Test and/or associated Review Materials described in Exhibit PP if, and only to the extent, the Asset Representations Reviewer determines pursuant to the Asset Review Standard that it is necessary to modify such Test and/or such associated Review Materials in order to facilitate its Asset Review in accordance with the Asset Review Standard. Once an Asset Review of a Mortgage Loan is completed, no further Asset Review shall be required in respect of, or performed on, such Mortgage Loan notwithstanding that such Mortgage Loan may continue to be a Delinquent Loan or again become a Delinquent Loan at a time when a new Asset Review Trigger occurs and a new Affirmative Asset Review Vote is obtained subsequent to the occurrence of such new Asset Review Trigger.

 

(v)       No Certificateholder shall have the right to change the scope of the Asset Review, and the Asset Representations Reviewer shall not be required to review any information other than (1) the Review Materials and (2) if applicable, Unsolicited Information.

 

(vi)      The Asset Representations Reviewer may, absent manifest error and subject to the Asset Review Standard, (i) assume, without independent investigation or verification, that the Review Materials are accurate and complete in all material respects and (ii) conclusively rely on such Review Materials.

 

(vii)     The Asset Representations Reviewer shall prepare a preliminary report with respect to each Delinquent Loan within fifty-six (56) days after the date on which access to the Secure Data Room is provided, subject to the last sentence of this paragraph. In the event that the Asset Representations Reviewer determines that the Review Materials are insufficient to complete a Test and such missing documentation is not delivered to the Asset Representations Reviewer by the applicable Master Servicer (with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) to the extent in the possession of the applicable Master Servicer or applicable Special Servicer, as applicable, or from the related Mortgage Loan Seller within ten (10) Business Days following the request by the Asset Representations Reviewer to the applicable Master Servicer, the applicable Special Servicer or the related Mortgage Loan Seller, as the case may be, as described in Section 12.01(b)(ii), the Asset Representations Reviewer shall list such missing documents in such preliminary report setting forth the preliminary results of the application of the Tests and the reasons why such missing documents are necessary to complete a Test and (if the Asset Representations Reviewer has so concluded) that the absence of such documents will be deemed to be a failure of such Test. The Asset Representations Reviewer shall provide such preliminary report to the applicable Master Servicer (with respect to Non-Specially Serviced Loans) or the applicable Special Servicer (with respect to Specially Serviced Loans), and the related Mortgage Loan

 

 -484-

 

 

Seller. If the preliminary report indicates that any of the representations and warranties fails or is deemed to fail any Test, the related Mortgage Loan Seller shall have ninety (90) days (the “Cure/Contest Period”) to remedy or otherwise refute the failure.  Any documents or explanations to support the related Mortgage Loan Seller’s claim that the representation and warranty has not failed a Test or that any missing information or documents in the Review Materials are not required to complete a Test shall be sent by such Mortgage Loan Seller to the Asset Representations Reviewer. For avoidance of doubt, the Asset Representations Reviewer shall not be required to prepare a preliminary report in the event the Asset Representations Reviewer determines that there is no Test failure with respect to the related Mortgage Loan.

 

(viii)    The Asset Representations Reviewer shall, within sixty (60) days after the date on which access to the Secure Data Room is provided to the Asset Representations Reviewer by the Certificate Administrator or within the ten (10) days after the expiration of the Cure/Contest Period (whichever is later), complete an Asset Review with respect to each Delinquent Loan and deliver (i) a report setting forth the Asset Representations Reviewer’s findings and conclusions as to whether or not it has determined there is any evidence of a failure of any Test based on the Asset Review and a statement that the Asset Representations Reviewer’s findings and conclusions set forth in such report were not influenced by any third party (an “Asset Review Report”) to each party to this Agreement, the related Mortgage Loan Seller for each Delinquent Loan and the Directing Certificateholder and (ii) a summary of the Asset Representations Reviewer’s conclusions included in such Asset Review Report (an “Asset Review Report Summary”) to the Trustee, the Special Servicer, the Master Servicer and the Certificate Administrator. The period of time by which the Asset Review Report must be completed and delivered may be extended by up to an additional thirty (30) days, upon written notice to the parties to this Agreement and the applicable Mortgage Loan Seller, if the Asset Representations Reviewer determines pursuant to the Asset Review Standard that such additional time is required due to the characteristics of the Mortgage Loan and/or the Mortgaged Property or Mortgaged Properties. In no event may the Asset Representations Reviewer determine whether any Test failure constitutes a Material Defect, or whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller, which, in each case, shall be a responsibility of the applicable Enforcing Servicer pursuant to Section 12.01(b)(x) of this Agreement.

 

(ix)      In addition, in the event that the Asset Representations Reviewer does not receive any documentation that it requested from the applicable Master Servicer (with respect to Non-Specially Serviced Loans), the applicable Special Servicer (with respect to Specially Serviced Loans) or the related Mortgage Loan Seller in sufficient time to allow the Asset Representations Reviewer to complete its Asset Review and deliver an Asset Review Report, the Asset Representations Reviewer shall prepare the Asset Review Report solely based on the documentation received by the Asset Representations Reviewer with respect to the related Delinquent Loan, and the Asset Representations Reviewer shall have no responsibility to independently obtain any such documentation from any party to this Agreement or otherwise.

 -485-

 

(x)       Within thirty (30) days after receipt of an Asset Review Report with respect to any Mortgage Loan, the Enforcing Servicer shall determine whether at that time, based on the Servicing Standard, there exists a Material Defect with respect to such Mortgage Loan. If the Enforcing Servicer determines that a Material Defect exists, the Enforcing Servicer shall enforce the obligations of the applicable Mortgage Loan Seller with respect to such Material Defect in accordance with Section 2.03(b).

 

(c)       The Asset Representations Reviewer and its affiliates shall keep confidential information labeled as Privileged Information received from any party to this Agreement or any Sponsor (including, without limitation, in connection with the review of the Mortgage Loans) and not disclose such Privileged Information to any Person (including Certificateholders), other than (1) to the extent expressly required by this Agreement in an Asset Review Report or otherwise, to the other parties to this Agreement with a notice indicating that such information is Privileged Information or (2) pursuant to a Privileged Information Exception. Each party to this Agreement that receives Privileged Information from the Asset Representations Reviewer with a notice stating that such information is Privileged Information shall not disclose such Privileged Information to any Person without the prior written consent of the applicable Special Servicer other than pursuant to a Privileged Information Exception.

 

(d)      The Asset Representations Reviewer may delegate its duties to agents or subcontractors so long as the related agreements or arrangements with such agents or subcontractors are consistent with the provisions of this Section 12.01; provided that no agent or subcontractor may (i) be affiliated with any Mortgage Loan Seller, either Master Servicer, either Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates or (ii) have been paid any fees, compensation or other remuneration by an Underwriter, a Master Servicer, a Special Servicer, the Depositor, the Certificate Administrator, the Trustee, the Directing Certificateholder or any of their respective Affiliates in connection with due diligence or other services with respect to any Mortgage Loan prior to the Closing Date. Notwithstanding the foregoing sentence, the Asset Representations Reviewer shall remain obligated and primarily liable for any Asset Review required hereunder in accordance with the provisions of this Agreement without diminution of such obligation or liability or related obligation or liability by virtue of such delegation or arrangements or by virtue of indemnification from any Person acting as its agents or subcontractor to the same extent and under the same terms and conditions as if the Asset Representations Reviewer alone were performing its obligations under this Agreement. The Asset Representations Reviewer shall be entitled to enter into an agreement with any agent or subcontractor providing for indemnification of the Asset Representations Reviewer by such agent or subcontractor, and nothing contained in this Agreement shall be deemed to limit or modify such indemnification.

 

Section 12.02 Payment of Asset Representations Reviewer Fees and Expenses; Limitation of Liability.

 

(a)       The Depositor shall pay the Asset Representations Reviewer a fee of $5,000 (the “Asset Representations Reviewer Upfront Fee”) on the Closing Date. As compensation for the performance of its routine duties, the Asset Representations Reviewer shall be paid a fee (the “Asset Representations Reviewer Fee”), payable monthly from amounts

 

 -486-

 

 

received in respect of the Mortgage Loans and shall be equal to the product of a rate equal to 0.00019% per annum (the “Asset Representations Reviewer Fee Rate”) and the Stated Principal Balance of the Mortgage Loans and any REO Loans (including any Non-Serviced Mortgage Loan, but not any Companion Loan) and shall be calculated in the same manner as interest is calculated on such Mortgage Loans.

 

(b)       As compensation for the performance of its duties hereunder, with respect to an individual Asset Review Trigger and each Mortgage Loan that is a Delinquent Loan and is subject to an Asset Review (for purposes of this paragraph, each a “Subject Loans”), upon the completion of any Asset Review with respect to an individual Asset Review Trigger, the Asset Representations Reviewer shall be paid a fee equal to (a) in the case of a Subject Loan that is not an NCB Co-op Mortgage Loan, (i) $17,750 multiplied by the number of Subject Loans, plus (ii) $1,775 per Mortgaged Property relating to the Subject Loans in excess of one Mortgaged Property per Subject Loan, plus (iii) $2,300 per Mortgaged Property relating to a Subject Loan subject to a ground lease, plus (iv) $1,275 per Mortgaged Property relating to a Subject Loan subject to a franchise agreement, hotel management agreement or hotel license agreement, subject, in the case of each of clauses (i) through (iv), to adjustments on the basis of the year-end Consumer Price Index for All Urban Consumers, or other similar index if the Consumer Price Index for All Urban Consumers is no longer calculated for the year of the Closing Date and for the year of the occurrence of the Asset Review, and (b) in the case of a Subject Loan that is an NCB Co-op Mortgage Loan, $10,000 (any such fee, the “Asset Representations Reviewer Asset Review Fee”). The Asset Representations Reviewer Asset Review Fee with respect to each Delinquent Loan (or, in the case of a Joint Mortgage Loan, the applicable Mortgage Loan Seller Percentage Interest thereof) shall be paid by the related Mortgage Loan Seller; provided, however, that if the related Mortgage Loan Seller is insolvent or fails to pay such amount within ninety (90) days of written invoice therefor by the Asset Representations Reviewer, such fee shall be paid by the Trust following delivery by the Asset Representations Reviewer of a certification to the applicable Master Servicer that the requirements for payment set forth in this Section 12.02(b) have been met. The Asset Representations Reviewer shall not deliver any such certificate unless it has invoiced payment of such amount and otherwise met the requirements for payment set forth in this Section 12.02(b), including receipt of evidence of such insolvency or failure to pay such amount. A Mortgage Loan Seller shall be deemed to have failed to pay such amount hereunder ninety (90) days after delivery by the Asset Representations Reviewer of an itemized invoice to such Mortgage Loan Seller by registered mail or overnight courier to the address listed in this Agreement for such Mortgage Loan Seller, or to such other address as shall be provided by such Mortgage Loan Seller for delivery of notices in accordance with this Agreement, or ninety (90) days following attempted delivery of such invoice by registered mail or overnight courier and reasonable follow -up by telephone or e-mail. Notwithstanding any payment of such fee by the Trust to the Asset Representations Reviewer, such fee will remain an obligation of the related Mortgage Loan Seller and the Enforcing Servicer shall pursue remedies against such Mortgage Loan Seller to recover any such amounts to the extent paid by the Trust.

 

(c)       Notwithstanding the foregoing, the Asset Representations Reviewer Asset Review Fee with respect to a Delinquent Loan shall be included in the Purchase Price for any Mortgage Loan that was the subject of a completed Asset Review that is repurchased or substituted by a Mortgage Loan Seller, and such portion of the Purchase Price received shall be

 

 -487-

 

 

used to reimburse the Asset Representations Reviewer or the Trust, as the case may be, for such fees pursuant to Section 12.02(b).

 

(d)      The Asset Representations Reviewer shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.

 

Section 12.03  Resignation of the Asset Representations Reviewer. The Asset Representations Reviewer may resign and be discharged from its obligations hereunder by giving written notice thereof to the other parties to this Agreement and each Rating Agency. Upon such notice of resignation, the Depositor shall promptly appoint a successor asset representations reviewer that is an Eligible Asset Representations Reviewer.  If no successor asset representations reviewer shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Asset Representations Reviewer may petition any court of competent jurisdiction for the appointment of a successor asset representations reviewer that is an Eligible Asset Representations Reviewer.  The Asset Representations Reviewer will bear all reasonable costs and expenses of each party hereto and each Rating Agency in connection with its resignation.

 

Section 12.04  Restrictions of the Asset Representations Reviewer. Neither the Asset Representations Reviewer nor any of its Affiliates shall make any investment in any Class of Certificates; provided, however, that such prohibition shall not apply to (i) riskless principal transactions effected by a broker dealer Affiliate of the Asset Representations Reviewer or (ii) investments by an Affiliate of the Asset Representations Reviewer if the Asset Representations Reviewer and such Affiliate maintain policies and procedures that (A) segregate personnel involved in the activities of the Asset Representations Reviewer under this Agreement from personnel involved in such Affiliate’s investment activities and (B) prevent such Affiliate and its personnel from gaining access to information regarding the Trust and the Asset Representations Reviewer and its personnel from gaining access to such Affiliate’s information regarding its investment activities.

 

Section 12.05 Termination of the Asset Representations Reviewer.

 

(a)      An “Asset Representations Reviewer Termination Event” means any one of the following events whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body:

 

(i)       any failure by the Asset Representations Reviewer to observe or perform in any material respect any of its covenants or agreements or the material breach of any of its representations or warranties under this Agreement, which failure shall continue unremedied for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Asset Representations Reviewer by the Trustee or to the Asset Representations Reviewer and the Trustee by the Holders of Certificates evidencing greater than 25% of the Voting Rights, provided that any such failure that is not curable within such thirty (30) day period, the Asset Representations Reviewer shall have an additional cure period of thirty (30) days to effect such cure so long as it has commenced to cure such failure within the initial thirty

 

 -488-

 

 

(30) day period and has provided the Trustee and the Certificate Administrator with an officer’s certificate certifying that it has diligently pursued, and is continuing to pursue, such cure;

 

(ii)      any failure by the Asset Representations Reviewer to perform its obligations hereunder in accordance with the Asset Review Standard in any material respect, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

 

(iii)     any failure by the Asset Representations Reviewer to be an Eligible Asset Representations Reviewer, which failure shall continue unremedied for a period of thirty (30) days after the date written notice of such failure, requiring the same to be remedied, is given to the Asset Representations Reviewer by any party to this Agreement;

 

(iv)     a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Asset Representations Reviewer, and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;

 

(v)      the Asset Representations Reviewer shall consent to the appointment of a conservator or receiver or liquidator or liquidation committee in any insolvency, readjustment of debt, marshaling of assets and liabilities, voluntary liquidation, or similar proceedings of or relating to the Asset Representations Reviewer or of or relating to all or substantially all of its property; or

 

(vi)     the Asset Representations Reviewer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations.

 

Upon receipt by the Certificate Administrator of written notice of the occurrence of any Asset Representations Reviewer Termination Event, the Certificate Administrator shall promptly provide written notice to all Certificateholders (which shall be simultaneously delivered to the Asset Representations Reviewer) in accordance with the notice distribution procedures described in Section 12.01(a), unless the Certificate Administrator has received written notice that such Asset Representations Reviewer Termination Event has been remedied.  If an Asset Representations Reviewer Termination Event shall occur then, and in each and every such case, so long as such Asset Representations Reviewer Termination Event shall not have been remedied, either the Trustee (i) may or (ii) upon the written direction of Holders of Certificates evidencing at least 25% of the Voting Rights (without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts), shall, terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement, other than rights and obligations accrued prior to such termination (including the right to receive all amounts accrued

 

 -489-

 

 

and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination), by notice in writing to the Asset Representations Reviewer. The Asset Representations Reviewer is required to bear all reasonable costs and expenses of itself and of each other party to this Agreement in connection with its termination due to an Asset Representations Reviewer Termination Event.  Notwithstanding anything herein to the contrary, the Depositor and each Mortgage Loan Seller shall have the right, but not the obligation, to notify the Certificate Administrator and the Trustee of any Asset Representations Reviewer Termination Event of which it becomes aware.

 

(b)      Upon (i) the written direction of Holders of Certificates evidencing not less than 25% of the Voting Rights (without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts) requesting a vote to terminate and replace the Asset Representations Reviewer with a proposed successor asset representations reviewer that is an Eligible Asset Representations Reviewer and (ii) payment by such Holders to the Certificate Administrator of the reasonable fees and expenses to be incurred by the Certificate Administrator in connection with administering such vote, the Certificate Administrator shall promptly provide written notice thereof to the Asset Representations Reviewer and to all Certificateholders by (i) posting such notice on its internet website, and (ii) mailing such notice to all Certificateholders at their addresses appearing in the Certificate Register and to the Asset Representations Reviewer. Upon the written direction of Holders of Certificates evidencing at least 75% of a Certificateholder Quorum (without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts), the Trustee shall terminate all of the rights and obligations of the Asset Representations Reviewer under this Agreement (other than any rights or obligations that accrued prior to the date of such termination and other than indemnification rights arising out of events occurring prior to such termination) by notice in writing to the Asset Representations Reviewer and appoint the proposed successor. As between the Asset Representations Reviewer, on the one hand, and the Certificateholders, on the other, the Certificateholders shall be entitled in their sole discretion to vote for the termination or not vote for the termination of the Asset Representations Reviewer.  In the event that Holders of the Certificates evidencing at least 75% of the Voting Rights (without regard to the application of any Allocated Cumulative Appraisal Reduction Amounts) elect to remove the Asset Representations Reviewer without cause and appoint a successor, the successor asset representations reviewer will be responsible for all expenses necessary to effect the transfer of responsibilities from its predecessor.

 

(c)      On or after the receipt by the Asset Representations Reviewer of written notice of termination, subject to this Section 12.05, all of its authority and power under this Agreement shall be terminated and, without limitation, the terminated Asset Representations Reviewer shall execute any and all documents and other instruments, and do or accomplish all other acts or things reasonably necessary or appropriate to effect the purposes of such notice of termination. As soon as practicable, but in no event later than 30 days after (1) the Asset Representations Reviewer resigns pursuant to Section 12.03 of this Agreement or (2) the Trustee delivers such written notice of termination to the Asset Representations Reviewer, the Trustee shall appoint a successor asset representations reviewer that is an Eligible Asset Representations Reviewer. The Trustee shall provide written notice of the appointment of an Asset Representations Reviewer to the Master Servicers, the Special Servicers, the Operating Advisor, the Certificate Administrator, the Directing Certificateholder and each Certificateholder within one Business Day of such appointment.

 -490-

 

 

The Asset Representations Reviewer shall at all times be an Eligible Asset Representations Reviewer and if the Asset Representations Reviewer ceases to be an Eligible Asset Representations Reviewer, the Asset Representations Reviewer shall immediately notify the Master Servicers, the Special Servicers, the Trustee, the Operating Advisor, the Certificate Administrator and the Directing Certificateholder of such disqualification and immediately resign under Section 12.03 of this Agreement and the Trustee shall appoint a successor asset representations reviewer subject to and in accordance with this Section 12.05. Notwithstanding the foregoing, if the Trustee is unable to find a successor asset representations reviewer within thirty (30) days of the termination of the Asset Representations Reviewer, the Depositor shall be permitted to find a replacement. The Trustee shall not be liable for any failure to identify and appoint a successor asset representations reviewer so long as the Trustee uses commercially reasonable efforts to conduct a search for a successor asset representations reviewer and such failure is not a result of the Trustee’s negligence, bad faith or willful misconduct in the performance of its obligations hereunder.

 

(d)      Upon any termination of the Asset Representations Reviewer and appointment of a successor to the Asset Representations Reviewer, the Trustee shall, as soon as possible, give written notice thereof to the Special Servicers, the Master Servicers, the Certificate Administrator (who shall, as soon as possible, give written notice thereof to the Certificateholders), the Operating Advisor, the Mortgage Loan Sellers, the Depositor, each Rating Agency and, prior to the occurrence and continuance of a Consultation Termination Event, the Directing Certificateholder. In the event that the Asset Representations Reviewer is terminated, all of its rights and obligations under this Agreement shall terminate, other than any rights or obligations that accrued prior to the date of such termination (including the right to receive all amounts accrued and owing to it under this Agreement) and other than indemnification rights (arising out of events occurring prior to such termination).

 

[End of Article XII]

 

Article XIII

MISCELLANEOUS PROVISIONS

 

Section 13.01  Amendment. (a) This Agreement may be amended from time to time by the parties hereto, without the consent of any of the Certificateholders or the Companion Holders:

 

(i)       to correct any defect or ambiguity in this Agreement in order to address any manifest error in any provision of this Agreement;

 

(ii)      to cause the provisions in this Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or this Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

 -491-

 

 

(iii)     to change the timing and/or nature of deposits in the Collection Accounts, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

 

(iv)     to modify, eliminate or add to any of its provisions to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust, any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

 

(v)      to modify, eliminate or add to the provisions of Section 5.03(o) or any other provision hereof restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

 

(vi)     to revise or add any other provisions with respect to matters or questions arising under this Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or any holder of a Serviced Companion Loan not consenting to such revision or addition, as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

 

(vii)    to amend or supplement any provision hereof to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any

 

 -492-

 

 

Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

 

(viii)    to modify the provisions of Section 3.05 and 3.17 (with respect to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder, the Directing Certificateholder, determine that the commercial mortgage-backed securities industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not adversely affect the status of any Trust REMIC as a REMIC or the status of the Grantor Trust as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25);

 

(ix)       to modify the procedures of this Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holder of the RR Interest), as evidenced by (x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

 

(x)        to modify, eliminate or add to any of its provisions to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

 

(xi)       to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed, to the extent required to comply with any such amendment or to modify or eliminate the provision related to the risk retention requirements in the event of such repeal.

 

 -493-

 

 

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller, or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

 

(b)      This Agreement may also be amended from time to time by the parties hereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

 

(i)       reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans or Whole Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

 

(ii)      reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

 

(iii)     adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

 

(iv)     change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary hereunder, without the consent of such Mortgage Loan Seller; or

 

(v)      amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25) and, if required under the related Intercreditor Agreement, the consent of the Subordinate Companion Holder(s) for each Serviced AB Whole Loan.

 

(c)      Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the Master

 

 -494-

 

 

Servicers or the Special Servicers shall consent to any amendment hereto without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted hereunder and that such amendment or the exercise of any power granted to the applicable Master Servicer, the applicable Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to this Agreement may be made that changes any provision specifically required to be included in this Agreement by an Intercreditor Agreement related to a Companion Loan without in each case the consent of the holder of the related Companion Loan(s).

 

(d)     No later than the effective date of any amendment to this Agreement, the Certificate Administrator shall post a copy of the same to the Certificate Administrator’s Website, deliver a copy of the same to the 17g-5 Information Provider who shall post a copy of the same on the 17g-5 Information Provider’s Website pursuant to Section 3.13(b) and Section 3.13(c), as applicable, and thereafter, the Certificate Administrator shall furnish written notification of the substance of such amendment together with a copy of such amendment in electronic format to each Certificateholder and each Serviced Companion Noteholder, the Depositor, each Other Depositor, each Other Certificate Administrator, the Master Servicers, the Special Servicers, the Mortgage Loan Sellers, the Underwriters and the Rating Agencies.

 

(e)      It shall not be necessary for the consent of Certificateholders under this Section 13.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Certificate Administrator may prescribe.

 

(f)      The Trustee and the Certificate Administrator shall not be obligated to enter into any amendment pursuant to this Section 13.01 that affects its rights, duties and immunities under this Agreement or otherwise.

 

(g)     The cost of any Opinion of Counsel to be delivered pursuant to Section 13.01(a) or Section 13.01(c) and the cost of any amendment entered into hereunder shall be borne by the Person seeking the related amendment, except that if either Master Servicer, the Certificate Administrator or the Trustee requests any amendment of this Agreement in furtherance of the rights and interests of Certificateholders, the cost of any Opinion of Counsel required in connection therewith pursuant to Section 13.01(a) or Section 13.01(c) shall be payable out of the Collection Accounts.

 

(h)     The Servicing Standard shall not be amended unless each Rating Agency provides Rating Agency Confirmation and, with respect to any class of Serviced Companion Loan Securities, the applicable rating agencies provide a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any

 

 -495-

 

 

Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25).

 

(i)       To the extent the Operating Advisor, the Trustee, the Certificate Administrator, the applicable Master Servicer, the applicable Special Servicer, the Asset Representations Reviewer or Depositor obtains an Opinion of Counsel as provided for in Section 13.01(c) in connection with executing any amendment to this Agreement, such party shall be deemed not to have acted negligently in connection with entering into such amendment for purposes of availing itself of any indemnity provided to such party under this Agreement.

 

(j)       Notwithstanding any other provision of this Agreement, for purposes of the giving or withholding of consents pursuant to this Section 13.01, Certificates registered in the name of the Depositor or any Affiliate of the Depositor shall be entitled to the same Voting Rights with respect to matters described above as they would if any other Person held such Certificates, so long as neither the Depositor nor any of its Affiliates is performing servicing duties with respect to any of the Mortgage Loans.

 

(k)      This Agreement may not be amended without the consent of any holder of a Companion Loan if such amendment would materially and adversely affect the rights of such Companion Holder hereunder.

 

(l)       In addition, if one but not all of the Mortgage Notes evidencing a Joint Mortgage Loan is repurchased by the applicable Mortgage Loan Sellers, this Agreement may be amended by the parties hereto (at the expense of the party requesting such amendment (or, if the applicable Master Servicer or applicable Special Servicer is requesting such amendment in connection with the fulfillment of its duties under this Agreement, at the expense of the Trust)), without the consent of any Certificateholder, to add or modify provisions relating to the applicable Repurchased Note for purposes of the servicing and administration of such Repurchased Note provided that the amendment shall not adversely affect in any material respect the interests of the Certificateholders, as evidenced by a Rating Agency Confirmation from each Rating Agency (obtained at the expense of the Repurchasing Mortgage Loan Seller) with respect to such amendment (or, if no such Rating Agency Confirmation is actually received, by an Opinion of Counsel to such effect). Prior to the effectiveness of such amendment, if one but not all of the Mortgage Notes with respect to a Joint Mortgage Loan is repurchased, the terms of Section 3.30 shall govern the servicing and administration of such Joint Mortgage Loan.

 

Section 13.02  Recordation of Agreement; Counterparts.  (a) To the extent permitted by applicable law, this Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Certificate Administrator at the expense of the Depositor on direction by the applicable Special Servicer and with the consent of the Depositor (which may not be unreasonably withheld), but only upon direction accompanied by an Opinion of Counsel (the cost of which shall be paid by the Depositor) to the effect that such recordation materially and beneficially affects the interests of the Certificateholders.

 

 -496-

 

 

(b)       For the purpose of facilitating the recordation of this Agreement as herein provided and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. This Agreement shall be valid, binding and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned or photocopied manual signature; or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transaction Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”), in each case, to the extent applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.

 

(c)       The Trustee shall make any filings required under the laws of the state of its place of business required solely by virtue of the fact of the location of the Trustee’s place of business, the costs of which, if any, to be at the Trustee’s expense.

 

Section 13.03  Limitation on Rights of Certificateholders. (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.

 

(b)      No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third party by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.

 

(c)      No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, any Intercreditor Agreement, any Mortgage Loan, or with respect to the Certificates, unless, with respect to any suit, action or proceeding upon or under or with respect to this Agreement, such Holder previously shall have given to the Trustee and the Certificate Administrator a written notice of default, and of the continuance thereof, as herein before provided, or of the need to institute such suit, action or proceeding on behalf of the Trust and unless also (except in the case of a default by the Trustee) the Holders of Certificates of any Class evidencing not less than 25% of the related Percentage Interests in such Class shall have

 

 -497-

 

 

made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty (60) days after its receipt of such notice, request and offer of such indemnity, shall have neglected or refused to institute any such action, suit or proceeding. The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it hereunder or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Holders of Certificates unless such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or hereby. It is understood and intended, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatsoever by virtue of any provision of this Agreement or the Certificates to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, which priority or preference is not otherwise provided for herein, or to enforce any right under this Agreement or the Certificates, except in the manner herein or therein provided and for the equal, ratable and common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section 13.03(c), each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Section 13.04  Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

 

EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.

 

 -498-

 

 

THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 -499-

 

Section 13.05  Notices. (a) Any communications provided for or permitted hereunder shall be in writing and, unless otherwise expressly provided herein, shall be deemed to have been duly given when delivered to (or, in the case of facsimile notice, when received):

 

In the case of the Depositor:

Wells Fargo Commercial Mortgage Securities, Inc.
c/o Wells Fargo Securities, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001
Attention: A.J. Sfarra
cmbsnotices@wellsfargo.com

 

with a copy to:

 

Troy B. Stoddard, Esq.
Senior Counsel, Wells Fargo Legal Department, D1086-341 

550 South Tryon Street, 34th Floor
Charlotte, North Carolina 28202

 

In the case of the General Master Servicer:

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager
Email: commercial.servicing@wellsfargo.com

 

with a copy to:

K&L Gates LLP
300 South Tryon Street, Suite 1000
Charlotte, North Carolina 28202
Attention: Stacy G. Ackermann
Facsimile Number: (704) 353-3190

 

In the case of the NCB Master Servicer:

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop

 -500-

 

with a copy to:

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Karyn Mann, Senior Vice President
Facsimile number (703) 647-3479
Email: kmann@ncb.coop

 

In the case of the General Special Servicer:

CWCapital Asset Management LLC
900 19th Street NW, 8th Floor

Washington, D.C. 20006
Attention: Brian Hanson (BANK 2021-BNK37)
E-mail: CWCAMContractNotices@cwcapital.com

 

with a copy to:

 

CWCapital Asset Management LLC
900 19th Street NW, 8th Floor

Washington, D.C. 20006
Attention: Legal Department (BANK 2021-BNK37)

 

In the case of the NCB Special Servicer:

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop

 

with a copy to:

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Karyn Mann, Senior Vice President
Facsimile number (703) 647-3479
Email: kmann@ncb.coop

 -501-

 

 

In the case of the Directing Certificateholder:

BIG BNK37, LLC
c/o Basis Management Group LLC
75 Broad St., Suite 2110
New York, New York 10004
Attention: Ms. Tammy K. Jones, CEO
Email: tammyjones@basisinvgroup.com
Fax No.: (917) 591-8781

 

With a copy to:

Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street NE, Suite 2800
Atlanta, Georgia 30309-4528
Attention: Rex R. Veal
Facsimile number: 404 541 3430

 

In the case of the Risk Retention Consultation Party:

c/o Wells Fargo Securities, LLC
10 S. Wacker Drive, 32nd Floor, N8405-320
Chicago, Illinois 60606
Attention: Brigid Mattingly
Email: Brigid.mattingly@wellsfargo.com

 

with a copy to:

Troy B. Stoddard, Esq.
Senior Counsel, Wells Fargo Legal Department, D1086-341
550 South Tryon Street, 34th Floor
Charlotte, North Carolina 28202

 

In the case of the Trustee:

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee BANK 2021-BNK37

 

with a copy to:

CMBSTrustee@wilmingtontrust.com
Facsimile No.: (302) 636-4140

 

In the case of the Certificate Administrator:

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

 

with a copy to:

 -502-

 

 

cts.cmbs.bond.admin@wellsfargo.com
trustadministrationgroup@wellsfargo.com

 

In the case of the Custodian:

Computershare Trust Company, N.A.
1055 10th Avenue SE
Minneapolis, Minnesota 55414
Attention: Document Custody Group – BANK 2021-BNK37

 

with a copy to cmbscustody@wellsfargo.com

 

in the case of a surrender, transfer or exchange other than with respect to the RR Interest:

 

Computershare Trust Company, N.A.

600 South 4th Street

7th Floor

Minneapolis, Minnesota 55415

Attention: CTS - Certificate Transfer Services – BANK 2021-BNK37

 

in the case of the release or transfer of the RR Interest:

 

Computershare Trust Company, N.A.

9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Risk Retention Custody – BANK 2021-BNK37

with a copy to: riskretentioncustody@wellsfargo.com

 

In the case of the Operating Advisor and the Asset Representations Reviewer:

Park Bridge Lender Services LLC
600 Third Avenue, 40^th Floor
New York, New York 10016
Attention: BANK 2021-BNK31 - Surveillance Manager (with a copy sent
contemporaneously via email to cmbs.notices@parkbridgefinancial.com)

 

In the case of the Mortgage Loan Sellers:

 

  1. Wells Fargo Bank, National Association
301 South College Street
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37, Commercial Mortgage Pass-Through
Certificates, Series 2021-BNK37

 -503-

 

 

with a copy to:

Troy B. Stoddard, Esq.
Senior Counsel, Wells Fargo Legal Department, D1086-341
550 South Tryon Street, 34th Floor
Charlotte, North Carolina 28202

 

and a copy to:

Herschel Patel
Wells Fargo Bank, National Association
10 South Wacker Drive, 32^nd Floor
Chicago IL 60606
Telephone number: (312) 368-6461
Email: herschel.patel@wellsfargo.com and cmbsnotices@wellsfargo.com

 

  2. Bank of America, National Association
One Bryant Park

NY1-100-11-07
New York, New York 10036
Attention: Director of CMBS Securitization
Email: leland.f.bunch@bofa.com

with copies to:

W. Todd Stillerman
Associate General Counsel & Director
Bank of America Legal Department
150 North College Street 

Mail Code: NC1-028-24-02
Charlotte, North Carolina 28255
Email: todd.stillerman@bofa.com

and

 

cmbsnotices@bofa.com

 

and

 

Katten Muchin Rosenman LLP
550 S. Tyron Street, Suite 2900
Charlotte, North Carolina 28202-4213
Attention: Joshua J. Yablonski, Esq.
Email: joshua.yablonski@katten.com

 -504-

 

 

  3. Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

 

and

cmbs_notices@morganstanley.com

 

  4. National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number (703) 647-3473

Email: kluzik@ncb.coop

 

with a copy to:

 

National Cooperative Bank, N.A.

2011 Crystal Drive, Suite 800

Arlington, Virginia 22202

Attention: Karyn Mann, Senior Vice President

Facsimile number (703) 647-3479

Email: kmann@ncb.coop

 

In the case of any mezzanine lender:

The address set forth in the related Intercreditor Agreement.

 

In the case of any Companion Holder:

The address set forth in the related Intercreditor Agreement.

 

To each such Person, such other address as may hereafter be furnished by such Person to the parties hereto in writing. Any communication required or permitted to be delivered to a Certificateholder shall be deemed to have been duly given when mailed first class, postage prepaid, to the address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice.

 -505-

 

 

(b)       Any party required to deliver any notice or information pursuant to the terms of this Agreement to the Rating Agencies shall deliver such written notice of the events or information specified in Section 3.13(c) to the Rating Agencies at the address listed below, promptly following the occurrence thereof. The applicable Master Servicer or the applicable Special Servicer, as the case may be, the Certificate Administrator, and Trustee also shall furnish such other information regarding the Trust as may be reasonably requested by the Rating Agencies to the extent such party has or can obtain such information without unreasonable effort or expense; provided, however, that such other information is first provided to the 17g-5 Information Provider in accordance with the procedures set forth in Section 3.13(c); provided, further, that the 17g-5 Information Provider shall not disclose which Rating Agency has requested such information. Notwithstanding the foregoing, the failure to deliver such notices or copies shall not constitute a Servicer Termination Event, as the case may be, under this Agreement. Any confirmation of the rating by the Rating Agencies required hereunder shall be in writing.

 

Any notices to the Rating Agencies shall be sent to the following addresses:

Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
E-mail: cmbssurveillance@kbra.com

 

               Fitch Ratings, Inc.
300 West 57th Street
New York, New York 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

 

Moody’s Investors Service, Inc.

7 World Trade Center

250 Greenwich Street

New York, New York 10007

Attention: Commercial Mortgage Surveillance Manager

E-mail: CMBSSurveillance@moodys.com

 

Section 13.06 Severability of Provisions.  If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.

 

Section 13.07  Grant of a Security Interest.  The Depositor intends that the conveyance of the Conveyed Property shall constitute a sale and not a pledge of security for a loan. If such conveyance is deemed to be a pledge of security for a loan, however, the Depositor

 -506-

 

 

intends that the rights and obligations of the parties to such loan shall be established pursuant to the terms of this Agreement. The Depositor also intends and agrees that, in such event, (i) the Depositor shall be deemed to have granted to the Trustee (in such capacity) a first priority security interest in the Depositor’s entire right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising, the Conveyed Property and all proceeds thereof and (ii) this Agreement shall constitute a security agreement under applicable law. The Depositor shall file or cause to be filed, as a precautionary filing, a UCC Financing Statement in all appropriate locations in the State of Delaware promptly following the initial issuance of the Certificates, and the Certificate Administrator shall, at the expense of the Depositor (to the extent reasonable), prepare and file continuation statements with respect thereto, in each case in the six-month period prior to every fifth anniversary of the date of the initial UCC Financing Statement. The Depositor shall cooperate in a reasonable manner with the Certificate Administrator in the preparation and filing of such continuation statements. This Section 13.07 shall constitute notice to the Certificate Administrator and the Trustee pursuant to any of the requirements of the applicable UCC.

 

Section 13.08 Successors and Assigns; Third Party Beneficiaries.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, and all such provisions shall inure to the benefit of the Certificateholders.  Each Mortgage Loan Seller (and its respective agents), each Companion Holder (and its respective agents), each Underwriter, each depositor of a Regulation AB Companion Loan Securitization, each Other Exchange Act Reporting Party (with respect to its rights under Article XI of this Agreement) and each Initial Purchaser is an intended third-party beneficiary to this Agreement in respect of the respective rights afforded it hereunder. No other person, including, without limitation, any Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim under this Agreement. If one, but not all, of the Mortgage Notes evidencing any Joint Mortgage Loan is repurchased, the applicable Repurchasing Mortgage Loan Seller shall be a third-party beneficiary of this Agreement to the same extent as if it were a Companion Holder, as contemplated by Section 3.30 hereof.

 

(b)      Each Serviced Companion Noteholder shall be a third-party beneficiary to this Agreement in respect to the rights afforded it hereunder. Each of the Other Servicers and the Other Trustees shall be a third-party beneficiary to this Agreement in respect to all provisions herein expressly relating to compensation, reimbursement or indemnification of such Other Servicer and Other Trustee, and any provisions regarding reimbursement or advances or interest thereon to such Other Servicer or Other Trustee.

 

(c)      Each of the applicable Non-Serviced Trustee, Non-Serviced Master Servicer, Non-Serviced Special Servicer, Non-Serviced Depositor, Non-Serviced Paying Agent and any Non-Serviced Trust holding a related Non-Serviced Companion Loan, shall be a third-party beneficiary to this Agreement in respect to its rights as specifically provided for herein and under the applicable Non-Serviced Intercreditor Agreement.

 

(d)      Subject to Section 2.03(k), Section 2.03(l)(iv) and Section 2.03(l)(v), any Requesting Certificateholder shall be an express third-party beneficiary to this Agreement for purposes of exercising rights under Section 2.03(k) through Section 2.03(o).

 

 

 -507-

 

 

Section 13.09  Article and Section Headings.  The article and section headings herein are for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.

 

Section 13.10  Notices to the Rating Agencies.  (a) The Certificate Administrator shall use reasonable efforts promptly to provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), (and the related 17g-5 information provider for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each of the following of which it has actual knowledge:

 

(i)        any material change or amendment to this Agreement;

 

(ii)       the occurrence of a Servicer Termination Event that has not been cured;

 

(iii)      the resignation or termination of the Certificate Administrator, either Master Servicer, the Asset Representations Reviewer or either Special Servicer; and

 

(iv)      the repurchase or substitution of Mortgage Loans by the related Mortgage Loan Seller pursuant to Section 5 of the related Mortgage Loan Purchase Agreement.

 

(b)       The Master Servicers shall use reasonable efforts to promptly provide notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), with respect to each of the following of which it has actual knowledge:

 

(i)        the resignation or removal of the Trustee or the Certificate Administrator;

 

(ii)       any change in the location of the Collection Accounts;

 

(iii)      any event that would result in the voluntary or involuntary termination of any insurance of the accounts of the Trustee;

 

(iv)      any change in the lien priority of any Mortgage Loan with respect to an assumption of the Mortgage Loan or additional encumbrance described in Section 3.08;

 

(v)       any additional lease to an anchor tenant or termination of any existing lease to an anchor tenant at retail properties for any Mortgage Loan with a Stated Principal Balance that is equal to or greater than the lesser of (1) an amount greater than 5% of the then-aggregate outstanding principal balances of the Mortgage Loans and (2) $35,000,000;

 

(vi)      any material damage to any Mortgaged Property;

 

(vii)     any assumption with respect to a Mortgage Loan; and

 

(viii)    any release or substitution of any Mortgaged Property.

 

 -508-

 

 

(c)       The Certificate Administrator shall promptly furnish notice to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to the Rating Agencies of (i) any change in the location of the Distribution Accounts and (ii) the final payment to any Class of Certificateholders.

 

(d)      The Trustee, the Certificate Administrator, either Master Servicer and either Special Servicer, as applicable, shall furnish to the 17g-5 Information Provider for posting on the 17g-5 Information Provider’s Website pursuant to Section 3.13(c), and thereafter to each Rating Agency (and any rating agency for any class of Serviced Companion Loan Securities to the extent applicable to any Serviced Whole Loan) with respect to each Mortgage Loan (other than any Non-Serviced Mortgage Loan) such information as any Rating Agency shall reasonably request and which the Trustee, the Certificate Administrator, the Master Servicers or Special Servicers, can reasonably provide in accordance with applicable law and without waiving any attorney-client privilege relating to such information or violating the terms of this Agreement or any Mortgage Loan documents. The Trustee, the Certificate Administrator, either Master Servicer and either Special Servicer, as applicable, may include any reasonable disclaimer it deems appropriate with respect to such information. Notwithstanding anything to the contrary herein, nothing in this Section 13.10 shall require a party to provide duplicative notices or copies to the Rating Agencies with respect to any of the above listed items. In connection with the delivery by either Master Servicer or either Special Servicer to the 17g-5 Information Provider of any information, report, notice or document for posting to the 17g-5 Information Provider’s Website, the 17g-5 Information Provider shall notify such Master Servicer or such Special Servicer when such information, report, notice or document has been posted. The applicable Master Servicer or the applicable Special Servicer, as the case may be, may, but shall not be obligated to send such information, report, notice or document to the applicable Rating Agency so long as such information, report, notice or document (i) was previously provided to the 17g-5 Information Provider or (ii) is simultaneously provided, by 2:00 p.m. (New York City time) on any Business Day, to the 17g-5 Information Provider.

 

Section 13.11  Cooperation with the Mortgage Loan Sellers with Respect to Rights Under the Mortgage Loan Agreements. It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Sellers are entitled to the benefit of any securitization indemnification provisions that specifically run to the benefit of the lenders in the Mortgage Loan documents. Therefore, the Depositor, General Master Servicer, NCB Master Servicer, General Special Servicer, NCB Special Servicer and Trustee hereby agree to reasonably cooperate with any Mortgage Loan Seller, at the sole expense of such Mortgage Loan Seller, with respect to obtaining the benefits of the provisions of any section of a loan agreement or securitization cooperation agreement providing for indemnification of the lender and/or its loan seller affiliates with respect to the current securitization of the related Mortgage Loan, including, without limitation, executing any documents as are reasonably necessary to permit the related Mortgage Loan Seller to enforce such provisions for its benefit; provided, that none of the Depositor, General Master Servicer, NCB Master Servicer, General Special Servicer, NCB Special Servicer or Trustee shall be required to take any action that is inconsistent with the Servicing Standard, would violate applicable law, the terms and provisions of this Agreement or the Mortgage Loan documents, would adversely affect any Certificateholder, would cause either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal 

 

 -509-

 

 

income tax purposes, or would result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions. To the extent that the Trustee is required to execute any document facilitating the above rights of a Mortgage Loan Seller under this Section 13.11, such document shall be in form and substance reasonably acceptable to the Trustee.

 

[End of Article XIII]

 

[SIGNATURES COMMENCE ON FOLLOWING PAGE]

 

 -510-

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized, in each case as of the day and year first above written.

 

	WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC., Depositor
	By:	/s/ Anthony J. Sfarra
		Name: Anthony J. Sfarra
		Title: President
	WELLS FARGO BANK, NATIONAL ASSOCIATION, General Master Servicer
	By:	/s/ Amanda Perkins
		Name: Amanda Perkins
		Title: Vice President
	NATIONAL COOPERATIVE BANK, N.A., NCB Master Servicer
	By:	/s/ Karyn Mann
		Name: Karyn Mann
		Title: Senior Vice President
	CWCapital Asset Management LLC, General Special Servicer
	By:	/s/ Brian Hanson
		Name: Brian Hanson
		Title: Managing Director

 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

	NATIONAL COOPERATIVE BANK, N.A., NCB Special Servicer
	By:	/s/ Karyn Mann
		Name: Karyn Mann
		Title: Senior Vice President
	COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity, but solely as Certificate Administrator
	By:	/s/ Scott Little
		Name: Scott Little
		Title: Vice President
	wilmington Trust, NATIONAL ASSOCIATION, not in its individual capacity, but solely as Trustee
	By:	/s/ Lester Hendrix
		Name: Lester Hendrix
		Title: Vice President

 

	PARK BRIDGE LENDER SERVICES LLC,
		as Operating Advisor

	By:	/s/ Robert J. Spinna Jr.
		Name: Robert J. Spinna Jr.
		Title: Managing Member

 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

	PARK BRIDGE LENDER SERVICES LLC,
		as Asset Representations Reviewer

	By:	/s/ Robert J. Spinna Jr.
		Name: Robert J. Spinna Jr.
		Title: Managing Director

 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 ACKNOWLEDGEMENT

COMMONWEALTH OF VIRGINIA	)
	)     ss.:
COUNTY OF ARLINGTON	)

 

On the 18th day of November, 2021, before me, a notary public in and for said Commonwealth, personally appeared Karyn Mann known to me to be a Senior Vice President of National Cooperative Bank, N.A., and also known to me to be the person who executed the attached instrument on behalf of such national banking association, and acknowledged to me that such Senior Vice President executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

	/s/ Michael A. Payne
	Notary Public in and for said County and State

 

My commission expires:
October 31, 2025

 

MICHAEL A. PAYNE
Notary Public
Commonwealth of Virginia
356490
My Commission Expires Oct 31, 2025 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

 

 ACKNOWLEDGEMENT

COMMONWEALTH OF VIRGINIA	)
	)     ss.:
COUNTY OF ARLINGTON	)

 

On the 18th day of November, 2021, before me, a notary public in and for said Commonwealth, personally appeared Karyn Mann known to me to be a Senior Vice President of National Cooperative Bank, N.A., and also known to me to be the person who executed the attached instrument on behalf of such national banking association, and acknowledged to me that such Senior Vice President executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

	/s/ Michael A. Payne
	Notary Public in and for said County and State

 

My commission expires:
October 31, 2025

 

MICHAEL A. PAYNE
Notary Public
Commonwealth of Virginia
356490
My Commission Expires Oct 31, 2025 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

DISTRICT OF COLUMBIA 

 

On the 19 day of November 2021, before me, a notary public in and for said State, personally appeared Brian Hanson known to me to be a Managing Director of CWCapital Asset Management LLC, that executed the within instrument, and also known to me to be the person who executed it on behalf of such limited liability company and acknowledged to me that such limited liability company executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

	/s/ Deanna L. Dawson
	Notary Public

 

DEANNA L. DAWSON
NOTARY PUBLIC
DISTRICT OF COLUMBIA
EXP: 01/01/2026
[SEAL]
My commission expires:
01/01/26

 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

STATE OF MN	)
	)     ss.:
COUNTY OF Hennepin	)

 

On the 18 day of Nov., 2021, before me, a notary public in and for said State, personally appeared Scott Little known to me to be a VP of Computershare Trust Company, N.A., that executed the within instrument, and also known to me to be the person who executed it on behalf of such national banking association, and acknowledged to me that such national banking association executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

	/s/ Mary Monson-Owen
	Notary Public

 

MARY GUY MONSON-OWEN NOTARY PUBLIC - MINNESOTA MY COMMISSION EXPIRES 01/31/2025
[SEAL]
My commission expires:

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

STATE OF DELAWARE	)
	)     ss.:
COUNTY OF NEW CASTLE	)

 

On the 18^th day of November 2021, before me, a notary public in and for said State, personally appeared Lester Hendrix known to me to be a Vice President of Wilmington Trust, National Association, that executed the within instrument, and also known to me to be the person who executed it on behalf of such national banking association and acknowledged to me that such national banking association executed the within instrument.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

	/s/ Chad N. May
	Notary Public

 

[SEAL]	CHAD N. MAY NOTARY PUBLIC STATE OF DELAWARE MY COMMISION EXPIRES 04-06-2024
My commission expires:

 

BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

STATE OF NEW YORK	)
	)     ss.:
COUNTY OF NEW YORK	)

 

On this 18 day of November 2021, before me, the undersigned, a Notary Public in and for the State of New York, duly commissioned and sworn, personally appeared Robert J. Spinna, Jr., to me known who, by me duly sworn, did depose and acknowledge before me that he is a Managing Member of Park Bridge Financial LLC, which is the sole member of Park Bridge Advisors LLC, which in turn is the sole member of Park Bridge Lender Services LLC, the entity described in and that executed the foregoing instrument; and that he signed his name thereto under authority of said entity and on behalf of such entity.

 

WITNESS my hand and seal hereto affixed the day and year first above written.

 

	/s/ Chandra L. Claypool
	NOTARY PUBLIC in and for the State of New York

 

[SEAL]
My commission expires: ______________________
(Date)
CHANDRA L. CLAYPOOL Notary Public, State of New York No. 01CL6375616 Qualified in Queens County Commission Expires May 29, 2022

 BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

STATE OF NEW YORK	)
	)     ss.:
COUNTY OF NEW YORK	)

 

On this 18 day of November 2021, before me, the undersigned, a Notary Public in and for the State of New York, duly commissioned and sworn, personally appeared Robert J. Spinna, Jr., to me known who, by me duly sworn, did depose and acknowledge before me that he is a Managing Member of Park Bridge Financial LLC, which is the sole member of Park Bridge Advisors LLC, which in turn is the sole member of Park Bridge Lender Services LLC, the entity described in and that executed the foregoing instrument; and that he signed his name thereto under authority of said entity and on behalf of such entity.

 

WITNESS my hand and seal hereto affixed the day and year first above written.

 

	/s/ Chandra L. Claypool
	NOTARY PUBLIC in and for the State of New York

 

[SEAL]
My commission expires: ______________________
(Date)
CHANDRA L. CLAYPOOL Notary Public, State of New York No. 01CL6375616 Qualified in Queens County Commission Expires May 29, 2022

 BANK 2021-BNK37 – Pooling and Servicing Agreement 

 

 

 

EXHIBIT A-1

FORM OF CERTIFICATE (OTHER THAN CLASS R CERTIFICATES)

BANK 2021-BNK37

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK37, CLASS [__]

[FOR PRIVATELY OFFERED CERTIFICATES (CLASSES X-D, X-F, X-G, X-H, D, E, F, G, AND H): THIS CERTIFICATE IS A TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE FOR PURPOSES OF REGULATION S (“REGULATION S”) UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.

NO BENEFICIAL OWNERS OF THIS TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.]¹

[FOR BOOK-ENTRY CERTIFICATES: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]²

[TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS

¹        Temporary Regulation S Book-Entry Certificate legend.

²        Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement. 

 A-1-1

SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]³

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

[FOR PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH CERTIFICATE BALANCES (CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G AND H): PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.]

[FOR PRIVATELY OFFERED CERTIFICATES (CLASSES X-D, X-F, X-G, X-H, D, E, F, G AND H): THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) AND ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY

³ Book-Entry Certificate legend.

 A-1-2

APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.]

[FOR CLASS X-F, X-G, X-H, F, G AND H CERTIFICATES: THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN OR PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.]

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): SUBJECT TO THE CONDITIONS AND PROCEDURES SET FORTH IN THE POOLING AND SERVICING AGREEMENT, THIS CERTIFICATE MAY BE EXCHANGED FOR OTHER EXCHANGEABLE CERTIFICATES IN THE AMOUNTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.]

[FOR REGULAR CERTIFICATES (CLASSES A-1, A-2, A-3, A-SB, X-A, X-B, X-D, X-F, X-G, X-H, D, E, F, G AND H): THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.]

[FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): THIS CERTIFICATE REPRESENTS AN

 A-1-3

UNDIVIDED BENEFICIAL INTEREST IN A PORTION OF THE RELATED EXCHANGEABLE CLASS SPECIFIC GRANTOR TRUST ASSETS.]

[FOR PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH CERTIFICATE BALANCES (CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G AND H): THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.]

[FOR CLASS X CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH A NOTIONAL AMOUNT: THIS CLASS [X-A][X-B][X-D][X-F][X-G][X-H][A-4-X1][A-4-X2][A-5-X1][A-5-X2][A-S-X1][A-S-X2][B-X1][B-X2][C-X1][C-X2] CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY DISTRIBUTIONS OF PRINCIPAL.]

[FOR CLASS X-A CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE AGGREGATE CERTIFICATE BALANCE CLASS A-1, CLASS A-2, CLASS A-3 AND CLASS A-SB CERTIFICATES AND THE CLASS A-4 AND CLASS A-5 UPPER-TIER REGULAR INTERESTS. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS X-B CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-S UPPER-TIER REGULAR INTEREST AND THE CLASS B UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS X-D CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCES OF THE CLASS D AND CLASS E CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

 A-1-4

[FOR CLASS X-F CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS X-G CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS X-H CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS A-4-X1 AND A-4-X2 CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS A-4 UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS A-5-X1 AND A-5-X2 CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS A-5 UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS A-S-X1 AND A-S-X2 CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS A-S UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS B-X1 AND B-X2 CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS B UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE

 A-1-5

AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS C-X1 AND C-X2 CERTIFICATES: THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE REDUCED IN CONNECTION WITH THE REDUCTION OF THE CERTIFICATE BALANCE OF THE CLASS C UPPER-TIER REGULAR INTEREST. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL AMOUNT SET FORTH BELOW.]

[FOR CLASS X CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH A NOTIONAL AMOUNT: THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS [X-A][X-B][X-D][X-F][X-G][X-H][A-4-X1][A-4-X2][A-5-X1][A-5-X2][A-S-X1][A-S-X2][B-X1][B-X2][C-X1][C-X2] CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.]

[FOR SUBORDINATE CERTIFICATES (CLASSES A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2, D, E, F, G AND H): THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]

 A-1-6

PASS-THROUGH RATE: [FOR CLASS A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5-X1, A-5-X2, A-S-X1, A-S-X2, B-X1, B-X2, C-X1, C-X2,: [____]% per annum] [FOR CLASS A-5, A-S, B, D, E, F, G, H: THE LESSER OF (I) [__]% per annum AND (II) THE WEIGHTED AVERAGE NET MORTGAGE RATE] [FOR CLASS C: THE WEIGHTED AVERAGE NET MORTGAGE RATE] [FOR CLASS A-5-1, A-S-1, B-1, C-1: THE SUM OF THE CLASS [A-5/A-S/B/C] UT PASS-THROUGH RATE AND THE CLASS [A-5-X2/A-S-X2/B-X2/C-X2] UT PASS-THROUGH RATE] [FOR CLASS A-5-2, A-S-2, B-2, C-2: THE CLASS [A-5/A-S/B/C] UT PASS-THROUGH RATE] [FOR CLASS X-A, X-B, X-D, X-F, X-G, X-H: VARIABLE IN ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT]   INITIAL [CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[                 ]   DATE OF POOLING AND SERVICING AGREEMENT: AS OF NOVEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: NOVEMBER 22, 2021   FIRST DISTRIBUTION DATE:
DECEMBER 17, 2021   APPROXIMATE AGGREGATE [CERTIFICATE BALANCE][NOTIONAL AMOUNT] OF THE CLASS [__] CERTIFICATES
AS OF THE CLOSING DATE:
$[_________]   GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER: CWCAPITAL ASSET MANAGEMENT LLC   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR: COMPUTERSHARE TRUST COMPANY, N.A.   OPERATING Advisor: PARK BRIDGE LENDER SERVICES LLC   ASSET REPRESENTATIONS REVIEWER: PARK BRIDGE LENDER SERVICES LLC   CUSIP NO.: [                ]   ISIN NO.: [                ]   CERTIFICATE NO.: [_] - ______  

 A-1-7

CLASS [__] CERTIFICATE

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in the Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by

WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC.

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [______]] is the registered owner of the interest evidenced by this Certificate in the Class [__] Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), among WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (subject to adjustments reflected on the schedule of exchanges attached hereto)] equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof, by the aggregate initial [Certificate Balance][Notional Amount] of the Class [__] Certificates [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): (as increased or decreased, as the case may be, to reflect any exchanges of Exchangeable Certificates)]. The Certificates are designated as the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and

 A-1-8

is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

[FOR REGULAR CERTIFICATES (CLASSES A-1, A-2, A-3, A-SB, X-A, X-B, X-D, X-F, X-G, X-H, D, E, F, G AND H): This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”).] [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): This Certificate represents an undivided beneficial interest in a portion of the related Exchangeable Class Specific Grantor Trust Assets.] Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of [FOR PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH CERTIFICATE BALANCES (CLASSES A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G AND H): principal and] interest then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. [FOR CLASS A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1, C-X2, D, E, X-A AND X-B CERTIFICATES: Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.] All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Class [__] Pass-Through Rate specified above on the [Certificate Balance][Notional Amount] of this Certificate immediately prior to each Distribution Date. [FOR CLASS X CERTIFICATES AND CLASS A-4-X1, A-4-X2, A-5-X1, A-5-X2, A-S-X1, A-S-X2, B-X1, B-X2, C-X1 AND C-X2 CERTIFICATES: Interest][FOR PRINCIPAL BALANCE CERTIFICATES AND EXCHANGEABLE CERTIFICATES WITH CERTIFICATE BALANCES (CLASS A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1, C-2, D, E, F, G AND H): Principal and interest] allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Available Funds to be distributed on the Certificates of this Class as of such

 A-1-9

Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Realized Losses on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments. Interest or other investment income earned on funds in the Collection Accounts will be paid to the Master Servicers as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust Fund.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to Section 4.01(h) of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate,

 A-1-10

subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 4.01(h) of the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

Subject to the terms of the Pooling and Servicing Agreement, the Class [__] Certificates will be issued in minimum denominations of $[FOR CLASS A-1, A-2, A-3, A-SB, A-4, A-4-1, A-4-2, A-5, A-5-1, A-5-2, A-S, A-S-1, A-S-2, B, B-1, B-2, C, C-1 AND C-2: 10,000 initial Certificate Balance][FOR CLASS A-4-X1, A-4-X2, A-5-X1, A-5-X2, A-S-X1, A-S-X2, B-X1, B-X2, C-X1 AND C-X2: 10,000 initial Notional Amount][FOR CLASS D, E, F, G AND H CERTIFICATES: 100,000 initial Certificate Balance][FOR CLASS X-A, X-B, X-D, X-F, X-G and X-H CERTIFICATES: 1,000,000 initial Notional Amount], and in integral multiples of $1 in excess thereof, with one Certificate of each such Class evidencing an additional amount equal to the remainder of the initial [Certificate Balance][Notional Amount] of such Class.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 [FOR EXCHANGEABLE CERTIFICATES (CLASSES A-4, A-4-1, A-4-2, A-4-X1, A-4-X2, A-5, A-5-1, A-5-2, A-5-X1, A-5-X2, A-S, A-S-1, A-S-2, A-S-X1, A-S-X2, B, B-1, B-2, B-X1, B-X2, C, C-1, C-2, C-X1 AND C-X2): and Section 5.11] of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

 A-1-11

The Pooling and Servicing Agreement may be amended from time to time by the parties thereto, without the consent of any of the Certificateholders or the Companion Holders:

(i)          to correct any defect or ambiguity in the Pooling and Servicing Agreement in order to address any manifest error in any provision of the Pooling and Servicing Agreement;

(ii)         to cause the provisions in the Pooling and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or the Pooling and Servicing Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

(iii)        to change the timing and/or nature of deposits in the Collection Accounts, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

(iv)        to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust, any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

(v)         to modify, eliminate or add to the provisions of Section 5.03(o) of the Pooling and Servicing Agreement or any other provision of the Pooling and Servicing Agreement restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

(vi)        to revise or add any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or

 A-1-12

any holder of a Serviced Companion Loan not consenting to such revision or addition as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(vii)       to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

(viii)      to modify the provisions of Sections 3.05 and 3.17 of the Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder, the Directing Certificateholder, determine that the commercial mortgage-backed securities industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not adversely affect the status of any Trust REMIC as a REMIC or the status of the Grantor Trust as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(ix)        to modify the procedures of the Pooling and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holder of the RR Interest), as evidenced by

 A-1-13

(x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) of the Pooling and Servicing Agreement and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

(x)         to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

(xi)        to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed, to the extent required to comply with any such amendment or to modify or eliminate the provision related to the risk retention requirements in the event of such repeal.

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

The Pooling and Servicing Agreement may also be amended from time to time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

(i)          reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans or Whole Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

(ii)         reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

 A-1-14

(iii)        adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

(iv)        change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller; or

(v)         amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement) and, if required under the related Intercreditor Agreement, the consent of the Subordinate Companion Holder(s) for each Serviced AB Whole Loan.

Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the Master Servicers or the Special Servicers shall consent to any amendment to the Pooling and Servicing Agreement without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted under the Pooling and Servicing Agreement, that all conditions precedent have been satisfied and that such amendment or the exercise of any power granted to the Master Servicer, the Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to the Pooling and Servicing Agreement may be made that changes any provision specifically required to be included therein by an Intercreditor Agreement related to a Companion Loan without in each case the consent of the holder of the related Companion Loan(s).

The Holders of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, either Special Servicer, either Master

 A-1-15

Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans as set forth in the Pooling and Servicing Agreement.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of the Master Servicers, to exchange all of its Certificates (other than the Class R Certificates and the RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James’s, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 A-1-16

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	AUTHORIZED SIGNATORY

Dated: November 22, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS ONE OF THE CLASS [__] CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

COMPUTERSHARE TRUST COMPANY, N.A., as Authenticating Agent
By:
	AUTHORIZED SIGNATORY

 A-1-17

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT JT TEN	- -	as tenants by the entireties as joint tenants with rights of	Custodian (Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ____________________________

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

 A-1-18

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _______________________________ for the account of __________________________ account number _______________ or, if mailed by check, to __________________________. Statements should be mailed to _________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 A-1-19

[TO BE ATTACHED TO RULE 144A/REGULATION S BOOK-ENTRY CERTIFICATES AND EXCHANGEABLE CERTIFICATES]

SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES

The following exchanges of a part of this Global Certificate have been made:

Date of Exchange Amount of
Decrease in Principal
Amount of this Global Certificate Amount of Increase in Principal Amount of this Global Certificate Principal Amount of this Global Certificate following such decrease (or increase) Signature of authorized officer of Trustee or securities custodian

 A-1-20

EXHIBIT A-2

FORM OF CLASS R CERTIFICATE

BANK 2021-BNK37

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK37, CLASS R

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE

 A-2-1

FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN OR PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.

THIS CERTIFICATE REPRESENTS A “RESIDUAL INTEREST” IN TWO “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, DISQUALIFIED NON-U.S. TAX PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 5.03 OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE CERTIFICATE ADMINISTRATOR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN SECTION 860E(e)(5) OF THE CODE, OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS CERTIFICATE REPRESENTS ONE OR MORE “NON-ECONOMIC RESIDUAL INTERESTS” AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), AND THEREFORE, TRANSFERS OF THIS CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A

 A-2-2

REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN TREASURY REGULATIONS.

 A-2-3

PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: [_]%   DATE OF POOLING AND SERVICING AGREEMENT: AS OF NOVEMBER 1, 2021   CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN)   CLOSING DATE: NOVEMBER 22, 2021   FIRST DISTRIBUTION DATE:
DECEMBER 17, 2021   CLASS R PERCENTAGE INTEREST: 100%   GENERAL MASTER SERVICER: WELLS FARGO BANK, NATIONAL ASSOCIATION   GENERAL SPECIAL SERVICER: CWCAPITAL ASSET MANAGEMENT LLC   NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A.   TRUSTEE: WILMINGTON TRUST, NATIONAL ASSOCIATION   CERTIFICATE ADMINISTRATOR: COMPUTERSHARE TRUST COMPANY, N.A.   OPERATING Advisor: PARK BRIDGE LENDER SERVICES LLC   ASSET REPRESENTATIONS REVIEWER: PARK BRIDGE LENDER SERVICES LLC   CUSIP NO.: [            ]   ISIN NO.: [            ]   CERTIFICATE NO.: R-____  

 A-2-4

CLASS R CERTIFICATE

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in the Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by

WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC.

THIS CERTIFIES THAT [____________________] is the registered owner of the interest evidenced by this Certificate in the Class R Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), among WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the percentage interest specified on the face hereof. The Certificates are designated as the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

This Class R Certificate represents a “residual interest” in two “real estate mortgage investment conduits”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”). Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the

 A-2-5

treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income. The Certificate Administrator shall be the “partnership representative” within the meaning of Section 6223 of the Code for each Trust REMIC and shall perform all the functions thereof. The Holders of the Class R Certificates, by their acceptance hereof, agree to such designation.

Pursuant to the terms of the Pooling and Servicing Agreement, distributions, if any, on this Certificate shall be made by the Certificate Administrator in an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) thereof and to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the Distribution Date to the Person in whose name this Certificate is registered as of the related Record Date. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments. Interest or other investment income earned on funds in the Collection Accounts will be paid to the Master Servicers as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust Fund.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Realized Losses previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to

 A-2-6

which notice has been given pursuant to Section 4.01(h) of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 4.01(h) of the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon surrender of this Certificate for registration of transfer at the office of the Certificate Registrar or at the office of its transfer agent, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney-in-fact duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized Denominations will be issued to the designated transferee or transferees.

Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions: (A) no Person holding any Ownership Interest in a Class R Certificate shall be a Disqualified Organization or agent thereof (including a nominee, middleman or similar person) (an “Agent”), a Plan or a Person acting on behalf of or using the assets of a Plan (such Plan or Person, an “ERISA Prohibited Holder”) or a Disqualified Non-U.S. Tax Person and each Person holding any Ownership Interest in a Class R Certificate shall promptly notify the Certificate Registrar of any change or impending change to such status; (B) in connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Class R Certificate shall be registered until the Certificate Registrar receives (I) an affidavit substantially in the form attached to the Pooling and Servicing Agreement as Exhibit D-1 (a “Transferee Affidavit”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is not a Disqualified Organization or Agent thereof or a Disqualified Non-U.S. Tax Person, and that it has reviewed the provisions of Section 5.03(p) of the Pooling and Servicing Agreement and agrees to be bound by them and (II) a representation letter, substantially in the form attached to the Pooling and Servicing Agreement as Exhibit F-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is not an ERISA Prohibited Holder; (C) notwithstanding the delivery of a Transferee Affidavit by a proposed

 A-2-7

Transferee under clause (B) above, if the Certificate Registrar has actual knowledge that the proposed Transferee is a Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a Disqualified Non-U.S. Tax Person, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected; and (D) each Person holding any Ownership Interest in a Class R Certificate shall agree (1) to require a Transferee Affidavit from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Class R Certificate and (2) not to transfer its Ownership Interest in such Class R Certificate unless it provides to the Certificate Registrar a letter substantially in the form attached to the Pooling and Servicing Agreement as Exhibit D-2 certifying that, among other things, it has no actual knowledge or reason to know that the proposed Transferee’s statements in such Transferee Affidavit are false.

The Class R Certificates will be issued in fully registered, certificated form, in minimum percentage interests of 10% and integral multiples of 1% in excess thereof.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

The Pooling and Servicing Agreement may be amended from time to time by the parties thereto, without the consent of any of the Certificateholders or the Companion Holders:

(i)          to correct any defect or ambiguity in the Pooling and Servicing Agreement in order to address any manifest error in any provision of the Pooling and Servicing Agreement;

(ii)         to cause the provisions in the Pooling and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or the Pooling and Servicing Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

 A-2-8

(iii)        to change the timing and/or nature of deposits in the Collection Accounts, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

(iv)        to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust, any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

(v)         to modify, eliminate or add to the provisions of Section 5.03(o) of the Pooling and Servicing Agreement or any other provision of the Pooling and Servicing Agreement restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

(vi)        to revise or add any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or any holder of a Serviced Companion Loan not consenting to such revision or addition as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(vii)       to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency

 A-2-9

Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

(viii)      to modify the provisions of Sections 3.05 and 3.17 of the Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder, the Directing Certificateholder, determine that the commercial mortgage-backed securities industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not adversely affect the status of any Trust REMIC as a REMIC or the status of the Grantor Trust as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(ix)        to modify the procedures of the Pooling and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holder of the RR Interest), as evidenced by (x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) of the Pooling and Servicing Agreement and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

(x)         to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

(xi)        to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the risk retention requirements for

 A-2-10

this securitization transaction are amended or repealed, to the extent required to comply with any such amendment or to modify or eliminate the provision related to the risk retention requirements in the event of such repeal.

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

The Pooling and Servicing Agreement may also be amended from time to time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

(i)          reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans or Whole Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

(ii)         reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

(iii)        adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

(iv)        change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller; or

(v)         amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be

 A-2-11

considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement) and, if required under the related Intercreditor Agreement, the consent of the Subordinate Companion Holder(s) for each Serviced AB Whole Loan.

Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the Master Servicers or the Special Servicers shall consent to any amendment to the Pooling and Servicing Agreement without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted under the Pooling and Servicing Agreement, that all conditions precedent have been satisfied and that such amendment or the exercise of any power granted to the Master Servicer, the Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to the Pooling and Servicing Agreement may be made that changes any provision specifically required to be included therein by an Intercreditor Agreement related to a Companion Loan without in each case the consent of the holder of the related Companion Loan(s).

The Holders of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, either Special Servicer, either Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans as set forth in the Pooling and Servicing Agreement.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of the Master Servicers, to exchange all of its Certificates (other than Class R Certificates and the RR Interest) together with the payment or deemed payment of the

 A-2-12

Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James’s, living on the date hereof.

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

 A-2-13

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.

COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	AUTHORIZED SIGNATORY

Dated: November 22, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

COMPUTERSHARE TRUST COMPANY, N.A., as Authenticating Agent
By:
	AUTHORIZED SIGNATORY

 A-2-14

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________
TEN ENT JT TEN	- -	as tenants by the entireties as joint tenants with rights of	Custodian (Cust)
		survivorship and not as tenants in	Under Uniform Gifts to Minors
		common
			Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ____________________________

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

 A-2-15

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution: 

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _______________________________ for the account of __________________________ account number _______________ or, if mailed by check, to __________________________. Statements should be mailed to _________________________. This information is provided by assignee named above, or ______________________________, as its agent.

 A-2-16

EXHIBIT A-3

FORM OF RR INTEREST

RR INTEREST

BANK 2021-BNK37

COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES

SERIES 2021-BNK37, RR INTEREST

[FOR BOOK-ENTRY CERTIFICATES AND SOLELY FOLLOWING THE RR INTEREST TRANSFER RESTRICTION PERIOD: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]⁴

[FOR BOOK-ENTRY CERTIFICATES AND SOLELY FOLLOWING THE RR INTEREST TRANSFER RESTRICTION PERIOD: TRANSFERS OF THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS BOOK-ENTRY CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]⁵

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE DEPOSITOR, THE BORROWERS, THE SPONSORS, EITHER MASTER SERVICER, EITHER SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR, THE OPERATING ADVISOR, THE ASSET REPRESENTATIONS REVIEWER, THE RISK RETENTION CONSULTATION PARTY, THE UNDERWRITERS, THE INITIAL PURCHASERS, THE MORTGAGE LOAN SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED

⁴      Legend required as long as DTC is the Depository under the Pooling and Servicing Agreement.

⁵      Book-Entry Certificate legend.

A-3-1

BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR PRIVATE INSURER.

PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.

THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A (A “QIB”), OR IS PURCHASING FOR THE ACCOUNT OF A QIB, AND WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO AN INSTITUTION THAT IS A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION”, AS DEFINED IN, AND IN ACCORDANCE WITH RULE 903 OR RULE 904 OF, REGULATION S UNDER THE SECURITIES ACT, OR (3) TO INSTITUTIONS THAT ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (“REGULATION D”) AND ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D (COLLECTIVELY, “INSTITUTIONAL ACCREDITED INVESTORS”), AND (B) IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.

THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.

THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN THAT IS SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF

A-3-2

ERISA OR THE CODE (“SIMILAR LAW”), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN OR PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION § 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) TO ACQUIRE THIS CERTIFICATE, UNLESS (A)(I) SUCH PERSON IS AN “INSURANCE COMPANY GENERAL ACCOUNT” WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND (II) ALL CONDITIONS OF SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 WILL BE MET WITH RESPECT TO SUCH INSURANCE COMPANY GENERAL ACCOUNT’S ACQUISITION, HOLDING AND DISPOSITION OF THIS CERTIFICATE, OR (B) WITH RESPECT TO THE ACQUISITION, HOLDING OR DISPOSITION OF THIS CERTIFICATE BY ANY PLAN SUBJECT TO SIMILAR LAW, SUCH ACQUISITION, HOLDING AND DISPOSITION BY SUCH PLAN WILL NOT CONSTITUTE OR OTHERWISE RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR LAW.

THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF REALIZED LOSSES ALLOCABLE TO THIS CERTIFICATE AND WILL BE INCREASED BY RECOVERIES ON THE RELATED MORTGAGE LOANS FOR NONRECOVERABLE ADVANCES (PLUS INTEREST THEREON) THAT WERE PREVIOUSLY REIMBURSED FROM PRINCIPAL COLLECTIONS ON THE MORTGAGE LOANS THAT RESULTED IN A REDUCTION OF THE PRINCIPAL DISTRIBUTION AMOUNT. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE CERTIFICATE ADMINISTRATOR.

A-3-3

PASS-THROUGH RATE: THE WEIGHTED AVERAGE NET MORTGAGE RATE INITIAL CERTIFICATE BALANCE OF THIS CERTIFICATE AS OF THE CLOSING DATE: $[ ] DATE OF POOLING AND SERVICING AGREEMENT: AS OF NOVEMBER 1, 2021 CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN) CLOSING DATE: NOVEMBER 22, 2021 FIRST DISTRIBUTION DATE:
DECEMBER 17, 2021 APPROXIMATE AGGREGATE
CERTIFICATE BALANCE OF THE RR INTEREST
AS OF THE CLOSING DATE: $[__] GENERAL MASTER SERVICER:  WELLS FARGO BANK, NATIONAL ASSOCIATION GENERAL SPECIAL SERVICER:  CWCAPITAL ASSET MANAGEMENT LLC NCB MASTER SERVICER AND NCB SPECIAL SERVICER: NATIONAL COOPERATIVE BANK, N.A. TRUSTEE:  WILMINGTON TRUST, NATIONAL ASSOCIATION CERTIFICATE ADMINISTRATOR:  COMPUTERSHARE TRUST COMPANY, N.A. OPERATING Advisor: PARK BRIDGE LENDER SERVICES LLC ASSET REPRESENTATIONS REVIEWER: PARK BRIDGE LENDER SERVICES LLC CUSIP NO.: [_____] CERTIFICATE NO.: RR-[_]

A-3-4

RR INTEREST

evidencing a beneficial ownership interest in a Trust Fund, consisting primarily of a pool of commercial mortgage loans (the “Mortgage Loans”), all payments on or collections in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties and revenues received in respect thereof, the mortgagee’s rights under the insurance policies, any Assignment of Leases, and any guaranties or other collateral as security for the Mortgage Loans and such amounts as shall from time to time be held in the Collection Accounts, the Distribution Accounts, the Interest Reserve Account, the Retained Certificate Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by

WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC.

THIS CERTIFIES THAT [FOR BOOK-ENTRY CERTIFICATES AND SOLELY FOLLOWING THE RR INTEREST TRANSFER RESTRICTION PERIOD: CEDE & CO.] [FOR DEFINITIVE CERTIFICATES: [WELLS FARGO BANK, NATIONAL ASSOCIATION][BANK OF AMERICA, NATIONAL ASSOCIATION][MORGAN STANLEY BANK, N.A.]] is the registered owner of the interest evidenced by this Certificate in the RR Interest issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), among WELLS FARGO COMMERCIAL MORTGAGE SECURITIES, INC. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Operating Advisor and the Asset Representations Reviewer. A summary of certain of the pertinent provisions of the Pooling and Servicing Agreement is set forth hereafter. To the extent not defined herein, the capitalized terms used herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement.

This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Denomination of this Certificate specified on the face hereof, by the aggregate initial Certificate Balance of the RR Interest. The Certificates are designated as the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 and are issued in the classes as specifically set forth in the Pooling and Servicing Agreement. The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.

This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Certificate Administrator. This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound. In the case

A-3-5

of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.

This Certificate represents a “regular interest” in a “real estate mortgage investment conduit”, as those terms are defined, respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended (the “Code”). Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take no action inconsistent with the treatment of, this Certificate in accordance with the preceding sentence for purposes of federal income taxes, state and local income and franchise taxes and other taxes imposed on or measured by income.

Pursuant to the terms of the Pooling and Servicing Agreement, the Certificate Administrator shall distribute to the Person in whose name this Certificate is registered as of the related Record Date, an amount equal to such Person’s pro rata share (based on the Percentage Interest represented by this Certificate) of that portion of the aggregate amount of principal and interest (including Excess Interest) then distributable, if any, allocable to the Class of Certificates of the same Class as this Certificate for such Distribution Date, all as more fully described in the Pooling and Servicing Agreement. Holders of this Certificate may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the rate set forth in the Pooling and Servicing Agreement specified above on the Certificate Balance of this Certificate immediately prior to each Distribution Date. Principal and interest allocated to this Certificate on any Distribution Date will be in an amount equal to this Certificate’s pro rata share of the Aggregate Available Funds to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.

Retained Certificate Realized Losses and certain other amounts on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement. All Retained Certificate Realized Losses allocated to the RR Interest will be allocated pro rata among the outstanding Certificates of such Class.

This Certificate is limited in right of payment to, among other things, certain collections and recoveries respecting the Mortgage Loans and Excess Interest actually collected on the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the Collection Accounts and the Distribution Accounts will be held on behalf of the Trustee for the benefit of the Holders of Certificates specified in the Pooling and Servicing Agreement and each Master Servicer (with respect to its Collection Account) or the Certificate Administrator (with respect to the Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit in such accounts may be invested in Permitted Investments. Interest or other investment income earned on funds in the Collection Accounts will be paid to the Master Servicers as set forth in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing Agreement,

A-3-6

withdrawals from the Collection Accounts shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust Fund.

All distributions under the Pooling and Servicing Agreement to a Class of Certificates shall be made on each Distribution Date (other than the final distribution on any Certificate) to Certificateholders of record on the related Record Date by check mailed to the address set forth therefor in the Certificate Register or, provided that such Certificateholder has provided the Certificate Administrator with wire instructions at least five (5) Business Days prior to the related Record Date, by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor. The final distribution on this Certificate (determined without regard to any possible future reimbursement of Retained Certificate Realized Losses previously allocated to this Certificate) shall be made in like manner, but only upon presentment and surrender of this Certificate at the offices of the Certificate Registrar or such other location specified in the notice to Certificateholders of such final distribution.

Any funds not distributed to any Holder or Holders of Certificates of such Class on such Distribution Date because of the failure of such Holder or Holders to tender their Certificates shall, on such date, be set aside and held uninvested in trust and credited to the account or accounts of the appropriate non-tendering Holder or Holders. If any Certificates as to which notice has been given pursuant to Section 4.01(h) of the Pooling and Servicing Agreement shall not have been surrendered for cancellation within six months after the time specified in such notice, the Certificate Administrator shall mail a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the final distribution with respect thereto. If within one year after the second notice all such Certificates shall not have been surrendered for cancellation, the Certificate Administrator, directly or through an agent, shall take such steps to contact the remaining non-tendering Certificateholders concerning the surrender of their Certificates as it shall deem appropriate, subject to applicable law with respect to escheatment of funds. The costs and expenses of holding such funds in trust and of contacting such Certificateholders following the first anniversary of the delivery of such second notice to the non-tendering Certificateholders shall be paid out of such funds. No interest shall accrue or be payable to any Certificateholder on any amount held in trust under the Pooling and Servicing Agreement by the Certificate Administrator as a result of such Certificateholder’s failure to surrender its Certificate(s) for final payment thereof in accordance with Section 4.01(h) of the Pooling and Servicing Agreement.

As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registerable in the Certificate Register only upon receipt by the Certificate Administrator of (i) a certificate from the prospective Transferee in the form set forth in the Pooling and Servicing Agreement, countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor and (ii) a certificate from the prospective Transferor, countersigned by the Retaining Sponsor with a medallion stamp guarantee of the Retaining Sponsor, in the form set forth in the Pooling and Servicing Agreement.

A-3-7

The RR Interest will be issued in fully registered, certificated form in minimum denominations of $1, and in integral multiples of $0.01 in excess thereof, with one Certificate of each such Class evidencing an additional amount equal to the remainder of the initial Certificate Balance of such Class.

No fee or service charge shall be imposed by the Certificate Registrar for its services in respect of any registration of transfer or exchange of any Certificate (other than Definitive Certificates) referred to in Section 5.03 of the Pooling and Servicing Agreement. In connection with any transfer to an Institutional Accredited Investor, the Transferor shall reimburse the Trust for any costs (including the cost of the Certificate Registrar’s counsel’s review of the documents and any legal opinions, submitted by the transferor or transferee to the Certificate Registrar as provided in Section 5.03 of the Pooling and Servicing Agreement) incurred by the Certificate Registrar in connection with such transfer. The Certificate Registrar may require payment by each transferor of a sum sufficient to cover any tax, expense or other governmental charge payable in connection with any such transfer or exchange.

The Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers and the Certificate Registrar, and any agent of any of them, may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Certificate Registrar, or any agent of any of them, shall be affected by any notice to the contrary.

The Pooling and Servicing Agreement may be amended from time to time by the parties thereto, without the consent of any of the Certificateholders or the Companion Holders:

(i)         to correct any defect or ambiguity in the Pooling and Servicing Agreement in order to address any manifest error in any provision of the Pooling and Servicing Agreement;

(ii)        to cause the provisions in the Pooling and Servicing Agreement to conform or be consistent with or in furtherance of the statements made in the Prospectus (or in an offering document for any related non-offered certificates) with respect to the Certificates, the Trust or the Pooling and Servicing Agreement or to correct or supplement any of its provisions which may be defective or inconsistent with any other provisions therein or to correct any error;

(iii)       to change the timing and/or nature of deposits in the Collection Accounts, the Distribution Accounts or any REO Account; provided that (a) the P&I Advance Date shall in no event be later than the Business Day prior to the related Distribution Date and (b) such change shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest), as evidenced in writing by an Opinion of Counsel at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each Rating Agency with respect to such amendment;

(iv)      to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as shall be necessary to maintain the qualification of any Trust REMIC as a REMIC or the Grantor Trust as a grantor trust under the relevant provisions

A-3-8

of the Code at all times that any Certificate is outstanding, or to avoid or minimize the risk of imposition of any tax on the Trust, any Trust REMIC or the Grantor Trust; provided that the Trustee and the Certificate Administrator have received an Opinion of Counsel (at the expense of the party requesting such amendment) to the effect that (a) such action is necessary or desirable to maintain such qualification or to avoid or minimize the risk of the imposition of any such tax and (b) such action will not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or Companion Holder;

(v)       to modify, eliminate or add to the provisions of Section 5.03(o) of the Pooling and Servicing Agreement or any other provision of the Pooling and Servicing Agreement restricting transfer of the Class R Certificates; provided the Depositor has determined that such change shall not, as evidenced by an Opinion of Counsel, cause the Trust, any Trust REMIC or any of the Certificateholders (other than the Transferor) to be subject to a federal tax caused by a Transfer to a Person that is a Disqualified Organization or a Disqualified Non-U.S. Tax Person;

(vi)      to revise or add any other provisions with respect to matters or questions arising under the Pooling and Servicing Agreement or any other change; provided that the required action shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) or any holder of a Serviced Companion Loan not consenting to such revision or addition as evidenced in writing by an Opinion of Counsel, at the expense of the party requesting such amendment or as evidenced by a Rating Agency Confirmation from each of the Rating Agencies with respect to such amendment or supplement and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(vii)     to amend or supplement any provision of the Pooling and Servicing Agreement to the extent necessary to maintain the then-current ratings assigned to each Class of Certificates by each Rating Agency, as evidenced by a Rating Agency Confirmation from each of the Rating Agencies and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement); provided that such amendment or supplement shall not adversely affect in any material respect the interests of any Certificateholder (including, for the avoidance of doubt, any Holder of an RR Interest) not consenting to such amendment or supplement, as evidenced by an Opinion of Counsel;

(viii)    to modify the provisions of Sections 3.05 and 3.17 of the Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable Advances

A-3-9

and Workout-Delayed Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the Trustee and, for so long as a Control Termination Event has not occurred and is not continuing and with respect to the Mortgage Loans other than any Excluded Loan with respect to the Directing Certificateholder, the Directing Certificateholder, determine that the commercial mortgage-backed securities industry standard for such provisions has changed, in order to conform to such industry standard, (b) such modification does not adversely affect the status of any Trust REMIC as a REMIC or the status of the Grantor Trust as a grantor trust under the relevant provisions of the Code, as evidenced by an Opinion of Counsel and (c) each Rating Agency has delivered a Rating Agency Confirmation and, with regard to any class of Serviced Companion Loan Securities, the applicable rating agencies have delivered a confirmation that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement);

(ix)       to modify the procedures of the Pooling and Servicing Agreement relating to compliance with Rule 17g-5 of the Exchange Act; provided that such amendment shall not adversely affect in any material respects the interests of any Certificateholders (including, for the avoidance of doubt, any Holder of the RR Interest), as evidenced by (x) an Opinion of Counsel or (y) if any Certificate is then rated, receipt of Rating Agency Confirmation from each Rating Agency rating such Certificates; and provided, further, that the Certificate Administrator shall give notice of any such amendment to the 17g-5 Information Provider for posting to the 17g-5 Information Provider’s Website pursuant to Section 3.13(c) of the Pooling and Servicing Agreement and the Certificate Administrator shall post such notice to the Certificate Administrator’s Website;

(x)        to modify, eliminate or add to any provisions of the Pooling and Servicing Agreement to such extent as will be necessary to comply with the requirements for use of Form SF-3 in registered offerings to the extent provided in C.F.R. 239.45(b)(1)(ii), (iii) or (iv); or

(xi)       to modify, eliminate or add to any of its provisions in the event the Risk Retention Rules or any other regulations applicable to the risk retention requirements for this securitization transaction are amended or repealed, to the extent required to comply with any such amendment or to modify or eliminate the provision related to the risk retention requirements in the event of such repeal.

Notwithstanding the foregoing, no such amendment (A) may change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under any Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller or (B) may materially and adversely affect the holder of a Companion Loan without such Companion Holder’s consent.

A-3-10

The Pooling and Servicing Agreement may also be amended from time to time by the parties thereto with the consent of the Holders of Certificates of each Class affected by such amendment evidencing in the aggregate not less than a majority of the aggregate Percentage Interests constituting the Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Pooling and Servicing Agreement or of modifying in any manner the rights of the Holders of Certificates of such Class; provided, however, that no such amendment shall:

(i)         reduce in any manner the amount of, or delay the timing of, payments received on the Mortgage Loans or Whole Loans that are required to be distributed on a Certificate of any Class without the consent of the Holder of the Certificate or which are required to be distributed to a Companion Holder without the consent of such Companion Holder; or

(ii)        reduce the aforesaid percentage of Certificates of any Class the Holders of which are required to consent to any such amendment or remove the requirement to obtain consent of any Companion Holder, in any such case without the consent of the Holders of all Certificates of such Class then-outstanding or such Companion Holders, as applicable; or

(iii)       adversely affect the Voting Rights of any Class of Certificates without the consent of the Holders of all Certificates of such Class then outstanding; or

(iv)       change in any manner any defined term used in any Mortgage Loan Purchase Agreement or the obligations or rights of any Mortgage Loan Seller under such Mortgage Loan Purchase Agreement or otherwise or change any rights of any Mortgage Loan Seller as a third party beneficiary under the Pooling and Servicing Agreement, without the consent of such Mortgage Loan Seller; or

(v)       amend the Servicing Standard without the consent of 100% of the Certificateholders or receipt of Rating Agency Confirmation from each Rating Agency and confirmation of the applicable rating agencies that such action will not result in the downgrade, withdrawal or qualification of its then-current ratings of any Serviced Companion Loan Securities, if any (provided that such rating agency confirmation may be considered satisfied in the same manner as any Rating Agency Confirmation may be considered satisfied with respect to the Certificates pursuant to Section 3.25 of the Pooling and Servicing Agreement) and, if required under the related Intercreditor Agreement, the consent of the Subordinate Companion Holder(s) for each Serviced AB Whole Loan.

Notwithstanding the foregoing, none of the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Depositor, the Master Servicers or the Special Servicers shall consent to any amendment to the Pooling and Servicing Agreement without having first received an Opinion of Counsel (at the Trust’s expense) to the effect that such amendment is permitted under the Pooling and Servicing Agreement, that all conditions precedent have been satisfied and that such amendment or the exercise of any power granted to the Master Servicer, the Special Servicer, the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer or any other specified

A-3-11

person in accordance with such amendment will not result in the imposition of a tax on any portion of the Trust Fund or any Trust REMIC, or cause any Trust REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under the relevant provisions of the Code. Furthermore, no amendment to the Pooling and Servicing Agreement may be made that changes any provision specifically required to be included therein by an Intercreditor Agreement related to a Companion Loan without in each case the consent of the holder of the related Companion Loan(s).

The Holders of the majority of the Controlling Class, the Special Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Special Servicer, the Master Servicer servicing the greater principal balance of the Mortgage Loans as of that time, the other Master Servicer or the Holders of the Class R Certificates, in that order of priority, may, at their option, elect to purchase all of the Mortgage Loans (and all property acquired through exercise of remedies in respect of any related Mortgage Loan) and the Trust’s portion of each REO Property remaining in the Trust Fund as contemplated by clause (ii) of the first paragraph of Section 9.01 in the Pooling and Servicing Agreement by giving written notice to the Trustee, the Certificate Administrator and the other parties to the Pooling and Servicing Agreement no later than sixty (60) days prior to the anticipated date of purchase; provided, however, that the Holders of the Controlling Class, either Special Servicer, either Master Servicer, or the Holders of the Class R Certificates may so elect to purchase all of the Mortgage Loans and the Trust’s portion of each REO Property remaining in the Trust Fund only on or after the first Distribution Date on which the aggregate Stated Principal Balances of the Mortgage Loans and the portion of any REO Loans held by the Trust is less than 1.0% of the aggregate Cut-off Date Balance of the Mortgage Loans as set forth in the Pooling and Servicing Agreement.

Following the date on which the Class A-1, Class A-2, Class A-3, Class A-SB, Class D and Class E Certificates and the Class A-4, Class A-5, Class A-S, Class B and Class C Upper-Tier Regular Interests are no longer outstanding (and provided that there is only one Holder (or multiple Holders acting in unanimity) of the then-outstanding Certificates (other than the Class R Certificates and the RR Interest)), the Sole Certificateholder shall have the right, with the consent of the Master Servicers, to exchange all of its Certificates (other than the Class R Certificates and the RR Interest) together with the payment or deemed payment of the Termination Purchase Amount for all of the Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the terms of the Pooling and Servicing Agreement.

The obligations created by the Pooling and Servicing Agreement and the Trust created thereby (other than the obligation of the Certificate Administrator to make payments to Certificateholders as provided for in the Pooling and Servicing Agreement), shall terminate upon reduction of the Certificate Balances of all the Certificates to zero (including, without limitation, any such final payment resulting from a termination of the Trust due to a sale of its property) pursuant to the terms of the Pooling and Servicing Agreement. In no event, however, will the Trust created by the Pooling and Servicing Agreement continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James’s, living on the date hereof.

A-3-12

Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose. The Certificate Registrar has executed this Certificate on behalf of the Trust as Certificate Registrar under the Pooling and Servicing Agreement and makes no representation or warranty as to any of the statements contained herein or the validity or sufficiency of the Certificates or the Mortgage Loans.

THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.

A-3-13

IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal. 

COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Certificate Registrar under the Pooling and Servicing Agreement
By:
	AUTHORIZED SIGNATORY

Dated: November 22, 2021

CERTIFICATE OF AUTHENTICATION

THIS IS PART OF THE RR INTEREST REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.

COMPUTERSHARE TRUST COMPANY, N.A., as Authenticating Agent
By:
	AUTHORIZED SIGNATORY

A-3-14

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:  

TEN COM	-	as tenant in common	UNIF GIFT MIN ACT __________ Custodian
TEN ENT	-	as tenants by the entireties	(Cust)
JT TEN	-	as joint tenants with rights of	Under Uniform Gifts to Minors
		survivorship and not as tenants in
		common	Act __________________________
			(State)

Additional abbreviations may also be used though not in the above list. 

FORM OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ____________________________

(Please insert Social Security or other identifying number of Assignee)

(Please print or typewrite name and address of assignee)

the within Certificate and does hereby or irrevocably constitute and appoint to transfer the said Certificate in the Certificate register of the within-named Trust, with full power of substitution in the premises.

Dated:  _______________ NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.

SIGNATURE GUARANTEED

The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange. Notarized or witnessed signatures are not acceptable.  

A-3-15

DISTRIBUTION INSTRUCTIONS

The assignee should include the following for purposes of distribution:

Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _______________________________ for the account of __________________________ account number _______________ or, if mailed by check, to __________________________. Statements should be mailed to _________________________. This information is provided by assignee named above, or ______________________________, as its agent.

A-3-16

EXHIBIT B

MORTGAGE LOAN SCHEDULE

Exhibit B-1

BANK 2021-BNK37

MORTGAGE LOAN SCHEDULE

Mortgage Loan Number	Mortgage Loan Seller	Original Principal Balance ($)	Cut-off Date Principal Balance ($)	Property Name	Address	City	State	Zip Code	Note Date	Stated Maturity Date or Anticipated Repayment Date	Mortgage Rate	Original Term to Maturity or ARD (Mos.)	Remaining Term to Maturity or ARD (Mos.)	Amortization Term (Original) (Mos.)	ARD Loan (Y/N)	Servicing Fee Rate	Non-Serviced Primary Fee Rate
1	BANA	115,500,000.00	115,500,000.00	One North Wacker	1 North Wacker Drive	Chicago	IL	60606	9/10/2021	10/1/2031	2.71850%	120	119	0	No	0.00250%	0.00250%
2	WFB	100,000,000.00	100,000,000.00	1201 Lake Robbins	1201 Lake Robbins Drive	The Woodlands	TX	77380	10/8/2021	10/11/2031	3.82700%	120	119	0	No	0.00500%
3	BANA	82,000,000.00	82,000,000.00	London Terrace Towers Owners, Inc.	405-465 West 23rd Street and 410-470 West 24th Street	New York	NY	10011	10/15/2021	11/1/2031	2.32000%	120	120	0	No	0.00500%
4	WFB	75,000,000.00	75,000,000.00	One SoHo Square	161 Avenue of the Americas and 233 Spring Street	New York	NY	10013	7/9/2021	8/6/2028	2.72467%	84	81	0	No	0.00250%	0.00625%
5	MSMCH	75,000,000.00	75,000,000.00	Park Avenue Plaza	55 East 52nd Street	New York	NY	10055	10/8/2021	11/5/2031	2.83750%	120	120	0	No	0.00250%	0.00750%
6	WFB	75,000,000.00	75,000,000.00	1 Union Square South Retail	One Union Square South	New York	NY	10003	9/10/2021	10/6/2031	2.27100%	120	119	0	No	0.00500%
7	BANA	57,000,000.00	57,000,000.00	Raymour & Flanigan Campus	7230, 7248 & 7272 Morgan Road; 4545 & 4563 Morgan Place	Liverpool	NY	13090	9/9/2021	10/1/2031	2.92500%	120	119	0	No	0.00500%
8	WFB	45,000,000.00	45,000,000.00	ExchangeRight 49	Various	Various	Various	Various	8/12/2021	9/11/2026	3.51600%	60	58	0	No	0.00500%
8.01	WFB	7,482,901.98	7,482,901.98	Valspar Industrial - Massillon, OH	600 Nova Drive SE	Massillon	OH	44646
8.02	WFB	7,442,671.32	7,442,671.32	Pick ‘n Save - Wauwatosa, WI	1717 North Mayfair Road	Wauwatosa	WI	53226
8.03	WFB	3,178,221.81	3,178,221.81	Walgreens - Chicago (Foster Pl), IL	7155 West Foster Place	Chicago	IL	60656
8.04	WFB	2,413,839.35	2,413,839.35	Walgreens - Hesperia, CA	17383 Main Street	Hesperia	CA	92345
8.05	WFB	2,373,608.69	2,373,608.69	Hobby Lobby - Huber Heights, OH	8286 Old Troy Pike	Huber Heights	OH	45424
8.06	WFB	2,293,147.38	2,293,147.38	Hobby Lobby - Christiansburg, VA	100 Laurel Street Northeast	Christiansburg	VA	24073
8.07	WFB	2,071,878.77	2,071,878.77	Walgreens - Saint Joseph, MO	2620 South Belt Highway	Saint Joseph	MO	64503
8.08	WFB	1,850,610.16	1,850,610.16	CVS Pharmacy - Waukegan, IL	3001 Washington Street	Waukegan	IL	60085
8.09	WFB	1,629,341.56	1,629,341.56	Walgreens - Galesburg, IL	1057 East Main Street	Galesburg	IL	61401
8.1	WFB	1,548,880.25	1,548,880.25	Verizon Wireless - Bristol, VA	5 Clear Creek Road	Bristol	VA	24202
8.11	WFB	1,066,112.38	1,066,112.38	Fresenius Medical Care - Shelbyville, KY	150 Stonecrest Road	Shelbyville	KY	40065
8.12	WFB	1,025,881.72	1,025,881.72	Walgreens - Indianapolis, IN	3455 Mann Road	Indianapolis	IN	46221
8.13	WFB	1,025,881.72	1,025,881.72	Octapharma Plasma - Virginia Beach, VA	628 Newtown Road	Virginia Beach	VA	23462
8.14	WFB	864,959.10	864,959.10	Dollar General - Auburn, ME	807 Minot Avenue	Auburn	ME	04210
8.15	WFB	744,267.13	744,267.13	Dollar General - Penns Grove, NJ	191 South Virginia Avenue	Penns Grove	NJ	08069
8.16	WFB	714,094.14	714,094.14	Dollar General - Brunswick, GA	5598 Altama Avenue	Brunswick	GA	31525
8.17	WFB	691,967.28	691,967.28	Dollar General - Romulus, MI	35201 Van Born Road	Romulus	MI	48174
8.18	WFB	683,921.15	683,921.15	Dollar General - East Windsor, CT	115 Main Street	East Windsor	CT	06016
8.19	WFB	623,575.16	623,575.16	Dollar General - Grand Rapids, MI	363 State Street Southeast	Grand Rapids	MI	49503
8.2	WFB	615,529.03	615,529.03	Dollar General - Lansing, MI	3520 South Waverly Road	Lansing	MI	48911
8.21	WFB	603,459.84	603,459.84	Dollar Tree - Christiansburg, VA	120 Laurel Street Northeast	Christiansburg	VA	24073
8.22	WFB	593,402.17	593,402.17	Dollar General - Hammond, LA	12593 Wardline Road	Hammond	LA	70401
8.23	WFB	522,998.52	522,998.52	Dollar General - Allen Park, MI	5700 Allen Road	Allen Park	MI	48101
8.24	WFB	522,998.52	522,998.52	Dollar General - Westland, MI	1615 Merriman Road	Westland	MI	48186
8.25	WFB	522,998.52	522,998.52	Dollar General - Jackson, MI	216 West Morrell Street	Jackson	MI	49203
8.26	WFB	502,883.20	502,883.20	Dollar General - Battle Creek, MI	1440 West Columbia Avenue	Battle Creek	MI	49015
8.27	WFB	492,825.53	492,825.53	Dollar General - Wyoming, MI	4241 South Division Avenue	Wyoming	MI	49503
8.28	WFB	464,664.07	464,664.07	Dollar General - Temple, TX	1608 South 57th Street	Temple	TX	76504
8.29	WFB	432,479.55	432,479.55	Dollar General - Prattville, AL	601 McQueen Smith Road North	Prattville	AL	36066
9	MSMCH	44,450,000.00	44,450,000.00	ExchangeRight Net Leased Portfolio #51	Various	Various	Various	Various	10/26/2021	11/1/2026	3.56000%	60	60	0	No	0.00500%
9.01	MSMCH	4,402,101.00	4,402,101.00	Holbrook Shopping Center - Holbrook, MA	778-800 South Franklin Street	Holbrook	MA	02343
9.02	MSMCH	3,981,518.00	3,981,518.00	Walgreens - Largo, MD	9810 Apollo Drive	Largo	MD	20774
9.03	MSMCH	3,774,030.00	3,774,030.00	Walgreens - Charlotte, NC	5040 Beatties Ford Road	Charlotte	NC	28216
9.04	MSMCH	3,588,974.00	3,588,974.00	Walgreens - Virginia Beach, VA	5305 Indian River Road	Virginia Beach	VA	23464
9.05	MSMCH	3,516,073.00	3,516,073.00	Walgreens - Salem, OH	2124 East State Street	Salem	OH	44460
9.06	MSMCH	3,224,469.00	3,224,469.00	Walgreens - Southfield, MI	23111 Lahser Road	Southfield	MI	48033
9.07	MSMCH	2,803,886.00	2,803,886.00	Hy-Vee - South Sioux City, NE	2601 Cornhusker Drive	South Sioux City	NE	68776
9.08	MSMCH	1,990,759.00	1,990,759.00	Fresenius Medical Care - Conyers, GA	1901 Honey Creek Commons Southeast	Conyers	GA	30013
9.09	MSMCH	1,844,957.00	1,844,957.00	WellMed - McAllen, TX	801 South Main Street, Suite C	McAllen	TX	78501
9.1	MSMCH	1,654,293.00	1,654,293.00	Walgreens - Omaha, NE	7202 North 30th Street	Omaha	NE	68112
9.11	MSMCH	1,631,861.00	1,631,861.00	WellMed - Corpus Christi, TX	5846 Wooldridge Road	Corpus Christi	TX	78414
9.12	MSMCH	1,429,979.00	1,429,979.00	Bank of America - Niantic, CT	25 Pennsylvania Avenue	Niantic	CT	06357
9.13	MSMCH	1,407,551.00	1,407,551.00	Verizon - Lansing, MI	5202 West Saginaw Highway	Lansing	MI	48917
9.14	MSMCH	1,239,317.00	1,239,317.00	Dollar General - Baltimore, MD	7350 Harford Road	Baltimore	MD	21234
9.15	MSMCH	1,107,535.00	1,107,535.00	Family Dollar - Galena Park, TX	2001 Clinton Drive	Galena Park	TX	77547
9.16	MSMCH	1,037,438.00	1,037,438.00	Sherwin Williams - Oak Forest, IL	5338 159th Street	Oak Forest	IL	60452
9.17	MSMCH	995,379.00	995,379.00	Dollar General - Uniontown, PA	1137 National Pike	Uniontown	PA	15401
9.18	MSMCH	986,968.00	986,968.00	Dollar General - Petersburg, VA	15 South Adams Street	Petersburg	VA	23803
9.19	MSMCH	729,010.00	729,010.00	O’Reilly - Kankakee, IL	1250 North Kennedy Drive	Kankakee	IL	60901
9.2	MSMCH	689,756.00	689,756.00	Dollar General - Kyle, TX	850 Veterans Drive	Kyle	TX	78640
9.21	MSMCH	672,933.00	672,933.00	Citizen’s Bank - Bay Village, OH	411 Dover Center Road	Bay Village	OH	44140
9.22	MSMCH	628,070.00	628,070.00	Dollar General - Weslaco, TX	5525 North FM 88	Weslaco	TX	78596
9.23	MSMCH	594,424.00	594,424.00	Dollar General - Texas City, TX	701 9th Avenue North	Texas City	TX	77590
9.24	MSMCH	518,719.00	518,719.00	Dollar General - Huntsville, AL	136 Countess Road Northeast	Huntsville	AL	35810
10	MSMCH	40,260,000.00	40,260,000.00	Ten West One	17420 Katy Freeway	Houston	TX	77084	10/21/2021	11/1/2031	3.86000%	120	120	0	No	0.01250%
11	BANA	40,000,000.00	39,943,058.99	Village at Jordan Creek Shopping Center	6805, 6825, 6905, 6925, 7105 and 7125 Mills Civic Parkway and 102 South Jordan Creek Parkway	West Des Moines	IA	50266	9/30/2021	10/1/2031	3.67700%	120	119	360	No	0.00500%
12	MSMCH	29,500,000.00	29,500,000.00	251 Central Park West	251 Central Park West	New York	NY	10024	10/1/2021	10/1/2031	2.88000%	120	119	0	No	0.00500%
13	WFB	29,000,000.00	29,000,000.00	Reservoir Industrial Center	1350 & 1395 East Lexington Avenue and 1341, 1353, & 3534 Philadelphia Street	Pomona; Chino	CA	91766	10/14/2021	11/11/2031	2.74000%	120	120	0	No	0.00500%
14	WFB	26,650,000.00	26,650,000.00	3800 Hamlin	3800 West Hamlin Road	Auburn Hills	MI	48326	10/20/2021	11/11/2026	3.21800%	60	60	360	No	0.00500%
15	BANA/WFB	25,000,000.00	24,927,899.19	Arizona Mills	5000 South Arizona Mills Circle	Tempe	AZ	85282	8/31/2021	9/1/2026	3.80200%	60	58	360	No	0.00250%	0.00250%
16	BANA	23,250,000.00	23,250,000.00	Chandler Heights Marketplace	4850-4990 South Gilbert Road	Chandler	AZ	85249	10/26/2021	11/1/2031	4.02000%	120	120	360	No	0.03500%
17	MSMCH	23,000,000.00	23,000,000.00	Yucaipa Valley Commercial Center	33562-33694, 33720, 33730 and 33758 Yucaipa Boulevard	Yucaipa	CA	92399	9/30/2021	10/1/2031	2.73000%	120	119	0	No	0.00500%
18	WFB	22,650,000.00	22,650,000.00	Stonebridge Village	5813-5899 Spout Springs Road	Flowery Branch	GA	30542	8/12/2021	9/11/2031	3.09300%	120	118	360	No	0.00500%
19	MSMCH	21,000,000.00	21,000,000.00	1634 Church Avenue	1634 Church Avenue	Brooklyn	NY	11226	10/22/2021	11/1/2031	3.35500%	120	120	0	No	0.00500%
20	WFB	18,000,000.00	18,000,000.00	Claremont Village Square	1, 101, 175 & 201 North Indian Hill Boulevard and 128 North Oberlin Ave	Claremont	CA	91711	10/1/2021	10/11/2031	2.88700%	120	119	0	No	0.03500%
21	WFB	15,500,000.00	15,500,000.00	Allentown HQ	165 County Road 526	Allentown	NJ	08501	9/22/2021	10/11/2031	3.10000%	120	119	360	No	0.00500%
22	WFB	15,000,000.00	15,000,000.00	8515 Miramar Place	8515 Miramar Place	San Diego	CA	92121	10/21/2021	11/11/2031	4.14400%	120	120	0	No	0.00500%
23	WFB	13,750,000.00	13,750,000.00	North Torrance	4840 - 5054 West 190th Street	Torrance	CA	90503	7/30/2021	8/11/2031	3.16200%	120	117	0	No	0.00500%
24	WFB	12,716,000.00	12,716,000.00	Red Rock Center San Diego	2055, 2085 and 2115 Montiel Road	San Marcos	CA	92069	7/13/2021	8/11/2031	3.46400%	120	117	360	No	0.00500%
25	MSMCH	12,500,000.00	12,500,000.00	Orchard Market Place	11505, 11211, 11215 Northeast Fourth Plain Boulevard	Vancouver	WA	98662	9/24/2021	10/5/2031	3.15000%	120	119	0	No	0.00500%
26	WFB	12,500,000.00	12,500,000.00	Greenfield Place	7420 West Holmes Avenue and 7240 West Edgerton Avenue	Greenfield	WI	53220	9/15/2021	10/11/2031	3.09000%	120	119	360	No	0.00500%
27	WFB	12,240,000.00	12,240,000.00	Hood River Center	1727-1867 12th Street	Hood River	OR	97031	7/16/2021	8/11/2031	3.05000%	120	117	0	No	0.00500%
28	MSMCH	12,000,000.00	12,000,000.00	Shepherd Mountain Plaza	6034 West Courtyard Drive	Austin	TX	78730	9/27/2021	10/1/2031	2.68000%	120	119	360	No	0.03250%
29	MSMCH	12,000,000.00	12,000,000.00	Spare Cube Portfolio	Various	Peekskill	NY	10566	10/26/2021	11/1/2026	3.81000%	60	60	0	No	0.04500%
29.01	MSMCH	9,890,162.00	9,890,162.00	3 Highland Industrial Park Drive	3 Highland Industrial Park Drive	Peekskill	NY	10566
29.02	MSMCH	2,109,838.00	2,109,838.00	1 Highland Industrial Park Drive	1 Highland Industrial Park Drive	Peekskill	NY	10566
30	WFB	12,000,000.00	12,000,000.00	Los Osos Shopping Center	1002-1130 Los Osos Valley Road and 1155 Los Olivos Avenue	Los Osos	CA	93402	7/14/2021	8/11/2031	3.17000%	120	117	0	No	0.04500%
31	WFB	11,000,000.00	11,000,000.00	Oak Grove Shopping Center	12220 North MacArthur Boulevard	Oklahoma City	OK	73162	7/15/2021	8/11/2031	3.15000%	120	117	360	No	0.03250%
32	MSMCH	11,000,000.00	11,000,000.00	Storage Sense Harden	382 Harden Street	Burlington	NC	27215	9/28/2021	10/1/2031	4.01000%	120	119	360	No	0.00500%
33	BANA	10,950,000.00	10,950,000.00	Germantown Shopping Center	219-251 Baden Strasse & 3601-3885 North Newton Street	Jasper	IN	47546	10/22/2021	11/1/2031	3.55400%	120	120	360	No	0.00500%
34	MSMCH	10,300,000.00	10,300,000.00	Plaza on San Felipe	1635 South Voss Road	Houston	TX	77057	10/6/2021	11/1/2031	3.00500%	120	120	360	No	0.00500%
35	WFB	9,700,000.00	9,700,000.00	The Degnan	3670 Degnan Boulevard	Los Angeles	CA	90018	9/23/2021	10/11/2031	3.60000%	120	119	0	No	0.00500%
36	WFB	8,450,000.00	8,450,000.00	Grand Teton Plaza	2406 & 2280 South 25th East and Bare Ground	Idaho Falls	ID	83404	7/1/2021	7/11/2031	3.35800%	120	116	0	No	0.00500%
37	MSMCH	7,500,000.00	7,500,000.00	Heritage Plaza	7800 North Mopac Expressway	Austin	TX	78759	9/27/2021	10/1/2031	2.75000%	120	119	360	No	0.04250%
38	MSMCH	6,995,000.00	6,995,000.00	Walgreens - Rochester MN	1112 Civic Center Drive Northwest	Rochester	MN	55901	9/14/2021	10/1/2031	3.53000%	120	119	0	No	0.06500%
39	MSMCH	6,500,000.00	6,500,000.00	Vero Beach Self Storage	605 Route 1	Vero Beach	FL	32962	9/30/2021	10/1/2031	3.20000%	120	119	0	No	0.00500%
40	WFB	6,500,000.00	6,500,000.00	Storage Max - Holly Spring	180 Newspaper Way	Holly Springs	NC	27540	8/27/2021	9/11/2031	3.18100%	120	118	0	No	0.00500%
41	NCB	6,500,000.00	6,489,282.52	Hawthorne Owners Corp.	211 East 53rd Street	New York	NY	10022	9/29/2021	10/1/2031	2.95000%	120	119	360	No	0.08000%
42	NCB	6,000,000.00	6,000,000.00	69 West 9 Owners Corp.	69/75 West 9th Street a/k/a 422/430 Avenue of the Americas a/k/a 422/430 6th Avenue	New York	NY	10011	10/21/2021	11/1/2031	2.95000%	120	120	0	No	0.08000%
43	MSMCH	6,000,000.00	6,000,000.00	230-250 North La Brea Avenue	230-250 North La Brea Avenue	Inglewood	CA	90301	10/14/2021	11/1/2031	3.01000%	120	120	0	No	0.05500%
44	WFB	5,950,000.00	5,950,000.00	Ridgewood Farms	1935 & 1951 Electric Road	Salem	VA	24153	7/14/2021	8/11/2031	3.20000%	120	117	0	No	0.00500%
45	WFB	5,800,000.00	5,800,000.00	EZ Storage-Orchard Lake Road	28975 Orchard Lake Road	Farmington Hills	MI	48334	9/15/2021	10/11/2026	3.63000%	60	59	0	No	0.06250%
46	MSMCH	5,710,000.00	5,710,000.00	CitiCentre	290 Northwest 165th Street	Miami	FL	33169	10/19/2021	11/1/2031	3.62000%	120	120	0	No	0.04250%
47	MSMCH	5,300,000.00	5,300,000.00	Greenview Courtyard Apartments	2021-2031 Meridian Avenue	Miami Beach	FL	33139	10/19/2021	11/1/2031	3.77000%	120	120	0	No	0.04250%
48	WFB	5,300,000.00	5,300,000.00	The Annex	3626 11th Avenue	Los Angeles	CA	90018	9/23/2021	10/11/2031	3.60000%	120	119	0	No	0.00500%
49	NCB	5,000,000.00	5,000,000.00	950 Fifth Avenue Corporation	950 Fifth Avenue	New York	NY	10075	9/29/2021	10/1/2031	2.86000%	120	119	0	No	0.08000%
50	MSMCH	5,000,000.00	5,000,000.00	155-11 146th Avenue Jamaica	155-11 146th Avenue	Jamaica	NY	11434	10/20/2021	11/1/2031	3.71000%	120	120	0	No	0.00500%
51	NCB	4,800,000.00	4,800,000.00	Park Hill Owners, Inc.	42-41/ 42-47 Kissena Boulevard	Flushing	NY	11355	10/22/2021	11/1/2031	2.79000%	120	120	360	No	0.08000%
52	WFB	4,750,000.00	4,735,652.32	Security Public Storage - Ceres	3020, 3031, 3032 Dale Court	Ceres	CA	95307	9/1/2021	9/11/2031	3.56000%	120	118	360	No	0.00500%
53	BANA	4,700,000.00	4,700,000.00	Upper & Lower Whitney Multifamily Portfolio	Various	Hartford	CT	06105	10/22/2021	11/1/2031	3.59400%	120	120	0	No	0.00500%
53.01	BANA	2,773,000.00	2,773,000.00	Upper Whitney	155 -163, 224, 226 and 242-244 South Whitney Street	Hartford	CT	06105
53.02	BANA	1,927,000.00	1,927,000.00	Lower Whitney	178, 240, 245-251 and 250-252 South Whitney Street	Hartford	CT	06105
54	MSMCH	4,600,000.00	4,600,000.00	Storage Sense Mebane	1226 South Mebane Street	Burlington	NC	27215	9/28/2021	10/1/2031	4.06000%	120	119	360	No	0.00500%
55	BANA	4,500,000.00	4,500,000.00	Pack Rat Self Storage	12316 & 12320 Mukilteo Speedway	Mukilteo	WA	98275	10/8/2021	11/1/2031	2.98000%	120	120	0	No	0.00500%
56	NCB	4,500,000.00	4,495,321.02	760 West End Avenue Owners, Inc.	760 West End Avenue	New York	NY	10025	9/28/2021	10/1/2031	2.85000%	120	119	480	No	0.08000%
57	BANA	4,335,000.00	4,335,000.00	Victoria Gardens and Rocwood MHC	Various	Various	Various	Various	10/15/2021	11/1/2031	3.90500%	120	120	360	No	0.00500%
57.01	BANA	2,448,779.00	2,448,779.00	Victoria Gardens MHC	4016 Tower View Drive	Pacific	MO	63069
57.02	BANA	1,886,221.00	1,886,221.00	Rocwood MHC	52 Alder Court	Wood River	IL	62095
58	BANA	3,550,000.00	3,550,000.00	Dollar General Portfolio	Various	Various	Various	Various	10/25/2021	11/1/2031	4.28500%	120	120	0	No	0.00500%
58.01	BANA	1,324,446.34	1,324,446.34	Dollar General - Martinsburg, WV	5487 Winchester Avenue	Martinsburg	WV	25405
58.02	BANA	1,209,540.03	1,209,540.03	Dollar General - Forest Park, OH	633 Northland Boulevard	Forest Park	OH	45240
58.03	BANA	1,016,013.63	1,016,013.63	Dollar General - Watertown, SD	3224 9th Avenue Southwest	Watertown	SD	57201
59	NCB	3,500,000.00	3,500,000.00	Main Duane Owners Corp.	134-140 Duane Street	New York	NY	10013	10/22/2021	11/1/2031	3.12000%	120	120	0	No	0.08000%
60	NCB	3,500,000.00	3,500,000.00	3701 Tenants Corp.	3701 Henry Hudson Parkway	Bronx	NY	10463	10/20/2021	11/1/2031	2.99000%	120	120	360	No	0.08000%
61	NCB	3,100,000.00	3,100,000.00	Dove Court Owners, Inc.	4-9 Dove Court	Croton-on-Hudson	NY	10520	10/21/2021	11/1/2031	3.01000%	120	120	360	No	0.08000%
62	MSMCH	2,900,000.00	2,900,000.00	Walgreens - Fort Worth TX	921 Henderson Street	Fort Worth	TX	76102	10/14/2021	11/1/2031	4.13000%	120	120	0	No	0.07500%
63	NCB	2,850,000.00	2,847,216.42	Cambridge 41-42 Owners Corp.	41-42 42nd Street	Sunnyside	NY	11104	9/30/2021	10/1/2031	3.07000%	120	119	480	No	0.08000%
64	NCB	2,600,000.00	2,600,000.00	3000 Valentine Avenue Owners, Inc.	3000 Valentine Avenue	Bronx	NY	10458	10/18/2021	11/1/2031	3.25000%	120	120	0	No	0.08000%
65	NCB	2,500,000.00	2,497,579.32	520 W. 50th St., Inc.	520 and 522 West 50th Street	New York	NY	10019	9/29/2021	10/1/2031	3.10000%	120	119	480	No	0.08000%
66	NCB	2,250,000.00	2,246,426.93	43-10 44th Owners Corp.	43-10 44th Street	Sunnyside	NY	11104	9/30/2021	10/1/2031	3.14000%	120	119	360	No	0.08000%
67	BANA	2,109,000.00	2,109,000.00	West Village Mini Storage - Little Rock, AR	1605 Green Mountain Drive	Little Rock	AR	72211	9/29/2021	10/1/2031	3.97000%	120	119	0	No	0.00500%
68	NCB	2,100,000.00	2,100,000.00	Bay Street Landing Owners Corp.	36-56 Bay Street Landing	Staten Island	NY	10301	10/15/2021	11/1/2031	3.03000%	120	120	360	No	0.08000%
69	WFB	2,000,000.00	1,997,164.79	Walgreens in Cookeville	500 South Willow Avenue	Cookeville	TN	38501	9/30/2021	10/11/2028	3.69700%	84	83	360	No	0.00500%
70	BANA	1,860,000.00	1,860,000.00	Indiana MHC Portfolio	Various	Various	IN	Various	10/1/2021	10/1/2031	4.51600%	120	119	360	No	0.00500%
70.01	BANA	1,031,157.89	1,031,157.89	Maple Run MHC	1914 East Vaile Street	Kokomo	IN	46901
70.02	BANA	828,842.11	828,842.11	Pleasant Valley MHC	808 Stanley Street	Logansport	IN	46947
71	NCB	1,800,000.00	1,800,000.00	243 Riverside Drive Corporation	241/243 Riverside Drive a/k/a 240/242 Riverside Drive	New York	NY	10025	10/20/2021	11/1/2031	3.18000%	120	120	360	No	0.08000%
72	NCB	1,800,000.00	1,797,112.98	9944 Forest Corp.	99-44/99-50 67th Road	Forest Hills	NY	11375	9/14/2021	10/1/2031	3.09000%	120	119	360	No	0.08000%
73	WFB	1,562,500.00	1,557,753.44	Walgreens in Arlington	5600 New York Avenue	Arlington	TX	76018	8/31/2021	9/11/2028	3.53000%	84	82	360	No	0.00500%
74	NCB	1,525,000.00	1,525,000.00	120-10-12 85th Ave. Owners Corp.	120-10/12 85th Avenue	Kew Gardens	NY	11415	10/21/2021	11/1/2031	3.00000%	120	120	360	No	0.08000%
75	NCB	1,400,000.00	1,400,000.00	70-80 Gibson Boulevard Owners, Inc.	70-80 Gibson Boulevard	Valley Stream	NY	11581	10/22/2021	11/1/2031	3.14000%	120	120	360	No	0.08000%
76	NCB	1,375,000.00	1,375,000.00	Gramatan Owners Inc.	32 East Broad Street and 33 East Grand Street	Mount Vernon	NY	10552	10/21/2021	11/1/2031	3.15000%	120	120	360	No	0.08000%
77	NCB	1,114,000.00	1,112,927.58	Concordia Apartments, Ltd.	5-7 West 107th Street	New York	NY	10025	9/24/2021	10/1/2031	3.12000%	120	119	480	No	0.08000%
78	NCB	1,000,000.00	1,000,000.00	242 West 104 Owners, Inc.	242 West 104th Street	New York	NY	10025	10/20/2021	11/1/2031	3.17000%	120	120	360	No	0.08000%
79	NCB	1,000,000.00	1,000,000.00	249 Eldridge St. Owners Corp.	249-251 Eldridge Street a/k/a 147-149 East Houston Street	New York	NY	10002	10/22/2021	11/1/2031	3.19000%	120	120	360	No	0.08000%
80	NCB	1,000,000.00	998,396.10	140 West 74 Street Corporation	140 West 74th Street	New York	NY	10023	9/28/2021	10/1/2031	3.09000%	120	119	360	No	0.08000%

EXHIBIT C

FORM OF INVESTMENT REPRESENTATION LETTER

Computershare Trust Company, N.A.

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

[OR OTHER CERTIFICATE REGISTRAR]

Wells Fargo Commercial Mortgage Securities, Inc.
c/o Wells Fargo Securities, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001
Attention: A.J. Sfarra

Re: Transfer of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

This letter is delivered pursuant to Section 5.03 of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 in connection with the transfer by _________________ (the “Seller”) to the undersigned (the “Purchaser”) of $_______________ aggregate [Certificate Balance][Notional Amount][__% Percentage Interest] of Class ___ Certificates (collectively, the “Certificates”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

In connection with such transfer, the Purchaser hereby represents and warrants to you and the addressees hereof as follows:

1.       Check one of the following:^*

☐ The Purchaser is not purchasing a Class R Certificate and the Purchaser is an institution that is an “accredited investor” within the meaning of Rule 501(a)(1),

^* Purchaser must select one of the following two certifications.

Exhibit C-1

(2), (3) or (7) of Regulation D (“Regulation D”) under the Securities Act of 1933, as amended (the “Securities Act”) or any entity in which all of the equity owners are “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D (each, an “Institutional Accredited Investor”) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Certificates, and the Purchaser and any accounts for which it is acting are each able to bear the economic risk of the Purchaser’s or such account’s investment. The Purchaser is acquiring the Certificates purchased by it for its own account or for one or more accounts, each of which is an Institutional Accredited Investor, as to each of which the Purchaser exercises sole investment discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs incurred by it in connection with this transfer.

☐ The Purchaser is a “qualified institutional buyer” (a “QIB”) within the meaning of Rule 144A (“Rule 144A”) under the Securities Act. The Purchaser is aware that the transfer is being made in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain the information required to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.

2.       The Purchaser’s intention is to acquire the Certificates (a) for investment for the Purchaser’s own account or (b) for reoffer, resale, pledge or other transfer (i) to QIBs in transactions under Rule 144A, and not in any event with the view to, or for resale in connection with, any distribution thereof, or (ii) (other than with respect to a Class R Certificate) to Institutional Accredited Investors, subject in the case of clause (ii) above to (w) the receipt by the Certificate Registrar of a letter substantially in the form hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel acceptable to the Trustee and Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act, (y) the receipt by the Certificate Registrar of such other evidence acceptable to the Certificate Registrar that such reoffer, resale, pledge or transfer is in compliance with the Securities Act and other applicable laws and (z) a written undertaking to reimburse the Trust for any costs incurred by it in connection with the proposed transfer. The Purchaser understands that the Certificates (and any subsequent Certificates) have not been registered under the Securities Act, by reason of a specified exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the Purchaser’s investment intent (or intent to reoffer, resell, pledge or transfer the Certificates only to certain investors in certain exempted transactions) as expressed herein.

3.       The Purchaser has reviewed the Preliminary Prospectus and the Final Prospectus relating to the Offered Certificates (collectively, the “Prospectus”) (and, with respect to Offered Private Certificates, the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum related to such Offered Private Certificates) and the agreements and other materials referred to therein and has had the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by the Prospectus.

4.       The Purchaser acknowledges that the Certificates (and any Certificates issued on transfer or exchange thereof) have not been registered or qualified under the Securities

Exhibit C-2

Act or the securities laws of any State or any other jurisdiction, and that the Certificates cannot be reoffered, resold, pledged or otherwise transferred unless it is registered or qualified thereunder or unless an exemption from such registration or qualification is available.

5.       The Purchaser hereby undertakes to be bound by the terms and conditions of the Pooling and Servicing Agreement in its capacity as an owner of a Certificate or Certificates, as the case may be (each, a “Certificateholder”), in all respects as if it were a signatory thereto. This undertaking is made for the benefit of the Trust, the Certificate Registrar and all Certificateholders present and future.

6.       The Purchaser will not sell or otherwise transfer any portion of the Certificate or Certificates, except in compliance with Section 5.03 of the Pooling and Servicing Agreement.

7.       Check one of the following:^**

☐ The Purchaser is a U.S. Tax Person (as defined below) and it has attached hereto an Internal Revenue Service (“IRS”) Form W-9 (or successor form).

☐ The Purchaser is not a U.S. Tax Person and under applicable law in effect on the date hereof, no taxes will be required to be withheld by the Certificate Registrar (or its agent) with respect to distributions to be made on the Certificates. The Purchaser has attached hereto [(i) a duly executed IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form, as applicable), which identifies such Purchaser as the beneficial owner of the Certificates and states that such Purchaser is not a U.S. Tax Person, (ii) IRS Form W-8IMY (with all appropriate attachments) or (iii)]^*** two duly executed copies of IRS Form W-8ECI (or successor form), which identify such Purchaser as the beneficial owner of the Certificates and state that interest and original issue discount on the Certificates and Permitted Investments is, or is expected to be, effectively connected with a U.S. trade or business. The Purchaser agrees to provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any applicable successor IRS forms, or such other certifications as the Certificate Registrar may reasonably request, on or before the date that any such IRS form or certification expires or becomes obsolete, or promptly after the occurrence of any event requiring a change in the most recent IRS form of certification furnished by it to the Certificate Registrar.

For purposes of this paragraph 7, “U.S. Tax Person” means a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) or other entity created or organized in, or under the laws of, the United States, any State thereof or the District of Columbia, including any entity treated as a corporation or partnership for federal income tax purposes, an estate whose income is subject to United States

^** Each Purchaser must select one of the two alternative certifications.

^*** Does not apply to a transfer of Class R Certificates.

Exhibit C-3

federal income tax regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such U.S. Tax Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, certain trusts in existence on August 20, 1996 that have elected to be treated as U.S. Tax Persons).

8. Please make all payments due on the Certificates:^****

☐ (a) by wire transfer pursuant to wire instructions provided by the Purchaser.

☐ (b) by mailing a check or draft to the following address:

9.           If the Purchaser is purchasing a Class R Certificate, the Purchaser is not a partnership (including any entity treated as a partnership for U.S. federal income tax purposes), any interest in which is owned, directly or indirectly, through one or more partnerships, trusts or other pass-through entities by a Disqualified Non-U.S. Tax Person.

Very truly yours,
[The Purchaser]
By:
	Name:
	Title:

^****  Only to be filled out by Purchasers of Definitive Certificates. Please select (a) or (b). For holders of the Definitive Certificates, wire transfers are only available if such holder’s Definitive Certificates have an aggregate Certificate Balance or Notional Amount, as applicable, of at least U.S. $5,000,000.

Exhibit C-4

EXHIBIT D-1

FORM OF TRANSFEREE AFFIDAVIT
FOR TRANSFERS OF CLASS R CERTIFICATES

[Date]

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) –

BANK 2021-BNK37

[OR OTHER CERTIFICATE REGISTRAR]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of November 1, 2021, between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer

STATE OF	)
	) ss.:
COUNTY OF	)

I, [______], under penalties of perjury, declare that, to the best of my knowledge and belief, the following representations are true, correct and complete, and being first sworn, depose and say that:

1.       I am a [______] of [______] (the “Purchaser”), on behalf of which I have the authority to make this affidavit.

2.       The Purchaser is acquiring Class R Certificates representing [__]% of the residual interest in each of the real estate mortgage investment conduits (each, a “Trust REMIC”) designated as the (i)  “Lower-Tier REMIC” and (ii) “Upper-Tier REMIC”, respectively, relating to the Certificates for which an election is to be made under Section 860D of the Internal Revenue Code of 1986 (the “Code”).

3.       The Purchaser is not a “Disqualified Organization” (as defined below), and that the Purchaser is not acquiring the Class R Certificates for the account of, or as agent or nominee of, or with a view to the transfer of direct or indirect record or beneficial ownership

Exhibit D-1-1

thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified Organization is any of the following: (i) the United States, any State or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of its board of directors is not selected by such governmental unit), (ii) a foreign government, any international organization or any agency or instrumentality of any of the foregoing, (iii) any organization which is exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the Class R Certificates (except certain farmers’ cooperatives described in Section 521 of the Code), (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the Trustee or the Certificate Administrator based upon an Opinion of Counsel as provided to the Trustee or the Certificate Administrator (at no expense to the Trustee or the Certificate Administrator) that the holding of an Ownership Interest in a Class R Certificate by such Person may cause a Trust REMIC to fail to qualify as a REMIC at any time that the Certificates are outstanding or any Person having an Ownership Interest in any Class of Certificates (other than such Person) to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the Transfer of an Ownership Interest in a Class R Certificate to such Person. The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.

4.       The Purchaser acknowledges that Section 860E(e) of the Code would impose a substantial tax on the transferor or, in certain circumstances, on an agent for the transferee, with respect to any transfer of any interest in any Class R Certificates to a Disqualified Organization.

5.       The Purchaser is a Permitted Transferee and, to the extent applicable, the Purchaser’s U.S. taxpayer identification number is [__________].

6.       No purpose of the acquisition of the Class R Certificates is to impede the assessment or collection of tax.

7.       The Purchaser will not cause income from the Class R Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Purchaser or any other person.

8.       Check the applicable paragraph:

☐       The present value of the anticipated tax liabilities associated with holding the Class R Certificate, as applicable, does not exceed the sum of:

(i)       the present value of any consideration given to the Purchaser to acquire such Class R Certificate;

(ii)      the present value of the expected future distributions on such Class R Certificate; and

Exhibit D-1-2

(iii)     the present value of the anticipated tax savings associated with holding such Class R Certificate as the related Trust REMIC generates losses.

For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the highest rate currently specified in Section 11(b) of the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate specified in Section 11(b) of the Code if the Purchaser has been subject to the alternative minimum tax under Section 55 of the Code in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Purchaser.

☐       The transfer of the Class R Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,

(i)       the Purchaser is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Class R Certificate will only be taxed in the United States;

(ii)      at the time of the transfer, and at the close of the Purchaser’s two fiscal years preceding the year of the transfer, the Purchaser had gross assets for financial reporting purposes (excluding any obligation of a person related to the Purchaser within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;

(iii)     the Purchaser will transfer the Class R Certificate only to another “eligible corporation,” as defined in Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Treasury Regulations Section 1.860E-1(c)(5); and

(iv)     the Purchaser determined the consideration paid to it to acquire the Class R Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Purchaser) that it has determined in good faith.

☐       None of the above.

9.       The Purchaser historically has paid its debts as they have come due and intends to pay its debts as they come due in the future and the Purchaser intends to pay taxes associated with holding the Class R Certificates as they become due.

10.     The Purchaser understands that it may incur tax liabilities with respect to the Class R Certificate in excess of any cash flows generated by such Certificate.

11.     The Purchaser is aware that the Certificate Registrar will not register any transfer of a Class R Certificate by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in

Exhibit D-1-3

substantially the same form as this affidavit and agreement. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.

12.       The Purchaser represents that it is not acquiring the Class R Certificate as a nominee, trustee or agent for any person that is not a Permitted Transferee and that for so long as it retains its interest in the Class R Certificate, it will endeavor to remain a Permitted Transferee.

13.       The Purchaser consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Class R Certificate will only be owned, directly or indirectly, by a Permitted Transferee.

14.       The Purchaser has reviewed the provisions of Section 5.03 of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Class R Certificates; and the Purchaser expressly agrees to be bound by and to comply with such provisions.

15.       The Purchaser consents to the designation of the Certificate Administrator as the “partnership representative” of each Trust REMIC pursuant to Section 10.01 of the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized officer this ___day of _________, 20__.

By:
	Name:
	Title:
By:
	Name:
	Title:

Exhibit D-1-4

On this ____ day of _______20__, before me, the undersigned, a Notary Public in and for the State of _______________, duly commissioned and sworn, personally appeared ______________________ and ________________________, known or proved to me to be the same persons who executed the foregoing instrument and to be _____________________________ and ___________________________, respectively, of the Purchaser, and acknowledged to me that they executed the same as their respective free acts and deeds and as the free act and deed of the Purchaser.

NOTARY PUBLIC in and for the

State of _______________

[SEAL]

My Commission expires:

_________________

Exhibit D-1-5

EXHIBIT D-2

FORM OF TRANSFEROR LETTER FOR TRANSFERS
OF CLASS R CERTIFICATES

[Date]

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) –

BANK 2021-BNK37

[OR OTHER CERTIFICATE REGISTRAR]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”)

Ladies and Gentlemen:

This letter is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of Class R Certificates evidencing a [__]% Percentage Interest in such Class (the “Residual Certificates”). The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:

(1)       No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.

(2)       The Transferor understands that the Transferee has delivered to you a Transferee Affidavit in the form attached to the Pooling and Servicing Agreement as Exhibit D-1. The Transferor does not know or believe that any representation contained therein is false.

(3)       The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in

Exhibit D-2-1

the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.

Very truly yours,
	(Transferor)
By:
	Name:
	Title:

Exhibit D-2-2

EXHIBIT D-3

FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS
OF RR INTEREST

[Date]

Computershare Trust Company, N.A., 

9062 Old Annapolis Road 

Columbia, Maryland 21045-1951 

Attention: Risk Retention Custody (CMBS) – 

BANK 2021-BNK37 

[OR OTHER CERTIFICATE REGISTRAR]

Wells Fargo Bank, National Association,
as Retaining Sponsor 

c/o Wells Fargo Securities, LLC 

30 Hudson Yards, 15th Floor
New York, New York 10001 

Attention: A.J. Sfarra

Troy B. Stoddard, Esq.
Senior Counsel, Wells Fargo Legal Department, D1086-341
550 South Tryon Street, 34th Floor
Charlotte, North Carolina 28202

Wells Fargo Commercial Mortgage Securities, Inc.
c/o Wells Fargo Securities, LLC 

30 Hudson Yards, 15th Floor
New York, New York 10001 

Attention: A.J. Sfarra

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of November 1, 2021, between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer

[_____] (the “Purchaser”) hereby certifies, represents and warrants to you, as Certificate Registrar and as “retaining sponsor” as such term is defined in Regulation RR, that:

Exhibit D-3-1

1. The Purchaser is acquiring $[_____] Certificate Balance of the RR Interest from [_____] (the “Transferor”).

2. The Purchaser is aware that the Certificate Registrar will not register any transfer of an RR Interest by the Transferor unless the Purchaser, or such Purchaser’s agent, delivers to the Certificate Registrar, among other things, a certificate in substantially the same form as this certificate. The Purchaser expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such certificate is false.

3. Any transfer of the RR Interest to a Plan or person acting on behalf of or using the assets of a Plan in reliance on Sections I and III of PTCE 95-60 will be effected through Wells Fargo Securities, LLC, Morgan Stanley & Co. LLC, BofA Securities, Inc., Academy Securities, Inc., Drexel Hamilton, LLC and Siebert Williams Shank & Co., LLC.

4. Check one of the following:

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Purchaser certifies, represents and warrants to you, as Certificate Registrar, that:

A. It is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor (a “Majority-Owned Affiliate”).

B. It is not acquiring the RR Interest as a nominee, trustee or agent for any person that is not a Majority-Owned Affiliate, and that for so long as it retains its interest in the RR Interest, it will remain a Majority-Owned Affiliate.

C. It will be bound by the U.S. Credit Risk Retention Agreement, between Wells Fargo Bank, National Association, Morgan Stanley Mortgage Capital Holdings LLC, Bank of America, National Association, Morgan Stanley Bank, N.A. and National Cooperative Bank, N.A., dated and effective as of November 22, 2021 (the “Credit Risk Retention Agreement”) as if it were a party to such agreement.

D. It hereby makes each representation set forth in Section 4(b) of the Credit Risk Retention Agreement.

E. It consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that its ownership of the RR Interest will satisfy the risk retention requirements of the Transferor, in its capacity as [sponsor][originator] under Regulation RR.

☐      The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

Exhibit D-3-2

Capitalized terms used but not defined herein have the meanings assigned thereto in the Pooling and Servicing Agreement.

IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

By:
	Name:
	Title:
By:
	Name:
	Title:

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]
By:
	Name:
	Title:

[Medallion Stamp Guarantee]

Exhibit D-3-3

EXHIBIT D-4

FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS
OF RR INTEREST

[Date]

Computershare Trust Company, N.A., 

9062 Old Annapolis Road 

Columbia, Maryland 21045-1951 

Attention: Risk Retention Custody (CMBS) – 

BANK 2021-BNK37 

[OR OTHER CERTIFICATE REGISTRAR]

Wells Fargo Bank, National Association,
as Retaining Sponsor 

c/o Wells Fargo Securities, LLC 

30 Hudson Yards, 15th Floor
New York, New York 10001 

Attention: A.J. Sfarra

Troy B. Stoddard, Esq.
Senior Counsel, Wells Fargo Legal Department, D1086-341
550 South Tryon Street, 34th Floor
Charlotte, North Carolina 28202

[EACH OTHER HOLDER OF AN RR INTEREST]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”)

Ladies and Gentlemen:

This is delivered to you in connection with the transfer by [______] (the “Transferor”) to [______] (the “Transferee”) of RR Interest evidencing $[____] Certificate Balance in such Class. The Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you that:

1. The transfer is in compliance with the Pooling and Servicing Agreement.

Exhibit D-4-1

2. Any transfer of the RR Interest to a Plan or person acting on behalf of or using the assets of a Plan in reliance on Sections I and III of PTCE 95-60 will be effected through Wells Fargo Securities, LLC, Morgan Stanley & Co. LLC, BofA Securities, Inc., Academy Securities, Inc., Drexel Hamilton, LLC and Siebert Williams Shank & Co., LLC.

3. Check one of the following:

☐ The transfer will occur during the RR Interest Transfer Restriction Period, and the Transferor certifies, represents and warrants to you that:

A. The Transfer is in compliance with the U.S. Credit Risk Retention Agreement, between Wells Fargo Bank, National Association, Morgan Stanley Mortgage Capital Holdings LLC, Bank of America, National Association, Morgan Stanley Bank, N.A. and National Cooperative Bank, N.A., dated and effective as of November 22, 2021 (the “Credit Risk Retention Agreement”).

B. The Transferee is a “majority-owned affiliate”, as such term is defined in Regulation RR, of the Transferor.

C. The Transferee has complied in all material respects with all of the covenants in the Credit Risk Retention Agreement during the period from the date of the Credit Risk Retention Agreement through and including the date of this transfer.

D. All of the representations and warranties made by the Transferor in the Credit Risk Retention Agreement are true and correct as of the date of the transfer.

E. All of the requirements set forth in Section 3(c) of the Credit Risk Retention Agreement have been complied with through and including the date of the transfer.

☐ The transfer will occur after the termination of the RR Interest Transfer Restriction Period.

4. The Transferor understands that the Transferee has delivered to you a Transferee Certificate in the form attached to the Pooling and Servicing Agreement as Exhibit D-3. The Transferor does not know or believe that any representation contained therein is false.

IN WITNESS WHEREOF, the Transferor has caused this instrument to be duly executed on its behalf by its duly authorized senior officer this ___day of _________, 20__.

Exhibit D-4-2

[TRANSFEROR]
By:
	Name:
	Title:

The foregoing certificate is hereby confirmed, and the transfer is accepted, as of the date first above written:

[RETAINING SPONSOR]
By:
	Name:
	Title:
[Medallion Stamp Guarantee]

Exhibit D-4-3

EXHIBIT E

FORM OF REQUEST FOR RELEASE

(for Custodian)

Loan Information
	Name of Mortgagor:
	[[General][NCB]
	Master Servicer] [[General][NCB] Special Servicer] Loan No.:
Custodian
	Name:	Computershare Trust Company, N.A. 1055 10th Ave SE
	Address:	Minneapolis, Minnesota 55414 Attention:  Document Custody Group BANK 2021-BNK37
	Custodian/Trustee Mortgage File No.:
Depositor
	Name:	Wells Fargo Commercial Mortgage Securities, Inc.
	Address:	c/o Wells Fargo Securities, LLC 30 Hudson Yards, 15th Floor New York, New York 10001 Attention: A.J. Sfarra
	Certificates:	BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby requests delivery from Computershare Trust Company, N.A., as custodian (the “Custodian”) on behalf of Wilmington Trust, National Association, as trustee (the “Trustee”), for the Holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, the documents referred to below (the “Documents”). All capitalized terms not otherwise defined in this Request for Release shall have the meanings given them in the Pooling and Servicing Agreement dated as of November 1, 2021, between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General

Exhibit E-1

Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer (the “Pooling and Servicing Agreement”).

(  )

(  )

(  )

(  )

The undersigned [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] hereby acknowledges and agrees as follows:

(1)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall hold and retain possession of the Documents in trust for the benefit of the Trustee, solely for the purposes provided in the Pooling and Servicing Agreement.

(2)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall not cause or permit the Documents to become subject to, or encumbered by, any claims, liens, security interests, charges, writs of attachment or other impositions nor shall the [Master Servicer] [Special Servicer] assert or seek to assert any claims or rights of set-off to or against the Documents or any proceeds thereof except as otherwise provided in the Pooling and Servicing Agreement.

(3)       The [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall return the Documents to the Custodian when the need therefor no longer exists, unless the Mortgage Loans have been liquidated or the Mortgage Loans have been paid in full and the proceeds thereof have been remitted to the Collection Account except as expressly provided in the Pooling and Servicing Agreement.

(4)       The Documents and any proceeds thereof, including proceeds of proceeds, coming into the possession or control of the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall at all times be earmarked for the account of the Trustee, and the [[General][NCB] Master Servicer] [[General][NCB] Special Servicer] shall keep the Documents separate and distinct from all other property in the [[General][NCB] Master Servicer’s] [[General][NCB] Special Servicer’s] possession, custody or control.

[____________]
By:
	Name:
	Title:

Date: _________

Exhibit E-2

EXHIBIT F-1

FORM OF ERISA REPRESENTATION LETTER
REGARDING ERISA RESTRICTED CERTIFICATES

Computershare Trust Company, N.A.,

as Certificate Administrator

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) –

BANK 2021-BNK37

[OR OTHER CERTIFICATE REGISTRAR]

Wells Fargo Commercial Mortgage Securities, Inc.
c/o Wells Fargo Securities, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001
Attention: A.J. Sfarra

Re: Transfer of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

The undersigned (the “Purchaser”) proposes to purchase US $[___] aggregate initial [Notional Amount][Certificate Balance] in the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, [Class [_] Certificates][RR Interest] issued pursuant to that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

In connection with such transfer, the undersigned hereby represents and warrants to you as follows:

1.       The Purchaser is not and will not be (a) an employee benefit or other plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”)(each a “Plan”) or (b) a person

Exhibit F-1-1

acting on behalf of or using the assets of any such Plan (including an entity whose underlying assets include Plan assets by reason of investment in the entity by such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA), other than an insurance company using the assets of its “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60) under circumstances whereby the purchase and holding of Certificates by such insurance company will be exempt from the prohibited transaction provisions of ERISA and the Code under Sections I and III of PTCE 95-60 (or, in the case of a Plan subject to Similar Law where the purchase, holding or disposition of such Certificate will not constitute or result in a non-exempt violation of applicable Similar Law).

2.       The Purchaser understands that if the Purchaser is or becomes a person referred to in 1(a) or (b) above, such Purchaser is required to provide to the Trustee and the Certificate Administrator an Opinion of Counsel in form and substance satisfactory to the Trustee, the Certificate Administrator and the Depositor to the effect that the acquisition and holding of such Certificate by such purchaser or transferee will not constitute or result in a non-exempt “prohibited transaction” within the meaning of ERISA or Section 4975 of the Code or a non-exempt violation of any Similar Law, and will not subject the Trustee, the Certificate Administrator, the Certificate Registrar, the Master Servicers, the Special Servicers, any sub-servicer, the Initial Purchasers, the Underwriters, the Operating Advisor, the Asset Representations Reviewer or the Depositor to any obligation or liability (including obligations or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in addition to those set forth in the Pooling and Servicing Agreement, which Opinion of Counsel shall not be at the expense of the Depositor, either Master Servicer, either Special Servicer, any sub-servicer, the Trustee, the Certificate Administrator, the Certificate Registrar, the Operating Advisor, the Asset Representations Reviewer, the Initial Purchasers, the Underwriters or the Trust.

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of _____________, 20__.

Very truly yours,
[The Purchaser]
By:
	Name:
	Title:

Date: _________

Exhibit F-1-2

EXHIBIT F-2

FORM OF ERISA REPRESENTATION LETTER
REGARDING CLASS R CERTIFICATES

[Date]

Computershare Trust Company, N.A.,

as Certificate Administrator

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS) –

BANK 2021-BNK37

[OR OTHER CERTIFICATE REGISTRAR]

[Transferor]
[______]
[______]
Attention: [______]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

The undersigned (the “Purchaser”) proposes to purchase [__]% Percentage Interest in the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class R Certificates (the “Class R Certificate”) issued pursuant to that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used and not otherwise defined herein have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

In connection with such transfer, the undersigned hereby represents and warrants to you that, with respect to the Class R Certificate, the Purchaser is not and will not become (a) an employee benefit plan or other plan subject to the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental plan (as defined in Section 3(32) of ERISA) or other plan that is subject to any federal, state or local law that is, to a material extent, similar to the foregoing provisions of ERISA or the Code (“Similar Law”) (each, a “Plan”), or (b) a person acting on behalf or using the assets of any such Plan

Exhibit F-2-1

(including any entity whose underlying assets include Plan assets by reason of investment in the entity by such a Plan or Plans and the application of Department of Labor Regulation § 2510.3-101, as modified by Section 3(42) of ERISA) to purchase such Class R Certificate.

IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA Representation Letter on the ___ day of ____________, 20__.

Very truly yours,
[The Purchaser]
By:
	Name:
	Title:

Date: _______

Exhibit F-2-2

EXHIBIT G

FORM OF DISTRIBUTION DATE STATEMENT

Exhibit G-1

EXHIBIT H

FORM OF OMNIBUS ASSIGNMENT

[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR] (the “Assignor”) for good and valuable consideration, the receipt and sufficiency of which are acknowledged, hereby sells, transfers, assigns, delivers, sets over and conveys, without recourse, representation or warranty, express or implied, unto “Wilmington Trust, National Association, as Trustee for the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37” (the “Assignee”), having an office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee – BANK 2021-BNK37, its successors and assigns, all right, title and interest of the Assignor in and to:

That certain mortgage and security agreement, deed of trust and security agreement, deed to secure debt and security agreement, or similar security instrument (the “Security Instrument”), and that certain Promissory Note (the “Mortgage Note”), for each of the Mortgage Loans shown on the Mortgage Loan Schedule attached hereto as Exhibit B, and that certain assignment of leases and rents given in connection therewith and all of the Assignor’s right, title and interest in any claims, collateral, insurance policies, certificates of deposit, letters of credit, escrow accounts, performance bonds, demands, causes of action and any other collateral arising out of and/or executed and/or delivered in or to or with respect to the Security Instrument and the Mortgage Note, together with any other documents or instruments executed and/or delivered in connection with or otherwise related to the Security Instrument and the Mortgage Note.

IN WITNESS WHEREOF, the Assignor has executed this instrument under seal to be effective as of the [__] day of [_____________], 20[__].

[NAME OF CURRENT ASSIGNOR]
By:
	Name:
	Title:

Exhibit H-1 

EXHIBIT I

FORM OF TRANSFER CERTIFICATE FOR RULE 144A
BOOK-ENTRY CERTIFICATE TO TEMPORARY REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD

(Exchanges or transfers pursuant to Section 5.03(c)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with the Depository in the name of [Euroclear] [Clearstream]^* (Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

^*      Select appropriate depository.

Exhibit I-1 

(1)       the offer of the Certificates was not made to a person in the United States;

[(2)     at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

[(2)     the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]^**

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

^**      Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit I-2 

EXHIBIT J

FORM OF TRANSFER CERTIFICATE FOR RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD

(Exchange or transfers pursuant to Section 5.03(d)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]) with the Depository in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Regulation S Book-Entry Certificate of such Class (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit J-1 

[(2)      at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,]^*

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Wells Fargo Commercial Mortgage Securities, Inc.

^*      Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S.

Exhibit J-2 

EXHIBIT K

FORM OF TRANSFER CERTIFICATE FOR TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE TO RULE 144A BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD

(Exchange or transfers pursuant to Section 5.03(e)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of

^*     Select appropriate depository. 

Exhibit K-1 

Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Trustee, the Certificate Administrator, the Operating Advisor, the Master Servicers, the Special Servicers, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

Exhibit K-2 

EXHIBIT L

FORM OF TRANSFER CERTIFICATE FOR TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD

(Exchanges pursuant to Section 5.03(f)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

[For purposes of acquiring a beneficial interest in a Regulation S Book-Entry Certificate of the Class specified above after the expiration of the Restricted Period,] [For purposes of receiving payments under a Temporary Regulation S Book-Entry Certificate of the Class specified above,]^* the undersigned holder of a beneficial interest in a Temporary Regulation S Book-Entry Certificate of the Class specified above issued under the Pooling and Servicing Agreement certifies that it is not a U.S. Person as defined by Regulation S under the Securities Act of 1933, as amended.

We undertake to advise you promptly by facsimile on or prior to the date on which you intend to submit your corresponding certification relating to the Certificates of the Class specified above held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. 

^*      Select, as applicable. 

Exhibit L-1 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

Dated:______________
By:
	as, or as agent for, the holder of a beneficial interest in the Certificates to which this certificate relates.

Exhibit L-2 

EXHIBIT M

FORM OF TRANSFER CERTIFICATE FOR NON-BOOK ENTRY CERTIFICATE TO TEMPORARY REGULATION S BOOK-ENTRY CERTIFICATE

(Exchanges or transfers pursuant to Section 5.03(g)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Temporary Regulation S Book-Entry Certificate of such Class (CINS No. [______] and ISIN No. [______]) to be held with [Euroclear] [Clearstream]^* (Common Code [______]) through the Depository.

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement and pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States;

^*      Select appropriate depository. 

Exhibit M-1 

[(2)     at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States;]^**

[(2)     the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;]^**

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: ________

cc: Wells Fargo Commercial Mortgage Securities, Inc.

^**      Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. 

Exhibit M-2 

EXHIBIT N

FORM OF TRANSFER CERTIFICATE FOR NON-BOOK ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY CERTIFICATE

(Exchange or transfers pursuant to Section 5.03(g)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of Transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such Non-Book Entry Certificates for a beneficial interest in the Regulation S Book-Entry Certificate (CINS No. [______], ISIN No. [______], and Common Code No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such exchange or transfer has been made in compliance with the transfer restrictions set forth in the Pooling and Servicing Agreement pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly the Transferor does hereby certify that:

(1)       the offer of the Certificates was not made to a person in the United States,

Exhibit N-1 

[(2)       at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed and believes that the transferee was outside the United States,]^*

[(2)      the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States,]^*

(3)       no “directed selling efforts” within the meaning of Rule 902(c) of Regulation S have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and

(4)       the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

^*      Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. 

Exhibit N-2 

EXHIBIT O

FORM OF TRANSFER CERTIFICATE
FOR NON-BOOK ENTRY CERTIFICATE
TO RULE 144A BOOK-ENTRY CERTIFICATE

(Exchange or transfers pursuant to Section 5.03(g)
of the Pooling and Servicing Agreement)

Computershare Trust Company, N.A.,

as Certificate Registrar

600 South 4^th Street, 7^th Floor

MAC N9300-070

Minneapolis, Minnesota 55415

Attention: Corporate Trust Services (CMBS)

BANK 2021-BNK37

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__]

Reference is hereby made to the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Capitalized terms used but not defined herein shall have the meanings given to them in the Pooling and Servicing Agreement.

This letter relates to US $[______] aggregate [Certificate Balance] [Notional Amount] of the Class [__] Certificates (the “Certificates”) which are held in the form of Non-Book Entry Certificates of such Class (CUSIP No. [______]) in the name of [insert name of transferor] (the “Transferor”). The Transferor has requested an exchange or transfer of such beneficial interest for a beneficial interest in the Rule 144A Book-Entry Certificate of such Class (CUSIP No. [______]).

In connection with such request, and in respect of such Certificates, the Transferor does hereby certify that such Certificates are being exchanged or transferred in accordance with Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), to a transferee that the Transferor reasonably believes is purchasing the Certificates for its own account, or for one or more accounts with respect to which the transferee exercises sole investment discretion, and the transferee and any such account is a “qualified institutional buyer” within the meaning of Rule 144A in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or other applicable jurisdiction.

Exhibit O-1 

We understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This certificate and the statements contained herein are made for your benefit and the benefit of the Depositor, the Master Servicers, the Special Servicers, the Trustee, the Certificate Administrator, the Operating Advisor, the Asset Representations Reviewer and the Initial Purchasers.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

Exhibit O-2 

EXHIBIT P-1A

FORM OF INVESTOR CERTIFICATION for Non-Borrower PartY AND/OR
THE RISK RETENTION CONSULTATION PARTY
(for Persons other than the DIRECTING CERTIFICATEHOLDER and/or
a Controlling Class Certificateholder)

[Date]

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK37
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class Certificates

In accordance with the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates, a Companion Holder or the Risk Retention Consultation Party (or any investment advisor or manager or other representative of the foregoing).

2.       The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

3.       In the case that the undersigned is a Certificateholder, beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

4.       [FOR PARTIES OTHER THAN THE RISK RETENTION CONSULTATION PARTY: The undersigned is not a Borrower Party.]

5.       The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement. In

Exhibit P-1A-1

consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-1A-2

EXHIBIT P-1B

FORM OF INVESTOR CERTIFICATION FOR NON-BORROWER PARTY (FOR THE DIRECTING CERTIFICATEHOLDER AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager Commercial.servicing@wellsfargo.com	Computershare Trust Company, N.A. 9062 Old Annapolis Road Columbia, Maryland  21045-1951 Attention:  Corporate Trust Services (CMBS) BANK Series 2021-BNK37 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Park Bridge Lender Services LLC 600 Third Avenue, 40th Floor New York, New York 10016 Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)	Computershare Trust Company, N.A. 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota  55415 Attention:  Corporate Trust Services (CMBS) BANK Series 2021-BNK37
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee – BANK 2021-BNK37 CMBSTrustee@wilmingtontrust.com National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop	CWCapital Asset Management LLC 900 19th Street NW, 8th Floor Washington, D.C. 20006 Attention: Brian Hanson (BANK 2021-BNK37) Email: CWCAMContractNotices@cwcapital.com

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class Certificates

Exhibit P-1B-1

In accordance with the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.       The undersigned is [the Directing Certificateholder][the Holder of a majority of the Controlling Class][a Controlling Class Certificateholder].

2.       The undersigned has received a copy of the Prospectus.

3.       The undersigned is not a Borrower Party.

4.       The undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

6.       At any time the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned shall deliver the certification attached as Exhibit

Exhibit P-1B-2

P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       [For use with any party other than the initial Directing Certificateholder]The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

9.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-1B-3

EXHIBIT P-1C

FORM OF INVESTOR CERTIFICATION FOR BORROWER PARTY (FOR PERSONS OTHER THAN THE DIRECTING CERTIFICATEHOLDER, THE RISK RETENTION CONSULTATION PARTY AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)

[Date]

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK37
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class Certificates

In accordance with the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

Exhibit P-1C-1

1.       The undersigned is a Certificateholder, a beneficial owner or prospective purchaser of the Class [__] Certificates or a Companion Holder (or any investment advisor or manager or other representative of the foregoing).

2.       The undersigned is neither the Directing Certificateholder nor a Controlling Class Certificateholder.

3.       In the case that the undersigned is a Certificateholder, a beneficial owner or prospective purchaser of an Offered Certificate, the undersigned has received a copy of the Prospectus.

4.       The undersigned is a Borrower Party.

5.       The undersigned is requesting access to the Distribution Date Statement pursuant to the Pooling and Servicing Agreement. In consideration of the disclosure to the undersigned of the Distribution Date Statement, or the access thereto, the undersigned will keep the Distribution Date Statement confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Distribution Date Statement will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Distribution Date Statement confidential shall expire one year following the date that the undersigned receives such Distribution Date Statement (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Distribution Date Statement in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Distribution Date Statement on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

8.       Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

Exhibit P-1C-2

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-1C-3

EXHIBIT P-1D

FORM OF INVESTOR CERTIFICATION FOR BORROWER PARTY (FOR THE DIRECTING CERTIFICATEHOLDER AND/OR A CONTROLLING CLASS CERTIFICATEHOLDER)

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager  Commercial.servicing@wellsfargo.com	Computershare Trust Company, N.A. 9062 Old Annapolis Road Columbia, Maryland  21045-1951 Attention:  Corporate Trust Services (CMBS) BANK Series 2021-BNK37 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Park Bridge Lender Services LLC  600 Third Avenue, 40th Floor  New York, New York 10016  Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)	Computershare Trust Company, N.A. 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota  55415 Attention:  Corporate Trust Services (CMBS) BANK 2021-BNK37
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee – BANK 2021-BNK37  CMBSTrustee@wilmingtontrust.com National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop	CWCapital Asset Management LLC 900 19th Street NW, 8th Floor  Washington, D.C. 20006  Attention: Brian Hanson (BANK 2021-BNK37)  Email: CWCAMContractNotices@cwcapital.com

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Exhibit P-1D-1

In accordance with the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.  The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder].

2.       The undersigned is a Borrower Party with respect to the following [Excluded Loan][Excluded Controlling Class Loan](s):

[IDENTIFY [EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN](S)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”)

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

3.       The undersigned has received a copy of the Prospectus.

4.       Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.       The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent

Exhibit P-1D-2

the undersigned receives access to such Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

8.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

9.       The undersigned hereby certifies that an executed copy of this certification in [paper][electronic click-through] form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to the applicable Information provider listed above [(a) by overnight courier or (b) mailed by registered mail, postage prepaid].

10.      Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-1D-3

EXHIBIT P-1E

FORM OF NOTICE OF EXCLUDED CONTROLLING CLASS HOLDER

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager  Commercial.servicing@wellsfargo.com	Computershare Trust Company, N.A. 9062 Old Annapolis Road Columbia, Maryland  21045-1951 Attention:  Corporate Trust Services (CMBS) BANK Series 2021-BNK37 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Park Bridge Lender Services LLC  600 Third Avenue, 40th Floor  New York, New York 10016  Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)	Computershare Trust Company, N.A. 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota  55415 Attention:  Corporate Trust Services (CMBS) BANK Series 2021-BNK37
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee – BANK 2021-BNK37 CMBSTrustee@wilmingtontrust.com National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop	CWCapital Asset Management LLC 900 19th Street NW, 8th Floor  Washington, D.C. 20006  Attention: Brian Hanson (BANK 2021-BNK37)  Email: CWCAMContractNotices@cwcapital.com

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

THIS NOTICE IDENTIFIES AN “[EXCLUDED LOAN][EXCLUDED CONTROLLING CLASS LOAN]” RELATING TO THE BANK 2021-BNK37, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK37,

Exhibit P-1E-1

REQUIRING ACTION BY YOU AS THE RECIPIENT PURSUANT TO SECTION 3.13(b) OF THE POOLING AND SERVICING AGREEMENT.

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby certifies and agrees as follows:

1.       The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

2.       The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”):

Loan Number ODCR Loan Name Borrower Name

[[If applicable] For the avoidance of doubt, [each] of the foregoing loans is both an Excluded Loan and an Excluded Controlling Class Loan.]

3.       As of the date above, the undersigned is the beneficial owner of the following certificates, and is providing the below information to the addressees hereto for purposes of their compliance with the Pooling and Servicing Agreement, including, among other things, the Certificate Administrator’s determination as to whether a Consultation Termination Event is in effect with respect to the Excluded Controlling Class Loans listed in paragraph 2 if any such mortgage loan is an Excluded Loan:

CUSIP Class Outstanding
Certificate Balance Initial Certificate
Balance

The undersigned is not a Borrower Party with respect to any other Mortgage Loan.

4.       Except with respect to the [Excluded Loan][Excluded Controlling Class Loan](s), the undersigned is requesting access pursuant to the Pooling and Servicing Agreement to certain

Exhibit P-1E-2

information (the “Information”) on the Certificate Administrator’s Website [and/or is requesting the information identified on the schedule attached hereto (also, the “Information”) pursuant to the provisions of the Pooling and Servicing Agreement]. In consideration of the disclosure to the undersigned of the Information, or the access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information will not, without the prior written consent of the Depositor, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representatives”) in any manner whatsoever, in whole or in part; provided, however, that the obligations of the undersigned to keep any such Information confidential shall expire one year following the date that the undersigned receives such Information (with respect to a prospective purchaser only) or is no longer a Certificateholder, a beneficial owner or prospective purchaser of the Class of Certificates referenced above. The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate not previously registered pursuant to Section 5 of the Securities Act.

5.       The undersigned hereby acknowledges and agrees that it is prohibited from accessing, reviewing and using Excluded Information (as defined in the Pooling and Servicing Agreement) relating to the [Excluded Loan][Excluded Controlling Class Loan](s) to the extent the undersigned receives access to such Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information in connection with its duties, or exercise of its rights pursuant to the Pooling and Servicing Agreement.

6.       The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

7.       To the extent the undersigned receives access to any Excluded Information on the Certificate Administrator’s Website or otherwise receives access to such Excluded Information, the undersigned shall be deemed to have agreed that it (i) will not directly or indirectly provide any such Excluded Information to (A) the related Borrower Party, (B) any related Excluded Controlling Class Holder, (C) any employees or personnel of the undersigned or any of its Affiliates involved in the management of any investment in the related Borrower Party or the related Mortgaged Property or (D) to its actual knowledge, any non-Affiliate that holds a direct or indirect ownership interest in the related Borrower Party, and (ii) will maintain sufficient internal controls and appropriate policies and procedures in place in order to comply with the obligations described in clause (i) above.

8.       The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website, and the Certificate Administrator shall have no obligation to monitor, determine or verify whether the undersigned

Exhibit P-1E-3

has properly certified or recertified under this Investor Certification any time the undersigned accesses the Certificate Administrator’s Website.

9.       The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

10.     The undersigned is simultaneously providing notice to the Certificate Administrator in the form of Exhibit P-1F to the Pooling and Servicing Agreement, requesting termination of access to any Excluded Information. The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it has (i) delivered notice of the termination of the related Excluded Controlling Class Holder status and (ii) submitted a new investor certification in accordance with Section 3.13(b) of the Pooling and Servicing Agreement.

11.     The undersigned agrees to indemnify and hold harmless each party to the Pooling and Servicing Agreement, the Underwriters, the Initial Purchasers and the Trust Fund from any damage, loss, cost or liability (including legal fees and expenses and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized access by the undersigned or any agent, employee, representative or person acting on its behalf of any Excluded Information relating to the [Excluded Loan][Excluded Controlling Class Loan](s) listed in Paragraph 2 above.

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

Exhibit P-1E-4

EXHIBIT P-1F

FORM OF NOTICE OF [EXCLUDED LOAN] [EXCLUDED CONTROLLING CLASS

HOLDER] TO CERTIFICATE ADMINISTRATOR

[Date]

Via: Email
Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK37
cts.cmbs.bond.admin@wellsfargo.com
trustadministrationgroup@wellsfargo.com

with a copy to:

Computershare Trust Company, N.A.,
8480 Stagecoach Circle
Frederick, Maryland 21701-4747
Attention: BANK 2021-BNK37

Re:       BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with Section 3.13(b) of the Pooling and Servicing Agreement, with respect to the above-referenced certificates (the “Certificates”), the undersigned (the “Excluded Controlling Class Holder”) hereby directs you as follows:

1.         The undersigned is [the Directing Certificateholder][the Holder of the majority of the Controlling Class][a Controlling Class Certificateholder] as of the date hereof.

2.         The undersigned has become a Borrower Party with respect to the following [Mortgage Loan(s)] [and] [Whole Loan(s)] (the “[Excluded Loan][Excluded Controlling Class Loan](s)”):

Loan Number ODCR Loan Name Borrower Name

Exhibit P-1F-5

3.         The following USER IDs for CTSLink are affiliated with the undersigned and access to any information on the Certificate Administrator’s Website with respect to the BANK 2021-BNK37 securitization should be revoked as to such users: 

4.         The undersigned acknowledges that it is not permitted to access and shall not access any Excluded Information with respect to such [Excluded Loan][Excluded Controlling Class Loan](s) on the Certificate Administrator’s Website unless and until it (i) is no longer an Excluded Controlling Class Holder with respect to such [Excluded Loan][Excluded Controlling Class Loan](s), (ii) has delivered notice of the termination of the related Excluded Controlling Class Holder status and (iii) has submitted an investor certification in the form of Exhibit P-1B to the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

Exhibit P-1F-6

[Directing Certificateholder][Holder of the majority of the Controlling Class][Controlling Class Certificateholder]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

The undersigned hereby acknowledges that
access to CTSLink has been revoked for
the users listed in Paragraph 3.

COMPUTERSHARE TRUST COMPANY, N.A.,

Certificate Administrator

Name: 

Title:

Exhibit P-1F-7

EXHIBIT P-1G

FORM OF CERTIFICATION OF THE DIRECTING
CERTIFICATEHOLDER

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager Commercial.servicing@wellsfargo.com	Computershare Trust Company, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK Series 2021-BNK37 trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com
Park Bridge Lender Services LLC 600 Third Avenue, 40th Floor New York, New York 10016 Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)	Computershare Trust Company, N.A. 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK Series 2021-BNK37
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee – BANK 2021-BNK37 CMBSTrustee@wilmingtontrust.com National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop	CWCapital Asset Management LLC 900 19th Street NW, 8th Floor Washington, D.C. 20006 Attention: Brian Hanson (BANK 2021-BNK37) Email: CWCAMContractNotices@cwcapital.com

Re:      BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Class [__] Certificates

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

Exhibit P-1G-8

1.         The undersigned has been appointed to act as the Directing Certificateholder.

2.         The undersigned is not a Borrower Party.

3.         If the undersigned becomes a Borrower Party with respect to any Mortgage Loan or Whole Loan, the undersigned agrees to and shall deliver the certification attached as Exhibit P-1D to the Pooling and Servicing Agreement and shall deliver to the applicable parties the notices attached as Exhibit P-1E and Exhibit P-1F to the Pooling and Servicing Agreement.

4.         [For use with any party other than the initial Directing Certificateholder] The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.

5.         Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[Directing Certificateholder]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

Exhibit P-1G-9

EXHIBIT P-1H

Form of Certification of the RISK RETENTION CONSULTATION PARTY

[Date]

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager Commercial.servicing@wellsfargo.com	Computershare Trust Company, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045-1951 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK37 (with a copy sent via email to: trustadministrationgroup@wellsfargo.com cts.cmbs.bond.admin@wellsfargo.com)
Park Bridge Lender Services LLC 600 Third Avenue, 40th Floor New York, New York 10016 Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)	Computershare Trust Company, N.A. 600 South 4th Street, 7th Floor MAC N9300-070 Minneapolis, Minnesota 55415 Attention: Corporate Trust Services (CMBS) BANK 2021-BNK37
Wilmington Trust, National Association 1100 North Market Street Wilmington, Delaware 19890 Attention: CMBS Trustee – BANK 2021-BNK37 (with a copy sent to cmbstrustee@wilmingtontrust.com) National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop	CWCapital Asset Management LLC 900 19th Street NW, 8th Floor Washington, D.C. 20006 Attention: Brian Hanson (BANK 2021-BNK37) Email: CWCAMContractNotices@cwcapital.com

Exhibit P-1H-10

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, RR Interest

In accordance with Section 3.23 of the Pooling and Servicing Agreement, the undersigned hereby certifies and agrees as follows:

1.         The undersigned has been appointed to act as the Risk Retention Consultation Party.

[FOR ANY SUCCESSOR RISK RETENTION CONSULTATION PARTY][2. The undersigned hereby certifies that an executed copy of this certification in paper form has been delivered in accordance with the notice provisions of the Pooling and Servicing Agreement to each of the addressees listed above (a) by overnight courier or (b) mailed by registered mail, postage prepaid.]

3.         Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

[RISK RETENTION CONSULTATION PARTY]
By:
	Name:
	Title:

Dated: _______

cc: Wells Fargo Commercial Mortgage Securities, Inc.

Exhibit P-1H-11

EXHIBIT P-2

FORM OF CERTIFICATION FOR NRSROs

[Date]

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

Attention:           BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1.            The undersigned is a Rating Agency hired by the Depositor to provide ratings on the Certificates; or

2.            The undersigned is a nationally recognized statistical rating organization and either (x) has provided the Depositor with the appropriate certifications under Exchange Act Rule 17g-5(e), had access to the Depositor’s 17g-5 website prior to the Closing Date, is requesting access pursuant to the Agreement to certain information (the “Information”) on such 17g-5 website pursuant to the provisions of the Agreement, and agrees that any confidentiality agreement applicable to the undersigned with respect to the information obtained from the Depositor’s 17g-5 website prior to the Closing Date shall also be applicable to information obtained from the 17g-5 Information Provider’s Website (including without limitation, to any information received by the Depositor for posting on the 17g-5 Information Provider’s Website), or (y), if the undersigned did not have access to the Depositor’s 17g-5 website prior to the Closing Date, it hereby agrees that it shall be bound by the provisions of the confidentiality agreement attached hereto as Annex A which shall be applicable to it with respect to any information obtained from the 17g-5 Information Provider’s Website, including any information that is obtained from the section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date.

The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the Information on the Certificate Administrator’s Website and the 17g-5 Information Provider’s Website.

Exhibit P-2-1

Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement. 

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-2-2

ANNEX A

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (the “Confidentiality Agreement”) is made in connection with Wells Fargo Securities, LLC (together with its affiliates, the “Furnishing Entities” and each a “Furnishing Entity”) furnishing certain financial, operational, structural and other information relating to the issuance of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”) pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, Computershare Trust Company, N.A., as Certificate Administrator and as Custodian, and Wilmington Trust, National Association, as Trustee and the assets underlying or referenced by the Certificates, including the identity of, and financial information with respect to borrowers, sponsors, guarantors, managers and lessees with respect to such assets (together, the “Collateral”) to you (the “NRSRO”) through the website of Computershare Trust Company, N.A., as 17g-5 Information Provider under the Pooling and Servicing Agreement, including the [section of the 17g-5 Information Provider’s Website that hosts the Depositor’s 17g-5 website after the Closing Date (as defined in the Pooling and Servicing Agreement)]. Information provided by each Furnishing Entity is labeled as provided by the specific Furnishing Entity.

Definition of Confidential Information. For purposes of this Confidentiality Agreement, the term “Confidential Information” shall include the following information (irrespective of its source or form of communication, including information obtained by you through access to this site) that may be furnished to you by or on behalf of a Furnishing Entity in connection with the issuance or monitoring of a rating with respect to the Certificates: (x) all data, reports, interpretations, forecasts, records, agreements, legal documents and other information (such information, the “Evaluation Material”) and (y) any of the terms, conditions or other facts with respect to the transactions contemplated by the Pooling and Servicing Agreement, including the status thereof; provided, however, that the term Confidential Information shall not include information which:

was or becomes generally available to the public (including through filing with the Securities and Exchange Commission or disclosure in an offering document) other than as a result of a disclosure by you or a NRSRO Representative (as defined in Section 2(c)(i) below) in violation of this Confidentiality Agreement;

was or is lawfully obtained by you from a source other than a Furnishing Entity or its representatives that (i) is reasonably believed by you to be under no obligation to maintain the information as confidential and (ii) provides it to you without any obligation to maintain the information as confidential; or

is independently developed by the NRSRO without reference to any Confidential Information.

Information to Be Held in Confidence.

You will use the Confidential Information solely for the purpose of determining or monitoring a credit rating on the Certificates and, to the extent that any information used is derived from but does not reveal any Confidential Information, for benchmarking, modeling or research purposes (the “Intended Purpose”).

You acknowledge that you are aware that the United States and state securities laws impose restrictions on trading in securities when in possession of material, non-public information and that the NRSRO will advise (through policy manuals or otherwise) each NRSRO Representative who is informed of the matters that are the subject of this Confidentiality Agreement to that effect.

You will treat the Confidential Information as private and confidential. Subject to Section 4, without the prior written consent of the applicable Furnishing Entity, you will not disclose to any person any Confidential Information, whether such Confidential Information was furnished to you before, on or after the date of this Confidentiality Agreement. Notwithstanding the foregoing, you may:

Exhibit P-2-3

disclose the Confidential Information to any of the NRSRO’s affiliates, directors, officers, employees, legal representatives, agents and advisors (each, a “NRSRO Representative”) who, in the reasonable judgment of the NRSRO, need to know such Confidential Information in connection with the Intended Purpose; provided, that, prior to disclosure of the Confidential Information to a NRSRO Representative, the NRSRO shall have taken reasonable precautions to ensure, and shall be satisfied, that such NRSRO Representative will act in accordance with this Confidentiality Agreement;

solely to the extent required for compliance with Rule 17g-5(a)(3) of the Act (17 C.F.R. 240.17g-5), post the Confidential Information to the NRSRO’s password protected website; and

use information derived from the Confidential Information in connection with an Intended Purpose, if such derived information does not reveal any Confidential Information.

Disclosures Required by Law. If you or any NRSRO Representative is requested or required (orally or in writing, by interrogatory, subpoena, civil investigatory demand, request for information or documents, deposition or similar process relating to any legal proceeding, investigation, hearing or otherwise) to disclose any Confidential Information, you agree to provide the relevant Furnishing Entity with notice as soon as practicable (except in the case of regulatory or other governmental inquiry, examination or investigation, and otherwise to the extent practical and permitted by law, regulation or regulatory or other governmental authority) that a request to disclose the Confidential Information has been made so that the relevant Furnishing Entity may seek an appropriate protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information if it so chooses. Unless otherwise required by a court or other governmental or regulatory authority to do so, and provided that you been informed by written notice that the related Furnishing Entity is seeking a protective order or other reasonable assurance for confidential treatment with respect to the requested Confidential Information, you agree not to disclose the Confidential Information while the Furnishing Entity’s effort to obtain such a protective order or other reasonable assurance for confidential treatment is pending. You agree to reasonably cooperate with each Furnishing Entity in its efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is being disclosed, at the sole expense of such Furnishing Entity; provided, however, that in no event shall the NRSRO be required to take a position that such information should be entitled to receive such a protective order or reasonable assurance as to confidential treatment. If a Furnishing Entity succeeds in obtaining a protective order or other remedy, you agree to comply with its terms with respect to the disclosure of the Confidential Information, at the sole expense of such Furnishing Entity. If a protective order or other remedy is not obtained or if the relevant Furnishing Entity waives compliance with the provisions of this Confidentiality Agreement in writing, you agree to furnish only such information as you are legally required to disclose, at the sole expense of the relevant Furnishing Entity.

Obligation to Return Evaluation Material.  Promptly upon written request by or on behalf of the relevant Furnishing Entity, all material or documents, including copies thereof, that contain Evaluation Material will be destroyed or, in your sole discretion, returned to the relevant Furnishing Entity. Notwithstanding the foregoing, (a) the NRSRO may retain one or more copies of any document or other material containing Evaluation Material to the extent necessary for legal or regulatory compliance (or compliance with the NRSRO’s internal policies and procedures designed to ensure legal or regulatory compliance) and (b) the NRSRO may retain any portion of the Evaluation Material that may be found in backup tapes or other archive or electronic media or other documents prepared by the NRSRO and any Evaluation Material obtained in an oral communication; provided, that any Evaluation Material so retained by the NRSRO will remain subject to this Confidentiality Agreement and the NRSRO will remain bound by the terms of this Confidentiality Agreement.

Violations of this Confidentiality Agreement.

The NRSRO will be responsible for any breach of this Confidentiality Agreement by you, the NRSRO or any NRSRO Representative.

You agree promptly to advise each relevant Furnishing Entity in writing of any misappropriation or unauthorized disclosure or use by any person of the Confidential Information which may come to your attention and to take all steps reasonably requested by such Furnishing Entity to limit, stop or otherwise remedy such misappropriation, or unauthorized disclosure or use.

Exhibit P-2-4

You acknowledge and agree that the Furnishing Entities would not have an adequate remedy at law and would be irreparably harmed in the event that any of the provisions of this Confidentiality Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Furnishing Entity shall be entitled to specific performance and injunctive relief to prevent breaches of this Confidentiality Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which a Furnishing Entity may be entitled at law or in equity. It is further understood and agreed that no failure to or delay in exercising any right, power or privilege hereunder shall preclude any other or further exercise of any right, power or privilege.

Term. Notwithstanding the termination or cancellation of this Confidentiality Agreement and regardless of whether the NRSRO has provided a credit rating on a Security, your obligations under this Confidentiality Agreement will survive indefinitely.

Governing Law. This Confidentiality Agreement and any claim, controversy or dispute arising under the Confidentiality Agreement, the relationships of the parties and/or the interpretation and enforcement of the rights and duties of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed within such State.

Amendments. This Confidentiality Agreement may be modified or waived only by a separate writing by the NRSRO and each Furnishing Entity.

Entire Agreement. This Confidentiality Agreement represents the entire agreement between you and the Furnishing Entities relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by you. This agreement supersedes all other understandings and agreements between us relating to such matters; provided, however, that, if the terms of this Confidentiality Agreement conflict with another agreement relating to the Confidential Information that specifically states that the terms of such agreement shall supersede, modify or amend the terms of this Confidentiality Agreement, then to the extent the terms of this Confidentiality Agreement conflict with such agreement, the terms of such agreement shall control notwithstanding acceptance by you of the terms hereof by entry into this website.

Contact Information. Notices for each Furnishing Entity under this Confidentiality Agreement, shall be directed as set forth below:

Wells Fargo Securities, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001
Attention: A.J. Sfarra
E-mail: wfs.cmbs@wellsfargo.com

Exhibit P-2-5

EXHIBIT P-3

ONLINE MARKET DATA PROVIDER CERTIFICATION

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

Attention:           BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

This Certification has been prepared for provision of information to the market data providers listed in Paragraph 1 below pursuant to the direction of the Depositor. If you represent a Market Data Provider not listed herein and would like access to the information, please contact CTSLink at 866-846-4526, or at ctslink.customerservice@wellsfargo.com.

In accordance with the requirements for obtaining certain information pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the above-referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is an employee or agent of Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., BlackRock Financial Management, Inc., Interactive Data Corp., CMBS.com, Inc., Markit Group Limited, Moody’s Analytics, Morningstar Credit Information & Analytics, LLC, KBRA Analytics, LLC, MBS Data, LLC, RealInsight or Thomson Reuters Corporation, a market data provider that has been given access to the Statements to Certificateholders, CREFC^® Reports and supplemental notices on www.ctslink.com (“CTSLink”) by request of the Depositor.

2. The undersigned agrees that each time it accesses CTSLink, the undersigned is deemed to have recertified that the representation above remains true and correct.

3. The undersigned acknowledges and agrees that the provision to it of information and/or reports on CTSLink is for its own use only, and agrees that it will not disseminate or otherwise make such information available to any other person without the written consent of the Depositor.

4. The undersigned shall be fully liable for any breach of the Pooling and Servicing Agreement by itself or any of its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer and the Trust Fund for any loss,

Exhibit P-3-1

liability or expense incurred thereby with respect to any such breach by the undersigned or any of its Representatives.

5. Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Pooling and Servicing Agreement.

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

By:

Title:

Company:

Phone:

Exhibit P-3-2

EXHIBIT Q

CUSTODIAN CERTIFICATION/EXCEPTION REPORT

[DATE]

To the Persons Listed on the attached Schedule A

Re:          BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

In accordance with Section 2.02 of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as Custodian, hereby certifies that, except as noted on the attached Custodial Exception Report, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for which a Liquidation Event has occurred) the Custodian has, subject to Section 2.02(c) of the Pooling and Servicing Agreement, reviewed the documents delivered to it pursuant to Section 2.01 of the Pooling and Servicing Agreement and has determined that (i) subject to the final proviso of the definition of “Mortgage File”, all documents specified in clauses (i) through (v), (viii), (ix), (xi), (xii) and (xiii) (or, with respect to clause (xii), a copy of such letter of credit and the required officer’s certificate), if any, of the definition of “Mortgage File,” as applicable, are in its possession, (ii) the foregoing documents delivered or caused to be delivered by the Mortgage Loan Seller have been reviewed by it or by a Custodian on its behalf and appear regular on their face and appear to be executed and to relate to such Mortgage Loan and (iii) based on such examination and only as to the foregoing documents, the information set forth in the Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of “Mortgage Loan Schedule” is correct.

Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned Pooling and Servicing Agreement.

COMPUTERSHARE TRUST COMPANY, N.A., as Custodian
By:
	Name:
	Title:

Exhibit Q-1

SCHEDULE A

Wells Fargo Commercial Mortgage Securities, Inc.
c/o Wells Fargo Securities, LLC
30 Hudson Yards, 15th Floor
New York, New York 10001
Attention: A.J. Sfarra

CRRCompliance@wellsfargo.com

Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
E-mail: cmbssurveillance@kbra.com

Fitch Ratings, Inc.
300 West 57th Street
New York, NY 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

Moody’s Investors Service, Inc.

7 World Trade Center

250 Greenwich Street

New York, New York 10007

Attention: Commercial Mortgage Surveillance Manager

E-mail: CMBSSurveillance@moodys.com

Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager

commercial.servicing@wellsfargo.com

CWCapital Asset Management LLC
900 19th Street NW, 8th Floor

Washington, D.C. 20006

Attention: Brian Hanson (BANK 2021-BNK37)

Email:  CWCAMContractNotices@cwcapital.com

National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202

Exhibit Q-2

Attention:  Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop

with a copy to:

Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attention: Steven M. Kornblau

Wilmington Trust, National Association
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee – BANK 2021-BNK37

CMBSTrustee@wilmingtontrust.com

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

trustadministrationgroup@wellsfargo.com

cts.cmbs.bond.admin@wellsfargo.com

Park Bridge Lender Services LLC

600 Third Avenue, 40th Floor

New York, New York 10016

Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent
contemporaneously via email to cmbs.notices@parkbridgefinancial.com)

Wells Fargo Bank, National Association

301 South College St.

Charlotte, North Carolina 28202

Attention: BANK 2021-BNK37,

Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

with a copy to:

Troy B. Stoddard, Esq.

Senior Counsel, Wells Fargo Legal Department, D1086-341

550 South Tryon Street, 34th Floor

Charlotte, North Carolina, 28202

and a copy to:

Herschel Patel

Wells Fargo Bank, National Association

Exhibit Q-3

10 South Wacker, 32nd Floor

Chicago, Illinois 60606

Telephone number: (312) 368-6461

Email: herschel.patel@wellsfargo.com and cmbsnotices@wellsfargo.com

Bank of America, National Association
One Bryant Park

Mail Code: NY1-100-11-07
New York, New York 10036
Attention: Director of CMBS Securitization
email: leland.f.bunch@bofa.com

with copies to:

Todd Stillerman, Esq.
Associate General Counsel & Director
Bank of America Legal Department
214 North Tryon Street
Mail Code: NC1-027-17-05
Charlotte, North Carolina 28255
email: todd.stillerman@bofa.com and cmbsnotices@bofa.com

and

Katten Muchin Rosenman LLP

550 S. Tryon Street, Suite 2900

Charlotte, North Carolina 28202-4213

Attention: Joshua J. Yablonski

Email: joshua.yablonski@katten.com

Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane H. Lam

with a copy to:

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor

New York, New York 10019
Attention: Legal Compliance Division
Email: cmbs_notices@morganstanley.com

BIG BNK37, LLC

c/o Basis Management Group LLC

with a copy to:

Exhibit Q-4

75 Broad St., Suite 2110

New York, New York 10004

Attention: Ms. Tammy K. Jones, CEO

Email: tammyjones@basisinvgroup.com

Fax No.: (917) 591-8781

with a copy to:

Kilpatrick Townsend & Stockton LLP

1100 Peachtree Street NE, Suite 2800

Atlanta, Georgia 30309-4528

Attention: Rex R. Veal

Facsimile number: 404 541 3430

rveal@kilpatricktownsend.com

Exhibit Q-5

EXHIBIT R-1

FORM OF POWER OF ATTORNEY BY TRUSTEE
FOR MASTER SERVICER

RECORDING REQUESTED BY:

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager
Email: commercial.servicing@wellsfargo.com
Telecopy Number: (704) 715-0036]

[National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop]

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890, as trustee (the “Trustee”), pursuant to that Pooling and Servicing Agreement dated as of November 1, 2021 (the “Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer [(in such capacity, the “General Master Servicer”)], CWCapital Asset Management LLC, as general special servicer, National Cooperative Bank, N.A., as NCB Master Servicer [(in such capacity, the “NCB Master Servicer”)] and NCB Special Servicer, Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”), the Trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer hereby constitutes and appoints the [General][NCB] Master Servicer, by and through the [General][NCB] Master Servicer’s officers and authorized employees, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Master Servicer and all properties (“Mortgaged Properties”) administered by the [General][NCB] Master Servicer pursuant to the Agreement, to execute and acknowledge in

Exhibit R-1-1

writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 12 below with respect to the Mortgage Loans and Mortgaged Properties; provided, however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if such documents are required or permitted under the Agreement. Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1.            The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2.            The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that said modification or re-recording, in either instance, (i) does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

3.            The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company or a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4.            The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5.            The completion of loan assumption agreements.

6.            The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7.            The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the Mortgage Loan secured and evidenced thereby.

8.            The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9.            The full enforcement of and preservation of the Trustee’s interests in the Mortgage Notes, Mortgages or deeds of trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and

Exhibit R-1-2

claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions; and

i. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10.          With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

11.          The modification or amendment of escrow agreements established for repairs to the Mortgaged Property or reserves for replacement of personal property.

12.          The execution and delivery of the following:

Exhibit R-1-3

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments; and

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties or REO Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers), documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [General][NCB] Master Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Master Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Master Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Master Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections

Exhibit R-1-4

afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Master Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein or in the Agreement. If the [General][NCB] Master Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [General][NCB] Master Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend or limit the powers granted to the [General][NCB] Master Servicer under the Agreement or to allow the [General][NCB] Master Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [General][NCB] Master Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Master Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the undersigned.

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK37 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee for the benefit of the registered holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37
By:
	Name:
	Title:

Exhibit R-1-5

	Prepared by:
		Name:
Witness:
Witness:

Exhibit R-1-6

STATE OF DELAWARE	)
	) ss.:
COUNTY OF	)

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

	Notary Public
[SEAL]
My commission expires:

Exhibit R-1-7

EXHIBIT R-2

FORM OF POWER OF ATTORNEY BY TRUSTEE
FOR SPECIAL SERVICER

RECORDING REQUESTED BY:

[CWCapital Asset Management LLC
900 19th Street NW, 8th Floor 

Washington, D.C. 20006 

Attention: Brian Hanson (BANK 2021-BNK37) 

Email: CWCAMContractNotices@cwcapital.com]

[National Cooperative Bank, N.A.
2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop]

SPACE ABOVE THIS LINE FOR RECORDER’S USE

LIMITED POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust, National Association, a national banking association, incorporated and existing under the laws of the United States, having its usual place of business at 1100 North Market Street, Wilmington, Delaware 19890 as Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement dated as of November 1, 2021 (the “Agreement”) between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, CWCapital Asset Management LLC, as general special servicer [(the “General Special Servicer”)], National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer [(in such capacity, the “NCB Special Servicer”)], Computershare Trust Company, N.A., as certificate administrator, the Trustee and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, relating to the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, hereby constitutes and appoints the [General][NCB] Special Servicer, by and through the [General][NCB] Special Servicer’s officers, the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and stead and for the Trustee’s benefit, in connection with all mortgage loans (the “Mortgage Loans”) serviced by the [General][NCB] Special Servicer and all properties (“REO Properties”) administered by the [General][NCB] Special Servicer pursuant to the Agreement, to execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate to effectuate the enumerated transactions described in items 1 through 13 below with respect to the Mortgage Loans and REO Properties; provided, however, that the documents described below may only be executed and delivered by such Attorneys-in-Fact if

 Exhibit R-2-1

such documents are required or permitted under the Agreement.  Capitalized terms used herein and not otherwise defined herein have the meanings set forth in the Agreement.

1. The endorsement on behalf of the Trustee of all checks, drafts and/or other negotiable instruments made payable to the Trustee and draw upon, replace, substitute, release or amend letters of credit standing as collateral securing any Mortgage Loan.

2. The modification or re-recording of a Mortgage or deed of trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or deed of trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that (i) said modification or re-recording, in either instance, does not adversely affect the lien of the Mortgage or deed of trust as insured and (ii) otherwise conforms to the provisions of the Agreement.

3. The subordination of the lien of a Mortgage or deed of trust to an easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.

4. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.

5. The completion of loan assumption agreements and transfers of interest in borrower.

6. The full satisfaction/release of a Mortgage or deed of trust or full conveyance upon payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.

7. The assignment of any Mortgage or deed of trust and the related Mortgage Note, in connection with the repurchase of the mortgage loan secured and evidenced thereby.

8. The full assignment of a Mortgage or deed of trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.

9. The full enforcement of and preservation of the Trustee’s interests in any Mortgage Notes or the related promissory note, and in the proceeds thereof, by way of, including but not limited to, taking title to any Mortgaged Property on behalf of the Trust, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure and/or any related litigation, including without limitation, guaranty or receivership litigation, or litigation on the note, or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, the initiation or defense of any litigation related to the ownership of any REO Property, and the pursuit of title insurance, hazard

 Exhibit R-2-2

insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:

a. the substitution of trustee(s) serving under a deed of trust, in accordance with state law and the deed of trust;

b. the preparation and issuance of statements of breach or non-performance;

c. the preparation and filing of notices of default and/or notices of sale;

d. the cancellation/rescission of notices of default and/or notices of sale;

e. the taking of deed in lieu of foreclosure;

f. the filing, prosecution and defense of claims, and to appear on behalf of the Trustee, in bankruptcy cases affecting Mortgage Notes, Mortgages or deeds of trust;

g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;

h. the tendering, filing, prosecution and defense, as applicable, of hazard insurance and title insurance claims, including but not limited to appearing on behalf of the Trustee in quiet title actions;

i. the creation of a wholly owned entity of the Trust for purposes of holding foreclosed property; and

j. the preparation and execution of such other documents and performance of such other actions as may be necessary under the terms of the Mortgage, deed of trust or state law to expeditiously complete said transactions in paragraphs 9.a. through 9.h. above.

10. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:

a. listing agreements;

b. purchase and sale agreements;

c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;

d. escrow instructions; and

e. any and all documents necessary to effect the transfer of property.

 Exhibit R-2-3

11. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property.

12. Execute and/or file such documents and take such other action as is proper and necessary to defend the Trustee, solely in its capacity as Trustee, in litigation and to resolve such litigation, provided that such resolution shall not include any admission of fault or wrongdoing by the Trustee or, without the Trustee’s consent, subject the Trustee to any form of injunctive relief.

13. The execution and delivery of the following:

a. any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by the Mortgage, deed of trust or other security document in the related Mortgage File or the related Mortgaged Property and other related collateral;

b. any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of partial or full defeasance, and all other comparable instruments;

c. any and all assumptions, modifications, waivers, substitutions, extensions, amendments, consents to transfers of interests in borrowers, consents to any subordinate financings to be secured by any related Mortgaged Property, consents to any mezzanine financing to be secured by the ownership interests in a borrower, consents to and monitoring of the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property, REO Property or otherwise, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties (including agreements and requests by any borrower with respect to modifications of the standards of operation and management of such Mortgaged Properties or the replacement of asset managers) or REO Properties, documents exercising any or all of the rights, powers and privileges granted or provided to the holder of any Mortgage Loan under the related loan documents, lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements, management agreements, any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties or REO Properties, instruments relating to the custody of any collateral that now secures or hereafter may secure any Mortgage Loan and any other consents; and

d. any and all documents, instruments and certifications as are reasonably necessary to complete or accomplish the [General][NCB] Special Servicer’s duties and responsibilities under the Agreement.

The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as

 Exhibit R-2-4

the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of the date set forth below.

This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney.

Solely to the extent that the [General][NCB] Special Servicer has the power to delegate its rights or obligations under the Agreement, the [General][NCB] Special Servicer also has the power to delegate the authority given to it by Wilmington Trust, National Association, as Trustee, under this Limited Power of Attorney, for purposes of performing its obligations and duties by executing such additional powers of attorney in favor of its attorneys-in-fact as are necessary for such purpose. The [General][NCB] Special Servicer’s attorneys-in-fact shall have no greater authority than that held by the [General][NCB] Special Servicer.

Nothing contained herein shall: (i) limit in any manner any indemnification provided to the Trustee under the Agreement, (ii) limit in any manner the rights and protections afforded the Trustee under the Agreement, or (iii) be construed to grant the [General][NCB] Special Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Wilmington Trust, National Association except as specifically provided for herein. If the [General][NCB] Special Servicer receives any notice of suit, litigation or proceeding in the name of Wilmington Trust, National Association, then the [General][NCB] Special Servicer shall promptly forward a copy of same to the Trustee.

This limited power of attorney is not intended to extend the powers granted to the [General][NCB] Special Servicer under the Agreement or to allow the [General][NCB] Special Servicer to take any action with respect to Mortgages, deeds of trust or Mortgage Notes not authorized by the Agreement.

The [General][NCB] Special Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason or result of the negligent use, or negligent or willful misuse, of this Limited Power of Attorney by the [General][NCB] Special Servicer. The foregoing indemnity shall survive the termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement.

This Limited Power of Attorney is entered into and shall be governed by the laws of the State of New York, without regard to conflicts of law principles of such state.

 Exhibit R-2-5

IN WITNESS WHEREOF, Wilmington Trust, National Association, as Trustee for BANK 2021-BNK37 has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in its name and behalf by a duly elected and authorized signatory this ___________ day of ____________.

Wilmington Trust, National Association,
as Trustee for the benefit of the registered holders of
BANK 2021-BNK37, Commercial Mortgage Pass-Through
Certificates, Series 2021-BNK37

	By:
		Name:
		Title:
Prepared by:
		Name:

Witness: 

____________________

Witness: 

_____________________

 Exhibit R-2-6

STATE OF DELAWARE	)
	) ss.:
COUNTY OF	)

On ____________________, before me, _________________________________ Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Delaware that the foregoing paragraph is true and correct.

Witness my hand and official seal.

Notary signature

 Exhibit R-2-7

EXHIBIT S

INITIAL SERVICED COMPANION NOTEHOLDERS

Loan	Companion Holder
1201 Lake Robbins	Notes A-2, a-3, a-4: Wells Fargo Bank, National Association NOTICE ADDRESS: Wells Fargo Bank, National Association 30 Hudson Yards, 15th Floor New York, New York 10001 Attention: A.J. Sfarra Email: CMBSNotices@wellsfargo.com with a copy to: Troy B. Stoddard, Esq. Senior Counsel Wells Fargo Legal Department D1086-341 550 South Tryon Street, 34th Floor Charlotte, North Carolina 28202 Email: Troy.Stoddard@wellsfargo.com
Raymour &  Flanigan Campus	Note a-2: BANK 2021-BNK36 NOTICE ADDRESS: Wells Fargo Bank, National Association  Commercial Mortgage Servicing  Three Wells Fargo  401 South Tryon Street, 8th Floor  MAC D1050-084  Charlotte, North Carolina 28202  Attention: BANK 2021-BNK36 Asset Manager  Facsimile number: (704) 715-0036  Email: commercial.servicing@wellsfargo.com with a copy to: Wells Fargo Bank, National Association Legal

 Exhibit S-1

Department  301 S. College St., TW 30  Charlotte, North Carolina 28202  Fax Number: (816) 412-9338  Attention: Commercial Mortgage Servicing Legal Support  Reference: BANK 2021-BNK36 with a copy to: K&L Gates LLP  300 South Tryon Street  Suite 1000  Charlotte, North Carolina 28202  Attention: Stacy G. Ackermann  Reference: BANK 2021-BNK36

ExchangeRight 49

Note A-2: Wells Fargo Bank, National Association NOTICE ADDRESS: Wells Fargo Bank, National Association 30 Hudson Yards, 15th Floor New York, New York 10001 Attention: A.J. Sfarra Email: CMBSNotices@wellsfargo.com with a copy to: Troy B. Stoddard, Esq. Senior Counsel Wells Fargo Legal Department D1086-341 550 South Tryon Street, 34th Floor Charlotte, North Carolina 28202 Email: Troy.Stoddard@wellsfargo.com

 Exhibit S-2

EXHIBIT T

FORM OF NOTICE FOR NON-SERVICED MORTGAGE LOAN

[FOR the ONE NORTH WACKER MORTGAGE LOAN AND THE ARIZONA MILLS MORTGAGE LOAN:

Wells Fargo Bank, National Association 

Commercial Mortgage Servicing 

Three Wells Fargo 

401 South Tryon Street, 8th Floor 

MAC D1050-084 

Charlotte, North Carolina 28202 

Attention: BANK 2021-BNK36 Asset Manager 

Facsimile number: (704) 715-0036 

Email: commercial.servicing@wellsfargo.com

with a copy to:

Wells Fargo Bank, National Association Legal Department 

301 S. College St., TW 30 

Charlotte, North Carolina 28202 

Fax Number: (816) 412-9338 

Attention: Commercial Mortgage Servicing Legal Support 

Reference: BANK 2021-BNK36

with a copy to:

K&L Gates LLP 

300 South Tryon Street 

Suite 1000 

Charlotte, North Carolina 28202 

Attention: Stacy G. Ackermann 

Reference: BANK 2021-BNK36]

[FOR the ONE SOHO SQUARE MORTGAGE LOAN:

KeyBank National Association 

11501 Outlook Street, Suite 300 

Overland Park, Kansas 66211 

Attention: Michael Tilden 

Fax number: (877) 379-1625 

Email: michael_a_tilden@keybank.com

with a copy to:

Polsinelli

 Exhibit T-1

900 West 48th Place, Suite 900 

Kansas City, Missouri 64112 

Attention: Kraig Kohring 

Fax Number: (816) 753-1536]

[FOR the Park Avenue Plaza MORTGAGE LOAN:

Wells Fargo Bank, National Association 

Commercial Mortgage Servicing 

Three Wells Fargo 

401 South Tryon Street, 8th Floor 

MAC D1050-084 

Charlotte, North Carolina 28202 

Attention: MSC 2021-PLZA Asset Manager 

Facsimile number: (704) 715-0036

With a copy by email to: commercial.servicing@wellsfargo.com]

VIA EMAIL

Re: BANK 2021-BNK37,
Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

As you know, [______], acts as the master servicer (the “Lead Servicer”) for the whole loan secured by the [mortgaged property][portfolio of mortgaged properties] identified as [NON-SERVICED WHOLE LOAN] (the “Subject Whole Loan”) under the pooling and servicing agreement relating to the [______] securitization trust (the “PSA”). This is to inform you that one or more of the promissory notes related to the Subject Whole Loan (the “Subject Mortgage Loan”) has been transferred to BANK 2021-BNK37 pursuant to that certain Pooling and Servicing Agreement, dated as of November 1, 2021 (the “2021-BNK37 Pooling Agreement”) between Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “2021-BNK37 Master Servicer”), CWCapital Asset Management LLC, as general special servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “2021-BNK37 Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “2021-BNK37 Trustee”), and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, and that the 2021-BNK37 Trustee is the holder of the Subject Mortgage Loan.

The undersigned, as 2021-BNK37 Certificate Administrator, hereby directs you, in your capacity as the Lead Servicer of the Subject Whole Loan, to remit to the 2021-BNK37 General Master Servicer all amounts payable to, and forward, deliver or otherwise make available, as the case may be, to the 2021-BNK37 General Master Servicer all reports, statements, documents, communications, and other information that are to be forwarded,

 Exhibit T-2

delivered or otherwise made available to, the holder of the Subject Mortgage Loan under the related Intercreditor Agreement (as such term is defined in the 2021-BNK37 Pooling and Servicing Agreement) and the PSA.

The Subject Mortgage Loan [is] [not] a Significant Obligor (as such term is defined in the 2021-BNK37 Pooling and Servicing Agreement) under the 2021-BNK37 Pooling and Servicing Agreement.

Thank you for your attention to this matter.

Date: ________________

Computershare Trust Company, N.A., as Certificate Administrator for the Holders of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37
By:
	Name:
	Title:

 Exhibit T-3

EXHIBIT U

FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN

To: Fitch Ratings, Inc.
300 West 57th Street
New York, NY 10019
Attention: Commercial Mortgage Surveillance Group
Facsimile No.: (212) 635-0295
E-mail: info.cmbs@fitchratings.com

Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, New York 10022
Attention: CMBS Surveillance
E-mail: cmbssurveillance@kbra.com

Moody’s Investors Service, Inc. 

7 World Trade Center 

250 Greenwich Street 

New York, New York 10007 

Attention: Commercial Mortgage Surveillance Manager 

E-mail: CMBSSurveillance@moodys.com

From: [Wells Fargo Bank, National Association][National Cooperative Bank, N.A.], in its capacity as [General][NCB] Master Servicer under the Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer.

Date: _________, 20___

 Exhibit U-1

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Mortgage Loan (the “Mortgage Loan”) identified by loan number _____ [and loan number [_______]] on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and heretofore secured by the Mortgaged Properties identified on the Mortgage Loan Schedule by the following names:____________________
____________________

Reference is made to the Pooling and Servicing Agreement described above. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement.

As [General][NCB] Master Servicer under the Pooling and Servicing Agreement, we hereby:

(a)       Notify you that the Mortgagor has consummated a defeasance of the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked below:

____  a full defeasance of the entire principal balance of the Mortgage Loan; or

____  a partial defeasance of a portion of the principal balance of the Mortgage Loan that represents and, an allocated loan amount of $____________ or _______% of the entire principal balance of the Mortgage Loan;

(b)       Certify that each of the following is true, subject to those exceptions set forth with explanatory notes on Exhibit A hereto, which exceptions the [General][NCB] Master Servicer has determined, consistent with the Servicing Standards, will have no material adverse effect on the Mortgage Loan or the defeasance transaction:

(i)The Mortgage Loan documents permit the defeasance, and the terms and conditions for defeasance specified therein were satisfied in all material respects in completing the defeasance.

(ii)The defeasance was consummated on __________, 20__.

(iii)The defeasance collateral consists of securities that (i) constitute “government securities” as defined in Section 2(a)(16) of the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are listed as “Qualified Investments for ‘AAA’ Financings” under Paragraphs 1, 2 or 3 of “Cash Flow Approach” in Standard & Poor’s Public Finance Criteria 2000, as amended to the date of the defeasance, (iii) if they include a principal obligation, the principal due at maturity cannot vary or change, and (iv) are not subject to prepayment, call or early redemption.

(iv)The [General][NCB] Master Servicer received an opinion of counsel (from counsel approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard) that the defeasance will not result in an Adverse REMIC Event.

 Exhibit U-2

(v)The [General][NCB] Master Servicer determined that the defeasance collateral will be owned by an entity (the “Defeasance Obligor”) that is a Single-Purpose Entity (as defined in Standard & Poor’s Structured Finance Ratings Real Estate Finance Criteria, as amended to the date of the defeasance (the “S&P Criteria”)) or is subject to restrictions in its organizational documents substantially similar to those contained in the organization documents of the original Borrower with respect to bankruptcy remoteness and single purpose as of the date of the defeasance, and after the defeasance owns no assets other than the defeasance collateral and real property securing Mortgage Loans included in the pool.

(vi)The defeasance documents require the crediting of the defeasance collateral to an Eligible Account (as defined in the S&P Criteria) in the name of the Trustee on behalf of the Trust, which account is maintained as a securities account by a securities intermediary and has been pledged to the Trustee on behalf of the Trust.

(vii)The agreements executed in connection with the defeasance (i) grant control of the pledged securities account to Trustee on behalf of the Trust, (ii) require the securities intermediary to make the scheduled payments on the Mortgage Loan from the proceeds of the defeasance collateral directly to the [General][NCB] Master Servicer’s collection account in the amounts and on the dates specified in the Mortgage Loan documents or, in a partial defeasance, the portion of such scheduled payments attributed to the allocated loan amount for the real property defeased, increased by any defeasance premium specified in the Mortgage Loan documents (the “Scheduled Payments”), (iii) permit reinvestment of proceeds of the defeasance collateral only in Permitted Investments (as defined in the Pooling and Servicing Agreement or as defined in the documents evidencing the defeasance), (iv) permit release of surplus defeasance collateral and earnings on reinvestment from the pledged securities account only after the Mortgage Loan has been paid in full, if any such release is permitted, (v) prohibit transfers by the Defeasance Obligor of the defeasance collateral and subordinate liens against the defeasance collateral, and (vi) provide for payment from sources other than the defeasance collateral or other assets of the Defeasance Obligor of all fees and expenses of the securities intermediary for administering the defeasance and the securities account and all fees and expenses of maintaining the existence of the Defeasance Obligor.

(viii)The [General][NCB] Master Servicer received written confirmation from a firm of independent certified public accountants, who were approved by the [General][NCB] Master Servicer in accordance with the Servicing Standard stating that (i) revenues from the defeasance collateral (without taking into account any earnings on reinvestment of such revenues) will be sufficient to timely pay each of the Scheduled Payments after the defeasance including the payment in full of the Mortgage Loan (or the allocated portion thereof in connection with a partial defeasance) on its Maturity Date, (ii) the revenues received in any month from the defeasance collateral will be applied to make Scheduled Payments within four (4) months after the date of receipt, and (iii) interest income from the defeasance collateral to the Defeasance Obligor in any calendar or fiscal year will not exceed such Defeasance Obligor’s interest expense for the Mortgage Loan (or the allocated portion thereof in a partial defeasance) for such year.

 Exhibit U-3

(ix)The Mortgage Loan is not among the ten (10) largest loans in the pool as of the date of the Current Report (as defined below). The entire principal balance of the Mortgage Loan as of the date of defeasance was less than both $[______] and five percent of pool balance, which is less than [__]% of the aggregate Certificate Balance of the Certificates as of the date of the most recent Distribution Date Statement received by us (the “Current Report”).

(x)The [General][NCB] Master Servicer has received opinions of counsel stating that the Trustee on behalf of the Trust possesses a valid, perfected first priority security interest in the defeasance collateral and that the documents executed in connection with the defeasance are enforceable in accordance with their respective terms.

(c)       Certify that Exhibit B hereto is a list of the material agreements, instruments, organizational documents for the Defeasance Obligor, and opinions of counsel and independent accountants executed and delivered in connection with the defeasance.

(d)       Certify that the individual under whose hand the [General][NCB] Master Servicer has caused this Notice and Certification to be executed did constitute a Servicing Officer as of the date of the defeasance described above.

(e)       Agree to provide copies of all items listed in Exhibit B to you upon request.

 Exhibit U-4

IN WITNESS WHEREOF, the [General][NCB] Master Servicer has caused this Notice and Certification to be executed as of the date captioned above.

[________________] as [General][NCB] Master Servicer
By:
	Name:
	Title:

 Exhibit U-5

EXHIBIT V

FORM OF OPERATING ADVISOR ANNUAL REPORT¹

Report Date: After the occurrence and during the continuance of a Control Termination Event, this report will be delivered annually no later than [INSERT DATE], pursuant to the terms and conditions of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”). 

Transaction: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 

Operating Advisor: Park Bridge Lender Services LLC 

Special Servicer as of December 31, [______]: [CWCapital Asset Management LLC][National Cooperative Bank, N.A.] 

Directing Certificateholder: BIG BNK37, LLC

I. Population of Mortgage Loans that Were Considered in Compiling this Report

1. The [General][NCB] Special Servicer has notified the Operating Advisor that [●] Specially Serviced Loans were transferred to special servicing in the prior calendar year [INSERT YEAR].

a. [●] of those Specially Serviced Loans are still being analyzed by the [General][NCB] Special Servicer as part of the development of an Asset Status Report.

b. Asset Status Reports were issued with respect to [●] of such Specially Serviced Loans. This report is based only on the Specially Serviced Loans in respect of which an Asset Status Report has been issued. The Asset Status Reports may not yet be fully implemented.

II. Executive Summary

Based on the requirements and qualifications set forth in the Pooling and Servicing Agreement, as well as the items listed below, the Operating Advisor (in accordance with the Operating Advisor’s analysis requirements outlined in the Pooling and Servicing Agreement) has undertaken a limited review of the [General][NCB] Special Servicer’s reported actions on the loans identified in this report. Based solely on such limited review of the items listed in this report, and subject to the assumptions, limitations and qualifications set forth herein, the Operating Advisor believes, in its sole discretion exercised in good faith, that the [General][NCB] Special Servicer [is/is not] operating in compliance with the Servicing Standard with respect to its performance of its duties under the Pooling and Servicing Agreement. [The Operating Advisor believes, in its sole discretion exercised in good faith, that the

¹This report is an indicative report and does not reflect the final form of annual report to be used in any particular year. The Operating Advisor will have the ability to modify or alter the organization and content of any particular report, subject to the compliance with the terms of the Pooling and Servicing Agreement, including, without limitation, provisions relating to Privileged Information.

 Exhibit V-1

[General][NCB] Special Servicer has failed to materially comply with the Servicing Standard as a result of the following material deviations.]

● [LIST OF MATERIAL DEVIATION ITEMS]

In addition, the Operating Advisor notes the following: [PROVIDE SUMMARY OF ANY ADDITIONAL MATERIAL INFORMATION].

● [ADD RECOMMENDATION OF REPLACEMENT OF SPECIAL SERVICER, IF APPLICABLE]

In connection with the assessment set forth in this report, the Operating Advisor:

1. Reviewed the Asset Status Reports, the [General][NCB] Special Servicer’s assessment of compliance report, attestation report by a third party regarding the [General][NCB] Special Servicer’s compliance with its obligations and net present value calculations and Appraisal Reduction Amount calculations and [LIST OTHER REVIEWED INFORMATION] for the following [  ] Specially Serviced Loans: [List related mortgage loans]

2. Consulted with the [General][NCB] Special Servicer as provided under the Pooling and Servicing Agreement. The Operating Advisor’s analysis of the Asset Status Reports (including related net present value calculations and Appraisal Reduction Amount calculations) related to the Specially Serviced Loans should be considered a limited investigation and not be considered a full or limited audit. For instance, we did not review each page of the [General][NCB] Special Servicer’s policy and procedure manuals (including amendments and appendices), re-engineer the quantitative aspects of their net present value calculation, visit any property, visit the [General][NCB] Special Servicer, visit the Directing Certificateholder or interact with any borrower. In addition, our review of the net present value calculations and Appraisal Reduction Amount calculations is limited to the mathematical accuracy of the calculations and the corresponding application of the non-discretionary portions of the applicable formulas, and as such, does not take into account the reasonableness of the discretionary portions of such formulas.

III. Specific Items of Review

1. The Operating Advisor reviewed the following items in connection with the generation of this report: [LIST MATERIAL ITEMS].

2. During the prior year, the Operating Advisor consulted with the [General][NCB] Special Servicer regarding its strategy plan for a limited number of issues related to the following Specially Serviced Loans: [LIST]. The Operating Advisor participated in discussions and made strategic observations and recommended alternative courses of action to the extent it deemed such observations and recommendations appropriate.

3. Appraisal Reduction Amount calculations and net present value calculations:

 Exhibit V-2

4. The Operating Advisor [received/did not receive] information necessary to recalculate and verify the accuracy of the mathematical calculations and the corresponding application of the non-discretionary portions of the applicable formulas required to be utilized in connection with any Appraisal Reduction Amount or net present value calculations used in the [General][NCB] Special Servicer’s determination of what course of action to take in connection with the workout or liquidation of a Specially Serviced Loan prior to the utilization by the [General][NCB] Special Servicer.

a. The Operating Advisor [agrees/does not agree] with the [mathematical calculations] [and/or] [the application of the applicable non-discretionary portions of the formula] required to be utilized for such calculation.

b. After consultation with the [General][NCB] Special Servicer to resolve any inaccuracy in the mathematical calculations or the application of the non-discretionary portions of the related formula in arriving at those mathematical calculations, such inaccuracy [has been/ has not been] resolved.

5. The following is a general discussion of certain concerns raised by the Operating Advisor discussed in this report: [LIST CONCERNS].

6. In addition to the other information presented herein, the Operating Advisor notes the following additional items, if any: [LIST ADDITIONAL ITEMS].

IV. Qualifications and Disclaimers Related to the Work Product Undertaken and Opinions Related to this Report

1. As provided in the Pooling and Servicing Agreement, the Operating Advisor (i) is not required to report on instances of non-compliance with, or deviations from, the Servicing Standard or the [general][NCB] special servicer’s obligations under the Pooling and Servicing Agreement that the Operating Advisor determines, in its sole discretion exercised in good faith, to be immaterial and (ii) will not be required to provide or obtain a legal opinion, legal review, or legal conclusion.

2. In rendering our assessment herein, we have assumed that all executed factual statements, instruments, and other documents that we have relied upon in rendering this assessment have been executed by persons with legal capacity to execute such documents.

3. Except as may have been reflected in any Major Decision Reporting Package or Asset Status Report, the Operating Advisor did not participate in, or have access to, the [General][NCB] Special Servicer’s and Directing Certificateholder’s discussion(s) regarding any Specially Serviced Loan. The Operating Advisor does not have authority to speak with the Directing Certificateholder or borrower directly. As such, the Operating Advisor relied upon the information delivered to it by the [General][NCB] Special Servicer as well as its interaction with the [General][NCB] Special Servicer, if any, in gathering the relevant information to generate this report. The services we perform are not designed and cannot be relied upon to detect fraud or illegal acts should any exist.

 Exhibit V-3

4. The [General][NCB] Special Servicer has the legal authority and responsibility to service any Specially Serviced Loans pursuant to the Pooling and Servicing Agreement. The Operating Advisor has no responsibility or authority to alter the standards set forth therein or direct the actions of the [General][NCB] Special Servicer.

5. Confidentiality and other contractual limitations limit the Operating Advisor’s ability to outline the details or substance of any communications held between it and the [General][NCB] Special Servicer regarding any Specially Serviced Loans and certain information it reviewed in connection with its duties under the Pooling and Servicing Agreement. As a result, this report may not reflect all the relevant information that the Operating Advisor is given access to by the [General][NCB] Special Servicer.

6. There are many tasks that the [General][NCB] Special Servicer undertakes on an ongoing basis related to Specially Serviced Loans. These include, but are not limited to, assumptions, ownership changes, collateral substitutions, capital reserve changes, etc. The Operating Advisor does not participate in any discussions regarding such actions. As such, Operating Advisor has not assessed the [General][NCB] Special Servicer’s operational compliance with respect to those types of actions.

7. The Operating Advisor is not empowered to speak with any investors directly. If the investors have questions regarding this report, they should address such questions to the certificate administrator through the certificate administrator’s website.

8. This report does not constitute recommendations to buy, sell or hold any security, nor does the Operating Advisor take into account market prices of securities or financial markets generally when performing its limited review of the [General][NCB] Special Servicer as described above. The Operating Advisor does not have a fiduciary relationship with any Certificateholder or any other party or individual. Nothing is intended to or should be construed as creating a fiduciary relationship between the Operating Advisor and any Certificateholder, party or individual.

Terms used but not defined herein have the meaning set forth in the Pooling and Servicing Agreement.

 Exhibit V-4

EXHIBIT W

FORM OF NOTICE FROM OPERATING ADVISOR RECOMMENDING REPLACEMENT OF the [General][NCB] SPECIAL SERVICER

Wilmington Trust, National Association
    as Trustee
1100 North Market Street
Wilmington, Delaware 19890
Attention: CMBS Trustee – BANK 2021-BNK37

Computershare Trust Company, N.A.
    as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
BANK 2021-BNK37 

Email: trustadministrationgroup@wellsfargo.com and cts.cmbs.bond.admin@wellsfargo.com

[CWCapital Asset Management LLC
    as General Special Servicer
900 19th Street NW, 8th Floor 

Washington, D.C. 20006 

Attention: Brian Hanson (BANK 2021-BNK37) 

Email: CWCAMContractNotices@cwcapital.com]

[National Cooperative Bank, N.A. 

    as NCB Special Servicer 

2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37, Recommendation of Replacement of [General][NCB] Special Servicer

Ladies and Gentlemen:

This letter is delivered pursuant to Section 7.01(d) of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor

 Exhibit W-1

and as Asset Representations Reviewer, on behalf of the holders of BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”) regarding the replacement of the [General][NCB] Special Servicer. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Pooling and Servicing Agreement.

Based upon our review of the [General][NCB] Special Servicer’s actions conducted pursuant to and in accordance with Section 3.26 of the Pooling and Servicing Agreement, it is our assessment that [CWCapital Asset Management LLC][National Cooperative Bank, N.A.], in its current capacity as [General][NCB] Special Servicer, is not [performing its duties under the Pooling and Servicing Agreement][acting in accordance with the Servicing Standard]. The following factors support our assessment: [________].

Based upon such assessment, we further hereby recommend that [CWCapital Asset Management LLC][National Cooperative Bank, N.A.] be removed as [General][NCB] Special Servicer and that [________] be appointed its successor in such capacity.

Very truly yours,
	[The Operating Advisor]
By:
	Name:
	Title:

Dated:

 Exhibit W-2

EXHIBIT X

FORM OF CONFIDENTIALITY AGREEMENT

[Wells Fargo Bank, National Association
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager
Telecopy Number: (704) 715-0036]

[CWCapital Asset Management LLC
     as General Special Servicer
900 19th Street NW, 8th Floor 

Washington, D.C. 20006 

Attention: Brian Hanson (BANK 2021-BNK37) 

Email: CWCAMContractNotices@cwcapital.com]

[National Cooperative Bank, N.A. 

     as NCB Special Servicer 

2011 Crystal Drive, Suite 800
Arlington, Virginia 22202
Attention: Kathleen Luzik, Chief Operating Officer
Facsimile number (703) 647-3473
Email: kluzik@ncb.coop]

Re: Access to Certain Information Regarding BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

Reference is hereby made to that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), among the Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer. Defined terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.

[Wells Fargo Bank, National Association (“Wells Fargo”)][National Cooperative Bank, N.A. (“NCB”)][CWCapital Asset Management LLC (“CWCap”)] understands that [____] (the “Company”) is requesting certain confidential or non-public information relating to the Mortgage Loans to which the Company has continuing rights as a Certificateholder. The

 Exhibit X-1

[________] [____ ], 20[___]
Page 2

Company is requesting such information for the purpose of analyzing asset performance and evaluating any continuing rights the Company may have under the Trust (the “Permitted Purpose”). The Company agrees that the Permitted Purpose shall not include the use or disclosure of the Confidential Information (as defined below) in any manner that violates any applicable law, the Pooling and Servicing Agreement or the related mortgage loan documents.

[Wells Fargo][NCB][CWCap] will provide the Company with certain confidential, non-public servicing information (the “Confidential Information”) pertaining to the Mortgage Loans and the related Mortgaged Properties and borrowers. The Company acknowledges that the Confidential Information (a) includes or may be based upon information provided to [Wells Fargo][NCB][CWCap] by third parties, (b) may not have been verified by [Wells Fargo][NCB][CWCap], and (c) may be incomplete or contain inaccuracies. The Company agrees that [Wells Fargo][NCB][CWCap], the [“General Master Servicer”][“NCB Master Servicer” and “NCB Special Servicer][“General Special Servicer”] (as defined in the Pooling and Servicing Agreement) and its respective Representatives (as defined below) shall not have any liability to the Company or its Representatives resulting from (x) any inaccuracies or omissions in the Confidential Information, (y) any use of the Confidential Information, or (z) [Wells Fargo][NCB][CWCap]’s failure or inability to provide the Confidential Information to the Company for any reason. Notwithstanding the foregoing, the following will not constitute “Confidential Information” for purposes of this letter agreement: (a) information that was already in Company’s possession prior to its receipt from [Wells Fargo][NCB][CWCap]; (b) information that is obtained by Company from a third person who, insofar as is known to Company, is not prohibited from transmitting the information to Company by a contractual, legal or fiduciary obligation to [Wells Fargo][NCB][CWCap]; (c) information that is or becomes publicly available through no fault of Company; and (d) information that is independently developed by Company. The term “Representatives” with respect to any entity shall mean the officers, directors, general partners, employees, agents, affiliates, auditors and legal counsel (which may be internal counsel) of that entity.

The Company may have access to the Confidential Information through (at [Wells Fargo][NCB][CWCap]’s election): (i) responses to reasonable written inquiries received from the Company, (ii) conference calls conducted on a reasonably scheduled basis with [Wells Fargo][NCB][CWCap]’s surveillance group, or (iii) direct on-line access (read-only capacity) to the information available on the applicable [____] system or any successor or replacement system (“System”). [Wells Fargo][NCB][CWCap] may cease or defer providing the Company with Confidential Information in the event that (a) the Company or its Representatives violate any provision hereof, or (b) [Wells Fargo][NCB][CWCap] determines (in its sole discretion) that such termination is necessary for any reason, including its determination that such action is required pursuant to the terms of the Pooling and Servicing Agreement, the related Mortgage Loan documents, or any applicable law. [Wells Fargo][NCB][CWCap] shall cease to provide the Company with Confidential Information if [Wells Fargo][NCB][CWCap] has actual knowledge that the Company or its Representatives are affiliates of any borrower under the Mortgage Loan documents and [Wells Fargo][NCB][CWCap] determines that the provision, notice or access to such Confidential Information would violate the accepted servicing practices or servicing standards as defined in the Pooling and Servicing Agreement. The Company’s obligations and the restrictions applicable to the protection of the Confidential Information

 Exhibit X-2

[________] [____ ], 20[___]
Page 3

hereunder shall survive the termination of the Company’s access to the Confidential Information. [Wells Fargo][NCB][CWCap]’s remedies hereunder, at law or at equity, are cumulative and may be combined.

The Company agrees that it will not, and it shall not permit its Representatives, to disclose the Confidential Information in any manner whatsoever to any other person or entity, other than its Representatives (but only to the extent necessary to accomplish the Permitted Purpose) who have a need to know the information, or as otherwise required by applicable law, court order or any governmental agency or regulator. The Company acknowledges (i) its obligations under the U.S. federal securities laws, and (ii) that any disclosure of the Confidential Information by it or its Representatives for any purpose other than a Permitted Purpose, in addition to being a breach of this letter agreement, may constitute a violation of federal and state securities laws. The Company will take reasonable measures to ensure that each Representative is advised of this letter agreement and agrees to keep the Confidential Information confidential. The Company shall be liable for any breach of this letter agreement by its Representatives and shall indemnify the Depositor, the Trustee, the Certificate Administrator, the Master Servicers, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers and the Trust Fund for any loss, liability or expense incurred thereby with respect to any such breach by the Company or any of its Representatives. Notwithstanding the foregoing, the Company may subsequently provide all or any part of such Confidential Information to any other person or entity that holds or is contemplating the purchase of any Certificate or interest therein, but only if such person or entity confirms such ownership interest or prospective ownership interest and provided that, prior to the delivery of such Confidential Information, such persons shall have executed and delivered to the Company an agreement that is substantially similar in form and substance to this agreement.

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York without the application of conflict of laws principles. Anything herein to the contrary notwithstanding, [Wells Fargo][NCB][CWCap] intends at all times to comply with the terms and provisions of the Pooling and Servicing Agreement and nothing in this letter agreement should be construed to limit or qualify any of [Wells Fargo][NCB][CWCap]’s rights or obligations under the Pooling and Servicing Agreement. This letter agreement may be executed in counterparts and by facsimile/Portable Document Format (PDF); each such counterpart shall be deemed to be an original instrument, and all such counterparts together shall constitute one agreement.

This agreement shall terminate with respect to the information received by the Company one year after the Company receives such information or ceases to be a Certificateholder. Company agrees that this letter agreement supersedes and replaces and survives any click-through agreement regarding confidentiality of Confidential Information agreed to in connection with accessing the System whether agreed to in accessing the System before or after signing this letter agreement.

 Exhibit X-3

[________] [____ ], 20[___]
Page 4

Please have an authorized signatory countersign in the space provided below to indicate the Company’s confirmation of, and agreement to, the matters set forth herein.

Very truly yours,
[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]

[CWCapital Asset Management LLC
By:
	Name:
	Title:]

[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name:
	Title:]

CONFIRMED AND AGREED TO:

[COMPANY NAME] 

By:
	Name:
	Title:

 Exhibit X-4

EXHIBIT Y

FORM CERTIFICATION TO BE PROVIDED WITH FORM 10-K

CERTIFICATION

I, [identifying the certifying individual], the President and Chief Executive Officer of Wells Fargo Commercial Mortgage Securities, Inc., the depositor into the above-referenced Trust, certify that:

1. I have reviewed this report on Form 10-K, and all reports on Form 10-D required to be filed in respect of the period covered by this report on Form 10-K of the BANK 2021-BNK37 (the “Exchange Act periodic reports”);

2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, all of the distribution, servicing and other information required to be provided under Form 10-D for the period covered by this report is included in the Exchange Act periodic reports;

4. Based on my knowledge and the servicer compliance statements required in this report under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic reports, the servicers have fulfilled their obligations under the servicing agreements in all material respects; and

5. All of the reports on assessment of compliance with servicing criteria for asset-backed securities and their related attestation reports on assessment of compliance with servicing criteria for asset-backed securities required to be included in this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this report, except as otherwise disclosed in this report. Any material instances of noncompliance described in such reports have been disclosed in this report on Form 10-K.

 Exhibit Y-1

In giving the certifications above, I have reasonably relied on information provided to me by the following unaffiliated parties:

[(A) Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer;

(B) [List other applicable reporting servicers]].

Date: _________________________________

_____________________________
President and Chief Executive Officer
Wells Fargo Commercial Mortgage Securities, Inc.
(Senior officer in charge of the securitization of the
depositor)

 Exhibit Y-2

EXHIBIT Z-1

FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR BY CERTIFICATE ADMINISTRATOR

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (the “Trust”)

The undersigned, __________, a __________ of Computershare Trust Company, N.A., on behalf of Computershare Trust Company, N.A., as Certificate Administrator (in such capacity, the “Certificate Administrator”), under that certain Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc. (the “Depositor”), as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) Wilmington Trust, National Association, as trustee, the Certificate Administrator, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, certifies to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor, [Name of the Other Depositor] and [its][their respective] officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that they will rely upon this certification, that:

1. I have reviewed the annual report on Form 10-K for the fiscal year 20[__] (the “Annual Report”), and all reports on Form 10-D and Form 8-K to be filed in respect of periods included in the year covered by the Annual Report (collectively with the Annual Report, the “Reports”), of the Trust;

2. To my knowledge, the Reports taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the Annual Report;

3. To my knowledge, the distribution information required to be provided by the Certificate Administrator under the Pooling and Servicing Agreement for inclusion in the Reports is included in the Reports;

4. I am responsible for reviewing the activities performed by the Certificate Administrator under the Pooling and Servicing Agreement and based on my knowledge and the compliance reviews conducted in preparing the Certificate Administrator compliance statements required for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB, and except as disclosed on any Reports, the Certificate Administrator has fulfilled its obligations in all material respects under the Pooling and Servicing Agreement; and

5. The report on assessment of compliance with servicing criteria applicable to the Certificate Administrator for asset-backed securities with respect to the Certificate

 Exhibit Z-1-1

Administrator or any Servicing Function Participant retained by the Certificate Administrator and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Depositor for disclosure in such annual report on Form 10-K.

In giving the certifications above, the Certificate Administrator has reasonably relied on information provided to it by the following unaffiliated persons: the Master Servicer, the Special Servicer, the Depositor, the Trustee and/or the Custodian.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date: 

COMPUTERSHARE TRUST COMPANY, N.A.
By:
	Name:
	Title:

 Exhibit Z-1-2

EXHIBIT Z-2

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY MASTER SERVICER

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (the “Trust”)

I, [identify the certifying individual], a [_______________] of [WELLS FARGO BANK, NATIONAL ASSOCIATION][NATIONAL COOPERATIVE BANK, N.A.], as [General][NCB] Master Servicer under that certain Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, N.A., as certificate administrator (the “Certificate Administrator”), and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Master Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor, each Other Depositor with respect to a securitization of a Serviced Companion Loan and [its][their respective] officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), and assuming the accuracy of the statements required to be made by each Special Servicer in the special servicer backup certificate delivered by each Special Servicer relating to the Relevant Period, all servicing information and all reports (the “Servicer Reports”) required to be submitted by the [General][NCB] Master Servicer to the Certificate Administrator pursuant to Sections 3.12(b) and (d) of the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Master Servicer to the Certificate Administrator for inclusion in these reports;

2. Based on my knowledge, and assuming the accuracy of the statements required to be made by the General Special Servicer and the NCB Special Servicer in the special servicer backup certificates delivered by the General Special Servicer and the NCB Special Servicer relating to the Relevant Period, the master servicing information contained in the Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Master Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the annual compliance reviews

 Exhibit Z-2-1

conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB with respect to the [General][NCB] Master Servicer, and except as disclosed in the compliance certificate delivered by the [General][NCB] Master Servicer under Section 11.09 of the Pooling and Servicing Agreement, the [General][NCB] Master Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Master Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Master Servicer’s assessment of compliance with the Relevant Servicing Criteria in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Master Servicer for asset-backed securities with respect to the [General][NCB] Master Servicer or any Servicing Function Participant retained by the [General][NCB] Master Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

[In giving the certification above, I have reasonably relied on and make no certification as to information provided to me by the following unaffiliated parties: name(s) of third parties (including the [General][NCB] Special Servicer, but other than a Sub-Servicer, Additional Servicer or any other third party retained by the [General][NCB] Master Servicer that is not a Sub-Servicer appointed pursuant to Section 3.20 of the Pooling and Servicing Agreement) and, notwithstanding the foregoing certifications, neither I nor the [General][NCB] Master Servicer makes any certification under the foregoing clauses (2) and (3) with respect to the information in the Servicer Reports that is in turn dependent upon information provided by the General Special Servicer and NCB Special Servicer under the Pooling and Servicing Agreement. Solely with respect to the completeness of information and reports, I do not certify anything other than that all fields of information called for in written reports prepared by the [General][NCB] Master Servicer have been properly completed and that any fields that have been left blank on their face have been done so in accordance with the CREFC procedures for such report.]

 Exhibit Z-2-2

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date: 

[WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
	Name:
	Title:]

[NATIONAL COOPERATIVE BANK, N.A.
By:
	Name:
	Title:]

 Exhibit Z-2-3

EXHIBIT Z-3

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY SPECIAL SERVICER

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (the “Trust”)

I, [identify the certifying individual], a [_______________ ] of [CWCapital Asset Management LLC][National Cooperative Bank, N.A.] as [General][NCB] Special Servicer under that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”), and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, on behalf of the [General][NCB] Special Servicer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all servicing information and all required reports (the “Special Servicer Reports”) required to be submitted by the [General][NCB] Special Servicer pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K have been submitted by the [General][NCB] Special Servicer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the special servicing information contained in the Special Servicer Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. I am, or a Servicing Officer under my supervision is, responsible for reviewing the activities performed by the [General][NCB] Special Servicer under the Pooling and Servicing Agreement and based upon my knowledge and the annual compliance reviews conducted in preparing the servicer compliance statements required to be delivered under Article XI of the Pooling and Servicing Agreement for inclusion in the Form 10-K under Item 1123 of Regulation AB with respect to the [General][NCB] Special Servicer, and except as disclosed in the compliance certificate delivered by the [General][NCB] Special Servicer under Section 11.09 of the Pooling and Servicing Agreement, the

Exhibit Z-3-1

[General][NCB] Special Servicer has fulfilled its obligations under the Pooling and Servicing Agreement in all material respects during the Relevant Period;

4. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the [General][NCB] Special Servicer with respect to the Trust’s fiscal year _____ have been provided all information relating to the [General][NCB] Special Servicer assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

5. The report on assessment of compliance with servicing criteria applicable to the [General][NCB] Special Servicer for asset-backed securities with respect to the [General][NCB] Special Servicer or any Servicing Function Participant retained by the [General][NCB] Special Servicer and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

[General][NCB] Special Servicer
By:
	Name:
	Title:

Exhibit Z-3-2

EXHIBIT Z-4

FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR BY TRUSTEE

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (The “Trust”)

The undersigned, __________, a __________ of WILMINGTON TRUST, NATIONAL ASSOCIATION, on behalf of WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee (the “Trustee”), under that certain Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee (the “Trustee”), Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”), and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, certifies to [_____], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Trustee for asset-backed securities with respect to the Trustee or any Servicing Function Participant retained by the Trustee and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Exhibit Z-4-1

WILMINGTON TRUST, NATIONAL ASSOCIATION
By:
	Name:
	Title:

Exhibit Z-4-2

EXHIBIT Z-5

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY OPERATING ADVISOR

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (the “Trust”)

I, [identify the certifying individual], a [_______________] of Park Bridge Lender Services LLC (the “Operating Advisor”) as Operating Advisor under that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”) and Park Bridge Lender Services LLC, as Operating Advisor and as asset representations reviewer, on behalf of the Operating Advisor, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Operating Advisor, collectively, the “Operating Advisor Periodic Information”) have been submitted by the Operating Advisor to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports;

2. Based on my knowledge, the Operating Advisor Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports;

3. The accountants that are to deliver the annual attestation report on assessment of compliance with the Relevant Servicing Criteria in respect of the Operating Advisor with respect to the Trust’s fiscal year ________ have been provided all information relating to the Operating Advisor’s assessment of compliance with the Relevant Servicing Criteria, in order to enable them to conduct a review in

Exhibit Z-5-1

compliance with the standards for attestation engagements issued or adopted by the PCAOB; and

4. The report on assessment of compliance with servicing criteria applicable to the Operating Advisor for asset-backed securities with respect to the Operating Advisor or any Servicing Function Participant retained by the Operating Advisor and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

PARK BRIDGE LENDER SERVICES LLC, as Operating Advisor
By:
	Name:
	Title:

Exhibit Z-5-2

EXHIBIT Z-6

FORM OF CERTIFICATION TO BE PROVIDED
TO DEPOSITOR BY CUSTODIAN

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (The “Trust”)

The undersigned, __________, a __________ of Computershare Trust Company, N.A., on behalf of COMPUTERSHARE TRUST COMPANY, N.A., as Custodian (the “Custodian”), under that certain Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”), and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, certifies to [_____], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, to the extent that the following information is within our normal area of responsibilities and duties under the Pooling and Servicing Agreement, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

The report on assessment of compliance with servicing criteria applicable to the Custodian for asset-backed securities with respect to the Custodian or any Servicing Function Participant retained by the Custodian and related attestation report on assessment of compliance with servicing criteria applicable to it required to be included in the annual report on Form 10-K for the Relevant Period in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been provided to the Depositor and to the Certificate Administrator for inclusion as an exhibit to such Form 10-K. Any material instances of noncompliance described in such reports have been provided to the Certificate Administrator and the Depositor for disclosure in such annual report on Form 10-K.

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

Exhibit Z-6-1

COMPUTERSHARE TRUST COMPANY, N.A.
By:
	Name:
	Title:

Exhibit Z-6-2

EXHIBIT Z-7

FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR BY ASSET REPRESENTATIONS REVIEWER

WELLS FARGO COMMERCIAL MORTGAGE TRUST 2021-BNK37 (the “Trust”)

I, [identify the certifying individual], a [_______________] of Park Bridge Lender Services LLC (the “Asset Representations Reviewer”) as Asset Representations Reviewer under that certain Pooling and Servicing Agreement dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), entered into by Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), CWCapital Asset Management LLC, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB Master Servicer (in such capacity, the “NCB Master Servicer”) and NCB Special Servicer (in such capacity, the “NCB Special Servicer”), Wilmington Trust, National Association, as trustee, and Computershare Trust Company, N.A., as certificate administrator (in such capacity, the “Certificate Administrator”) and Park Bridge Lender Services LLC, as operating advisor and as Asset Representations Reviewer, on behalf of the Asset Representations Reviewer, certify to [Name of Certifying Person(s) for Sarbanes-Oxley Certification], the Depositor and each Other Depositor with respect to a securitization of a Serviced Companion Loan and their respective officers, directors and affiliates, and with the knowledge and intent that the applicable Certification Parties will rely upon this certification, that:

1. Based on my knowledge, with respect to the period ending [December 31, 20__] (the “Relevant Period”), all information required to be submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, Trustee or Certificate Administrator, as applicable, pursuant to the Pooling and Servicing Agreement for inclusion in the annual report on Form 10-K for the Relevant Period and inclusion in all reports on Form 10-D or Form 8-K (the “Reports”) (such information provided by the Asset Representations Reviewer, collectively, the “Asset Representations Reviewer Periodic Information”) have been submitted by the Asset Representations Reviewer to the General Master Servicer, the NCB Master Servicer, the Depositor, the Trustee or the Certificate Administrator, as applicable, for inclusion in these reports; and

2. Based on my knowledge, the Asset Representations Reviewer Periodic Information contained in the Reports, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by these reports.

Exhibit Z-7-1 

Capitalized terms used but not defined herein have the meanings set forth in the Pooling and Servicing Agreement.

Date:

PARK BRIDGE LENDER SERVICES LLC
By:
	Name:
	Title:

Exhibit Z-7-2 

EXHIBIT AA

SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE

The assessment of compliance to be delivered by the referenced party shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria” applicable to such party, as such criteria may be updated or limited by the Commission or its staff (including, without limitation, not requiring the delivery of certain of the items set forth on this Exhibit based on interpretive guidance provided by the Commission or its staff relating to Item 1122 of Regulation AB). In addition, this Exhibit AA shall not be construed to impose on any Person any servicing duty that is not otherwise imposed on such Person under the main body of the Pooling and Servicing Agreement of which this Exhibit AA forms a part or to require an assessment of a criterion that is not encompassed by the servicing duties of the applicable party that are set forth in the main body of such Pooling and Servicing Agreement. For the avoidance of doubt, for purposes of this Exhibit AA, other than with respect to Item 1122(d)(2)(iii), references to Servicer below shall include any Sub-Servicer engaged by the Master Servicer or the Special Servicer.

APPLICABLE Servicing Criteria		applicable Party(IES)
Reference	Criteria
	General Servicing Considerations
1122(d)(1)(i)	Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(ii)	If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(1)(iii)	Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.	N/A
1122(d)(1)(iv)	A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.	General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer Custodian (as applicable)
1122(d)(1)(v)	Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
	Cash Collection and Administration
1122(d)(2)(i)	Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.	Certificate Administrator General Master Servicer NCB Master Servicer General Special Servicer NCB Special Servicer
1122(d)(2)(ii)	Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.	Certificate Administrator

Exhibit AA-1

1122(d)(2)(iii)	Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.	Trustee (as applicable)1  General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(2)(iv)	The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.	Certificate Administrator  General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(2)(v)	Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Exchange Act.	Certificate Administrator  General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(2)(vi)	Unissued checks are safeguarded so as to prevent unauthorized access.	Certificate Administrator  General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(2)(vii)	Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations (A) are mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	Certificate Administrator  General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
	Investor Remittances and Reporting
1122(d)(3)(i)	Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Reporting Servicer.	Certificate Administrator Operating Advisor (with respect to A and B)
1122(d)(3)(ii)	Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.	Certificate Administrator
1122(d)(3)(iii)	Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.	Certificate Administrator
1122(d)(3)(iv)	Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.	Certificate Administrator
	Pool Asset Administration
1122(d)(4)(i)	Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.	Custodian General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(4)(ii)	Mortgage loan and related documents are safeguarded as required by the transaction agreements	Custodian

¹ Only to the extent that the Trustee was required to make an Advance pursuant to the Pooling and Servicing Agreement during the applicable calendar year.

Exhibit AA-2

1122(d)(4)(iii)	Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.	Certificate Administrator General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(4)(iv)	Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.	General Master Servicer  NCB Master Servicer
1122(d)(4)(v)	The Reporting Servicer’s records regarding the mortgage loans agree with the Reporting Servicer’s records with respect to an obligor’s unpaid principal balance.	General Master Servicer  NCB Master Servicer
1122(d)(4)(vi)	Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.	General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(4)(vii)	Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.	General Special Servicer  NCB Special Servicer Operating Advisor
1122(d)(4)(viii)	Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).	General Master Servicer  NCB Master Servicer  General Special Servicer  NCB Special Servicer
1122(d)(4)(ix)	Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.	General Master Servicer  NCB Master Servicer
1122(d)(4)(x)	Regarding any funds held in trust for an obligor (such as escrow accounts):  (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.	General Master Servicer  NCB Master Servicer
1122(d)(4)(xi)	Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.	General Master Servicer  NCB Master Servicer
1122(d)(4)(xii)	Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.	General Master Servicer  NCB Master Servicer
1122(d)(4)(xiii)	Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.	General Master Servicer  NCB Master Servicer
1122(d)(4)(xiv)	Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.	General Master Servicer  NCB Master Servicer
1122(d)(4)(xv)	Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.	N/A

At all times that the Certificate Administrator and the Trustee are the same entity, the Trustee and Certificate Administrator may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit AA-3

At all times that the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer are the same entity, the General Master Servicer and the General Special Servicer or the NCB Master Servicer and the NCB Special Servicer, as applicable, may provide a combined assessment of compliance in respect of their combined responsibilities under Section 1122 of Regulation AB.

Exhibit AA-4

EXHIBIT BB

ADDITIONAL FORM 10-D DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.04 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator (or the applicable Master Servicer to the extent specified in Section 11.04 of the Pooling and Servicing Agreement) any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-D that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK37 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-D	Party Responsible
Item 1A: Distribution and Pool Performance Information: ●     Item 1111(h) of Regulation AB ●     Item 1125 of Regulation AB ●     Item 1121(a)(13) of Regulation AB	●     Each Master Servicer ●     Certificate Administrator

Exhibit BB-1

Item on Form 10-D	Party Responsible
Item 1B: Distribution and Pool Performance Information: ●      Item 1121(a)(14) of Regulation AB ●      Item 1121(d) of Regulation AB ●      Item 1121(e) of Regulation AB	●      Certificate Administrator ●      Depositor ●      Asset Representations Reviewer
Item 2: Legal Proceedings: ●       Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)	●      Each Master Servicer (as to itself) ●      Each Special Servicer (as to itself) ●      Certificate Administrator (as to itself) ●      Trustee (as to itself) ●      Depositor (as to itself) ●      Operating Advisor (as to itself) ●      Any other Reporting Servicer (as to itself) ●      Trustee/Certificate Administrator/each Master Servicer/Depositor/each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●      Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●      Originators under Item 1110 of Regulation AB ●      Party under Item 1100(d)(1) of Regulation AB
Item 3: Sale of Securities and Use of Proceeds	●   Depositor
Item 4: Defaults Upon Senior Securities	●   Certificate Administrator
Item 5: Submission of Matters to a Vote of Security Holders	●   Certificate Administrator

Exhibit BB-2

Item on Form 10-D	Party Responsible
Item 6: Significant Obligors of Pool Assets: ●      Item 1112(b) of Regulation AB provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or property (if any) identified as a “significant obligor” in the Prospectus; (b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable in the Form 10-D that relates to the Distribution Date that immediately follows the Collection Period in which the information was received or prepared by the “Party Responsible” as described in clause (b) above.	●      Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●      Each Special Servicer (as to Specially Serviced Loans and REO Properties)
Item 7: Change in Sponsor Interest in the Securities: ●      Item 1124 of Regulation AB.	●      Each Mortgage Loan Seller (as to itself in its capacity as a sponsor as defined in Regulation AB)
Item 8: Significant Enhancement Provider Information: ●      Item 1114(b)(2) and Item 1115(b) of Regulation AB	●      Depositor

Exhibit BB-3

Item on Form 10-D	Party Responsible
Regulation AB
Item 9: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit CC, (b) such information is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-D relates, and (c) such information was not previously reported as “Additional Form 8-K Disclosure”.	●      Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit CC.  ●      Certificate Administrator (including the balances of the Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account as of the related Distribution Date and the preceding Distribution Date) ●      Each Master Servicer (with respect to the balance of its Collection Account as of the related Distribution Date and the preceding Distribution Date) ●      Each Special Servicer (with respect to the balance of each applicable REO Account as of the related Distribution Date and the preceding Distribution Date) ●      Any other party responsible for disclosure items on Form 8-K (including each applicable Seller with respect to Item 1100(e) of Regulation AB to the extent material to Certificateholders)
Item 10: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●      Depositor
Item 10: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●      Certificate Administrator ●      Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate

Exhibit BB-4

Item on Form 10-D	Party Responsible
	Administrator, then the Depositor shall be the responsible party.
Item 10: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●      Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions: (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust.
Item 10: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K), but only if the party that is the “Party Responsible” with respect to Item 5 above elects to publish a report containing the information required by such Item 5 above and also elects to report the information on Form 10-D by means of filing the published report and answering Item 5 by referencing the published report.	●      The applicable party that is the “Party Responsible” with respect to Item 5 as set forth above.
Item 10: Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●      Depositor
Item 10: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●      Certificate Administrator
Item 10: Exhibits (no. 99)	●      Not Applicable.

Exhibit BB-5

Item on Form 10-D	Party Responsible
Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)
Item 10: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●      Not Applicable.
Item 10: Exhibits (By Operation of Item 8 Above), but only to the extent of any document that meets all the following conditions: (a) such document constitutes “Additional Form 8-K Disclosure” pursuant to Item 9.01(d) of Exhibit CC, (b) such document is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-D relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”.	●     Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9.01(d) of Exhibit DD (it being acknowledged that none of the Master Servicers or the Special Servicers constitutes a “Party Responsible” under Exhibit DD with respect to any exhibits to a Form 10-K); provided that, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party for this Item 10.
Item on Form 10-D	Party Responsible
Item 1A: Distribution and Pool Performance Information: ●      Item 1111(h) of Regulation AB ●     Item 1125 of Regulation AB ●     Item 1121(a)(13) of Regulation AB	●     Certificate Administrator

Exhibit BB-6

EXHIBIT CC

ADDITIONAL FORM 10-K DISCLOSURE

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.05 of the Pooling and Servicing Agreement to disclose to the Depositor and the Certificate Administrator any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has actual knowledge (and in the case of net operating income information, financial statements, annual operating statements, budgets and/or rent rolls required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 10-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK37 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 10-K	Party Responsible
Item 1B:  Unresolved Staff Comments	●       Depositor

Exhibit CC-1

Item 9B: Other Information, but only to the extent of any information that meets all the following conditions: (a) such information constitutes “Additional Form 8-K Disclosure” pursuant to Exhibit DD, (b) such information is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such information was not previously reported as “Additional Form 8 K Disclosure” or as “Additional Form 10-D Disclosure”	●      Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent that such party is the “Party Responsible” with respect to such information pursuant to Exhibit DD.
Item 15:  Exhibits, Financial Statement Schedules (SEE BELOW)	SEE BELOW
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 1 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was required to have been set forth in the Prospectus, (ii) such information was not so set forth and (iii) the applicable Master Servicer has not previously reported such information as “Additional Form 10-D Information”.	●      The applicable Mortgage Loan Seller.
Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 2 of 3 Parts: ●     Item 1112(b) of Regulation AB, but only to the extent that (i) such information was set forth in the Prospectus and (ii) the applicable Master Servicer has not previously reported such information or updated versions thereof as “Additional Form 10-D Information”.	●      Depositor

Exhibit CC-2

Instruction J(2)(b) (Significant Obligors of Pool Assets) – Part 3 of 3 Parts: ●     Item 1112(b) of Regulation AB; provided, however, that all of the following conditions shall apply: (a) information shall be required to be reported only with respect to a party or property (if any) identified as a “significant obligor” in the Prospectus; (b) the information to be reported shall consist of such quarterly and annual operating statements, budgets and rent rolls of the related Mortgaged Property or REO Property (as applicable), and quarterly and annual financial statements of the related Borrower (except in the case of an REO Property), received or prepared by the “Party Responsible” pursuant to its obligations under Section 3.12(b) of this Pooling and Servicing Agreement; provided, however, that for a significant obligor described under item 1101(k)(2) of Regulation AB, only net operating income for the most recent fiscal year and interim period is required and, if such information for a prior period was required but not previously reported, such information for such prior period; and (c) the information shall be reportable only to the extent that is has not previously been reported as “Additional Form 10-D Information”.

●     Each Master Servicer (excluding information for which the Special Servicer is the “Party Responsible”) ●     Each Special Servicer (as to Specially Serviced Loans and REO Properties)

Instruction J(2)(c) (Significant Enhancement Provider Information): ●     Items 1114(b)(2) and 1115(b) of Regulation AB

●       Depositor

Exhibit CC-3

Instruction J(2)(d) (Legal Proceedings): ●     Item 1117 of Regulation AB (it being acknowledged that such Item 1117 requires disclosure only of proceedings described therein that are material to security holders)

●     Each Master Servicer (as to itself) ●     Each Special Servicer (as to itself) ●     Certificate Administrator (as to itself) ●     Trustee (as to itself) ●     Depositor (as to itself) ●     Trustee/Certificate Administrator / each Master Servicer/Depositor/ each Special Servicer as to the Trust (whichever of them is in principal control of the proceedings) ●     Each Mortgage Loan Seller as sponsor (as defined in Regulation AB) ●     Originators under Item 1110 of Regulation AB ●     Party under Item 1100(d)(1) of Regulation AB

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 1 of 2 Parts: 1119(a) of Regulation AB, but only the existence and (if existent) how there is (that is, the nature of) any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, (3) the Trust and (4) any other party listed under this item as a “Party Responsible”; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(b) of Regulation AB,

●     Each Master Servicer (as to itself) (only as to affiliations under Item 1119(a) with the Trustee, Certificate Administrator, each Special Servicer or a sub-servicer retained by it meeting any of the descriptions in Item 1108(a)(3)). ●     Each Special Servicer ●     Certificate Administrator ●     Trustee ●     Each party (other than a Mortgage Loan Seller), if any, that is identified in the Prospectus as an “originator” of one or more Mortgage Loans, if the Prospectus specifically states that the applicable Mortgage Loans were 10% or more of the assets of the Trust at the date of the Prospectus (provided that such a party shall no longer constitute a

Exhibit CC-4

but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK37 transaction) between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10 K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(c) of Regulation AB, but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK37 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the following, on the other: (1) the Depositor, (2) any Mortgage Loan Seller, and (3) the Trust; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10 K Disclosure”.        “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer constitutes an originator of 10% or more of the assets of the Trust). ●     Each party (other than a Mortgage Loan Seller), if any, that is specifically identified as an “originator of 10% or more of the assets of the Trust for purposes of Regulation AB and the upcoming Form 10 K” in a written notice delivered to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than August 15 of the year in which the Form 10 K is due. ●     Each party (if any) that is identified in the Prospectus as an “other material party to the securities or transaction” (or substantially similar phrasing); provided, however, that such a party shall no longer constitute a “Party Responsible” under this item from and after the date (if any) when the Depositor notifies the parties to the Pooling and Servicing Agreement to the effect that such party no longer constitutes a material party for purposes of Regulation AB. ●     Each party (if any) that that is specifically identified as an “other material party to the securities or transaction for purposes of Regulation AB and the upcoming Form 10 K” (or substantially similar phrasing) in a written notice delivered by the Depositor to the parties to this Pooling and Servicing Agreement, which notice is delivered not later than August 15 of the year in which the Form 10 K is due.

Exhibit CC-5

“Additional Form 10 K Disclosure”.

Instruction J(2)(e) (Affiliations and Certain Relationships and Related Transactions) – Part 2 of 2 Parts: 1119(a) of Regulation AB, But only the existence and (if existent) how there is any affiliation between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that an affiliation need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”. and ●     1119(b) of Regulation AB, but only the existence and (if existent) the general character of any business relationship, agreement, arrangement, transaction or understanding that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s length transaction with an unrelated third party (apart from the Series 2021-BNK37 transaction) between itself (that is, the particular “Party Responsible”), on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship, agreement, arrangement, transaction or understanding (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as

●     Depositor ●     Each Mortgage Loan Seller

Exhibit CC-6

“Additional Form 10-K Disclosure”. and ●     1119(c) of Regulation AB, but only the existence and (if existent) a description (including the terms and approximate dollar amount) of any specific relationship involving or related to the Series 2021-BNK37 transaction or the Mortgage Loans between itself (that is, the particular “Party Responsible”) or any of its affiliates, on the one hand, and any one or more of the parties listed under the preceding item as a “Party Responsible”, on the other; provided, however, that a relationship (A) must be reported only if it then exists or existed within the two prior years, (B) need not be reported if it is not material to an investor’s understanding of the Certificates and (C) need not be disclosed for purposes of the applicable Form 10-K if it was disclosed in the Prospectus or if it was previously reported as “Additional Form 10-K Disclosure”.
Item 15: Exhibits (no. 2): Plan of acquisition, reorganization, arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)	●     Depositor
Item 15: Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●     Depositor
Item 15: Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Trustee ●     Certificate Administrator ●     Depositor provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling

Exhibit CC-7

	and Servicing Agreement provided, further, in each case, that in the event any reportable agreement is executed by the Depositor and the Trustee or Certificate Administrator, then the Depositor shall be the responsible party.
Item 15: Exhibits (no. 10): Material contracts (Exhibit No. 10 of Item 601 of Regulation S-K)	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions:  (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust.
Item 15: Exhibits (no. 11): Statement regarding computation of per share earnings (Exhibit No. 11 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 12): Statement regarding computation of ratios (Exhibit No. 12 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 13): Annual report to security holders, Form 10 Q and Form 10 QSB, or quarterly report to security holders (Exhibit No. 13 of Item 601 of Regulation S-K)	●     Not Applicable
Item 15: Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K).	●     Not Applicable

Exhibit CC-8

Item 15: Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●       Not Applicable
Item 15: Exhibits (no. 18): Letter re change in accounting principles (Exhibit No. 18 of Item 601 of Regulation S-K)	●       Not Applicable.
Item 15: Exhibits (no. 21): Subsidiaries of registrant (Exhibit No. 18 of Item 601 of Regulation S-K)	●       Depositor.
Item 15: Exhibits (no. 22): Published Report Regarding Matters Submitted to a Vote of Security Holders (Exhibit No. 22 of Item 601 of Regulation S-K).	●       Not Applicable.
Item 15: Exhibits (no. 23) – Part 1 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where (a) the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement and (b) the consent is not the consent of a registered public accounting firm in connection with an attestation delivered pursuant to Section 11.13 of this Pooling and Servicing Agreement.	●       Depositor
Item 15: Exhibits (no. 23) – Part 2 of 2 Parts: Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), but the required shall consist of a consent of the registered public accounting firm for purposes of any attestation report rendered with respect to the particular “Party Responsible” pursuant to Section 11.13 of this Pooling and Servicing	●     Each Master Servicer  ●     Each Special Servicer  ●     Depositor  ●     Any other Servicing Function Participant provided, however, in each case, that such party shall have the duty to report or deliver, or cause the reporting or delivery, of such consent only to the extent that such party is

Exhibit CC-9

Agreement.	required to deliver or cause the delivery of the related attestation report.
Item 15: Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 15: Exhibits (no. 31(i)) Rule 13a-14(a)/15d-14(a) Certifications (Exhibit No. 31(i) of Item 601 of Regulation S-K).	●     Not Applicable
Item 15: Exhibits (no. 31(ii)) Rule 13a-14(d)/15d-14(d) Certifications (Exhibit No. 31(ii) of Item 601 of Regulation S-K).	●     Delivery of this exhibit (Sarbanes-Oxley certification and backup certifications) is governed by Section 11.08 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 32) Section 1350 Certifications (Exhibit No. 32 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15: Exhibits (no. 33) Report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 33 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual compliance assessment) is governed by Section 11.10 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 34) Attestation report on assessment of compliance with servicing criteria for asset-backed securities (Exhibit No. 34 of Item 601 of Regulation S-K).	●     Delivery of this exhibit (annual accountants’ attestation report) is governed by Section 11.11 (and Section 11.07) of this Pooling and Servicing Agreement.
Item 15: Exhibits (no. 35) Servicer compliance statement (Exhibit No. 35	●     Delivery of this exhibit (annual servicer compliance statements) is governed by Section 11.09 (and Section 11.07) of this Pooling and Servicing Agreement.

Exhibit CC-10

of Item 601 of Regulation S-K).
Item 15: Exhibit (no. 36) Certification For Shelf Offerings of Asset-Backed Securities (Exhibit No. 36 of Item 601 of Regulation S-K).	●     Depositor
Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.
Item 15:  Exhibits (By Operation of Item 9B Above), but only to the extent of any document that meets all the following conditions:  (a) such document constitutes “Additional Form 8 K Disclosure” pursuant to Item 9.01(d) of Exhibit DD, (b) such document is required to be reported as “Additional Form 8-K Disclosure” during the period to which the Form 10-K relates, and (c) such document was not previously reported as “Additional Form 8-K Disclosure”.	●     Certificate Administrator, Depositor and Trustee, in each case only to the extent that such party is the “Party Responsible” for the exhibit pursuant to Item 9(d) of Exhibit DD (it being acknowledged that none of the Master Servicers or the Special Servicers constitutes a “Party Responsible” under Exhibit DD with respect to any exhibits to a Form 10-K).
Item 15: Exhibit (no. 101) Interactive Data File (Exhibit No. 101 of Item 601 of Regulation S-K).	Not Applicable
Item 15: Exhibit (no. 102) Asset Data File (Exhibit No. 102 of Item 601 of Regulation S-K).	[Certificate Administrator] [Depositor]
Item 15: Exhibit (no. 103) Asset Related Document (Exhibit No, 103 of Item 601 of Regulation S-K).	[Certificate Administrator] [Depositor]

Exhibit CC-11

EXHIBIT DD

FORM 8-K DISCLOSURE INFORMATION

The parties identified in the “Party Responsible” column are obligated pursuant to Section 11.07 of the Pooling and Servicing Agreement to report to the Depositor and the Certificate Administrator the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has actual knowledge of such information (other than information as to itself). Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to rely on the accuracy of the Prospectus (other than information with respect to itself that is set forth in or omitted from the Prospectus), in the absence of specific written notice to the contrary from the Depositor or a Mortgage Loan Seller. Each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to conclusively assume that there is no “significant obligor” other than a party or property identified as such in the Prospectus and to assume that no other party or property will constitute a “significant obligor” after the Cut-off Date. In no event shall the General Master Servicer, the NCB Master Servicer, the General Special Servicer or the NCB Special Servicer be required to provide any information for inclusion in a Form 8-K that relates to any Mortgage Loan for which such Master Servicer or such Special Servicer is not the applicable Master Servicer or Special Servicer, as the case may be. For this Series 2021-BNK37 Pooling and Servicing Agreement, each of the Certificate Administrator, the Trustee, the General Master Servicer, the NCB Master Servicer, the General Special Servicer and the NCB Special Servicer (in its capacity as such) shall be entitled to assume that there is no provider of credit enhancement, liquidity or derivative instruments within the meaning of Items 1114 or 1115 of Regulation AB.

Item on Form 8-K

Party Responsible

Item 1.01:  Entry into a Material Definitive Agreement

●     Depositor, except as described in the next bullet (it being acknowledged that Item 601 of Regulation S-K requires filing of material contracts to which the registrant or a subsidiary thereof is a party). ●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer (it being acknowledged that Instruction 3 to Item 1.01 of Form 8-K requires disclosure regarding the entry into or an amendment of a definitive agreement that is material to the asset-backed securities transaction, even if the registrant is not a party to such agreement), in each case to the extent

Exhibit DD-1

	of any amendment or definitive agreement that satisfies all the following conditions: (a) such amendment or definitive agreement relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such amendment or definitive agreement is an amendment or definitive agreement to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02:  Termination of a Material Definitive Agreement– Part 1 of 2 Parts	●     Certificate Administrator, Trustee, each Master Servicer and/or each Special Servicer, in each case to the extent of any contract that satisfies all the following conditions:  (a) such contract relates to the Trust or one or more Mortgage Loans or REO Mortgage Loans, and (b) such contract is a contract to which such party (or a subcontractor or vendor engaged by such party) is a party or that such party (or a subcontractor or vendor engaged by such party) has caused to have been executed on behalf of the Trust; provided, however, that the Certificate Administrator shall be the “Party Responsible” in connection with any amendment to this Pooling and Servicing Agreement.
Item 1.02:  Termination of a Material Definitive Agreement– Part 2 of 2 Parts	●     Depositor, to the extent of any material agreement not covered in the prior item
Item 1.03:  Bankruptcy or Receivership	●     Depositor
Item 2.04:  Triggering Events that Accelerate or Increase a Direct Financial Obligation or an	●     Depositor

Exhibit DD-2

Obligation under an Off-Balance Sheet Arrangement	●     Certificate Administrator
Item 3.03:  Material Modification to Rights of Security Holders	●     Certificate Administrator
Item 5.03:  Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year	●     Depositor
Item  6.01:  ABS Informational and Computational Material	●     Depositor
Item 6.02 (Part 1 of 3 Parts):  Change of Servicer or Trustee, but only to the extent related to a change in trustee	●     Trustee ●     Depositor
Item 6.02 (Part 2 of 3 Parts):  Change of Servicer or Trustee, but only to the extent related to a change in Master Servicer or Special Servicer	●     Certificate Administrator ●     Each Master Servicer or each Special Servicer, as the case may be (in each case, as to itself)
Item 6.02 (Part 3 of 3 Parts):  Change of Servicer or Trustee, but only to the extent related to a servicer (other than a party to the Pooling and Servicing Agreement) appointed by the particular “Party Responsible”.	●     Each Master Servicer (as to a party appointed by such Master Servicer)  ●     Each Special Servicer  ●     Certificate Administrator ●     Depositor
Item 6.03:  Change in Credit Enhancement or External Support	●     Depositor  ●     Certificate Administrator
Item 6.04:  Failure to Make a Required Distribution	●     Certificate Administrator
Item 6.05:  Securities Act Updating Disclosure	●     Depositor
Item 7.01:  Regulation FD Disclosure	●     Depositor
Item 8.01:  Other Events	●     Depositor
Item 9.01(d): Exhibits (no. 1): Underwriting agreement (Exhibit No. 1 of Item 601 of Regulation S-K)	●     Not applicable
Item 9.01(d): Exhibits (no. 2): Plan of acquisition, reorganization,	●     Depositor

Exhibit DD-3

arrangement, liquidation or succession (Exhibit No. 2 of Item 601 of Regulation S-K)
Item 9.01(d): Exhibits (no. 3): Articles of incorporation and by-laws (Exhibit No. 3(i) and 3(ii) of Item 601 of Regulation S-K)	●     Depositor
Item 9.01(d): Exhibits (no. 4): With respect to instruments defining the rights of security holders (Exhibit No. 4 of Item 601 of Regulation S-K)	●     Certificate Administrator provided that, in each case, that this shall in no event be construed to make such party responsible for the initial filing of this Pooling and Servicing Agreement
Item 9.01(d): Exhibits (no. 7): Correspondence from an independent accountant regarding non-reliance on a previously issued audit report or completed interim review. (Exhibit No. 7 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 14): Code of Ethics (Exhibit No. 14 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 16): Letter re change in certifying accountant (Exhibit No. 16 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 17): Correspondence on departure of director (Exhibit No. 17 of Item 601 of Regulation S-K)	●     Not Applicable
Item 9.01(d): Exhibits (no. 20): Other documents or statements to security holders (Exhibit No. 20 of Item 601 of Regulation S-K)	●     Not Applicable

Exhibit DD-4

Item 9.01(d): Exhibits (no. 23): Consents of Experts and Counsel (Exhibit No. 23(ii) of Item 601 of Regulation S-K), where the filing of a written consent is required with respect to material (in the Form 10-D) that is incorporated by reference in the Depositor’s registration statement.	●     Depositor
Item 9.01(d): Exhibits (no. 24) Power of Attorney (Exhibit No. 24 of Item 601 of Regulation S-K), but only if the name of any party signing the Form 10-D, or the name of any officer signing the Form 10-D on behalf of a party, is signed pursuant to a power of attorney.	●     Certificate Administrator
Item 15: Exhibits (no. 99) Additional exhibits (Exhibit No. 99 of Item 601 of Regulation S-K)	●     Not Applicable.
Item 15: Exhibits (no. 100) XBRL-Related Documents (Exhibit No. 100 of Item 601 of Regulation S-K).	●     Not Applicable.

Exhibit DD-5

EXHIBIT EE

ADDITIONAL DISCLOSURE NOTIFICATION

**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO
cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Computershare Trust Company, N.A., as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
Wells Fargo Commercial Mortgage Securities, Inc., Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37—SEC REPORT PROCESSING

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section [11.04] [11.05] [11.07] of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Exhibit EE-1

Any inquiries related to this notification should be directed to [               ], phone number: [              ]; email address: [              ].

	[NAME OF PARTY], as [role]
	By:
		Name:
		Title:
cc: Depositor

Exhibit EE-2

EXHIBIT FF

INITIAL SUB-SERVICERS

1. Jones Lang LaSalle Multifamily, LLC

2. Berkadia Commercial Mortgage LLC

3. CBRE Loan Services, Inc.

4. Sunrise Mortgage and Investment Company

5. MMI Servicing, Inc.

Exhibit FF-1

EXHIBIT GG

SERVICING FUNCTION PARTICIPANTS

1. KeyBank National Association

2. Jones Lang LaSalle Multifamily, LLC

Exhibit GG-1

EXHIBIT HH

FORM OF ANNUAL COMPLIANCE STATEMENT

CERTIFICATION

BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Trust”)

I, [identifying the certifying individual], on behalf of [Wells Fargo Bank, National Association, as General Master Servicer] [National Cooperative Bank, N.A., as NCB Master Servicer] [CWCapital Asset Management LLC, as General Special Servicer] [National Cooperative Bank, N.A., as NCB Special Servicer] [Computershare Trust Company, N.A., as Certificate Administrator] [Custodian] [Wilmington Trust, National Association, as Trustee] (the “Certifying Servicer”), certify to Wells Fargo Commercial Mortgage Securities, Inc. and its officers, directors and affiliates, and with the knowledge and intent that they will rely upon this certification, that:

1. I (or Servicing Officers under my supervision) have reviewed the Certifying Servicer’s activities [during the preceding calendar year] [between [__] and [__]] (the “Reporting Period”) and the Certifying Servicer’s performance under the Pooling and Servicing Agreement; and

2. To the best of my knowledge, based on such review, the Certifying Servicer has fulfilled all of its obligations under the Pooling and Servicing Agreement in all material respects during the Reporting Period. [To my knowledge, the Certifying Servicer has failed to fulfill the following obligations under the Pooling and Servicing Agreement: [SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS THEREOF]].

Date:

[WELLS FARGO BANK, NATIONAL ASSOCIATION,
as General Master Servicer]
[NATIONAL COOPERATIVE BANK, N.A.,
as NCB Master Servicer]
[CWCAPITAL ASSET MANAGEMENT LLC,
as General Special Servicer]
[NATIONAL COOPERATIVE BANK, N.A.,
as NCB Special Servicer]
[COMPUTERSHARE TRUST COMPANY, N.A.,
as [Certificate Administrator][Custodian]]
[WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee]

By:
	Name:
	Title:

Exhibit HH-1

EXHIBIT II

FORM OF REPORT ON ASSESSMENT
OF COMPLIANCE WITH SERVICING CRITERIA

[Name of Reporting Servicer] (the “Reporting Servicer”) is responsible for assessing compliance with the servicing criteria applicable to it under paragraph (d) of Item 1122 of Regulation AB, as of and for the 12-month period ending December 31, 20[__] (the “Reporting Period”), as set forth in Exhibit AA to the Pooling and Servicing Agreement. The transactions covered by this report include asset-backed securities transactions for which the Reporting Servicer acted as [a master servicer, special servicer, trustee, certificate administrator] involving commercial mortgage loans [other than __________________¹] (the “Platform”);

The Reporting Servicer has engaged certain vendors, which are not servicers as defined in Item 1101(j) of Regulation AB (the “Vendors”) to perform specific, limited or scripted activities, and the Reporting Servicer elects to take responsibility for assessing compliance with the servicing criteria or portion of the servicing criteria applicable to such Vendors’ activities as set forth on Schedule A;

Except as set forth in paragraph 4 below, the Reporting Servicer used the criteria set forth in paragraph (d) of Item 1122 of Regulation AB to assess the compliance with the applicable servicing criteria;

The criteria listed in the column titled “Inapplicable Servicing Criteria” on Schedule A hereto are inapplicable to the Reporting Servicer based on the activities it performs, directly or through its Vendors, with respect to the Platform;

The Reporting Servicer has complied, in all material respects, with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified and is not aware of any material instance of noncompliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto];

The Reporting Servicer has not identified any material deficiency in its policies and procedures to monitor the compliance by the Vendors with the applicable servicing criteria as of December 31, 20[__] and for the Reporting Period with respect to the Platform taken as a whole[, except as described on Schedule B hereto]; and

¹        Describe any permissible exclusions, including those permitted under telephone interpretation 17.04 (i.e., transactions registered prior to compliance with Regulation AB, transactions involving an offer and sale of asset-backed securities that were not required to be issued), if applicable.

Exhibit II-1

[____], a registered public accounting firm, has issued an attestation report on the Reporting Servicer’s assessment of compliance with the applicable servicing criteria for the Reporting Period.

[Date of Certification]

[NAME OF REPORTING SERVICER]
By:
	Name:
	Title:

Exhibit II-2

EXHIBIT JJ

CREFC^® PAYMENT INFORMATION

Payments shall be made to “CRE Finance Council” and sent to:
Commercial Real Estate Finance Council, Inc.
28 West 44th Street, Suite 815

New York, NY 10036

Attn: Executive Director

or by wire transfer to:

[wiring instructions are on file with each Master Servicer]

Exhibit JJ-1

EXHIBIT KK

FORM OF NOTICE OF ADDITIONAL
INDEBTEDNESS NOTIFICATION

VIA E-MAIL:

To: Computershare Trust Company, N.A., as Certificate Administrator; cts.cmbs.bond.admin@wellsfargo.com and trustadministrationgroup@wellsfargo.com

Ref: BANK 2021-BNK37, Additional Debt Notice for From 10-D

The following information is being furnished to you for inclusion on Form 10-D pursuant to Section 3.18(g) of the Pooling and Servicing Agreement

Portfolio Name

Mortgage Loan

Position in Debt Stack

Additional Debt

OPB

OPB Date

Appraised Value

Appraised Value Date

Aggregate LTV

Aggregate NCF DSCR

Aggregate NCF DSCR Date

Primary Servicer

Master Servicer

Lead Servicer

Prospectus ID

BANK 2021-BNK37

$

$

%

Outside the Trust

$

$

%

Outside the Trust

$

$

%

Total

$

BANK 2021-BNK37

$

$

%

Outside the Trust

$

$

%

Outside the Trust

$

$

%

Total

$

BANK 2021-BNK37

$

$

%

Outside the Trust

$

$

%

Outside the Trust

$

$

%

Total

$

Exhibit KK-1

EXHIBIT LL

[RESERVED]

Exhibit LL-1

EXHIBIT MM

ADDITIONAL DISCLOSURE NOTIFICATION (ACCOUNTS)

INSTRUCTIONS:

FOR ACCOUNT BALANCE REPORTING: SEND VIA EMAIL TO:
         CTS.SEC.NOTIFICATIONS@WELLSFARGO.COM

FOR ALL OTHER NOTIFICATIONS: SEND VIA FAX, EMAIL AND OVERNIGHT
MAIL TO THE ADDRESS IMMEDIATELY BELOW**

Computershare Trust Company, N.A., as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37—SEC REPORT PROCESSING
Email: cts.sec.notifications@wellsfargo.com

RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required

Ladies and Gentlemen:

In accordance with Section 11.04 of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor (the “Depositor”), Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, the undersigned, as [ ], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].

Description of Additional Form [10-D][10-K][8-K] Disclosure:

[With respect to the Collection Accounts and REO Account balance information:

Account Name	Beginning Balance as of MM/DD/YYYY	Ending Balance as of MM/DD/YYYY
General Master Servicer’s Collection Account
NCB Master Servicer’s Collection Account
REO Account

Exhibit MM-1

List of any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K] Disclosure:

Any inquiries related to this notification should be directed to [                    ], phone number: [               ]; email address: [              ].

	[NAME OF PARTY], as [role]
	By:
		Name:
		Title:
cc: Depositor

Exhibit MM-2

EXHIBIT NN

FORM OF NOTICE OF PURCHASE OF
CONTROLLING CLASS CERTIFICATE

[Date]

Computershare Trust Company, N.A.
         as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services (CMBS) – BANK 2021-BNK37

Email: trustadministrationgroup@wellsfargo.com
and cts.cmbs.bond.admin@wellsfargo.com

Wells Fargo Bank, National Association
         as General Master Servicer
Commercial Mortgage Servicing
Three Wells Fargo
MAC D1050-084
401 South Tryon Street, 8th Floor
Charlotte, North Carolina 28202
Attention: BANK 2021-BNK37 Asset Manager
Telecopy Number: (704) 715-0036

National Cooperative Bank, N.A.

as NCB Master Servicer and as NCB Special Servicer
2011 Crystal Drive, Suite 800 

Arlington, Virginia 22202

Attention: Kathleen Luzik, Chief Operating Officer

Facsimile number (703) 647-3473

Email: kluzik@ncb.coop

CWCapital Asset Management LLC
         as General Special Servicer
900 19th Street NW, 8th Floor

Washington, D.C. 20006

Attention: Brian Hanson (BANK 2021-BNK37)

Email: CWCAMContractNotices@cwcapital.com

Park Bridge Lender Services LLC

600 Third Avenue, 40th Floor

New York, New York 10016

Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)

Exhibit NN-1

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37 (the “Certificates”) issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of November 1, 2021, between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer

This letter is delivered to you, pursuant to Section 3.23(a) of the Pooling and Servicing Agreement in connection with the transfer by ____________ (the “Transferor”) to us (the “Transferee”) of $__________________ original principal balance in the Class [__] Certificates, representing [_____]% of the Class [__] Certificates. The Certificates were issued pursuant to the Pooling and Servicing Agreement.

1. Our name and address is as follows:

Contact Info: [Tel/Email]

2. [IF APPLICABLE] We hereby certify, represent and warrant to you, as Certificate Administrator, that we are purchasing a majority interest in the Class [__] Certificates, and that we are not affiliated with the Transferor. To the extent that any Control Termination Event or Consultation Termination Event has occurred due to a waiver of a prior Class [__] Certificateholder of its rights under the Pooling and Servicing Agreement, we hereby request that you reinstate such rights and post a “special notice” on your website to the following effect:

“A Consultation Termination Event or a Control Termination Event has been terminated and is no longer in effect due to a transfer of a majority interest of the Controlling Class to an unaffiliated third party which has terminated any waiver by the prior Holder.

All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement.

Very truly yours,
	(Transferee)

Exhibit NN-2

By:
	Name:
	Title:

Exhibit NN-3

EXHIBIT OO

FORM OF ASSET REVIEW REPORT BY THE
ASSET REPRESENTATIONS REVIEWER¹

To: [Addresses of Recipients]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test][evidence of [●] failed Test[s] as specifically detailed on the scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans.

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this report to the persons listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹ This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit OO-1

PARK BRIDGE LENDER SERVICES LLC, as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit OO-2

Exhibit A

Detailed Scorecard
[Template Example Below]

Loan #	Loan Name	Mortgage Loan Seller	R&W #	R&W Name	Test Description	Findings
[Insert Loan Number ]	[Insert Loan Name]	[Insert Mortgage Loan Seller]	21	Compliance with Usury Laws	[Insert Test Description]	[Insert Test findings]
			31	Single-Purpose Entity

Exhibit OO-3

EXHIBIT PP

FORM OF ASSET REVIEW REPORT SUMMARY¹

To: [Addresses of Recipients]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

Ladies and Gentlemen:

In accordance with Section 12.01 of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), the undersigned, as asset representations reviewer (the “Asset Representations Reviewer”), has performed an Asset Review on each Delinquent Loan identified in accordance with the terms of the Pooling and Servicing Agreement, and is hereby issuing the following Asset Review Report Summary.

1. We have performed an Asset Review on each [Subject] Loan identified in accordance with the terms of the Pooling and Servicing Agreement and our conclusion is that there is [no evidence of a failed Test][evidence of [__] failed Test[s] as identified on the summary scorecard attached hereto as Exhibit A] with respect to the [Subject] Loans.

2. A conclusion by the Asset Representations Reviewer of a passed Test or a failed Test shall not constitute a determination by the Asset Representations Reviewer of (i) the existence or nonexistence of a Material Defect, or (ii) whether the Trust should enforce any rights it may have against the applicable Mortgage Loan Seller. In addition, the Tests may not be sufficient to determine every instance of noncompliance.

3. The Asset Representations Reviewer, other than forwarding this Asset Review Report Summary to the parties listed above, will not be required to take or participate in any other or further action with respect to the aforementioned Asset Review Report Summary.

4. Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.

¹ This report is an indicative report, and the Asset Representations Reviewer will have the ability to modify or alter the organization and content of this report, subject to compliance with the terms of the Pooling and Servicing Agreement, including without limitation, provisions relating to Privileged Information.

Exhibit PP-1

PARK BRIDGE LENDER SERVICES LLC, as Asset Representations Reviewer
By:
	Name:
	Title:

Exhibit PP-2

Exhibit A

Summary Scorecard
[Template Example Below]

Test failures
Loan #	Loan Name	Mortgage Loan Seller	Representations and Warranty #	Representation and Warranty Name
[Insert Loan #]	[Insert Loan Name]	[Insert Mortgage Loan Seller]	21	Compliance with Usury Laws
			31	Single-Purpose Entity

Exhibit PP-3

EXHIBIT QQ

ASSET REVIEW PROCEDURES

Subject to the Pooling and Servicing Agreement, this Exhibit sets forth the Asset Representations Reviewer’s review procedures for each Delinquent Loan based on the information provided for an Asset Review. Capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement. In the event of any conflict between this Exhibit QQ and the terms of the Pooling and Servicing Agreement, the Pooling and Servicing Agreement shall control and govern the Asset Representations Reviewer’s responsibilities and duties with respect to Asset Reviews.

Call for Review and Collection and Inventory of Review Materials

Step 1 Asset Representations Reviewer (“ARR”) receives the following items before beginning its review:

● CREFC^® Doelinquent Loan Status Report

● Notice of Asset Review Trigger (with attachments)

● Notice of Asset Review Vote Election

● Notice of Affirmative Asset Review Vote

● Asset Review Notice

● List of all Subject Loans

● Review Materials for each Subject Loan via Secure Data Room access, including the Diligence File

● Any Unsolicited Information (if applicable)

Step 2 For each Subject Loan, ARR inventories all Review Materials to which ARR is provided access in the Secure Data Room to determine what, if any, Review Materials for such Subject Loan are missing, using the list of documents provided in the definition of “Mortgage File” of this Agreement, any comparable lists included in the related Mortgage Loan Purchase Agreement, and any closing checklist from the origination of such Subject Loan, to guide its review and determination.

Step 3 If ARR determines that the information made available to it in the Secure Data Room with respect to any Subject Loan is missing any documents required to complete an Asset Review of such Subject Loan, ARR prepares list of such

Exhibit QQ-1

missing documents and, within the time periods specified in Section 12.01 of this Agreement, (i) notifies the Master Servicer (with respect to Non-Specially Serviced Loans) and the Special Servicer (with respect to Specially Serviced Loans) of such missing documents, and requests that the Master Servicer or the Special Servicer, as the case may be, deliver to the ARR such missing document(s) to the extent in its possession and (ii) in the event any missing documents are not provided by the Master Servicer or the Special Servicer, as the case may be, the ARR shall request such documents from the related Mortgage Loan Seller.

Analysis and Testing of Representations and Warranties

Step 4 For each Subject Loan for which ARR has received all Review Materials required to complete an Asset Review of such Subject Loan, ARR tests such Subject Loan for compliance with each representation and warranty made by the related Mortgage Loan Seller with respect to such Subject Loan as follows:

■ ARR reviews each representation and warranty and each item included in the Review Materials applicable or related to such representation or warranty to determine whether there is any evidence that such representation or warranty was not true when made by the related Mortgage Loan Seller.

■ For each representation and warranty, ARR lists

● all items from the Review Materials reviewed or used in its testing of such representation and warranty;

● whether ARR has determined that there is any evidence that such representation or warranty was not true when made by the related Mortgage Loan Seller; and

° if so, stating the aspect of the applicable representation or warranty that does not appear to have been true when made by the related Mortgage Loan Seller and ARR’s basis for its conclusion;

° completing the Asset Review Report by setting forth, for each Subject Loan, the information contemplated herein with respect to each representation and warranty.

ARR will not attempt (and has no obligation) to determine the materiality of any potential breach of a representation or warranty that it discovers evidence of during its review as contemplated herein.

Exhibit QQ-2

EXHIBIT RR

FORM OF CERTIFICATION TO CERTIFICATE ADMINISTRATOR REQUESTING ACCESS TO SECURE DATA ROOM

Computershare Trust Company, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - BANK 2021-BNK37
Email: trustadministrationgroup@wellsfargo.com

Attention: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with the requirements for obtaining access to the Secure Data Room pursuant to the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, with respect to the certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:

1. The undersigned is [an authorized representative of the Asset Representations Reviewer][an authorized representative of the Depositor][a designee of the Depositor].

2. The undersigned acknowledges and agrees that (a) access to the Secure Data Room is being granted to it solely for purposes of the undersigned carrying out its obligations under the Pooling and Servicing Agreement (b) it will not disseminate or otherwise make information contained on the Secure Data Room available to any other person except in accordance with the Pooling and Servicing Agreement or otherwise with the written consent of the Depositor and (c) it will only access information relating to the Mortgage Loans to which the Asset Review relates.

3. The undersigned agrees that each time it accesses the Secure Data Room, the undersigned is deemed to have recertified that the representations above remains true and correct.

Exhibit RR-1

4. [The undersigned is not a Certificateholder, a beneficial owner or a prospective purchaser of any Certificate.]^*

BY ITS CERTIFICATION HEREOF, the undersigned has made the representations above and shall have caused, or shall be deemed to have caused its name to be signed hereto by its duly authorized signatory, as of the date certified.

	[NAME OF PARTY], as [role]
	By:
		Name:
		Title:
Dated: _______

[Wells Fargo Commercial Mortgage Securities, Inc., as Depositor]*
By:
	[Name]
	[Title]

^*       Required to the extent that a party other than the Asset Representations Reviewer is identified by the Depositor as needing access to the Secure Data Room.

Exhibit RR-2

EXHIBIT SS

FORM OF NOTICE OF [ADDITIONAL DELINQUENT LOAN][CESSATION OF DELINQUENT LOAN][CESSATION OF ASSET REVIEW TRIGGER]

[Date] 

Wells Fargo Bank, National Association Commercial Mortgage Servicing Three Wells Fargo MAC D1050-084 401 South Tryon Street, 8th Floor Charlotte, North Carolina 28202 Attention: BANK 2021-BNK37 Asset Manager	Park Bridge Lender Services LLC  600 Third Avenue, 40th Floor New York, New York 10016 Attention: BANK 2021-BNK37 - Surveillance Manager (with a copy sent contemporaneously via email to cmbs.notices@parkbridgefinancial.com)
CWCapital Asset Management LLC 900 19th Street NW, 8th Floor Washington, D.C. 20006 Attention: Brian Hanson (BANK 2021-BNK37) Email: CWCAMContractNotices@cwcapital.com	National Cooperative Bank, N.A. 2011 Crystal Drive, Suite 800 Arlington, Virginia 22202 Attention: Kathleen Luzik, Chief Operating Officer Facsimile number (703) 647-3473 Email: kluzik@ncb.coop

Attention: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with Section 12.01(a) of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), between Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, the Certificate Administrator hereby notifies you that as of [RELATED DISTRIBUTION DATE]:

1. _____ An additional Mortgage Loan has become a Delinquent Loan.

2. _____ A Mortgage Loan has ceased to be a Delinquent Loan.

3. _____ An Asset Review Trigger has ceased to exist.

(check all that apply)

Exhibit SS-1

Capitalized terms used but not defined herein have the respective meanings given to them in the Pooling and Servicing Agreement.

Computershare Trust Company, N.A., as Certificate Administrator for the Holders of the BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37
By:
	[Name]
	[Title]

Exhibit SS-2

EXHIBIT TT

FORM OF INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT FOR NCB CO-OP MORTGAGE LOANS

THIS INTERCREDITOR AGREEMENT AND SUBORDINATION AGREEMENT (this “Agreement”) made as of this __ day of ____, 20__ between [_______], a [___________] having an office at [__________] in its capacity as senior lender (“Lender”), and [_________], a [_________] having an office at [__________] in its capacity as subordinated lender (“Subordinated Lender”).

W I T N E S S E T H:

WHEREAS, Lender is the holder of a certain loan (the “Loan”) to [_________] (“Borrower”) dated the date hereof in the amount of [_________] and 00/100 ($__________) Dollars, which Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded;

WHEREAS, Subordinated Lender is the holder of a certain loan (the “Subordinated Loan”) dated the date hereof to Borrower in the amount of [_________] and 00/100 ($_________) Dollars, which Subordinated Loan is secured by, among other things, a mortgage upon the Project (hereinafter defined), which mortgage is intended to be recorded; and

WHEREAS, Lender and Subordinated Lender desire to enter into this Agreement for the purpose of establishing the priorities of their respective interests in the Project, and for the purpose of setting forth certain other agreements between them with respect to their agreements with Borrower;

NOW, THEREFORE, in consideration of the premises, the payment of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Subordinated Lender agree as follows:

Defined Terms. As used in this Agreement, the following terms shall have the meanings hereinafter set forth, unless the context shall otherwise require:

“Affiliate” – Shall mean, as to any particular Person, any Person directly or indirectly, through one or more intermediaries, controlling, Controlled by or under common control with the Person or Persons in question.

“Control” – Shall mean, (i) the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of such Person (or, with respect to the Transfer prohibition set forth in Section 9(e) hereof, the ownership, directly or indirectly, in the aggregate of more than twenty five percent (25%) of the beneficial ownership interests of such Person) or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. “Controlled by,” “controlling” and “under common control with” shall have the respective correlative meaning thereto.

Exhibit TT-1

“Certificates” – Shall mean any securities (including all classes thereof) representing beneficial ownership interests in the Loan or in a pool of mortgage loans including the Loan issued in connection with a securitization of the Loan.

“Crowdfunded Person” means a Person that is capitalized with debt and/or equity financing and/or raising monetary or other capital contributions from a number of persons or entities through the practice of syndication, advertising or general or broad solicitation, including, without limitation, (i) in reliance upon Regulation Crowdfunding promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended and/or (ii) via primarily internet-mediated registries, platforms, portals, mail-order subscriptions, benefit events and/or other similar methods.

“EB-5 Lender” means any Person that directly or indirectly used funds invested by an EB-5 Person through a program soliciting the issuance of visas for immigrant investors as a source for the making, acquisition, or funding of the Subordinated Loan.

“EB-5 Person” means a Person investing through a program soliciting the issuance of visas for immigrant investors, including through the Immigrant Investor Program established by the Immigration Act of 1990 (8 U.S.C. 1153(b)(5)), as amended from time to time, and the rules and regulations promulgated thereunder.

“Eligibility Requirements” – Shall mean, with respect to any Person, that such Person (i) has total assets (in name or under management) in excess of $200,000,000.00 and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity of $60,000,000.00 and (ii) is regularly engaged in the business of making or owning commercial or multi-family real estate loans or operating commercial or multi-family mortgage properties.

“Event of Default” – Shall mean (i) with respect to the Loan and the Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period, and (ii) with respect to the Subordinated Loan and the Subordinated Loan Documents, any default thereunder which has occurred and is continuing beyond any applicable grace or curative period.

“Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a first lien upon the Project and any other documents evidencing and securing the Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

“Permitted Fund Manager” – Shall mean any Person that on the date of determination is (i) a nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a Proceeding.

“Person” – Shall mean any individual, sole proprietorship, corporation, general partnership, limited partnership, limited liability company or partnership, joint venture, association, joint stock company, bank, trust, estate unincorporated organization, any federal,

Exhibit TT-2

state, county or municipal government (or any agency or political subdivision thereof) endowment fund or any other form of entity.

“Proceeding” – Shall mean the commencement, whether voluntary or involuntary, of any case, proceeding or other action against Borrower under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors.

“Prohibited Entity” means any Person that (i) is a statutory trust or similar Person, (ii) owns a direct or indirect interest in the Subordinated Loan, Borrower or the Project through a tenancy-in-common or other similar form of ownership interest, (iii) is an EB-5 Lender and/or (iv) is itself a Crowdfunded Person, is under the direct or managerial control of any Crowdfunded Person and/or is more than 49% owned, directly or indirectly, by one or more Crowdfunded Persons (provided, that, notwithstanding the foregoing, any Person otherwise constituting a Prohibited Entity shall not be deemed a Prohibited Entity hereunder to the extent a Rating Agency Confirmation has been obtained with respect to such Person).

“Prohibited Person” means any Person:

(i)           listed in the annex to, or who is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”);

(ii)          that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii)         with whom a Person is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order;

(iv)         who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(v)          that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or at any replacement website or other replacement official publication of such list; or

(vi)       who is an Affiliate of a Person listed in clauses (i) through (v) above.

“Project” – Shall mean that certain real property owned by Borrower described on Exhibit A attached hereto and the improvements located or to be located thereon.

“Protective Advance” – Shall mean all sums advanced for the purpose of payment of real estate taxes (including special payments in lieu of real estate taxes), maintenance costs, insurance premiums or other items (including capital items) reasonably necessary to protect the Project or any portion thereof (including, but limited to, all reasonable attorneys’ fees, costs relating to the entry upon the Project or any portion thereof to make repairs and the payment,

Exhibit TT-3

purchase, contest or compromise of any encumbrance, charge or lien which in the judgment of Lender appears to be prior or superior to the Loan Documents).

“Qualified Transferee” – Shall mean (i) Subordinated Lender or an Affiliate of Subordinated Lender or (ii) one or more of the following:

(A)       a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, provided that any such Person referred to in this clause (A) satisfies the Eligibility Requirements;

(B)       an investment company, money management firm or “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an institutional “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended, provided that any such Person referred to in this clause (B) satisfies the Eligibility Requirements;

(C)       an institution substantially similar to any of the foregoing entities described in clauses (ii)(A) or (ii)(B) that satisfies the Eligibility Requirements;

(D)       any entity controlled by any of the entities described in clause (i) or clauses (ii)(A) or (ii)(C) above;

(E)       a Qualified Trustee in connection with a securitization of, the creation of collateralized debt obligations (“CDO”) secured by or financing through an “owner trust” of, the Subordinated Loan (collectively, “Securitization Vehicles”) so long as (A) the special servicer or manager of such Securitization Vehicle has the Required Special Servicer Rating and (B) the entire “controlling class” of such Securitization Vehicle, other than with respect to a CDO Securitization Vehicle, is held by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition; provided that the operative documents of the related Securitization Vehicle require that (1) in the case of a CDO Securitization Vehicle, the “equity interest” in such Securitization Vehicle is owned by one or more entities that are Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any of the relevant trustee, special servicer, or manager fails to meet the requirements of this clause (E), such Person must be replaced by a Person meeting the requirements of this clause (E) within thirty (30) days; or

(F)       an investment fund, limited liability company, limited partnership or general partnership where a Permitted Fund Manager or an entity that is otherwise a Qualified Transferee under clauses (ii)(A), (B), (C) or (D) of this definition acts as the general partner, managing member or fund manager and at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Transferees under clauses (ii)(A), (B), (C) or (D) of this definition.

Exhibit TT-4

Notwithstanding the foregoing, in no event shall a Prohibited Person or a Prohibited Entity be a Qualified Transferee.

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

“Rating Agencies” – Shall mean, prior to a securitization, each of Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc., and Fitch Ratings, Inc., or any other nationally-recognized statistical rating agency which has been designated by Lender and, after a securitization, shall mean any of the foregoing that have rated any of the Certificates.

“Rating Agency Confirmation” – Shall mean each of the Rating Agencies shall have confirmed in writing that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the Certificates then outstanding. In the event that no Certificates are outstanding or the Loan is not part of a securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of the Lender, which consent shall not be unreasonably withheld or delayed.

“Required Special Servicer Rating” – Shall mean (i) a rating of “CSS1” in the case of Fitch Ratings, (ii) on the S&P list of approved special servicers in the case of S&P and (iii) in the case of Moody’s, such special servicer is acting as special servicer in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage securities.

“Subordinated Loan Documents” – Shall mean all loan documents, notes, security agreements, mortgages, including, without limitation, those certain documents made by Borrower creating a second lien upon the Project and any other documents evidencing and securing the Subordinated Loan, in effect on the date hereof, as the same may be modified, amended, restated, supplemented, replaced or extended, from time to time, in accordance with the terms hereof.

Exhibit TT-5

“Transfer” – Shall mean any assignment, pledge, conveyance, sale, transfer, mortgage, encumbrance, grant of a security interest, issuance of a participation interest, or other disposition, either directly or indirectly, by operation of law or otherwise.

1.         Approval of Loans and Loan Documents; Characterization of Subordinated Loan.

(a)       Subordinated Lender hereby acknowledges that (i) it has received and reviewed and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Loan Documents, (ii) the continued performance of the Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Subordinated Loan Documents, and (iii) any application or use of the proceeds of the Loan for purposes other than those provided in the Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Loan Documents.

(b)       Lender hereby acknowledges that (i) it has received and reviewed, and, subject to the terms and conditions of this Agreement, hereby consents to and approves of the making of the Subordinated Loan and, subject to the terms and provisions of this Agreement, all of the terms and provisions of the Subordinated Loan Documents, (ii) the execution, delivery and performance of the Subordinated Loan Documents will not constitute a default or an event which, with the giving of notice or the lapse of time, or both, would constitute a default under the Loan Documents, (iii) any application or use of the proceeds of the Subordinated Loan for purposes other than those provided in the Subordinated Loan Documents shall not affect, impair or defeat the terms and provisions of this Agreement or the Subordinated Loan Documents.

2.         Representations and Warranties.

(a)       Subordinated Lender hereby represents and warrants as follows:

(i)        Subordinated Lender has heretofore provided Lender with true, complete and correct copies of the Subordinated Loan Documents. To Subordinated Lender’s knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Subordinated Loan Documents.

(ii)       Subordinated Lender is the legal and beneficial owner of the entire Subordinated Loan free and clear of any lien, security interest, option or other charge or encumbrance.

(iii)       There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.

(iv)      Subordinated Lender has, independently and without reliance upon Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.

Exhibit TT-6

(v)       Subordinated Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(vi)      All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Subordinated Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vii)     Subordinated Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Subordinated Lender enforceable against Subordinated Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws, and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(viii)    To Subordinated Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Subordinated Lender of this Agreement or consummation by Subordinated Lender of the transactions contemplated by this Agreement, other than those that have been obtained.

(ix)       None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Subordinated Lender, (b) to Subordinated Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Subordinated Lender is a party or to which any of its properties are subject, (c) to Subordinated Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Subordinated Lender pursuant to the terms of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument, (d) violate any judgment, order, injunction, decree, or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Subordinated Lender has knowledge against, or binding upon, Subordinated Lender or upon any of the securities, properties, assets, or business of Subordinated Lender or (e) to Subordinated Lender’s knowledge, constitute a violation by Subordinated Lender of any statute, law or regulation that is applicable to Subordinated Lender.

(x)       The Subordinated Loan is not cross defaulted with any loan except the Loan.

Exhibit TT-7

(b)       Lender hereby represents and warrants as follows:

(i)        Lender has heretofore provided Subordinated Lender with true, complete and correct copies of the Loan Documents. To Lender’s actual knowledge, there currently exists no default or event which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Loan Documents.

(ii)       Lender is the legal and beneficial owner of the Loan free and clear of any lien, security interest, option or other charge or encumbrance.

(iii)      There are no conditions precedent to the effectiveness of this Agreement against Lender that have not been satisfied or waived.

(iv)       Lender is duly organized and validly exists under the laws of the jurisdiction under which it was organized with full power to execute, deliver, and perform this Agreement and consummate the transactions contemplated hereby.

(v)       All actions necessary to authorize the execution, delivery, and performance of this Agreement on behalf of Lender have been duly taken, and all such actions continue in full force and effect as of the date hereof.

(vi)       Lender has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid, and binding agreement of Lender enforceable against Lender in accordance with its terms subject to (a) applicable bankruptcy, reorganization, insolvency and moratorium laws and (b) general principles of equity which may apply regardless of whether a proceeding is brought in law or in equity.

(vii)       To Lender’s knowledge, no consent of any other Person and no consent, license, approval, or authorization of, or exemption by, or registration or declaration or filing with, any governmental authority, bureau or agency is required in connection with the execution, delivery or performance by Lender of this Agreement or consummation by Lender of the transactions contemplated by this Agreement other than those that have been obtained.

(viii)       None of the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated by this Agreement will (a) violate or conflict with any provision of the organizational or governing documents of Lender, (b) to Lender’s knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any other Person the right to terminate, or constitute (or with the giving of notice or lapse of time, or both, would constitute) a default under the terms of any material contract, mortgage, lease, bond, indenture, agreement, or other instrument to which Lender is a party or to which any of its properties are subject, (c) to Lender’s knowledge, result in the creation of any lien, charge, encumbrance, mortgage, lease, claim, security interest, or other right or interest upon the properties or assets of Lender pursuant to the terms of any such material contract, mortgage, lease, bond, indenture, agreement, franchise or other instrument, (d) violate any judgment, order, injunction, decree or award of any court, arbitrator, administrative agency or governmental or regulatory body of which Lender has knowledge against, or binding upon, Lender or

Exhibit TT-8

upon any of the securities, properties, assets, or business of Lender or (e) to Lender’s knowledge, constitute a violation by Lender of any statute, law or regulation that is applicable to Lender.

(ix)       The Loan is not cross defaulted with any other loan, except for the Subordinated Loan.

3.         Subordination and Priority. Subordinated Lender hereby subordinates and makes junior the Subordinated Loan, the Subordinated Loan Documents (and any amendment, modification or extension thereof, and any future advance or increase respecting the Subordinated Loan, in each instance, whether or not made in violation of this Agreement), and the lien and security interests created thereby and all of the foregoing (collectively, the “Subordinated Interests”) shall at all times be junior, subject and subordinate to the lien and security interest created by the Loan Documents and all of the terms, covenants, conditions, rights and remedies contained in the Loan Documents, and no amendments or modifications of the Loan Documents or waivers of any provisions thereof shall affect the subordination of the Subordinated Interests as set forth in this Section 3, it being understood and agreed that the Loan Documents and the liens and security interests created thereby shall be and remain a prior lien against the Project. In addition, all of Subordinated Lender’s rights to payment of the Subordinated Loan and the obligations evidenced by the Subordinated Loan Documents are hereby subordinated to all of Lender’s rights to payment by Borrower of the Loan and the obligations secured by the Loan Documents, and Subordinated Lender shall not accept or receive payments (including, without limitation, whether in cash or other property and whether received directly, indirectly or by set-off, counterclaim or otherwise) from Borrower and/or from the Project upon the occurrence and during the continuance of an Event of Default (as defined in the Loan Documents) under the Loan. If a Proceeding shall have occurred, Lender shall be entitled to receive payment and performance in full of all amounts due or to become due to Lender before Subordinated Lender is entitled to receive any payment on account of the Subordinated Loan. All payments or distributions upon or with respect to the Subordinated Loan which are received by Subordinated Lender contrary to the provisions of this Agreement shall be received and held in trust by the Subordinated Lender for the benefit of Lender and shall be paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or performance of the Loan in accordance with the terms of the Loan Documents. Nothing contained herein shall prohibit the Subordinated Lender from making protective advances (and adding the amount thereof to the principal balance of the Subordinated Loan) notwithstanding the existence of a default under the Loan at such time.

4.         Modifications, Amendments, Etc.

(a)       Lender shall have the right without the consent of Subordinated Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Senior Loan Modification”) of the Loan or the Loan Documents provided that no such Senior Loan Modification shall (i) increase the interest rate or principal amount of the Loan, (ii) increase in any other material respect any monetary obligations of Borrower under the Loan Documents, (iii) extend or shorten the scheduled maturity date of the Loan (except that Lender may permit Borrower to exercise

Exhibit TT-9

any extension options in accordance with the terms and provisions of the Loan Documents), (iv) convert or exchange the Loan into or for any other indebtedness or subordinate any of the Loan to any indebtedness of Borrower, (v) amend or modify the provisions limiting transfers of interests in the Borrower or the Project, (vi) cross default the Loan with any other indebtedness, (vii) obtain any contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Project, (or other similar equity participation), or (viii) extend the period during which voluntary prepayments are prohibited or during which prepayments require the payment of a prepayment fee or premium or yield maintenance charge or increase the amount of any such prepayment fee, premium or yield maintenance charge; provided, however, in no event shall Lender be obligated to obtain Subordinated Lender’s consent to a Senior Loan Modification in the case of a work-out or other surrender, compromise, release, renewal, or indulgence relating to the Loan during the existence of an Event of Default (as defined in the Loan Documents) under the Loan, except that under no conditions shall clause (i) (with respect to increase principal amount only), or clause (viii) be modified without the written consent of Subordinated Lender. In addition and notwithstanding the foregoing provisions of this Section 2, any amounts funded by the Lender under the Loan Documents as a result of (A) the making of any protective advances or other advances by the Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 2.

(b)       Subordinated Lender shall have the right without the consent of Lender in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Subordinated Loan Modification”) of the Subordinated Loan or the Subordinated Loan Documents provided that no such Subordinated Loan Modification shall (i) increase the interest rate or principal amount of the Subordinated Loan, (ii) increase in any other material respect any monetary obligations of under the Subordinated Loan Documents, (iii) extend or shorten the scheduled maturity date of the Subordinated Loan (except that Subordinated Lender may permit Borrower to exercise any extension options in accordance with the terms and provisions of the Subordinated Loan Documents), (iv) convert or exchange the Subordinated Loan into or for any other indebtedness or subordinate the Subordinated Loan to any indebtedness of Borrower, (v) provide for any additional contingent interest, additional interest or so called “kicker” measured on the basis of the cash flow or appreciation of the Project (or other similar equity participation), (vi) amend or modify the provisions of the Subordinated Loan Documents limiting transfers of direct or indirect interest in Borrower, (vii) modify or amend the terms and provision of any Subordinated Loan Document with respect to the manner, timing or method of the application of payments under the Subordinated Loan Documents, (vi) cross default the Subordinated Loan with any other indebtedness, or (vii) amend or modify the provisions limiting transfers of interests in the Borrower or the Project. Notwithstanding anything to the contrary contained herein, if an Event of Default exists under the Subordinated Loan Documents, Subordinated Lender shall be permitted to modify or amend the Subordinated Loan Documents in connection with a work out or other surrender, compromise, release, renewal or modification of the Subordinated Loan except that under no conditions shall clause (i), with respect to increases in principal amounts only, clause (ii), clause (iii) (with respect to shortening the maturity only), clause (iv) or clause (v) be modified without the written consent of the Lender. In addition and notwithstanding the foregoing provisions of this Section 6(b), any amounts funded by the Subordinated Lender under the Subordinated Loan Documents as a result of (A) the making of

Exhibit TT-10

any Protective Advances or other advances by the Subordinated Lender, or (B) interest accruals or accretions and any compounding thereof (including default interest), shall not be deemed to contravene this Section 6(b).

(c)       Lender shall deliver to Subordinated Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Lender) within a reasonable time after any of such applicable instruments have been executed by Lender.

(d)       Subordinated Lender shall deliver to Lender copies of any and all modifications, amendments, extensions, consolidations, spreaders, restatements, alterations, changes or revisions to any one or more of the Subordinated Loan Documents (including, without limitation, any side letters, waivers or consents entered into, executed or delivered by Subordinated Lender) within a reasonable time after any of such applicable instruments have been executed by Subordinated Lender.

5.         Default Notice.

(a)        Subordinated Lender shall give Lender notice of any default under the Subordinated Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Subordinated Loan on account of such default. Lender may, but shall not be obligated to, cure any such default, in which event Subordinated Lender shall accept such cure by Lender as and for the cure by Borrower.

(b)       Lender shall give Subordinated Lender notice of any default under the Loan Documents promptly upon the giving of such notice of default to Borrower and in all instances prior to accelerating the Loan on account of such default. Subordinated Lender may, but shall not be obligated to, cure any such default within the time period afforded to the Borrower pursuant to the Loan Documents, in which event Lender shall accept such cure by Subordinated Lender as and for the cure by Borrower.

6.        Casualty and Condemnation. In the event of a casualty to the buildings or improvements constructed on any portion of the Project or a condemnation or taking under a power of eminent domain of all or any portion of the Project, Lender shall have a first and prior interest in and to any payments, awards, proceeds, distributions, or consideration arising from any such event (the “Award”). Subordinated Lender acknowledges and agrees that so long as the Loan is outstanding, it has no lien on or security interest in any Award, nor any rights with respect to any Award except as expressly provided in this Agreement, and Subordinated Lender assigns its rights to any Award to Lender up to an amount equal to the then outstanding amount of the Loan. Subordinated Lender agrees to promptly, upon request by Lender, execute and deliver to Lender and/or to any other party as so directed by Lender, a written confirmation of the terms set forth in the immediately preceding sentence and take sure other actions reasonably requested by Lender to further evidence the foregoing agreement (although failure of Subordinated Lender to do so shall not affect the foregoing agreement). If the amount of the Award is in excess of all amounts owed to Lender under the Loan Documents, however, and either the Loan has been paid in full or Borrower is entitled to a remittance of same under the

Exhibit TT-11

Loan Documents other than to restore the Project, such excess Award or portion to be so remitted to Borrower shall, to the extent permitted in the Loan Documents and required by the Subordinated Loan Documents, be paid to or at the direction of Subordinated Lender, unless other Persons have claimed the right to such awards or proceeds, in which case Lender shall only be required to provide notice to Subordinated Lender of such excess Award and of any other claims thereto. In the event of any competing claims for any such excess Award, Lender shall continue to hold such excess Award until Lender receives an agreement signed by all Persons making a claim to the excess Award or a final order of a court of competent jurisdiction directing Lender as to how and to which Person(s) the excess Award is to be distributed. Notwithstanding the foregoing, in the event of a casualty or condemnation, Lender shall release the Award from any such event to the Borrower if and to the extent required by the terms and conditions of the Loan Documents in order to repair and restore the Project in accordance with the terms and provisions of the Loan Documents. Any portion of the Award made available to the Borrower for the repair or restoration of the Project shall not be subject to attachment by Subordinated Lender.

7.       Foreclosure of the Subordinated Mortgage: Subordinated Lender expressly agrees that, for so long as a Loan shall remain outstanding, (A) due notice of the commencement of any foreclosure of the Subordinated Loan Documents shall be given to Lender, and true copies of all papers served or entered in such action will be delivered to Lender, (B) no portion of the rents, issues and profits of the Project shall be collected in connection with the foreclosure of the Subordinated Loan Documents except through a receiver appointed by the court in which such foreclosure action is brought, after due notice for the appointment of such receiver shall have been given to Lender, (C) the rents, issues and profits collected by any such receiver shall be applied first to the payment of taxes, maintenance and operating charges and disbursements incurred in connection with the operation and maintenance of the Project and next to the payment of principal and interest (including, without limitation, default interest and late payment charges) due under the Loan Documents, and (D) if during the pendency of any such foreclosure action an action shall be brought for the foreclosure of the Loan Documents and an application shall be made for an extension of the receivership for the benefit of Lender, all such rents, issues and profits held by such receiver as of the date of such application shall be applied by the receiver solely for the benefit of Lender, and the Subordinated Lender shall not be entitled to any portion thereof until Lender has received all amounts then due to it. Without limiting the generality of the foregoing, Subordinated Lender consents to, and shall not object to, any action or proceeding at any time initiated by Lender for the appointment of a receiver and Subordinated Lender further agrees that it shall not institute any action or proceeding for the appointment of a receiver at any time during which a receiver shall have already been appointed for the benefit of Lender, and if Subordinated Lender shall have appointed or caused the appointment of a receiver prior to Lender’s initiation of proceedings to do so, Subordinated Lender agrees to take all action reasonably necessary to terminate such appointment in order to facilitate Lender’s appointment of same.

8.       Rights of Subrogation. No payment or distribution to Lender pursuant to the provisions of this Agreement and no Protective Advance by Subordinated Lender shall entitle Subordinated Lender to exercise any right of subrogation in respect thereof prior to the payment in full of the Loan, and Subordinated Lender agrees that, except with respect to the enforcement of its remedies under the Subordinated Loan Documents permitted hereunder, prior to the

Exhibit TT-12

satisfaction of all obligations under the Loan it shall not acquire, by subrogation or otherwise, any lien, estate, right or other interest in any portion of the Project or any other collateral now securing the Loan or the proceeds therefrom that is or may be prior to, or of equal priority to, any of the Loan Documents or the liens, rights, estates and interests created thereby.

9.       Transfer of Subordinated Loan or Loan. Subordinated Lender shall not Transfer more than 49% of its beneficial interest in the Subordinated Loan unless either (i) a Rating Agency Confirmation has been given with respect to such Transfer, in which case the related transferee shall thereafter be deemed to be a “Qualified Transferee” for all purposes of this Agreement, or (ii) such Transfer is to a Qualified Transferee. Any such transferee must assume in writing the obligations of Subordinated Lender hereunder and agree to be bound by the terms and provisions hereof. Such proposed transferee shall also remake each of the representations and warranties contained herein for the benefit of the Lender.

At least five (5) days prior to a transfer to a Qualified Transferee, the Subordinated Lender shall provide to Lender a certification that such transfer will be made in accordance with this Section 9, such certification to include the name and contact information of the Qualified Transferee, and a statement as to how it meets the definition of Qualified Transferee.

Subordinated Lender acknowledges that any Rating Agency Confirmation may be granted or denied by the Rating Agencies in their sole and absolute discretion and that such Rating Agencies may charge customary fees in connection with any such action, which fee, together with any and all other reasonable costs and expenses of Rating Agencies or Lender incurred in connection with the processing of same, including, without limitation, reasonable attorneys’ fees and costs, shall be paid by Subordinated Lender.

Lender may, from time to time, in its sole discretion Transfer all or any of the Loan or any interest therein, and notwithstanding any such Transfer or subsequent Transfer, the Loan and the Loan Documents shall be and remain a senior obligation in the respects set forth in this Agreement to the Subordinated Loan and the Subordinated Loan Documents in accordance with the terms and provisions of this Agreement.

Notwithstanding anything contained in this Agreement, Subordinated Lender agrees that it shall in no event Transfer all or any part of the Subordinated Loan to Borrower or to any Person which is an Affiliate of Borrower and any such Transfer shall be void ab initio.

10.       Notices. All notices required to be given hereunder shall be sent by first class, certified or registered mail, postage prepaid, return receipt requested, or delivered by hand, to either party at such party’s address first set forth above. Notices shall be deemed to have been given when received. Either party may change its address for notices hereunder by written notice to the other party.

Exhibit TT-13

11.       Obligations Hereunder Not Affected. All rights, interests, agreements and obligations of Lender and Subordinated Lender under this Agreement shall remain in full force and effect irrespective of:

(i)        any lack of validity or enforceability of the Loan Documents or the Subordinated Loan Documents or any other agreement or instrument relating thereto;

(ii)       any taking, exchange, release or non-perfection of any other collateral, or any taking, release or amendment or waiver of or consent to or departure from any guaranty, for all or any portion of the Loan or the Subordinated Loan;

(iii)      any manner of application of collateral, or proceeds thereof, to all or any portion of the Loan or the Subordinated Loan, or any manner of sale or other disposition of any collateral for all or any portion of the Loan or the Subordinated Loan or any other assets of Borrower or any other Affiliates of Borrower;

(iv)      any change, restructuring or termination of the corporate structure or existence of Borrower or any other Affiliates of Borrower; or

(v)       any other circumstance which might otherwise constitute a defense available to, or a discharge of, Borrower or a subordinated creditor or a Lender subject to the terms hereof.

12.       Continued Effectiveness; Reinstatement. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Loan is rescinded or must otherwise be returned by Lender or Subordinated Lender upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though such payment had not been made.

13.       Estoppel.

(a).      Subordinated Lender shall, within ten (10) days following a request from Lender, provide Lender with a written statement setting forth the then current outstanding principal balance of the Subordinated Loan, the aggregate accrued and unpaid interest under the Subordinated Loan, and stating whether to Subordinated Lender’s knowledge any default or Event of Default exists under the Subordinated Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Lender and by any prospective purchaser of all or any interest in the Loan.

(b).     Lender shall, within ten (10) days following a request from Subordinated Lender, provide Subordinated Lender with a written statement setting forth the then current outstanding principal balance of the Loan, the aggregate accrued and unpaid interest under the Loan, and stating whether to Lender’s knowledge any default or Event of Default exists under the Loan, it being intended that any such estoppel delivered pursuant to this Section 13 may be relied upon by Subordinated Lender and by any prospective purchaser of all or any interest in the Subordinated Loan.

Exhibit TT-14

14.       No Third Party Beneficiaries; No Modification. The parties hereto do not intend the benefits of this Agreement to inure to Borrower, or any other Person other than the respective successors and permitted assignees of the parties hereto. This Agreement may not be changed or terminated orally, but only by an agreement in writing signed by the party against whom enforcement of any change is sought.

15.       Counterpart Originals. This Agreement may be executed in counterpart originals, each of which shall constitute an original, and all of which together shall constitute one and the same agreement.

16.       No Waiver; Remedies. No failure on the part of Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

17.       No Joint Venture. Nothing provided herein is intended to create a joint venture, partnership, tenancy in common or joint tenancy relationship between or among any of the parties hereto.

18.       Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference, and are not and shall not be deemed to be a part hereof.

19.       Conflicts. In the event of any conflict, ambiguity or inconsistency between the terms and conditions of this Agreement and the terms and conditions of any of the Loan Documents or the Subordinated Loan Documents, the terms and conditions of this Agreement shall control.

20.       No Release. Nothing herein contained shall operate to release Borrower from (a) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Loan Documents or (b) any liability of Borrower under the Loan Documents or to release Borrower from (x) its obligation to keep and perform all of the terms, conditions, obligations, covenants and agreements contained in the Subordinated Loan Documents or (y) any liability of Borrower under the Subordinated Loan Documents.

21.       Severability. In the event that any provision of this Agreement or the application hereof to any party hereto shall, to any extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute, regulation or rule of law, and the remainder of this Agreement and the application of any such invalid or unenforceable provisions to parties, jurisdictions or circumstances other than to whom or to which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Agreement.

22.       Expenses.

(a)       Subordinated Lender agrees upon demand to pay to Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and

Exhibit TT-15

expenses of its counsel and of any experts or agents, which Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Lender against Subordinated Lender hereunder to the extent that Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Subordinated Lender to perform or observe any of the provisions hereof.

(b)       Lender agrees upon demand to pay to Subordinated Lender the amount of any and all reasonable expenses, including, without limitation, the reasonable fees and expenses of its counsel and of any experts or agents, which Subordinated Lender may incur in connection with the (i) exercise or enforcement of any of the rights of Subordinated Lender against Lender hereunder to the extent that Subordinated Lender is the prevailing party in any dispute with respect thereto or (ii) failure by Lender to perform or observe any of the provisions hereof.

23.       Injunction. Lender and Subordinated Lender each acknowledge (and waive any defense based on a claim) that monetary damages are not an adequate remedy to redress a breach by the other hereunder and that a breach by either Lender or Subordinated Lender hereunder would cause irreparable harm to the other. Accordingly, Lender and Subordinated Lender agree that upon a breach of this Agreement by the other, the remedies of injunction, declaratory judgment and specific performance shall be available to such non breaching party.

24.       Each of Lender and Subordinated Lender acknowledges that the Loan, the Loan Documents, the Subordinated Loan and the Subordinated Loan Documents are distinct, separate transactions and loans, separate and apart from each other. Each of Lender and Subordinated Lender agrees that the other shall be treated as a separate lender with a distinct and separate loan.

25.       Waiver of Jury Trial. LENDER AND SUBORDINATED LENDER EACH EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY AND EVERY RIGHT IT MAY HAVE TO A TRIAL BY JURY.

26.       Successors and Assigns. This Agreement shall be binding upon and benefit both Lender and Subordinated Lender and their respective permitted successors and assigns. Lender shall have the right to record this Agreement.

27.       Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the State of New York.

28.       Amendments. No provision of this Agreement shall be waived, amended or supplemented except by written agreement of the party charges with such waiver, amendment or supplement.

29.       Continuing Agreement. This Agreement is a continuing agreement and shall remain in full force and effect until the earlier of (a) payment in full of the Loan, (b) transfer of the Project by foreclosure of the Loan Documents or the exercise of the power of sale

Exhibit TT-16

contained therein or by deed-in-lieu of foreclosure, (c) transfer of the Project by foreclosure of the Subordinated Loan Documents or the exercise of the power of sale contained therein or by deed-in-lieu of foreclosure, or (d) payment in full of the Subordinated Loan; provided, however, any rights or remedies of either party hereto arising out of any breach of any provision herein occurring prior to such date of termination shall survive such termination.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

LENDER:

[__________]

By:

SUBORDINATED LENDER:

[__________]

By:

Exhibit TT-17

STATE OF NEW YORK	)
	) ss.:
COUNTY OF NEW YORK	)

On the __ day of ________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual
taking acknowledgment

STATE OF NEW YORK	)
	) ss.:
COUNTY OF NEW YORK	)

On the ___ day of _________ in the year 20__ before me, the undersigned, personally appeared _________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

Signature and Office of individual
taking acknowledgment

Exhibit TT-18

EXHIBIT UU

FORM OF CERTIFICATE ADMINISTRATOR RECEIPT IN RESPECT OF THE RR Interest

[Date]

Wells Fargo Commercial Mortgage Securities, Inc. c/o Wells Fargo Securities, LLC 30 Hudson Yards, 15th Floor New York, New York 10001 Attention: A.J. Sfarra CRRCompliance@wellsfargo.com	Bank of America, National Association One Bryant Park New York, New York 10036 [OR SUBSEQUENT TRANSFEREE]
Wells Fargo Bank, National Association  as Retaining Sponsor  301 South College St.  Charlotte, North Carolina 28288	Morgan Stanley Bank, N.A. 1585 Broadway New York, New York 10036 [OR SUBSEQUENT TRANSFEREE]

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with Section [5.02(e)][5.03(i)] of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Agreement”), the Certificate Administrator, as custodian, hereby acknowledges receipt of $[_] of the RR Interest in the form of Definitive Certificates (CUSIP No. [_]) as defined in the Agreement, for the benefit of [Wells Fargo Bank, National Association, Bank of America, National Association and Morgan Stanley Bank, N.A.][Subsequent Transferee]. A copy of the RR Interest is attached as Exhibit A. Payments on the RR Interest will be made to the registered holder thereto in accordance with the Agreement.

Capitalized terms used but not defined herein shall the respective meanings set forth in the Agreement.

COMPUTERSHARE TRUST COMPANY, N.A., not in its individual capacity but solely as Certificate Administrator
By:
	Name:
	Title:

Exhibit UU-1

Exhibit A

Copy of RR Interest

Exhibit UU-2

EXHIBIT VV

FORM OF EXCHANGE LETTER

[Certificateholder’s letterhead]

[Date]

Computershare Trust Company, N.A.,
as Certificate Administrator
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention:      Corporate Trust Services (CMBS) 

BANK 2021-BNK37
trustadministrationgroup@wellsfargo.com
cts.cmbs.bond.admin@wellsfargo.com

Re: BANK 2021-BNK37, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK37

In accordance with Section [5.11(d)] of the Pooling and Servicing Agreement, dated as of November 1, 2021 (the “Pooling and Servicing Agreement”), Wells Fargo Commercial Mortgage Securities, Inc., as Depositor, Wells Fargo Bank, National Association, as General Master Servicer, CWCapital Asset Management LLC, as General Special Servicer, National Cooperative Bank, N.A., as NCB Master Servicer and as NCB Special Servicer, Computershare Trust Company, N.A., as Certificate Administrator, Wilmington Trust, National Association, as Trustee, and Park Bridge Lender Services LLC, as Operating Advisor and as Asset Representations Reviewer, we hereby (i) certify that as of the above date, the undersigned is the beneficial owner of the Exchangeable Certificate set forth below under “Exchangeable Certificates to be Surrendered”, is duly authorized to deliver this notice to the Certificate Administrator and that such power has not been granted or assigned to any other Person and the Certificate Administrator may conclusively rely upon this notice and (ii) give notice of our intent to present and surrender the Exchangeable Certificates set forth below under “Exchangeable Certificates to be Surrendered” and all of our right, title and interest in and to such Exchangeable Certificates, including all payments of interest thereon received after [_____________], in exchange for the corresponding Exchangeable Certificates set forth below under “Exchangeable Certificates to be Received”. We propose an Exchange Date of [______].

We agree that upon such exchange, our interests in the portion(s) of the Exchangeable Certificates surrendered in exchange shall be reduced and our interest in the portion(s) of the Exchangeable Certificates received in such exchange shall be increased.

Exhibit VV-1

	Exchangeable Certificates to be Surrendered	Exchangeable Certificates to be Received
Class(es)	[_]	[_]
CUSIP	[_]	[_]
Original Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]
Outstanding Certificate Balance(s)/Notional Amount(s)	$[_]	$[_]

Exhibit VV-2

Our Depository participant number is [________].

Sincerely,

By:

Name:

Title:

[Medallion Stamp Guarantee]

Exhibit VV-3

SCHEDULE 1

MORTGAGE LOANS WITH ADDITIONAL DEBT

1. One North Wacker

2. 1201 Lake Robbins

3. One SoHo Square

4. Park Avenue Plaza

5. Raymour & Flanigan Campus

6. ExchangeRight 49

7. Arizona Mills

8. Hawthorne Owners Corp.

9. 69 West 9 Owners Corp.

10. 950 Fifth Avenue Corporation

11. Park Hill Owners, Inc.

12. 760 West End Avenue Owners, Inc.

13. Main Duane Owners Corp.

14. 3701 Tenants Corp.

15. Dove Court Owners, Inc.

16. Cambridge 41-42 Owners Corp.

17. 3000 Valentine Avenue Owners, Inc.

18. 520 W. 50th St., Inc.

19. 43-10 44th Owners Corp.

20. Bay Street Landing Owners Corp.

21. 243 Riverside Drive Corporation

22. 9944 Forest Corp.

23. 120-10-12 85th Ave. Owners Corp.

24. 70-80 Gibson Boulevard Owners, Inc.

25. Gramatan Owners Inc.

26. Concordia Apartments, Ltd.

27. 242 West 104 Owners, Inc.

28. 249 Eldridge St. Owners Corp.

29. 140 West 74 Street Corporation

Schedule 1-1

SCHEDULE 2

CLASS A-SB PLANNED PRINCIPAL
BALANCE SCHEDULE

Distribution Date	Class A-SB Planned Principal Balance ($)
December 2021	24,589,000.00
January 2022	24,589,000.00
February 2022	24,589,000.00
March 2022	24,589,000.00
April 2022	24,589,000.00
May 2022	24,589,000.00
June 2022	24,589,000.00
July 2022	24,589,000.00
August 2022	24,589,000.00
September 2022	24,589,000.00
October 2022	24,589,000.00
November 2022	24,589,000.00
December 2022	24,589,000.00
January 2023	24,589,000.00
February 2023	24,589,000.00
March 2023	24,589,000.00
April 2023	24,589,000.00
May 2023	24,589,000.00
June 2023	24,589,000.00
July 2023	24,589,000.00
August 2023	24,589,000.00
September 2023	24,589,000.00
October 2023	24,589,000.00
November 2023	24,589,000.00
December 2023	24,589,000.00
January 2024	24,589,000.00
February 2024	24,589,000.00
March 2024	24,589,000.00
April 2024	24,589,000.00
May 2024	24,589,000.00
June 2024	24,589,000.00
July 2024	24,589,000.00
August 2024	24,589,000.00
September 2024	24,589,000.00
October 2024	24,589,000.00
November 2024	24,589,000.00
December 2024	24,589,000.00
January 2025	24,589,000.00
February 2025	24,589,000.00
March 2025	24,589,000.00
April 2025	24,589,000.00
May 2025	24,589,000.00
June 2025	24,589,000.00
July 2025	24,589,000.00
August 2025	24,589,000.00
September 2025	24,589,000.00

Distribution Date	Class A-SB Planned Principal Balance ($)
October 2025	24,589,000.00
November 2025	24,589,000.00
December 2025	24,589,000.00
January 2026	24,589,000.00
February 2026	24,589,000.00
March 2026	24,589,000.00
April 2026	24,589,000.00
May 2026	24,589,000.00
June 2026	24,589,000.00
July 2026	24,589,000.00
August 2026	24,589,000.00
September 2026	24,589,000.00
October 2026	24,589,000.00
November 2026	24,588,309.49
December 2026	24,162,026.30
January 2027	23,755,414.20
February 2027	23,347,630.51
March 2027	22,876,316.42
April 2027	22,465,996.00
May 2027	22,033,790.07
June 2027	21,621,040.45
July 2027	21,186,476.79
August 2027	20,771,283.94
September 2027	20,354,894.37
October 2027	19,916,797.87
November 2027	19,497,944.06
December 2027	19,057,455.83
January 2028	18,636,123.56
February 2028	18,213,576.59
March 2028	17,749,196.36
April 2028	17,324,089.92
May 2028	16,877,533.01
June 2028	16,449,912.00
July 2028	16,000,914.52
August 2028	15,570,764.42
September 2028	15,139,373.77
October 2028	14,689,488.48
November 2028	14,261,938.18
December 2028	13,813,508.31
January 2029	13,383,433.26
February 2029	12,952,119.09
March 2029	12,460,983.97
April 2029	12,027,008.65
May 2029	11,572,342.82
June 2029	11,135,805.67
July 2029	10,678,653.38
August 2029	10,239,539.60
September 2029	9,799,160.24
October 2029	9,338,278.78
November 2029	8,895,300.62
December 2029	8,431,896.83
January 2030	7,986,304.86

Schedule 2-2

Distribution Date	Class A-SB Planned Principal Balance ($)
February 2030	7,539,428.32
March 2030	7,034,195.68
April 2030	6,584,571.09
May 2030	6,114,716.43
June 2030	5,662,439.65
July 2030	5,190,010.83
August 2030	4,735,066.55
September 2030	4,278,810.28
October 2030	3,802,519.05

Distribution Date	Class A-SB Planned Principal Balance ($)
November 2030	3,343,572.29
December 2030	2,864,669.73
January 2031	2,403,016.94
February 2031	1,940,032.50
March 2031	1,420,208.14
April 2031	954,385.66
May 2031	468,809.66
June 2031	241.42
July 2031 and thereafter	0.00

Schedule 2-3

SCHEDULE 3

DESIGNATED ESCROWS AND RESERVES
(OTHER THAN WITH RESPECT TO CO-OP MORTGAGE LOANS)

Mortgage Loan Number	Mortgage Loan(1)	Reserve Description	Reserve Amount
19	1634 Church Ave	421-a Funds	$4,175,500
24	Red Rock Center San Diego	BioLife Reserve  Initial TI/LC Escrow Amount	$1,321,613  $370,000
35	The Degnan	Existing TI/LC Reserve  Rent Concession Reserve	$1,781,040  $553,236

Schedule 3-1

EX-5.1

Exhibit 5.1

Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5300 +1 212 839 5599 Fax     AMERICA · ASIA PACIFIC · EUROPE

December 22, 2021

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036

Re: BANK 2021-BNK38,
Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38

Ladies and Gentlemen:

We have acted as counsel to Morgan Stanley Capital I Inc., a Delaware corporation (the “Depositor”), in connection with the issuance of approximately $729,014,163 aggregate principal balance of Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-4-1, Class A-4-2, Class A-4-X1, Class A-4-X2, Class A-5, Class A-5-1, Class A-5-2, Class A-5-X1, Class A-5-X2, Class X-A, Class X-B, Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1, Class A-S-X2, Class B, Class B-1, Class B-2, Class B-X1, Class B-X2, Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates (collectively, the “Registered Certificates”), and the issuance of certain non-registered certificates designated as the Class X-D, Class X-F, Class X-G, Class X-H, Class X-J, Class D, Class E, Class F, Class G, Class H, Class J, Class V and Class R Certificates and the RR Interest, pursuant to the Pooling and Servicing Agreement, dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Depositor, as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, certificate registrar, authenticating agent and custodian, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and asset representations reviewer.

For purposes of rendering this opinion letter, we have reviewed:

(i)       the Registration Statement on Form SF-3 (Registration No. 333-259741) relating to the Registered Certificates (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on October 28, 2021;

(ii)       the Prospectus, dated December 14, 2021 (the “Prospectus”) relating to the Registered Certificates;

   

 

Morgan Stanley Capital I Inc.

December 22, 2021

Page 2

(iii)       the Underwriting Agreement, dated as of December 13, 2021 (the “Underwriting Agreement”), between the Depositor, MSMCH, Morgan Stanley & Co. LLC (“MSC”), BofA Securities, Inc. (“BofA”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (together with MSC, BofA, WFS and Academy, the “Underwriters”);

(iv)       evidence satisfactory to us with respect to the effectiveness of the Registration Statement under the Act; and

(v)       the forms of the Registered Certificates attached as exhibits to the Pooling and Servicing Agreement.

In connection with the foregoing, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we deemed necessary for the purposes of this opinion. In our examination, we have assumed the following: (a) the genuineness of all signatures; (b) the legal capacity of natural persons; (c) the authenticity of all documents submitted to us as originals; (d) the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents; (e) the conformity of the text of each document filed with the Commission through its Electronic Data Gathering, Analysis and Retrieval system to the printed documents reviewed by us; and (f) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates that we have reviewed. As to any facts material to the opinions expressed herein that were not known to us, we have relied upon (1) certificates, statements and representations of officers and other representatives of the Depositor and others, (2) a certificate of the Secretary of State of the State of Delaware as to the good standing of the Depositor, dated December 20, 2021 (the “Delaware Good Standing Certificate”) and (3) a certificate of the Secretary of State of the State of Delaware as to the certificate of incorporation of the Depositor, dated December 20, 2021 (the “Delaware Certificate of Incorporation Certificate” and, together with the Delaware Good Standing Certificate, the “Delaware Certificates”).

Our opinions set forth below are subject to: (1) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the doctrine of estoppel; (2) the possible unavailability of specific performance and injunctive relief, regardless of whether considered in a proceeding in equity or at law; (3) the effect of certain laws, rules, regulations and judicial and other decisions upon enforceability; (4) bankruptcy, insolvency, bail in, receivership, reorganization, liquidation, voidable preference, fraudulent conveyance and transfer, moratorium and other similar laws affecting the rights of creditors or secured parties generally, in each case, whether by operation of law, contract, judicial or regulatory action or otherwise, and the effect of, to the extent applicable, the rights of creditors or of secured creditors of national banks or of “financial companies” (as defined in Section 201 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) or their affiliates; and (5) public policy

   

 

Morgan Stanley Capital I Inc.

December 22, 2021

Page 3

considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of any provision of any agreement that purports or is construed to provide indemnification with respect to securities law violations.

Based upon and subject to the foregoing, we are of the opinion that—

A.       The Registered Certificates, when duly executed, authenticated and delivered in accordance with the terms and conditions of the Pooling and Servicing Agreement, and when delivered and paid for by the Underwriters pursuant to the Underwriting Agreement, will be legally and validly issued and outstanding, fully paid and non-assessable.

B.       The descriptions set forth under the caption “Material Federal Income Tax Considerations” in the Prospectus, although they do not discuss all federal income tax consequences that may be applicable to the individual circumstances of particular investors (some of which may be subject to special treatment under the Internal Revenue Code of 1986, as amended (the “Code”)), otherwise correctly describe the material aspects of the federal income tax treatment of an investment in the Registered Certificates commonly applicable to investors that are U.S. Tax Persons (as defined in the Prospectus) and, where expressly indicated therein, to investors that are not U.S. Tax Persons. We also hereby confirm the opinion expressly set forth under such captions as our opinion.

C.        The Depositor is validly existing and in good standing under the laws of the State of Delaware.

The opinion set forth in paragraph B above is limited to the United States federal income tax matters specifically covered thereby, and we have not been asked to address, nor have we addressed, any other tax consequences regarding the transaction referred to above or any other transaction. The opinion set forth in paragraph B above is based on the current provisions of the Code and the Treasury Regulations issued or proposed thereunder, revenue rulings, revenue procedures and other published releases of the Internal Revenue Service and current case law, any of which can change at any time. Any change can apply retroactively and modify the legal conclusions upon which such opinion is based.

This opinion is rendered as of the date hereof and we do not undertake, and hereby disclaim, any obligation to advise you of any changes in law or fact, whether or not material, that may be brought to our attention at a later date.

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the discussion of our opinions set forth in this opinion letter under the captions “Legal Matters” and “Material Federal Income Tax Considerations” in the Prospectus. In giving

   

 

Morgan Stanley Capital I Inc.

December 22, 2021

Page 4

such consent, we do not consider that we are “experts” within the meaning of the term as used in the Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.

We express no opinion as to any laws other than the federal laws of the United States of America, the laws of the State of New York and, solely with respect to the opinion set forth in paragraph (C) above, the Delaware General Corporation Law. We do not express any opinion, either implicitly or otherwise, on any issue not expressly addressed above. We express no opinion with respect to any Series of Certificates for which we do not act as counsel to the Depositor.

Very truly yours,

/s/ Sidley Austin LLP

   

EX-36.1

Exhibit 36.1

Certification

I, Jane Lam, certify as of December 14, 2021 that:

1.                  I have reviewed the prospectus relating to those classes of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38, the offer and sale of which are registered (the “securities”) and am familiar with, in all material respects, the following: The characteristics of the securitized assets underlying the offering (the “securitized assets”), the structure of the securitization, and all material underlying transaction agreements as described in the prospectus;

2.                  Based on my knowledge, the prospectus does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading;

3.                  Based on my knowledge, the prospectus and other information included in the registration statement of which it is a part fairly present, in all material respects, the characteristics of the securitized assets, the structure of the securitization and the risks of ownership of the securities, including the risks relating to the securitized assets that would affect the cash flows available to service payments or distributions on the securities in accordance with their terms; and

4.                  Based on my knowledge, taking into account all material aspects of the characteristics of the securitized assets, the structure of the securitization, and the related risks as described in the prospectus, there is a reasonable basis to conclude that the securitization is structured to produce, but is not guaranteed by this certification to produce, expected cash flows at times and in amounts to service scheduled payments of interest and the ultimate repayment of principal on the securities (or other scheduled or required distributions on the securities, however denominated) in accordance with their terms as described in the prospectus.

5.                  The foregoing certifications are given subject to any and all defenses available to me under the federal securities laws, including any and all defenses available to an executive officer that signed the registration statement of which the prospectus referred to in this certification is part.

   

 

Date: December 14, 2021

By:	/s/ Jane Lam
	Name:	Jane Lam
	Title:	Chief Executive Officer & President

BANK 2021-BNK38 – Depositor CEO Certification

   

EX-99.1

Exhibit 99.1

MORTGAGE LOAN PURCHASE AGREEMENT

This Mortgage Loan Purchase Agreement (this “Agreement”), is dated and effective as of December 13, 2021, between Morgan Stanley Mortgage Capital Holdings LLC, as seller (in such capacity, together with its successors and permitted assigns hereunder, the “Mortgage Loan Seller” or “Seller”), and Morgan Stanley Capital I Inc., as purchaser (in such capacity, together with its successors and permitted assigns hereunder, the “Purchaser”).

RECITALS

The Mortgage Loan Seller desires to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser desires to purchase, subject to the terms and conditions set forth herein, the commercial, multifamily and/or manufactured housing community mortgage loans (collectively, the “Mortgage Loans”) identified on the schedule annexed hereto as Exhibit A (as such schedule may be amended from time to time pursuant to the terms hereof, the “Mortgage Loan Schedule”).

The Purchaser intends to create a trust (the “Trust”), the primary assets of which will be a segregated pool of commercial, multifamily and/or manufactured housing community mortgage loans, that includes the Mortgage Loans. Beneficial ownership of the assets of the Trust (such assets collectively, the “Trust Fund”) will be evidenced by a series of mortgage pass-through certificates (the “Certificates”). Certain classes of the Certificates will be rated by nationally recognized statistical rating organizations (the “Rating Agencies”). Certain classes of Certificates (the “Registered Certificates”) will be registered under the Securities Act of 1933, as amended (the “Securities Act”), and certain classes of Certificates (the “Non-Registered Certificates”) will not be registered under the Securities Act. The Trust will be created and the Certificates will be issued pursuant to a pooling and servicing agreement to be dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A. (“NCB”), as NCB master servicer and as NCB special servicer, Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”), Computershare Trust Company, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), as tax administrator and as custodian (in such capacity, the “Custodian”), and Wilmington Trust, National Association, as trustee (the “Trustee”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement as in full force and effect on the Closing Date (as defined in Section 1 hereof) (except with respect to the definition of “Servicing File,” which for purposes of this Agreement shall not include the documents described in clause (b) in the definition of such term in the Pooling and Servicing Agreement). Any reference to a provision of the Pooling and Servicing Agreement shall be to the Pooling and Servicing Agreement as in full force and effect on the Closing Date. It is anticipated that the Purchaser will transfer the Mortgage Loans to the Trustee on behalf of the Trust contemporaneously with its purchase of the Mortgage Loans hereunder.

 

The Purchaser intends to sell the Registered Certificates to Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”, and MS&Co., BofA Securities, WFS, Academy and Drexel, collectively in such capacities, the “Underwriters”) pursuant to an underwriting agreement, dated as of the date hereof (the “Underwriting Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Underwriters. The Purchaser intends to sell the Non-Registered Certificates (other than the RR Interest) to MS&Co., BofA Securities, WFS, Academy and Drexel (collectively in such capacities, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated as of the date hereof (the “Certificate Purchase Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Initial Purchasers. The Purchaser intends to transfer the RR Interest to Morgan Stanley Bank, N.A. (“MSBNA”), Bank of America, National Association and Wells Fargo Bank, National Association pursuant to the RR Interest Transfer Agreement, dated as of the date hereof (the “RR Interest Transfer Agreement”), between the Depositor, MSBNA, Bank of America, National Association and Wells Fargo Bank, National Association. The Certificates are more fully described in (a) that certain prospectus dated December 14, 2021 (together with all annexes and exhibits thereto and information incorporated therein by reference as of the date of filing thereof, the “Prospectus”), relating to the Registered Certificates and (b) that certain private placement memorandum, dated December 14, 2021 (together with all annexes and exhibits thereto, the “Private Placement Memorandum”), relating to the Non-Registered Certificates (other than the RR Interest), as each may be amended or supplemented at any time hereafter.

The Mortgage Loan Seller will indemnify the Depositor, the Underwriters, the Initial Purchasers and certain related parties with respect to certain disclosure regarding the Mortgage Loans that is contained in (a) that certain preliminary prospectus, dated December 7, 2021, relating to the Registered Certificates (together with all annexes and exhibits thereto and information incorporated therein by reference as of the last Time of Sale (as defined in the Indemnification Agreement), the “Preliminary Prospectus”), (b) that certain preliminary private placement memorandum, dated December 7, 2021, relating to the Non-Registered Certificates (other than the RR Interest) (together with all annexes and exhibits thereto, the “Preliminary Private Placement Memorandum”), (c) the Prospectus, (d) the Private Placement Memorandum and (e) certain other disclosure documents and offering materials relating to the Certificates, pursuant to an indemnification agreement, dated as of the date hereof (the “Indemnification Agreement”), between the Mortgage Loan Seller, the Depositor, the Underwriters and the Initial Purchasers.

NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties agree as follows:

Section 1.                Agreement to Purchase. The Mortgage Loan Seller agrees to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms and conditions set forth herein, the Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on December 22, 2021 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). As of the Cut-off Date, the

-2- 

Mortgage Loans will have an aggregate principal balance, after application of all payments of principal due on the Mortgage Loans, if any, on or before such date, whether or not received, of  $296,898,500. The purchase price for the Mortgage Loans shall be a combination of (i) the portion of the RR Interest transferred to MSBNA pursuant to the RR Interest Transfer Agreement and (ii) a cash amount set forth on the cross receipt between the Mortgage Loan Seller and the Purchaser dated the Closing Date (which price reflects no deduction for any transaction expenses for which the Mortgage Loan Seller is responsible). The Purchaser shall pay and/or direct to be paid the cash portion of such purchase price to the Mortgage Loan Seller on the Closing Date by wire transfer in immediately available funds or by such other method as shall be mutually acceptable to the parties hereto. The Mortgage Loan Seller hereby directs the Purchaser to transfer the portion of the RR Interest referenced above directly to MSBNA.

Section 2.                Conveyance of the Mortgage Loans. (a) Effective as of the Closing Date, subject only to receipt of the purchase price referred to in Section 1 hereof and the satisfaction of the other conditions to the Mortgage Loan Seller’s obligations set forth herein, the Mortgage Loan Seller does hereby sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, all of the right, title and interest of the Mortgage Loan Seller in, to and under the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by the Mortgage Loan Seller and the General Master Servicer. Such assignment includes all scheduled payments of principal and interest under and proceeds of the Mortgage Loans received after their respective Cut-off Dates (other than scheduled payments of interest and principal due on or before their respective Cut-off Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller) together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller (including all documents included in the related Mortgage Files and Servicing Files and any other documents required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement). The Purchaser shall be entitled to receive all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date, in each case, which shall belong to the Mortgage Loan Seller), except any Seller Defeasance Rights and Obligations.

After the Mortgage Loan Seller’s transfer of the Mortgage Loans to the Purchaser, as provided herein, the Mortgage Loan Seller shall not take any action inconsistent with the Purchaser’s ownership of the Mortgage Loans. Except for actions that are the express responsibility of another party hereunder or under the Pooling and Servicing Agreement, and further except for actions that the Mortgage Loan Seller is expressly permitted to complete subsequent to the Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date, take all actions required under applicable law to effectuate the transfer of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser.

-3- 

It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Seller will receive the benefit of any securitization indemnification provisions in the Mortgage Loan documents.

(b)               The conveyance of the Mortgage Loans and the related rights and property accomplished hereby is intended by the parties hereto to constitute a sale by the Mortgage Loan Seller of all the Mortgage Loan Seller’s right, title and interest in and to such Mortgage Loans and such other related rights and property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not intended that such conveyance be a pledge of security for a loan. If such conveyance is determined to be a pledge of security for a loan, however, then: (i) this Agreement shall constitute a security agreement under applicable law; (ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser, and in any event, the Mortgage Loan Seller hereby grants to the Purchaser, a first priority security interest in all of the Mortgage Loan Seller’s right, title and interest, whether now owned or hereafter acquired, in and to (1) the Mortgage Loans, (2) all documents included in the related Mortgage Files and Servicing Files, (3) all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and (4) all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date); (iii) the assignment by the Purchaser to the Trustee of its interests in the Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an assignment of any security interest created hereunder; (iv) the possession by the Purchaser (or the Custodian) of the Mortgage Notes with respect to the Mortgage Loans subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or person designated by such secured party for the purpose of perfecting such security interest under applicable law; and (v) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement.

(c)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian, (x) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (y) on or before the date that is forty-five (45) days following the Closing Date (or such later date as may be provided under Sections 2.01(b) or (c) of the Pooling

-4- 

and Servicing Agreement with respect to any item), the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan as of the Closing Date (which delivery shall be subject to clauses (e) and (f) in the proviso of the definition of “Mortgage File”), any other items required to be delivered or deposited by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the General Master Servicer) for each Mortgage Loan, and shall take such other actions and pay such costs with respect to the Mortgage Loans as may be required under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement.

Notwithstanding anything to the contrary contained herein, with respect to any Joint Mortgage Loan, the obligations of each of the Mortgage Loan Seller and any other Mortgage Loan Seller with respect to such Joint Mortgage Loan (an “Other Mortgage Loan Seller”) to deliver a Mortgage Note to the Custodian shall be limited to delivery of only the Mortgage Note(s) held by such party to the Custodian. With respect to any Joint Mortgage Loan, the obligations of the Mortgage Loan Seller and any Other Mortgage Loan Seller to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the Mortgage Loan Seller or any Other Mortgage Loan Seller may deliver one Mortgage File or one of any other document required to be delivered with respect to such Joint Mortgage Loan hereunder, and such delivery shall satisfy such delivery requirements for the Mortgage Loan Seller and each such Other Mortgage Loan Seller.

In addition, on or prior to the fifth (5th) Business Day after the Closing Date, the Mortgage Loan Seller, at its expense, shall deliver to the Custodian five (5) limited powers of attorney substantially in the form attached hereto as Exhibit F in favor of the Custodian (on behalf of the Trustee) and the General Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the General Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the Mortgage Loan Seller, any Mortgage Loan documents required to be recorded as described in Section 2.01 of the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). The Mortgage Loan Seller agrees to reasonably cooperate with the Custodian, the Trustee and the General Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian or the General Special Servicer, as applicable, shall submit such documents for recording, at the Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the General Special Servicer, as applicable, shall not submit such assignments for recording if the Mortgage Loan Seller produces evidence that it or a third-party

-5- 

on its behalf has sent any such assignment for recording and certifies that the Mortgage Loan Seller is awaiting its return from the applicable recording office.

(d)               In accordance with Section 2.01(b) of the Pooling and Servicing Agreement, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of this Agreement and the Pooling and Servicing Agreement by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the General Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary's interest from such Mortgage Loan Seller to the General Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the General Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the General Master Servicer on behalf of the Trust.

With respect to letters of credit delivered in accordance with subclause (B) of clause (xii) of the definition of “Mortgage File”, within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the Mortgage Loan Seller shall notify the bank issuing the letter of credit that the General Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit. Section 3.01(f) of the Pooling and Servicing Agreement requires the General Master Servicer to present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. Section 3.01(f) of the Pooling and Servicing Agreement further requires the General Master Servicer to use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The Mortgage Loan Seller shall provide such reasonable cooperation as requested by the General Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

(e)                [Reserved].

(f)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, or make available or cause to be made available to, the General Master Servicer in accordance with Section 2.01(d) of the Pooling and Servicing

-6- 

Agreement, the following items: (i) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, a copy of the Mortgage File for each Mortgage Loan (except that copies of any instruments of assignment that are returned or delivered, as applicable, to the Custodian by the related public recording office in accordance with the requirements of Section 2.01(c) of the Pooling and Servicing Agreement shall be delivered by the Custodian to the General Master Servicer) and (ii) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, in each case relating to the origination and servicing of any Mortgage Loan or related Serviced Whole Loan that are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Whole Loan in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans or related Serviced Whole Loan(s) (provided that the Mortgage Loan Seller shall not be required to deliver any internal communications (including such communications between the Mortgage Loan Seller and its Affiliates) or underwriting analysis (including documents prepared by the Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents or any documents or materials prepared by it or its Affiliates for internal uses, attorney client communications that are privileged communications or constitute legal or other due diligence analyses or credit underwriting or due diligence analyses or data). In addition, the Mortgage Loan Seller shall, in accordance with Section 2.01(f) of the Pooling and Servicing Agreement, deliver to, and deposit with, or cause to be delivered to, and deposited with, the General Master Servicer, within three (3) Business Days after the Closing Date, all unapplied reserve funds and Escrow Payments in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans (other than any Non-Serviced Whole Loans). In addition, not later than the Closing Date, the Mortgage Loan Seller shall provide to the General Master Servicer the initial data with respect to each Mortgage Loan that is necessary for the preparation of the initial CREFC^® Financial File and CREFC^® Loan Periodic Update File required to be delivered by the General Master Servicer under the Pooling and Servicing Agreement.

(g)               Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Mortgage Loan Seller shall report its transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan) and to reflect that the Mortgage Loans are no longer property of the Mortgage Loan Seller. In no event shall the Mortgage Loan Seller take any action that is inconsistent with the Trust’s ownership of each Mortgage Loan following the Closing Date.

(h)               The Mortgage Loan Schedule, as it may be amended from time to time, shall conform to the requirements set forth in the Pooling and Servicing Agreement (except with respect to the Administrative Cost Rate). The Mortgage Loan Seller shall, within fifteen (15) days of its discovery or receipt of notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case may be, an amended

-7- 

Mortgage Loan Schedule; provided that this sentence shall not be construed to relieve the Mortgage Loan Seller of any liability for any related Breach or to shorten the period available to the Mortgage Loan Seller with respect to the cure, repurchase or substitution provisions with respect to a Material Defect set forth in Section 5.

(i)                 Notwithstanding anything to the contrary, the Purchaser and the Mortgage Loan Seller hereby acknowledge and agree that with respect to each Mortgage Loan subject to defeasance, the Mortgage Loan Seller has retained the right of the lender under the Mortgage Loan documents to receive a percentage of the economic benefit associated with the ownership of the successor borrower, to designate and establish the successor borrower and to purchase (or cause the purchase on behalf of the related borrower of) the related defeasance collateral, in each case if there is a defeasance of such Mortgage Loan (“Seller Defeasance Rights and Obligations”). The Purchaser shall cause the Pooling and Servicing Agreement to provide that: (i) if the General Master Servicer receives notice of a defeasance request to a Mortgage Loan subject to defeasance, then the General Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to the Mortgage Loan Seller or its assignee; and (ii) until such time as the Mortgage Loan Seller provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance Rights and Obligations shall be delivered to the Mortgage Loan Seller pursuant to the notice provisions of the Pooling and Servicing Agreement.

Section 3.                Examination of Mortgage Loan Files and Due Diligence Review. The Mortgage Loan Seller shall reasonably cooperate with any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or before the Closing Date. The fact that the Purchaser has conducted or has failed to conduct any partial or complete examination of any of the Mortgage Files for, and/or any of such other documents and records relating to, the Mortgage Loans, shall not affect the Purchaser’s right to pursue any remedy available in equity or at law for a breach of the Mortgage Loan Seller’s representations and warranties made pursuant to Section 4, except as expressly set forth in Section 5.

Section 4.                Representations, Warranties and Covenants of the Mortgage Loan Seller and the Purchaser. (a) The Mortgage Loan Seller hereby makes, as of the date hereof (and, in connection with any replacement of a Defective Loan (as defined in Section 4(f) hereof) with one or more Qualified Substitute Mortgage Loans (also as defined in Section 4(f) hereof), pursuant to Section 5(a) hereof, as of the related date of substitution), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for the benefit of the Mortgage Loan Seller, each of the representations and warranties set forth in Exhibit B-2.

(b)               The Mortgage Loan Seller hereby makes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit C, subject to the exceptions set forth in Schedule C. The Mortgage Loan Seller is also referred to herein as the “Responsible Repurchase Party”.

(c)                The Mortgage Loan Seller hereby represents and warrants, as of the date hereof, to and for the benefit of the Purchaser only, that the Mortgage Loan Seller has not dealt

-8- 

with any broker, investment banker, agent or other person (other than the Depositor or an affiliate thereof, the Underwriters and the Initial Purchasers) who may be entitled to any commission or compensation in connection with the sale to the Purchaser of the Mortgage Loans.

(d)               The Mortgage Loan Seller hereby represents and warrants that, with respect to the Mortgage Loans and the Mortgage Loan Seller’s role as “originator” (or the role of any third party as “originator” of any Mortgage Loan for which the Mortgage Loan Seller was not the originator) and “sponsor” in connection with the issuance of the Registered Certificates, the information regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged Properties and/or the Mortgage Loan Seller contained in each of the Preliminary Prospectus and the Prospectus complies in all material respects with the applicable disclosure requirements of Regulation AB as in effect on the date hereof and for which compliance is required as of the date hereof. As used herein, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been or may hereafter be from time to time provided by the Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, in each case as effective from time to time as of the compliance dates specified therein.

(e)                With respect to each Servicing Function Participant that services a Mortgage Loan as of the Closing Date, the Mortgage Loan Seller either (i) represents and warrants that as of the date hereof such Servicing Function Participant is expected to be an Initial Sub-Servicer under the Pooling and Servicing Agreement or (ii) (A) represents and warrants that it has caused each such Servicing Function Participant to be required to comply, as evidenced by written documentation between each such Servicing Function Participant and the Mortgage Loan Seller, with all reporting requirements set forth in Article XI of the Pooling and Servicing Agreement (including but not limited to the indemnification of each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such Certification Party arising out of the delivery of any Deficient Exchange Act Deliverable) applicable to such Servicing Function Participant for the Mortgage Loans and (B) covenants with the Purchaser that, for so long as the Trust is subject to the reporting requirements of the Exchange Act, it shall cause each Servicing Function Participant that services a Mortgage Loan as of the Closing Date to comply with all reporting requirements set forth therein.

(f)                The Responsible Repurchase Party hereby agrees that it shall be deemed to make to and for the benefit of the Purchaser, as of the date of any substitution, with respect to any replacement Mortgage Loan (a “Qualified Substitute Mortgage Loan”) that is substituted for a Defective Loan by the Responsible Repurchase Party pursuant to Section 5(a) of this Agreement, each of the representations and warranties set forth in Exhibit C to this Agreement. For purposes of the representations and warranties set forth in Exhibit C, representations and warranties made as of the Closing Date or as of the Cut-off Date shall, in the case of a Qualified Substitute Mortgage Loan, be made as of the date of substitution. From and after the date of substitution, each Qualified Substitute Mortgage Loan, if any, shall be deemed to constitute a “Mortgage Loan” hereunder for all purposes. A “Defective Loan” is any Mortgage Loan as to which there is an unremedied Material Defect.

-9- 

(g)               Except for the agreed-upon procedures report obtained from the accounting firm engaged to perform procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (such report, the “Accountants’ Due Diligence Report”), the Mortgage Loan Seller has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Purchaser) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 15Ga-2”)) in connection with the securitization transaction contemplated herein and in the Prospectus and Private Placement Memorandum and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Mortgage Loan Seller has not employed (and, through and including the Closing Date, will not employ without the consent of the Purchaser) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus and Private Placement Memorandum. The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(g).

(h)               Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified) to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the Mortgage Loan Seller.

(i)                 Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall provide the Depositor a certificate substantially in the form of Exhibit E (which may be sent by email to cmbs_notices@morganstanley.com).

(j)                 If, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, then, upon written request of the Asset Representations Reviewer, the Mortgage Loan Seller shall provide to the Asset Representations Reviewer, within ten (10) Business Days of receipt of such written request, any such document; provided, that the Mortgage Loan Seller shall be required to deliver such missing document only to the extent that such document is in the possession of the Mortgage Loan Seller, but in any event excluding any documents that contain information that is proprietary to the related originator or the Mortgage Loan Seller or any draft documents or privileged or internal communications.

(k)               Upon the completion of an Asset Review with respect to each Mortgage Loan in accordance with the Pooling and Servicing Agreement and receipt of a written invoice from the Asset Representations Reviewer, the Mortgage Loan Seller shall pay the Asset Representations Reviewer Asset Review Fee for the Mortgage Loans subject to that Asset Review (or, with respect to any Joint Mortgage Loan, a fee equal to the Asset Representations Reviewer Asset Review Fee for the entire Joint Mortgage Loan, multiplied by the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest) within sixty (60) days of such written invoice by the

-10- 

Asset Representations Reviewer; provided, that if any fees payable pursuant to this Section 4(k) are paid by the Trust pursuant to Section 12.02(b) of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall reimburse the Trust for the amount of any such fees (or, with respect to any Joint Mortgage Loan, for its Mortgage Loan Seller Percentage Interest of the amount of such fees).

(l)                 The Mortgage Loan Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to such dispute resolution method.

(m)             The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon any failure by the Mortgage Loan Seller to (A) pay the fees described under Section 4(k) above within sixty (60) days of written invoice by the Asset Representations Reviewer or (B) within sixty (60) days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement), provide all documents required to be delivered by it pursuant to Section 4(h) of this Agreement.

(n)               The Mortgage Loan Seller covenants with the Purchaser that if, on or prior to the later of (i) the ninetieth (90^th) day following the Closing Date and (ii) the date upon which all Certificates have been sold to parties unaffiliated with the Depositor, as a result of the occurrence of any event that occurred prior to the Closing Date with respect to the Mortgage Loans or the Mortgage Loan Seller (and the Mortgage Loan Seller hereby covenants to promptly notify the Depositor, the Underwriters and the Initial Purchasers of the occurrence of any such event to the extent it has knowledge thereof), an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to be delivered in connection with sales of the Certificates by the Underwriters, the Initial Purchasers or a dealer, in order to correct any untrue statement of a material fact or any omission to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading, or an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to comply with applicable law, the Mortgage Loan Seller shall do all things necessary (or, with respect to information relating to the Mortgage Loans, provide all information in its possession) to assist the Depositor to prepare and furnish, at the expense of the Mortgage Loan Seller (to the extent that such amendment or supplement relates to the Mortgage Loan Seller, the Mortgage Loans and/or any information describing the same, as provided by the Mortgage Loan Seller), to the Underwriters and Initial Purchasers such amendments or supplements to the Prospectus or Private Placement Memorandum as may be necessary, so that the statements in the Prospectus or Private Placement Memorandum as so amended or supplemented, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any

-11- 

information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so contain an untrue statement of material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading or so that the Prospectus or Private Placement Memorandum (as so annexed or supplemented), including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so fail to comply with applicable law. All terms used in this Section 4(n) and not otherwise defined herein shall have the meaning set forth in the Indemnification Agreement. Notwithstanding the foregoing, the Mortgage Loan Seller shall have no affirmative obligation to monitor the performance of the Mortgage Loans or any changes in condition or circumstance of any Mortgaged Property, Mortgagor, guarantor or any of their Affiliates after the Closing Date in connection with its obligations under this Section 4(n). The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(n).

Section 5.                Notice of Breach; Cure, Repurchase and Substitution. (a) The Mortgage Loan Seller shall, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the Mortgage Loan Seller’s receipt of notice of or, if earlier, the Mortgage Loan Seller’s discovery of, a Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) the discovery by the Mortgage Loan Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at the Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable), at the applicable Purchase Price and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the General Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of Mortgage File by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable) or substitute a Qualified Substitute Mortgage Loan (other than

-12- 

with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the Mortgage Loan Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the General Master Servicer, the General Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the Mortgage Loan Seller to have received the recorded document, then the Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date so long as the Mortgage Loan Seller certifies to the Trustee, the General Master Servicer, the General Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that the Material Defect is still in effect solely because of its failure to have received the recorded document and that the Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach that causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the Mortgage Loan Seller are to be remitted by wire transfer to the General Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis.

If the Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the Enforcing Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Enforcing Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4(k) above attributable to the Asset Review of such Mortgage Loan and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material

-13- 

Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust. The following terms shall apply to any Loss of Value Payment: (i) prior to any agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

The Mortgage Loan Seller’s obligation to cure any Material Defect, repurchase or substitute for any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 5 shall constitute the sole remedy available to the Purchaser in connection with a Material Defect; provided, however, that no limitation of remedy is implied with respect to the Mortgage Loan Seller’s breach of its obligation to cure, repurchase or substitute in accordance with the terms and conditions of this Agreement. It is acknowledged and agreed that the representations and warranties are being made for risk allocation purposes.

The remedies provided for in this subsection with respect to any Material Defect with respect to any Mortgage Loan shall also apply to the related REO Property.

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the General Master Servicer, the General Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4(k) above to the extent not previously paid by the Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided, that if the Breach relates to a Joint Mortgage Loan, the Mortgage Loan Seller shall only be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note(s) sold by the Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the Mortgage Loan Seller shall remit the amount of such costs and expenses to the General Special Servicer for disbursement to the applicable Persons and upon its making such remittance, the Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the

-14- 

portion of the cure payment made by the Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the Mortgage Loan Seller.

Notwithstanding anything contained in this Agreement or the Pooling and Servicing Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan under this Agreement if (i) the Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by the Purchaser or any other party to the Pooling and Servicing Agreement to provide prompt notice as required by the terms of this Agreement or the Pooling and Servicing Agreement after such party has actual knowledge of such Material Defect (it being understood that knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File), (iii) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage, and (iv) such delay precludes the Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable. Notwithstanding anything contained in this Agreement, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC financing statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect.

If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, the Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the Mortgage Loan Seller provides an Opinion of Counsel to the effect that such release would not cause an Adverse REMIC Event and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

(b)               Whenever one or more Qualified Substitute Mortgage Loans are substituted for a Defective Loan by the Responsible Repurchase Party as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Responsible Repurchase Party shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies or such Qualified Substitute Mortgage Loans satisfy, as the case may be, all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. No mortgage loan may be substituted for a Defective Loan as contemplated by this Section 5 if the Mortgage Loan to be replaced was itself a Qualified Substitute Mortgage Loan, in which case, absent a cure of the relevant Material Defect, the affected Mortgage Loan will be required to be repurchased as contemplated hereby. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related date of substitution, and Periodic Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after its respective Cut-off Date and on or prior to

-15- 

the related date of substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related date of substitution, and Periodic Payments due with respect to each corresponding Defective Loan that is purchased or repurchased, as the case may be, or replaced with one or more Qualified Substitute Mortgage Loans (any such Mortgage Loan, a “Deleted Mortgage Loan”) (if any) after the related date of substitution, shall not be part of the Trust Fund and are to be remitted by the General Master Servicer to the Responsible Repurchase Party promptly following receipt.

If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan(s) and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of one or more Qualified Substitute Mortgage Loans for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects.

If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply.

(c)                The Responsible Repurchase Party shall be entitled, and the Purchaser shall cause the Pooling and Servicing Agreement to entitle the Responsible Repurchase Party, upon the date when the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 has been deposited in the account designated therefor by the Trustee as the assignee of the Purchaser (or the General Master Servicer on behalf of the Trustee) and, if applicable, receipt by the Trustee as the assignee of the Purchaser (or the Custodian) of the Mortgage File for each Qualified Substitute Mortgage Loan (if any) to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by the Responsible Repurchase Party, to (i) a release of the Mortgage File and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the Deleted Mortgage Loan to the Responsible Repurchase Party or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by the Responsible Repurchase Party and are reasonably necessary to vest in the Responsible Repurchase Party or its designee the ownership of such Deleted Mortgage Loan, and (iii) the execution and delivery of notice to the affected Mortgagor of the retransfer of such Deleted Mortgage Loan. In connection with any such repurchase or substitution by the Responsible Repurchase Party, the Purchaser shall also cause the Pooling and Servicing Agreement to require each of the General Master Servicer and the General Special Servicer to deliver to the Responsible Repurchase Party or its designee, and the Responsible Repurchase Party or its designee shall be entitled to delivery from the General Master Servicer and the General Special Servicer of, any portion of the related Servicing File (as such term is defined in the Pooling and Servicing Agreement), together with any Escrow Payments, reserve funds and any other items required to be delivered by the Mortgage Loan Seller under

-16- 

Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the General Master Servicer or the General Special Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each case at the expense of the Responsible Repurchase Party.

(d)               [Reserved.]

(e)                The Mortgage Loan Seller acknowledges and agrees that the Purchaser shall have no liability to the Mortgage Loan Seller or otherwise for any failure of the Mortgage Loan Seller or any other party to the Pooling and Servicing Agreement to perform its obligations provided for thereunder.

(f)                The Mortgage Loan Seller (to the extent it receives any request or demand, whether oral or written, that a Mortgage Loan be repurchased or replaced, whether arising from a Material Defect or other breach of a representation or warranty, such recipient a “Seller Request Recipient” and such request or demand, a “Repurchase Request”) agrees to provide to the Purchaser: (i) written notice of any Repurchase Request, which notice will specify if such Repurchase Request is a 15Ga-1 Notice; (ii) written notice of (A) the existence of any dispute regarding such Repurchase Request, whether written or oral, between such Seller Request Recipient and the Person making such Repurchase Request, (B) the expiration of any applicable Initial Cure Period, or, if applicable, any Extended Cure Period, (C) the withdrawal of such Repurchase Request by the Person making such Repurchase Request, (D) the rejection of such Repurchase Request by the Seller Request Recipient and (E) the repurchase or replacement of any Mortgage Loan pursuant to this Section 5 and Section 2.03 of the Pooling and Servicing Agreement; and (iii) upon reasonable request of the Purchaser (subject to Section 5(g)), such other information in the Seller Request Recipient’s possession as would be necessary to permit the Purchaser to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase or replacement requests or demands of any Person relating to any Mortgage Loan or to comply with any other obligations applicable to it under law or regulation.

Each notice required to be delivered pursuant to this Section 5(f) may be delivered by electronic means. Each notice required to be delivered pursuant to clauses (i) and (ii) of the immediately preceding paragraph shall be given not later than the tenth (10^th) Business Day after the event giving rise to the requirement for such notice and any information requested pursuant to clause (iii) of the immediately preceding paragraph shall be provided as promptly as practicable after such request is made. Each notice required to be delivered pursuant to clause (i) of the immediately preceding paragraph shall identify (a) the date on which such Repurchase Request was made, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request by such Person. Each notice required to be delivered pursuant to clause (ii) of the immediately preceding paragraph shall identify (a) the date of such withdrawal, rejection, repurchase or replacement, or the date of the commencement of such dispute, as applicable, (b) if pertaining to a dispute, the nature of such dispute, (c) if pertaining to the expiration of an Initial Cure Period or an Extended Cure Period, the expiration date of such Initial Cure Period or, if applicable, an Extended Cure Period, (d) if pertaining to a withdrawal, the basis for such withdrawal given to the Seller Request Recipient or an indication that no basis was given by the Person withdrawing such Repurchase Request, (e) if pertaining to a rejection by the Seller Request

-17- 

Recipient, the basis for the Seller Request Recipient’s rejection and (f) if pertaining to a repurchase or replacement, the date of such repurchase or replacement.

(g)               The Mortgage Loan Seller and the Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing the Mortgage Loan Seller or the Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or any information protected by the attorney work product doctrine, (ii) any 15Ga-1 Notice delivered to the Mortgage Loan Seller or the Purchaser under the Pooling and Servicing Agreement is provided only to assist the Mortgage Loan Seller, the Purchaser and any of their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, (iii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided to the Mortgage Loan Seller or the Purchaser pursuant to Section 2.02(g) of the Pooling and Servicing Agreement by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement or the Pooling and Servicing Agreement and (iv) receipt of a 15Ga-1 Notice or delivery of any notice required to be delivered pursuant to Section 5(f) shall not in and of itself constitute delivery, or receipt, of notice of any Material Defect or knowledge on the part of the Mortgage Loan Seller or Responsible Repurchase Party of any Material Defect or admission by the Mortgage Loan Seller or Responsible Repurchase Party of the existence of any Material Defect.

(h)               The Mortgage Loan Seller shall provide to the Purchaser relevant portions of any Form ABS-15G that the Mortgage Loan Seller is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Repurchase Request with respect to any Mortgage Loan) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. Promptly upon request, the Purchaser shall provide or cause to be provided to the Mortgage Loan Seller such information regarding the principal balance of any Mortgage Loan as is necessary in order for the Mortgage Loan Seller to prepare any such Form ABS-15G.

(i)                 The Purchaser shall provide to the Mortgage Loan Seller any relevant portions of any Form ABS-15G that the Purchaser is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Mortgage Loan and that was not provided by the Mortgage Loan Seller) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. The Trust’s CIK# is 0001895567.

(j)                 Notwithstanding anything to the contrary herein, the Mortgage Loan Seller’s obligation in respect of a Material Defect with respect to a Joint Mortgage Loan shall be solely in respect of the Mortgage Loan Seller’s pro rata share of such Joint Mortgage Loan based on the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest as of the date hereof in such Joint Mortgage Loan.

(k)               If the Mortgage Note or Mortgage Notes with respect to a Joint Mortgage Loan in favor of the Mortgage Loan Seller and its successors and assigns are repurchased or replaced by the Mortgage Loan Seller pursuant to this Section 5, and any other related mortgage

-18- 

notes evidencing such Joint Mortgage Loan are not repurchased or replaced by any Other Mortgage Loan Seller and any such mortgage note remains in the Trust, then the Mortgage Loan Seller and the Purchaser hereby agree that (i) the provisions in Section 3.30 of the Pooling and Servicing Agreement and the related Intercreditor Agreement shall govern the servicing and administration of such Joint Mortgage Loan as if (a) the remaining mortgage notes in the Trust were collectively a “Mortgage Loan” (as defined in the Pooling and Servicing Agreement) and (b) each repurchased Mortgage Note were a Serviced Pari Passu Companion Loan (or, if the Joint Mortgage Loan was a Non-Serviced Mortgage Loan, a Non-Serviced Pari Passu Companion Loan), (ii) the Mortgage Loan Seller and its successors and assigns in respect of such repurchased or replaced Mortgage Note shall be bound by such Section 3.30 as if it were a party to the Pooling and Servicing Agreement and (iii) the Mortgage Loan Seller and its successors and assigns shall from time to time (as may be necessary) deliver to the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan documents constituting or related to any applicable Mortgage Note repurchased by it, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the related Mortgage Note or Mortgage or otherwise available at law or equity with respect to the related Mortgage Note.

Section 6.                Closing. The closing of the sale of the Mortgage Loans (the “Closing”) shall be held at the offices of special counsel to the Purchaser at 10:00 a.m., New York City time, on the Closing Date.

The Closing shall be subject to each of the following conditions:

(i)                 All of the representations and warranties of the Mortgage Loan Seller and the Purchaser made pursuant to Section 4 of this Agreement shall be true and correct in all material respects as of the Closing Date (or as of such other specific date expressly contemplated by any such representation or warranty);

(ii)               All documents specified in Section 7 of this Agreement (the “Closing Documents”), in such forms as are agreed upon and reasonably acceptable to the Purchaser and, in the case of the Pooling and Servicing Agreement (insofar as such agreement affects the obligations of the Mortgage Loan Seller hereunder or the rights of the Mortgage Loan Seller as a third party beneficiary thereunder), to the Mortgage Loan Seller, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof;

(iii)             The Mortgage Loan Seller shall have delivered and released to the Purchaser or its designee, all documents, funds and other assets required to be delivered thereto on or before the Closing Date pursuant to Section 2 of this Agreement;

(iv)             The result of any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans performed by or on behalf of the Purchaser pursuant to Section 3 hereof shall be satisfactory to the Purchaser in its reasonable determination;

-19- 

(v)               All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with in all material respects, and the Mortgage Loan Seller shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed by it after the Closing Date;

(vi)             The Mortgage Loan Seller shall have paid all fees and expenses payable by it to the Purchaser or otherwise pursuant to this Agreement;

(vii)           The Mortgage Loan Seller shall have received the purchase price for the Mortgage Loans, as contemplated by Section 1 of this Agreement;

(viii)         Neither the Underwriting Agreement nor the Certificate Purchase Agreement shall have been terminated in accordance with its terms; and

(ix)             The Commission shall not have issued any stop order suspending the effectiveness of the Purchaser’s Registration Statement.

Each of the parties agrees to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date.

Section 7.                Closing Documents. The Purchaser or its designee shall have received all of the following Closing Documents, in such forms as are agreed upon and acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the Rating Agencies (collectively, the “Interested Parties”), and upon which the Interested Parties may rely:

(i)                 This Agreement, duly executed by the Purchaser and the Mortgage Loan Seller;

(ii)               Each of the Pooling and Servicing Agreement and the Indemnification Agreement, duly executed by the respective parties thereto;

(iii)             A Secretary’s Certificate substantially in the form of Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the Mortgage Loan Seller, in his or her individual capacity, and dated the Closing Date, and upon which the Interested Parties may rely, attaching thereto as exhibits (A) the resolutions of the board of directors of the Mortgage Loan Seller authorizing the Mortgage Loan Seller’s entering into the transactions contemplated by this Agreement and the Indemnification Agreement, and (B) the organizational documents of the Mortgage Loan Seller;

(iv)             A certificate of good standing with respect to the Mortgage Loan Seller issued by the Secretary of State of the State of New York not earlier than thirty (30) days prior to the Closing Date, and upon which the Interested Parties may rely;

(v)               A certificate of the Mortgage Loan Seller substantially in the form of Exhibit D-2 hereto, executed by an executive officer of the Mortgage Loan Seller on the

-20- 

Mortgage Loan Seller’s behalf and dated the Closing Date, and upon which the Interested Parties may rely;

(vi)             A written opinion of in-house or independent counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the Mortgage Loan Seller’s due authorization, execution and delivery of this Agreement and the Indemnification Agreement;

(vii)           A written opinion of special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the enforceability of this Agreement against the Mortgage Loan Seller;

(viii)         A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser, the Underwriters (only with respect to the Preliminary Prospectus) and the Initial Purchasers (only with respect to the Preliminary Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Preliminary Prospectus and in the Preliminary Private Placement Memorandum (as the same may be amended or supplemented on or before the pricing date for the Certificates) substantially to the effect that nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Preliminary Prospectus or the Preliminary Private Placement Memorandum, at the time when sales to purchasers of the Certificates were first made, contained, with respect to the Mortgage Loan Seller or the Mortgage Loans, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading;

(ix)             A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser (only with respect to the Private Placement Memorandum), the Underwriters (only with respect to the Prospectus) and the Initial Purchasers (only with respect to the Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Prospectus and the Private Placement Memorandum (as the case may be and as the same may be amended or supplemented on or before the Closing Date) substantially to the effect that (a) nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Prospectus or the Private Placement Memorandum (as applicable) as of the date thereof or as of the Closing Date contained or contains, with respect to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) that, with respect to information regarding the Mortgage Loan Seller and the Mortgage Loans, the related borrowers or the related Mortgaged Properties, the Prospectus is appropriately responsive in all material respects to the applicable requirements of Regulation AB;

-21- 

(x)               Copies of all other opinions rendered by counsel for the Mortgage Loan Seller to the Rating Agencies in connection with the transactions contemplated by this Agreement, including, but not limited to, with respect to the characterization of the transfer of the Mortgage Loans hereunder as a true sale, with each such opinion to be addressed to the other Interested Parties and the Trustee or accompanied by a letter signed by such counsel stating that the other Interested Parties and the Trustee may rely on such opinion as if it were addressed to them as of the date thereof;

(xi)             One or more agreed-upon procedures letters from a nationally recognized firm of certified public accountants acceptable to the Underwriters and the Initial Purchasers, dated (A) the date of the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and (B) the date of the Prospectus and the Private Placement Memorandum, respectively, and addressed to, and in form and substance acceptable to, the Interested Parties (other than the Rating Agencies), stating in effect that, using the assumptions and methodology used by the Mortgage Loan Seller, the Purchaser, the Underwriters or the Initial Purchasers, as applicable, all of which shall be described in such letters, and which shall include a comparison of certain mortgage loan-related documents to the information set forth in the Master Tape (as defined in the Indemnification Agreement), they have recalculated such numbers and percentages relating to the Mortgage Loans set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and set forth in the Prospectus and the Private Placement Memorandum, respectively, and have compared the results of their calculations to the corresponding items in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, and found each such number and percentage set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, to be in agreement with the results of such calculations;

(xii)           If any of the Certificates are “mortgage related securities” within the meaning of the Secondary Mortgage Market Enhancement Act of 1984, as amended, a certificate of the Mortgage Loan Seller regarding origination of the Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the Exchange Act; and

(xiii)         Such further certificates, opinions and documents as the Purchaser may reasonably request or any Rating Agency may require.

Section 8.                Additional Reporting Under Regulation AB. With respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall provide to the Purchaser and the Certificate Administrator any information that constitutes “Additional Form 10-D Information” or “Additional Form 10-K Information” but only if and to the extent that the Mortgage Loan Seller (or any originator of the Mortgage Loans sold by the Mortgage Loan Seller to the Depositor, if such originator constitutes an “originator” contemplated by Item 1110(b) of Regulation AB and such information is required to be reported with respect to such originator) is the applicable “Party Responsible” (solely in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) under the terms of Exhibit AA or Exhibit

-22- 

BB to the Pooling and Servicing Agreement (it being acknowledged that the Mortgage Loan Seller (solely as in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) does not constitute the “Party Responsible” for any “Form 8-K Information” set forth on Exhibit CC of the Pooling and Servicing Agreement). In each case, such delivery shall be made in a form readily convertible to an EDGAR compatible form, or in such other form as otherwise agreed by the Purchaser, the Certificate Administrator and the Mortgage Loan Seller. In each case, such delivery shall be made not later than five (5) calendar days after the related Distribution Date (in the case of any such “Additional Form 10-D Information”), and no later than March 1 of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements (in the case of any such “Additional Form 10-K Information”). In no event shall the Mortgage Loan Seller be required to provide any information that is not required to be reported on Form 10-D or Form 10-K, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder.

Section 9.                Costs. Whether or not this Agreement is terminated, the Mortgage Loan Seller will pay its pro rata share (the Mortgage Loan Seller’s pro rata portion to be determined according to the percentage that the aggregate Cut-off Date Balance of all the Mortgage Loans represents as to the aggregate Cut-off Date Balance of all the mortgage loans of the Trust Fund (the “Cut-off Date Pool Balance”)) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented set-up fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm of certified public accountants selected by the Purchaser and the Mortgage Loan Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item), including the cost of obtaining any agreed-upon procedures letters with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering this Agreement and the furnishing to the Underwriters or the Initial Purchasers, as applicable, of such copies of the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item) and this Agreement as the Underwriters and the Initial Purchasers may reasonably request; (viii) the fees of the rating agency or agencies engaged to consider rating the Certificates or hired and requested to rate the Certificates; (ix) all registration fees incurred by the Purchaser in connection with the filing of its Registration Statement allocable to the issuance of the Registered Certificates; (x) the upfront fee payable to the Asset Representations Reviewer on the

-23- 

Closing Date in the amount agreed by the parties hereto; and (xi) the reasonable fees and expenses of special counsel to the Purchaser.

Section 10.            Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered to or mailed, by registered mail, postage prepaid, by overnight mail or courier service, or transmitted by facsimile and confirmed by similar mailed writing, if to the Purchaser, addressed to the Purchaser at Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com), or such other address as may be designated by the Purchaser to the Mortgage Loan Seller in writing; or, if to the Mortgage Loan Seller, addressed to Morgan Stanley Mortgage Capital Holdings LLC, 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Mortgage Capital Holdings LLC, 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com), or such other address as may be designated by the Mortgage Loan Seller to the Purchaser in writing.

Section 11.            Miscellaneous. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by a writing signed by a duly authorized officer of the party against whom enforcement of such change, waiver, discharge or termination is sought to be enforced. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and no other person will have any right or obligation hereunder. The Mortgage Loan Seller shall be an express third party beneficiary to the Pooling and Servicing Agreement to the extent set forth therein. The Asset Representations Reviewer shall be an express third party beneficiary of Sections 4(i), 4(j), and 4(k) of this Agreement.

Section 12.            Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, incorporated herein

-24- 

by reference or contained in the certificates of officers of the Mortgage Loan Seller delivered pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser and by the Purchaser to the Trust, notwithstanding any restrictive or qualified endorsement or assignment in respect of any Mortgage Loan.

Section 13.            Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable in any particular jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.

Section 14.            Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THE AGREEMENT, THE RELATIONSHIP OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING REGARDING SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, WITH RESPECT TO SUCH COURTS, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.

Section 15.            Further Assurances. The Mortgage Loan Seller and the Purchaser each agrees to execute and deliver such instruments and take such further actions as any other party hereto may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of this Agreement.

-25- 

Section 16.            Successors and Assigns. The rights and obligations of the Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage Loan Seller without the prior written consent of the Purchaser, except that any person into which the Mortgage Loan Seller may be merged or consolidated, or any person resulting from any merger, conversion or consolidation to which the Mortgage Loan Seller is a party, or any person succeeding to all or substantially all of the business of the Mortgage Loan Seller, shall be the successor to the Mortgage Loan Seller hereunder. In connection with its transfer of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the Purchaser is expressly authorized to assign its rights under this Agreement, in whole or in part, to the Trustee for the benefit of the registered holders and beneficial owners of the Certificates. To the extent of any such assignment, the Trustee, for the benefit of the registered holders and beneficial owners of the Certificates, shall be the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and their respective successors and permitted assigns.

Section 17.            Information. The Mortgage Loan Seller shall provide the Purchaser with such information about itself, the Mortgage Loans and the underwriting and servicing procedures applicable to the Mortgage Loans as is (i) required under the provisions of Regulation AB, (ii) required by a Rating Agency or a governmental agency or body or (iii) reasonably requested by the Purchaser for use in a private disclosure document.

Section 18.            Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the matters addressed herein, and this Agreement supersedes any prior agreements and/or understandings, written or oral, with respect to such matters; provided, however, that in no event shall this provision be construed to limit the effect of the Indemnification Agreement or the memorandum of understanding dated as of December 1, 2021 between the Mortgage Loan Seller, the Purchaser and certain other parties or any separate acknowledgments and agreements executed and delivered pursuant to such memorandum of understanding.

Section 19.            Recognition of U.S. Special Resolution Regimes.

(a)                In the event a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) were governed by the laws of the United States of America or a State of the United States of America.

(b)               In the event that a Covered Party or any BHC Affiliate of such Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Right under this Agreement that may be exercised against such Covered Party is permitted to be exercised to no greater extent than such Default Right could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States of America or a State of the United States of America.

-26- 

“BHC Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §1841(k).

“Covered Party” means any party to this Agreement that is one of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b), or any subsidiary of such a covered bank to which 12 C.F.R. Part 47 applies in accordance with 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

Section 20.            Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings.

(a)                Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 19, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable.

(b)               After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

[SIGNATURE PAGE FOLLOWS]

-27- 

IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

	MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
	By:	/s/ Brandon Atkins
		Name:   Brandon Atkins
		Title:    Vice President
	MORGAN STANLEY CAPITAL I INC.
	By:	/s/ Jane Lam
		Name:  Jane Lam
		Title:  President

 

 

 

BANK 2021-BNK38 – Mortgage Loan Purchase Agreement (MSMCH)

 

 

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

 

Exh. A-1

BANK 2021-BNK38
Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
2	MSMCH	Park Avenue Plaza	$70,000,000	55 East 52nd Street	New York	NY	10/8/2021	11/5/2031	2.8375%	120	119	0	No	0.000000%	0.007500%	0.002500%
5	MSMCH	Bella Terra	$52,250,000	5472 West Grand Parkway South	Richmond	TX	11/12/2021	12/1/2031	3.4800%	120	120	0	No	0.012500%	0.000000%	0.002500%
7	MSMCH	153 Kearny Street	$30,000,000	153 Kearny Street	San Francisco	CA	11/16/2021	12/1/2031	2.8700%	120	120	0	No	0.002500%	0.000000%	0.002500%
8	MSMCH	Storage Stables Jackson	$25,000,000	3400 US Highway 89, 3945 US-89 and 670 Roice Lane	Jackson	WY	11/23/2021	12/1/2031	3.2950%	120	120	0	No	0.002500%	0.000000%	0.002500%
9	MSMCH	Twin Ridge Apartments	$20,000,000	1901 Snow Meadow Lane	Baltimore	MD	11/16/2021	12/1/2031	2.7000%	120	120	0	No	0.002500%	0.000000%	0.002500%
13.00	MSMCH	Skyline Mobile Home and RV Portfolio	$17,000,000	Various	Various	AZ	11/17/2021	12/1/2031	3.9700%	120	120	0	No	0.030000%	0.000000%	0.002500%
13.01	MSMCH	Black Canyon Ranch	$3,969,414	33900 Old Black Canyon Highway	Black Canyon City	AZ
13.02	MSMCH	Blue Sky RV Resort	$3,595,300	10247 South Frontage Road	Yuma	AZ
13.03	MSMCH	Black Rock RV Park	$3,011,936	46751 East Highway 60	Salome	AZ
13.04	MSMCH	Holiday Palms RV Resort	$2,460,276	355 West Main Street	Quartzsite	AZ
13.05	MSMCH	Mountain View RV Park	$1,204,775	99 West Vista Lane	Huachuca City	AZ
13.06	MSMCH	Goldwater Estates	$1,096,978	2837 West 1st Street	Yuma	AZ
13.07	MSMCH	Garden Oasis Estates	$894,069	669 South Clifford Way	Yuma	AZ
13.08	MSMCH	Sun Country Estates RV	$767,252	10321 Fresno Street	Wellton	AZ
15	MSMCH	JCI Sanford	$13,303,500	101 McNeill Road	Sanford	NC	11/17/2021	7/1/2031	2.9550%	115	115	0	Yes	0.002500%	0.000000%	0.002500%
16	MSMCH	Wilmington Ohio Industrial Park	$11,500,000	3268 and 3336 Progress Way	Wilmington	OH	11/18/2021	12/5/2031	3.3400%	120	120	0	No	0.002500%	0.000000%	0.002500%
18	MSMCH	2720 North Clark	$9,950,000	2720-2722 North Clark Street	Chicago	IL	11/1/2021	11/1/2031	3.6950%	120	119	0	No	0.002500%	0.000000%	0.002500%
23.00	MSMCH	871 Longwood Avenue 280-284 Lenox Avenue	$8,000,000	Various	Various	NY	10/28/2021	11/1/2031	3.0000%	120	119	0	No	0.002500%	0.000000%	0.002500%
23.01	MSMCH	280-284 Lenox Avenue	$6,294,416	280-284 Malcolm X Boulevard	New York	NY
23.02	MSMCH	871 Longwood Avenue	$1,705,584	871 Longwood Avenue	Bronx	NY
28	MSMCH	NWA Storage	$6,500,000	260 Commerce Parkway	Lowell	AR	11/10/2021	12/1/2031	3.0400%	120	120	0	No	0.002500%	0.000000%	0.002500%
29	MSMCH	Anchor Bay RV Storage	$6,400,000	2750 West Shady Shores Road	Corinth	TX	11/30/2021	12/1/2031	4.1150%	120	120	0	No	0.002500%	0.000000%	0.002500%
30	MSMCH	StorIt Self Storage	$6,310,000	6701 Gulfway Drive	Groves	TX	11/23/2021	12/1/2031	4.1500%	120	120	360	No	0.002500%	0.000000%	0.002500%
32	MSMCH	JCI El Paso	$6,100,000	12504 Weaver Road	Horizon City	TX	11/17/2021	12/1/2031	3.1550%	120	120	0	Yes	0.002500%	0.000000%	0.002500%
35	MSMCH	Spring Realty Multifamily Portfolio	$5,750,000	171 & 173 Elizabeth Street and 14 Spring Street	New York	NY	11/22/2021	12/1/2031	3.7500%	120	120	0	No	0.002500%	0.000000%	0.002500%
41	MSMCH	Highlands Professional Plaza	$3,760,000	451 Duvall Avenue Northeast	Renton	WA	11/5/2021	12/1/2031	3.6600%	120	120	0	No	0.002500%	0.000000%	0.002500%
46	MSMCH	All Around Storage	$2,800,000	2650 South City Lake Road	Fayetteville	AR	11/29/2021	12/1/2026	5.2500%	60	60	0	No	0.072500%	0.000000%	0.002500%
52	MSMCH	Affordable Storage - Concord NC	$2,275,000	345 Wilshire Avenue	Concord	NC	11/4/2021	12/1/2031	4.2700%	120	120	0	No	0.002500%	0.000000%	0.002500%

EXHIBIT B-1

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER

The Mortgage Loan Seller hereby represents and warrants that, as of the date hereof:

(a)                The Mortgage Loan Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of New York.

(b)               The Mortgage Loan Seller’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Mortgage Loan Seller’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Mortgage Loan Seller, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(c)                The Mortgage Loan Seller has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(d)               This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in accordance with the terms hereof, subject to (A) applicable bankruptcy, fraudulent transfer, insolvency, reorganization, receivership, moratorium, liquidation, conservatorship and other laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (C) public policy considerations.

(e)                The Mortgage Loan Seller is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(f)                No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Mortgage Loan Seller of the transactions contemplated herein, except for (A) those consents, approvals, authorizations or orders that previously have been obtained and (B) those filings and

Exh. B-1-1

recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.

(g)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Mortgage Loan Seller’s knowledge, threatened against the Mortgage Loan Seller that, if determined adversely to the Mortgage Loan Seller, would prohibit the Mortgage Loan Seller from entering into this Agreement or that, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(h)               The transfer of the Mortgage Loans to the Purchaser as contemplated herein is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.

(i)                 The Mortgage Loan Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud its present or future creditors.

(j)                 The Mortgage Loan Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser, as contemplated herein.

(k)               After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Mortgage Loan Seller’s assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Mortgage Loan Seller’s debts and obligations, including contingent and unliquidated debts and obligations of the Mortgage Loan Seller, and the Mortgage Loan Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business.

(l)                 The Mortgage Loan Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.

(m)             No proceedings looking toward liquidation, dissolution or bankruptcy of the Mortgage Loan Seller are pending or contemplated.

(n)               The principal place of business and chief executive office of the Mortgage Loan Seller is located in the State of New York.

(o)               The consideration received by the Mortgage Loan Seller upon the sale of the Mortgage Loans constitutes at least fair consideration and reasonably equivalent value for such Mortgage Loans.

 

Exh. B-1-2

EXHIBIT B-2

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER

The Purchaser hereby represents and warrants that, as of the date hereof:

(a)                The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b)               The Purchaser’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Purchaser’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Purchaser, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(c)                This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.

(d)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Purchaser’s knowledge, threatened against the Purchaser that, if determined adversely to the Purchaser, would prohibit the Purchaser from entering into this Agreement or that, in the Purchaser’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Purchaser to perform its obligations under this Agreement.

(e)                The Purchaser has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(f)                The Purchaser is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Purchaser’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(g)               The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, and any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the final

Exh. B-2-1

draft of each such Form 15G to MS&Co. at least six (6) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum; and (C) furnished each such Form 15G to the Commission on EDGAR at least five (5) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum as required by Rule 15Ga-2.

(h)               The Purchaser has not dealt with any broker, investment banker, agent or other person, other than the Mortgage Loan Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.

 

 

Exh. B-2-2

EXHIBIT C

MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

For purposes of this Exhibit C, the phrases “the Mortgage Loan Seller’s knowledge” or “the Mortgage Loan Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth below, the actual state of knowledge or belief of the Mortgage Loan Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth below in each case without having conducted any independent inquiry into such matters and without any obligation to have done so (except (i) having sent to the servicers servicing the Mortgage Loans on behalf of the Mortgage Loan Seller, if any, specific inquiries regarding the matters referred to and (ii) as expressly set forth herein). All information contained in documents which are part of or required to be part of a Mortgage File, as specified in the Pooling and Servicing Agreement (to the extent such documents exist) shall be deemed within the Mortgage Loan Seller’s knowledge.

The Mortgage Loan Seller hereby represents and warrants that, as of the date herein below specified or, if no such date is specified, as of the date hereof, except with respect to the Exceptions described on Schedule C to this Agreement.

1.                  Intentionally Omitted.

2.                  Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan. At the time of the sale, transfer and assignment to the Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement. The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.

3.                  Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws

Exh. C-1

affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or Prepayment Premium/Yield Maintenance Charge) may be further limited or rendered unenforceable by applicable law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).

Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.

4.                  Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.

5.                  Intentionally Omitted.

6.                  Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a) (1) there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver, or modification relates to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan. With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.

Exh. C-2

7.                  Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its Affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph 8 below (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

8.                  Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate,

Exh. C-3

materially and adversely interferes with the value or principal use of the Mortgaged Property, the security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon. Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.

9.                  Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of the representation in paragraph (7) above), and equipment and other personal property financing. The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1.

10.              Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related Assignment of Leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

11.              Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1

Exh. C-4

financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

12.              Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date.

An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.

13.              Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.

14.              Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.

Exh. C-5

15.              Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in paragraph 8), an engineering report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.

16.              Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the Depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related Non-Serviced Depositor or Non-Serviced Master Servicer for the related Non-Serviced Trust).

17.              No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).

18.              Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the Insurance Ratings Requirements (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.

“Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings

Exh. C-6

(“S&P”) or (2) the Syndicate Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s, and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s.

Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months).

If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property.

If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements.

The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.

Exh. C-7

An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained from an insurer or insurers meeting the Insurance Ratings Requirements (provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”) in an amount not less than 100% of the PML.

The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.

All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.

19.              Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in paragraph 8) and survey, if any, an engineering report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in

Exh. C-8

certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created.

20.              No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property: (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.

21.              No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.

22.              REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either

Exh. C-9

(x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). Any Prepayment Premiums and Yield Maintenance Charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.

23.              Compliance with Usury Laws. The mortgage rate (exclusive of any default interest, late charges, Yield Maintenance Charge or Prepayment Premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

24.              Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.

25.              Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.

26.              Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or

Exh. C-10

destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-conforming use or structure, or (d) the inability to restore the Mortgaged Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.

27.              Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan. The Mortgage Loan documents require the related Mortgagor to comply in all material respects with all applicable regulations, zoning and building laws.

28.              Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii)  breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in

Exh. C-11

some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).

29.              Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial defeasance (as described in paragraph 34) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in paragraph 34 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions.

In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans).

No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-

Exh. C-12

collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.

30.              Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.

31.              Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Ratings Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.

32.              Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case, a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor, (iv) Transfers to another holder of direct or

Exh. C-13

indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1, or future permitted mezzanine debt as set forth on Exhibit C-32-2, or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.

33.              Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Each Mortgage Loan with a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

34.              Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which

Exh. C-14

payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the defeasance collateral are required to be assumed by a Single-Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.

35.              Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.

36.              Ground Leases. For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner.

With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that:

(A)             The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease has occurred since its recordation, except by any written instruments which are included in the related Mortgage File;

(B)              The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the

Exh. C-15

Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;

(C)              The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);

(D)             The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject;

(E)              Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid);

(F)               The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;

(G)             The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;

(H)             A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;

Exh. C-16

(I)                The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization;

(J)                Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;

(K)             In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and

(L)              Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.

37.              Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.

38.              Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit C.

39.              Intentionally Omitted.

40.              No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which,

Exh. C-17

with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in this Exhibit C. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.

41.              Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.

42.              Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan. An “Affiliate” for purposes of this paragraph (42) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.

43.              Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior

Exh. C-18

to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.

44.              Intentionally Omitted.

45.              Appraisal. The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date. The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

46.              Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.

47.              Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.

48.              Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date.

Exh. C-19

49.              Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.

For purposes of this Exhibit C, “Mortgagee” means the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party.

For purposes of this Exhibit C, “Mortgagor” means the obligor or obligors on a Mortgage Note, including without limitation, any person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure, the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

Exh. C-20

Exhibit C-32-1

List of Mortgage Loans with Current Mezzanine Debt

Mortgage Loan Number	Mortgage Loan Name
2	Park Avenue Plaza

Exh. C-32-1-1

Exhibit C-32-2

List of Mortgage Loans with Permitted Mezzanine Debt

Mortgage Loan Number	Mortgage Loan Name
2	Park Avenue Plaza

 

Exh. C-32-2-1

Exhibit C-32-3

List of Cross-Collateralized and Cross-Defaulted Mortgage Loans

None.

Exh. C-32-3-1

 

Exhibit C-32-4

List of Mortgage Loans with Affiliated Mortgagors

Mortgage Loan Number	Mortgage Loan Name
15	JCI Sanford
32	JCI El Paso

 

Exh. C-32-4-1

 

SCHEDULE C

EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

The exceptions to the representations and warranties set forth below are listed by the number of the related representation and warranty set forth on Exhibit C and the mortgage loan name and number identified on Exhibit A. Capitalized terms used but not otherwise defined in this Schedule C shall have the meanings set forth in Exhibit C or, if not defined therein, in this Agreement.

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
7	Bella Terra (Loan No. 5)	Chick-Fil-A, a tenant at the related Mortgaged Property, has a right of first refusal to purchase its demised premises in the event that the related Mortgagor intends to sell such demised premises or receives an offer to purchase such demised premises separate and apart from a sale of the related shopping center. The related lease provides that such right will not apply in connection with a judicial or non-judicial foreclosure or deed-in-lieu. However, such right would be effective in connection with subsequent transfers of the Mortgaged Property.
18	All MSMCH Mortgage Loans (Loan Nos. 2, 5, 7, 8, 9, 13, 15, 16, 18, 23, 28, 29, 30, 32, 35, 41, 46 and 52)	The Mortgage Loan documents may allow the Mortgagor to obtain insurance from an insurer that does not meet the required rating if it obtains a “cut through endorsement” from an insurance company that meets the required rating. The Mortgage Loan documents may also allow the Mortgagor to obtain insurance from an insurer that does not meet the required rating if a parent company that owns at least 51% of the insurer has the required rating and use of such insurance is approved by the rating agencies. The threshold for the lender having the right to hold and disburse insurance proceeds may be based on 5% of the original principal amount rather than 5% of the outstanding principal amount. In addition, all exceptions to Representation 31 set forth herein for all MSMCH Mortgage Loans are also exceptions to this Representation 18.
18	Twin Ridge Apartments (Loan No. 9)	The Mortgage Loan documents require that “all risk” insurance, including but not limited to loss caused by acts of terrorism and any type of windstorm or hail, be obtained in an amount equal to the lesser of (1) 100% of the “full replacement cost” or the amount of $43,000,000 (which is less than the “full replacement cost” as of the origination date) and (2) the principal amount of the Mortgage Loan.
26	Storage Stables Jackson (Loan No. 8)	With respect to the three parcels comprising the Mortgaged Property, at origination no zoning reports were obtained for two such parcels, and only a preliminary zoning report as obtained with respect to the remaining parcel of the Mortgaged Property, and such preliminary zoning reports were lacking certain items, including zoning letters and confirmations from the applicable municipality.  The Mortgagor is required to provide finalized zoning reports within 30 days of the origination date.  In addition, the insurable value of the

Sch. C-1

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		Mortgaged Property is substantially lower than the principal balance of the Mortgage Loan, even when land value is added thereto. Accordingly, if the zoning report indicates a substantial zoning non-conformity, and the applicable zoning ordinance does not permit the Mortgaged Property to be rebuilt following a casualty, if a casualty occurs, there would not be sufficient insurance proceeds, even if land proceeds were add thereto, to repay the Mortgage Loan.
26	Skyline Mobile Home and RV Portfolio (Loan No. 13)	With respect to the Black Rock RV Park Mortgaged Property, such Mortgaged Property is legal non-conforming with respect to use. Pursuant to the applicable rebuild ordinance, in the event of a casualty or condemnation, if the Mortgaged Property is damaged beyond 50% or more of the value, a conditional use permit would be required to be obtained in order for the use to be continued. With respect to the Goldwater Estates Mortgaged Property, such Mortgaged Property is legal non-conforming with respect to use. Pursuant to the applicable rebuild ordinance, in the event of a casualty or condemnation, if the Mortgaged Property is damaged or destroyed it may be replaced, provided that all replacement units and structures must be at least six feet from any other occupied unit or occupied structure. In addition, a non-conforming structure that is damaged or destroyed may be restored, with the non-conforming use resumed, only if restoration begins within six months and is completed within one year. In addition, the insurable value of each such Mortgaged Property is substantially lower than the allocated loan amount of such Mortgaged Property, even when land value is added thereto, and therefore would be insufficient to repay the Mortgage Loan if the Mortgaged Property could not be rebuilt. In addition, the insurable value of all the Mortgaged Properties is substantially lower than the principal balance of the Mortgage Loan, even when land value is added thereto.
26	JCI Sanford (Loan No. 15)	The related Mortgaged Property is considered non-legal non-conforming with respect to the number of parking spaces required by the applicable zoning ordinance (i.e., two spaces per three employees) (the “Parking Lot Striping”).  The related loan documents require the Mortgagor to restripe the Mortgaged Property by December 28, 2021; however, in the event the Parking Lot Striping has commenced before such deadline, but has been unable to be completed by the deadline due to shortages or other limited supplies of equipment, materials or labor whether or not such shortages or limited supplies rise to a level of an event of force majeure, the Mortgagor will not be in default of its obligations under the Mortgage Loan documents so long as it is diligently pursuing (or causing to be diligently pursued) the performance of the Parking Lot Striping. In addition, the insurable value of the Mortgaged Property is substantially lower than the principal balance of the Mortgage Loan, even when land value is added thereto, and therefore would be insufficient to repay the Mortgage Loan if the Mortgaged Property could not be rebuilt.

Sch. C-2

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
26	NWA Storage (Loan No. 28)	The related Mortgaged Property is considered legal conforming with respect to use by the applicable municipality, and pursuant to the zoning report prepared in connection with the origination of the related Mortgage Loan.  However, the title company utilized by the related lender in connection with such origination concluded that the property was legal nonconforming with respect to use, and issued title endorsements reflecting that legal nonconformity. Pursuant to the applicable rebuild ordinance, a legal nonconforming structure that incurs damage or destruction to less than 50% of the value may be restored if such restoration is completed within 12 months of such damage or destruction.
27	Anchor Bay RV Storage (Loan No. 29)	The Mortgage Loan provides for the free release (without prepayment or defeasance) of several parcels of vacant land. Such vacant land was not excluded from the appraised value set forth in the appraisal, and therefore it is possible it was given material value in the appraisal.
28	All MSMCH Mortgage Loans (Loan Nos. 2, 5, 7, 8, 9, 13, 15, 16, 18, 23, 28, 29, 30, 32, 35, 41, 46 and 52)	The environmental indemnity agreements or other Mortgage Loan documents may contain provisions to the effect that, if an environmental insurance policy reasonably acceptable to the lender is obtained with respect to the Mortgaged Property, the lender and other indemnified parties are required to first make a claim under such environmental insurance policy, or to allow the environmental indemnitors to make such a claim, and may not make a claim against the environmental indemnitors, except to the extent that such environmental insurance policy does not cover the losses suffered and/or does not fully cover the costs of such losses or of any remediation or the lender or other indemnified parties (or, if applicable, the indemnitors) have been unable to recover under such environmental insurance policy with respect to all or a portion of such costs or losses within a reasonable period of time despite good faith efforts to do so (or in certain cases, within a specified time period after the date the lender or other indemnified parties (or the indemnitors, if applicable) commenced efforts to collect such environmental losses). The Mortgage Loan documents may provide that there will not be recourse for voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Mortgage Loan documents to the extent of failure to comply with administrative requirements of notice and updated organizational charts for what would otherwise constitute permitted transfers.
28	Park Avenue Plaza (Loan No. 2)	There is no non-recourse carveout guarantor or separate environmental indemnitor.
31	All MSMCH Mortgage Loans (Loan Nos. 2, 5, 7, 8, 9, 13, 15, 16, 18, 23, 28, 29, 30, 32, 35, 41, 46 and 52)	The Mortgage Loan documents may allow terrorism insurance to be obtained from an insurer that is rated at least investment grade (i.e. “BBB-”) by S&P and which may also be rated at least “BBB-” by Fitch, and/or “Baa3” by Moody’s (if such rating agencies rate any securitization of such mortgage loans and also rate the insurer). In addition, with respect to terrorism insurance, the Mortgage Loan documents may provide for 12 months, rather than 18 months, of business interruption coverage, even if the Mortgage Loan is in excess of $50,000,000. In addition, the Mortgage Loan documents may provide that if TRIPRA or a similar statue is not in effect, the related Mortgagor will not be required to spend on the premium for terrorism insurance coverage more than

Sch. C-3

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		two (2) times the premium then currently payable in respect of the property and business interruption/loss of rents insurance required under the Mortgage Loan documents (without giving effect to the cost of terrorism, earthquake, and in some cases, flood and/or windstorm components of such insurance at the time terrorism coverage is excluded from any insurance policy). All exceptions to Representation 18 set forth herein for all MSMCH Mortgage Loans are also exceptions to Representation 31.
33	Park Avenue Plaza (Loan No. 2)	In addition to the office building located at 55 East 52nd Street and related land that comprise the Mortgaged Property, the Mortgaged Property also includes the leased fee interest in a ground lease on an adjacent 7-story building and related land (collectively, the “Additional Property”).
33	Twin Ridge Apartments (Loan No. 9)	One of the Mortgagors previously owned an additional non-income producing parcel located adjacent to the Mortgaged Property, which was conveyed to an affiliate of the Mortgagors.
40	All MSMCH Mortgage Loans (Loan Nos. 2, 5, 7, 8, 9, 13, 15, 16, 18, 23, 28, 29, 30, 32, 35, 41, 46 and 52)	With respect to any covenants under the related Mortgage Loan that require the Mortgagor to ensure a tenant or Mortgaged Property is operating or to enforce the terms of leases, such Mortgagor may be in default of one or more of such covenants due to closures mandated or recommended by governmental authorities and moratoriums imposed by governmental authorities on real estate remedies or due to the Mortgagor forbearing to enforce rent payment obligations on tenants failing to pay rent as a result of such closures.
43	Park Avenue Plaza (Loan No. 2)	The ESA does not cover the Additional Property.

Sch. C-4

EXHIBIT D-1

FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER

MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC

ASSISTANT SECRETARY’S CERTIFICATE

I, [_____], an Assistant Secretary of Morgan Stanley Mortgage Capital Holdings LLC, a New York limited liability company (the “Mortgage Loan Seller”), HEREBY CERTIFY that:

1. Attached hereto as Exhibit A is a true and complete copy of the Articles of Organization of the Mortgage Loan Seller, which are in full force and effect on the date hereof.

2. Attached hereto as Exhibit B is a true and correct copy of the Operating Agreement of the Mortgage Loan Seller, which is in full force and effect on the date hereof.

3. Attached hereto as Exhibit C is a true and complete copy of resolutions relating to loan sales and securitizations duly adopted by the Board of Directors of the Mortgage Loan Seller as of [DATE]. Such resolutions have not been modified, amended, rescinded or revoked and remain in full force and effect on the date hereof.

4. Each person who, as an officer or representative of the Mortgage Loan Seller, signed any document delivered in connection with the BANK 2021-BNK38 transaction was at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative and the signatures of such persons appearing on such documents are their genuine signatures.

 

IN WITNESS WHEREOF, I have signed this Certificate as of December 22, 2021.

	Name:
	Title:

Exh. D-1-1

EXHIBIT D-2

FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER

CERTIFICATE OF MORTGAGE LOAN SELLER

In connection with the execution and delivery by Morgan Stanley Mortgage Capital Holdings LLC (“Morgan Stanley”) of the various transactions contemplated by, that certain Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”) between Morgan Stanley, as seller, and Morgan Stanley Capital I Inc., as purchaser (the “Purchaser”), the undersigned hereby certifies that (i) except as set forth on Schedule C to the Mortgage Loan Purchase Agreement, the representations and warranties of Morgan Stanley in or made pursuant to Section 4(a) and Section 4(b) of the Mortgage Loan Purchase Agreement are true and correct in all material respects at and as of the date hereof with the same effect as if made on the date hereof, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date, (ii) Morgan Stanley has, in all material respects, complied with all the agreements and satisfied all the conditions on its part required under the Mortgage Loan Purchase Agreement to be performed or satisfied at or prior to the date hereof, and (iii) since the date of the Mortgage Loan Purchase Agreement, there will not have been, immediately prior to the transfer of the Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, any material adverse change in the financial condition of Morgan Stanley. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Mortgage Loan Purchase Agreement.

Certified this December 22, 2021.

	MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
	By:
		Name:
		Title:

 

 

Exh. D-2-1

EXHIBIT E

FORM OF OFFICER’S CERTIFICATE OF
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC

[_____], 2021

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

cmbs_notices@morganstanley.com

With copies to the Addressees listed on Schedule A

Re: BANK 2021-BNK38 – Officer’s Certificate Pursuant to Section 4(i) of the Mortgage Loan Purchase Agreement

Reference is hereby made to that certain Pooling and Servicing Agreement, dated as of December 1, 2021, and that certain Mortgage Loan Purchase Agreement, dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between the undersigned (the “Mortgage Loan Seller”) and Morgan Stanley Capital I Inc. In accordance with Section 4(i) of the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller hereby certifies to the parties listed on Schedule A, as follows:

1. The Mortgage Loan Seller has delivered the Diligence File (as defined in the Pooling and Servicing Agreement) with respect to each Mortgage Loan to the Designated Site (as defined in the Pooling and Servicing Agreement); and

2. Each Diligence File constitutes all documents required under the definition of “Diligence File” and such Diligence File is organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and Mortgage Loan Seller.

Capitalized terms used herein without definition have the meanings given them in the Mortgage Loan Purchase Agreement.

IN WITNESS WHEREOF, the undersigned has caused this diligence file certification to be executed by its duly authorized officer or representative, the [_] day of [_____], 2021.

Exh. E-1

 

 

	Sincerely yours,
	MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
	By:
		Name:
		Title:

Exh. E-2

SCHEDULE A

LIST OF ADDRESSEES TO BE COPIED

GENERAL MASTER SERVICER:

Email: commercial.servicing@wellsfargo.com

GENERAL SPECIAL SERVICER:

Email: NoticeAdmin@midlandls.com

CERTIFICATE ADMINISTRATOR:

Email: cts.cmbs.bond.admin@wellsfargo.com; trustadministrationgroup@wellsfargo.com

TRUSTEE:

Email: CMBSTrustee@wilmingtontrust.com

DIRECTING CERTIFICATEHOLDER:

Email: RESecurities@kkr.com

ASSET REPRESENTATIONS REVIEWER:

Email: notices@pentalphasurveillance.com

OPERATING ADVISOR:

Email: notices@pentalphasurveillance.com

RISK RETENTION CONSULTATION PARTY

Email: cmbs_notices@morganstanley.com

Exh. E-3

EXHIBIT F

FORM OF LIMITED POWER OF ATTORNEY

TO COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION AND MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION WITH RESPECT TO BANK 2021-BNK38, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK38

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between Morgan Stanley Mortgage Capital Holdings LLC (“Seller”) and Morgan Stanley Capital I Inc. (“Depositor”), Seller is selling certain commercial, multifamily and/or manufactured housing community mortgage loans (the “Mortgage Loans”) to Depositor;

WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Wilmington Trust, National Association, as trustee (the “Trustee”), and Computershare Trust Company, National Association, as certificate administrator, as custodian (in such capacity, the “Custodian”), as certificate registrar, and as authenticating agent, the Trustee, the Custodian and the General Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;

WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;

NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in

Exh. F-1

favor of the Trustee as set forth in the definition of “Mortgage File” in, and in accordance with Section 1.01 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to prepare, execute and file or record in the appropriate public filing or recording offices, as applicable, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the General Special Servicer only such powers, responsibilities and authority as are set forth in Section 2 of the Mortgage Loan Purchase Agreement.

Seller does also hereby make, constitute and appoint the General Special Servicer, acting solely in its capacity as General Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the General Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the General Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.

The enumeration of particular powers herein is not intended in any way to limit the grant to the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the General Special Servicer, the Custodian, the Trust and the Certificateholders, neither the Custodian nor the General Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the General Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the General Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by the Custodian or the General Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.

Exh. F-2

Any act or thing lawfully done hereunder by the Custodian (on behalf of the Trustee) or the General Special Servicer shall be binding on Seller and Seller’s successors and assigns.

This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the General Special Servicer, as applicable, until the earliest occurrence of any of the following events:

(1) with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement;

(2) with respect to the General Special Servicer, the termination of such entity and its replacement with a successor General Special Servicer under the terms of the Pooling and Servicing Agreement;

(3) with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian;

(4) with respect to the General Special Servicer, the appointment of a receiver or conservator with respect to the business of such entity, or the filing of a voluntary or involuntary petition in bankruptcy by or against such entity;

(5) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust;

(6) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and

(7) with respect to the General Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 7.01(a) of the Pooling and Servicing Agreement with respect to the General Special Servicer.

Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.

THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF

Exh. F-3

SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

[Signature on next page]

Exh. F-4

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2021.

	MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
	By:
		Name:
		Title:

 

 

 

Exh. F-5

ACKNOWLEDGEMENT

STATE OF	)
	)ss:
COUNTY OF	)

 

On this ____ day of _____________ 20__, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of Morgan Stanley Mortgage Capital Holdings LLC, and that the seal affixed to the foregoing instrument is the corporate seal of said entity, and that said instrument was signed and sealed in behalf of said entity by authority of its board of directors (or equivalent authorizing parties), and said ___________________ acknowledged said instrument to be the free act and deed of said entity.

	Name:
		Notary Public in and for said County and State

My Commission Expires:

_____________________________________

Exh. F-6

EX-99.2

Exhibit 99.2 

EXECUTION VERSION

 

MORTGAGE LOAN PURCHASE AGREEMENT

This Mortgage Loan Purchase Agreement (this “Agreement”), is dated and effective as of December 13, 2021, between Bank of America, National Association, as seller (in such capacity, together with its successors and permitted assigns hereunder, the “Mortgage Loan Seller” or “Seller”), and Morgan Stanley Capital I Inc., as purchaser (in such capacity, together with its successors and permitted assigns hereunder, the “Purchaser”).

RECITALS

The Mortgage Loan Seller desires to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser desires to purchase, subject to the terms and conditions set forth herein, the commercial, multifamily and/or manufactured housing community mortgage loans (collectively, the “Mortgage Loans”) identified on the schedule annexed hereto as Exhibit A (as such schedule may be amended from time to time pursuant to the terms hereof, the “Mortgage Loan Schedule”).

The Purchaser intends to create a trust (the “Trust”), the primary assets of which will be a segregated pool of commercial, multifamily and/or manufactured housing community mortgage loans, that includes the Mortgage Loans. Beneficial ownership of the assets of the Trust (such assets collectively, the “Trust Fund”) will be evidenced by a series of mortgage pass-through certificates (the “Certificates”). Certain classes of the Certificates will be rated by nationally recognized statistical rating organizations (the “Rating Agencies”). Certain classes of Certificates (the “Registered Certificates”) will be registered under the Securities Act of 1933, as amended (the “Securities Act”), and certain classes of Certificates (the “Non-Registered Certificates”) will not be registered under the Securities Act. The Trust will be created and the Certificates will be issued pursuant to a pooling and servicing agreement to be dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A. (“NCB”), as NCB master servicer and as NCB special servicer, Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”), Computershare Trust Company, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), as tax administrator and as custodian (in such capacity, the “Custodian”), and Wilmington Trust, National Association, as trustee (the “Trustee”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement as in full force and effect on the Closing Date (as defined in Section 1 hereof) (except with respect to the definition of “Servicing File,” which for purposes of this Agreement shall not include the documents described in clause (b) in the definition of such term in the Pooling and Servicing Agreement). Any reference to a provision of the Pooling and Servicing Agreement shall be to the Pooling and Servicing Agreement as in full force and effect on the Closing Date. It is anticipated that the Purchaser will transfer the Mortgage Loans to the Trustee on behalf of the Trust contemporaneously with its purchase of the Mortgage Loans hereunder.

 

The Purchaser intends to sell the Registered Certificates to Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”, and MS&Co., BofA Securities, WFS, Academy and Drexel, collectively in such capacities, the “Underwriters”) pursuant to an underwriting agreement, dated as of the date hereof (the “Underwriting Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Underwriters. The Purchaser intends to sell the Non-Registered Certificates (other than the RR Interest) to MS&Co., BofA Securities, WFS, Academy and Drexel (collectively in such capacities, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated as of the date hereof (the “Certificate Purchase Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Initial Purchasers. The Purchaser intends to transfer the RR Interest to Morgan Stanley Bank, N.A. (“MSBNA”), the Mortgage Loan Seller and Wells Fargo Bank, National Association pursuant to the RR Interest Transfer Agreement, dated as of the date hereof (the “RR Interest Transfer Agreement”), between the Depositor, MSBNA, the Mortgage Loan Seller and Wells Fargo Bank, National Association. The Certificates are more fully described in (a) that certain prospectus dated December 14, 2021 (together with all annexes and exhibits thereto and information incorporated therein by reference as of the date of filing thereof, the “Prospectus”), relating to the Registered Certificates and (b) that certain private placement memorandum, dated December 14, 2021 (together with all annexes and exhibits thereto, the “Private Placement Memorandum”), relating to the Non-Registered Certificates (other than the RR Interest), as each may be amended or supplemented at any time hereafter.

The Mortgage Loan Seller will indemnify the Depositor, the Underwriters, the Initial Purchasers and certain related parties with respect to certain disclosure regarding the Mortgage Loans that is contained in (a) that certain preliminary prospectus, dated December 7, 2021, relating to the Registered Certificates (together with all annexes and exhibits thereto and information incorporated therein by reference as of the last Time of Sale (as defined in the Indemnification Agreement), the “Preliminary Prospectus”), (b) that certain preliminary private placement memorandum, dated December 7, 2021, relating to the Non-Registered Certificates (other than the RR Interest) (together with all annexes and exhibits thereto, the “Preliminary Private Placement Memorandum”), (c) the Prospectus, (d) the Private Placement Memorandum and (e) certain other disclosure documents and offering materials relating to the Certificates, pursuant to an indemnification agreement, dated as of the date hereof (the “Indemnification Agreement”), between the Mortgage Loan Seller, the Depositor, the Underwriters and the Initial Purchasers.

NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties agree as follows:

Section 1.                Agreement to Purchase. The Mortgage Loan Seller agrees to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms and conditions set forth herein, the Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on December 22, 2021 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). As of the Cut-off Date, the Mortgage Loans will have an aggregate principal balance, after application of all payments of principal due on the Mortgage Loans, if any, on or before such date, whether or not received, of

-2- 

$217,400,000. The purchase price for the Mortgage Loans shall be a combination of (i) the portion of the RR Interest transferred to the Mortgage Loan Seller pursuant to the RR Interest Transfer Agreement and (ii) a cash amount set forth on the cross receipt between the Mortgage Loan Seller and the Purchaser dated the Closing Date (which price reflects no deduction for any transaction expenses for which the Mortgage Loan Seller is responsible). The Purchaser shall pay and/or direct to be paid the cash portion of such purchase price to the Mortgage Loan Seller on the Closing Date by wire transfer in immediately available funds or by such other method as shall be mutually acceptable to the parties hereto.

Section 2.                Conveyance of the Mortgage Loans. (a) Effective as of the Closing Date, subject only to receipt of the purchase price referred to in Section 1 hereof and the satisfaction of the other conditions to the Mortgage Loan Seller’s obligations set forth herein, the Mortgage Loan Seller does hereby sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, all of the right, title and interest of the Mortgage Loan Seller in, to and under the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by the Mortgage Loan Seller and the General Master Servicer. Such assignment includes all scheduled payments of principal and interest under and proceeds of the Mortgage Loans received after their respective Cut-off Dates (other than scheduled payments of interest and principal due on or before their respective Cut-off Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller) together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller (including all documents included in the related Mortgage Files and Servicing Files and any other documents required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement). The Purchaser shall be entitled to receive all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date, in each case, which shall belong to the Mortgage Loan Seller), except any Seller Defeasance Rights and Obligations.

After the Mortgage Loan Seller’s transfer of the Mortgage Loans to the Purchaser, as provided herein, the Mortgage Loan Seller shall not take any action inconsistent with the Purchaser’s ownership of the Mortgage Loans. Except for actions that are the express responsibility of another party hereunder or under the Pooling and Servicing Agreement, and further except for actions that the Mortgage Loan Seller is expressly permitted to complete subsequent to the Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date, take all actions required under applicable law to effectuate the transfer of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser.

It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Seller will receive the benefit of any securitization indemnification provisions in the Mortgage Loan documents.

-3- 

(b)               The conveyance of the Mortgage Loans and the related rights and property accomplished hereby is intended by the parties hereto to constitute a sale by the Mortgage Loan Seller of all the Mortgage Loan Seller’s right, title and interest in and to such Mortgage Loans and such other related rights and property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not intended that such conveyance be a pledge of security for a loan. If such conveyance is determined to be a pledge of security for a loan, however, then: (i) this Agreement shall constitute a security agreement under applicable law; (ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser, and in any event, the Mortgage Loan Seller hereby grants to the Purchaser, a first priority security interest in all of the Mortgage Loan Seller’s right, title and interest, whether now owned or hereafter acquired, in and to (1) the Mortgage Loans, (2) all documents included in the related Mortgage Files and Servicing Files, (3) all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and (4) all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date); (iii) the assignment by the Purchaser to the Trustee of its interests in the Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an assignment of any security interest created hereunder; (iv) the possession by the Purchaser (or the Custodian) of the Mortgage Notes with respect to the Mortgage Loans subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or person designated by such secured party for the purpose of perfecting such security interest under applicable law; and (v) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement.

(c)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian, (x) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (y) on or before the date that is forty-five (45) days following the Closing Date (or such later date as may be provided under Sections 2.01(b) or (c) of the Pooling and Servicing Agreement with respect to any item), the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan as of the Closing Date (which delivery shall be subject to clauses (e) and (f) in the proviso of the definition of “Mortgage File”), any other items required to be delivered or deposited by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement

-4- 

(other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the General Master Servicer) for each Mortgage Loan, and shall take such other actions and pay such costs with respect to the Mortgage Loans as may be required under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement.

Notwithstanding anything to the contrary contained herein, with respect to any Joint Mortgage Loan, the obligations of each of the Mortgage Loan Seller and any other Mortgage Loan Seller with respect to such Joint Mortgage Loan (an “Other Mortgage Loan Seller”) to deliver a Mortgage Note to the Custodian shall be limited to delivery of only the Mortgage Note(s) held by such party to the Custodian. With respect to any Joint Mortgage Loan, the obligations of the Mortgage Loan Seller and any Other Mortgage Loan Seller to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the Mortgage Loan Seller or any Other Mortgage Loan Seller may deliver one Mortgage File or one of any other document required to be delivered with respect to such Joint Mortgage Loan hereunder, and such delivery shall satisfy such delivery requirements for the Mortgage Loan Seller and each such Other Mortgage Loan Seller.

In addition, on or prior to the fifth (5th) Business Day after the Closing Date, the Mortgage Loan Seller, at its expense, shall deliver to the Custodian five (5) limited powers of attorney substantially in the form attached hereto as Exhibit F in favor of the Custodian (on behalf of the Trustee) and the General Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the General Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the Mortgage Loan Seller, any Mortgage Loan documents required to be recorded as described in Section 2.01 of the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). The Mortgage Loan Seller agrees to reasonably cooperate with the Custodian, the Trustee and the General Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian or the General Special Servicer, as applicable, shall submit such documents for recording, at the Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the General Special Servicer, as applicable, shall not submit such assignments for recording if the Mortgage Loan Seller produces evidence that it or a third-party on its behalf has sent any such assignment for recording and certifies that the Mortgage Loan Seller is awaiting its return from the applicable recording office.

(d)               In accordance with Section 2.01(b) of the Pooling and Servicing Agreement, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the Mortgage Loan Seller shall be deemed to

-5- 

have satisfied the delivery requirements of this Agreement and the Pooling and Servicing Agreement by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the General Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary's interest from such Mortgage Loan Seller to the General Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the General Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the General Master Servicer on behalf of the Trust.

With respect to letters of credit delivered in accordance with subclause (B) of clause (xii) of the definition of “Mortgage File”, within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the Mortgage Loan Seller shall notify the bank issuing the letter of credit that the General Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit. Section 3.01(f) of the Pooling and Servicing Agreement requires the General Master Servicer to present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. Section 3.01(f) of the Pooling and Servicing Agreement further requires the General Master Servicer to use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The Mortgage Loan Seller shall provide such reasonable cooperation as requested by the General Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

(e)                [Reserved].

(f)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, or make available or cause to be made available to, the General Master Servicer in accordance with Section 2.01(d) of the Pooling and Servicing Agreement, the following items: (i) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, a copy of the Mortgage File for each Mortgage Loan (except that copies of any instruments of assignment that are returned or delivered, as applicable, to the Custodian by the related public recording office in accordance with the requirements of Section 2.01(c) of the Pooling and Servicing Agreement shall be delivered by the Custodian to the General Master Servicer) and (ii) within the timeframe for delivery set forth in Section 2.01(d) of

-6- 

the Pooling and Servicing Agreement, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, in each case relating to the origination and servicing of any Mortgage Loan or related Serviced Whole Loan that are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Whole Loan in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans or related Serviced Whole Loan(s) (provided that the Mortgage Loan Seller shall not be required to deliver any internal communications (including such communications between the Mortgage Loan Seller and its Affiliates) or underwriting analysis (including documents prepared by the Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents or any documents or materials prepared by it or its Affiliates for internal uses, attorney client communications that are privileged communications or constitute legal or other due diligence analyses or credit underwriting or due diligence analyses or data). In addition, the Mortgage Loan Seller shall, in accordance with Section 2.01(f) of the Pooling and Servicing Agreement, deliver to, and deposit with, or cause to be delivered to, and deposited with, the General Master Servicer, within three (3) Business Days after the Closing Date, all unapplied reserve funds and Escrow Payments in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans (other than any Non-Serviced Whole Loans). In addition, not later than the Closing Date, the Mortgage Loan Seller shall provide to the General Master Servicer the initial data with respect to each Mortgage Loan that is necessary for the preparation of the initial CREFC^® Financial File and CREFC^® Loan Periodic Update File required to be delivered by the General Master Servicer under the Pooling and Servicing Agreement.

(g)               Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Mortgage Loan Seller shall report its transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan) and to reflect that the Mortgage Loans are no longer property of the Mortgage Loan Seller. In no event shall the Mortgage Loan Seller take any action that is inconsistent with the Trust’s ownership of each Mortgage Loan following the Closing Date.

(h)               The Mortgage Loan Schedule, as it may be amended from time to time, shall conform to the requirements set forth in the Pooling and Servicing Agreement (except with respect to the Administrative Cost Rate). The Mortgage Loan Seller shall, within fifteen (15) days of its discovery or receipt of notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case may be, an amended Mortgage Loan Schedule; provided that this sentence shall not be construed to relieve the Mortgage Loan Seller of any liability for any related Breach or to shorten the period available to the Mortgage Loan Seller with respect to the cure, repurchase or substitution provisions with respect to a Material Defect set forth in Section 5.

(i)                 Notwithstanding anything to the contrary, the Purchaser and the Mortgage Loan Seller hereby acknowledge and agree that with respect to each Mortgage Loan subject to

-7- 

defeasance, the Mortgage Loan Seller has transferred to a third party or has retained the right of the lender under the Mortgage Loan documents to receive a percentage of the economic benefit associated with the ownership of the successor borrower, to designate or establish the successor borrower and/or to purchase (or cause the purchase on behalf of the related borrower of) the related defeasance collateral, in each case if there is a defeasance of such Mortgage Loan (“Seller Defeasance Rights and Obligations”). The Purchaser shall cause the Pooling and Servicing Agreement to provide that: (i) if the General Master Servicer receives notice of a defeasance request to a Mortgage Loan subject to defeasance, then the General Master Servicer shall provide upon receipt of such notice, written notice of such defeasance request to the Mortgage Loan Seller or its assignee; and (ii) until such time as the Mortgage Loan Seller provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance Rights and Obligations shall be delivered to the Mortgage Loan Seller pursuant to the notice provisions of the Pooling and Servicing Agreement.

Section 3.                Examination of Mortgage Loan Files and Due Diligence Review. The Mortgage Loan Seller shall reasonably cooperate with any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or before the Closing Date. The fact that the Purchaser has conducted or has failed to conduct any partial or complete examination of any of the Mortgage Files for, and/or any of such other documents and records relating to, the Mortgage Loans, shall not affect the Purchaser’s right to pursue any remedy available in equity or at law for a breach of the Mortgage Loan Seller’s representations and warranties made pursuant to Section 4, except as expressly set forth in Section 5.

Section 4.                Representations, Warranties and Covenants of the Mortgage Loan Seller and the Purchaser. (a) The Mortgage Loan Seller hereby makes, as of the date hereof (and, in connection with any replacement of a Defective Loan (as defined in Section 4(f) hereof) with one or more Qualified Substitute Mortgage Loans (also as defined in Section 4(f) hereof), pursuant to Section 5(a) hereof, as of the related date of substitution), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for the benefit of the Mortgage Loan Seller, each of the representations and warranties set forth in Exhibit B-2.

(b)               The Mortgage Loan Seller hereby makes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit C, subject to the exceptions set forth in Schedule C. The Mortgage Loan Seller is also referred to herein as the “Responsible Repurchase Party”.

(c)                The Mortgage Loan Seller hereby represents and warrants, as of the date hereof, to and for the benefit of the Purchaser only, that the Mortgage Loan Seller has not dealt with any broker, investment banker, agent or other person (other than the Depositor or an affiliate thereof, the Underwriters and the Initial Purchasers) who may be entitled to any commission or compensation in connection with the sale to the Purchaser of the Mortgage Loans.

(d)               The Mortgage Loan Seller hereby represents and warrants that, with respect to the Mortgage Loans and the Mortgage Loan Seller’s role as “originator” (or the role of any third party as “originator” of any Mortgage Loan for which the Mortgage Loan Seller was not the

-8- 

originator) and “sponsor” in connection with the issuance of the Registered Certificates, the information regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged Properties and/or the Mortgage Loan Seller contained in each of the Preliminary Prospectus and the Prospectus complies in all material respects with the applicable disclosure requirements of Regulation AB as in effect on the date hereof and for which compliance is required as of the date hereof. As used herein, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been or may hereafter be from time to time provided by the Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, in each case as effective from time to time as of the compliance dates specified therein.

(e)                With respect to each Servicing Function Participant that services a Mortgage Loan as of the Closing Date, the Mortgage Loan Seller either (i) represents and warrants that as of the date hereof such Servicing Function Participant is expected to be an Initial Sub-Servicer under the Pooling and Servicing Agreement or (ii) (A) represents and warrants that it has caused each such Servicing Function Participant to be required to comply, as evidenced by written documentation between each such Servicing Function Participant and the Mortgage Loan Seller, with all reporting requirements set forth in Article XI of the Pooling and Servicing Agreement (including but not limited to the indemnification of each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such Certification Party arising out of the delivery of any Deficient Exchange Act Deliverable) applicable to such Servicing Function Participant for the Mortgage Loans and (B) covenants with the Purchaser that, for so long as the Trust is subject to the reporting requirements of the Exchange Act, it shall cause each Servicing Function Participant that services a Mortgage Loan as of the Closing Date to comply with all reporting requirements set forth therein.

(f)                The Responsible Repurchase Party hereby agrees that it shall be deemed to make to and for the benefit of the Purchaser, as of the date of any substitution, with respect to any replacement Mortgage Loan (a “Qualified Substitute Mortgage Loan”) that is substituted for a Defective Loan by the Responsible Repurchase Party pursuant to Section 5(a) of this Agreement, each of the representations and warranties set forth in Exhibit C to this Agreement. For purposes of the representations and warranties set forth in Exhibit C, representations and warranties made as of the Closing Date or as of the Cut-off Date shall, in the case of a Qualified Substitute Mortgage Loan, be made as of the date of substitution. From and after the date of substitution, each Qualified Substitute Mortgage Loan, if any, shall be deemed to constitute a “Mortgage Loan” hereunder for all purposes. A “Defective Loan” is any Mortgage Loan as to which there is an unremedied Material Defect.

(g)               Except for the agreed-upon procedures report obtained from the accounting firm engaged to perform procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (such report, the “Accountants’ Due Diligence Report”), the Mortgage Loan Seller has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Purchaser) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 15Ga-2”)) in connection with the securitization

-9- 

transaction contemplated herein and in the Prospectus and Private Placement Memorandum and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Mortgage Loan Seller has not employed (and, through and including the Closing Date, will not employ without the consent of the Purchaser) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus and Private Placement Memorandum. The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(g).

(h)               Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified) to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the Mortgage Loan Seller.

(i)                 Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall provide the Depositor a certificate substantially in the form of Exhibit E (which may be sent by email to cmbs_notices@morganstanley.com).

(j)                 If, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, then, upon written request of the Asset Representations Reviewer, the Mortgage Loan Seller shall provide to the Asset Representations Reviewer, within ten (10) Business Days of receipt of such written request, any such document; provided, that the Mortgage Loan Seller shall be required to deliver such missing document only to the extent that such document is in the possession of the Mortgage Loan Seller, but in any event excluding any documents that contain information that is proprietary to the related originator or the Mortgage Loan Seller or any draft documents or privileged or internal communications.

(k)               Upon the completion of an Asset Review with respect to each Mortgage Loan in accordance with the Pooling and Servicing Agreement and receipt of a written invoice from the Asset Representations Reviewer, the Mortgage Loan Seller shall pay the Asset Representations Reviewer Asset Review Fee for the Mortgage Loans subject to that Asset Review (or, with respect to any Joint Mortgage Loan, a fee equal to the Asset Representations Reviewer Asset Review Fee for the entire Joint Mortgage Loan, multiplied by the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest) within sixty (60) days of such written invoice by the Asset Representations Reviewer; provided, that if any fees payable pursuant to this Section 4(k) are paid by the Trust pursuant to Section 12.02(b) of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall reimburse the Trust for the amount of any such fees (or, with respect to any Joint Mortgage Loan, for its Mortgage Loan Seller Percentage Interest of the amount of such fees).

(l)                 The Mortgage Loan Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and

-10- 

Servicing Agreement, the Mortgage Loan Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to such dispute resolution method.

(m)             The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon any failure by the Mortgage Loan Seller to (A) pay the fees described under Section 4(k) above within sixty (60) days of written invoice by the Asset Representations Reviewer or (B) within sixty (60) days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement), provide all documents required to be delivered by it pursuant to Section 4(h) of this Agreement.

(n)               The Mortgage Loan Seller covenants with the Purchaser that if, on or prior to the later of (i) the ninetieth (90^th) day following the Closing Date and (ii) the date upon which all Certificates have been sold to parties unaffiliated with the Depositor, as a result of the occurrence of any event that occurred prior to the Closing Date with respect to the Mortgage Loans or the Mortgage Loan Seller (and the Mortgage Loan Seller hereby covenants to promptly notify the Depositor, the Underwriters and the Initial Purchasers of the occurrence of any such event to the extent it has knowledge thereof), an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to be delivered in connection with sales of the Certificates by the Underwriters, the Initial Purchasers or a dealer, in order to correct any untrue statement of a material fact or any omission to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading, or an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to comply with applicable law, the Mortgage Loan Seller shall do all things necessary (or, with respect to information relating to the Mortgage Loans, provide all information in its possession) to assist the Depositor to prepare and furnish, at the expense of the Mortgage Loan Seller (to the extent that such amendment or supplement relates to the Mortgage Loan Seller, the Mortgage Loans and/or any information describing the same, as provided by the Mortgage Loan Seller), to the Underwriters and Initial Purchasers such amendments or supplements to the Prospectus or Private Placement Memorandum as may be necessary, so that the statements in the Prospectus or Private Placement Memorandum as so amended or supplemented, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so contain an untrue statement of material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading or so that the Prospectus or Private Placement Memorandum (as so annexed or supplemented), including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so fail to comply with applicable law. All terms used in this Section 4(n) and not otherwise defined herein shall have the meaning set forth in the Indemnification Agreement. Notwithstanding the foregoing, the

-11- 

Mortgage Loan Seller shall have no affirmative obligation to monitor the performance of the Mortgage Loans or any changes in condition or circumstance of any Mortgaged Property, Mortgagor, guarantor or any of their Affiliates after the Closing Date in connection with its obligations under this Section 4(n). The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(n).

Section 5.                Notice of Breach; Cure, Repurchase and Substitution. (a) The Mortgage Loan Seller shall, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the Mortgage Loan Seller’s receipt of notice of or, if earlier, the Mortgage Loan Seller’s discovery of, a Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) the discovery by the Mortgage Loan Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at the Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable), at the applicable Purchase Price and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the General Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of Mortgage File by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the Mortgage Loan Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the General Master Servicer, the General Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material

-12- 

Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the Mortgage Loan Seller to have received the recorded document, then the Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date so long as the Mortgage Loan Seller certifies to the Trustee, the General Master Servicer, the General Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that the Material Defect is still in effect solely because of its failure to have received the recorded document and that the Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach that causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the Mortgage Loan Seller are to be remitted by wire transfer to the General Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis.

If the Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the Enforcing Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Enforcing Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4(k) above attributable to the Asset Review of such Mortgage Loan and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust. The following terms shall apply to any Loss of Value Payment: (i) prior to any agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not

-13- 

constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

The Mortgage Loan Seller’s obligation to cure any Material Defect, repurchase or substitute for any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 5 shall constitute the sole remedy available to the Purchaser in connection with a Material Defect; provided, however, that no limitation of remedy is implied with respect to the Mortgage Loan Seller’s breach of its obligation to cure, repurchase or substitute in accordance with the terms and conditions of this Agreement. It is acknowledged and agreed that the representations and warranties are being made for risk allocation purposes.

The remedies provided for in this subsection with respect to any Material Defect with respect to any Mortgage Loan shall also apply to the related REO Property.

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the General Master Servicer, the General Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4(k) above to the extent not previously paid by the Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided, that if the Breach relates to a Joint Mortgage Loan, the Mortgage Loan Seller shall only be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note(s) sold by the Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the Mortgage Loan Seller shall remit the amount of such costs and expenses to the General Special Servicer for disbursement to the applicable Persons and upon its making such remittance, the Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the Mortgage Loan Seller.

Notwithstanding anything contained in this Agreement or the Pooling and Servicing Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan under this Agreement if (i) the Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by the Purchaser or any other party to the Pooling and Servicing Agreement to provide prompt notice as required by the terms of this Agreement or the Pooling and Servicing Agreement after such party has actual knowledge of such Material Defect (it being understood that knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File), (iii) such Material Defect does

-14- 

not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage, and (iv) such delay precludes the Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable. Notwithstanding anything contained in this Agreement, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC financing statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect.

If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, the Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the Mortgage Loan Seller provides an Opinion of Counsel to the effect that such release would not cause an Adverse REMIC Event and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

(b)               Whenever one or more Qualified Substitute Mortgage Loans are substituted for a Defective Loan by the Responsible Repurchase Party as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Responsible Repurchase Party shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies or such Qualified Substitute Mortgage Loans satisfy, as the case may be, all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. No mortgage loan may be substituted for a Defective Loan as contemplated by this Section 5 if the Mortgage Loan to be replaced was itself a Qualified Substitute Mortgage Loan, in which case, absent a cure of the relevant Material Defect, the affected Mortgage Loan will be required to be repurchased as contemplated hereby. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related date of substitution, and Periodic Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after its respective Cut-off Date and on or prior to the related date of substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related date of substitution, and Periodic Payments due with respect to each corresponding Defective Loan that is purchased or repurchased, as the case may be, or replaced with one or more Qualified Substitute Mortgage Loans (any such Mortgage Loan, a “Deleted Mortgage Loan”) (if any) after the related date of substitution, shall not be part of the Trust Fund and are to be remitted by the General Master Servicer to the Responsible Repurchase Party promptly following receipt.

If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan(s) and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of one or

-15- 

more Qualified Substitute Mortgage Loans for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects.

If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply.

(c)                The Responsible Repurchase Party shall be entitled, and the Purchaser shall cause the Pooling and Servicing Agreement to entitle the Responsible Repurchase Party, upon the date when the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 has been deposited in the account designated therefor by the Trustee as the assignee of the Purchaser (or the General Master Servicer on behalf of the Trustee) and, if applicable, receipt by the Trustee as the assignee of the Purchaser (or the Custodian) of the Mortgage File for each Qualified Substitute Mortgage Loan (if any) to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by the Responsible Repurchase Party, to (i) a release of the Mortgage File and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the Deleted Mortgage Loan to the Responsible Repurchase Party or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by the Responsible Repurchase Party and are reasonably necessary to vest in the Responsible Repurchase Party or its designee the ownership of such Deleted Mortgage Loan, and (iii) the execution and delivery of notice to the affected Mortgagor of the retransfer of such Deleted Mortgage Loan. In connection with any such repurchase or substitution by the Responsible Repurchase Party, the Purchaser shall also cause the Pooling and Servicing Agreement to require each of the General Master Servicer and the General Special Servicer to deliver to the Responsible Repurchase Party or its designee, and the Responsible Repurchase Party or its designee shall be entitled to delivery from the General Master Servicer and the General Special Servicer of, any portion of the related Servicing File (as such term is defined in the Pooling and Servicing Agreement), together with any Escrow Payments, reserve funds and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the General Master Servicer or the General Special Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each case at the expense of the Responsible Repurchase Party.

(d)               [Reserved.]

(e)                The Mortgage Loan Seller acknowledges and agrees that the Purchaser shall have no liability to the Mortgage Loan Seller or otherwise for any failure of the Mortgage Loan Seller or any other party to the Pooling and Servicing Agreement to perform its obligations provided for thereunder.

(f)                The Mortgage Loan Seller (to the extent it receives any request or demand, whether oral or written, that a Mortgage Loan be repurchased or replaced, whether arising from a Material Defect or other breach of a representation or warranty, such recipient a “Seller Request Recipient” and such request or demand, a “Repurchase Request”) agrees to provide to the Purchaser: (i) written notice of any Repurchase Request, which notice will specify if such

-16- 

Repurchase Request is a 15Ga-1 Notice; (ii) written notice of (A) the existence of any dispute regarding such Repurchase Request, whether written or oral, between such Seller Request Recipient and the Person making such Repurchase Request, (B) the expiration of any applicable Initial Cure Period, or, if applicable, any Extended Cure Period, (C) the withdrawal of such Repurchase Request by the Person making such Repurchase Request, (D) the rejection of such Repurchase Request by the Seller Request Recipient and (E) the repurchase or replacement of any Mortgage Loan pursuant to this Section 5 and Section 2.03 of the Pooling and Servicing Agreement; and (iii) upon reasonable request of the Purchaser (subject to Section 5(g)), such other information in the Seller Request Recipient’s possession as would be necessary to permit the Purchaser to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase or replacement requests or demands of any Person relating to any Mortgage Loan or to comply with any other obligations applicable to it under law or regulation.

Each notice required to be delivered pursuant to this Section 5(f) may be delivered by electronic means. Each notice required to be delivered pursuant to clauses (i) and (ii) of the immediately preceding paragraph shall be given not later than the tenth (10^th) Business Day after the event giving rise to the requirement for such notice and any information requested pursuant to clause (iii) of the immediately preceding paragraph shall be provided as promptly as practicable after such request is made. Each notice required to be delivered pursuant to clause (i) of the immediately preceding paragraph shall identify (a) the date on which such Repurchase Request was made, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request by such Person. Each notice required to be delivered pursuant to clause (ii) of the immediately preceding paragraph shall identify (a) the date of such withdrawal, rejection, repurchase or replacement, or the date of the commencement of such dispute, as applicable, (b) if pertaining to a dispute, the nature of such dispute, (c) if pertaining to the expiration of an Initial Cure Period or an Extended Cure Period, the expiration date of such Initial Cure Period or, if applicable, an Extended Cure Period, (d) if pertaining to a withdrawal, the basis for such withdrawal given to the Seller Request Recipient or an indication that no basis was given by the Person withdrawing such Repurchase Request, (e) if pertaining to a rejection by the Seller Request Recipient, the basis for the Seller Request Recipient’s rejection and (f) if pertaining to a repurchase or replacement, the date of such repurchase or replacement.

(g)               The Mortgage Loan Seller and the Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing the Mortgage Loan Seller or the Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or any information protected by the attorney work product doctrine, (ii) any 15Ga-1 Notice delivered to the Mortgage Loan Seller or the Purchaser under the Pooling and Servicing Agreement is provided only to assist the Mortgage Loan Seller, the Purchaser and any of their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, (iii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided to the Mortgage Loan Seller or the Purchaser pursuant to Section 2.02(g) of the Pooling and Servicing Agreement by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement or the Pooling and

-17- 

Servicing Agreement and (iv) receipt of a 15Ga-1 Notice or delivery of any notice required to be delivered pursuant to Section 5(f) shall not in and of itself constitute delivery, or receipt, of notice of any Material Defect or knowledge on the part of the Mortgage Loan Seller or Responsible Repurchase Party of any Material Defect or admission by the Mortgage Loan Seller or Responsible Repurchase Party of the existence of any Material Defect.

(h)               The Mortgage Loan Seller shall provide to the Purchaser relevant portions of any Form ABS-15G that the Mortgage Loan Seller is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Repurchase Request with respect to any Mortgage Loan) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. Promptly upon request, the Purchaser shall provide or cause to be provided to the Mortgage Loan Seller such information regarding the principal balance of any Mortgage Loan as is necessary in order for the Mortgage Loan Seller to prepare any such Form ABS-15G.

(i)                 The Purchaser shall provide to the Mortgage Loan Seller any relevant portions of any Form ABS-15G that the Purchaser is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Mortgage Loan and that was not provided by the Mortgage Loan Seller) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. The Trust’s CIK# is 0001895567.

(j)                 Notwithstanding anything to the contrary herein, the Mortgage Loan Seller’s obligation in respect of a Material Defect with respect to a Joint Mortgage Loan shall be solely in respect of the Mortgage Loan Seller’s pro rata share of such Joint Mortgage Loan based on the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest as of the date hereof in such Joint Mortgage Loan.

(k)               If the Mortgage Note or Mortgage Notes with respect to a Joint Mortgage Loan in favor of the Mortgage Loan Seller and its successors and assigns are repurchased or replaced by the Mortgage Loan Seller pursuant to this Section 5, and any other related mortgage notes evidencing such Joint Mortgage Loan are not repurchased or replaced by any Other Mortgage Loan Seller and any such mortgage note remains in the Trust, then the Mortgage Loan Seller and the Purchaser hereby agree that (i) the provisions in Section 3.30 of the Pooling and Servicing Agreement and the related Intercreditor Agreement shall govern the servicing and administration of such Joint Mortgage Loan as if (a) the remaining mortgage notes in the Trust were collectively a “Mortgage Loan” (as defined in the Pooling and Servicing Agreement) and (b) each repurchased Mortgage Note were a Serviced Pari Passu Companion Loan (or, if the Joint Mortgage Loan was a Non-Serviced Mortgage Loan, a Non-Serviced Pari Passu Companion Loan), (ii) the Mortgage Loan Seller and its successors and assigns in respect of such repurchased or replaced Mortgage Note shall be bound by such Section 3.30 as if it were a party to the Pooling and Servicing Agreement and (iii) the Mortgage Loan Seller and its successors and assigns shall from time to time (as may be necessary) deliver to the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan documents constituting or related to any applicable Mortgage Note repurchased by it, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the related

-18- 

Mortgage Note or Mortgage or otherwise available at law or equity with respect to the related Mortgage Note.

Section 6.                Closing. The closing of the sale of the Mortgage Loans (the “Closing”) shall be held at the offices of special counsel to the Purchaser at 10:00 a.m., New York City time, on the Closing Date.

The Closing shall be subject to each of the following conditions:

(i)                 All of the representations and warranties of the Mortgage Loan Seller and the Purchaser made pursuant to Section 4 of this Agreement shall be true and correct in all material respects as of the Closing Date (or as of such other specific date expressly contemplated by any such representation or warranty);

(ii)               All documents specified in Section 7 of this Agreement (the “Closing Documents”), in such forms as are agreed upon and reasonably acceptable to the Purchaser and, in the case of the Pooling and Servicing Agreement (insofar as such agreement affects the obligations of the Mortgage Loan Seller hereunder or the rights of the Mortgage Loan Seller as a third party beneficiary thereunder), to the Mortgage Loan Seller, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof;

(iii)             The Mortgage Loan Seller shall have delivered and released to the Purchaser or its designee, all documents, funds and other assets required to be delivered thereto on or before the Closing Date pursuant to Section 2 of this Agreement;

(iv)             The result of any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans performed by or on behalf of the Purchaser pursuant to Section 3 hereof shall be satisfactory to the Purchaser in its reasonable determination;

(v)               All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with in all material respects, and the Mortgage Loan Seller shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed by it after the Closing Date;

(vi)             The Mortgage Loan Seller shall have paid all fees and expenses payable by it to the Purchaser or otherwise pursuant to this Agreement;

(vii)           The Mortgage Loan Seller shall have received the purchase price for the Mortgage Loans, as contemplated by Section 1 of this Agreement;

(viii)         Neither the Underwriting Agreement nor the Certificate Purchase Agreement shall have been terminated in accordance with its terms;

(ix)             The Commission shall not have issued any stop order suspending the effectiveness of the Purchaser’s Registration Statement; and

-19- 

(x)               Prior to the delivery of the Preliminary Prospectus to investors, an officer of the Mortgage Loan Seller shall have delivered to the Depositor a sub-certification to the certification provided by the Chief Executive Officer of the Depositor to the Securities and Exchange Commission pursuant to Regulation AB.

Each of the parties agrees to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date.

Section 7.                Closing Documents. The Purchaser or its designee shall have received all of the following Closing Documents, in such forms as are agreed upon and acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the Rating Agencies (collectively, the “Interested Parties”), and upon which the Interested Parties may rely:

(i)                 This Agreement, duly executed by the Purchaser and the Mortgage Loan Seller;

(ii)               Each of the Pooling and Servicing Agreement and the Indemnification Agreement, duly executed by the respective parties thereto;

(iii)             A Secretary’s Certificate substantially in the form of Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the Mortgage Loan Seller, in his or her individual capacity, and dated the Closing Date, and upon which the Interested Parties may rely, attaching thereto as exhibits (A) the resolutions of the board of directors of the Mortgage Loan Seller authorizing the Mortgage Loan Seller’s entering into the transactions contemplated by this Agreement and the Indemnification Agreement, and (B) the organizational documents of the Mortgage Loan Seller;

(iv)             A certificate of good standing with respect to the Mortgage Loan Seller issued by the Office of the Comptroller of the Currency of the United States not earlier than thirty (30) days prior to the Closing Date, and upon which the Interested Parties may rely;

(v)               A certificate of the Mortgage Loan Seller substantially in the form of Exhibit D-2 hereto, executed by an executive officer of the Mortgage Loan Seller on the Mortgage Loan Seller’s behalf and dated the Closing Date, and upon which the Interested Parties may rely;

(vi)             A written opinion of in-house or independent counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the Mortgage Loan Seller’s due authorization, execution and delivery of this Agreement and the Indemnification Agreement;

(vii)           A written opinion of special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the enforceability of this Agreement against the Mortgage Loan Seller;

-20- 

(viii)         A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser, the Underwriters (only with respect to the Preliminary Prospectus) and the Initial Purchasers (only with respect to the Preliminary Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Preliminary Prospectus and in the Preliminary Private Placement Memorandum (as the same may be amended or supplemented on or before the pricing date for the Certificates) substantially to the effect that nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Preliminary Prospectus or the Preliminary Private Placement Memorandum, at the time when sales to purchasers of the Certificates were first made, contained, with respect to the Mortgage Loan Seller or the Mortgage Loans, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading;

(ix)             A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser (only with respect to the Private Placement Memorandum), the Underwriters (only with respect to the Prospectus) and the Initial Purchasers (only with respect to the Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Prospectus and the Private Placement Memorandum (as the case may be and as the same may be amended or supplemented on or before the Closing Date) substantially to the effect that (a) nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Prospectus or the Private Placement Memorandum (as applicable) as of the date thereof or as of the Closing Date contained or contains, with respect to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) that, with respect to information regarding the Mortgage Loan Seller and the Mortgage Loans, the related borrowers or the related Mortgaged Properties, the Prospectus is appropriately responsive in all material respects to the applicable requirements of Regulation AB;

(x)               Copies of all other opinions rendered by counsel for the Mortgage Loan Seller to the Rating Agencies in connection with the transactions contemplated by this Agreement, including, but not limited to, with respect to the characterization of the transfer of the Mortgage Loans hereunder as a true sale, with each such opinion to be addressed to the other Interested Parties and the Trustee or accompanied by a letter signed by such counsel stating that the other Interested Parties and the Trustee may rely on such opinion as if it were addressed to them as of the date thereof;

(xi)             One or more agreed-upon procedures letters from a nationally recognized firm of certified public accountants acceptable to the Underwriters and the Initial Purchasers, dated (A) the date of the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and (B) the date of the Prospectus and the Private

-21- 

Placement Memorandum, respectively, and addressed to, and in form and substance acceptable to, the Interested Parties (other than the Rating Agencies), stating in effect that, using the assumptions and methodology used by the Mortgage Loan Seller, the Purchaser, the Underwriters or the Initial Purchasers, as applicable, all of which shall be described in such letters, and which shall include a comparison of certain mortgage loan-related documents to the information set forth in the Master Tape (as defined in the Indemnification Agreement), they have recalculated such numbers and percentages relating to the Mortgage Loans set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and set forth in the Prospectus and the Private Placement Memorandum, respectively, and have compared the results of their calculations to the corresponding items in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, and found each such number and percentage set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, to be in agreement with the results of such calculations;

(xii)           If any of the Certificates are “mortgage related securities” within the meaning of the Secondary Mortgage Market Enhancement Act of 1984, as amended, a certificate of the Mortgage Loan Seller regarding origination of the Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the Exchange Act; and

(xiii)         Such further certificates, opinions and documents as the Purchaser may reasonably request or any Rating Agency may require.

Section 8.                Additional Reporting Under Regulation AB. With respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall provide to the Purchaser and the Certificate Administrator any information that constitutes “Additional Form 10-D Information” or “Additional Form 10-K Information” but only if and to the extent that the Mortgage Loan Seller (or any originator of the Mortgage Loans sold by the Mortgage Loan Seller to the Depositor, if such originator constitutes an “originator” contemplated by Item 1110(b) of Regulation AB and such information is required to be reported with respect to such originator) is the applicable “Party Responsible” (solely in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) under the terms of Exhibit AA or Exhibit BB to the Pooling and Servicing Agreement (it being acknowledged that the Mortgage Loan Seller (solely as in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) does not constitute the “Party Responsible” for any “Form 8-K Information” set forth on Exhibit CC of the Pooling and Servicing Agreement). In each case, such delivery shall be made in a form readily convertible to an EDGAR compatible form, or in such other form as otherwise agreed by the Purchaser, the Certificate Administrator and the Mortgage Loan Seller. In each case, such delivery shall be made not later than five (5) calendar days after the related Distribution Date (in the case of any such “Additional Form 10-D Information”), and no later than March 1 of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements (in the case of any such “Additional Form 10-K Information”). In no event shall the Mortgage Loan Seller be required to provide any information that is not required to be reported on Form 10-D or Form 10-K,

-22- 

as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder.

In addition, with respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall reasonably cooperate with each of the Depositor, the applicable General Master Servicer and the Certificate Administrator, upon the reasonable request of such party, by providing all Mortgage Loan-related documents, data and information in the possession of the Mortgage Loan Seller at or prior to the Closing Date and on the date of the request and necessary for the ongoing compliance by the Depositor and the Trust with the requirements of Form 10-D with respect to Items 1111 and 1125 of Regulation AB; provided that the Mortgage Loan Seller shall not be required to provide any documents that are proprietary to the related originator or the Mortgage Loan Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis.

Section 9.                Costs. Whether or not this Agreement is terminated, the Mortgage Loan Seller will pay its pro rata share (the Mortgage Loan Seller’s pro rata portion to be determined according to the percentage that the aggregate Cut-off Date Balance of all the Mortgage Loans represents as to the aggregate Cut-off Date Balance of all the mortgage loans of the Trust Fund (the “Cut-off Date Pool Balance”)) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented set-up fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm of certified public accountants selected by the Purchaser and the Mortgage Loan Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item), including the cost of obtaining any agreed-upon procedures letters with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering this Agreement and the furnishing to the Underwriters or the Initial Purchasers, as applicable, of such copies of the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item) and this Agreement as the Underwriters and the Initial Purchasers may reasonably request; (viii) the fees of the rating agency or agencies engaged to consider rating the Certificates or hired and requested to rate the Certificates; (ix) all registration fees incurred by the Purchaser in connection with the filing of its Registration Statement allocable to the issuance of the Registered Certificates; (x) the upfront fee payable to the Asset Representations Reviewer on the Closing Date in the amount agreed by the parties hereto; and (xi) the reasonable fees and expenses of special counsel to the Purchaser.

-23- 

Section 10.            Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered to or mailed, by registered mail, postage prepaid, by overnight mail or courier service, or transmitted by facsimile and confirmed by similar mailed writing, if to the Purchaser, addressed to the Purchaser at Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com), or such other address as may be designated by the Purchaser to the Mortgage Loan Seller in writing; or, if to the Mortgage Loan Seller, addressed to Bank of America, National Association, One Bryant Park, Mail Code: NY1-100-11-07, New York, New York 10036, Attention: Director of CMBS Securitization, email: leland.f.bunch@bofa.com (with copies to Todd Stillerman, Esq., Associate General Counsel & Director, Bank of America Legal Department, 150 North College Street, Mail Code: NC1-028-24-02, Charlotte, North Carolina 28255, email: todd.stillerman@bofa.com and cmbsnotices@bofa.com, and Joshua J. Yablonski, Esq., Katten Muchin Rosenman LLP, 550 S. Tryon Street, Suite 2900, Charlotte, North Carolina 28202, email: joshua.yablonski@katten.com), or such other address as may be designated by the Mortgage Loan Seller to the Purchaser in writing.

Section 11.            Miscellaneous. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by a writing signed by a duly authorized officer of the party against whom enforcement of such change, waiver, discharge or termination is sought to be enforced. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and no other person will have any right or obligation hereunder. The Mortgage Loan Seller shall be an express third party beneficiary to the Pooling and Servicing Agreement to the extent set forth therein. The Asset Representations Reviewer shall be an express third party beneficiary of Sections 4(i), 4(j), and 4(k) of this Agreement.

Section 12.            Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, incorporated herein

-24- 

by reference or contained in the certificates of officers of the Mortgage Loan Seller delivered pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser and by the Purchaser to the Trust, notwithstanding any restrictive or qualified endorsement or assignment in respect of any Mortgage Loan.

Section 13.            Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable in any particular jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.

Section 14.            Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THE AGREEMENT, THE RELATIONSHIP OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING REGARDING SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, WITH RESPECT TO SUCH COURTS, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.

Section 15.            Further Assurances. The Mortgage Loan Seller and the Purchaser each agrees to execute and deliver such instruments and take such further actions as any other party hereto may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of this Agreement.

-25- 

Section 16.            Successors and Assigns. The rights and obligations of the Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage Loan Seller without the prior written consent of the Purchaser, except that any person into which the Mortgage Loan Seller may be merged or consolidated, or any person resulting from any merger, conversion or consolidation to which the Mortgage Loan Seller is a party, or any person succeeding to all or substantially all of the business of the Mortgage Loan Seller, shall be the successor to the Mortgage Loan Seller hereunder. In connection with its transfer of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the Purchaser is expressly authorized to assign its rights under this Agreement, in whole or in part, to the Trustee for the benefit of the registered holders and beneficial owners of the Certificates. To the extent of any such assignment, the Trustee, for the benefit of the registered holders and beneficial owners of the Certificates, shall be the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and their respective successors and permitted assigns.

Section 17.            Information. The Mortgage Loan Seller shall provide the Purchaser with such information about itself, the Mortgage Loans and the underwriting and servicing procedures applicable to the Mortgage Loans as is (i) required under the provisions of Regulation AB, (ii) required by a Rating Agency or a governmental agency or body or (iii) reasonably requested by the Purchaser for use in a private disclosure document.

Section 18.            Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the matters addressed herein, and this Agreement supersedes any prior agreements and/or understandings, written or oral, with respect to such matters; provided, however, that in no event shall this provision be construed to limit the effect of the Indemnification Agreement or the memorandum of understanding dated as of December 1, 2021 between the Mortgage Loan Seller, the Purchaser and certain other parties or any separate acknowledgments and agreements executed and delivered pursuant to such memorandum of understanding.

Section 19.            Recognition of U.S. Special Resolution Regimes.

(a)                In the event a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) were governed by the laws of the United States of America or a State of the United States of America.

(b)               In the event that a Covered Party or any BHC Affiliate of such Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Right under this Agreement that may be exercised against such Covered Party is permitted to be exercised to no greater extent than such Default Right could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States of America or a State of the United States of America.

-26- 

“BHC Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §1841(k).

“Covered Party” means any party to this Agreement that is one of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b), or any subsidiary of such a covered bank to which 12 C.F.R. Part 47 applies in accordance with 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

Section 20.            Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings.

(a)                Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 19, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable.

(b)               After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

[SIGNATURE PAGE FOLLOWS]

-27- 

IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

	BANK OF AMERICA, NATIONAL ASSOCIATION
	By:	/s/ Leland F. Bunch, III
		Name:  Leland F. Bunch, III
		Title:  Managing Director
	MORGAN STANLEY CAPITAL I INC.
	By:	/s/ Jane Lam
		Name:   Jane Lam
		Title:  President

BANK 2021-BNK38 – Mortgage Loan Purchase Agreement (BANA)

 

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

Exh. A-1

BANK 2021-BNK38
Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
1	BANA	One North Wacker	$72,000,000	1 North Wacker Drive	Chicago	IL	9/10/2021	10/1/2031	2.7185%	120	118	0	No	0.000000%	0.002500%	0.002500%
3	BANA	CX - 350 & 450 Water Street	$55,000,000	350 and 450 Water Street	Cambridge	MA	10/14/2021	11/6/2031	2.7920%	120	119	0	Yes	0.000000%	0.006000%	0.002500%
12.00	BANA	Oregon Self Storage Portfolio	$18,000,000	Various	Various	OR	11/2/2021	12/1/2028	3.3070%	84	84	0	No	0.002500%	0.000000%	0.002500%
12.01	BANA	Pad-N-Lock Mini Storage	$5,334,545	597 & 633 Shelley Street	Springfield	OR
12.02	BANA	All Your Treasures Mini Storage	$5,190,545	2520 West Main Street	Medford	OR
12.03	BANA	Airport Mini Storage	$4,699,636	3030 Bullock Road	Medford	OR
12.04	BANA	Skypark Mini Storage	$2,775,273	1620 & 1630 Sky Park Drive	Medford	OR
20.00	BANA	Red Hill Self Storage Portfolio	$9,000,000	Various	Various	PA	11/12/2021	12/1/2031	3.3600%	120	120	0	No	0.002500%	0.000000%	0.002500%
20.01	BANA	Hilltop Self Storage	$7,567,055	2650 Carlisle Pike	New Oxford	PA
20.02	BANA	Littlestown Self Storage	$1,432,946	4835 Baltimore Pike	Littlestown	PA
21	BANA	Capo Surf Center	$8,600,000	34700 Pacific Coast Highway	Dana Point	CA	10/29/2021	11/1/2031	3.1510%	120	119	0	No	0.002500%	0.000000%	0.002500%
22	BANA	Guardian Self Storage – Frederick, CO	$8,150,000	9051 Bruin Boulevard	Frederick	CO	11/18/2021	12/1/2031	3.9400%	120	120	0	No	0.002500%	0.000000%	0.002500%
24	BANA	71 Fuller Road	$7,920,000	71-95 Fuller Road	Albany	NY	11/17/2021	12/1/2031	3.2350%	120	120	0	No	0.002500%	0.000000%	0.002500%
25	BANA	112 Greene Street	$7,800,000	112 Greene Street	New York	NY	11/12/2021	12/1/2031	3.5900%	120	120	0	No	0.002500%	0.000000%	0.002500%
26.00	BANA	Mississippi Self Storage Portfolio	$7,120,000	Various	Various	MS	11/30/2021	12/1/2031	3.7150%	120	120	360	No	0.002500%	0.000000%	0.002500%
26.01	BANA	Mini Storage - North	$4,814,964	3307 Highway 11 North	Picayune	MS
26.02	BANA	Mini Storage – Carriere	$1,417,170	7174 Highway 11 North	Carriere	MS
26.03	BANA	Mini Storage – South	$529,305	1309 US Highway 11	Picayune	MS
26.04	BANA	Mini-Storage - Union	$358,561	1288 West Union Road	Picayune	MS
27	BANA	Raymour & Flanigan Quakertown Warehouse	$7,100,000	125 Penn Am Drive	Quakertown	PA	11/4/2021	12/1/2031	3.2490%	120	120	0	No	0.002500%	0.000000%	0.002500%
33.00	BANA	Fenton Self Storage Portfolio	$6,000,000	Various	Fenton	MI	11/4/2021	12/1/2031	3.8450%	120	120	360	No	0.002500%	0.000000%	0.002500%
33.01	BANA	Citizen Storage – Fenton South	$4,273,084	3144 Copper Avenue	Fenton	MI
33.02	BANA	Citizen Storage – Fenton North (Satellite)	$1,726,916	1159 North Leroy Street	Fenton	MI
40	BANA	Coolidge Hill Road Apartments	$4,010,000	39-47 Coolidge Hill Road	Watertown	MA	11/19/2021	12/1/2031	3.7680%	120	120	0	No	0.002500%	0.000000%	0.002500%
47	BANA	South Whitney Multifamily Portfolio	$2,700,000	150-154 South Whitney Street, 149-151 Sisson Avenue, 28-30 Kibbe Street and 63-65 Evergreen Avenue	Hartford	CT	11/24/2021	12/1/2031	3.6500%	120	120	0	No	0.002500%	0.000000%	0.002500%
55	BANA	Able Self Storage – Pearland, TX	$2,000,000	17215 Pearland Sites Road	Pearland	TX	11/23/2021	12/1/2031	4.4300%	120	120	0	No	0.002500%	0.000000%	0.002500%
56	BANA	Texas Bear Creek Self Storage – New Braunfels, TX	$2,000,000	1936 Farm to Market 2722	New Braunfels	TX	11/23/2021	12/1/2031	4.1200%	120	120	0	No	0.002500%	0.000000%	0.002500%

EXHIBIT B-1

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER

The Mortgage Loan Seller hereby represents and warrants that, as of the date hereof:

(a)                The Mortgage Loan Seller is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America.

(b)               The Mortgage Loan Seller’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Mortgage Loan Seller’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Mortgage Loan Seller, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(c)                The Mortgage Loan Seller has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(d)               This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in accordance with the terms hereof, subject to (A) applicable bankruptcy, fraudulent transfer, insolvency, reorganization, receivership, moratorium, liquidation, conservatorship and other laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (C) public policy considerations.

(e)                The Mortgage Loan Seller is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(f)                No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Mortgage Loan Seller of the transactions contemplated herein, except for (A) those consents, approvals, authorizations or orders that previously have been obtained and (B) those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.

Exh. B-1-1

(g)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Mortgage Loan Seller’s knowledge, threatened against the Mortgage Loan Seller that, if determined adversely to the Mortgage Loan Seller, would prohibit the Mortgage Loan Seller from entering into this Agreement or that, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(h)               The transfer of the Mortgage Loans to the Purchaser as contemplated herein is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.

(i)                 The Mortgage Loan Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud its present or future creditors.

(j)                 The Mortgage Loan Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser, as contemplated herein.

(k)               After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Mortgage Loan Seller’s assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Mortgage Loan Seller’s debts and obligations, including contingent and unliquidated debts and obligations of the Mortgage Loan Seller, and the Mortgage Loan Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business.

(l)                 The Mortgage Loan Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.

(m)             No proceedings looking toward liquidation, dissolution or bankruptcy of the Mortgage Loan Seller are pending or contemplated.

(n)               The principal place of business and chief executive office of the Mortgage Loan Seller is located in the State of North Carolina.

(o)               The consideration received by the Mortgage Loan Seller upon the sale of the Mortgage Loans constitutes at least fair consideration and reasonably equivalent value for such Mortgage Loans.

 

Exh. B-1-2

EXHIBIT B-2

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER

The Purchaser hereby represents and warrants that, as of the date hereof:

(a)                The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b)               The Purchaser’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Purchaser’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Purchaser, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(c)                This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.

(d)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Purchaser’s knowledge, threatened against the Purchaser that, if determined adversely to the Purchaser, would prohibit the Purchaser from entering into this Agreement or that, in the Purchaser’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Purchaser to perform its obligations under this Agreement.

(e)                The Purchaser has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(f)                The Purchaser is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Purchaser’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(g)               The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, and any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the final draft of each such Form 15G to MS&Co. at least six (6) business days before the first sale

Exh. B-2-1

in the offering contemplated by the Prospectus and Private Placement Memorandum; and (C) furnished each such Form 15G to the Commission on EDGAR at least five (5) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum as required by Rule 15Ga-2.

(h)               The Purchaser has not dealt with any broker, investment banker, agent or other person, other than the Mortgage Loan Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.

 

Exh. B-2-2

EXHIBIT C

MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

For purposes of this Exhibit C, the phrases “the Mortgage Loan Seller’s knowledge” or “the Mortgage Loan Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth below, the actual state of knowledge or belief of the Mortgage Loan Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth below in each case without having conducted any independent inquiry into such matters and without any obligation to have done so (except (i) having sent to the servicers servicing the Mortgage Loans on behalf of the Mortgage Loan Seller, if any, specific inquiries regarding the matters referred to and (ii) as expressly set forth herein). All information contained in documents which are part of or required to be part of a Mortgage File, as specified in the Pooling and Servicing Agreement (to the extent such documents exist) shall be deemed within the Mortgage Loan Seller’s knowledge.

The Mortgage Loan Seller hereby represents and warrants that, as of the date herein below specified or, if no such date is specified, as of the date hereof, except with respect to the Exceptions described on Schedule C to this Agreement.

1.                  Intentionally Omitted.

2.                  Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan. At the time of the sale, transfer and assignment to the Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement. The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.

3.                  Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws

Exh. C-1

affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or Prepayment Premium/Yield Maintenance Charge) may be further limited or rendered unenforceable by applicable law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).

Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.

4.                  Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.

5.                  Intentionally Omitted.

6.                  Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a) (1) there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver, or modification relates to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan. With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.

Exh. C-2

7.                  Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its Affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph 8 below (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

8.                  Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or principal use of the Mortgaged Property, the

Exh. C-3

security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon. Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.

9.                  Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of the representation in paragraph (7) above), and equipment and other personal property financing. The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1.

10.              Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related Assignment of Leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

11.              Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1 financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage

Exh. C-4

Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

12.              Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date.

An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.

13.              Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.

14.              Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.

15.              Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in paragraph 8), an engineering

Exh. C-5

report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.

16.              Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the Depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related Non-Serviced Depositor or Non-Serviced Master Servicer for the related Non-Serviced Trust).

17.              No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).

18.              Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the Insurance Ratings Requirements (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.

“Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings (“S&P”) or (2) the Syndicate Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such

Exh. C-6

syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s, and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s.

Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months).

If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property.

If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements.

The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.

An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of

Exh. C-7

such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained from an insurer or insurers meeting the Insurance Ratings Requirements (provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”) in an amount not less than 100% of the PML.

The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.

All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.

19.              Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in paragraph 8) and survey, if any, an engineering report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an

Exh. C-8

amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created.

20.              No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property: (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.

21.              No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.

22.              REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not

Exh. C-9

be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). Any Prepayment Premiums and Yield Maintenance Charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.

23.              Compliance with Usury Laws. The mortgage rate (exclusive of any default interest, late charges, Yield Maintenance Charge or Prepayment Premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

24.              Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.

25.              Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.

26.              Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-conforming use or structure, or (d) the inability to restore the Mortgaged

Exh. C-10

Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.

27.              Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan. The Mortgage Loan documents require the related Mortgagor to comply in all material respects with all applicable regulations, zoning and building laws.

28.              Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii)  breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).

29.              Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial

Exh. C-11

defeasance (as described in paragraph 34) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in paragraph 34 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions.

In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans).

No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.

30.              Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by

Exh. C-12

residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.

31.              Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Ratings Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.

32.              Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case, a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor, (iv) Transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1, or future permitted mezzanine debt as set forth on Exhibit C-32-2, or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate

Exh. C-13

debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.

33.              Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Each Mortgage Loan with a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

34.              Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the defeasance collateral are required to be assumed by a Single-

Exh. C-14

Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.

35.              Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.

36.              Ground Leases. For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner.

With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that:

(A)             The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease has occurred since its recordation, except by any written instruments which are included in the related Mortgage File;

(B)              The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;

(C)              The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);

Exh. C-15

(D)             The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject;

(E)              Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid);

(F)               The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;

(G)             The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;

(H)             A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;

(I)                The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization;

(J)                Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or

Exh. C-16

restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;

(K)             In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and

(L)              Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.

37.              Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.

38.              Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit C.

39.              Intentionally Omitted.

40.              No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in this Exhibit C. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.

Exh. C-17

41.              Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.

42.              Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan. An “Affiliate” for purposes of this paragraph (42) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.

43.              Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no

Exh. C-18

Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.

44.              Intentionally Omitted.

45.              Appraisal. The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date. The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

46.              Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.

47.              Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.

48.              Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date.

49.              Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.

For purposes of this Exhibit C, “Mortgagee” means the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party.

For purposes of this Exhibit C, “Mortgagor” means the obligor or obligors on a Mortgage Note, including without limitation, any person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure,

Exh. C-19

the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

Exh. C-20

Exhibit C-32-1

List of Mortgage Loans with Current Mezzanine Debt

None.

Exh. C-32-1-1

Exhibit C-32-2

List of Mortgage Loans with Permitted Mezzanine Debt

Mortgage Loan Number	Mortgage Loan Name
12	Oregon Self Storage Portfolio

Exh. C-32-2-1

Exhibit C-32-3

List of Cross-Collateralized and Cross-Defaulted Mortgage Loans

None.

Exh. C-32-3-1

Exhibit C-32-4

List of Mortgage Loans with Affiliated Mortgagors

Mortgage Loan Number	Mortgage Loan Name
55	Able Self Storage – Pearland, TX
56	Texas Bear Creek Self Storage – New Braunfels, TX

Exh. C-32-4-1

SCHEDULE C

EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

The exceptions to the representations and warranties set forth below are listed by the number of the related representation and warranty set forth on Exhibit C and the mortgage loan name and number identified on Exhibit A. Capitalized terms used but not otherwise defined in this Schedule C shall have the meanings set forth in Exhibit C or, if not defined therein, in this Agreement.

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
7	71 Fuller Road (Loan No. 24)	With respect to the related Mortgaged Property, according to the related Mortgagor, a past one-time potential tenant obtained a form lease from the related Mortgagor for consideration of tenancy for a portion of such Mortgaged Property.  The form lease that was provided included a sample right of first refusal document as an exhibit.  The potential tenant executed that exhibit, filled it out, fraudulently signed the form with the Mortgagor’s name and had it notarized and filed without the Mortgagor’s knowledge or consent to the claimed right of refusal  to purchase (“Claimed ROFR”).  The related potential tenancy never came to fruition and the Mortgagor intends to bring suit against the potential tenant to quiet title on grounds of fraud or, alternatively, on grounds that since the potential tenancy never occurred, there was no consideration given for the Claimed ROFR.  Even if the Claimed ROFR is enforceable, by its own terms, the response time of the tenant for a sale is limited to 30 days and such Claimed ROFR would not be applicable in the instance of a foreclosure or a deed-in-lieu of foreclosure (however, such Claimed ROFR would apply to subsequent transfers of such Mortgaged Property following a foreclosure or deed-in-lieu of foreclosure).
7	South Whitney Multifamily Portfolio (Loan No. 47)	The related condominium association has a right of first refusal with respect to such  Mortgaged Property, however, (A) such right of first refusal would not be applicable in the instance of a foreclosure or a deed-in-lieu of foreclosure (however, such right of first refusal would apply to subsequent transfers of such Mortgaged Property following a foreclosure or deed-in-lieu of foreclosure) and (B) the related Mortgagor controls all of the condominium units and all of the condominium units and their related rights are subject to the lien of the related Mortgage. The related Mortgage Loan documents restrict the Mortgagor from allowing the condominium association to exercise such right of first refusal without the lender’s consent.
15	112 Greene Street (Loan No. 25)	In November 2020, Ben Ashkenazy and related entities filed suit against Raymond Gindi (the guarantor and environmental guarantor for the related Mortgage Loan), related entities and certain members of Raymond Gindi’s family.  Ben Ashkenazy and the other plaintiffs have alleged several claims of breach of contract, breach of implied covenant of good faith and fair dealing and breach of fiduciary duty in relation to various capital calls with respect to plaintiff managed properties that were made to fund cash flow shortfalls caused by the COVID-19 pandemic so as to avoid loan defaults, foreclosure, and tax liens, etc.  Additionally, Ben Ashkenazy and other

Sch. C-1

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		plaintiffs also filed two defamation claims against Raymond Gindi’s family in connection with alleged dissemination of false claims that Ben Ashkenazy and the other plaintiffs stole millions of dollars (publicized such disputes) and sent harassing requests for documents and information. For the defamation claims, Ben Ashkenazy and the other plaintiffs are seeking millions in monetary damages for lost revenue and profits, increased expenses, legal fees, costs expended to mitigate impact, plus punitive damages as the statements were allegedly made knowingly (such claims do not specify the economic damage suffered). For the breach of contract, breach of implied covenant of good faith and fair dealing and breach of fiduciary duty claims Ben Ashkenazy and the other plaintiffs are requesting an award in an amount to be determined at trial. Raymond Gindi, related entities and certain members of Raymond Gindi’s family have countersued with thirty-eight causes of action and filed for motions of summary judgement against all claims except the defamation claims. None of the foregoing claims relate directly to the Mortgaged Property. In addition, Raymond Gindi’s aggregate stated net worth is such that such claims would not be expected to have a material impact thereon. We cannot assure you that such litigation will not be adversely adjudicated, or that there will not be any adverse effects on Raymond Gindi (as guarantor and environmental indemnitor for such Mortgage Loan) or the related borrower (due to the involvement of Raymond Gindi and Ben Ashkenazy as well as entities and family members related to each in the ownership structure for such Mortgage Loan) as a result of such adjudication.
18	All Bank of America Mortgage Loans (Loan Nos. 1, 3, 12, 20, 21, 22, 24, 25, 26, 27, 33, 40, 47, 55 and 56)	All exceptions to Representation 31 set forth below for all Bank of America mortgage loans are also exceptions to this Representation 17.
18	One North Wacker (Loan No. 1)	The related Whole Loan agreement permits no deductible for property insurance in excess of $1,500,000 (excluding windstorm and earthquake insurance which may have a deductible of 5% of the total insurable value). With respect to multi-layered policies, the related Whole Loan documents permit coverage with more than one insurance company as follows: (A) if four or fewer insurance companies issue the policies, then (1) at least 75% of the insurance coverage represented by the policies must be issued by insurance companies who are qualified insurers, with no carrier having a claims paying ability rating below “BBB” by S&P (and the equivalent by Fitch if Fitch rates the insurance company or Moody’s if Moody’s rates the carrier) and (2) the primary insurance carriers must have a rating of “A:VIII” or better by A.M. Best and “A-” or better by S&P; or (B) if five or more insurance companies issue the Policies, then (1) at least 60% of the insurance coverage represented by the policies must be provided by insurance companies who are Qualified Insurers, with no carrier having a claims paying ability rating below “BBB” by S&P (and the equivalent by Fitch if Fitch rates the carrier and Moody’s if Moody’s rates the carrier) and (2) the primary insurance carriers must have a rating of “A:VIII” or better by A.M. Best and “A-” or better by S&P.

Sch. C-2

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
18	CX - 350 & 450 Water Street (Loan No. 3)	With respect to multi-layered policies, the related Whole Loan documents permit coverage with more than one insurance company as follows: (A) if four (4) or fewer insurance companies issue the policies, then at least 75% of the insurance coverage represented by the policies must be provided by insurance companies with a rating of “A” or better by S&P and “A2” or better by Moody’s, to the extent Moody’s rates the Certificates and rates the applicable insurance company, and “A” or better by Fitch, to the extent Fitch rates the Certificates and rates the applicable insurance company, with no carrier below “BBB” by S&P and “Baa2” by Moody’s, to the extent Moody’s rates the Certificates and rates the applicable insurance company, and “BBB” by Fitch, to the extent Fitch rates the Certificates and rates the applicable insurance company, or (B) if five (5) or more insurance companies issue the policies, then at least 60% of the insurance coverage represented by the policies must be provided by insurance companies with a rating of “A” or better by S&P and “A2” or better by Moody’s, to the extent Moody’s rates the Certificates and rates the applicable insurance company, and “A” or better by Fitch, to the extent Fitch rates the Certificates and rates the applicable insurance company, with no carrier below “BBB” by S&P and “Baa2” by Moody’s, to the extent Moody’s rates the Certificates and rates the applicable insurance company, and “BBB” by Fitch, to the extent Fitch rates the Certificates and rates the applicable insurance company. In addition, the related Mortgage Loan documents require the Mortgagee to accept Starr Surplus Lines Insurance Company, rated “A:XV” with Best’s Insurance Reports as the insurer for the liability coverage, for so long as the rating of such insurer is not withdrawn or downgraded below such rating and, in the event such insurer's rating is withdrawn or downgraded below such rating, the related Mortgagor must promptly notify the Mortgagee and replace such insurer with an insurer meeting the rating requirements set forth in the related Mortgage Loan documents.
18	CX - 350 & 450 Water Street (Loan No. 3)	The related Mortgage Loan documents provide that the threshold at which the lender retains the right to hold and disburse insurance proceeds to be applied for repair or restoration is, with respect to each individual Mortgaged Property, an amount equal to 3% of the “Allocated Loan Amount” (as set forth in the related Mortgage Loan agreement) rather than of 5% of the then outstanding principal amount of the related Whole Loan.
18	Oregon Self Storage Portfolio (Loan No. 12)	In addition, the related Mortgage Loan documents permit the Mortgagor to maintain any policies required under the Mortgage Loan documents with Nova Casualty Insurance Company, which, as of the origination date was rated “A XV” by Alfred M. Best Company, Inc. and was not rated with S&P; provided that (i) if such rating is withdrawn or downgraded below “A XV” by Alfred M. Best Company, Inc., then the Mortgagor promptly replace Nova Casualty Insurance Company with another insurer which meets the rating requirements set forth in the immediately preceding sentence and (ii) on or before the expiration date of the current policies’ term (which expiration occurs on September 30, 2022), the Mortgagor is required to replace Nova Casualty Insurance Company with another insurer which meets the rating requirements set forth in the related Mortgage Loan documents.

Sch. C-3

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
18	Capo Surf Center (Loan No. 21)	The threshold for lender having the right to hold and disburse insurance proceeds is $430,000.
18	Guardian Self Storage - Frederick, CO (Loan No. 22)	With respect to multi-layered policies, the related Mortgage Loan documents permit coverage with more than one insurance company as follows: (A) if four (4) or fewer insurance companies issue the insurance policies in the first layer of coverage, then at least 75% of the insured amount must be provided by insurance companies with a claims paying ability rating of “A-” or better by S&P (and the equivalent ratings for Moody’s, Fitch and DBRS to the extent each such Rating Agency rates the insurance company and is rating the Certificates), with no remaining carrier below “BBB” by S&P or (B) if five (5) or more insurance companies issue the insurance policies in the first layer of coverage, then at least 60% of the insured amount must be provided by insurance companies with a claims paying ability rating of “A-” or better by S&P (and the equivalent ratings for Moody’s, Fitch and DBRS to the extent each such Rating Agency rates the insurance company and is rating the Certificates), with no remaining carrier below “BBB” by S&P.
18	71 Fuller Road (Loan No. 24)	In addition, the related Mortgage Loan documents permit the Mortgagor to maintain any policies required under the Mortgage Loan documents with Trisura Specialty Insurance Company, which, as of the origination date was rated “A- VIII” by Alfred M. Best Company, Inc. and was not rated with S&P; provided that (i) if such rating is withdrawn or downgraded below “A- VIII” by Alfred M. Best Company, Inc., then the Mortgagor promptly replace Trisura Specialty Insurance Company with another insurer which meets the rating requirements set forth in the immediately preceding sentence and (ii) on or before the expiration date of the current policies’ term (which expiration occurs on February 28, 2022), the Mortgagor is required to replace Trisura Specialty Insurance Company with another insurer which meets the rating requirements set forth in the related Mortgage Loan documents.
18	112 Greene Street (Loan No. 25)	The related Mortgaged Property consists of the leasehold interest in the ground floor and basement retail cooperative unit in a building owned by a non-borrower cooperative. The property insurance for such building was obtained through a policy maintained by the cooperative. The related Mortgagor has separate contingent insurance for the Mortgaged Property.
18	Raymour & Flanigan Quakertown Warehouse (Loan No. 27)	With respect to multi-layered policies, the related Whole Loan documents permit coverage with more than one insurance company as follows: if five (5) or more insurance companies issue the policies under the total insurance program, the first layer primary coverage must all be rated “A-” by S&P, and at least 60% of the total limit of insurance of the property insurance program must be provided by insurance companies with a claims paying ability of “A-” or better by S&P (and the equivalent ratings for Moody's, Fitch and DBRS to the extent each such rating agency rates the insurance company and is rating the Certificates). The remaining excess insurers are required to have an insurer rating of at least A/VIII by A.M. Best. In addition, at loan closing, Homeland Insurance Company of Delaware (who is not rated by S&P) provides insurance representing 95% of $50,000,000 excess of $100,000,000 layer. The Whole Loan documents

Sch. C-4

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		require the borrower to replace Homeland Insurance Company of Delaware with an insurer rated “A-” or better by S&P, on or before April 1, 2022.
18	Coolidge Hill Road Apartments  (Loan No. 40)	The threshold for lender having the right to hold and disburse insurance proceeds is $200,000.
18	Able Self Storage - Pearland, TX (Loan No. 55) Texas Bear Creek Self Storage – New Braunfels, TX (Loan No. 56)	As of the Mortgage Loan origination date, the related insurer did not meet the required ratings set forth in the related Mortgage Loan documents. The related Mortgagor is required to replace such insurer at policy renewal with an insurer that meets required ratings set forth in the related Mortgage Loan documents. In addition, as of the Mortgage Loan origination date, the insurance deductible for windstorm and hail exceeds permitted deductible set forth in the related Mortgage Loan documents. The related Mortgage Loan documents provide for recourse to the Guarantor for losses in connection with windstorm/hail policies not meeting such requirements.
19	CX – 350 & 450 Water Street (Loan No. 3)	As there is active construction ongoing at the related Mortgaged Property, utilities may not currently be located in the rights-of-way abutting such Mortgaged Property or in an easement for the benefit of such Mortgaged Property or connected so as to serve such Mortgaged Property without passing over the other property absent a valid recorded irrevocable easement.
19	112 Greene Street (Loan No. 25)	The related Mortgaged Property consists of the leasehold interest in the ground floor and basement retail cooperative unit in a building owned by a non-borrower cooperative. Therefore the related Mortgaged Property is not a separate tax lot, it is part of the cooperative’s tax lot for the building. To account for the possibility that the cooperative does not pay the taxes, on the origination date one year’s worth of taxes on the entire tax lot was escrowed and the Mortgagor is required to make monthly escrow deposits of 1/12th of the yearly tax estimate.
26	Mississippi Self Storage Portfolio (Loan No. 26)	Certain improvements on the Mississippi Self Storage Portfolio – Mini Storage – South Mortgaged Property encroach onto a contiguous non-collateral parcel of real property, however, the related Mortgagor intends to acquire such parcel and add it the relate Mortgaged Property and encumber it to the lien of the Mortgage on the related Mortgaged Property. In addition, the related Mortgage Loan documents include a carve-out for any losses resulting from such Addition Parcel not being included in the related Mortgaged Property as of the related Mortgage Loan origination date with respect to such encroachment or the costs of removal thereof as a result of such encroachment, if the Addition Parcel is not acquired occurs within 90 days of the related Mortgage Loan origination date.
27	CX – 350 & 450 Water Street (Loan No. 3)	The two building parcels comprising the related Mortgaged Property are currently undergoing active construction and no certificates of occupancy (temporary or otherwise) will be issued until such construction is complete.
28	All Bank of America Mortgage Loans (Loan Nos. 1, 3, 12, 20, 21, 22, 24, 25, 26, 27, 33, 40, 47, 55 and 56)	The related loan documents do not use the exact phrase “intentional material physical waste at the Mortgaged Property” and the recourse liability of the related guarantor with respect to waste is generally limited to when there is sufficient cash flow from the operation of the Mortgaged Property to avoid such waste from occurring.

Sch. C-5

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
28	One North Wacker (Loan No. 1)	The losses carveout for misappropriation of rents after an event of default, security deposits, insurance proceeds or condemnation awards is limited to intentional misapplication by the borrower. The borrowers and the non-recourse carveout guarantor will not have liability under non-recourse carveout provisions where the circumstance, event or condition that would otherwise give rise to such liability is attributable to one or more of the following: (i) insufficient revenue from the Mortgaged Property; (ii) the borrower’s lack of access to revenue from the Mortgaged Property as a result of the lender’s exercise of its remedies with respect to Mortgaged Property cash flow or otherwise; (iii) insolvency of the borrower or negative cash flow from the Mortgaged Property and/or the actual or constructive admission of the same by any means in any context; (iv) the payment of the borrower’s debts and obligations as they become due and payable from sources other than revenues from the Mortgaged Property, subject to the full recourse carveout relating to substantive consolidation as a result of violation of separateness covenants; (v) failure to pay the Whole Loan or other obligations or debts of the borrower, as a result of (i), (ii) or (iii) above; and/or (vi) the imposition of any lien or encumbrance on the Mortgaged Property by a creditor of the borrower, through a judgment or exercise of statutory right, where such lien or encumbrance arises from the non-payment of amounts owing to such creditor as a result of (i), (ii) or (iii) above.
28	CX - 350 & 450 Water Street (Loan No. 3)	There is no non-recourse carveout guarantor and no separate environmental indemnitor with respect to the Mortgage Loan or related Whole Loan. A transfer of ownership interest in any Borrower without the prior consent of the lender if such consent is required by the Mortgage Loan documents, other than such transfer that results in a change of control of any Borrower, constitutes only a loss recourse carveout instead of a full recourse carveout. The related environmental indemnity contains provisions generally to the effect that, as long as related Mortgagor maintains an environmental insurance policy in the form required to be maintained by such Mortgagor pursuant to the terms of the related Mortgage Loan agreement (“Environmental Insurance”), the related indemnitee is required to first apply any and all proceeds from such Environmental Insurance actually obtained by such indemnitors and/or paid to such indemnitee prior to recovering any indemnified costs from such indemnitors under the environmental indemnity agreement and, for a period generally not to exceed 120 days, prior to pursuing its rights and remedies against such indemnitors under such environmental indemnity agreement and the other related Mortgage Loan documents.
28	Mississippi Self Storage Portfolio (Loan No. 26)	The full recourse carveout for voluntary transfers of either the Mortgaged Property or controlling equity interests in the borrower in violation of the Mortgage Loan documents is limited to the occurrence of a prohibited transfer that is not cured within 30 days of the related Mortgagor receiving notice of such breach (to the extent such breach  is not made in bad faith, is

Sch. C-6

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		capable of being cured, is not material, and the related lender is not prejudiced by allowing such cure).
29	CX - 350 & 450 Water Street (Loan No. 3)	Upon satisfying certain conditions, the related Mortgagors may release an individual Mortgaged Property by prepaying or defeasing an amount equal to (i) 110% of the allocated loan amount for the released 350 Water Street building and (ii) 105% of the allocated loan amount of the released 450 Water Street building.
30	One North Wacker (Loan No. 1)	In terms of annual financial statements, the related Whole Loan documents require the borrower to deliver annual unaudited operating statement of the Mortgaged Property prepared internally and certified by the borrower, detailing the revenues received and the expenses incurred for the period of calculation and containing appropriate year-to-date information.
31	One North Wacker (Loan No. 1)	If TRIPRA is not in effect, the related Mortgagor will not be required to spend on the premium for terrorism insurance coverage more than two times the annual insurance premiums payable for the related Mortgaged Property at the time with respect to the property and business interruption policies (excluding cost of the terrorism, named storm and earthquake components of such all-risk and business interruption insurance policies). The Mortgage Loan documents permit the borrower to satisfy terrorism coverage requirements through the use of a licensed captive insurance company that is an affiliate of the borrower sponsor (The Irvine Company, LLC), subject to certain conditions, including (A) the policy limits are approved by the lender in its reasonable discretion, and the deductible is no greater than that calculated by TRIPRA, (B) other than the deductible, the portion of the insurance not reinsured by TRIPRA must be reinsured by an insurance carrier rated no less than S&P “A-” (or Moody’s/ Fitch equivalents, if applicable), (C) TRIPRA is in effect and requires that the federal government must reinsure that portion of any terrorism claim above the applicable deductible and other privately reinsured amounts as set forth above, and (D) the captive insurer is not the subject of a bankruptcy or similar proceeding.
31	CX - 350 & 450 Water Street (Loan No. 3)	If (A) TRIPRA is not in effect, (B) TRIPRA or a similar or subsequent statute, extension or reauthorization is modified which results in a material increase in terrorism insurance premiums, or (C) there is a disruption in the terrorism insurance marketplace as the result of a terrorism event which results in a material increase in terrorism insurance premiums, provided that terrorism insurance is commercially available, the related Mortgagor will be required to maintain terrorism insurance as required by the Whole Loan documents; provided, however, that it will not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable at such time in respect of the related Mortgaged Property and business interruption/rental loss insurance required under the Whole Loan documents (without giving effect to the cost of the terrorism, flood, earthquake and windstorm components of such casualty and

Sch. C-7

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		business interruption/rental loss insurance), and if the cost of terrorism insurance exceeds such amount, the Mortgagor will be required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.
31	Red Hill Self Storage Portfolio (Loan No. 20) Fenton Self Storage Portfolio (Loan No. 33)	If TRIPRA or a similar statue is not in effect, the related Mortgagor will not be required to spend on the premium for terrorism insurance coverage more than two (2) times the premium then currently payable in respect of property, business interruption/loss of rents and liability insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism, flood, and earthquake and windstorm components of such insurance at the time terrorism coverage is excluded from any policy) (provided that the related Mortgagor will be obligated to purchase the maximum amount of terrorism coverage available with funds equal to such cap).
31	Guardian Self Storage - Frederick, CO (Loan No. 22)	If TRIPRA or a subsequent statute is not in effect, then the borrower will be required to carry terrorism insurance throughout the term of the Mortgage Loan, but in such event the borrower will not be required to spend on terrorism insurance coverage more than two (2) times the amount of the insurance premium that is payable at such time in respect of the required property, business interruption/rental loss and liability insurance required (without giving effect to the cost of terrorism, flood and earthquake and windstorm components of such insurance), and if the cost of terrorism insurance exceeds such amount, the borrower will purchase the maximum amount of terrorism insurance available with funds equal to such amount.
33	One North Wacker (Loan No. 1) Capo Surf Center (Loan No. 21) Guardian Self Storage – Frederick, CO (Loan No. 22) 71 Fuller Road (Loan No. 24) 112 Greene Street (Loan No. 25) Raymour & Flanigan Quakertown Warehouse (Loan No. 27) South Whitney Multifamily Portfolio (Loan No. 47) Able Self Storage - Pearland, TX (Loan No. 55) Texas Bear Creek Self Storage – New Braunfels, TX (Loan No. 56)	Each related Mortgagor is a recycled single-purpose entity, however, the related borrower made standard representations and warranties, including backwards representations and warranties where required to complete coverage, and the recourse carveout guaranty includes coverage with respect to violations of such single-purpose entity representations and warranties.

Sch. C-8

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
33	One North Wacker (Loan No. 1)	The Whole Loan documents permit property revenue to be managed and accounted for pursuant to a centralized cash management system with certain other borrower affiliates. In the absence of a cash sweep period, funds are deposited into a concentration account owned and administered by The Irvine Company LLC, TIC Acquisition and Development LLC or Irvine Management Company. All funds in the concentration account are required to be tracked so that the cash attributable to borrower is ascertainable, and borrower obligations will not be paid by funds attributable to any borrower affiliates.
33	Oregon Self Storage Portfolio (Loan No. 12)	The related Mortgagor is permitted to install prefabricated, portable moving and storage containers (“Modular Storage Units”) in designated areas identified in the related Mortgage Loan documents with a total square footage of not more than 30,000 at the All Your Treasures Mini Storage Mortgaged Property and a total square footage of not more than 55,000 at the Airport Mini Storage Mortgaged Property. With respect to such installation of any such Modular Storage Units, the related Mortgagor is required to provide to the lender evidence reasonably acceptable to the lender (including but not limited to) the following: (a) prior to such installation, all requisite zoning and or building approvals of governmental authorities, if any, have been granted and during and after such installation, the related Mortgaged Property, is in compliance with such zoning laws and governmental authorities, (b) during and after such installation, all storage units at the related Mortgaged Property will have access to all necessary utility and other services for each storage unit’s use, occupancy and for each storage unit’s operation and (c) if reasonably required by the lender, delivery of a REMIC opinion relating to the installation of the Modular Storage Units.
33	Mississippi Self Storage Portfolio (Loan No. 26)	The related Mortgage Loan documents permit the Mortgagor to acquire a specified contiguous non-collateral parcel of real property which such Mortgagor intends to add to the Mississippi Self Storage Portfolio - Mini Storage – South Mortgaged Property (referred to in the related Mortgage Loan agreement as “Picayune South”) (the “Addition Parcel”) provided, that the related Mortgage Loan documents require that such an acquisition is subject to, among other things, (A) upon such an acquisition the Addition Parcel will be encumbered by the lien of the Mortgage on the related Mortgaged Property, (B) taking into account such an acquisition the related Mortgaged Property will remain in compliance with all property-related representations and warranties set forth in the related Mortgage Loan documents, and (C) and related survey, tax lot and title insurance updates and (D) a tax reserve with respect to such Addition Parcel.
34	CX - 350 & 450 Water Street (Loan No. 3)	In connection with a defeasance, the related Mortgagor is not required to pay defeasance fees of the servicer in excess of $25,000. The terms of the related Ground Lease documents, do not require that the Mortgagee or a trustee appointed by it will have the right to hold and disburse insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest.  Rather, subject to applicable restoration obligations, such proceeds

Sch. C-9

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		are payable to the ground lessee or other non-borrower party and/or its leasehold mortgagee.
36	122 Greene Street (Loan No. 25)	The terms of the related Ground Lease documents, do not require that the Mortgagee or a trustee appointed by it will have the right to hold and disburse insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest. Rather, subject to applicable restoration obligations, such proceeds are payable to the ground lessee or other non-borrower party and/or its leasehold mortgagee.

Sch. C-10

EXHIBIT D-1

FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER

BANK OF AMERICA, NATIONAL ASSOCIATION

ASSISTANT SECRETARY’S CERTIFICATE

I, [_____], an Assistant Secretary of Bank of America, National Association, a national banking association (the “Mortgage Loan Seller”), HEREBY CERTIFY that:

1. Attached hereto as Exhibit A is a true and complete copy of the Articles of Organization of the Mortgage Loan Seller, which are in full force and effect on the date hereof.

2. Attached hereto as Exhibit B is a true and correct copy of the amended and restated Bylaws of the Bank, as in effect on the date hereof.

3. The resolutions attached hereto as Exhibit C (the “Resolutions”) were adopted by the unanimous written consent in lieu of a meeting of the delegates of the Management Risk Committee (the “Committee”) of the Bank. Such resolutions have not been modified, amended, rescinded or revoked and remain in full force and effect on the date hereof.

4. Each person who, as an officer or representative of the Mortgage Loan Seller, signed any document delivered in connection with the BANK 2021-BNK38 transaction was at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative and the signatures of such persons appearing on such documents are their genuine signatures.

 

IN WITNESS WHEREOF, I have signed this Certificate as of December 22, 2021.

	Name:
	Title:

 

 

Exh. D-1-1

EXHIBIT D-2

FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER

CERTIFICATE OF MORTGAGE LOAN SELLER

In connection with the execution and delivery by Bank of America, National Association (“Bank of America”) of the various transactions contemplated by, that certain Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”) between Bank of America, as seller, and Morgan Stanley Capital I Inc., as purchaser (the “Purchaser”), the undersigned hereby certifies that (i) except as set forth on Schedule C to the Mortgage Loan Purchase Agreement, the representations and warranties of Bank of America in or made pursuant to Section 4(a) and Section 4(b) of the Mortgage Loan Purchase Agreement are true and correct in all material respects at and as of the date hereof with the same effect as if made on the date hereof, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date, (ii) Bank of America has, in all material respects, complied with all the agreements and satisfied all the conditions on its part required under the Mortgage Loan Purchase Agreement to be performed or satisfied at or prior to the date hereof, and (iii) since the date of the Mortgage Loan Purchase Agreement, there will not have been, immediately prior to the transfer of the Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, any material adverse change in the financial condition of Bank of America. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Mortgage Loan Purchase Agreement.

Certified this December 22, 2021.

	BANK OF AMERICA, NATIONAL ASSOCIATION
	By:
		Name:
		Title:

 

 

Exh. D-2-1

EXHIBIT E

FORM OF OFFICER’S CERTIFICATE OF
BANK OF AMERICA, NATIONAL ASSOCIATION

[_____], 2021

 

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

cmbs_notices@morganstanley.com

With copies to the Addressees listed on Schedule A

Re: BANK 2021-BNK38 – Officer’s Certificate Pursuant to Section 4(i) of the Mortgage Loan Purchase Agreement

Reference is hereby made to that certain Pooling and Servicing Agreement, dated as of December 1, 2021, and that certain Mortgage Loan Purchase Agreement, dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between the undersigned (the “Mortgage Loan Seller”) and Morgan Stanley Capital I Inc. In accordance with Section 4(i) of the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller hereby certifies to the parties listed on Schedule A, as follows:

1. The Mortgage Loan Seller has delivered the Diligence File (as defined in the Pooling and Servicing Agreement) with respect to each Mortgage Loan to the Designated Site (as defined in the Pooling and Servicing Agreement); and

2. Each Diligence File constitutes all documents required under the definition of “Diligence File” and such Diligence File is organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and Mortgage Loan Seller.

Capitalized terms used herein without definition have the meanings given them in the Mortgage Loan Purchase Agreement.

IN WITNESS WHEREOF, the undersigned has caused this diligence file certification to be executed by its duly authorized officer or representative, the [_] day of [_____], 2021.

Exh. E-1

	Sincerely yours,
	BANK OF AMERICA, NATIONAL ASSOCIATION
	By:
		Name:
		Title:

Exh. E-2

SCHEDULE A

LIST OF ADDRESSEES TO BE COPIED

GENERAL MASTER SERVICER:

Email: commercial.servicing@wellsfargo.com

GENERAL SPECIAL SERVICER:

Email: NoticeAdmin@midlandls.com

CERTIFICATE ADMINISTRATOR:

Email: cts.cmbs.bond.admin@wellsfargo.com; trustadministrationgroup@wellsfargo.com

TRUSTEE:

Email: CMBSTrustee@wilmingtontrust.com

DIRECTING CERTIFICATEHOLDER:

Email: RESecurities@kkr.com

ASSET REPRESENTATIONS REVIEWER:

Email: notices@pentalphasurveillance.com

OPERATING ADVISOR:

Email: notices@pentalphasurveillance.com

RISK RETENTION CONSULTATION PARTY

Email: cmbs_notices@morganstanley.com

Exh. E-3

EXHIBIT F

FORM OF LIMITED POWER OF ATTORNEY

TO COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION AND MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION WITH RESPECT TO BANK 2021-BNK38, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK38

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between Bank of America, National Association (“Seller”) and Morgan Stanley Capital I Inc. (“Depositor”), Seller is selling certain commercial, multifamily and/or manufactured housing community mortgage loans (the “Mortgage Loans”) to Depositor;

WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer, Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Wilmington Trust, National Association, as trustee (the “Trustee”), and Computershare Trust Company, National Association, as certificate administrator, as custodian (in such capacity, the “Custodian”), as certificate registrar, and as authenticating agent, the Trustee, the Custodian and the General Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;

WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;

NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of “Mortgage File” in, and in accordance with Section 1.01 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and

Exh. F-1

perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to prepare, execute and file or record in the appropriate public filing or recording offices, as applicable, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the General Special Servicer only such powers, responsibilities and authority as are set forth in Section 2 of the Mortgage Loan Purchase Agreement.

Seller does also hereby make, constitute and appoint the General Special Servicer, acting solely in its capacity as General Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the General Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the General Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.

The enumeration of particular powers herein is not intended in any way to limit the grant to the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the General Special Servicer, the Custodian, the Trust and the Certificateholders, neither the Custodian nor the General Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the General Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the General Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by the Custodian or the General Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.

Any act or thing lawfully done hereunder by the Custodian (on behalf of the Trustee) or the General Special Servicer shall be binding on Seller and Seller’s successors and assigns.

Exh. F-2

This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the General Special Servicer, as applicable, until the earliest occurrence of any of the following events:

(1) with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement;

(2) with respect to the General Special Servicer, the termination of such entity and its replacement with a successor General Special Servicer under the terms of the Pooling and Servicing Agreement;

(3) with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian;

(4) with respect to the General Special Servicer, the appointment of a receiver or conservator with respect to the business of such entity, or the filing of a voluntary or involuntary petition in bankruptcy by or against such entity;

(5) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust;

(6) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and

(7) with respect to the General Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 7.01(a) of the Pooling and Servicing Agreement with respect to the General Special Servicer.

Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.

THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

[Signature on next page]

Exh. F-3

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2021.

	BANK OF AMERICA, NATIONAL ASSOCIATION
	By:
		Name:
		Title:

 

 

Exh. F-4

ACKNOWLEDGEMENT

STATE OF	)
	)ss:
COUNTY OF )	)

On this ____ day of _____________ 20__, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of Bank of America, National Association, and that the seal affixed to the foregoing instrument is the corporate seal of said entity, and that said instrument was signed and sealed in behalf of said entity by authority of its board of directors (or equivalent authorizing parties), and said ___________________ acknowledged said instrument to be the free act and deed of said entity.

	Name:
		Notary Public in and for said County and State

 

My Commission Expires:

_____________________________________

Exh. F-5

EX-99.3

Exhibit 99.3

EXECUTION VERSION

MORTGAGE LOAN PURCHASE AGREEMENT

This Mortgage Loan Purchase Agreement (this “Agreement”), is dated and effective as of December 13, 2021, between Wells Fargo Bank, National Association, as seller (in such capacity, together with its successors and permitted assigns hereunder, the “Mortgage Loan Seller” or “Seller”), and Morgan Stanley Capital I Inc., as purchaser (in such capacity, together with its successors and permitted assigns hereunder, the “Purchaser”).

RECITALS

The Mortgage Loan Seller desires to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser desires to purchase, subject to the terms and conditions set forth herein, the commercial, multifamily and/or manufactured housing community mortgage loans (collectively, the “Mortgage Loans”) identified on the schedule annexed hereto as Exhibit A (as such schedule may be amended from time to time pursuant to the terms hereof, the “Mortgage Loan Schedule”).

The Purchaser intends to create a trust (the “Trust”), the primary assets of which will be a segregated pool of commercial, multifamily and/or manufactured housing community mortgage loans, that includes the Mortgage Loans. Beneficial ownership of the assets of the Trust (such assets collectively, the “Trust Fund”) will be evidenced by a series of mortgage pass-through certificates (the “Certificates”). Certain classes of the Certificates will be rated by nationally recognized statistical rating organizations (the “Rating Agencies”). Certain classes of Certificates (the “Registered Certificates”) will be registered under the Securities Act of 1933, as amended (the “Securities Act”), and certain classes of Certificates (the “Non-Registered Certificates”) will not be registered under the Securities Act. The Trust will be created and the Certificates will be issued pursuant to a pooling and servicing agreement to be dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer (in such capacity, the “General Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A. (“NCB”), as NCB master servicer and as NCB special servicer, Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”), Computershare Trust Company, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), as tax administrator and as custodian (in such capacity, the “Custodian”), and Wilmington Trust, National Association, as trustee (the “Trustee”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement as in full force and effect on the Closing Date (as defined in Section 1 hereof) (except with respect to the definition of “Servicing File,” which for purposes of this Agreement shall not include the documents described in clause (b) in the definition of such term in the Pooling and Servicing Agreement). Any reference to a provision of the Pooling and Servicing Agreement shall be to the Pooling and Servicing Agreement as in full force and effect on the Closing Date. It is anticipated that the Purchaser will transfer the Mortgage Loans to the Trustee on behalf of the Trust contemporaneously with its purchase of the Mortgage Loans hereunder.

The Purchaser intends to sell the Registered Certificates to Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”, and MS&Co., BofA Securities, WFS, Academy and Drexel, collectively in such capacities, the “Underwriters”) pursuant to an underwriting agreement, dated as of the date hereof (the “Underwriting Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Underwriters. The Purchaser intends to sell the Non-Registered Certificates (other than the RR Interest) to MS&Co., BofA Securities, WFS, Academy and Drexel (collectively in such capacities, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated as of the date hereof (the “Certificate Purchase Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Initial Purchasers. The Purchaser intends to transfer the RR Interest to Morgan Stanley Bank, N.A. (“MSBNA”), Bank of America, National Association and the Mortgage Loan Seller pursuant to the RR Interest Transfer Agreement, dated as of the date hereof (the “RR Interest Transfer Agreement”), between the Depositor, MSBNA, Bank of America, National Association and the Mortgage Loan Seller. The Certificates are more fully described in (a) that certain prospectus dated December 14, 2021 (together with all annexes and exhibits thereto and information incorporated therein by reference as of the date of filing thereof, the “Prospectus”), relating to the Registered Certificates and (b) that certain private placement memorandum, dated December 14, 2021 (together with all annexes and exhibits thereto, the “Private Placement Memorandum”), relating to the Non-Registered Certificates (other than the RR Interest), as each may be amended or supplemented at any time hereafter.

The Mortgage Loan Seller will indemnify the Depositor, the Underwriters, the Initial Purchasers and certain related parties with respect to certain disclosure regarding the Mortgage Loans that is contained in (a) that certain preliminary prospectus, dated December 7, 2021, relating to the Registered Certificates (together with all annexes and exhibits thereto and information incorporated therein by reference as of the last Time of Sale (as defined in the Indemnification Agreement), the “Preliminary Prospectus”), (b) that certain preliminary private placement memorandum, dated December 7, 2021, relating to the Non-Registered Certificates (other than the RR Interest) (together with all annexes and exhibits thereto, the “Preliminary Private Placement Memorandum”), (c) the Prospectus, (d) the Private Placement Memorandum and (e) certain other disclosure documents and offering materials relating to the Certificates, pursuant to an indemnification agreement, dated as of the date hereof (the “Indemnification Agreement”), between the Mortgage Loan Seller, the Depositor, the Underwriters and the Initial Purchasers.

NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties agree as follows:

Section 1.                Agreement to Purchase. The Mortgage Loan Seller agrees to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms and conditions set forth herein, the Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on December 22, 2021 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). As of the Cut-off Date, the Mortgage Loans will have an aggregate principal balance, after application of all payments of principal due on the Mortgage Loans, if any, on or before such date, whether or not received,

-2-

of  $148,338,107. The purchase price for the Mortgage Loans shall be a combination of (i) the portion of the RR Interest transferred to the Mortgage Loan Seller pursuant to the RR Interest Transfer Agreement and (ii) a cash amount set forth on the cross receipt between the Mortgage Loan Seller and the Purchaser dated the Closing Date (which price reflects no deduction for any transaction expenses for which the Mortgage Loan Seller is responsible). The Purchaser shall pay and/or direct to be paid the cash portion of such purchase price to the Mortgage Loan Seller on the Closing Date by wire transfer in immediately available funds or by such other method as shall be mutually acceptable to the parties hereto.

Section 2.                Conveyance of the Mortgage Loans. (a) Effective as of the Closing Date, subject only to receipt of the purchase price referred to in Section 1 hereof and the satisfaction of the other conditions to the Mortgage Loan Seller’s obligations set forth herein, the Mortgage Loan Seller does hereby sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, all of the right, title and interest of the Mortgage Loan Seller in, to and under the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by the Mortgage Loan Seller and the General Master Servicer. Such assignment includes all scheduled payments of principal and interest under and proceeds of the Mortgage Loans received after their respective Cut-off Dates (other than scheduled payments of interest and principal due on or before their respective Cut-off Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller) together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller (including all documents included in the related Mortgage Files and Servicing Files and any other documents required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement). The Purchaser shall be entitled to receive all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date, in each case, which shall belong to the Mortgage Loan Seller), except any Seller Defeasance Rights and Obligations.

After the Mortgage Loan Seller’s transfer of the Mortgage Loans to the Purchaser, as provided herein, the Mortgage Loan Seller shall not take any action inconsistent with the Purchaser’s ownership of the Mortgage Loans. Except for actions that are the express responsibility of another party hereunder or under the Pooling and Servicing Agreement, and further except for actions that the Mortgage Loan Seller is expressly permitted to complete subsequent to the Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date, take all actions required under applicable law to effectuate the transfer of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser.

It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Mortgage Loan Seller will receive the benefit of any securitization indemnification provisions in the Mortgage Loan documents.

-3-

(b)               The conveyance of the Mortgage Loans and the related rights and property accomplished hereby is intended by the parties hereto to constitute a sale by the Mortgage Loan Seller of all the Mortgage Loan Seller’s right, title and interest in and to such Mortgage Loans and such other related rights and property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not intended that such conveyance be a pledge of security for a loan. If such conveyance is determined to be a pledge of security for a loan, however, then: (i) this Agreement shall constitute a security agreement under applicable law; (ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser, and in any event, the Mortgage Loan Seller hereby grants to the Purchaser, a first priority security interest in all of the Mortgage Loan Seller’s right, title and interest, whether now owned or hereafter acquired, in and to (1) the Mortgage Loans, (2) all documents included in the related Mortgage Files and Servicing Files, (3) all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and (4) all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date); (iii) the assignment by the Purchaser to the Trustee of its interests in the Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an assignment of any security interest created hereunder; (iv) the possession by the Purchaser (or the Custodian) of the Mortgage Notes with respect to the Mortgage Loans subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or person designated by such secured party for the purpose of perfecting such security interest under applicable law; and (v) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement.

(c)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian, (x) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (y) on or before the date that is forty-five (45) days following the Closing Date (or such later date as may be provided under Sections 2.01(b) or (c) of the Pooling and Servicing Agreement with respect to any item), the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan as of the Closing Date (which delivery shall be subject to clauses (e) and (f) in the proviso of the definition of “Mortgage File”), any other items required to be delivered or deposited by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement

-4-

(other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the General Master Servicer) for each Mortgage Loan, and shall take such other actions and pay such costs with respect to the Mortgage Loans as may be required under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement.

Notwithstanding anything to the contrary contained herein, with respect to any Joint Mortgage Loan, the obligations of each of the Mortgage Loan Seller and any other Mortgage Loan Seller with respect to such Joint Mortgage Loan (an “Other Mortgage Loan Seller”) to deliver a Mortgage Note to the Custodian shall be limited to delivery of only the Mortgage Note(s) held by such party to the Custodian. With respect to any Joint Mortgage Loan, the obligations of the Mortgage Loan Seller and any Other Mortgage Loan Seller to deliver the remaining portion of the related Mortgage File or any document required to be delivered with respect thereto shall be joint and several, provided that either of the Mortgage Loan Seller or any Other Mortgage Loan Seller may deliver one Mortgage File or one of any other document required to be delivered with respect to such Joint Mortgage Loan hereunder, and such delivery shall satisfy such delivery requirements for the Mortgage Loan Seller and each such Other Mortgage Loan Seller.

In addition, on or prior to the fifth (5th) Business Day after the Closing Date, the Mortgage Loan Seller, at its expense, shall deliver to the Custodian five (5) limited powers of attorney substantially in the form attached hereto as Exhibit F in favor of the Custodian (on behalf of the Trustee) and the General Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the General Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the Mortgage Loan Seller, any Mortgage Loan documents required to be recorded as described in Section 2.01 of the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). The Mortgage Loan Seller agrees to reasonably cooperate with the Custodian, the Trustee and the General Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian or the General Special Servicer, as applicable, shall submit such documents for recording, at the Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the General Special Servicer, as applicable, shall not submit such assignments for recording if the Mortgage Loan Seller produces evidence that it or a third-party on its behalf has sent any such assignment for recording and certifies that the Mortgage Loan Seller is awaiting its return from the applicable recording office.

(d)               In accordance with Section 2.01(b) of the Pooling and Servicing Agreement, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the Mortgage Loan Seller shall be deemed to

-5-

have satisfied the delivery requirements of this Agreement and the Pooling and Servicing Agreement by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the General Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary's interest from such Mortgage Loan Seller to the General Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the General Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the General Master Servicer on behalf of the Trust.

With respect to letters of credit delivered in accordance with subclause (B) of clause (xii) of the definition of “Mortgage File”, within sixty (60) days of the Closing Date or such shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the Mortgage Loan Seller shall notify the bank issuing the letter of credit that the General Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit. Section 3.01(f) of the Pooling and Servicing Agreement requires the General Master Servicer to present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of “Wells Fargo Bank, National Association, as General Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. Section 3.01(f) of the Pooling and Servicing Agreement further requires the General Master Servicer to use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The Mortgage Loan Seller shall provide such reasonable cooperation as requested by the General Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

(e)                [Reserved].

(f)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, or make available or cause to be made available to, the General Master Servicer in accordance with Section 2.01(d) of the Pooling and Servicing Agreement, the following items: (i) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, a copy of the Mortgage File for each Mortgage Loan (except that copies of any instruments of assignment that are returned or delivered, as applicable, to the Custodian by the related public recording office in accordance with the requirements of Section 2.01(c) of the Pooling and Servicing Agreement shall be delivered by the Custodian to the General Master Servicer) and (ii) within the timeframe for delivery set forth in Section 2.01(d) of

-6-

the Pooling and Servicing Agreement, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, in each case relating to the origination and servicing of any Mortgage Loan or related Serviced Whole Loan that are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Whole Loan in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans or related Serviced Whole Loan(s) (provided that the Mortgage Loan Seller shall not be required to deliver any internal communications (including such communications between the Mortgage Loan Seller and its Affiliates) or underwriting analysis (including documents prepared by the Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents or any documents or materials prepared by it or its Affiliates for internal uses, attorney client communications that are privileged communications or constitute legal or other due diligence analyses or credit underwriting or due diligence analyses or data). In addition, the Mortgage Loan Seller shall, in accordance with Section 2.01(f) of the Pooling and Servicing Agreement, deliver to, and deposit with, or cause to be delivered to, and deposited with, the General Master Servicer, within three (3) Business Days after the Closing Date, all unapplied reserve funds and Escrow Payments in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans (other than any Non-Serviced Whole Loans). In addition, not later than the Closing Date, the Mortgage Loan Seller shall provide to the General Master Servicer the initial data with respect to each Mortgage Loan that is necessary for the preparation of the initial CREFC^® Financial File and CREFC^® Loan Periodic Update File required to be delivered by the General Master Servicer under the Pooling and Servicing Agreement.

(g)               Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Mortgage Loan Seller shall report its transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan) and to reflect that the Mortgage Loans are no longer property of the Mortgage Loan Seller. In no event shall the Mortgage Loan Seller take any action that is inconsistent with the Trust’s ownership of each Mortgage Loan following the Closing Date.

(h)               The Mortgage Loan Schedule, as it may be amended from time to time, shall conform to the requirements set forth in the Pooling and Servicing Agreement (except with respect to the Administrative Cost Rate). The Mortgage Loan Seller shall, within fifteen (15) days of its discovery or receipt of notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case may be, an amended Mortgage Loan Schedule; provided that this sentence shall not be construed to relieve the Mortgage Loan Seller of any liability for any related Breach or to shorten the period available to the Mortgage Loan Seller with respect to the cure, repurchase or substitution provisions with respect to a Material Defect set forth in Section 5.

(i)                 [Reserved.]

-7-

Section 3.                Examination of Mortgage Loan Files and Due Diligence Review. The Mortgage Loan Seller shall reasonably cooperate with any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or before the Closing Date. The fact that the Purchaser has conducted or has failed to conduct any partial or complete examination of any of the Mortgage Files for, and/or any of such other documents and records relating to, the Mortgage Loans, shall not affect the Purchaser’s right to pursue any remedy available in equity or at law for a breach of the Mortgage Loan Seller’s representations and warranties made pursuant to Section 4, except as expressly set forth in Section 5.

Section 4.                Representations, Warranties and Covenants of the Mortgage Loan Seller and the Purchaser. (a) The Mortgage Loan Seller hereby makes, as of the date hereof (and, in connection with any replacement of a Defective Loan (as defined in Section 4(f) hereof) with one or more Qualified Substitute Mortgage Loans (also as defined in Section 4(f) hereof), pursuant to Section 5(a) hereof, as of the related date of substitution), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for the benefit of the Mortgage Loan Seller, each of the representations and warranties set forth in Exhibit B-2.

(b)               The Mortgage Loan Seller hereby makes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit C, subject to the exceptions set forth in Schedule C. The Mortgage Loan Seller is also referred to herein as the “Responsible Repurchase Party”.

(c)                The Mortgage Loan Seller hereby represents and warrants, as of the date hereof, to and for the benefit of the Purchaser only, that the Mortgage Loan Seller has not dealt with any broker, investment banker, agent or other person (other than the Depositor or an affiliate thereof, the Underwriters and the Initial Purchasers) who may be entitled to any commission or compensation in connection with the sale to the Purchaser of the Mortgage Loans.

(d)               The Mortgage Loan Seller hereby represents and warrants that, with respect to the Mortgage Loans and the Mortgage Loan Seller’s role as “originator” (or the role of any third party as “originator” of any Mortgage Loan for which the Mortgage Loan Seller was not the originator) and “sponsor” in connection with the issuance of the Registered Certificates, the information regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged Properties and/or the Mortgage Loan Seller contained in each of the Preliminary Prospectus and the Prospectus complies in all material respects with the applicable disclosure requirements of Regulation AB as in effect on the date hereof and for which compliance is required as of the date hereof. As used herein, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been or may hereafter be from time to time provided by the Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, in each case as effective from time to time as of the compliance dates specified therein.

(e)                With respect to each Servicing Function Participant that services a Mortgage Loan as of the Closing Date, the Mortgage Loan Seller either (i) represents and warrants

-8-

that as of the date hereof such Servicing Function Participant is expected to be an Initial Sub-Servicer under the Pooling and Servicing Agreement or (ii) (A) represents and warrants that it has caused each such Servicing Function Participant to be required to comply, as evidenced by written documentation between each such Servicing Function Participant and the Mortgage Loan Seller, with all reporting requirements set forth in Article XI of the Pooling and Servicing Agreement (including but not limited to the indemnification of each Certification Party from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses incurred by such Certification Party arising out of the delivery of any Deficient Exchange Act Deliverable) applicable to such Servicing Function Participant for the Mortgage Loans and (B) covenants with the Purchaser that, for so long as the Trust is subject to the reporting requirements of the Exchange Act, it shall cause each Servicing Function Participant that services a Mortgage Loan as of the Closing Date to comply with all reporting requirements set forth therein.

(f)                The Responsible Repurchase Party hereby agrees that it shall be deemed to make to and for the benefit of the Purchaser, as of the date of any substitution, with respect to any replacement Mortgage Loan (a “Qualified Substitute Mortgage Loan”) that is substituted for a Defective Loan by the Responsible Repurchase Party pursuant to Section 5(a) of this Agreement, each of the representations and warranties set forth in Exhibit C to this Agreement. For purposes of the representations and warranties set forth in Exhibit C, representations and warranties made as of the Closing Date or as of the Cut-off Date shall, in the case of a Qualified Substitute Mortgage Loan, be made as of the date of substitution. From and after the date of substitution, each Qualified Substitute Mortgage Loan, if any, shall be deemed to constitute a “Mortgage Loan” hereunder for all purposes. A “Defective Loan” is any Mortgage Loan as to which there is an unremedied Material Defect.

(g)               Except for the agreed-upon procedures report obtained from the accounting firm engaged to perform procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (such report, the “Accountants’ Due Diligence Report”), the Mortgage Loan Seller has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Purchaser) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 15Ga-2”)) in connection with the securitization transaction contemplated herein and in the Prospectus and Private Placement Memorandum and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Mortgage Loan Seller has not employed (and, through and including the Closing Date, will not employ without the consent of the Purchaser) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus and Private Placement Memorandum. The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(g).

(h)               Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan; provided that such

-9-

documents are clearly labeled and identified) to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the Mortgage Loan Seller.

(i)                 Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall provide the Depositor a certificate substantially in the form of Exhibit E (which may be sent by email to cmbs_notices@morganstanley.com).

(j)                 If, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, then, upon written request of the Asset Representations Reviewer, the Mortgage Loan Seller shall provide to the Asset Representations Reviewer, within ten (10) Business Days of receipt of such written request, any such document; provided, that the Mortgage Loan Seller shall be required to deliver such missing document only to the extent that such document is in the possession of the Mortgage Loan Seller, but in any event excluding any documents that contain information that is proprietary to the related originator or the Mortgage Loan Seller or any draft documents or privileged or internal communications.

(k)               Upon the completion of an Asset Review with respect to each Mortgage Loan in accordance with the Pooling and Servicing Agreement and receipt of a written invoice from the Asset Representations Reviewer, the Mortgage Loan Seller shall pay the Asset Representations Reviewer Asset Review Fee for the Mortgage Loans subject to that Asset Review (or, with respect to any Joint Mortgage Loan, a fee equal to the Asset Representations Reviewer Asset Review Fee for the entire Joint Mortgage Loan, multiplied by the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest) within sixty (60) days of such written invoice by the Asset Representations Reviewer; provided, that if any fees payable pursuant to this Section 4(k) are paid by the Trust pursuant to Section 12.02(b) of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall reimburse the Trust for the amount of any such fees (or, with respect to any Joint Mortgage Loan, for its Mortgage Loan Seller Percentage Interest of the amount of such fees).

(l)                 The Mortgage Loan Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to such dispute resolution method.

(m)             The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon any failure by the Mortgage Loan Seller to (A) pay the fees described under Section 4(k) above within sixty (60) days of written invoice by the Asset Representations Reviewer or (B) within sixty (60) days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement), provide all documents required to be delivered by it pursuant to Section 4(h) of this Agreement.

-10-

(n)               The Mortgage Loan Seller covenants with the Purchaser that if, on or prior to the later of (i) the ninetieth (90^th) day following the Closing Date and (ii) the date upon which all Certificates have been sold to parties unaffiliated with the Depositor, as a result of the occurrence of any event that occurred prior to the Closing Date with respect to the Mortgage Loans or the Mortgage Loan Seller (and the Mortgage Loan Seller hereby covenants to promptly notify the Depositor, the Underwriters and the Initial Purchasers of the occurrence of any such event to the extent it has knowledge thereof), an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to be delivered in connection with sales of the Certificates by the Underwriters, the Initial Purchasers or a dealer, in order to correct any untrue statement of a material fact or any omission to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading, or an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to comply with applicable law, the Mortgage Loan Seller shall do all things necessary (or, with respect to information relating to the Mortgage Loans, provide all information in its possession) to assist the Depositor to prepare and furnish, at the expense of the Mortgage Loan Seller (to the extent that such amendment or supplement relates to the Mortgage Loan Seller, the Mortgage Loans and/or any information describing the same, as provided by the Mortgage Loan Seller), to the Underwriters and Initial Purchasers such amendments or supplements to the Prospectus or Private Placement Memorandum as may be necessary, so that the statements in the Prospectus or Private Placement Memorandum as so amended or supplemented, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so contain an untrue statement of material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading or so that the Prospectus or Private Placement Memorandum (as so annexed or supplemented), including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so fail to comply with applicable law. All terms used in this Section 4(n) and not otherwise defined herein shall have the meaning set forth in the Indemnification Agreement. Notwithstanding the foregoing, the Mortgage Loan Seller shall have no affirmative obligation to monitor the performance of the Mortgage Loans or any changes in condition or circumstance of any Mortgaged Property, Mortgagor, guarantor or any of their Affiliates after the Closing Date in connection with its obligations under this Section 4(n). The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(n).

Section 5.                Notice of Breach; Cure, Repurchase and Substitution. (a) The Mortgage Loan Seller shall, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the Mortgage Loan Seller’s receipt of notice of or, if earlier, the Mortgage Loan Seller’s discovery of, a Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) the discovery by

-11-

the Mortgage Loan Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at the Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable), at the applicable Purchase Price and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the General Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of Mortgage File by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the Mortgage Loan Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the General Master Servicer, the General Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the Mortgage Loan Seller to have received the recorded document, then the Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect until eighteen (18) months after the Closing Date so long as the Mortgage Loan Seller certifies to the Trustee, the General Master Servicer, the General Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that the Material Defect is still in effect solely because of its failure to have received the recorded document and that the Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach that causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan

-12-

to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the Mortgage Loan Seller are to be remitted by wire transfer to the General Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis.

If the Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan, agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust (and, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the Enforcing Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Enforcing Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4(k) above attributable to the Asset Review of such Mortgage Loan and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer on behalf of the Trust. The following terms shall apply to any Loss of Value Payment: (i) prior to any agreement or settlement between the Mortgage Loan Seller and the Enforcing Servicer nothing in this paragraph shall preclude the Mortgage Loan Seller or the Enforcing Servicer from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

The Mortgage Loan Seller’s obligation to cure any Material Defect, repurchase or substitute for any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 5 shall constitute the sole remedy available to the Purchaser in connection with a Material Defect; provided, however, that no limitation of remedy is implied with respect to the Mortgage Loan Seller’s breach of its obligation to cure, repurchase or substitute in accordance with the terms and conditions of this Agreement. It is acknowledged and agreed that the representations and warranties are being made for risk allocation purposes.

-13-

The remedies provided for in this subsection with respect to any Material Defect with respect to any Mortgage Loan shall also apply to the related REO Property.

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the General Master Servicer, the General Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4(k) above to the extent not previously paid by the Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan; provided, that if the Breach relates to a Joint Mortgage Loan, the Mortgage Loan Seller shall only be responsible for its Mortgage Loan Seller Percentage Interest of all such costs and expenses unless such Breach relates solely to the Mortgage Note(s) sold by the Mortgage Loan Seller. Except as provided in the proviso to the immediately preceding sentence, the Mortgage Loan Seller shall remit the amount of such costs and expenses to the General Special Servicer for disbursement to the applicable Persons and upon its making such remittance, the Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the Mortgage Loan Seller.

Notwithstanding anything contained in this Agreement or the Pooling and Servicing Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan under this Agreement if (i) the Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by the Purchaser or any other party to the Pooling and Servicing Agreement to provide prompt notice as required by the terms of this Agreement or the Pooling and Servicing Agreement after such party has actual knowledge of such Material Defect (it being understood that knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File), (iii) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage, and (iv) such delay precludes the Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable. Notwithstanding anything contained in this Agreement, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC financing statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect.

-14-

If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, the Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the Mortgage Loan Seller provides an Opinion of Counsel to the effect that such release would not cause an Adverse REMIC Event and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

(b)               Whenever one or more Qualified Substitute Mortgage Loans are substituted for a Defective Loan by the Responsible Repurchase Party as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Responsible Repurchase Party shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies or such Qualified Substitute Mortgage Loans satisfy, as the case may be, all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. No mortgage loan may be substituted for a Defective Loan as contemplated by this Section 5 if the Mortgage Loan to be replaced was itself a Qualified Substitute Mortgage Loan, in which case, absent a cure of the relevant Material Defect, the affected Mortgage Loan will be required to be repurchased as contemplated hereby. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related date of substitution, and Periodic Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after its respective Cut-off Date and on or prior to the related date of substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related date of substitution, and Periodic Payments due with respect to each corresponding Defective Loan that is purchased or repurchased, as the case may be, or replaced with one or more Qualified Substitute Mortgage Loans (any such Mortgage Loan, a “Deleted Mortgage Loan”) (if any) after the related date of substitution, shall not be part of the Trust Fund and are to be remitted by the General Master Servicer to the Responsible Repurchase Party promptly following receipt.

If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan(s) and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of one or more Qualified Substitute Mortgage Loans for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects.

If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply.

(c)                The Responsible Repurchase Party shall be entitled, and the Purchaser shall cause the Pooling and Servicing Agreement to entitle the Responsible Repurchase Party, upon the date when the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 has been

-15-

deposited in the account designated therefor by the Trustee as the assignee of the Purchaser (or the General Master Servicer on behalf of the Trustee) and, if applicable, receipt by the Trustee as the assignee of the Purchaser (or the Custodian) of the Mortgage File for each Qualified Substitute Mortgage Loan (if any) to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by the Responsible Repurchase Party, to (i) a release of the Mortgage File and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the Deleted Mortgage Loan to the Responsible Repurchase Party or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by the Responsible Repurchase Party and are reasonably necessary to vest in the Responsible Repurchase Party or its designee the ownership of such Deleted Mortgage Loan, and (iii) the execution and delivery of notice to the affected Mortgagor of the retransfer of such Deleted Mortgage Loan. In connection with any such repurchase or substitution by the Responsible Repurchase Party, the Purchaser shall also cause the Pooling and Servicing Agreement to require each of the General Master Servicer and the General Special Servicer to deliver to the Responsible Repurchase Party or its designee, and the Responsible Repurchase Party or its designee shall be entitled to delivery from the General Master Servicer and the General Special Servicer of, any portion of the related Servicing File (as such term is defined in the Pooling and Servicing Agreement), together with any Escrow Payments, reserve funds and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the General Master Servicer or the General Special Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each case at the expense of the Responsible Repurchase Party.

(d)               [Reserved.]

(e)                The Mortgage Loan Seller acknowledges and agrees that the Purchaser shall have no liability to the Mortgage Loan Seller or otherwise for any failure of the Mortgage Loan Seller or any other party to the Pooling and Servicing Agreement to perform its obligations provided for thereunder.

(f)                The Mortgage Loan Seller (to the extent it receives any request or demand, whether oral or written, that a Mortgage Loan be repurchased or replaced, whether arising from a Material Defect or other breach of a representation or warranty, such recipient a “Seller Request Recipient” and such request or demand, a “Repurchase Request”) agrees to provide to the Purchaser: (i) written notice of any Repurchase Request, which notice will specify if such Repurchase Request is a 15Ga-1 Notice; (ii) written notice of (A) the existence of any dispute regarding such Repurchase Request, whether written or oral, between such Seller Request Recipient and the Person making such Repurchase Request, (B) the expiration of any applicable Initial Cure Period, or, if applicable, any Extended Cure Period, (C) the withdrawal of such Repurchase Request by the Person making such Repurchase Request, (D) the rejection of such Repurchase Request by the Seller Request Recipient and (E) the repurchase or replacement of any Mortgage Loan pursuant to this Section 5 and Section 2.03 of the Pooling and Servicing Agreement; and (iii) upon reasonable request of the Purchaser (subject to Section 5(g)), such other information in the Seller Request Recipient’s possession as would be necessary to permit the Purchaser to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase or replacement requests or demands of any Person relating to

-16-

any Mortgage Loan or to comply with any other obligations applicable to it under law or regulation.

Each notice required to be delivered pursuant to this Section 5(f) may be delivered by electronic means. Each notice required to be delivered pursuant to clauses (i) and (ii) of the immediately preceding paragraph shall be given not later than the tenth (10^th) Business Day after the event giving rise to the requirement for such notice and any information requested pursuant to clause (iii) of the immediately preceding paragraph shall be provided as promptly as practicable after such request is made. Each notice required to be delivered pursuant to clause (i) of the immediately preceding paragraph shall identify (a) the date on which such Repurchase Request was made, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request by such Person. Each notice required to be delivered pursuant to clause (ii) of the immediately preceding paragraph shall identify (a) the date of such withdrawal, rejection, repurchase or replacement, or the date of the commencement of such dispute, as applicable, (b) if pertaining to a dispute, the nature of such dispute, (c) if pertaining to the expiration of an Initial Cure Period or an Extended Cure Period, the expiration date of such Initial Cure Period or, if applicable, an Extended Cure Period, (d) if pertaining to a withdrawal, the basis for such withdrawal given to the Seller Request Recipient or an indication that no basis was given by the Person withdrawing such Repurchase Request, (e) if pertaining to a rejection by the Seller Request Recipient, the basis for the Seller Request Recipient’s rejection and (f) if pertaining to a repurchase or replacement, the date of such repurchase or replacement.

(g)               The Mortgage Loan Seller and the Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing the Mortgage Loan Seller or the Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or any information protected by the attorney work product doctrine, (ii) any 15Ga-1 Notice delivered to the Mortgage Loan Seller or the Purchaser under the Pooling and Servicing Agreement is provided only to assist the Mortgage Loan Seller, the Purchaser and any of their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, (iii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided to the Mortgage Loan Seller or the Purchaser pursuant to Section 2.02(g) of the Pooling and Servicing Agreement by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement or the Pooling and Servicing Agreement and (iv) receipt of a 15Ga-1 Notice or delivery of any notice required to be delivered pursuant to Section 5(f) shall not in and of itself constitute delivery, or receipt, of notice of any Material Defect or knowledge on the part of the Mortgage Loan Seller or Responsible Repurchase Party of any Material Defect or admission by the Mortgage Loan Seller or Responsible Repurchase Party of the existence of any Material Defect.

(h)               The Mortgage Loan Seller shall provide to the Purchaser relevant portions of any Form ABS-15G that the Mortgage Loan Seller is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Repurchase Request with respect to any Mortgage Loan) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the

-17-

Commission. Promptly upon request, the Purchaser shall provide or cause to be provided to the Mortgage Loan Seller such information regarding the principal balance of any Mortgage Loan as is necessary in order for the Mortgage Loan Seller to prepare any such Form ABS-15G.

(i)                 The Purchaser shall provide to the Mortgage Loan Seller any relevant portions of any Form ABS-15G that the Purchaser is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Mortgage Loan and that was not provided by the Mortgage Loan Seller) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. The Trust’s CIK# is 0001895567.

(j)                 Notwithstanding anything to the contrary herein, the Mortgage Loan Seller’s obligation in respect of a Material Defect with respect to a Joint Mortgage Loan shall be solely in respect of the Mortgage Loan Seller’s pro rata share of such Joint Mortgage Loan based on the Mortgage Loan Seller’s Mortgage Loan Seller Percentage Interest as of the date hereof in such Joint Mortgage Loan.

(k)               If the Mortgage Note or Mortgage Notes with respect to a Joint Mortgage Loan in favor of the Mortgage Loan Seller and its successors and assigns are repurchased or replaced by the Mortgage Loan Seller pursuant to this Section 5, and any other related mortgage notes evidencing such Joint Mortgage Loan are not repurchased or replaced by any Other Mortgage Loan Seller and any such mortgage note remains in the Trust, then the Mortgage Loan Seller and the Purchaser hereby agree that (i) the provisions in Section 3.30 of the Pooling and Servicing Agreement and the related Intercreditor Agreement shall govern the servicing and administration of such Joint Mortgage Loan as if (a) the remaining mortgage notes in the Trust were collectively a “Mortgage Loan” (as defined in the Pooling and Servicing Agreement) and (b) each repurchased Mortgage Note were a Serviced Pari Passu Companion Loan (or, if the Joint Mortgage Loan was a Non-Serviced Mortgage Loan, a Non-Serviced Pari Passu Companion Loan), (ii) the Mortgage Loan Seller and its successors and assigns in respect of such repurchased or replaced Mortgage Note shall be bound by such Section 3.30 as if it were a party to the Pooling and Servicing Agreement and (iii) the Mortgage Loan Seller and its successors and assigns shall from time to time (as may be necessary) deliver to the General Master Servicer or the General Special Servicer, as applicable, the Mortgage Loan documents constituting or related to any applicable Mortgage Note repurchased by it, any requests for release and any court pleadings, requests for trustee’s sale or other documents necessary to the foreclosure or trustee’s sale in respect of the related Mortgaged Property or to any legal action or to enforce any other remedies or rights provided by the related Mortgage Note or Mortgage or otherwise available at law or equity with respect to the related Mortgage Note.

Section 6.                Closing. The closing of the sale of the Mortgage Loans (the “Closing”) shall be held at the offices of special counsel to the Purchaser at 10:00 a.m., New York City time, on the Closing Date.

The Closing shall be subject to each of the following conditions:

(i)                 All of the representations and warranties of the Mortgage Loan Seller and the Purchaser made pursuant to Section 4 of this Agreement shall be true and

-18-

correct in all material respects as of the Closing Date (or as of such other specific date expressly contemplated by any such representation or warranty);

(ii)               All documents specified in Section 7 of this Agreement (the “Closing Documents”), in such forms as are agreed upon and reasonably acceptable to the Purchaser and, in the case of the Pooling and Servicing Agreement (insofar as such agreement affects the obligations of the Mortgage Loan Seller hereunder or the rights of the Mortgage Loan Seller as a third party beneficiary thereunder), to the Mortgage Loan Seller, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof;

(iii)             The Mortgage Loan Seller shall have delivered and released to the Purchaser or its designee, all documents, funds and other assets required to be delivered thereto on or before the Closing Date pursuant to Section 2 of this Agreement;

(iv)             The result of any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans performed by or on behalf of the Purchaser pursuant to Section 3 hereof shall be satisfactory to the Purchaser in its reasonable determination;

(v)               All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with in all material respects, and the Mortgage Loan Seller shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed by it after the Closing Date;

(vi)             The Mortgage Loan Seller shall have paid all fees and expenses payable by it to the Purchaser or otherwise pursuant to this Agreement;

(vii)           The Mortgage Loan Seller shall have received the purchase price for the Mortgage Loans, as contemplated by Section 1 of this Agreement;

(viii)         Neither the Underwriting Agreement nor the Certificate Purchase Agreement shall have been terminated in accordance with its terms;

(ix)             The Commission shall not have issued any stop order suspending the effectiveness of the Purchaser’s Registration Statement; and

(x)               Prior to the delivery of the Preliminary Prospectus to investors, an officer of the Mortgage Loan Seller shall have delivered to the Depositor a sub-certification to the certification provided by the Chief Executive Officer of the Depositor to the Securities and Exchange Commission pursuant to Regulation AB.

Each of the parties agrees to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date.

-19-

Section 7.                Closing Documents. The Purchaser or its designee shall have received all of the following Closing Documents, in such forms as are agreed upon and acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the Rating Agencies (collectively, the “Interested Parties”), and upon which the Interested Parties may rely:

(i)                 This Agreement, duly executed by the Purchaser and the Mortgage Loan Seller;

(ii)               Each of the Pooling and Servicing Agreement and the Indemnification Agreement, duly executed by the respective parties thereto;

(iii)             A Secretary’s Certificate substantially in the form of Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the Mortgage Loan Seller, in his or her individual capacity, and dated the Closing Date, and upon which the Interested Parties may rely, attaching thereto as exhibits (A) the resolutions of the board of directors of the Mortgage Loan Seller authorizing the Mortgage Loan Seller’s entering into the transactions contemplated by this Agreement and the Indemnification Agreement, and (B) the organizational documents of the Mortgage Loan Seller;

(iv)             A certificate of good standing with respect to the Mortgage Loan Seller issued by the Office of the Comptroller of the Currency of the United States not earlier than thirty (30) days prior to the Closing Date, and upon which the Interested Parties may rely;

(v)               A certificate of the Mortgage Loan Seller substantially in the form of Exhibit D-2 hereto, executed by an executive officer of the Mortgage Loan Seller on the Mortgage Loan Seller’s behalf and dated the Closing Date, and upon which the Interested Parties may rely;

(vi)             A written opinion of in-house or independent counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the Mortgage Loan Seller’s due authorization, execution and delivery of this Agreement and the Indemnification Agreement;

(vii)           A written opinion of special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the enforceability of this Agreement against the Mortgage Loan Seller;

(viii)         A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser, the Underwriters (only with respect to the Preliminary Prospectus) and the Initial Purchasers (only with respect to the Preliminary Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Preliminary Prospectus and in the Preliminary Private Placement Memorandum (as the same may be amended or supplemented on or before the pricing date for the Certificates) substantially to the effect that nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Preliminary Prospectus or the Preliminary Private Placement Memorandum, at the time when sales to purchasers of the

-20-

Certificates were first made, contained, with respect to the Mortgage Loan Seller or the Mortgage Loans, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading;

(ix)             A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser (only with respect to the Private Placement Memorandum), the Underwriters (only with respect to the Prospectus) and the Initial Purchasers (only with respect to the Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Prospectus and the Private Placement Memorandum (as the case may be and as the same may be amended or supplemented on or before the Closing Date) substantially to the effect that (a) nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Prospectus or the Private Placement Memorandum (as applicable) as of the date thereof or as of the Closing Date contained or contains, with respect to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) that, with respect to information regarding the Mortgage Loan Seller and the Mortgage Loans, the related borrowers or the related Mortgaged Properties, the Prospectus is appropriately responsive in all material respects to the applicable requirements of Regulation AB;

(x)               Copies of all other opinions rendered by counsel for the Mortgage Loan Seller to the Rating Agencies in connection with the transactions contemplated by this Agreement, including, but not limited to, with respect to the characterization of the transfer of the Mortgage Loans hereunder as a true sale, with each such opinion to be addressed to the other Interested Parties and the Trustee or accompanied by a letter signed by such counsel stating that the other Interested Parties and the Trustee may rely on such opinion as if it were addressed to them as of the date thereof;

(xi)             One or more agreed-upon procedures letters from a nationally recognized firm of certified public accountants acceptable to the Underwriters and the Initial Purchasers, dated (A) the date of the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and (B) the date of the Prospectus and the Private Placement Memorandum, respectively, and addressed to, and in form and substance acceptable to, the Interested Parties (other than the Rating Agencies), stating in effect that, using the assumptions and methodology used by the Mortgage Loan Seller, the Purchaser, the Underwriters or the Initial Purchasers, as applicable, all of which shall be described in such letters, and which shall include a comparison of certain mortgage loan-related documents to the information set forth in the Master Tape (as defined in the Indemnification Agreement), they have recalculated such numbers and percentages relating to the Mortgage Loans set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and set forth in the Prospectus and the Private Placement Memorandum, respectively, and have compared the results of their calculations to the

-21-

corresponding items in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, and found each such number and percentage set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, to be in agreement with the results of such calculations;

(xii)           If any of the Certificates are “mortgage related securities” within the meaning of the Secondary Mortgage Market Enhancement Act of 1984, as amended, a certificate of the Mortgage Loan Seller regarding origination of the Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the Exchange Act; and

(xiii)         Such further certificates, opinions and documents as the Purchaser may reasonably request or any Rating Agency may require.

Section 8.                Additional Reporting Under Regulation AB. With respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall provide to the Purchaser and the Certificate Administrator any information that constitutes “Additional Form 10-D Information” or “Additional Form 10-K Information” but only if and to the extent that the Mortgage Loan Seller (or any originator of the Mortgage Loans sold by the Mortgage Loan Seller to the Depositor, if such originator constitutes an “originator” contemplated by Item 1110(b) of Regulation AB and such information is required to be reported with respect to such originator) is the applicable “Party Responsible” (solely in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) under the terms of Exhibit AA or Exhibit BB to the Pooling and Servicing Agreement (it being acknowledged that the Mortgage Loan Seller (solely as in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) does not constitute the “Party Responsible” for any “Form 8-K Information” set forth on Exhibit CC of the Pooling and Servicing Agreement). In each case, such delivery shall be made in a form readily convertible to an EDGAR compatible form, or in such other form as otherwise agreed by the Purchaser, the Certificate Administrator and the Mortgage Loan Seller. In each case, such delivery shall be made not later than five (5) calendar days after the related Distribution Date (in the case of any such “Additional Form 10-D Information”), and no later than March 1 of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements (in the case of any such “Additional Form 10-K Information”). In no event shall the Mortgage Loan Seller be required to provide any information that is not required to be reported on Form 10-D or Form 10-K, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder.

In addition, with respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall reasonably cooperate with each of the Depositor, the applicable Master Servicer and the Certificate Administrator, upon the reasonable request of such party, by providing all Mortgage Loan-related documents, data and information in the possession of the Mortgage Loan Seller at or prior to the Closing Date and on the date of the request and necessary for the ongoing compliance by the Depositor and the Trust with the requirements of Form 10-D with respect to Items 1111 and 1125 of Regulation AB; provided that the Mortgage Loan Seller shall not be required to provide any documents that are

-22-

proprietary to the related originator or the Mortgage Loan Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis.

Section 9.                Costs. Whether or not this Agreement is terminated, the Mortgage Loan Seller will pay its pro rata share (the Mortgage Loan Seller’s pro rata portion to be determined according to the percentage that the aggregate Cut-off Date Balance of all the Mortgage Loans represents as to the aggregate Cut-off Date Balance of all the mortgage loans of the Trust Fund (the “Cut-off Date Pool Balance”)) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented set-up fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm of certified public accountants selected by the Purchaser and the Mortgage Loan Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item), including the cost of obtaining any agreed-upon procedures letters with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering this Agreement and the furnishing to the Underwriters or the Initial Purchasers, as applicable, of such copies of the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item) and this Agreement as the Underwriters and the Initial Purchasers may reasonably request; (viii) the fees of the rating agency or agencies engaged to consider rating the Certificates or hired and requested to rate the Certificates; (ix) all registration fees incurred by the Purchaser in connection with the filing of its Registration Statement allocable to the issuance of the Registered Certificates; (x) the upfront fee payable to the Asset Representations Reviewer on the Closing Date in the amount agreed by the parties hereto; and (xi) the reasonable fees and expenses of special counsel to the Purchaser.

Section 10.            Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered to or mailed, by registered mail, postage prepaid, by overnight mail or courier service, or transmitted by facsimile and confirmed by similar mailed writing, if to the Purchaser, addressed to the Purchaser at Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com), or such other address as may be designated by the Purchaser to the Mortgage Loan Seller in writing; or, if to the Mortgage Loan Seller, addressed to Wells Fargo Bank, National Association, 301 South College St., Charlotte, North Carolina 28202,

-23-

Attention: BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (with copies to Troy B. Stoddard, Esq., Senior Counsel, Wells Fargo Legal Department, D1086-341, 550 South Tryon Street, 34th Floor, Charlotte, North Carolina 28202 and Herschel Patel, Wells Fargo Bank, National Association, 10 South Wacker Drive, 32^nd Floor, Chicago, Illinois 60606, telephone number: (312) 368-6461 and also by email to herschel.patel@wellsfargo.com and cmbsnotices@wellsfargo.com), or such other address as may be designated by the Mortgage Loan Seller to the Purchaser in writing.

Section 11.            Miscellaneous. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by a writing signed by a duly authorized officer of the party against whom enforcement of such change, waiver, discharge or termination is sought to be enforced. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and no other person will have any right or obligation hereunder. The Mortgage Loan Seller shall be an express third party beneficiary to the Pooling and Servicing Agreement to the extent set forth therein. The Asset Representations Reviewer shall be an express third party beneficiary of Sections 4(i), 4(j), and 4(k) of this Agreement.

Section 12.            Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, incorporated herein by reference or contained in the certificates of officers of the Mortgage Loan Seller delivered pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser and by the Purchaser to the Trust, notwithstanding any restrictive or qualified endorsement or assignment in respect of any Mortgage Loan.

Section 13.            Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable in any particular jurisdiction

-24-

shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.

Section 14.            Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THE AGREEMENT, THE RELATIONSHIP OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING REGARDING SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, WITH RESPECT TO SUCH COURTS, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.

Section 15.            Further Assurances. The Mortgage Loan Seller and the Purchaser each agrees to execute and deliver such instruments and take such further actions as any other party hereto may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of this Agreement.

Section 16.            Successors and Assigns. The rights and obligations of the Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage Loan Seller without the prior written consent of the Purchaser, except that any person into which the Mortgage Loan Seller may be merged or consolidated, or any person resulting from any merger, conversion or consolidation to which the Mortgage Loan Seller is a party, or any person succeeding to all or substantially all of the business of the Mortgage Loan Seller, shall be the successor to the Mortgage Loan Seller hereunder. In connection with its transfer of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the Purchaser is expressly authorized to assign its rights under this Agreement, in whole or in part, to the Trustee for the benefit of the registered holders and beneficial owners of the Certificates. To the extent of any such assignment, the Trustee, for the benefit of the registered holders and beneficial owners of the Certificates, shall be the Purchaser

-25-

hereunder. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and their respective successors and permitted assigns.

Section 17.            Information. The Mortgage Loan Seller shall provide the Purchaser with such information about itself, the Mortgage Loans and the underwriting and servicing procedures applicable to the Mortgage Loans as is (i) required under the provisions of Regulation AB, (ii) required by a Rating Agency or a governmental agency or body or (iii) reasonably requested by the Purchaser for use in a private disclosure document.

Section 18.            Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the matters addressed herein, and this Agreement supersedes any prior agreements and/or understandings, written or oral, with respect to such matters; provided, however, that in no event shall this provision be construed to limit the effect of the Indemnification Agreement or the memorandum of understanding dated as of December 1, 2021 between the Mortgage Loan Seller, the Purchaser and certain other parties or any separate acknowledgments and agreements executed and delivered pursuant to such memorandum of understanding.

Section 19.            Recognition of U.S. Special Resolution Regimes.

(a)                In the event a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) were governed by the laws of the United States of America or a State of the United States of America.

(b)               In the event that a Covered Party or any BHC Affiliate of such Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Right under this Agreement that may be exercised against such Covered Party is permitted to be exercised to no greater extent than such Default Right could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States of America or a State of the United States of America.

“BHC Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §1841(k).

“Covered Party” means any party to this Agreement that is one of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b), or any subsidiary of such a covered bank to which 12 C.F.R. Part 47 applies in accordance with 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.

-26-

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

Section 20.            Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings.

(a)                Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 19, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable.

(b)               After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

[SIGNATURE PAGE FOLLOWS]

-27-

IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

WELLS FARGO BANK, NATIONAL     ASSOCIATION
By:	/s/ Michael J. VanderVelde
	Name:  Michael J. VanderVelde
	Title:   Vice President

MORGAN STANLEY CAPITAL I INC
By:	/s/ Jane Lam
	Name: Jane Lam
	Title:   President

 

BANK 2021-BNK38 – Mortgage Loan Purchase Agreement (WFB)

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

 

Exh. A-1 

BANK 2021-BNK38
Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
4	WFB	1201 Lake Robbins	$55,000,000	1201 Lake Robbins Drive	The Woodlands	TX	10/8/2021	10/11/2031	3.8270%	120	118	0	No	0.000000%	0.002500%	0.002500%
6	WFB	Storquest - Richmond, CA	$34,000,000	321 Canal Boulevard	Richmond	CA	11/24/2021	12/11/2031	3.6660%	120	120	0	No	0.002500%	0.000000%	0.002500%
10	WFB	Norwood Business Park	$9,250,000	3950 Development Drive, 3951 Research Drive, 251 and 271 Opportunity Street	Sacramento	CA	11/30/2021	12/11/2031	2.8450%	120	120	0	No	0.002500%	0.000000%	0.002500%
11	WFB	Madison West Business Park	$8,750,000	3600, 3608, 3612 and 3628 Madison Avenue	North Highlands	CA	11/30/2021	12/11/2031	2.8450%	120	120	0	No	0.002500%	0.000000%	0.002500%
17	WFB	The Plaza Retail Center	$10,000,000	3480 Financial Center Way	Buford	GA	10/6/2021	10/11/2031	3.5300%	120	118	0	No	0.040000%	0.000000%	0.002500%
19	WFB	The Meadows	$9,500,000	31355 Oak Crest Drive and 4333 Park Terrace Drive	Westlake Village	CA	11/4/2021	11/11/2026	3.5840%	60	59	0	No	0.002500%	0.000000%	0.002500%
34	WFB	Layton Crossing	$5,990,607	730, 750, 820, and 842 North Main Street	Layton	UT	10/20/2021	11/11/2031	3.5300%	120	119	360	No	0.002500%	0.000000%	0.002500%
38	WFB	Handy Self Storage	$4,660,000	1500 Washington Boulevard	Montebello	CA	11/30/2021	12/11/2031	4.0420%	120	120	0	No	0.080000%	0.000000%	0.002500%
39.00	WFB	UNICO VI - Dollar General Portfolio	$4,050,000	Various	Various	Various	10/26/2021	11/11/2031	4.6550%	120	119	0	No	0.002500%	0.000000%	0.002500%
39.01	WFB	Dollar General - Carson, WA	$1,534,950	1241 Metzger Road	Carson	WA
39.02	WFB	Dollar General - Rome, GA	$1,283,850	1790 Redmond Circle Northwest	Rome	GA
39.03	WFB	Dollar General - Monahans, TX	$1,231,200	600-602 West Sealy Avenue	Monahans	TX
42	WFB	Cubesmart - Elyria OH	$3,637,500	821 Cleveland Street	Elyria	OH	11/18/2021	12/11/2031	3.6400%	120	120	360	No	0.002500%	0.000000%	0.002500%
43.00	WFB	Cheyenne West and Donovan Business Parks	$3,500,000	Various	North Las Vegas	NV	11/15/2021	12/11/2031	3.5940%	120	120	0	No	0.080000%	0.000000%	0.002500%
43.01	WFB	Donovan Business Park	$2,100,000	4550 and 4560 Donovan Way	North Las Vegas	NV
43.02	WFB	Cheyenne West	$1,400,000	2475 West Cheyenne Avenue	North Las Vegas	NV

EXHIBIT B-1

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER

The Mortgage Loan Seller hereby represents and warrants that, as of the date hereof:

(a)                The Mortgage Loan Seller is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America.

(b)               The Mortgage Loan Seller’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Mortgage Loan Seller’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Mortgage Loan Seller, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(c)                The Mortgage Loan Seller has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(d)               This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in accordance with the terms hereof, subject to (A) applicable bankruptcy, fraudulent transfer, insolvency, reorganization, receivership, moratorium, liquidation, conservatorship and other laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (C) public policy considerations.

(e)                The Mortgage Loan Seller is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(f)                No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Mortgage Loan Seller of the transactions contemplated herein, except for (A) those consents, approvals, authorizations or orders that previously have been obtained and (B) those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.

Exh. B-1-1 

(g)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Mortgage Loan Seller’s knowledge, threatened against the Mortgage Loan Seller that, if determined adversely to the Mortgage Loan Seller, would prohibit the Mortgage Loan Seller from entering into this Agreement or that, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(h)               The transfer of the Mortgage Loans to the Purchaser as contemplated herein is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.

(i)                 The Mortgage Loan Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud its present or future creditors.

(j)                 The Mortgage Loan Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser, as contemplated herein.

(k)               After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Mortgage Loan Seller’s assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Mortgage Loan Seller’s debts and obligations, including contingent and unliquidated debts and obligations of the Mortgage Loan Seller, and the Mortgage Loan Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business.

(l)                 The Mortgage Loan Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.

(m)             No proceedings looking toward liquidation, dissolution or bankruptcy of the Mortgage Loan Seller are pending or contemplated.

(n)               The principal place of business and chief executive office of the Mortgage Loan Seller is located in the State of California.

(o)               The consideration received by the Mortgage Loan Seller upon the sale of the Mortgage Loans constitutes at least fair consideration and reasonably equivalent value for such Mortgage Loans.

 

Exh. B-1-2 

EXHIBIT B-2

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER

The Purchaser hereby represents and warrants that, as of the date hereof:

(a)                The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b)               The Purchaser’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Purchaser’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Purchaser, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(c)                This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.

(d)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Purchaser’s knowledge, threatened against the Purchaser that, if determined adversely to the Purchaser, would prohibit the Purchaser from entering into this Agreement or that, in the Purchaser’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Purchaser to perform its obligations under this Agreement.

(e)                The Purchaser has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(f)                The Purchaser is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Purchaser’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(g)               The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, and any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the final draft of each such Form 15G to MS&Co. at least six (6) business days before the first sale

Exh. B-2-1 

in the offering contemplated by the Prospectus and Private Placement Memorandum; and (C) furnished each such Form 15G to the Commission on EDGAR at least five (5) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum as required by Rule 15Ga-2.

(h)               The Purchaser has not dealt with any broker, investment banker, agent or other person, other than the Mortgage Loan Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.

 

 

Exh. B-2-2 

EXHIBIT C

MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

For purposes of this Exhibit C, the phrases “the Mortgage Loan Seller’s knowledge” or “the Mortgage Loan Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth below, the actual state of knowledge or belief of the Mortgage Loan Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth below in each case without having conducted any independent inquiry into such matters and without any obligation to have done so (except (i) having sent to the servicers servicing the Mortgage Loans on behalf of the Mortgage Loan Seller, if any, specific inquiries regarding the matters referred to and (ii) as expressly set forth herein). All information contained in documents which are part of or required to be part of a Mortgage File, as specified in the Pooling and Servicing Agreement (to the extent such documents exist) shall be deemed within the Mortgage Loan Seller’s knowledge.

The Mortgage Loan Seller hereby represents and warrants that, as of the date herein below specified or, if no such date is specified, as of the date hereof, except with respect to the Exceptions described on Schedule C to this Agreement.

1.                  Intentionally Omitted.

2.                  Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan. At the time of the sale, transfer and assignment to the Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement. The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.

3.                  Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws

Exh. C-1 

affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or Prepayment Premium/Yield Maintenance Charge) may be further limited or rendered unenforceable by applicable law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).

Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.

4.                  Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.

5.                  Intentionally Omitted.

6.                  Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a) (1) there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver, or modification relates to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan. With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.

Exh. C-2 

7.                  Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its Affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph 8 below (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

8.                  Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or principal use of the Mortgaged Property, the

Exh. C-3 

security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon. Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.

9.                  Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of the representation in paragraph (7) above), and equipment and other personal property financing. The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1.

10.              Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related Assignment of Leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

11.              Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1 financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage

Exh. C-4 

Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

12.              Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date.

An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.

13.              Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.

14.              Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.

15.              Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in paragraph 8), an engineering

Exh. C-5 

report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.

16.              Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the Depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related Non-Serviced Depositor or Non-Serviced Master Servicer for the related Non-Serviced Trust).

17.              No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).

18.              Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the Insurance Ratings Requirements (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.

“Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings (“S&P”) or (2) the Syndicate Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such

Exh. C-6 

syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s, and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s.

Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months).

If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property.

If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements.

The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.

An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of

Exh. C-7 

such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained from an insurer or insurers meeting the Insurance Ratings Requirements (provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”) in an amount not less than 100% of the PML.

The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.

All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.

19.              Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in paragraph 8) and survey, if any, an engineering report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an

Exh. C-8 

amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created.

20.              No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property: (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.

21.              No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.

22.              REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not

Exh. C-9 

be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). Any Prepayment Premiums and Yield Maintenance Charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.

23.              Compliance with Usury Laws. The mortgage rate (exclusive of any default interest, late charges, Yield Maintenance Charge or Prepayment Premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

24.              Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.

25.              Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.

26.              Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-conforming use or structure, or (d) the inability to restore the Mortgaged

Exh. C-10 

Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.

27.              Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan. The Mortgage Loan documents require the related Mortgagor to comply in all material respects with all applicable regulations, zoning and building laws.

28.              Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii)  breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).

29.              Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial

Exh. C-11 

defeasance (as described in paragraph 34) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in paragraph 34 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions.

In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans).

No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.

30.              Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by

Exh. C-12 

residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.

31.              Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Ratings Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.

32.              Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case, a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor, (iv) Transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1, or future permitted mezzanine debt as set forth on Exhibit C-32-2, or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate

Exh. C-13 

debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.

33.              Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Each Mortgage Loan with a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

34.              Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the defeasance collateral are required to be assumed by a Single-

Exh. C-14 

Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.

35.              Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.

36.              Ground Leases. For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner.

With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that:

(A)             The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease has occurred since its recordation, except by any written instruments which are included in the related Mortgage File;

(B)              The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;

(C)              The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);

Exh. C-15 

(D)             The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject;

(E)              Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid);

(F)               The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;

(G)             The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;

(H)             A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;

(I)                The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization;

(J)                Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or

Exh. C-16 

restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;

(K)             In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and

(L)              Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.

37.              Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.

38.              Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit C.

39.              Intentionally Omitted.

40.              No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in this Exhibit C. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.

Exh. C-17 

41.              Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.

42.              Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan. An “Affiliate” for purposes of this paragraph (42) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.

43.              Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no

Exh. C-18 

Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.

44.              Intentionally Omitted.

45.              Appraisal. The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date. The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

46.              Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.

47.              Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.

48.              Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date.

49.              Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.

For purposes of this Exhibit C, “Mortgagee” means the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party.

For purposes of this Exhibit C, “Mortgagor” means the obligor or obligors on a Mortgage Note, including without limitation, any person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure,

Exh. C-19 

the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

Exh. C-20 

Exhibit C-32-1

List of Mortgage Loans with Current Mezzanine Debt

None.

Exh. C-32-1-1 

Exhibit C-32-2

List of Mortgage Loans with Permitted Mezzanine Debt

None.

Exh. C-32-2-1 

 

Exhibit C-32-3

List of Cross-Collateralized and Cross-Defaulted Mortgage Loans

Mortgage Loan Number	Mortgage Loan Name
10 11	Norwood Business Park Madison West Business Park

Exh. C-32-3-1 

 

Exhibit C-32-4

List of Mortgage Loans with Affiliated Mortgagors

None.

Exh. C-32-4-1 

 

SCHEDULE C

EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

The exceptions to the representations and warranties set forth below are listed by the number of the related representation and warranty set forth on Exhibit C and the mortgage loan name and number identified on Exhibit A. Capitalized terms used but not otherwise defined in this Schedule C shall have the meanings set forth in Exhibit C or, if not defined therein, in this Agreement.

 

Rep. No. on Exhibit C		Mortgage Loan and Number as Identified on Exhibit A		Description of the Exception
8	The Plaza Retail Center (Loan No. 17)				Members of borrower (Howard Bowen, William Harvin, Sr., Brian F. Harvin, William Harvin, Jr., Scott Bowen, and Jim H. and Christy Pierce) not in default under LLC borrower’s Operating Agreement have right of refusal (ROFR) to purchase the property if managing members receive an offer they are otherwise willing to accept, and a right of first offer (ROFO) to purchase the property if the managing members decide to market the property for sale. The ROFR/ ROFO is not extinguished by foreclosure; however, the ROFR/ ROFO does not apply to foreclosure or deed in lieu thereof.
18	1201 Lake Robbins (Loan No. 4)				The mortgaged property is security for 4 pari passu notes aggregating $250,000,000. The loan documents permit a property insurance deductible up to $100,000. The in-place coverage provides for a $25,000 deductible.
18	UNICO VI – Dollar General Portfolio (Loan No. 39)				Borrower’s obligation to provide required insurance (including property, rent loss, liability and terrorism coverage) is suspended if tenant (Dollar General) provides third party insurance in accordance with its leases for the related properties and satisfies other various requirements, including the tenant or lease guarantor’s maintaining an investment grade credit rating. In each case, the related Dollar General lease requires the tenant to provide property and liability insurance; however, no maximum deductible is specified, and neither terrorism nor rent loss coverage is expressly required. The in-place property insurance deductible is $1,000, and both 12 months’ rent loss and terrorism coverage are in-place. The tenant has the obligation to rebuild the mortgaged property and no rent abatement or termination remedies for any reason during the loan term.  Further, in the event of a casualty, the tenant controls the disbursement of available casualty proceeds.
26	Storquest - Richmond, CA (Loan No. 6)				The property improvements are comprised of three multi-story self-storage buildings that are legally non-conforming, as follows: (i) the maximum floor-area ratio (0.65x permitted v. 0.98x existing); and (ii) setbacks (25 ft front setback required v. 7.2 ft existing).  Compliance with current zoning is required if there is a casualty to the extent of 75% of the replacement cost of the related structures. L&O coverage is in-place, but, absent a curative approval by the jurisdiction, the improvements could not be rebuilt as they existed pre-casualty.  If proceeds are used in part or fully to pay-down the loan rather than restoring the improvements, a material shortfall could exist between the loan balance and available insurance proceeds and remaining land value. The loan documents provide that, if a curative approval is not

Sch. C-1 

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of the Exception
		obtained within the earlier of 3 months from the date of the related casualty (subject to a lender-determined extension of up to 60 days) or other legal- or insurance-related deadlines, and the lender determines that the post-restoration LTV would be greater than 65% or the post-restoration DSCR would be less than 1.30x (amortizing),  the borrower and guarantor are required to pay the Required Casualty Paydown (available net insurance proceeds being credited against such amount). The “Required Casualty Paydown” means the amount which, when applied to the principal balance of the mortgage loan, results in an LTV no greater than 65% and a DSCR no less than 1.30x (amortizing). The borrower and guarantor have personal liability for any unpaid amounts of the Required Casualty Paydown. In addition, the loan documents provide that the borrower and guarantor have personal liability for losses if, following a casualty, the property cannot be restored to substantially the same condition or used for the same purposes as it was pre-casualty. At the time of loan origination, the guarantor’s stated net worth exceeded the loan amount.
28	All Wells Fargo Mortgage Loans (Loan Nos. 4, 6, 10, 11, 17, 19, 34, 38, 39, 42 and 43)	With respect to actions or events triggering recourse to the borrower or guarantor, the loan documents may provide additional qualifications or limitations, or recast the effect of a breach from springing recourse to a losses carve-out, in circumstances where, apart from identified bad acts of the borrower or guarantor, actions other than borrower-affiliated parties are involved, the property cash flow is inadequate for debt service or other required payments, the effect of the exercise of lender remedies restricts the borrower's access to adequate property cash flow for such purposes, inadequate property cash flow results in involuntary liens from other creditors, or there are lesser or time-limited violations of the triggering actions or events, including transfer violations that do not result in a property transfer or a change in control of the borrower,  related to the borrower's inadvertent failure to provide adequate notice or timely or complete information otherwise required by the loan documents, or otherwise obtain necessary prior approval therefor.
31	All Wells Fargo Mortgage Loans (Loan Nos. 4, 6, 10, 11, 17, 19, 34, 38, 39, 42 and 43)	To the extent exceptions have been taken to the Insurance representation (#18) for failure to provide required insurance, such as self-insurance and leased fee situations, such exceptions also apply to the Acts of Terrorism representation.
33	The Meadows (Loan No. 19)	The borrower is a recycled SPE that previously owned property other than the mortgaged property. The mortgaged property is comprised of two suburban office buildings in a five-building office park. The other three buildings in the office park (4353 Park Terrace Drive, 4373 Park Terrace Drive and 31365 Oak Crest Drive in Westlake Village, CA) were previously owned by the borrower but out-conveyed prior to loan origination in  July 2017, September 2017, and November 2021, respectively (the Prior Owned Property). A Phase I ESA obtained as to Prior Owned Property indicating no recognized environmental conditions. The loan documents provide for personal liability to the borrower and guarantor for losses related to the Prior Owned Property.

Sch. C-2 

 

EXHIBIT D-1

FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER

WELLS FARGO BANK, NATIONAL ASSOCIATION

ASSISTANT SECRETARY’S CERTIFICATE

I, [_____], an Assistant Secretary of Wells Fargo Bank, National Association, a national banking association (the “Mortgage Loan Seller”), HEREBY CERTIFY that:

1. Attached hereto as Exhibit A is a true and complete copy of the Articles of Association of the Mortgage Loan Seller, which are in full force and effect on the date hereof.

2. Attached hereto as Exhibit B is a true and correct copy of the By-laws of the Mortgage Loan Seller, which are in full force and effect on the date hereof.

3. Attached hereto as Exhibit C is a true and complete copy of resolutions relating to loan sales and securitizations duly adopted by the Board of Directors of the Mortgage Loan Seller as of September 5, 2007. Such resolutions have not been modified, amended, rescinded or revoked and remain in full force and effect on the date hereof.

4. Each person who, as an officer or representative of the Mortgage Loan Seller, signed any document delivered in connection with the BANK 2021-BNK38 transaction was at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative and the signatures of such persons appearing on such documents are their genuine signatures.

 

IN WITNESS WHEREOF, I have signed this Certificate as of December 22, 2021. 

Name:

Title:

Exh. D-1-1 

EXHIBIT D-2

FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER

CERTIFICATE OF MORTGAGE LOAN SELLER

In connection with the execution and delivery by Wells Fargo Bank, National Association (“Wells Fargo Bank”) of the various transactions contemplated by, that certain Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”) between Wells Fargo Bank, as seller, and Morgan Stanley Capital I Inc., as purchaser (the “Purchaser”), the undersigned hereby certifies that (i) except as set forth on Schedule C to the Mortgage Loan Purchase Agreement, the representations and warranties of Wells Fargo Bank in or made pursuant to Section 4(a) and Section 4(b) of the Mortgage Loan Purchase Agreement are true and correct in all material respects at and as of the date hereof with the same effect as if made on the date hereof, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date, (ii) Wells Fargo Bank has, in all material respects, complied with all the agreements and satisfied all the conditions on its part required under the Mortgage Loan Purchase Agreement to be performed or satisfied at or prior to the date hereof, and (iii) since the date of the Mortgage Loan Purchase Agreement, there will not have been, immediately prior to the transfer of the Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, any material adverse change in the financial condition of Wells Fargo Bank. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Mortgage Loan Purchase Agreement.

Certified this December 22, 2021.

WELLS FARGO BANK, NATIONAL  ASSOCIATION
By:
	Name:
	Title:

Exh. D-2-1 

EXHIBIT E

FORM OF OFFICER’S CERTIFICATE OF
WELLS FARGO BANK, NATIONAL ASSOCIATION

[_____], 2021

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

cmbs_notices@morganstanley.com

With copies to the Addressees listed on Schedule A

Re: BANK 2021-BNK38 – Officer’s Certificate Pursuant to Section 4(i) of the Mortgage Loan Purchase Agreement

Reference is hereby made to that certain Pooling and Servicing Agreement, dated as of December 1, 2021, and that certain Mortgage Loan Purchase Agreement, dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between the undersigned (the “Mortgage Loan Seller”) and Morgan Stanley Capital I Inc. In accordance with Section 4(i) of the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller hereby certifies to the parties listed on Schedule A, as follows:

1. The Mortgage Loan Seller has delivered the Diligence File (as defined in the Pooling and Servicing Agreement) with respect to each Mortgage Loan to the Designated Site (as defined in the Pooling and Servicing Agreement); and

2. Each Diligence File constitutes all documents required under the definition of “Diligence File” and such Diligence File is organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and Mortgage Loan Seller.

Capitalized terms used herein without definition have the meanings given them in the Mortgage Loan Purchase Agreement.

IN WITNESS WHEREOF, the undersigned has caused this diligence file certification to be executed by its duly authorized officer or representative, the [_] day of [_____], 2021.

Exh. E-1 

Sincerely yours,
WELLS FARGO BANK, NATIONAL     ASSOCIATION
By:
	Name:
	Title:

Exh. E-2 

SCHEDULE A

LIST OF ADDRESSEES TO BE COPIED

GENERAL MASTER SERVICER:

Email: commercial.servicing@wellsfargo.com

GENERAL SPECIAL SERVICER:

Email: NoticeAdmin@midlandls.com

CERTIFICATE ADMINISTRATOR:

Email: cts.cmbs.bond.admin@wellsfargo.com; trustadministrationgroup@wellsfargo.com

TRUSTEE:

Email: CMBSTrustee@wilmingtontrust.com

DIRECTING CERTIFICATEHOLDER:

Email: RESecurities@kkr.com

ASSET REPRESENTATIONS REVIEWER:

Email: notices@pentalphasurveillance.com

OPERATING ADVISOR:

Email: notices@pentalphasurveillance.com

RISK RETENTION CONSULTATION PARTY

Email: cmbs_notices@morganstanley.com

 

Sch. A-1 

EXHIBIT F

FORM OF LIMITED POWER OF ATTORNEY

TO COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION AND MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION WITH RESPECT TO BANK 2021-BNK38, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK38

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between Wells Fargo Bank, National Association (“Seller”) and Morgan Stanley Capital I Inc. (“Depositor”), Seller is selling certain commercial, multifamily and/or manufactured housing community mortgage loans (the “Mortgage Loans”) to Depositor;

WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer (the “General Special Servicer”), National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Wilmington Trust, National Association, as trustee (the “Trustee”), and Computershare Trust Company, National Association, as certificate administrator, as custodian (in such capacity, the “Custodian”), as certificate registrar, and as authenticating agent, the Trustee, the Custodian and the General Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;

WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;

NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of “Mortgage File” in, and in accordance with Section 1.01 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the

Exh. F-1 

appropriate filing and recording offices; and (ii) to prepare, execute and file or record in the appropriate public filing or recording offices, as applicable, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the General Special Servicer only such powers, responsibilities and authority as are set forth in Section 2 of the Mortgage Loan Purchase Agreement.

Seller does also hereby make, constitute and appoint the General Special Servicer, acting solely in its capacity as General Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the General Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the General Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.

The enumeration of particular powers herein is not intended in any way to limit the grant to the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the General Special Servicer, the Custodian, the Trust and the Certificateholders, neither the Custodian nor the General Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with the Custodian (on behalf of the Trustee) or the General Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the General Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the General Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by the Custodian or the General Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.

Any act or thing lawfully done hereunder by the Custodian (on behalf of the Trustee) or the General Special Servicer shall be binding on Seller and Seller’s successors and assigns.

This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the General Special Servicer, as applicable, until the earliest occurrence of any of the following events:

Exh. F-2 

(1) with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement;

(2) with respect to the General Special Servicer, the termination of such entity and its replacement with a successor General Special Servicer under the terms of the Pooling and Servicing Agreement;

(3) with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian;

(4) with respect to the General Special Servicer, the appointment of a receiver or conservator with respect to the business of such entity, or the filing of a voluntary or involuntary petition in bankruptcy by or against such entity;

(5) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust;

(6) with respect to each of the Custodian (on behalf of the Trustee) and the General Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and

(7) with respect to the General Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 7.01(a) of the Pooling and Servicing Agreement with respect to the General Special Servicer.

Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.

THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

[Signature on next page]

Exh. F-3 

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2021.

WELLS FARGO BANK, NATIONAL     ASSOCIATION
By:
	Name:
	Title:

 

Exh. F-4 

ACKNOWLEDGEMENT

STATE OF	)
	)ss:
COUNTY OF	)

On this ____ day of _____________ 20__, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of Wells Fargo Bank, National Association, and that the seal affixed to the foregoing instrument is the corporate seal of said entity, and that said instrument was signed and sealed in behalf of said entity by authority of its board of directors (or equivalent authorizing parties), and said ___________________ acknowledged said instrument to be the free act and deed of said entity.

Name:
	Notary Public in and for said County and State

My Commission Expires:

_____________________________________

 

Exh. F-5 

EX-99.4

Exhibit 99.4

EXECUTION VERSION

MORTGAGE LOAN PURCHASE AGREEMENT

This Mortgage Loan Purchase Agreement (this “Agreement”), is dated and effective as of December 13, 2021, between National Cooperative Bank, N.A., as seller (in such capacity, together with its successors and permitted assigns hereunder, the “Mortgage Loan Seller” or “Seller”), and Morgan Stanley Capital I Inc., as purchaser (in such capacity, together with its successors and permitted assigns hereunder, the “Purchaser”).

RECITALS

The Mortgage Loan Seller desires to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser desires to purchase, subject to the terms and conditions set forth herein, the commercial, multifamily and/or manufactured housing community mortgage loans (collectively, the “Mortgage Loans”) identified on the schedule annexed hereto as Exhibit A (as such schedule may be amended from time to time pursuant to the terms hereof, the “Mortgage Loan Schedule”).

The Purchaser intends to create a trust (the “Trust”), the primary assets of which will be a segregated pool of commercial, multifamily and/or manufactured housing community mortgage loans, that includes the Mortgage Loans. Beneficial ownership of the assets of the Trust (such assets collectively, the “Trust Fund”) will be evidenced by a series of mortgage pass-through certificates (the “Certificates”). Certain classes of the Certificates will be rated by nationally recognized statistical rating organizations (the “Rating Agencies”). Certain classes of Certificates (the “Registered Certificates”) will be registered under the Securities Act of 1933, as amended (the “Securities Act”), and certain classes of Certificates (the “Non-Registered Certificates”) will not be registered under the Securities Act. The Trust will be created and the Certificates will be issued pursuant to a pooling and servicing agreement to be dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as depositor (the “Depositor”), Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer (in such capacity, the “NCB Master Servicer”) and as NCB special servicer (in such capacity, the “NCB Special Servicer”), Pentalpha Surveillance LLC, as operating advisor (in such capacity, the “Operating Advisor”) and as asset representations reviewer (in such capacity, the “Asset Representations Reviewer”), Computershare Trust Company, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), as tax administrator and as custodian (in such capacity, the “Custodian”), and Wilmington Trust, National Association, as trustee (the “Trustee”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement as in full force and effect on the Closing Date (as defined in Section 1 hereof) (except with respect to the definition of “Servicing File,” which for purposes of this Agreement shall not include the documents described in clause (b) in the definition of such term in the Pooling and Servicing Agreement). Any reference to a provision of the Pooling and Servicing Agreement shall be to the Pooling and Servicing Agreement as in full force and effect on the Closing Date. It is anticipated that the Purchaser will transfer the Mortgage Loans to the Trustee on behalf of the Trust contemporaneously with its purchase of the Mortgage Loans hereunder.

  

 

The Purchaser intends to sell the Registered Certificates to Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”, and MS&Co., BofA Securities, WFS, Academy and Drexel, collectively in such capacities, the “Underwriters”) pursuant to an underwriting agreement, dated as of the date hereof (the “Underwriting Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Underwriters. The Purchaser intends to sell the Non-Registered Certificates (other than the RR Interest) to MS&Co., BofA Securities, WFS, Academy and Drexel (collectively in such capacities, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated as of the date hereof (the “Certificate Purchase Agreement”), between the Purchaser, Morgan Stanley Mortgage Capital Holdings LLC and the Initial Purchasers. The Purchaser intends to transfer the RR Interest to Morgan Stanley Bank, N.A. (“MSBNA”), Bank of America, National Association and Wells Fargo Bank, National Association pursuant to the RR Interest Transfer Agreement, dated as of the date hereof (the “RR Interest Transfer Agreement”), between the Depositor, MSBNA, Bank of America, National Association and Wells Fargo Bank, National Association. The Certificates are more fully described in (a) that certain prospectus dated December 14, 2021 (together with all annexes and exhibits thereto and information incorporated therein by reference as of the date of filing thereof, the “Prospectus”), relating to the Registered Certificates and (b) that certain private placement memorandum, dated December 14, 2021 (together with all annexes and exhibits thereto, the “Private Placement Memorandum”), relating to the Non-Registered Certificates (other than the RR Interest), as each may be amended or supplemented at any time hereafter.

The Mortgage Loan Seller will indemnify the Depositor, the Underwriters, the Initial Purchasers and certain related parties with respect to certain disclosure regarding the Mortgage Loans that is contained in (a) that certain preliminary prospectus, dated December 7, 2021, relating to the Registered Certificates (together with all annexes and exhibits thereto and information incorporated therein by reference as of the last Time of Sale (as defined in the Indemnification Agreement), the “Preliminary Prospectus”), (b) that certain preliminary private placement memorandum, dated December 7, 2021, relating to the Non-Registered Certificates (other than the RR Interest) (together with all annexes and exhibits thereto, the “Preliminary Private Placement Memorandum”), (c) the Prospectus, (d) the Private Placement Memorandum and (e) certain other disclosure documents and offering materials relating to the Certificates, pursuant to an indemnification agreement, dated as of the date hereof (the “Indemnification Agreement”), between the Mortgage Loan Seller, the Depositor, the Underwriters and the Initial Purchasers.

NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties agree as follows:

Section 1.                Agreement to Purchase. The Mortgage Loan Seller agrees to sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, and the Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms and conditions set forth herein, the Mortgage Loans. The purchase and sale of the Mortgage Loans shall take place on December 22, 2021 or such other date as shall be mutually acceptable to the parties hereto (the “Closing Date”). As of the Cut-off Date, the Mortgage Loans will have an aggregate principal balance, after application of all payments of

-2- 

 

principal due on the Mortgage Loans, if any, on or before such date, whether or not received, of $66,377,557. The purchase price for the Mortgage Loans shall be an amount set forth on the cross receipt between the Mortgage Loan Seller and the Purchaser dated the Closing Date (which price reflects no deduction for any transaction expenses for which the Mortgage Loan Seller is responsible). The Purchaser shall pay and/or direct to be paid such purchase price to the Mortgage Loan Seller on the Closing Date by wire transfer in immediately available funds or by such other method as shall be mutually acceptable to the parties hereto.

Section 2.                Conveyance of the Mortgage Loans. (a) Effective as of the Closing Date, subject only to receipt of the purchase price referred to in Section 1 hereof and the satisfaction of the other conditions to the Mortgage Loan Seller’s obligations set forth herein, the Mortgage Loan Seller does hereby sell, assign, transfer, set over and otherwise convey to the Purchaser, without recourse, representation or warranty, other than as set forth herein, all of the right, title and interest of the Mortgage Loan Seller in, to and under the Mortgage Loans and all documents included in the related Mortgage Files and Servicing Files, with the understanding that a servicing rights purchase and sale agreement or comparable agreement may be executed by the Mortgage Loan Seller and the NCB Master Servicer. Such assignment includes all scheduled payments of principal and interest under and proceeds of the Mortgage Loans received after their respective Cut-off Dates (other than scheduled payments of interest and principal due on or before their respective Cut-off Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller) together with all documents delivered or caused to be delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan Seller (including all documents included in the related Mortgage Files and Servicing Files and any other documents required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement). The Purchaser shall be entitled to receive all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date, in each case, which shall belong to the Mortgage Loan Seller).

After the Mortgage Loan Seller’s transfer of the Mortgage Loans to the Purchaser, as provided herein, the Mortgage Loan Seller shall not take any action inconsistent with the Purchaser’s ownership of the Mortgage Loans. Except for actions that are the express responsibility of another party hereunder or under the Pooling and Servicing Agreement, and further except for actions that the Mortgage Loan Seller is expressly permitted to complete subsequent to the Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date, take all actions required under applicable law to effectuate the transfer of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser.

(b)               The conveyance of the Mortgage Loans and the related rights and property accomplished hereby is intended by the parties hereto to constitute a sale by the Mortgage Loan Seller of all the Mortgage Loan Seller’s right, title and interest in and to such Mortgage Loans and such other related rights and property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not intended that such conveyance be a pledge of security for a loan. If such conveyance is determined to be a pledge of security for a loan, however, then: (i) this Agreement shall constitute

-3- 

 

a security agreement under applicable law; (ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser, and in any event, the Mortgage Loan Seller hereby grants to the Purchaser, a first priority security interest in all of the Mortgage Loan Seller’s right, title and interest, whether now owned or hereafter acquired, in and to (1) the Mortgage Loans, (2) all documents included in the related Mortgage Files and Servicing Files, (3) all scheduled payments of principal and interest due on the Mortgage Loans after their respective Cut-off Dates, and (4) all other recoveries of principal and interest collected thereon after their respective Cut-off Dates (other than scheduled payments of principal and interest due on the Mortgage Loans on or before their respective Cut-off Dates and collected after such respective Cut-off Dates or, in the case of Qualified Substitute Mortgage Loans (if any), due on or prior to the related date of substitution and collected after such date); (iii) the assignment by the Purchaser to the Trustee of its interests in the Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an assignment of any security interest created hereunder; (iv) the possession by the Purchaser (or the Custodian) of the Mortgage Notes with respect to the Mortgage Loans subject hereto from time to time and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or person designated by such secured party for the purpose of perfecting such security interest under applicable law; and (v) notifications to, and acknowledgments, receipts or confirmations from, Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be reasonably necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement.

(c)               In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, the Custodian, (x) on or before the Closing Date, the Mortgage Note relating to each Mortgage Loan so assigned, endorsed to the Trustee or in blank as specified in clause (i) of the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement (or, alternatively, if the original executed Mortgage Note has been lost, a lost note affidavit and indemnity with a copy of such Mortgage Note as specified in clause (i) of the definition of “Mortgage File”) and (y) on or before the date that is forty-five (45) days following the Closing Date (or such later date as may be provided under Sections 2.01(b) or (c) of the Pooling and Servicing Agreement with respect to any item), the remainder of the Mortgage File for each Mortgage Loan and, except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan as of the Closing Date (which delivery shall be subject to clauses (e) and (f) in the proviso of the definition of “Mortgage File”), any other items required to be delivered or deposited by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement (other than amounts from reserve accounts and originals of letters of credit, which shall be transferred to the NCB Master Servicer) for each Mortgage Loan, and shall take such other actions and pay such costs with respect to the Mortgage Loans as may be required under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement.

-4- 

 

In addition, on or prior to the fifth (5th) Business Day after the Closing Date, Seller, at its expense, shall deliver to the Custodian five (5) limited powers of attorney substantially in the form attached hereto as Exhibit F in favor of the Custodian (on behalf of the Trustee) and the NCB Special Servicer to empower the Custodian (on behalf of the Trustee) and, in the event of the failure or incapacity of the Custodian (on behalf of the Trustee), the NCB Special Servicer, to sign and/or deliver to a third party for submission, or to cause the Custodian to sign and/or deliver to a third party for submission, at the expense of the Mortgage Loan Seller, any Mortgage Loan documents required to be recorded as described in Section 2.01 of the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)). The Mortgage Loan Seller agrees to reasonably cooperate with the Custodian, the Trustee and the NCB Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation. The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one hundred eighty (180) days following the delivery of notice of such absence to the Mortgage Loan Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Custodian or the NCB Special Servicer, as applicable, shall submit such documents for recording, at the Mortgage Loan Seller’s expense, after the periods set forth above, provided, the Custodian or the NCB Special Servicer, as applicable, shall not submit such assignments for recording if the Mortgage Loan Seller produces evidence that it or a third-party on its behalf has sent any such assignment for recording and certifies that the Mortgage Loan Seller is awaiting its return from the applicable recording office.

(d)               In accordance with Section 2.01(b) of the Pooling and Servicing Agreement, with respect to the delivery of a letter of credit in the manner described in clause (A) of clause (xii) of the definition of “Mortgage File”, the Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements of this Agreement and the Pooling and Servicing Agreement by delivering to the Custodian within ten (10) Business Days following the Closing Date with respect to any such letter(s) of credit a copy of such letter of credit, the transfer documentation and such transmittal communication to the issuing bank indicating that such document has been delivered to the issuing bank for reissuance. If a letter of credit is not in a form that would allow the NCB Master Servicer to draw on such letter of credit on behalf of the Trust in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the Mortgage Loan Seller shall deliver copies of the appropriate transfer or assignment documents to the Custodian promptly following receipt of written notification thereof. If not otherwise paid by the related Mortgagor, the Mortgage Loan Seller shall pay any transfer fee required in order to transfer the beneficiary's interest from such Mortgage Loan Seller to the NCB Master Servicer on behalf of the Trust as required hereunder and shall cooperate with the reasonable requests of the NCB Master Servicer in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is reissued to the NCB Master Servicer on behalf of the Trust.

With respect to letters of credit delivered in accordance with subclause (B) of clause (xii) of the definition of “Mortgage File”, within sixty (60) days of the Closing Date or such

-5- 

 

shorter period as is required by the terms of such letter of credit or other applicable Mortgage Loan documents, the Mortgage Loan Seller shall notify the bank issuing the letter of credit that the NCB Master Servicer on behalf of the Trustee shall be the beneficiary under such letter of credit. Section 3.01(f) of the Pooling and Servicing Agreement requires the NCB Master Servicer to present such letter of credit and the related assignment documentation delivered by the Mortgage Loan Seller to the letter of credit bank issuing such letter of credit and request that such letter of credit bank reissue the letter of credit in the name of “National Cooperative Bank, N.A., as NCB Master Servicer, on behalf of Wilmington Trust, National Association, as Trustee, for the benefit of registered holders of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38”. Section 3.01(f) of the Pooling and Servicing Agreement further requires the NCB Master Servicer to use reasonable efforts to obtain such reissued letter of credit back from the issuing letter of credit bank within sixty (60) days (and in any event within ninety (90) days) following the Closing Date. The Mortgage Loan Seller shall provide such reasonable cooperation as requested by the NCB Master Servicer, including without limitation by delivering such additional assignment or amendment documents required by the issuing bank in order to reissue a letter of credit as provided above.

(e)               [Reserved.]

(f)                In connection with the Mortgage Loan Seller’s assignment pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver to and deposit with, or cause to be delivered to and deposited with, or make available or cause to be made available to, the NCB Master Servicer in accordance with Section 2.01(d) of the Pooling and Servicing Agreement, the following items: (i) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, a copy of the Mortgage File for each Mortgage Loan (except that copies of any instruments of assignment that are returned or delivered, as applicable, to the Custodian by the related public recording office in accordance with the requirements of Section 2.01(c) of the Pooling and Servicing Agreement shall be delivered by the Custodian to the NCB Master Servicer) and (ii) within the timeframe for delivery set forth in Section 2.01(d) of the Pooling and Servicing Agreement, and except in the case of a Mortgage Loan that is part of a Non-Serviced Whole Loan, originals or copies of all financial statements, operating statements, appraisals, environmental reports, engineering reports, Insurance Policies, certificates, guaranty/indemnity agreements, property inspection reports, escrow analysis, tax bills, third-party management agreements, asset summary and financial information on the borrower/sponsor and any guarantor, in each case relating to the origination and servicing of any Mortgage Loan or related Serviced Whole Loan that are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan or Serviced Whole Loan in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans or related Serviced Whole Loan(s) (provided that the Mortgage Loan Seller shall not be required to deliver any internal communications (including such communications between the Mortgage Loan Seller and its Affiliates) or underwriting analysis (including documents prepared by the Mortgage Loan Seller or any of its Affiliates for such purposes), draft documents or any documents or materials prepared by it or its Affiliates for internal uses, attorney client communications that are privileged communications or constitute legal or other due diligence analyses or credit underwriting or due diligence analyses or data). In addition, the Mortgage Loan Seller shall, in accordance with Section 2.01(f) of the Pooling and Servicing Agreement, deliver to, and deposit with, or cause to be delivered to, and deposited with, the NCB Master Servicer, within three (3) Business Days after

-6- 

 

the Closing Date, all unapplied reserve funds and Escrow Payments in the possession or under the control of the Mortgage Loan Seller that relate to the Mortgage Loans (other than any Non-Serviced Whole Loans). In addition, not later than the Closing Date, the Mortgage Loan Seller shall provide to the NCB Master Servicer the initial data with respect to each Mortgage Loan that is necessary for the preparation of the initial CREFC^® Financial File and CREFC^® Loan Periodic Update File required to be delivered by the NCB Master Servicer under the Pooling and Servicing Agreement.

(g)               Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Mortgage Loan Seller shall report its transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan) and to reflect that the Mortgage Loans are no longer property of the Mortgage Loan Seller. In no event shall the Mortgage Loan Seller take any action that is inconsistent with the Trust’s ownership of each Mortgage Loan following the Closing Date.

(h)               The Mortgage Loan Schedule, as it may be amended from time to time, shall conform to the requirements set forth in the Pooling and Servicing Agreement (except with respect to the Administrative Cost Rate). The Mortgage Loan Seller shall, within fifteen (15) days of its discovery or receipt of notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case may be, an amended Mortgage Loan Schedule; provided that this sentence shall not be construed to relieve the Mortgage Loan Seller of any liability for any related Breach or to shorten the period available to the Mortgage Loan Seller with respect to the cure, repurchase or substitution provisions with respect to a Material Defect set forth in Section 5.

Section 3.                Examination of Mortgage Loan Files and Due Diligence Review. The Mortgage Loan Seller shall reasonably cooperate with any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or before the Closing Date. The fact that the Purchaser has conducted or has failed to conduct any partial or complete examination of any of the Mortgage Files for, and/or any of such other documents and records relating to, the Mortgage Loans, shall not affect the Purchaser’s right to pursue any remedy available in equity or at law for a breach of the Mortgage Loan Seller’s representations and warranties made pursuant to Section 4, except as expressly set forth in Section 5.

Section 4.                Representations, Warranties and Covenants of the Mortgage Loan Seller and the Purchaser. (a) The Mortgage Loan Seller hereby makes, as of the date hereof (and, in connection with any replacement of a Defective Loan (as defined in Section 4(f) hereof) with one or more Qualified Substitute Mortgage Loans (also as defined in Section 4(f) hereof), pursuant to Section 5(a) hereof, as of the related date of substitution), to and for the benefit of the Purchaser, each of the representations and warranties set forth in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for the benefit of the Mortgage Loan Seller, each of the representations and warranties set forth in Exhibit B-2.

(b)               The Mortgage Loan Seller hereby makes, as of the date hereof (or as of such other date specifically provided in the particular representation or warranty), to and for the benefit

-7- 

 

of the Purchaser, each of the representations and warranties set forth in Exhibit C, subject to the exceptions set forth in Schedule C. The Mortgage Loan Seller is also referred to herein as the “Responsible Repurchase Party”.

(c)               The Mortgage Loan Seller hereby represents and warrants, as of the date hereof, to and for the benefit of the Purchaser only, that the Mortgage Loan Seller has not dealt with any broker, investment banker, agent or other person (other than the Depositor or an affiliate thereof, the Underwriters and the Initial Purchasers) who may be entitled to any commission or compensation in connection with the sale to the Purchaser of the Mortgage Loans.

(d)               The Mortgage Loan Seller hereby represents and warrants that, with respect to the Mortgage Loans and the Mortgage Loan Seller’s role as “originator” (or the role of any third party as “originator” of any Mortgage Loan for which the Mortgage Loan Seller was not the originator) and “sponsor” in connection with the issuance of the Registered Certificates, the information regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged Properties and/or the Mortgage Loan Seller contained in each of the Preliminary Prospectus and the Prospectus complies in all material respects with the applicable disclosure requirements of Regulation AB as in effect on the date hereof and for which compliance is required as of the date hereof. As used herein, “Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been or may hereafter be from time to time provided by the Securities and Exchange Commission (the “Commission”) or by the staff of the Commission, in each case as effective from time to time as of the compliance dates specified therein.

(e)               The Mortgage Loan Seller hereby represents and warrants that it is not requiring the NCB Master Servicer to retain any Sub-Servicer for any of the Mortgage Loans in connection with the transactions contemplated by this Agreement.

(f)                The Responsible Repurchase Party hereby agrees that it shall be deemed to make to and for the benefit of the Purchaser, as of the date of any substitution, with respect to any replacement Mortgage Loan (a “Qualified Substitute Mortgage Loan”) that is substituted for a Defective Loan by the Responsible Repurchase Party pursuant to Section 5(a) of this Agreement, each of the representations and warranties set forth in Exhibit C to this Agreement. For purposes of the representations and warranties set forth in Exhibit C, representations and warranties made as of the Closing Date or as of the Cut-off Date shall, in the case of a Qualified Substitute Mortgage Loan, be made as of the date of substitution. From and after the date of substitution, each Qualified Substitute Mortgage Loan, if any, shall be deemed to constitute a “Mortgage Loan” hereunder for all purposes. A “Defective Loan” is any Mortgage Loan as to which there is an unremedied Material Defect.

(g)               Except for the agreed-upon procedures report obtained from the accounting firm engaged to perform procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (such report, the “Accountants’ Due Diligence Report”), the Mortgage Loan Seller has not obtained (and, through and including the Closing Date, will not obtain without the consent of the Purchaser) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 15Ga-2”)) in connection with the securitization

-8- 

 

transaction contemplated herein and in the Prospectus and Private Placement Memorandum and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Mortgage Loan Seller has not employed (and, through and including the Closing Date, will not employ without the consent of the Purchaser) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus and Private Placement Memorandum. The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(g).

(h)               Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Mortgage Loan Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan; provided that such documents are clearly labeled and identified) to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the Mortgage Loan Seller.

(i)                 Within sixty (60) days after the Closing Date, the Mortgage Loan Seller shall provide the Depositor a certificate substantially in the form of Exhibit E (which may be sent by email to cmbs_notices@morganstanley.com).

(j)                 If, as part of an Asset Review of a Mortgage Loan, the Asset Representations Reviewer determines it is missing any document that is required to be part of the Review Materials for such Mortgage Loan and that is necessary in connection with its completion of the Asset Review, then, upon written request of the Asset Representations Reviewer, the Mortgage Loan Seller shall provide to the Asset Representations Reviewer, within ten (10) Business Days of receipt of such written request, any such document; provided, that the Mortgage Loan Seller shall be required to deliver such missing document only to the extent that such document is in the possession of the Mortgage Loan Seller, but in any event excluding any documents that contain information that is proprietary to the related originator or the Mortgage Loan Seller or any draft documents or privileged or internal communications.

(k)               Upon the completion of an Asset Review with respect to each Mortgage Loan in accordance with the Pooling and Servicing Agreement and receipt of a written invoice from the Asset Representations Reviewer, the Mortgage Loan Seller shall pay the Asset Representations Reviewer Asset Review Fee for the Mortgage Loans subject to that Asset Review within sixty (60) days of such written invoice by the Asset Representations Reviewer; provided, that if any fees payable pursuant to this Section 4(k) are paid by the Trust pursuant to Section 12.02(b) of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall reimburse the Trust for the amount of any such fees.

(l)                 The Mortgage Loan Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and Servicing Agreement, the Mortgage Loan Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to such dispute resolution method.

-9- 

 

(m)             The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon any failure by the Mortgage Loan Seller to (A) pay the fees described under Section 4(k) above within sixty (60) days of written invoice by the Asset Representations Reviewer or (B) within sixty (60) days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement), provide all documents required to be delivered by it pursuant to Section 4(h) of this Agreement.

(n)               The Mortgage Loan Seller covenants with the Purchaser that if, on or prior to the later of (i) the ninetieth (90^th) day following the Closing Date and (ii) the date upon which all Certificates have been sold to parties unaffiliated with the Depositor, as a result of the occurrence of any event that occurred prior to the Closing Date with respect to the Mortgage Loans or the Mortgage Loan Seller (and the Mortgage Loan Seller hereby covenants to promptly notify the Depositor, the Underwriters and the Initial Purchasers of the occurrence of any such event to the extent it has knowledge thereof), an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to be delivered in connection with sales of the Certificates by the Underwriters, the Initial Purchasers or a dealer, in order to correct any untrue statement of a material fact or any omission to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading, or an amendment or supplement to the Prospectus or Private Placement Memorandum, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, is necessary to comply with applicable law, the Mortgage Loan Seller shall do all things necessary (or, with respect to information relating to the Mortgage Loans, provide all information in its possession) to assist the Depositor to prepare and furnish, at the expense of the Mortgage Loan Seller (to the extent that such amendment or supplement relates to the Mortgage Loan Seller, the Mortgage Loans and/or any information describing the same, as provided by the Mortgage Loan Seller), to the Underwriters and Initial Purchasers such amendments or supplements to the Prospectus or Private Placement Memorandum as may be necessary, so that the statements in the Prospectus or Private Placement Memorandum as so amended or supplemented, including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so contain an untrue statement of material fact or omit to state a material fact required to be stated therein (solely in the case of the Prospectus) or necessary to make the statements therein, in the light of the circumstances when the Prospectus or Private Placement Memorandum is delivered to a purchaser, not misleading or so that the Prospectus or Private Placement Memorandum (as so annexed or supplemented), including Annexes A-1, A-2 and A-3 of the Prospectus, with respect to any information regarding the Mortgage Loans or the Mortgage Loan Seller, will not so fail to comply with applicable law. All terms used in this Section 4(n) and not otherwise defined herein shall have the meaning set forth in the Indemnification Agreement. Notwithstanding the foregoing, the Mortgage Loan Seller shall have no affirmative obligation to monitor the performance of the Mortgage Loans or any changes in condition or circumstance of any Mortgaged Property, Mortgagor, guarantor or any of their Affiliates after the Closing Date in connection with its

-10- 

 

obligations under this Section 4(n). The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 4(n).

Section 5.                Notice of Breach; Cure, Repurchase and Substitution. (a) The Mortgage Loan Seller shall, not later than ninety (90) days after (i) except in the case of the succeeding clause (ii), the Mortgage Loan Seller’s receipt of notice of or, if earlier, the Mortgage Loan Seller’s discovery of, a Material Defect or (ii) in the case of a Material Defect relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage, the earlier of (x) the discovery by the Mortgage Loan Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of the Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) day period, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at the Mortgage Loan Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Trust reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable), at the applicable Purchase Price and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted) for such affected Mortgage Loan or REO Loan (provided that in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the NCB Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and Section 2.03 of the Pooling and Servicing Agreement; provided, however, that except with respect to a Material Defect resulting solely from the failure by the Mortgage Loan Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of Mortgage File by a date not later than eighteen (18) months following the Closing Date, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and the Mortgage Loan Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, the Mortgage Loan Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or REO Loan (excluding any related Companion Loan, if applicable) or substitute a Qualified Substitute Mortgage Loan (other than with respect to the Whole Loans, for which no substitution will be permitted)); provided, further, that with respect to such Extended Cure Period the Mortgage Loan Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the NCB Master Servicer, the NCB Special Servicer, the Operating Advisor and (with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, prior to the occurrence of a Consultation Termination Event) the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions the Mortgage Loan Seller is pursuing in connection with the cure thereof and stating that the Mortgage Loan Seller anticipates that such Material Defect will be cured within the Extended Cure Period; and provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the Mortgage Loan Seller to have received the recorded document, then the Mortgage Loan Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations

-11- 

 

in respect of such Material Defect until eighteen (18) months after the Closing Date so long as the Mortgage Loan Seller certifies to the Trustee, the NCB Master Servicer, the NCB Special Servicer, the Directing Certificateholder (prior to the occurrence and continuance of a Consultation Termination Event) and the Certificate Administrator no less than every ninety (90) days, beginning at the end of such Extended Cure Period, that the Material Defect is still in effect solely because of its failure to have received the recorded document and that the Mortgage Loan Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). Notwithstanding the foregoing, any Defect or Breach that causes any Mortgage Loan not to be a “qualified mortgage” (within the meaning of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a qualified mortgage) shall be deemed to materially and adversely affect the interests of Certificateholders therein, and (subject to the Mortgage Loan Seller’s right to cure such Defect or Breach during the Initial Cure Period) such Mortgage Loan shall be repurchased or substituted for without regard to the Extended Cure Period described in the preceding sentence. If the affected Mortgage Loan is to be repurchased, the funds in the amount of the Purchase Price remitted by the Mortgage Loan Seller are to be remitted by wire transfer to the NCB Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis.

If the Mortgage Loan Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between the Mortgage Loan Seller and the NCB Special Servicer on behalf of the Trust (and, with respect to any Mortgage Loan other than an Excluded Loan with respect to the Directing Certificateholder or the Holder of the majority of the Controlling Class, with the consent of the Directing Certificateholder if no Control Termination Event has occurred and is continuing) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the NCB Special Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the NCB Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4(k) above attributable to the Asset Review of such Mortgage Loan and not previously paid by the Mortgage Loan Seller. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Trustee on their behalf regarding any such Material Defect in lieu of any obligation of the Mortgage Loan Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between the Mortgage Loan Seller and the NCB Special Servicer on behalf of the Trust. The following terms shall apply to any Loss of Value Payment: (i) prior to any agreement or settlement between the Mortgage Loan Seller and the NCB Special Servicer nothing in this paragraph shall preclude the Mortgage Loan Seller, the NCB Master Servicer or the NCB Special Servicer, as applicable, from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Material Defect as a result of a Mortgage Loan not constituting a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but without regard to the rule of Treasury

-12- 

 

Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be treated as a “qualified mortgage”) may not be cured by a Loss of Value Payment.

The Mortgage Loan Seller’s obligation to cure any Material Defect, repurchase or substitute for any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 5 shall constitute the sole remedy available to the Purchaser in connection with a Material Defect; provided, however, that no limitation of remedy is implied with respect to the Mortgage Loan Seller’s breach of its obligation to cure, repurchase or substitute in accordance with the terms and conditions of this Agreement. It is acknowledged and agreed that the representations and warranties are being made for risk allocation purposes.

The remedies provided for in this subsection with respect to any Material Defect with respect to any Mortgage Loan shall also apply to the related REO Property.

If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the Mortgage Loan Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Trust (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the NCB Master Servicer, the NCB Special Servicer, the Certificate Administrator, the Trustee or the Trust that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4(k) above to the extent not previously paid by the Mortgage Loan Seller to the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan. Except as provided in the proviso to the immediately preceding sentence, the Mortgage Loan Seller shall remit the amount of such costs and expenses to the NCB Special Servicer for disbursement to the applicable Persons and upon its making such remittance, the Mortgage Loan Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the Mortgage Loan Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by the Mortgage Loan Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to the Mortgage Loan Seller.

Notwithstanding anything contained in this Agreement or the Pooling and Servicing Agreement, a delay in either the discovery of a Material Defect or in providing notice of such Material Defect shall relieve the Mortgage Loan Seller of its obligation to cure, repurchase or substitute for (or make a Loss of Value Payment with respect to) the related Mortgage Loan under this Agreement if (i) the Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is a result of the failure by the Purchaser or any other party to the Pooling and Servicing Agreement to provide prompt notice as required by the terms of this Agreement or the Pooling and Servicing Agreement after such party has actual knowledge of such Material Defect (it being understood that knowledge shall not be deemed to exist by reason of the Custodial Exception Report or possession of the Mortgage File), (iii) such Material Defect does not relate to the applicable Mortgage Loan not being a “qualified mortgage” within the meaning of Code Section 860G(a)(3), but without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective obligation to be treated as a qualified mortgage, and (iv) such delay precludes the Mortgage Loan Seller from curing such Material Defect and such Material Defect was otherwise curable. Notwithstanding anything contained in this Agreement, if a

-13- 

 

Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel or other hospitality property, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC financing statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect.

If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, the Mortgage Loan Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and the Mortgage Loan Seller provides an Opinion of Counsel to the effect that such release would not cause an Adverse REMIC Event and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation.

(b)               Whenever one or more Qualified Substitute Mortgage Loans are substituted for a Defective Loan by the Responsible Repurchase Party as contemplated by this Section 5, upon direction by the NCB Master Servicer or the NCB Special Servicer, as applicable, the Responsible Repurchase Party shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies or such Qualified Substitute Mortgage Loans satisfy, as the case may be, all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. No mortgage loan may be substituted for a Defective Loan as contemplated by this Section 5 if the Mortgage Loan to be replaced was itself a Qualified Substitute Mortgage Loan, in which case, absent a cure of the relevant Material Defect, the affected Mortgage Loan will be required to be repurchased as contemplated hereby. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related date of substitution, and Periodic Payments due with respect to each corresponding Deleted Mortgage Loan (if any) after its respective Cut-off Date and on or prior to the related date of substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related date of substitution, and Periodic Payments due with respect to each corresponding Defective Loan that is purchased or repurchased, as the case may be, or replaced with one or more Qualified Substitute Mortgage Loans (any such Mortgage Loan, a “Deleted Mortgage Loan”) (if any) after the related date of substitution, shall not be part of the Trust Fund and are to be remitted by the NCB Master Servicer to the Responsible Repurchase Party promptly following receipt.

If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the NCB Master Servicer or the NCB Special Servicer, as applicable, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan(s) and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of one or more Qualified Substitute Mortgage Loans for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects.

-14- 

 

If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply.

(c)               The Responsible Repurchase Party shall be entitled, and the Purchaser shall cause the Pooling and Servicing Agreement to entitle the Responsible Repurchase Party, upon the date when the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 has been deposited in the account designated therefor by the Trustee as the assignee of the Purchaser (or the NCB Master Servicer on behalf of the Trustee) and, if applicable, receipt by the Trustee as the assignee of the Purchaser (or the Custodian) of the Mortgage File for each Qualified Substitute Mortgage Loan (if any) to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by the Responsible Repurchase Party, to (i) a release of the Mortgage File and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the Deleted Mortgage Loan to the Responsible Repurchase Party or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by the Responsible Repurchase Party and are reasonably necessary to vest in the Responsible Repurchase Party or its designee the ownership of such Deleted Mortgage Loan, and (iii) the execution and delivery of notice to the affected Mortgagor of the retransfer of such Deleted Mortgage Loan. In connection with any such repurchase or substitution by the Responsible Repurchase Party, the Purchaser shall also cause the Pooling and Servicing Agreement to require each of the NCB Master Servicer and the NCB Special Servicer to deliver to the Responsible Repurchase Party or its designee, and the Responsible Repurchase Party or its designee shall be entitled to delivery from the NCB Master Servicer and the NCB Special Servicer of, any portion of the related Servicing File (as such term is defined in the Pooling and Servicing Agreement), together with any Escrow Payments, reserve funds and any other items required to be delivered by the Mortgage Loan Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the NCB Master Servicer or the NCB Special Servicer, as the case may be, with respect to the Deleted Mortgage Loan, in each case at the expense of the Responsible Repurchase Party.

(d)               [Reserved.]

(e)               The Mortgage Loan Seller acknowledges and agrees that the Purchaser shall have no liability to the Mortgage Loan Seller or otherwise for any failure of the Mortgage Loan Seller or any other party to the Pooling and Servicing Agreement to perform its obligations provided for thereunder.

(f)                The Mortgage Loan Seller (to the extent it receives any request or demand, whether oral or written, that a Mortgage Loan be repurchased or replaced, whether arising from a Material Defect or other breach of a representation or warranty, such recipient a “Seller Request Recipient” and such request or demand, a “Repurchase Request”) agrees to provide to the Purchaser: (i) written notice of any Repurchase Request, which notice will specify if such Repurchase Request is a 15Ga-1 Notice; (ii) written notice of (A) the existence of any dispute regarding such Repurchase Request, whether written or oral, between such Seller Request Recipient and the Person making such Repurchase Request, (B) the expiration of any applicable Initial Cure Period, or, if applicable, any Extended Cure Period, (C) the withdrawal of such

-15- 

 

Repurchase Request by the Person making such Repurchase Request, (D) the rejection of such Repurchase Request by the Seller Request Recipient and (E) the repurchase or replacement of any Mortgage Loan pursuant to this Section 5 and Section 2.03 of the Pooling and Servicing Agreement; and (iii) upon reasonable request of the Purchaser (subject to Section 5(g)), such other information in the Seller Request Recipient’s possession as would be necessary to permit the Purchaser to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase or replacement requests or demands of any Person relating to any Mortgage Loan or to comply with any other obligations applicable to it under law or regulation.

Each notice required to be delivered pursuant to this Section 5(f) may be delivered by electronic means. Each notice required to be delivered pursuant to clauses (i) and (ii) of the immediately preceding paragraph shall be given not later than the tenth (10^th) Business Day after the event giving rise to the requirement for such notice and any information requested pursuant to clause (iii) of the immediately preceding paragraph shall be provided as promptly as practicable after such request is made. Each notice required to be delivered pursuant to clause (i) of the immediately preceding paragraph shall identify (a) the date on which such Repurchase Request was made, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request by such Person. Each notice required to be delivered pursuant to clause (ii) of the immediately preceding paragraph shall identify (a) the date of such withdrawal, rejection, repurchase or replacement, or the date of the commencement of such dispute, as applicable, (b) if pertaining to a dispute, the nature of such dispute, (c) if pertaining to the expiration of an Initial Cure Period or an Extended Cure Period, the expiration date of such Initial Cure Period or, if applicable, an Extended Cure Period, (d) if pertaining to a withdrawal, the basis for such withdrawal given to the Seller Request Recipient or an indication that no basis was given by the Person withdrawing such Repurchase Request, (e) if pertaining to a rejection by the Seller Request Recipient, the basis for the Seller Request Recipient’s rejection and (f) if pertaining to a repurchase or replacement, the date of such repurchase or replacement.

(g)               The Mortgage Loan Seller and the Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing the Mortgage Loan Seller or the Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or any information protected by the attorney work product doctrine, (ii) any 15Ga-1 Notice delivered to the Mortgage Loan Seller or the Purchaser under the Pooling and Servicing Agreement is provided only to assist the Mortgage Loan Seller, the Purchaser and any of their respective Affiliates in complying with Rule 15Ga-1, Items 1104 and 1121 of Regulation AB and/or any other law or regulation, (iii) (A) no action taken by, or inaction of, a Repurchase Request Recipient and (B) no information provided to the Mortgage Loan Seller or the Purchaser pursuant to Section 2.02(g) of the Pooling and Servicing Agreement by a Repurchase Request Recipient, shall be deemed to constitute a waiver or defense to the exercise of any legal right the Repurchase Request Recipient may have with respect to this Agreement or the Pooling and Servicing Agreement and (iv) receipt of a 15Ga-1 Notice or delivery of any notice required to be delivered pursuant to Section 5(f) shall not in and of itself constitute delivery, or receipt, of notice of any Material Defect or knowledge on the part of the Mortgage Loan Seller or Responsible

-16- 

 

Repurchase Party of any Material Defect or admission by the Mortgage Loan Seller or Responsible Repurchase Party of the existence of any Material Defect.

(h)               The Mortgage Loan Seller shall provide to the Purchaser relevant portions of any Form ABS-15G that the Mortgage Loan Seller is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Repurchase Request with respect to any Mortgage Loan) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. Promptly upon request, the Purchaser shall provide or cause to be provided to the Mortgage Loan Seller such information regarding the principal balance of any Mortgage Loan as is necessary in order for the Mortgage Loan Seller to prepare any such Form ABS-15G.

(i)                 The Purchaser shall provide to the Mortgage Loan Seller any relevant portions of any Form ABS-15G that the Purchaser is required to file with the Commission pursuant to Rule 15Ga-1 under the Exchange Act (only to the extent that such portions relate to any Mortgage Loan and that was not provided by the Mortgage Loan Seller) on or before the date that is five (5) Business Days prior to the date such Form ABS-15G is required to be filed with the Commission. The Trust’s CIK# is 0001895567.

Section 6.                Closing. The closing of the sale of the Mortgage Loans (the “Closing”) shall be held at the offices of special counsel to the Purchaser at 10:00 a.m., New York City time, on the Closing Date.

The Closing shall be subject to each of the following conditions:

(i)                 All of the representations and warranties of the Mortgage Loan Seller and the Purchaser made pursuant to Section 4 of this Agreement shall be true and correct in all material respects as of the Closing Date (or as of such other specific date expressly contemplated by any such representation or warranty);

(ii)              All documents specified in Section 7 of this Agreement (the “Closing Documents”), in such forms as are agreed upon and reasonably acceptable to the Purchaser and, in the case of the Pooling and Servicing Agreement (insofar as such agreement affects the obligations of the Mortgage Loan Seller hereunder or the rights of the Mortgage Loan Seller as a third party beneficiary thereunder), to the Mortgage Loan Seller, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof;

(iii)            The Mortgage Loan Seller shall have delivered and released to the Purchaser or its designee, all documents, funds and other assets required to be delivered thereto on or before the Closing Date pursuant to Section 2 of this Agreement;

(iv)             The result of any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans performed by or on behalf of the Purchaser pursuant to Section 3 hereof shall be satisfactory to the Purchaser in its reasonable determination;

-17- 

 

(v)               All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with in all material respects, and the Mortgage Loan Seller shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed by it after the Closing Date;

(vi)             The Mortgage Loan Seller shall have paid all fees and expenses payable by it to the Purchaser or otherwise pursuant to this Agreement;

(vii)          The Mortgage Loan Seller shall have received the purchase price for the Mortgage Loans, as contemplated by Section 1 of this Agreement;

(viii)        Neither the Underwriting Agreement nor the Certificate Purchase Agreement shall have been terminated in accordance with its terms;

(ix)             The Commission shall not have issued any stop order suspending the effectiveness of the Purchaser’s Registration Statement; and

(x)               Prior to the delivery of the Preliminary Prospectus to investors, an officer of the Mortgage Loan Seller shall have delivered to the Depositor a sub-certification to the certification provided by the Chief Executive Officer of the Depositor to the Securities and Exchange Commission pursuant to Regulation AB.

Each of the parties agrees to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date.

Section 7.                Closing Documents. The Purchaser or its designee shall have received all of the following Closing Documents, in such forms as are agreed upon and acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the Rating Agencies (collectively, the “Interested Parties”), and upon which the Interested Parties may rely:

(i)                 This Agreement, duly executed by the Purchaser and the Mortgage Loan Seller;

(ii)              Each of the Pooling and Servicing Agreement and the Indemnification Agreement, duly executed by the respective parties thereto;

(iii)            A Secretary’s Certificate substantially in the form of Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of the Mortgage Loan Seller, in his or her individual capacity, and dated the Closing Date, and upon which the Interested Parties may rely, attaching thereto as exhibits (A) the resolutions of the board of directors of the Mortgage Loan Seller authorizing the Mortgage Loan Seller’s entering into the transactions contemplated by this Agreement and the Indemnification Agreement, and (B) the organizational documents of the Mortgage Loan Seller;

(iv)             A certificate of good standing with respect to the Mortgage Loan Seller issued by the Office of the Comptroller of the Currency of the United States not

-18- 

 

earlier than thirty (30) days prior to the Closing Date, and upon which the Interested Parties may rely;

(v)               A certificate of the Mortgage Loan Seller substantially in the form of Exhibit D-2 hereto, executed by an executive officer of the Mortgage Loan Seller on the Mortgage Loan Seller’s behalf and dated the Closing Date, and upon which the Interested Parties may rely;

(vi)             A written opinion of in-house or independent counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the Mortgage Loan Seller’s due authorization, execution and delivery of this Agreement and the Indemnification Agreement;

(vii)          A written opinion of special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Interested Parties and the Trustee, relating to the enforceability of this Agreement against the Mortgage Loan Seller;

(viii)        A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser, the Underwriters (only with respect to the Preliminary Prospectus) and the Initial Purchasers (only with respect to the Preliminary Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Preliminary Prospectus and in the Preliminary Private Placement Memorandum (as the same may be amended or supplemented on or before the pricing date for the Certificates) substantially to the effect that nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Preliminary Prospectus or the Preliminary Private Placement Memorandum, at the time when sales to purchasers of the Certificates were first made, contained, with respect to the Mortgage Loan Seller or the Mortgage Loans, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading;

(ix)             A letter from special counsel for the Mortgage Loan Seller, dated the Closing Date and addressed to the Purchaser (only with respect to the Private Placement Memorandum), the Underwriters (only with respect to the Prospectus) and the Initial Purchasers (only with respect to the Private Placement Memorandum), relating to the information regarding the Mortgage Loans set forth in agreed upon sections of the Prospectus and the Private Placement Memorandum (as the case may be and as the same may be amended or supplemented on or before the Closing Date) substantially to the effect that (a) nothing has come to such special counsel’s attention that would lead such special counsel to believe that the agreed upon portions of the Prospectus or the Private Placement Memorandum (as applicable) as of the date thereof or as of the Closing Date contained or contains, with respect to the Mortgage Loan Seller or the Mortgage Loans, the related borrowers or the related Mortgaged Properties, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Mortgage Loan Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) that, with respect to information regarding

-19- 

 

the Mortgage Loan Seller and the Mortgage Loans, the related borrowers or the related Mortgaged Properties, the Prospectus is appropriately responsive in all material respects to the applicable requirements of Regulation AB;

(x)               Copies of all other opinions rendered by counsel for the Mortgage Loan Seller to the Rating Agencies in connection with the transactions contemplated by this Agreement, including, but not limited to, with respect to the characterization of the transfer of the Mortgage Loans hereunder as a true sale, with each such opinion to be addressed to the other Interested Parties and the Trustee or accompanied by a letter signed by such counsel stating that the other Interested Parties and the Trustee may rely on such opinion as if it were addressed to them as of the date thereof;

(xi)             One or more agreed-upon procedures letters from a nationally recognized firm of certified public accountants acceptable to the Underwriters and the Initial Purchasers, dated (A) the date of the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and (B) the date of the Prospectus and the Private Placement Memorandum, respectively, and addressed to, and in form and substance acceptable to, the Interested Parties (other than the Rating Agencies), stating in effect that, using the assumptions and methodology used by the Mortgage Loan Seller, the Purchaser, the Underwriters or the Initial Purchasers, as applicable, all of which shall be described in such letters, and which shall include a comparison of certain mortgage loan-related documents to the information set forth in the Master Tape (as defined in the Indemnification Agreement), they have recalculated such numbers and percentages relating to the Mortgage Loans set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and set forth in the Prospectus and the Private Placement Memorandum, respectively, and have compared the results of their calculations to the corresponding items in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, and found each such number and percentage set forth in the Preliminary Prospectus and the Preliminary Private Placement Memorandum, and in the Prospectus and the Private Placement Memorandum, respectively, to be in agreement with the results of such calculations;

(xii)          If any of the Certificates are “mortgage related securities” within the meaning of the Secondary Mortgage Market Enhancement Act of 1984, as amended, a certificate of the Mortgage Loan Seller regarding origination of the Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the Exchange Act; and

(xiii)        Such further certificates, opinions and documents as the Purchaser may reasonably request or any Rating Agency may require.

Section 8.                Additional Reporting Under Regulation AB. With respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall provide to the Purchaser and the Certificate Administrator any information that constitutes “Additional Form 10-D Information” or “Additional Form 10-K Information” but only if and to the extent that the Mortgage Loan Seller (or any originator of the Mortgage Loans sold by the Mortgage Loan Seller to the Depositor, if such originator constitutes an “originator” contemplated by Item 1110(b) of Regulation AB and such information is required

-20- 

 

to be reported with respect to such originator) is the applicable “Party Responsible” (solely in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) under the terms of Exhibit AA or Exhibit BB to the Pooling and Servicing Agreement (it being acknowledged that the Mortgage Loan Seller (solely as in its capacity as a sponsor or originator (or as successor in interest to any predecessor originator), within the meaning of Regulation AB, of any Mortgage Loans) does not constitute the “Party Responsible” for any “Form 8-K Information” set forth on Exhibit CC of the Pooling and Servicing Agreement). In each case, such delivery shall be made in a form readily convertible to an EDGAR compatible form, or in such other form as otherwise agreed by the Purchaser, the Certificate Administrator and the Mortgage Loan Seller. In each case, such delivery shall be made not later than five (5) calendar days after the related Distribution Date (in the case of any such “Additional Form 10-D Information”), and no later than March 1 of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements (in the case of any such “Additional Form 10-K Information”). In no event shall the Mortgage Loan Seller be required to provide any information that is not required to be reported on Form 10-D or Form 10-K, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder.

In addition, with respect to any period during which the Trust is subject to the reporting requirements of the Exchange Act, the Mortgage Loan Seller shall reasonably cooperate with each of the Depositor, the applicable Master Servicer and the Certificate Administrator, upon the reasonable request of such party, by providing all Mortgage Loan-related documents, data and information in the possession of the Mortgage Loan Seller at or prior to the Closing Date and on the date of the request and necessary for the ongoing compliance by the Depositor and the Trust with the requirements of Form 10-D with respect to Items 1111 and 1125 of Regulation AB; provided that the Mortgage Loan Seller shall not be required to provide any documents that are proprietary to the related originator or the Mortgage Loan Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis.

Section 9.                Costs. Whether or not this Agreement is terminated, the Mortgage Loan Seller will pay its pro rata share (the Mortgage Loan Seller’s pro rata portion to be determined according to the percentage that the aggregate Cut-off Date Balance of all the Mortgage Loans represents as to the aggregate Cut-off Date Balance of all the mortgage loans of the Trust Fund (the “Cut-off Date Pool Balance”)) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented set-up fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of a firm of certified public accountants selected by the Purchaser and the Mortgage Loan Seller with respect to numerical information in respect of the Mortgage Loans and the Certificates included in the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item), including the cost of obtaining any agreed-upon procedures letters with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and

-21- 

 

disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering this Agreement and the furnishing to the Underwriters or the Initial Purchasers, as applicable, of such copies of the Preliminary Prospectus, the Preliminary Private Placement Memorandum, the Prospectus and the Private Placement Memorandum or any other marketing materials or structural and collateral term sheets (or any similar item) and this Agreement as the Underwriters and the Initial Purchasers may reasonably request; (viii) the fees of the rating agency or agencies engaged to consider rating the Certificates or hired and requested to rate the Certificates; (ix) all registration fees incurred by the Purchaser in connection with the filing of its Registration Statement allocable to the issuance of the Registered Certificates; (x) the upfront fee payable to the Asset Representations Reviewer on the Closing Date in the amount agreed by the parties hereto; and (xi) the reasonable fees and expenses of special counsel to the Purchaser.

Section 10.            Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered to or mailed, by registered mail, postage prepaid, by overnight mail or courier service, or transmitted by facsimile and confirmed by similar mailed writing, if to the Purchaser, addressed to the Purchaser at Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention: Jane Lam (with a copy to Morgan Stanley Capital I Inc., 1633 Broadway, 29th Floor, New York, New York 10019, Attention: Legal Compliance Division and a copy by email to cmbs_notices@morganstanley.com), or such other address as may be designated by the Purchaser to the Mortgage Loan Seller in writing; or, if to the Mortgage Loan Seller, addressed to 2011 Crystal Drive, Suite 800, Arlington, Virginia 22202-3709, Attention: Kathleen Luzik, Facsimile No.: (703) 647-3474 (with a copy to: Loeb & Loeb LLP, 345 Park Avenue, New York, New York 10154, Attention: Steven M. Kornblau), or such other address as may be designated by the Mortgage Loan Seller to the Purchaser in writing.

Section 11.            Miscellaneous. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

-22- 

 

Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by a writing signed by a duly authorized officer of the party against whom enforcement of such change, waiver, discharge or termination is sought to be enforced. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and no other person will have any right or obligation hereunder. The Mortgage Loan Seller shall be an express third party beneficiary to the Pooling and Servicing Agreement to the extent set forth therein. The Asset Representations Reviewer shall be an express third party beneficiary of Sections 4(i), 4(j), and 4(k) of this Agreement.

Section 12.            Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, incorporated herein by reference or contained in the certificates of officers of the Mortgage Loan Seller delivered pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans by the Mortgage Loan Seller to the Purchaser and by the Purchaser to the Trust, notwithstanding any restrictive or qualified endorsement or assignment in respect of any Mortgage Loan.

Section 13.            Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or is held to be void or unenforceable in any particular jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.

Section 14.            Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THE AGREEMENT, THE RELATIONSHIP OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING REGARDING SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, WITH RESPECT TO SUCH COURTS, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN

-23- 

 

OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.

Section 15.            Further Assurances. The Mortgage Loan Seller and the Purchaser each agrees to execute and deliver such instruments and take such further actions as any other party hereto may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of this Agreement.

Section 16.            Successors and Assigns. The rights and obligations of the Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage Loan Seller without the prior written consent of the Purchaser, except that any person into which the Mortgage Loan Seller may be merged or consolidated, or any person resulting from any merger, conversion or consolidation to which the Mortgage Loan Seller is a party, or any person succeeding to all or substantially all of the business of the Mortgage Loan Seller, shall be the successor to the Mortgage Loan Seller hereunder. In connection with its transfer of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the Purchaser is expressly authorized to assign its rights under this Agreement, in whole or in part, to the Trustee for the benefit of the registered holders and beneficial owners of the Certificates. To the extent of any such assignment, the Trustee, for the benefit of the registered holders and beneficial owners of the Certificates, shall be the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and their respective successors and permitted assigns.

Section 17.            Information. The Mortgage Loan Seller shall provide the Purchaser with such information about itself, the Mortgage Loans and the underwriting and servicing procedures applicable to the Mortgage Loans as is (i) required under the provisions of Regulation AB, (ii) required by a Rating Agency or a governmental agency or body or (iii) reasonably requested by the Purchaser for use in a private disclosure document.

Section 18.            Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the matters addressed herein, and this Agreement supersedes any prior agreements and/or understandings, written or oral, with respect to such matters; provided, however, that in no event shall this provision be construed to limit the effect of the Indemnification Agreement or the memorandum of understanding dated as of December 1, 2021 between the Mortgage Loan Seller, the Purchaser and certain other parties or any separate acknowledgments and agreements executed and delivered pursuant to such memorandum of understanding.

Section 19.            Recognition of U.S. Special Resolution Regimes.

(a)               In the event a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of this Agreement (and any interest and obligation in or under, and any property securing, this Agreement) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under, and any property securing, this

-24- 

 

Agreement) were governed by the laws of the United States of America or a State of the United States of America.

(b)               In the event that a Covered Party or any BHC Affiliate of such Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Right under this Agreement that may be exercised against such Covered Party is permitted to be exercised to no greater extent than such Default Right could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States of America or a State of the United States of America.

“BHC Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §1841(k).

“Covered Party” means any party to this Agreement that is one of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b), or any subsidiary of such a covered bank to which 12 C.F.R. Part 47 applies in accordance with 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

Section 20.            Limitation on the Exercise of Certain Rights Related to Affiliate Insolvency Proceedings.

(a)               Notwithstanding anything to the contrary in this Agreement or any other agreement, but subject to the requirements of Section 19, no party to this Agreement shall be permitted to exercise any Default Right against a Covered Party with respect to this Agreement that is related, directly or indirectly, to a BHC Affiliate of such party becoming subject to a receivership, insolvency, liquidation, resolution, or similar proceeding (each an “Insolvency Proceeding”), except to the extent the exercise of such Default Right would be permitted under the creditor protection provisions of 12 C.F.R. § 252.84, 12 C.F.R. § 47.5, or 12 C.F.R. § 382.4, as applicable.

(b)               After a BHC Affiliate of a Covered Party has become subject to Insolvency Proceedings, if any party to this Agreement seeks to exercise any Default Right against such Covered Party with respect to this Agreement, the party seeking to exercise a Default Right shall have the burden of proof, by clear and convincing evidence, that the exercise of such Default Right is permitted hereunder.

[SIGNATURE PAGE FOLLOWS]

-25- 

 

IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

	NATIONAL COOPERATIVE BANK, N.A.
	By:	/s/ Stacy Patrick
		Name:  Stacy Patrick
		Title: Senior Vice President
	MORGAN STANLEY CAPITAL I INC.
	By:	/s/ Jane Lam
		Name:  Jane Lam
		Title:  President

 

BANK 2021-BNK38 – Mortgage Loan Purchase Agreement (NCB)

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

 

Exh. A-1 

 

BANK 2021-BNK38
Mortgage Loan Schedule

Loan ID	Mortgage Loan Seller	Property Name	Cut-off Date Balance	Address	City	State	Note Date	Maturity Date or ARD	Mortgage Rate	Original Term to Maturity or ARD (mos.)	Remaining Term to Maturity or ARD (mos.)	Original Amortization Term (mos.)	ARD Loan (Y/N)	Primary Servicing Fee Rate	Non-Serviced Primary Servicing Fee Rate	Master Servicing Fee Rate
14	NCB	Forest Hills South Owners, Inc.	$16,900,000	77-15 113th Street, 77-02 113th Street, 77-14 113th Street, 77-34 113th Street, 76-35 113th Street, 77-35 113th Street, 76-36 113th Street and 112-50 78th Avenue	Forest Hills	NY	11/18/2021	12/1/2031	2.8500%	120	120	360	No	0.000000%	0.000000%	0.080000%
31	NCB	Tova Realty Corp.	$6,250,000	42-22 Ketcham Street	Elmhurst	NY	11/19/2021	12/1/2031	2.9200%	120	120	360	No	0.000000%	0.000000%	0.080000%
36	NCB	Park East Apartments, Inc.	$5,150,000	233 East 86th Street	New York	NY	11/23/2021	12/1/2031	2.8500%	120	120	0	No	0.000000%	0.000000%	0.080000%
37	NCB	Regency Park Owners Corp.	$4,700,000	25 Lake Street	White Plains	NY	11/19/2021	12/1/2031	3.0400%	120	120	360	No	0.000000%	0.000000%	0.080000%
44	NCB	Lincoln Gardens Owners, Inc.	$3,496,230	144-40, 144-44, 144-46 & 144-50 38th Avenue	Flushing	NY	10/27/2021	11/1/2031	3.0100%	120	119	480	No	0.000000%	0.000000%	0.080000%
45	NCB	1136 Tenants' Corporation	$3,000,000	1136 Fifth Avenue	New York	NY	11/18/2021	12/1/2031	3.0600%	120	120	360	No	0.000000%	0.000000%	0.080000%
48	NCB	East Hampton Mews Tenants Corp.	$2,600,000	514 Pantigo Road a/k/a 514 Montauk Highway	East Hampton	NY	11/19/2021	12/1/2031	3.0900%	120	120	0	No	0.000000%	0.000000%	0.080000%
49	NCB	86-10 Owners Corp.	$2,497,351	86-10 109th Street	Richmond Hill	NY	10/29/2021	11/1/2031	3.0800%	120	119	480	No	0.000000%	0.000000%	0.080000%
50	NCB	Vermont Owners Corp.	$2,497,300	99-41 64th Avenue	Rego Park	NY	10/27/2021	11/1/2031	3.0000%	120	119	480	No	0.000000%	0.000000%	0.080000%
51	NCB	Tanglewood Gardens Owners Corp.	$2,300,000	101 North Broadway and 260 Church Street	White Plains	NY	11/1/2021	11/1/2031	3.1200%	120	119	0	No	0.000000%	0.000000%	0.080000%
53	NCB	67 Owners Ltd.	$2,100,000	67 Park Avenue	New York	NY	11/19/2021	12/1/2031	3.0200%	120	120	360	No	0.000000%	0.000000%	0.080000%
54	NCB	55 East 66th Street Corporation	$2,000,000	53/55 East 66th Street	New York	NY	11/19/2021	12/1/2031	2.9900%	120	120	0	No	0.000000%	0.000000%	0.080000%
57	NCB	196-23rd Street, Jackson Heights, Inc.	$1,816,962	34-05 80th Street	Jackson Heights	NY	10/27/2021	11/1/2031	3.1600%	120	119	360	No	0.000000%	0.000000%	0.080000%
58	NCB	76 Remsen Street, Inc.	$1,747,048	76-78 Remsen Street a/k/a 9-11 Grace Court Alley	Brooklyn	NY	10/28/2021	11/1/2031	3.1000%	120	119	360	No	0.000000%	0.000000%	0.080000%
59	NCB	510 West 123rd Street Owners Corp.	$1,600,000	510 West 123rd Street	New York	NY	11/29/2021	12/1/2031	3.1100%	120	120	240	No	0.000000%	0.000000%	0.080000%
60	NCB	4-10 Bogardus Corp.	$1,600,000	4-10 Bogardus Place	New York	NY	11/19/2021	12/1/2031	3.1800%	120	120	360	No	0.000000%	0.000000%	0.080000%
61	NCB	21-23 Bleecker Street Owners Corp.	$1,500,000	21-23 Bleecker Street	New York	NY	10/29/2021	11/1/2031	3.3600%	120	119	0	No	0.000000%	0.000000%	0.080000%
62	NCB	Broad Hollow Owners, Inc.	$1,422,666	700 Broadway	Amityville	NY	10/29/2021	11/1/2031	3.2700%	120	119	360	No	0.000000%	0.000000%	0.080000%
63	NCB	Baldwin Pointe Owners Corp.	$1,200,000	715 Prospect Street and 714 School Street	Baldwin	NY	10/29/2021	11/1/2031	3.2400%	120	119	0	No	0.000000%	0.000000%	0.080000%
64	NCB	77 East Owners Corp.	$1,000,000	77 Eastern Parkway	Brooklyn	NY	11/10/2021	12/1/2031	3.1600%	120	120	360	No	0.000000%	0.000000%	0.080000%
65	NCB	Rue Blanc Corp.	$1,000,000	44 White Street	New York	NY	11/15/2021	12/1/2031	3.2500%	120	120	480	No	0.000000%	0.000000%	0.080000%

EXHIBIT B-1

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER

The Mortgage Loan Seller hereby represents and warrants that, as of the date hereof:

(a)               The Mortgage Loan Seller is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America.

(b)               The Mortgage Loan Seller’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Mortgage Loan Seller’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Mortgage Loan Seller, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(c)               The Mortgage Loan Seller has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(d)               This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in accordance with the terms hereof, subject to (A) applicable bankruptcy, fraudulent transfer, insolvency, reorganization, receivership, moratorium, liquidation, conservatorship and other laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and (C) public policy considerations.

(e)               The Mortgage Loan Seller is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(f)                No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Mortgage Loan Seller of the transactions contemplated herein, except for (A) those consents, approvals, authorizations or orders that previously have been obtained and (B) those filings and

Exh. B-1-1 

 

recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date.

(g)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Mortgage Loan Seller’s knowledge, threatened against the Mortgage Loan Seller that, if determined adversely to the Mortgage Loan Seller, would prohibit the Mortgage Loan Seller from entering into this Agreement or that, in the Mortgage Loan Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Mortgage Loan Seller to perform its obligations under this Agreement.

(h)               The transfer of the Mortgage Loans to the Purchaser as contemplated herein is not subject to any bulk transfer or similar law in effect in any applicable jurisdiction.

(i)                 The Mortgage Loan Seller is not transferring the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud its present or future creditors.

(j)                 The Mortgage Loan Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser, as contemplated herein.

(k)               After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Mortgage Loan Seller’s assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Mortgage Loan Seller’s debts and obligations, including contingent and unliquidated debts and obligations of the Mortgage Loan Seller, and the Mortgage Loan Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business.

(l)                 The Mortgage Loan Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.

(m)             No proceedings looking toward liquidation, dissolution or bankruptcy of the Mortgage Loan Seller are pending or contemplated.

(n)               The principal place of business and chief executive office of the Mortgage Loan Seller is located in the State of Ohio.

(o)               The consideration received by the Mortgage Loan Seller upon the sale of the Mortgage Loans constitutes at least fair consideration and reasonably equivalent value for such Mortgage Loans.

 

Exh. B-1-2 

 

EXHIBIT B-2

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER

The Purchaser hereby represents and warrants that, as of the date hereof:

(a)               The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b)               The Purchaser’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Purchaser’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other material instrument to which it is a party or by which it is bound, which default or breach, in the good faith and reasonable judgment of the Purchaser, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(c)               This Agreement, assuming due authorization, execution and delivery by the other party or parties hereto, constitutes a valid, legal and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.

(d)               No litigation, arbitration, suit, proceeding or governmental investigation is pending or, to the best of the Purchaser’s knowledge, threatened against the Purchaser that, if determined adversely to the Purchaser, would prohibit the Purchaser from entering into this Agreement or that, in the Purchaser’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Purchaser to perform its obligations under this Agreement.

(e)               The Purchaser has the full power and authority to consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(f)                The Purchaser is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Purchaser’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Purchaser to perform its obligations under this Agreement.

(g)               The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, and any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the final

Exh. B-2-1 

 

draft of each such Form 15G to MS&Co. at least six (6) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum; and (C) furnished each such Form 15G to the Commission on EDGAR at least five (5) business days before the first sale in the offering contemplated by the Prospectus and Private Placement Memorandum as required by Rule 15Ga-2.

(h)               The Purchaser has not dealt with any broker, investment banker, agent or other person, other than the Mortgage Loan Seller, the Underwriters, the Initial Purchasers and their respective affiliates, that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans or consummation of any of the transactions contemplated hereby.

 

 

Exh. B-2-2 

 

EXHIBIT C

MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

For purposes of this Exhibit C, the phrases “the Mortgage Loan Seller’s knowledge” or “the Mortgage Loan Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth below, the actual state of knowledge or belief of the Mortgage Loan Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth below in each case without having conducted any independent inquiry into such matters and without any obligation to have done so (except (i) having sent to the servicers servicing the Mortgage Loans on behalf of the Mortgage Loan Seller, if any, specific inquiries regarding the matters referred to and (ii) as expressly set forth herein). All information contained in documents which are part of or required to be part of a Mortgage File, as specified in the Pooling and Servicing Agreement (to the extent such documents exist) shall be deemed within the Mortgage Loan Seller’s knowledge.

The Mortgage Loan Seller hereby represents and warrants that, as of the date herein below specified or, if no such date is specified, as of the date hereof, except with respect to the Exceptions described on Schedule C to this Agreement.

1.                  Intentionally Omitted.

2.                  Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a mortgage loan. At the time of the sale, transfer and assignment to the Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Mortgage Loan Seller or (with respect to any Non-Serviced Mortgage Loan) to the related Non-Serviced Trustee for the related Non-Serviced Trust), participation (it being understood that a Mortgage Loan that is part of a Whole Loan does not constitute a participation) or pledge, and the Mortgage Loan Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to agreements among noteholders with respect to a Whole Loan), any other ownership interests and other interests on, in or to such Mortgage Loan other than any servicing rights appointment, subservicing or similar agreement. The Mortgage Loan Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.

3.                  Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws

Exh. C-1 

 

affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) and except that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or Prepayment Premium/Yield Maintenance Charge) may be further limited or rendered unenforceable by applicable law, but (subject to the limitations set forth above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).

Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Mortgage Loan Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.

4.                  Mortgage Provisions. The Mortgage Loan documents for each Mortgage Loan, together with applicable state law, contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, non-judicial foreclosure subject to the limitations set forth in the Standard Qualifications.

5.                  Intentionally Omitted.

6.                  Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan documents (a) (1) there has been no forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver, or modification relates to the COVID-19 emergency, (2) as of September 8, 2021, to the knowledge of the Mortgage Loan Seller, there has been no written request for a forbearance, waiver or modification of the material terms of the Mortgage Loan, which such request relates to the COVID-19 emergency and (3) other than as related to the COVID-19 emergency, the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the Mortgagor nor the guarantor has been released from its material obligations under the Mortgage Loan. With respect to each Mortgage Loan, except as contained in a written document included in the Mortgage File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Mortgage Loan consented to by the Mortgage Loan Seller on or after the Cut-off Date.

Exh. C-2 

 

7.                  Lien; Valid Assignment. Subject to the Standard Qualifications, each endorsement or assignment of Mortgage and assignment of Assignment of Leases from the Mortgage Loan Seller or its Affiliate is in recordable form (but for the insertion of the name of the assignee and any related recording information which is not yet available to the Mortgage Loan Seller) and constitutes a legal, valid and binding endorsement or assignment from the Mortgage Loan Seller, or its Affiliate, as applicable. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph 8 below (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances and Title Exceptions) as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, is free and clear of any recorded mechanics’ or materialmen’s liens and other recorded encumbrances that would be prior to or equal with the lien of the related Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), except those which are bonded over, escrowed for or insured against by the applicable Title Policy (as described below), and as of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by the applicable Title Policy. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

8.                  Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy or a “marked up” commitment, in each case with escrow instructions and binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage (which lien secures the related Whole Loan, in the case of a Mortgage Loan that is part of a Whole Loan), which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property; (f) if the related Mortgage Loan constitutes a Crossed Underlying Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group, and (g) condominium declarations of record and identified in such Title Policy, provided that none of clauses (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or principal use of the Mortgaged Property, the

Exh. C-3 

 

security intended to be provided by such Mortgage, or the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). For purposes of clause (a) of the immediately preceding sentence, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon. Except as contemplated by clause (f) of the second preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Mortgage Loan Seller thereunder and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor to the Mortgage Loan Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.

9.                  Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, as of the Cut-off Date there are no subordinate mortgages or junior mortgage liens encumbering the related Mortgaged Property other than Permitted Encumbrances, mechanics’ or materialmen’s liens (which are the subject of the representation in paragraph (7) above), and equipment and other personal property financing. The Mortgage Loan Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other than as set forth on Exhibit C-32-1.

10.              Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and Title Exceptions (and, in the case of a Mortgage Loan that is part of a Whole Loan, subject to the related Assignment of Leases constituting security for the entire Whole Loan), each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law and the Standard Qualifications, provides that, upon an event of default under the Mortgage Loan, a receiver may be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

11.              Financing Statements. Subject to the Standard Qualifications, each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1 financing statement has been filed and/or recorded (or, in the case of fixtures, the Mortgage constitutes a fixture filing) in all places necessary at the time of the origination of the Mortgage

Exh. C-4 

 

Loan (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording) to perfect a valid security interest in, the personal property (creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate such Mortgaged Property in its current use other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to such financing statement was in suitable form for filing in the filing office in which such financing statement was filed. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required to effect such perfection.

12.              Condition of Property. The Mortgage Loan Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six months of origination of the Mortgage Loan and within twelve months of the Cut-off Date.

An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date. To the Mortgage Loan Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.

13.              Taxes and Assessments. As of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Cut-off Date, all taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or could become a lien on the related Mortgaged Property that became due and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, any such taxes, assessments and other charges shall not be considered due and payable until the date on which interest and/or penalties would be payable thereon.

14.              Condemnation. As of the date of origination and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, there is no proceeding pending and, to the Mortgage Loan Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.

15.              Actions Concerning Mortgage Loan. To the Mortgage Loan Seller’s knowledge, based on evaluation of the Title Policy (as defined in paragraph 8), an engineering

Exh. C-5 

 

report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), as of origination there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents, or (f) the current principal use of the Mortgaged Property.

16.              Escrow Deposits. All escrow deposits and escrow payments currently required to be escrowed with the Mortgagee pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Mortgage Loan Seller or its servicer, and there are no delinquencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan documents are being conveyed by the Mortgage Loan Seller to the Depositor or its servicer (or, in the case of a Non-Serviced Mortgage Loan, to the related Non-Serviced Depositor or Non-Serviced Master Servicer for the related Non-Serviced Trust).

17.              No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with respect to the related Mortgaged Property, the Mortgagor or other considerations determined by the Mortgage Loan Seller to merit such holdback).

18.              Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer or insurers meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating meeting the Insurance Ratings Requirements (as defined below), in an amount (subject to customary deductibles) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.

“Insurance Ratings Requirements” means either (1) a claims paying or financial strength rating of at least “A-:VIII” from A.M. Best Company (“A.M. Best”) or “A3” (or the equivalent) from Moody’s Investors Service, Inc. (“Moody’s”) or “A-” from S&P Global Ratings (“S&P”) or (2) the Syndicate Insurance Ratings Requirements. “Syndicate Insurance Ratings Requirements” means insurance provided by a syndicate of insurers, as to which (i) if such

Exh. C-6 

 

syndicate consists of 5 or more members, at least 60% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 40% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s, and (ii) if such syndicate consists of 4 or fewer members, at least 75% of the coverage is provided by insurers that meet the Insurance Ratings Requirements (under clause (1) of the definition of such term) and up to 25% of the coverage is provided by insurers that have a claims paying or financial strength rating of at least “BBB-” by S&P or at least “Baa3” by Moody’s.

Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months).

If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in an amount equal to the least of (a) the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by prudent institutional commercial mortgage lenders originating mortgage loans for securitization, (b) the outstanding principal amount of the Mortgage Loan and (c) the insurable value of the Mortgaged Property.

If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer or insurers meeting the Insurance Ratings Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property by an insurer or insurers meeting the Insurance Ratings Requirements.

The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer or insurers meeting the Insurance Ratings Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.

An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the seismic condition of

Exh. C-7 

 

such property, for the sole purpose of assessing the probable maximum loss or scenario expected loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained from an insurer or insurers meeting the Insurance Ratings Requirements (provided that for this purpose (only), the A.M. Best Company minimum rating referred to in the definition of Insurance Ratings Requirements will be deemed to be at least “A:VIII”) in an amount not less than 100% of the PML.

The Mortgage Loan documents require insurance proceeds (or an amount equal to such insurance proceeds) in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan or Whole Loan, as applicable, the Mortgagee (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.

All premiums on all insurance policies referred to in this section that are required by the Mortgage Loan documents to be paid as of the Cut-off Date have been paid, and such insurance policies name the Mortgagee under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee (or, in the case of a Non-Serviced Mortgage Loan, the applicable Non-Serviced Trustee). Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because of nonpayment of a premium and at least 30 days’ prior notice to the Mortgagee of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Mortgage Loan Seller.

19.              Access; Utilities; Separate Tax Parcels. Based solely on evaluation of the Title Policy (as defined in paragraph 8) and survey, if any, an engineering report or property condition assessment as described in paragraph 12, applicable local law compliance materials as described in paragraph 26, and the ESA (as defined in paragraph 43), each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has permanent access from a recorded easement or right of way permitting ingress and egress to/from a public road, (b) is served by or has access rights to public or private water and sewer (or well and septic) and other utilities necessary for the current use of the Mortgaged Property, all of which are adequate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been made or is required to be made to the applicable governing authority for creation of separate tax parcels (or the Mortgage Loan documents so require such application in the future), in which case the Mortgage Loan requires the Mortgagor to escrow an

Exh. C-8 

 

amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax parcels are created.

20.              No Encroachments. To the Mortgage Loan Seller’s knowledge based solely on surveys obtained in connection with origination and the Title Policy obtained in connection with the origination of each Mortgage Loan, and except for encroachments that do not materially and adversely affect the current marketability or principal use of the Mortgaged Property: (a) all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except for encroachments that are insured against by the applicable Title Policy; (b) no material improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that are insured against by the applicable Title Policy; and (c) no material improvements encroach upon any easements except for encroachments that are insured against by the applicable Title Policy.

21.              No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Mortgage Loan Seller.

22.              REMIC. The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including permanently affixed buildings and distinct structural components, such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan (together with any related Pari Passu Companion Loans) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)). If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. For purposes of the preceding sentence, the Mortgage Loan will not

Exh. C-9 

 

be considered “significantly modified” solely by reason of the Mortgagor having been granted a COVID-19 related forbearance provided that: (a) such Mortgage Loan forbearance is covered by Revenue Procedure 2020-26 (as modified by Revenue Procedure 2021-12) by reason of satisfying the requirements for such coverage stated in Section 5.02(2) thereof; and (b) the Mortgage Loan Seller shall have notified the depositor that such forbearance has occurred and notified the depositor of (x) the date on which such forbearance was granted, (y) the length in months of the forbearance, and (z) how the payments in forbearance will be paid (that is, by extension of maturity, change of amortization schedule, etc.). Any Prepayment Premiums and Yield Maintenance Charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Treasury Regulations Section 1.860G-1(b)(2). All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.

23.              Compliance with Usury Laws. The mortgage rate (exclusive of any default interest, late charges, Yield Maintenance Charge or Prepayment Premium) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

24.              Authorized to do Business. To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.

25.              Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Mortgage Loan Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.

26.              Local Law Compliance. To the Mortgage Loan Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, a survey, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use, operation or value of such Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Mortgage Loan Seller for similar commercial and multifamily loans intended for securitization, (c) title insurance policy coverage has been obtained with respect to any non-conforming use or structure, or (d) the inability to restore the Mortgaged

Exh. C-10 

 

Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of such Mortgaged Property. The Mortgage Loan documents require the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.

27.              Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals necessary for the operation of the Mortgaged Property in full force and effect, and to the Mortgage Loan Seller’s knowledge based upon any of a letter from any government authorities, zoning consultant’s report or other affirmative investigation of local law compliance consistent with the investigation conducted by the Mortgage Loan Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy and applicable governmental approvals are in effect or the failure to obtain or maintain such material licenses, permits, franchises or certificates of occupancy and applicable governmental approvals does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or the rights of a holder of the related Mortgage Loan. The Mortgage Loan documents require the related Mortgagor to comply in all material respects with all applicable regulations, zoning and building laws.

28.              Recourse Obligations. The Mortgage Loan documents for each Mortgage Loan (a) provide that such Mortgage Loan becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events (or negotiated provisions of substantially similar effect): (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Mortgagor; (ii) the Mortgagor or guarantor shall have solicited or caused to be solicited petitioning creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or controlling equity interests in the Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity or entities distinct from the Mortgagor (but may be affiliated with the Mortgagor) that collectively, as of the date of origination of the related Mortgage Loan, have assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages resulting from the following (or negotiated provisions of substantially similar effect): (i) the Mortgagor’s misappropriation of rents after an event of default, security deposits, insurance proceeds, or condemnation awards; (ii) the Mortgagor’s fraud or intentional material misrepresentation; (iii)  breaches of the environmental covenants in the Mortgage Loan documents; or (iv) the Mortgagor’s commission of intentional material physical waste at the Mortgaged Property (but, in some cases, only to the extent there is sufficient cash flow generated by the related Mortgaged Property to prevent such waste).

29.              Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial

Exh. C-11 

 

defeasance (as described in paragraph 34) of not less than a specified percentage at least equal to 110% of the related allocated loan amount of such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in paragraph 34 below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation. With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) after the release is not equal to at least 80% of the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions.

In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, unless an opinion of counsel is delivered as specified in clause (y) of the preceding paragraph, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans) in an amount not less than the amount required by the REMIC Provisions and, to such extent, the award from any such taking may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (1) the amount of any lien on the real property that is senior to the Mortgage Loan and (2) a proportionate amount of any lien on the real property that is in parity with the Mortgage Loan) is not equal to at least 80% of the remaining principal balance of the Mortgage Loan (together with any related Pari Passu Companion Loans).

No such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the REMIC Provisions.

30.              Financial Reporting and Rent Rolls. Each Mortgage Loan requires the Mortgagor to provide the owner or holder of the Mortgage Loan with (a) quarterly (other than for single-tenant properties) and annual operating statements, (b) quarterly (other than for single-tenant properties) rent rolls (or maintenance schedules in the case of Mortgage Loans secured by

Exh. C-12 

 

residential cooperative properties) for properties that have any individual lease which accounts for more than 5% of the in-place base rent, and (c) annual financial statements.

31.              Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, and to the Mortgage Loan Seller’s knowledge with respect to each Mortgage Loan of $20 million or less, as of origination the related special-form all-risk insurance policy and business interruption policy (issued by an insurer or insurers meeting the Insurance Ratings Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated on Schedule C; provided, that if TRIPRA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.

32.              Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage Loan documents (which provide for transfers without the consent of the Mortgagee which are customarily acceptable to the Mortgage Loan Seller, including, but not limited to, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold (in each case, a “Transfer”), other than as related to (i) family and estate planning Transfers or Transfers upon death or legal incapacity, (ii) Transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) Transfers of less than, or other than, a controlling interest in a Mortgagor, (iv) Transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, (v) Transfers of common stock in publicly traded companies, (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 herein, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan as set forth on Exhibit C-32-1, or future permitted mezzanine debt as set forth on Exhibit C-32-2, or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate

Exh. C-13 

 

debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan as set forth on Exhibit C-32-3 or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.

33.              Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Each Mortgage Loan with a Cut-off Date Balance of $30 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents and the related Mortgage Loan documents (or if the Mortgage Loan has a Cut-off Date Balance equal to $10 million or less, its organizational documents or the related Mortgage Loan documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties and prohibit it from engaging in any business unrelated to such Mortgaged Property or Mortgaged Properties, and whose organizational documents further provide, or which entity represented in the related Mortgage Loan documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

34.              Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date (or on or after the first date on which payment may be made without payment of a Yield Maintenance Charge or Prepayment Premium), and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 110% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (vi) the defeased note and the defeasance collateral are required to be assumed by a Single-

Exh. C-14 

 

Purpose Entity; (vii) the Mortgagor is required to provide an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.

35.              Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD Loans and in situations where default interest is imposed.

36.              Ground Leases. For purposes of this Exhibit C, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner.

With respect to any Mortgage Loan where the Mortgage Loan is secured by a Ground Leasehold estate in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Mortgage Loan Seller, its successors and assigns (collectively, the “Ground Lease and Related Documents”), Mortgage Loan Seller represents and warrants that:

(A)             The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease and Related Documents permit the interest of the lessee to be encumbered by the related Mortgage and do not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage. No material change in the terms of the Ground Lease has occurred since its recordation, except by any written instruments which are included in the related Mortgage File;

(B)              The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease and Related Documents) that the Ground Lease may not be amended, modified, canceled or terminated by agreement of lessor and lessee without the prior written consent of the Mortgagee and that any such action without such consent is not binding on the Mortgagee, its successors or assigns, provided that the Mortgagee has provided lessor with notice of its lien in accordance with the terms of the Ground Lease;

(C)              The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either the Mortgagor or the Mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);

Exh. C-15 

 

(D)             The Ground Lease either (i) is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances and Title Exceptions; or (ii) is the subject of a subordination, non-disturbance or attornment agreement or similar agreement to which the Mortgagee on the lessor’s fee interest is subject;

(E)              Subject to the notice requirements of the Ground Lease and Related Documents, the Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid), and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor (or, if such consent is required it either has been obtained or cannot be unreasonably withheld, provided that such Ground Lease has not been terminated and all amounts due thereunder have been paid);

(F)              The Mortgage Loan Seller has not received any written notice of material default under or notice of termination of such Ground Lease. To the Mortgage Loan Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Mortgage Loan Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;

(G)             The Ground Lease and Related Documents require the lessor to give to the Mortgagee written notice of any default and provide that no notice of default or termination is effective against the Mortgagee unless such notice is given to the Mortgagee;

(H)             A Mortgagee is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the Mortgagee’s receipt of notice of any default before the lessor may terminate the Ground Lease;

(I)                The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Mortgage Loan Seller in connection with the origination of similar commercial or multifamily loans intended for securitization;

(J)                Under the terms of the Ground Lease and Related Documents, any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the Mortgagee or a trustee appointed by it having the right to hold and disburse such proceeds as repair or

Exh. C-16 

 

restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;

(K)             In the case of a total or substantially total taking or loss, under the terms of the Ground Lease and Related Documents, any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and

(L)              Provided that the Mortgagee cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the Mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.

37.              Servicing. The servicing and collection practices used by the Mortgage Loan Seller with respect to the Mortgage Loan have been, in all respects legal and have met with customary industry standards for servicing of commercial loans for conduit loan programs.

38.              Origination and Underwriting. The origination practices of the Mortgage Loan Seller (or the related originator if the Mortgage Loan Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit C.

39.              Intentionally Omitted.

40.              No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments in the prior 12 months (or since origination if such Mortgage Loan has been originated within the past 12 months), and as of Cut-off Date, no Mortgage Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Mortgage Loan Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property; provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Mortgage Loan Seller in this Exhibit C. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.

Exh. C-17 

 

41.              Bankruptcy. As of the date of origination of the related Mortgage Loan and to the Mortgage Loan Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.

42.              Organization of Mortgagor. With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan and other than as set forth on Exhibit C-32-4, no Mortgage Loan has a Mortgagor that is an Affiliate of a Mortgagor with respect to another Mortgage Loan. An “Affiliate” for purposes of this paragraph (42) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.

43.              Environmental Conditions. A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements was conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Moody’s, S&P, Fitch Ratings, Inc. and/or A.M. Best; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no

Exh. C-18 

 

Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.

44.              Intentionally Omitted.

45.              Appraisal. The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Cut-off Date. The appraisal is signed by an appraiser that (i) (A) is a Member of the Appraisal Institute or (B) has a comparable professional designation and possesses the level of experience required to evaluate commercial real estate collateral, and (ii) to the Mortgage Loan Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

46.              Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Pooling and Servicing Agreement to be contained therein.

47.              Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other mortgage loan that is outside the Mortgage Pool, except in the case of a Mortgage Loan that is part of a Whole Loan.

48.              Advance of Funds by the Mortgage Loan Seller. Except for loan proceeds advanced at the time of loan origination or other payments contemplated by the Mortgage Loan documents, no advance of funds has been made by the Mortgage Loan Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the knowledge of the Mortgage Loan Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Mortgage Loan Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the Closing Date.

49.              Compliance with Anti-Money Laundering Laws. The Mortgage Loan Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the U.S. Anti-Money Laundering Act of 2020 and USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.

For purposes of this Exhibit C, “Mortgagee” means the mortgagee, grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any Mortgage Loan or, if applicable, any agent or servicer on behalf of such party.

For purposes of this Exhibit C, “Mortgagor” means the obligor or obligors on a Mortgage Note, including without limitation, any person that has acquired the related Mortgaged Property and assumed the obligations of the original obligor under the Mortgage Note and including in connection with any Mortgage Loan that utilizes an indemnity deed of trust structure,

Exh. C-19 

 

the borrower and the Mortgaged Property owner/payment guarantor/mortgagor individually and collectively, as the context may require.

 

Exh. C-20 

 

Exhibit C-32-1

List of Mortgage Loans with Current Mezzanine Debt

None.

Exh. C-32-1-1 

 

 

Exhibit C-32-2

List of Mortgage Loans with Permitted Mezzanine Debt

None.

Exh. C-32-2-1 

 

 

Exhibit C-32-3

List of Cross-Collateralized and Cross-Defaulted Mortgage Loans

None.

 

Exh. C-32-3-1 

 

Exhibit C-32-4

List of Mortgage Loans with Affiliated Mortgagors

None.

Exh. C-32-4-1 

 

 

SCHEDULE C

EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

The exceptions to the representations and warranties set forth below are listed by the number of the related representation and warranty set forth on Exhibit C and the mortgage loan name and number identified on Exhibit A. Capitalized terms used but not otherwise defined in this Schedule C shall have the meanings set forth in Exhibit C or, if not defined therein, in this Agreement.

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of Exception
9	Forest Hills South Owners, Inc. (Loan No. 14) Tova Realty Corp. (Loan No. 31)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $1,000,000; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
9	Park East Apartments, Inc. (Loan No. 36) Regency Park Owners Corp. (Loan No. 37) 1136 Tenants’ Corporation (Loan No. 45) Vermont Owners Corp. (Loan No. 50) Tanglewood Gardens Owners Corp. (Loan No. 51) 67 Owners Ltd. (Loan No. 53) 55 East 66th Street Corporation (Loan No. 54) 4-10 Bogardus Corp. (Loan No. 60)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $500,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
9	86-10 Owners Corp. (Loan No. 49) 76 Remsen Street, Inc. (Loan No. 58)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $300,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
9	Lincoln Gardens Owners, Inc. (Loan No. 44)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $750,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.

 

Sch. C-1 

 

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of Exception
9	East Hampton Mews Tenants Corp. (Loan No. 48) Baldwin Pointe Owners Corp. (Loan No. 63)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $250,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
9	510 West 123rd Street Owners Corp. (Loan No. 59) 77 East Owners Corp. (Loan No. 64)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $200,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
9	21-23 Bleecker Street Owners Corp. (Loan No. 61)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $600,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
9	Broad Hollow Owners, Inc. (Loan No. 62)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $100,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
18	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	The Mortgage Loan documents evidencing the Mortgage Loans sold to the trust by National Cooperative Bank, N.A. and secured by residential cooperatives require the related Mortgagors, if and to the extent the related Mortgaged Property is identified by the Secretary of Housing and Urban Development as having special flood hazards, to maintain insurance against loss by flood hazards in an amount equal to the lesser of (i) the outstanding principal balance of the related Mortgage Loan or (ii) the maximum amount available under the National Flood Insurance Program.
18	21-23 Bleecker Street Owners Corp. (Loan No. 61)	The business interruption or rental loss insurance for the referenced Mortgaged Property covers a period of less than 12 months.
28	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	All of the Mortgage Loans secured by residential cooperative properties sold to the trust by National Cooperative Bank, N.A. are fully recourse to the related Mortgagors.  There are no guarantors for any of the Mortgage Loans secured by residential cooperative properties sold to the trust by National Cooperative Bank.
30	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	The Mortgage Loans secured by residential cooperative properties sold to the trust by National Cooperative Bank, N.A. do not require the Mortgagor to provide the owner or holder of such Mortgage Loans with quarterly operating statements or quarterly rent rolls.

 

Sch. C-2 

 

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of Exception
31	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	The related Mortgage Loan documents evidencing the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. do not contain an express requirement indicating that if TRIPRA or a similar or subsequent statute is not in effect, that the Mortgagor under each such Mortgage Loan is required to carry terrorism insurance, but in such event the related Mortgagor will not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the related Mortgaged Property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of such Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.
32	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. permit, without the prior written consent of the holder of the related Mortgage, transfers of stock of the related Mortgagor in connection with the assignment of a proprietary lease for an apartment unit by a tenant-shareholder of the related Mortgagor to other persons who by virtue of such transfers become tenant-shareholders in the related Mortgagor.
33	All of the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. (Loan Nos. 14, 31, 36, 37, 44, 45, 48, 49, 50, 51, 53, 54, 57, 58, 59, 60, 61, 62, 63, 64 and 65).	The Mortgagors under the residential cooperative Mortgage Loans sold to the trust by National Cooperative Bank, N.A. are not Single-Purpose Entities.
47	Forest Hills South Owners, Inc. (Loan No. 14) Tova Realty Corp. (Loan No. 31)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $1,000,000.00 that is cross-defaulted with the corresponding referenced Mortgage Loan; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
47	Park East Apartments, Inc. (Loan No. 36) Regency Park Owners Corp. (Loan No. 37) 1136 Tenants’ Corporation (Loan No. 45) Vermont Owners Corp. (Loan No. 50) Tanglewood Gardens Owners Corp. (Loan No. 51)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $500,000.00 that are cross-defaulted with the corresponding referenced Mortgage Loans; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.

 

Sch. C-3 

 

 

Rep. No. on Exhibit C	Mortgage Loan and Number as Identified on Exhibit A	Description of Exception
	67 Owners Ltd. (Loan No. 53) 55 East 66th Street Corporation (Loan No. 54) 4-10 Bogardus Corp. (Loan No. 60)
47	86-10 Owners Corp. (Loan No. 49) 76 Remsen Street, Inc. (Loan No. 58)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $300,000.00 that is cross-defaulted with the corresponding referenced Mortgage Loans; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
47	East Hampton Mews Tenants Corp. (Loan No. 48) Baldwin Pointe Owners Corp. (Loan No. 63)	The referenced Mortgaged Properties are each encumbered by a subordinate credit line mortgage in the original principal amount of $250,000.00 that is cross-defaulted with the corresponding referenced Mortgage Loans; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgages.
47	Lincoln Gardens Owners, Inc. (Loan No. 44)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $750,000.00 that is cross-defaulted with the corresponding referenced Mortgage Loan; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
47	510 West 123rd Street Owners Corp. (Loan No. 59) 77 East Owners Corp. (Loan No. 64)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $200,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage
47	21-23 Bleecker Street Owners Corp. (Loan No. 61)	The referenced Mortgaged Property is encumbered by a subordinate credit line mortgage in the original principal amount of $600,000.00 that is cross-defaulted with the corresponding referenced Mortgage Loan; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.
47	Broad Hollow Owners, Inc. (Loan No. 62)	The referenced Mortgaged Property encumbered by a subordinate credit line mortgage in the original principal amount of $100,000.00; as of the Cut-off Date, no advances have been made under such subordinate credit line mortgage.

 

Sch. C-4 

 

EXHIBIT D-1

FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER

NATIONAL COOPERATIVE BANK, N.A.

OFFICER’S CERTIFICATE

The undersigned does hereby certify that, as of the date hereof, he is the duly elected and acting secretary of National Cooperative Bank, N.A., a national banking association (the “Company”), and does hereby further certify as follows:

1. Attached hereto as Exhibit A is a true, correct and complete copy of the Articles of Association of the Company as in full force and effect as of the date hereof.

2. Attached hereto as Exhibit B is a true, correct and complete copy of the Bylaws of the Company as in full force and effect as of the date hereof.

3. Attached hereto as Exhibit C is a true, correct, and complete copy of certain resolutions adopted by the Board of Directors of the Company at a meeting of the Board of Directors. Such resolutions are in full force and effect and unmodified as of the date hereof.

4. Attached hereto as Exhibit D is a true, correct, and complete copy of the Certificate of Corporate Existence issued by the Comptroller of the Currency. To the knowledge of the undersigned officer, the Company has not taken any actions toward the merger, dissolution, bankruptcy, winding-up or liquidation of its business. The Company is a national bank duly organized and validly existing under the laws of the United States of America.

5. Each person who, as an officer or representative of the Company, signed the (i) Pooling and Servicing Agreement (the “Pooling Agreement”), dated as of December 1, 2021, between the Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and NCB special servicer, Computershare Trust Company, National Association, as certificate administrator, Wilmington Trust, National Association, as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, (ii) Mortgage Loan Purchase Agreement (the “MLPA”), dated and effective as of December 13, 2021, between Morgan Stanley Capital I Inc., as purchaser (the “Purchaser”), and the Company, as seller and (iii) (A) Indemnification Agreement (National Cooperative Bank, N.A.) dated as of December 13, 2021, between the Company, the Purchaser, Morgan Stanley & Co. LLC (“MS&Co.”), BofA Securities, Inc. (“BofA Securities”), Wells Fargo Securities, LLC (“WFS”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”) and (B) NCB Master Servicer and NCB Special Servicer Indemnification Agreement dated as of December 13, 2021,

Exh. D-1-1 

 

between the Company, the Purchaser, MS&Co., BofA Securities, WFS, Academy and Drexel (collectively, the “Indemnification Agreement”), each entered into in connection with the issuance of BANK 2021-BNK38, Commercial Mortgage Pass-Through Certificates, Series 2021-BNK38 (the Pooling Agreement, MLPA and Indemnification Agreement are referred to herein, collectively, as the “Agreements”), and any other document delivered prior hereto or on the date hereof in connection with the Agreements, was, at the respective times of such signing and delivery, and is now duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents are their genuine signatures.

 

IN WITNESS WHEREOF, I have signed this Certificate as of December 22, 2021.

		Name:
		Title:

 

Exh. D-1-2 

 

EXHIBIT D-2

FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER

CERTIFICATE OF MORTGAGE LOAN SELLER

In connection with the execution and delivery by National Cooperative Bank, N.A. (“NCB”) of the various transactions contemplated by, that certain Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”) between NCB, as seller, and Morgan Stanley Capital I Inc., as purchaser (the “Purchaser”), the undersigned hereby certifies that (i) except as set forth on Schedule C to the Mortgage Loan Purchase Agreement, the representations and warranties of NCB in or made pursuant to Section 4(a) and Section 4(b) of the Mortgage Loan Purchase Agreement are true and correct in all material respects at and as of the date hereof with the same effect as if made on the date hereof, provided that any representations and warranties made as of a specified date shall be true and correct as of such specified date, (ii) NCB has, in all material respects, complied with all the agreements and satisfied all the conditions on its part required under the Mortgage Loan Purchase Agreement to be performed or satisfied at or prior to the date hereof, and (iii) since the date of the Mortgage Loan Purchase Agreement, there will not have been, immediately prior to the transfer of the Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, any material adverse change in the financial condition of NCB. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Mortgage Loan Purchase Agreement.

Certified this December 22, 2021.

	NATIONAL COOPERATIVE BANK, N.A.
	By:
		Name:
		Title:

 

Exh. D-2-1 

 

EXHIBIT E

FORM OF OFFICER’S CERTIFICATE OF
NATIONAL COOPERATIVE BANK, N.A.

[_____], 2021

Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

Morgan Stanley Capital I Inc.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

cmbs_notices@morganstanley.com

With copies to the Addressees listed on Schedule A

Re: BANK 2021-BNK38 – Officer’s Certificate Pursuant to Section 4(i) of the Mortgage Loan Purchase Agreement

Reference is hereby made to that certain Pooling and Servicing Agreement, dated as of December 1, 2021, and that certain Mortgage Loan Purchase Agreement, dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between the undersigned (the “Mortgage Loan Seller”) and Morgan Stanley Capital I Inc. In accordance with Section 4(i) of the Mortgage Loan Purchase Agreement, the Mortgage Loan Seller hereby certifies to the parties listed on Schedule A, as follows:

1. The Mortgage Loan Seller has delivered the Diligence File (as defined in the Pooling and Servicing Agreement) with respect to each Mortgage Loan to the Designated Site (as defined in the Pooling and Servicing Agreement); and

2. Each Diligence File constitutes all documents required under the definition of “Diligence File” and such Diligence File is organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and Mortgage Loan Seller.

Capitalized terms used herein without definition have the meanings given them in the Mortgage Loan Purchase Agreement.

IN WITNESS WHEREOF, the undersigned has caused this diligence file certification to be executed by its duly authorized officer or representative, the [_] day of [_____], 2021.

Exh. E-1 

 

	Sincerely yours,
	NATIONAL COOPERATIVE BANK, N.A.
	By:
		Name:
		Title:

 

 

 

Exh. E-2 

 

SCHEDULE A

LIST OF ADDRESSEES TO BE COPIED

NCB MASTER SERVICER and NCB SPECIAL SERVICER:

Email: kluzik@ncb.coop; mwehland@ncb.coop

CERTIFICATE ADMINISTRATOR:

Email: cts.cmbs.bond.admin@wellsfargo.com; trustadministrationgroup@wellsfargo.com

TRUSTEE:

Email: CMBSTrustee@wilmingtontrust.com

DIRECTING CERTIFICATEHOLDER:

Email: RESecurities@kkr.com

ASSET REPRESENTATIONS REVIEWER:

Email: notices@pentalphasurveillance.com

OPERATING ADVISOR:

Email: notices@pentalphasurveillance.com

RISK RETENTION CONSULTATION PARTY

Email: cmbs_notices@morganstanley.com

 

 

Exh. E-3 

 

EXHIBIT F

FORM OF LIMITED POWER OF ATTORNEY

TO COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION AND national cooperative bank, n.a. WITH RESPECT TO BANK 2021-BNK38, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2021-BNK38

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated and effective as of December 13, 2021 (the “Mortgage Loan Purchase Agreement”), between National Cooperative Bank, N.A. (“Seller”) and Morgan Stanley Capital I Inc. (“Depositor”), Seller is selling certain multifamily mortgage loans (the “Mortgage Loans”) to Depositor;

WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of December 1, 2021 (the “Pooling and Servicing Agreement”), between the Depositor, Wells Fargo Bank, National Association, as general master servicer, Midland Loan Services, a Division of PNC Bank, National Association, as general special servicer, National Cooperative Bank, N.A., as NCB master servicer and as NCB special servicer (in such capacity, the “NCB Special Servicer”), Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Wilmington Trust, National Association, as trustee (the “Trustee”), and Computershare Trust Company, National Association, as certificate administrator, as custodian (in such capacity, the “Custodian”), as certificate registrar, and as authenticating agent, the Trustee, the Custodian and the NCB Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;

WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;

NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead: (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.01 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of “Mortgage File” in, and in accordance with Section 1.01 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to prepare, execute and file or record in the

Exh. F-1 

 

appropriate public filing or recording offices, as applicable, all other Mortgage Loan documents to be recorded under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices. Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the NCB Special Servicer only such powers, responsibilities and authority as are set forth in Section 2 of the Mortgage Loan Purchase Agreement.

Seller does also hereby make, constitute and appoint the NCB Special Servicer, acting solely in its capacity as NCB Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason. As between the NCB Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the NCB Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.

The enumeration of particular powers herein is not intended in any way to limit the grant to the Custodian (on behalf of the Trustee) or the NCB Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below. As between Seller, the Depositor, the NCB Special Servicer, the Custodian, the Trust and the Certificateholders, neither the Custodian nor the NCB Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with the Custodian (on behalf of the Trustee) or the NCB Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the NCB Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the NCB Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title insurance company or other third party may rely upon a written statement by the Custodian or the NCB Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.

Any act or thing lawfully done hereunder by the Custodian (on behalf of the Trustee) or the NCB Special Servicer shall be binding on Seller and Seller’s successors and assigns.

This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the NCB Special Servicer, as applicable, until the earliest occurrence of any of the following events:

Exh. F-2 

 

(1) with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement;

(2) with respect to the NCB Special Servicer, the termination of such entity and its replacement with a successor NCB Special Servicer under the terms of the Pooling and Servicing Agreement;

(3) with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian;

(4) with respect to the NCB Special Servicer, the appointment of a receiver or conservator with respect to the business of such entity, or the filing of a voluntary or involuntary petition in bankruptcy by or against such entity;

(5) with respect to each of the Custodian (on behalf of the Trustee) and the NCB Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust;

(6) with respect to each of the Custodian (on behalf of the Trustee) and the NCB Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and

(7) with respect to the NCB Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 7.01(a) of the Pooling and Servicing Agreement with respect to the NCB Special Servicer.

Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.

Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.

THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

[Signature on next page]

Exh. F-3 

 

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2021.

	NATIONAL COOPERATIVE BANK, N.A.
	By:
		Name:
		Title:

 

 

Exh. F-4 

 

ACKNOWLEDGEMENT

STATE OF	)
	)ss:
COUNTY OF	)

 

On this ____ day of _____________ 20__, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of National Cooperative Bank, N.A., and that the seal affixed to the foregoing instrument is the corporate seal of said entity, and that said instrument was signed and sealed in behalf of said entity by authority of its board of directors (or equivalent authorizing parties), and said ___________________ acknowledged said instrument to be the free act and deed of said entity.

	Name:
		Notary Public in and for said County and State
My Commission Expires:

 

Exh. F-5 

 

EX-99.5

Exhibit 99.5

EXECUTION VERSION

AGREEMENT BETWEEN NOTE HOLDERS

Dated as of October 7, 2021

by and between

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-1 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-2 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-3 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-4 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-5 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-6 Holder)

 

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-6 Holder)

and

BANK OF AMERICA, NATIONAL ASSOCIATION
(Initial Note A-7 Holder)

One North Wacker

This AGREEMENT BETWEEN NOTE HOLDERS (“Agreement”), dated as of October 7, 2021, by and between BANK OF AMERICA, NATIONAL ASSOCIATION (“BANA” and, together with its successors and assigns in interest, in its capacity as initial owner of Note A-1 (as defined below), the “Initial Note A-1 Holder”, and in its capacity as the initial agent, the “Initial Agent”), BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-2 (as defined below), the “Initial Note A-2 Holder”), BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-3 (as defined below), the “Initial Note A-3 Holder”), BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-4 (as defined below), the “Initial Note A-4 Holder”), BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-5 (as defined below), the “Initial Note A-5 Holder”), BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-6 (as defined below), the “Initial Note A-6 Holder”), and BANK OF AMERICA, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-7 (as defined below), the “Initial Note A-7 Holder” and together with the Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder, Initial Note A-4 Holder, Initial Note A-5 Holder and Initial Note A-6 Holder, the “Initial Note Holders”).

W I T N E S S E T H:

WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), BANA originated a certain loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to One North Wacker LLC (the “Mortgage Loan Borrower”), which is evidenced, inter alia, by (i) one promissory note in the original principal amount of $122,000,000 (as amended, modified, consolidated, or supplemented, “Note A-1”), made by the Mortgage Loan Borrower in favor of the Initial Note A-1 Holder, (ii) one promissory note in the original principal amount of $95,000,000 (as amended, modified, consolidated, or supplemented, “Note A-2”), made by the Mortgage Loan Borrower in favor of the Initial Note A-2 Holder, (iii) one promissory note in the original principal amount of $80,000,000 (as amended, modified, consolidated, or supplemented, “Note A-3”), made by the Mortgage Loan Borrower in favor of the Initial Note A-3 Holder, (iv) one promissory note in the original principal amount of $20,500,000 (as amended, modified, consolidated, or supplemented, “Note A-4”), made by the Mortgage Loan Borrower in favor of the Initial Note A-4 Holder, (v) one promissory note in the original principal amount of $15,500,000 (as amended, modified, consolidated, or supplemented, “Note A-5”), made by the Mortgage Loan Borrower in favor of the Initial Note A-5 Holder, (vi) one promissory note in the original principal amount of $15,000,000 (as amended, modified, consolidated, or supplemented, “Note A-6”), made by the Mortgage Loan Borrower in favor of the Initial Note A-6 Holder, and (vii) one promissory note in the original principal amount of $5,000,000 (as amended, modified, consolidated, or supplemented, “Note A-7” and, together with Note A-1, Note A-2, Note A-3, Note A-4, Note A-5 and Note A-6, the “Notes”)), made by the Mortgage Loan Borrower in favor of Initial Note A-4 Holder, each of which is secured by a first mortgage (as amended, modified or supplemented,

-1- 

 

the “Mortgage”) on certain real property located as described on the Mortgage Loan Schedule (the “Mortgaged Property”); and

WHEREAS, each Initial Note Holder desires to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold the Notes.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:

Section 1.                Definitions; Conflicts. References to a “Section”, “preamble” or the “recitals” are, unless otherwise specified, to a Section, the preamble or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms, or terms of substantially similar import, in the Lead Securitization Servicing Agreement. To the extent of any conflict between this Agreement and the Lead Securitization Servicing Agreement, the terms of this Agreement shall control. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

“Accelerated Mezzanine Loan Lender” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Advance Interest” shall mean the interest accrued on any Servicing Advance which is payable to the party that made that Servicing Advance, in accordance with the Lead Securitization Servicing Agreement.

“Affiliate” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.

“Agent Office” shall mean the designated office of the Agent, which office initially shall be the office of the Initial Note A-1 Holder listed on Exhibit B hereto and, after the Securitization Date, shall be the office of the Master Servicer. The Agent Office is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Note Holders.

“Agreement” shall mean this Agreement between Note Holders, the exhibits hereto and all amendments hereof and thereof and supplements hereto and thereto.

“Appraisal” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

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

-2- 

 

“Asset Representations Reviewer” shall mean the “Asset Representations Reviewer” (or similarly named Person that is the “asset representations reviewer” as defined in Item 1101(m) of Regulation AB) under the Lead Securitization Servicing Agreement.

“Asset Review” shall mean any review of representations and warranties conducted by a Non-Lead Asset Representations Reviewer, as contemplated by Item 1101(m) of Regulation AB.

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

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

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

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

“Borrower Party” shall mean the Mortgage Loan Borrower, a manager of the Mortgaged Property, an Accelerated Mezzanine Loan Lender or any Borrower Party Affiliate.

“Borrower Party Affiliate” shall mean, with respect to the Mortgage Loan Borrower, a manager of the Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such Mortgage Loan Borrower, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such Mortgage Loan Borrower, manager or Accelerated Mezzanine Loan Lender, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”

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

“Certificate Administrator” shall mean the certificate administrator appointed as provided in the Lead Securitization Servicing Agreement.

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

-3- 

 

“Commission” shall have the meaning assigned to such term in Section 2(c)(vi).

“Conduit” shall have the meaning assigned to such term in Section 14(d).

“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).

“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).

“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlled”, “Controlling” and “Controls” shall have the correlative meanings thereto.

“Controlling Note” shall mean Note A-1.

“Controlling Note Holder” shall mean the holder of the Controlling Note; provided that at any time the Controlling Note is included in a Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” or such other party otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” under this Agreement or under the Lead Securitization Servicing Agreement, as and to the extent provided in the Lead Securitization Servicing Agreement; provided that for so long as 50% or more of the Controlling Note is held by (or the party assigned the rights to exercise the rights of the “Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or a Borrower Party, the holder of the Controlling Note (and such party assigned the rights to exercise the rights of the “Controlling Note Holder” as described above) shall not be entitled to exercise any rights of the Controlling Note Holder, and there shall be deemed to be no Controlling Note Holder hereunder. If the Controlling Note is included in a Securitization, the Lead Securitization Servicing Agreement may contain additional limitations on the rights of the designated party entitled to exercise the rights of the “Controlling Note Holder” hereunder if such designated party is the Mortgage Loan Borrower or if it has certain relationships with the Mortgage Loan Borrower.

“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).

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

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

“Depositor” shall mean the “depositor” under the Lead Securitization Servicing Agreement.

-4- 

 

“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.

“Exchange Act” shall mean the Securities Exchange Act of 1934.

“First Securitization” shall mean the earliest to occur of the Note A-1 Securitization, the Note A-2 Securitization, the Note A-3 Securitization, the Note A-4 Securitization, the Note A-5 Securitization, the Note A-6 Securitization or the Note A-7 Securitization.

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

“Indemnified Items” shall have the meaning assigned to such terms in Section 2(b).

“Indemnified Parties” shall have the meaning assigned to such terms in Section 2(b).

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

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

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

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

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

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

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

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

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

“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation, reorganization or other similar proceeding concerning the Mortgage Loan Borrower, any action for the dissolution

-5- 

 

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

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

“Interested Person” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

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

“KBRA” shall mean Kroll Bond Rating Agency, LLC and its successors in interest.

“Lead Securitization” shall mean, if the First Securitization is the Note A-1 Securitization, such Securitization; provided that, if any other Securitization occurs prior to the Note A-1 Securitization, then the First Securitization shall be the Lead Securitization until such time as the Note A-1 Securitization occurs.

“Lead Securitization Note” shall mean the Note included in the Lead Securitization.

“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note.

“Lead Securitization Note Holder Representative” shall mean the “Directing Certificateholder” or equivalent Person under the Lead Securitization Servicing Agreement.

“Lead Securitization Servicing Agreement” shall mean, as of any date of determination, (i) the pooling and servicing agreement or other comparable agreement that governs the Securitization that is then the Lead Securitization, and (ii) on and after the date on which the Mortgage Loan is no longer subject to the provisions of agreement described in clause

-6- 

 

(i), the Lead Securitization Servicing Agreement shall be determined in accordance with the second paragraph of Section 2(a).

“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.

“Major Decision” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Master Servicer” shall mean the master servicer appointed to act in such capacity with respect to the Mortgage Loan as provided in the Lead Securitization Servicing Agreement.

“Monthly Payment Date” shall have the meaning assigned to such term (or analogous term) in the Mortgage Loan Documents.

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

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

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

“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of September 10, 2021, between the Mortgage Loan Borrower, as borrower, Bank of America, N.A., as lender, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.

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

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

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

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

“New Notes” shall have the meaning assigned to such term in Section 32.

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

“Non-Controlling Note” means each Note other than Note A-1.

-7- 

 

 

“Non-Controlling Note Holder” means each holder of a Non-Controlling Note; provided that with respect to each Non-Controlling Note, at any time such Non-Controlling Note is included in a Securitization, references to a “Non-Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” (or analogous term) or such other party otherwise assigned the rights to exercise the rights of a “Non-Controlling Note Holder” under this Agreement or under the related Securitization Servicing Agreement, as and to the extent provided in the related Securitization Servicing Agreement, and as to the identity of which the Controlling Note Holder (and, if applicable, the Master Servicer and the Special Servicer) has been given written notice; provided, further that if at any time 50% or more of any Non-Controlling Note (or class of securities issued in a Securitization into which such Non-Controlling Note has been deposited is designated as the “controlling class”) is held by (or such other party otherwise assigned the rights to exercise the rights of the “controlling class” under the related Securitization Servicing Agreement is) the Mortgage Loan Borrower or a Borrower Party, no such Note Holder or other Person shall be entitled to exercise any rights of such Non-Controlling Note Holder under this Agreement or the related Securitization Servicing Agreement, and there shall be deemed to be no Non-Controlling Note Holder with respect to such Non-Controlling Note. The Controlling Note Holder and the Lead Securitization Note Holder (or, if applicable, the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party exercising the rights of a “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement (it being understood for the avoidance of doubt that the Lead Securitization Note Holder (or the Master Servicer or Special Servicer on its behalf) may additionally need to deal with the master servicer, special servicer or other person party to the related Securitization Servicing Agreement) and, (x) to the extent that the related Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent the related Non-Controlling Note is split into two or more New Notes pursuant to Section 32 and notice thereof is not provided to the Controlling Note Holder and the Lead Securitization Note Holder (or, if applicable, the Master Servicer or the Special Servicer acting on its behalf), for purposes of this Agreement, such Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as the Non-Controlling Note Holder with respect to such Non-Controlling Note for all purposes of this Agreement. As of the date hereof and until further notice from the Non-Controlling Note Holder (or, if applicable, the related Non-Lead Master Servicer or another party acting on its behalf), the Initial Note A-2 Holder is the Non-Controlling Note Holder with respect to Note A-2, the Initial Note A-3 Holder is the Non-Controlling Note Holder with respect to Note A-3, the Initial Note A-4 Holder is the Non-Controlling Note Holder with respect to Note A-4, the Initial Note A-5 Holder is the Non-Controlling Note Holder with respect to Note A-5, the Initial Note A-6 Holder is the Non-Controlling Note Holder with respect to Note A-6 and the Initial Note A-7 Holder is the Non-Controlling Note Holder with respect to Note A-7. If a Non-Controlling Note is included in a Securitization, the related Securitization Servicing Agreement

-8- 

 

may contain additional limitations on the rights of the designated party entitled to exercise the rights of a “Non-Controlling Note Holder” hereunder if such designated party is the Mortgage Loan Borrower or if it has certain relationships with the Mortgage Loan Borrower.

“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(b).

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

“Non-Lead Asset Representations Reviewer” shall mean the “Asset Representations Reviewer” (or similarly named Person that is the “asset representations reviewer” as defined in Item 1101(m) of Regulation AB.) under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Depositor” shall mean the “depositor” under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Master Servicer” shall mean the applicable “master servicer” under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Operating Advisor” shall mean the “trust advisor,” “senior trust advisor,” “operating advisor” (or other analogous Person) under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Securitization” shall mean any Securitization of a Note in a Securitization Trust other than the Securitization that is then the Lead Securitization.

“Non-Lead Securitization Note” shall mean any Note other than the Lead Securitization Note.

“Non-Lead Securitization Note Holder” shall mean each holder of a Non-Lead Securitization Note.

“Non-Lead Securitization Note Holder Representative” shall mean the “Directing Certificateholder” or equivalent Person under the Non-Lead Securitization Servicing Agreement.

“Non-Lead Securitization Servicing Agreement” shall have the meaning assigned to such term in Section 2(b).

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

-9- 

 

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

“Non-Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder other than a Securitizing Note Holder with respect to such Securitization.

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

“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.

“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-1 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-1 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-1 PSA” shall mean the pooling and servicing agreement or other comparable agreement entered into in connection with the Note A-1 Securitization.

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

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

“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.

“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-2 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-2 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-2 Securitization” shall mean the first sale by the Note A-2 Holder of all or a portion of Note A-2 to a depositor who will in turn include such portion of Note A-2 as part of the securitization of one or more mortgage loans.

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

“Note A-3 Holder” shall mean the Initial Note A-3 Holder or any subsequent holder of Note A-3, as applicable.

“Note A-3 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-3 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution

-10- 

 

thereof) received by the Note A-3 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-4 Securitization” shall mean the first sale by the Note A-4 Holder of all or a portion of Note A-4 to a depositor who will in turn include such portion of Note A-4 as part of the securitization of one or more mortgage loans.

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

“Note A-4 Holder” shall mean the Initial Note A-4 Holder or any subsequent holder of Note A-4, as applicable.

“Note A-4 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-4 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-4 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-4 Securitization” shall mean the first sale by the Note A-4 Holder of all or a portion of Note A-4 to a depositor who will in turn include such portion of Note A-4 as part of the securitization of one or more mortgage loans.

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

“Note A-5 Holder” shall mean the Initial Note A-5 Holder or any subsequent holder of Note A-5, as applicable.

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

“Note A-5 Securitization” shall mean the first sale by the Note A-5 Holder of all or a portion of Note A-5 to a depositor who will in turn include such portion of Note A-5 as part of the securitization of one or more mortgage loans.

“Note A-6 Securitization” shall mean the first sale by the Note A-6 Holder of all or a portion of Note A-6 to a depositor who will in turn include such portion of Note A-6 as part of the securitization of one or more mortgage loans.

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

“Note A-6 Holder” shall mean the Initial Note A-6 Holder or any subsequent holder of Note A-6, as applicable.

“Note A-6 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-6 Principal Balance set forth on the Mortgage Loan

-11- 

 

Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-6 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-6 Securitization” shall mean the first sale by the Note A-6 Holder of all or a portion of Note A-6 to a depositor who will in turn include such portion of Note A-6 as part of the securitization of one or more mortgage loans.

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

“Note A-7 Holder” shall mean the Initial Note A-7 Holder or any subsequent holder of Note A-7, as applicable.

“Note A-7 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-7 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-7 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-7 Securitization” shall mean the first sale by the Note A-7 Holder of all or a portion of Note A-7 to a depositor who will in turn include such portion of Note A-7 as part of the securitization of one or more mortgage loans.

“Note Holder Representative” shall mean a Controlling Note Holder Representative or a Non-Controlling Note Holder Representative, as applicable.

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

“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).

“Note Principal Balance” shall mean, (i) with respect to Note A-1, the Note A-1 Principal Balance, (ii) with respect to Note A-2, the Note A-2 Principal Balance, (iii) with respect to Note A-3, the Note A-3 Principal Balance, (iv) with respect to Note A-4, the Note A-4 Principal Balance, (v) with respect to Note A-5, the Note A-5 Principal Balance, (vi) with respect to Note A-6, the Note A-6 Principal Balance, and (vii) with respect to Note A-7, the Note A-7 Principal Balance.

“Note Register” shall have the meaning assigned to such term in Section 15.

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

“Operating Advisor” shall mean the trust advisor, senior trust advisor, operating advisor or other analogous term as defined under the Lead Securitization Servicing Agreement.

-12- 

 

“P&I Advance” shall mean an advance made by a party to any Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Note(s) securitized pursuant to such Securitization Servicing Agreement.

“Percentage Interest” shall mean, with respect to each Note Holder, a fraction, expressed as a percentage, the numerator of which is the Note Principal Balance of the Note held by such Note Holder and the denominator of which is the sum of the Note Principal Balances of all of the Notes.

“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.

“Pledge” shall have the meaning assigned to such term in Section 14(c).

“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.

“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other Person that is:

(a)               an entity Controlled by, under common Control with or that Controls any of the Initial Note Holders, or

(b)               one or more of the following:

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

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

(iii)            an institution substantially similar to any of the foregoing entities described in clauses (i) or (ii), or

-13- 

 

(iv)            any entity Controlled by or under common Control or Controlling any of the entities described in clauses (i), (ii) or (iii), or

(v)            a Qualified Trustee (or, in the case of a CDO, a single-purpose, bankruptcy remote entity that contemporaneously pledges its interest in a Note to a Qualified Trustee) in connection with (a) a securitization of, (b) the creation of collateralized debt (or loan) obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that Securitization; (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise subject to Rating Agency Confirmations from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iii), (iv) or (vi) of this definition, or

(vi)            an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii), (iii) or (iv) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii)), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), and

in the case of any entity referred to in clause (b)(i), (ii), (iii), (iv) or (vi)(B) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (vi)(B) above, the

-14- 

 

requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or

(c)               any entity Controlled by any of the entities described in clause (b)(i), (ii), (iv)(B) or (v) above or subject to a Rating Agency Confirmation as a Qualified Institutional Lender for purposes of this Agreement from each of the Rating Agencies engaged to rate the securities for any Securitization.

“Qualified Trustee” shall mean (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority or (ii) an institution whose long-term senior unsecured debt is rated in either of the then in effect top three rating categories of each of the applicable Rating Agencies (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P).

“Rating Agencies” shall mean DBRS Morningstar, Fitch, KBRA, Moody’s and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably engaged by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, however, that, at any time during which one or more of the Notes is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the related depositor (or its Affiliate) from time to time to rate the securities issued in connection with the Securitizations of the related Notes.

“Rating Agency Confirmation” shall mean, with respect to any Securitization, a confirmation in writing (which may be in electronic form) by each of the applicable Rating Agencies for such Securitization that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then current rating assigned to any class of securities of such Securitization (if then rated by such Rating Agency); provided that a written waiver or other acknowledgment from any such Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter. If no such securities are outstanding with respect to any Securitization, any action that would otherwise require a Rating Agency Confirmation shall instead require the consent of the Controlling Note Holder, which consent shall not be unreasonably withheld, conditioned or delayed.

“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).

“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100 229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the

-15- 

 

Commission or by its staff, or as may be provided by the Commission or its staff from time to time.

“REMIC” shall have the meaning assigned to such term in Section 5(d).

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

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

“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, and (iv) in the case of DBRS Morningstar or KBRA, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by DBRS Morningstar or KBRA, as applicable, within the twelve (12) month period prior to the date of determination, and DBRS Morningstar or KBRA, as applicable, has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.

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

“Securitization” shall mean the Note A-1 Securitization, the Note A-2 Securitization, the Note A-3 Securitization, the Note A-3 Securitization, the Note A-4 Securitization, the Note A-5 Securitization, the Note A-6 Securitization or the Note A-7 Securitization.

“Securitization Date” shall mean the effective date of the First Securitization.

“Securitization Servicing Agreement” shall mean the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement.

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

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

-16- 

 

“Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is contributing its Note to such Securitization.

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

“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

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

“Servicing Standard” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.

“Special Servicer” shall mean the special servicer appointed to act in such capacity with respect to the Mortgage Loan as provided in the Lead Securitization Servicing Agreement.

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

“Transfer” shall have the meaning assigned to such term in Section 14.

“Trust Fund” shall mean the trust formed pursuant to the Lead Securitization Servicing Agreement.

“Trustee” shall mean the trustee appointed as provided in the Lead Securitization Servicing Agreement.

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

 

-17- 

 

Section 2.               Servicing of the Mortgage Loan.

(a)               Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced from and after the Securitization Date by the Master Servicer and the Special Servicer pursuant to the terms of this Agreement and the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note (unless such other Note is also included in the Lead Securitization) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to make Servicing Advances, subject to the terms of the Lead Securitization Servicing Agreement; provided further that the Special Servicer, when appointed, has the Required Special Servicer Rating from each Rating Agency then rating a Securitization. The Lead Securitization Servicing Agreement shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of any Securitization Trust, (ii) required by law or changes in any law, rule or regulation or (iii) generally required by the Rating Agencies in connection with the issuance of ratings in securitizations similar to the Securitizations. Each Note Holder acknowledges that each other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 26 hereof, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the Special Servicer by the Controlling Note Holder and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of such Note Holder set forth herein and in the Lead Securitization Servicing Agreement). In no event shall the Lead Securitization Servicing Agreement require any Servicer to enforce the rights of any Note Holder against any other Note Holder or limit a Servicer in enforcing the rights of one Note Holder against any other Note Holder; however, this statement shall not be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall (i) be required pursuant to the Lead Securitization Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, (ii) provide information to each servicer under the Non-Lead Securitization Servicing Agreement to enable each such servicer to perform its servicing duties, and (iii) not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.

At any time after the First Securitization that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms

-18- 

 

substantially similar to the Lead Securitization Servicing Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each other Rating Agency with respect to any such Non-Lead Securitization Note regarding any Special Servicer to be appointed under such replacement servicing agreement that does not have the Required Special Servicer Rating for such Rating Agency or, with respect to the Master Servicer, would not otherwise meet the conditions to be a servicer under the Lead Securitization Servicing Agreement that is being replaced; provided, further, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full force and effect with respect to the Mortgage Loan, by the Servicers in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a Person meeting the requirements of a master servicer under the Lead Securitization Servicing Agreement and, in the case of the Special Servicer, that meets the Required Special Servicer Rating for each Rating Agency then rating securities of a Non-Lead Securitization.

(b)               The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee or the Special Servicer, to the extent provided in the Lead Securitization Servicing Agreement) shall make the following advances, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement: (i) Servicing Advances on the Mortgage Loan and (ii) P&I Advances on the Lead Securitization Note. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first from funds on deposit in the Collection Account and/or the Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Advances, if such funds on deposit in the Collection Account or Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement of a Servicing Advance that is a Nonrecoverable Advance or any Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), each Non-Lead Securitization Note Holder (including any Securitization Trust into which a Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Advance or Advance Interest.

In addition, each Non-Lead Securitization Note Holder (including, but not limited to, any Securitization Trust into which a Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan

-19- 

 

as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer or the Depositor, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, to the extent amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan are insufficient for reimbursement of such amounts. Each Non-Lead Securitization Note Holder shall indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, Asset Representations Reviewer and the Depositor (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the Operating Advisor and the Asset Representations Reviewer, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan, as applicable, are insufficient for reimbursement of such amounts, each Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency; provided, however, that each Non-Lead Securitization Note Holder’s obligation to pay Indemnified Items to the Operating Advisor shall be subject to any limitations and conditions (including limitations and conditions with respect to the timing of such payments and the sources of funds for such payments) as may be set forth from time to time in a related Non-Lead Securitization Servicing Agreement.

Any Non-Lead Master Servicer (or if not made by such Non-Lead Master Servicer, the Non-Lead Trustee) may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the related servicing agreement for the related Securitization (each such agreement, a “Non-Lead Securitization Servicing Agreement”) and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall each be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that it has on hand and in accordance with the Lead Securitization Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee under the related Non-Lead Securitization Servicing Agreement, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and the related Non-Lead Master Servicer or the related Non-Lead Trustee shall be required to notify the other of the amount of its P&I Advance within two Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master

-20- 

 

Servicer, Non-Lead Special Servicer or a Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Servicing Advance would be non-recoverable or an outstanding Servicing Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the related Non-Lead Master Servicer or the related Non-Lead Trustee (as provided in the related Non-Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the related Non-Lead Master Servicer, the related Non-Lead Special Servicer or the related Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the Non-Lead Master Servicer and the Non-Lead Trustee, as the case may be, of the other Securitization within two Business Days of making such determination. Each of the Master Servicer, the Trustee, a Non-Lead Master Servicer and a Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance that becomes non-recoverable first from the Companion Distribution Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of a Non-Lead Securitization Note, from general collections of the Securitization Trust that owns such Non-Lead Securitization Note, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement.

(c)               The Lead Securitization Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):

(i)            the Master Servicer shall remit all payments received with respect to each Non-Lead Securitization Note, net of the primary servicing fee payable to the Master Servicer and servicing fees payable to the Special Servicer with respect to such Non-Lead Securitization Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Securitization Note Holder by the earlier of (x) the Remittance Date and (y) the Business Day following the “determination date” (or any term substantially similar thereto) as defined in the Non-Lead Securitization Servicing Agreement (such determination date, the “Non-Lead Securitization Determination Date”), in each case as long as the date on which remittance is required under this clause (i) is at least one business day after the scheduled monthly payment date under the Loan Agreement, provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with clause (c)(xiii) below;

(ii)            with respect to the Non-Lead Securitization Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing

-21- 

 

Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement, to the extent related to the Mortgage Loan, the Mortgaged Property, the Non-Lead Securitization Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, by the earlier of (x) the Remittance Date and (y) the Business Day following the Non-Lead Securitization Determination Date, in each case so long as the date on which delivery is required under this clause (ii) is at least one business day after the scheduled monthly payment date under the Loan Agreement;

(iii)            the Master Servicer and Special Servicer, as applicable, shall provide (in electronic media) to each Non-Controlling Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan that it has provided, or that it is required to provide, to the Controlling Note Holder or the Operating Advisor in connection with any request for consent made to, or consultation with, the Non-Controlling Note Holder;

(iv)            the Non-Lead Securitization Note Holder shall be entitled to the same indemnity as the Lead Securitization Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each Certifying Person and the depositor of any public Securitization related to a Non-Lead Securitization Note, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each Certifying Person for (i) its failure to deliver the items in clause (v) below in a timely manner, (ii) its failure to perform its obligations to such depositor or Non-Lead Trustee under Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;

(v)            with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), to the Non-Lead Depositor and the Non-Lead

-22- 

 

Trustee, in a timely manner, (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and all information to be included in reports (including, without limitation, Form ABS 15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in the Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the parties to each Non-Lead Securitization may reasonably require in order to comply with their obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (b) without limiting the generality of the foregoing, the Initial Note Holder of the Lead Securitization Note shall provide in a timely manner to the Non-Lead Depositor and the Non-Lead Trustee, if any, a copy of the Lead Securitization Servicing Agreement in EDGAR-compatible format (but not later than one business day following the closing date of the Lead Securitization) and each Servicer under the Lead Securitization Servicing Agreement will be required, upon prior written request, to provide to the Non-Lead Depositor and the Non-Lead Trustee, if any, any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB, in each case in a timely manner for inclusion in any disclosure document (or for filing under Form 8-K, as applicable), and with respect to such Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case at the expense of the Non-Lead Securitization Note Holder). The Master Servicer, any primary servicer and the Special Servicer shall each be required to provide certification and indemnification to each Certifying Person with respect to the Sarbanes-Oxley Certification (or analogous terms) as such terms are defined in the Non-Lead Securitization Servicing Agreement;

(vi)            each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party (or analogous term) shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with the Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Depositor under Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by the Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by the Non-Lead Depositor in any telephone conferences and meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs the Non-Lead Depositor must bear pursuant to Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;

-23- 

 

(vii)            each Non-Lead Securitization Note Holder (unless it is a Borrower Party) is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement;

(viii)            each Non-Lead Master Servicer and each Non-Lead Special Servicer shall be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of advances;

(ix)            if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Securitization Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell each of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notice to each Non-Lead Master Servicer who shall provide notice to the related Non-Controlling Note Holder of the planned sale and of such Non-Controlling Note Holder’s opportunity to submit an offer on the Mortgage Loan;

(x)            the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Securitization Note Holder without the consent of such Non-Lead Securitization Note Holder;

(xi)            Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include: (i) solely with respect to the Master Servicer, the failure to timely remit payments to a Non-Lead Securitization Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the Companion Distribution Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with a Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in such rating action; and (iv) the failure to provide to a Non-Lead Securitization Note Holder (if and to the extent required under the related Non-Lead Securitization) reports required under the Exchange Act, and the rules and regulations thereunder, in a timely fashion;

(xii)            in connection with (A) any amendment of the Lead Securitization Servicing Agreement, a party to such Lead Securitization Servicing Agreement is required to

-24- 

 

provide a copy of the executed amendment to each Non-Lead Depositor and one or more parties to the related Non-Lead Securitization Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Lead Securitization Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to each Non-Lead Depositor and one or more parties to the related Non-Lead Securitization Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;

(xiii)            any late collections received by the Master Servicer from the Mortgage Loan Borrower that are allocable to a Non-Lead Securitization Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to the related Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds constituting such late collections; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified and available funds;

(xiv)            any conflict between the Lead Securitization Servicing Agreement and this Agreement shall be resolved in favor of this Agreement provided that in no event shall the Master Servicer or the Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of this Agreement that would cause the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions;

(xv)            primary servicing, special servicing, workout and liquidation fee rates shall not exceed 0.0025%, 0.25%, 1.00% and 1.00%, respectively, subject to any market minimum amounts and fee offsets set forth in the Lead Securitization Servicing Agreement;

(xvi)            each Lead Securitization Servicing Agreement shall also satisfy Moody’s rating methodology as of the closing date of the Lead Securitization Servicing Agreement for eligible accounts and permitted investments for a securitization rated “Aaa” by Moody’s;

(xvii)            the Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder; and

(xviii)            the holder of the Lead Securitization Note shall:

-25- 

 

(i)            on, or within a timely manner following, the closing date of the Lead Securitization, provide notice of the closing of the Lead Securitization and send (or provide for access through a financial printer together with notice (which may be by email) and contact information therefor) a copy (in EDGAR-compatible format) of the Lead Securitization Servicing Agreement to each other Note Holder; and

(ii)            give each other Note Holder written notice in a timely manner (but no later than one (1) business day prior to the applicable filing date) of any re-filing (other than a filing made in connection with a formal amendment of the Lead Securitization Servicing Agreement) by the Depositor of the Lead Securitization Servicing Agreement subsequent to the Securitization Date if such filing contains revisions or changes that are material to the other Note Holders.

(d)               Each Non-Lead Securitization Note Holder agrees that, if the related Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:

(i)            such Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Nonrecoverable Advances relating to Servicing Advances (and Advance Interest thereon) and any additional expenses of the Trust Fund, but only to the extent that such expenses relate to servicing and administration of the Notes, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan, as applicable, are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, reimburse the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, as applicable, out of general collections in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Advances and/or additional expenses of the Trust Fund;

(ii)            each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by each Securitization Trust holding a Non-Lead Securitization Note, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general collections in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement; provided, however, that such Non-Lead Securitization Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Operating Advisor (including

-26- 

 

limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);

(iii)            the related Non-Lead Master Servicer, related Non-Lead Trustee or certificate administrator under the related Non-Lead Securitization Servicing Agreement will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following Securitization of such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the related certificate administrator, the related Non-Lead Master Servicer, the related Non-Lead Special Servicer and the party designated to exercise the rights of the related “Non-Controlling Note Holder” and “Non-Lead Securitization Note Holder” under this Agreement), accompanied by a certified copy of the related executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the related Non-Lead Master Servicer or the party designated to exercise the rights of the related “Non-Controlling Note Holder” or “Non-Lead Securitization Note Holder” under this Agreement (together with the relevant contact information); and

(iv)            the Master Servicer and the Special Servicer and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.

(e)               Prior to the Securitization of a Non-Lead Securitization Note (including any New Note), all notices, reports, information or other deliverables required to be delivered to the related Non-Lead Securitization Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Non-Lead Securitization Note Holder (or its Note Holder Representative) and, when so delivered to such Non-Lead Securitization Note Holder (or its Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following the Securitization of a Non-Lead Securitization Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to the related Non-Lead Securitization Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the related Non-Lead Master Servicer and Non-Lead Special Servicer (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Non-Lead Securitization Servicing Agreement) and, when so delivered to such Non-Lead Master Servicer and such Non-Lead Special Servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement (except where required by this Agreement or the Lead Securitization Servicing Agreement to deliver items directly to a Non-Lead Depositor or other party to a Non-Lead Securitization Servicing Agreement for purposes of compliance with securities laws).

-27- 

 

(f)                The Lead Securitization Note Holder agrees that, if a Non-Lead Securitization Note is included in a Securitization, and such Non-Lead Securitization is subject to reporting requirements under Regulation AB, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall be required to reasonably cooperate with the Non-Lead Asset Representations Reviewer in connection with such Non-Lead Asset Representations Reviewer’s obligations under any Non-Lead Securitization Servicing Agreement with respect to the Mortgage Loan by providing any documents reasonably requested by the Non-Lead Asset Representations Reviewer or other requesting party in connection with the Non-Lead Asset Representations Reviewer’s obligations, but only to the extent such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, but in any event excluding any documents known to such the Master Servicer, the Special Servicer, the Trustee or the Custodian to contain information that is proprietary to the related originator or Initial Note Holders or any draft documents or privileged or internal communications. The reasonable out-of-pocket expenses of the Master Servicer, Special Servicer, the Trustee and the Custodian actually incurred in connection with their compliance with such requests shall be reimbursable by the Non-Lead Asset Representations Reviewer or, if not paid by the Non-Lead Asset Representations Reviewer, the Non-Lead Securitization Note Holder.

Section 3.                Priority of Payments.

(a)               Each Note shall be of equal priority, and no portion of any Note shall have priority or preference over any portion of any other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Periodic Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents) shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis; provided, that (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Servicing Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement shall be applied to the extent set forth in, and in accordance with the terms of, the Mortgage Loan Documents; and (y) all amounts that are then due, payable or reimbursable to any Servicer, with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement and any other compensation payable to it thereunder (including without limitation, any additional expenses of the Trust Fund relating to the Mortgage Loan (but subject to the second paragraph of Section 5(d) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Workout Fees and Penalty Charges (to the extent provided in the immediately following paragraph) but excluding (i) any P&I Advances (and interest thereon) on the Lead Securitization Note, which shall be reimbursed in accordance with Section 2(b) hereof, and (ii) any Master Servicing Fees due to the Master Servicer in excess of the Non-Lead Securitization

-28- 

 

Note’s pro rata share of that portion of such servicing fees calculated at the “primary servicing fee rate” applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement, which such excess shall not be subject to the allocation provisions of this Section 3) shall be payable in accordance with the Lead Securitization Servicing Agreement.

For clarification purposes, Penalty Charges paid on each Note shall first, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Servicing Advances and reimbursement of any Servicing Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, be used to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, the Non-Lead Master Servicer or the Non-Lead Trustee for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or the Non-Lead Securitization Servicing Agreement, as applicable), third, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay additional expenses of the Trust Fund (including, if not paid by the Mortgage Loan Borrower, Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, shall be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement.

Any proceeds received from the sale of the primary servicing rights with respect to the Mortgage Loan shall be remitted, promptly upon receipt thereof, to the Note Holders on a Pro Rata and Pari Passu Basis. Any proceeds received by any Note Holder from the sale of master servicing rights with respect to its Note shall be for its own account.

Section 4.                Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement, and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.

Section 5.                Administration of the Mortgage Loan.

(a)               Subject to this Agreement (including but not limited to Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any

-29- 

 

other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).

Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Loan to sell the Notes together as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement and shall require that all offers be submitted to the Special Servicer in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In determining whether any offer from an Interested Person received represents a fair price for the Mortgage Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal or updated Appraisal or narrative appraisal that it may have obtained within the prior nine (9) months pursuant to the Lead Securitization Servicing Agreement) among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the Master Servicer. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder

-30- 

 

(provided that such consent is not required if the related Non-Lead Securitization Note is held by a Borrower Party) unless the Special Servicer has delivered to such Non-Lead Securitization Note Holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Lead Securitization Note Holder Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided, however, that such Non-Lead Securitization Note Holder may waive any delivery or timing requirements set forth in this sentence only for itself. Subject to the foregoing, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the Non-Controlling Note Holder Representatives shall be permitted to submit an offer at any sale of the Mortgage Loan (unless such Person is a Borrower Party).

Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person.

Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the original related Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.

The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to

-31- 

 

execute and deliver instruments or deliver the Non-Lead Securitization Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the Initial Note Holder from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by such Initial Note Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by the related Initial Note Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to a Non-Lead Securitization Note Holder the benefit of any representation or warranty made by such Initial Note Holder or any document delivery obligation imposed on such Initial Note Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Initial Note Holder in connection with the Lead Securitization.

(b)               The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect any Non-Lead Securitization Note Holder in its capacity as a Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein.

(c)               Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Note Holder Representative pursuant to the Lead Securitization Servicing Agreement (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period) with respect to any Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to a Non-Lead Securitization Note Holder (or its Non-Lead Securitization Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Note Holder Representative (for this purpose, without regard to whether such

-32- 

 

items are actually required to be provided to the Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period, but subject to any limitations in the Lead Securitization Servicing Agreement regarding providing such information to the Mortgage Loan Borrower or those who have certain relationships with the Mortgage Loan Borrower) and (ii) to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may make any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).

In addition to the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to attend (in person or telephonically, in the discretion of the Master Servicer or Special Servicer, as applicable) annual meetings with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.

(d)               If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision

-33- 

 

of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan.

Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holder be reduced to offset or make-up any such payment or deficit.

Section 6.                Rights of the Controlling Note Holder and Non-Controlling Note Holders.

(a)               The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than a Borrower Party), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any Affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. No Servicer,

-34- 

 

Certificate Administrator or Trustee acting on behalf of the Lead Securitization Note Holder shall be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified each Servicer, Certificate Administrator and Trustee of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides each Servicer, Certificate Administrator and Trustee with written confirmation of its acceptance of such appointment (and such parties will be entitled to rely on such notice), an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and facsimile numbers). The Controlling Note Holder shall promptly deliver such information to any Servicer, Certificate Administrator and Trustee. The Controlling Note Holder agrees to inform each such Servicer or Trustee of the then-current Controlling Note Holder Representative.

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

(b)               Each Non-Controlling Note Holder shall have the right at any time to appoint a representative (other than a Borrower Party) in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.

-35- 

 

       Each Non-Controlling Note Holder (if it is not the Lead Securitization Note Holder) shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization Servicing Agreement shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon. The Non-Controlling Note Holder Representatives with respect to the Non-Controlling Notes, as of the date of this Agreement and until the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) is notified otherwise, shall be the Initial Note A-2 Holder with respect to Note A-2, the Initial Note A-3 Holder with respect to Note A-3, the Initial Note A-4 Holder with respect to Note A-4, the Initial Note A-5 Holder with respect to Note A-5, the Initial Note A-6 Holder with respect to Note A-6 and the Initial Note A-7 Holder with respect to Note A-7.

(c)               The Controlling Note Holder shall be entitled to exercise the rights and powers granted to the Controlling Note Holder hereunder and the rights and powers granted to the “Directing Holder,” “Controlling Class Certificateholder,” “Controlling Class Representative” or similar party under, and as defined in, the Lead Securitization Servicing Agreement with respect to the Mortgage Loan. In addition, the Controlling Note Holder shall be entitled to advise (1) the Special Servicer with respect to all matters related to the Mortgage Loan if it is a “Specially Serviced Loan” (as defined in the Lead Securitization Servicing Agreement) and (2) the Special Servicer with respect to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and, except as set forth below, (i) the Master Servicer shall not be permitted to implement any Major Decision unless it has obtained the prior written consent of the Special Servicer and (ii) the Special Servicer shall not be permitted to consent to the Master Servicer’s implementing any Major Decision nor will the Special Servicer itself be permitted to implement any Major Decision as to which the Controlling Note Holder has objected in writing within ten (10) Business Days after receipt of the written recommendation and analysis and such additional information requested by the Controlling Note Holder, and reasonably available to the Special Servicer, as may be necessary in order to make a judgment with respect to such Major Decision. The Controlling Note Holder may also direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Note Holder may deem advisable.

If the Controlling Note Holder fails to notify the Special Servicer of its approval or disapproval of any proposed Major Decision within ten (10) Business Days after delivery to the Controlling Note Holder by the applicable Servicer of written notice of a proposed Major Decision together with any information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment, then upon the expiration of such ten (10) Business Day period, such Major Decision shall be deemed to have been approved by the Controlling Note Holder.

In the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by the Lead Securitization Servicing Agreement to take such

-36- 

 

action), as applicable, determines that immediate action, with respect to the foregoing matters, or any other matter requiring consent of the Controlling Note Holder is necessary to protect the interests of the Note Holders (as a collective whole) and the Special Servicer has made a reasonable effort to contact the Controlling Note Holder, the Master Servicer or the Special Servicer, as the case may be, may take any such action without waiting for the Controlling Note Holder’s response.

No objection, consent, direction or advice contemplated by the preceding paragraphs may, and neither the Master Servicer nor Special Servicer shall take any action that would (i) require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of the Mortgage Loan Documents, applicable law, the Lead Securitization Servicing Agreement, this Agreement, the REMIC Provisions or the Master Servicer or Special Servicer’s obligation to act in accordance with the Servicing Standard or (ii) result in the imposition of a tax on any Trust REMIC under the REMIC Provisions or cause any REMIC Pool to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code for federal income tax purposes, (iii) expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor, the Depositor, the Asset Representations Reviewer, the Trust or the Trustee or any of their respective Affiliates, officers, directors, shareholders, partners, members, managers, employees or agents to any claim, suit, or liability for which this Agreement or the Lead Securitization Servicing Agreement does not provide indemnification to such party or expose any such party to prosecution for a criminal offense, (iv) materially expand the scope of responsibilities of any of the Master Servicer, Special Servicer, the Certificate Administrator, the Asset Representations Reviewer, the Trustee or the Operating Advisor, as applicable, under this Agreement or the Lead Securitization Servicing Agreement.

Section 7.                Appointment of Special Servicer. Subject to the conditions and requirements set forth in the Lead Securitization Servicing Agreement, the Controlling Note Holder shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to the other Note Holder, the Master Servicer, the then existing Special Servicer and other parties to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Confirmation, but only if required by the terms of the Lead Securitization Servicing Agreement), and delivering to each Non-Controlling Note Holder a Rating Agency Confirmation with respect to any rated securities issued and outstanding under the related Securitization if such replacement Special Servicer does not meet the Required Special Servicer Rating with respect to those Rating Agencies rating the securities of any Securitization related to a Non-Controlling Note Holder. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the Non-Controlling Note Holders of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan

-37- 

 

as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects a Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. The Note Holders acknowledge and agree that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Upon the occurrence of such a Servicer Termination Event with respect to the Master Servicer that affects a Non-Lead Securitization Note Holder, and the Master Servicer is not otherwise terminated pursuant to the Lead Securitization Servicing Agreement, the Trustee or the Master Servicer shall, upon the direction of the affected Non-Lead Securitization Note Holder, require the appointment of a subservicer with respect to the Mortgage Loan. The Non-Controlling Note Holder that directs the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Collection Account under the Lead Securitization Servicing Agreement.

Section 8.                Payment Procedure.

(a)               The Lead Securitization Note Holder (or the Master Servicer acting on its behalf), in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the Collection Account and/or Companion Distribution Account pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer acting on its behalf) shall deposit such amounts to the applicable account within two (2) Business Days after receipt by it of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.

(b)               If the Lead Securitization Note Holder determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to the Lead Securitization Note Holder, a Non-Lead Securitization Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, the Lead Securitization Note Holder shall not be required to distribute any portion thereof to the Non-Lead Securitization

-38- 

 

Note Holders and each Non-Lead Securitization Note Holder shall promptly on demand by the Lead Securitization Note Holder repay to the Lead Securitization Note Holder any portion thereof that the Lead Securitization Note Holder shall have theretofore distributed to such Non-Lead Securitization Note Holder, together with interest thereon at such rate, if any, as the Lead Securitization Note Holder shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.

(c)               If, for any reason, the Lead Securitization Note Holder makes any payment to a Non-Lead Securitization Note Holder before the Lead Securitization Note Holder has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s request, promptly return that payment to the Lead Securitization Note Holder.

(d)               Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from a Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. A Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.

Section 9.                Limitation on Liability of the Note Holders. Each Note Holder shall have no liability to any other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder; provided, that, notwithstanding any of the foregoing to the contrary, each Servicer will nevertheless be subject to the obligations and standards (including the Servicing Standard) set forth in the related Securitization Servicing Agreement.

The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of any Non-Lead Securitization Note Holder and that the Lead Securitization Note Holder (including any Servicer and the Trustee) shall have no liability whatsoever to any Non-Lead Securitization Note Holder in connection with such Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard.

-39- 

 

Section 10.           Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not any Non-Lead Securitization Note Holder, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to a Non-Lead Securitization Note Holder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby agrees that, upon the request of the Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.

Section 11.            Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or

-40- 

 

governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.

Section 12.            No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. The Lead Securitization Note Holder shall have no obligation whatsoever to offer to any Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates and if the Lead Securitization Note Holder chooses to offer to a Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by the Lead Securitization Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as the Lead Securitization Note Holder chooses, in its sole and absolute discretion. No Non-Lead Securitization Note Holder shall have any obligation whatsoever to purchase from the Lead Securitization Note Holder a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates.

Section 13.            Other Business Activities of the Note Holders. Each Note Holder acknowledges that the other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, a Borrower Party, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower, and receive payments on such other loans or extensions of credit to any such party and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

Section 14.            Sale of the Notes.

(a)               Except as contemplated by the second following sentence, each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its respective Note (a “Transfer”) except to a Qualified Institutional Lender in accordance with the terms of this Agreement. Promptly after the Transfer (other than a Transfer to a Securitization Trust), the non-transferring Note Holder(s) shall be provided with (x) a representation from a transferee or the applicable Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer in accordance with the immediately following sentence) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first (a) obtain the consent of each non-transferring Note Holder and (b) if such non-transferring Note Holder’s Note is held in a Securitization Trust, obtain a Rating Agency Confirmation from each Rating Agency then rating the securities of such Securitization Trust. Notwithstanding the foregoing, without the non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if such non-transferring Note Holder’s Note is held in a Securitization Trust, until a Rating Agency Confirmation is obtained, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to a Borrower Party and any such Transfer made without the prior consent of the non-transferring Note Holder and Rating Agency Confirmation (if such non-transferring Note

-41- 

 

Holder’s Note is held in a Securitization Trust), shall be absolutely null and void and shall vest no rights in the purported transferee; provided that for the avoidance of doubt, transfers of any securities backed by a Note held in a Securitization Trust will not be subject to the foregoing requirement and such transfers shall be governed by the terms of the Lead Securitization Servicing Agreement or any related Non-Lead Securitization Servicing Agreement, as applicable. The transferring Note Holder agrees that it shall pay the expenses of the non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer, the Trustee and any Controlling Note Holder or Controlling Note Holder Representative) and all expenses relating to any Rating Agency Confirmation in connection with any such Transfer. Notwithstanding the foregoing, each Note Holder shall have the right, without the need to obtain the consent of the other Note Holder or of any other Person or having to provide any Rating Agency Confirmation, to Transfer 49% or less (in the aggregate) of its beneficial interest in a Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of all of the Notes together, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Loan to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.

(b)               In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.

(c)               Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than a Borrower Party) which has extended a credit facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent or higher rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee that is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to any other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), such other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note

-42- 

 

Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to any other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Note Holders and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases the other Note Holders and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. A Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than a Borrower Party that is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.

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

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

-43- 

 

(ii)            The Conduit Credit Enhancer is a Qualified Institutional Lender;

(iii)            Such Note Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;

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

(v)            Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.

Section 15.            Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of the other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.

In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and the other Note Holders against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.

-44- 

 

Section 16.            Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Section 17.            Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

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

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

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

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

Section 18.            Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first obtaining a Rating Agency Confirmation from each Rating Agency then rating any securities of any Securitization; provided that no such Rating Agency Confirmation shall be required in connection with a modification (i) to cure any

-45- 

 

ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement, or (ii) with respect to matters or questions arising under this Agreement, to make provisions in this Agreement consistent with other provisions of this Agreement (including, without limitation, in connection with the creation of New Notes pursuant to Section 32).

Section 19.            Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer and Special Servicer and the Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder.

Section 20.            Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.

Section 21.            Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.

Section 22.            Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 23.            Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.

Section 24.            Withholding Taxes. (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to a Non-Lead Securitization Note Holder with respect to the Mortgage Loan as a result of such Non-Lead Securitization Note Holder constituting a Non-Exempt Person, the Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to such Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish such Non-Lead Securitization Note Holder with a statement setting forth the amount of Taxes withheld, the applicable rate

-46- 

 

and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.

(b)               Each Non-Lead Securitization Note Holder shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made such Non-Lead Securitization Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Non-Lead Securitization Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Non-Lead Securitization Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Non-Lead Securitization Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.

(c)               Each Non-Lead Securitization Note Holder represents to the Lead Securitization Note Holder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each Non-Lead Securitization Note Holder shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Non-Lead Securitization Note Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if a Non-Lead Securitization Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments) or Form W-8BEN, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any

-47- 

 

payment hereunder with respect to any Non-Lead Securitization Note or otherwise until the related Non-Lead Securitization Note Holder shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.

Section 25.            Custody of Mortgage Loan Documents. On and after the closing of the Lead Securitization, the originals of all of the Mortgage Loan Documents (other than the originals of the Non-Lead Securitization Notes) shall be held by the Trustee through a duly appointed custodian therefor, in accordance with the terms of the Lead Securitization Servicing Agreement, on behalf of the registered holders of the Notes; provided that if the First Securitization is not the Note A-1 Securitization, (i) the originals of all of the Mortgage Loan Documents (other than the Notes not being deposited into the First Securitization) shall be transferred to and held by the Trustee (of the First Securitization) through a duly appointed custodian therefor under the First Securitization, on behalf of the registered holders of the Notes, until the closing of the Note A-1 Securitization, on which date, the originals of all of the Mortgage Loan Documents (other than the Notes not being deposited into the Note A-1 Securitization) shall be transferred to and held in the name of the Trustee (by a duly appointed custodian therefor) under the Note A-1 PSA on behalf of the registered holders of the Notes; and (ii) all Mortgage Loan Documents (other than the Notes not being deposited into the Note A-1 Securitization) shall not be recorded or filed to reflect the name of the trustee under the Securitization Servicing Agreement for the First Securitization (except to the extent specifically provided for in the Securitization Servicing Agreement for the First Securitization).

Section 26.            Cooperation in Securitization. Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, at the request of the related Securitizing Note Holder, the related Non-Securitizing Note Holder shall use reasonable efforts, at such Securitizing Note Holder’s expense, to satisfy, and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which such Securitizing Note Holder customarily adheres or that may be reasonably required in the marketplace or by the Rating Agencies in connection with such Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect such Securitization; provided, that no Non-Securitizing Note Holder shall be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Securitizing Note Holder or (ii) materially increase such Non-Securitizing Note Holder’s obligations or materially decrease such Non-Securitizing Note Holder’s rights, remedies or protections. In connection with any Securitization, each related Non-Securitizing Note Holder shall provide for inclusion in any disclosure document relating to such Securitization such information concerning such Non-Securitizing Note Holder and its Note as the related Securitizing Note Holder reasonably determines to be necessary or appropriate, and such Non-Securitizing Note Holder shall, at such Securitizing Note Holder’s expense, cooperate with the reasonable requests of each Rating

-48- 

 

Agency and such Securitizing Note Holder in connection with such Securitization (including, without limitation, reasonably cooperating with such Securitizing Note Holder (without any obligation to make additional representations and warranties) to enable such Securitizing Note Holder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and such Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Note Holder and its Note in any Securitization document. Each Note Holder acknowledges that in connection with any Securitization, the information provided by it in its capacity as a Non-Securitizing Note Holder to the related Securitizing Note Holder may be incorporated into the offering documents for such Securitization. Each Securitizing Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, each Non-Securitizing Note Holder.

Upon request, each Securitizing Note Holder shall deliver to the Non-Securitizing Note Holder drafts of the preliminary and final offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the pooling and servicing agreement for the Securitization of such Securitizing Note Holder’s Note and provide reasonable opportunity to review and comment on such documents.

Section 27.            Notices. All notices required hereunder shall be given by (i)  facsimile transmission or e-mail (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (ii) reputable overnight delivery service (charges prepaid) or (iii) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.

Section 28.            Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.

Section 29.            Certain Matters Affecting the Agent.

(a)               The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any representation made or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;

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

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

-49- 

 

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

(e)               The Agent shall not be bound to make any investigation into the facts or matters stated in any representation made or assignment and assumption agreement delivered to the Agent pursuant to Section 15;

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

(g)               The Agent represents and warrants that it is a Qualified Institutional Lender.

Section 30.            Reserved.

Section 31.            Resignation of Agent. The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. BANA, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of a Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of BANA or the master servicer of the First Securitization, as applicable, without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement, and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.

Section 32.            Resizing. Notwithstanding any other provision of this Agreement, for so long as any Note Holder or an affiliate thereof (each, an “Original Entity”) is the owner of a Note that is not included in a Securitization (each, an “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of the Owned Note to such New Notes; or severing the Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of the Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of the Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, and (iv) the Original Entity holding

-50- 

 

the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of the other Notes. In connection with the foregoing (provided the conditions set forth in (i) through (iv) above are satisfied), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal. If the Lead Securitization Note Holder so requests, the Original Entity holding the New Notes shall (a) represent that the conditions set forth in (i) through (iv) have been satisfied and/or (b) deliver a confirmation of the continued applicability of this Agreement to the New Notes. If the Controlling Note is involved in any resizing contemplated by this Section 32, the applicable Note Holder shall be entitled to designate any one of the related New Notes as the Controlling Note, and the definitions of “Controlling Note” and “Controlling Note Holder” shall be deemed to have been revised accordingly. Any New Note that is created in a resizing contemplated by this Section 32 and that is not the Controlling Note shall be deemed to be a Non-Controlling Note under this Agreement, the definitions of “Non-Controlling Note” and “Non-Controlling Note Holder” shall be deemed to have been revised accordingly to include such New Notes, and the applicable Note Holders of such Non-Controlling Notes shall have the same rights and responsibilities as all other Non-Controlling Note Holders.

 

 

[Signature Page Follows]

-51- 

 

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

	BANK OF AMERICA, NATIONAL ASSOCIATION,
		as Initial Agent, Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder, Initial Note A-4 Holder, Initial Note A-5 Holder, Initial Note A-6 Holder and Initial Note A-7 Holder
	By:	/s/ Steven L. Wasser
		Name: Steven L. Wasser
		Title:   Managing Director

 

 

 

 

(Agreement Between Note Holders – One North Wacker Mortgage Loan)

 

 

 

 

 

 

 

EXHIBIT A

MORTGAGE LOAN SCHEDULE

Description of Mortgage Loan

Mortgage Loan Borrower:	One North Wacker LLC
Date of Mortgage Loan:	September 10, 2021
Date of Notes:	September 10, 2021
Original Principal Amount of Mortgage Loan:	$353,000,000.00
Principal Amount of Mortgage Loan as of the date hereof:	$353,000,000.00
Initial Note A-1 Principal Balance:	$122,000,000.00
Initial Note A-2 Principal Balance:	$95,000,000.00
Initial Note A-3 Principal Balance:	$80,000,000.00
Initial Note A-4 Principal Balance:	$20,500,000.00
Initial Note A-5 Principal Balance:	$15,500,000.00
Initial Note A-6 Principal Balance:	$15,000,000.00
Initial Note A-7 Principal Balance:	$5,000,000.00
Location of Mortgaged Property:	Chicago, Illinois
Initial Maturity Date:	October 1, 2031

 

 

A-1 

 

EXHIBIT B

Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder, Initial Note A-4 Holder, Initial Note A-5 Holder, Initial Note A-6 Holder and Initial Note A-7 Holder:

 

Bank of America, N.A.

NC1-027-15-01

214 North Tryon Street

Charlotte, North Carolina 28255

Attention: Steven L. Wasser

Email: steve.l.wasser@bofa.com

 

with a copy to:

 

W. Todd Stillerman, Esq.

Bank of America Legal Department

NC1-028-24-02

150 North College Street

Charlotte, NC 28255

Email: todd.stillerman@bofa.com

 

and:

cmbsnotices@bofa.com

 

B-1 

 

EXHIBIT C
PERMITTED FUND MANAGERS

 

1. AEW Capital Management

2. Alliance Bernstein

3. Annaly Capital Management

4. Apollo Global Real Estate

5. Apollo Real Estate Advisors

6. Archon Capital, L.P.

7. AREA Property Partners

8. Ares Management

9. Artemis Real Estate Partners

10. BlackRock, Inc.

11. Boston Properties

12. Capital Trust, Inc.

13. Clarion Partners

14. Colony Capital, LLC / Colony Financial, Inc.

15. CreXus Investment Corporation/Annaly Capital Management

16. DLJ Real Estate Capital Partners

17. Dune Real Estate Partners

18. Eightfold Real Estate Capital, L.P.

19. Five Mile Capital Partners

20. Fortress Investment Group, LLC

21. Garrison Investment Group

22. Goldman, Sachs & Co.

23. H/2 Capital Partners LLC

24. Hudson Advisors

25. Investcorp International

26. iStar Financial Inc.

27. J.P. Morgan Asset Management/J.P. Morgan Investment Management Inc.

28. JER Partners

29. Lend-Lease Real Estate Investments

30. Libremax Capital LLC

31. LoanCore Capital/DivCore Capital

32. Lone Star Funds

33. Lowe Enterprises

34. Morgan Stanley Prime Property Fund

35. Normandy Real Estate Partners

36. One William Street Capital Management, L.P.

37. Och-Ziff Capital Management Group/ OZ Management, L.P./ OZ Management II., L.P.

38. Praedium Group

39. Raith Capital Partners, LLC

40. Rialto Capital Management, LLC

41. Rialto Capital Advisors LLC

42. Rimrock Capital Management LLC

43. Rockpoint Group

44. Rockwood Capital, LLC

45. RREEF Funds

46. Square Mile Capital Management

47. Starwood Capital Group/Starwood Financial Trust/Starwood Property Trust, Inc

48. The Blackstone Group

C-1 

 

49. The Carlyle Group

50. Torchlight Investors

51. Vornado Realty Trust

52. Walton Street Capital, L.L.C.

53. Westbrook Partners

54. WestRiver Capital

55. Wheelock Street Capital

56. Whitehall Street Real Estate Fund, L.P.

 

C-2 

 

 

EX-99.6

Exhibit 99.6 

EXECUTION VERSION

AGREEMENT BETWEEN NOTE HOLDERS

Dated as of November 17, 2021

by and between

MORGAN STANLEY BANK, N.A.
(Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder,
Initial Note A-4 Holder, Initial Note A-5 Holder, Initial Note A-6 Holder,
Initial Note A-7 Holder and Initial Note A-8 Holder)

and

MORGAN STANLEY BANK, N.A.
(Initial Note B-1 Holder)

Park Avenue Plaza Loan

TABLE OF CONTENTS

Page

Section 1.	Definitions	1
Section 2.	Servicing of the Mortgage Loan	16
Section 3.	Priority of Payments	21
Section 4.	Workout	27
Section 5.	Administration of the Mortgage Loan	28
Section 6.	Appointment of Controlling Note Holder Representative and Non-Controlling Note Holder Representative	32
Section 7.	Appointment of Special Servicer	33
Section 8.	Payment Procedure	34
Section 9.	Limitation on Liability of the Note Holders	35
Section 10.	Bankruptcy	35
Section 11.	Representations of the Note Holders	36
Section 12.	No Creation of a Partnership or Exclusive Purchase Right	37
Section 13.	Other Business Activities of the Note Holders	37
Section 14.	Sale of the Notes	37
Section 15.	Registration of the Notes and Each Note Holder	40
Section 16.	Governing Law; Waiver of Jury Trial	40
Section 17.	Submission To Jurisdiction; Waivers	41
Section 18.	Modifications	41
Section 19.	Successors and Assigns; Third Party Beneficiaries	42
Section 20.	Counterparts	42
Section 21.	Captions	42
Section 22.	Severability	42
Section 23.	Entire Agreement	42
Section 24.	Withholding Taxes	42
Section 25.	Custody of Mortgage Loan Documents	44
Section 26.	Cooperation in Securitization	44
Section 27.	Notices	45
Section 28.	Broker	45
Section 29.	Certain Matters Affecting the Agent	45
Section 30.	Resignation of Agent	46
Section 31.	Resizing	46

i 

This AGREEMENT BETWEEN NOTE HOLDERS, dated as of November 17, 2021 by and between MORGAN STANLEY BANK, N.A. (“MSBNA”), a national banking association, as initial owner of Note A-1 (in such capacity, the “Initial Note A-1 Holder”), MSBNA, as initial owner of Note A-2 (in such capacity, the “Initial Note A-2 Holder”), MSBNA, as initial owner of Note A-3 (in such capacity, the “Initial Note A-3 Holder”), MSBNA, as initial owner of Note A-4 (in such capacity, the “Initial Note A-4 Holder”), MSBNA, as initial owner of Note A-5 (in such capacity, the “Initial Note A-5 Holder”), MSBNA, as initial owner of Note A-6 (in such capacity, the “Initial Note A-6 Holder”), MSBNA, as initial owner of Note A-7 (in such capacity, the “Initial Note A-7 Holder”), MSBNA, as initial owner of Note A-8 (in such capacity, the “Initial Note A-8 Holder” and, together with the Initial Note A-1 Holder, the Initial Note A-2 Holder, the Initial Note A-3 Holder, the Initial Note A-4 Holder, the Initial Note A-5 Holder, the Initial Note A-6 Holder and the Initial Note A-7 Holder, each an “Initial Note A Holder” and collectively, the “Initial Note A Holders”), MSBNA, as initial owner of Note B-1 (in such capacity, together with its successors and assigns, the “Initial Note B-1 Holder” and, together with the Initial Note A Holders, each an “Initial Note Holder” and collectively, the “Initial Note Holders”), and Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH”), a New York limited liability company (the “Initial Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), MSBNA originated a certain loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to the mortgage loan borrower described on the Mortgage Loan Schedule (the “Mortgage Loan Borrower”), which is evidenced, inter alia, by nine (9) promissory notes, each dated October 8, 2021, made by the Mortgage Loan Borrower in favor of the Initial Note Holders (such promissory notes, as amended, modified, supplemented or, in accordance with Section 31 of this Agreement, replaced, collectively, the “Notes”);

WHEREAS, each of the Notes is secured by a first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real property located as described in the Mortgage Loan Agreement (collectively, the “Mortgaged Property”); and

WHEREAS, each Initial Note Holder desires to enter into this Agreement to memorialize the terms under which it, and its successors and assigns, shall hold the Notes;

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:

Section 1.         Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto (or to any analogous term) in the Lead Securitization Servicing Agreement. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

“Accepted Servicing Practices” shall have the meaning set forth in the Lead Securitization Servicing Agreement. Accepted Servicing Practices set forth in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder (taking into account the subordinate nature of the Junior Note).

“Act” shall mean the Securities Act of 1933, as amended.

“Administrative Advances” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Advance Interest” shall mean interest at the Advance Rate payable to the Master Servicer, the Special Servicer or the Trustee on outstanding Advances with respect to the Mortgage Loan.

“Advances” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Affiliate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.

“Agent Office” shall mean the designated office of the Agent, which office, as of the date of this Agreement, is the office of the Initial Agent listed on Exhibit B, and which is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Note Holders.

“Agreement” shall mean this Agreement between Note Holders, any exhibits and schedules hereto and all amendments hereof and thereof and supplements hereto and thereto.

“Appraisal Reduction Amount” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

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

“Asset Review” shall mean any review of representations and warranties conducted by a Non-Lead Asset Representations Reviewer, as contemplated by Item 1101(m) of Regulation AB.

“Balloon Payment” shall mean, with respect to the Mortgage Loan, the payment of principal due on its stated maturity date.

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

 2

“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”

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

“Certificate Administrator” shall mean the Certificate Administrator appointed as provided in the Lead Securitization Servicing Agreement.

“Code” shall mean the Internal Revenue Code of 1986, as amended, by applicable temporary or final regulations of the U.S. Department of the Treasury issued thereunder.

“Collateral Deficiency Amount” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

“Collection Account” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

“Commission” shall mean the Securities and Exchange Commission.

“Conduit” shall have the meaning assigned to such term in Section 14(d).

“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).

“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).

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

“Controlling Class Representative” shall have the meaning assigned to the term “Controlling Class Representative” or any analogous term in the Lead Securitization Servicing Agreement.

“Controlling Note” shall mean Note A-1.

“Controlling Note Holder” shall mean the holder of the Controlling Note; provided that at any time the Controlling Note is included in the Lead Securitization, references to the “Controlling Note Holder” herein shall mean the Controlling Class Representative or any other party assigned the rights to exercise the rights of the Controlling Note Holder pursuant to the Lead Securitization Servicing Agreement; provided, that for so long as 25% or more of the

 3

Controlling Note is held by (or the majority “controlling class” holder or other party assigned the rights to exercise the rights of the Controlling Note Holder (as described above) is) a Mortgage Loan Borrower Party, the Controlling Note (and such party assigned the rights to exercise the rights of the Controlling Note Holder as described above) shall not be entitled to exercise any rights of the Controlling Note Holder, and there shall be deemed to be no Controlling Note Holder hereunder.

“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).

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

“Depositor” shall mean the depositor under the Lead Securitization Servicing Agreement.

“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” (or other analogous term) as defined in the Mortgage Loan Agreement.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

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

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

“Initial Note Holders”, “Initial Note A Holders”, “Initial Note A-1 Holder”, “Initial Note A-2 Holder”, “Initial Note A-3 Holder”, “Initial Note A-4 Holder”, “Initial Note A-5 Holder”, “Initial Note A-6 Holder”, “Initial Note A-7 Holder”, “Initial Note A-8 Holder” and “Initial Note B-1 Holder”, shall each have the meaning assigned to such term in the preamble to this Agreement.

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

 4

Mortgage Loan Borrower entity and “Mortgaged Property” shall refer to the related mortgaged property owned by the related Mortgage Loan Borrower entity.

“Interest Rate” shall mean, with respect to any Note, the corresponding interest rate set forth on the Mortgage Loan Schedule.

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

“Junior Note” shall mean Note B-1.

“KBRA” shall mean Kroll Bond Rating Agency, LLC and its successors in interest.

“Lead Securitization” shall mean the Securitization of Note A-1 in a Securitization Trust to be designated by the Initial Note A-1 Holder.

“Lead Securitization Note(s)” shall mean Note A-1 and any other Notes included in the Lead Securitization Trust.

“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note(s).

“Lead Securitization Servicing Agreement” shall mean the trust and servicing agreement to be entered into in connection with the Lead Securitization and issuance of the MSC Trust 2021-PLZA, Commercial Mortgage Pass Through Certificates, Series 2021-PLZA, between the Trustee, the Master Servicer, the Special Servicer, the Depositor and the Certificate Administrator.

“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.

“Major Decisions” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Master Servicer” shall mean the Master Servicer (or other analogous term) appointed as provided in the Lead Securitization Servicing Agreement.

“Master Servicing Fee” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

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

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

 5

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

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

“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of October 8, 2021, between the Mortgage Loan Borrower and MSBNA, as lender, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.

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

“Mortgage Loan Borrower Party” shall have the meaning assigned to the term “Borrower Party” (or other analogous term) set forth in the Lead Securitization Servicing Agreement.

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

“Mortgage Loan Interest Rate” shall mean the per annum rate at which interest accrues on the Mortgage Loan, without regard to any increase in such rate as a result of a default thereunder.

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

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

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

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

“Net Interest Rate” shall mean, with respect to any Note, the related Interest Rate, less the applicable Primary Servicing Fee Rate.

“New Notes” shall have the meaning assigned to such term in Section 31.

“Non-Controlling Note” means each Note other than the Controlling Note.

“Non-Controlling Note Holder” means any holder of a Non-Controlling Note; provided that with respect to each Non-Controlling Note, at any time such Non-Controlling Note is included in a Non-Lead Securitization, references to the “Non-Controlling Note Holder” herein shall mean the Non-Lead Securitization Controlling Class Representative under the related Non-Lead Securitization Servicing Agreement or any other party assigned the rights to

 6

exercise the rights of such Non-Controlling Note Holder pursuant to the related Non-Lead Securitization Servicing Agreement, as to the identity of which the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) has been given written notice; provided, that for so long as 50% or more of such Non-Controlling Note is held by (or the majority “controlling class” holder or other party assigned the rights to exercise the rights of such Non-Controlling Note Holder (as described above) is) a Mortgage Loan Borrower Party, such Non-Controlling Note (and such party assigned the rights to exercise the rights of such Non-Controlling Note Holder as described above) shall not be entitled to exercise any rights of such Non-Controlling Note Holder, and there shall be deemed to be no Non-Controlling Note Holder hereunder with respect to such Non-Controlling Note. The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party in respect of any Note that is exercising the rights of a “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement, and (x) to the extent that the related Non-Lead Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent more than one Non-Controlling Note is included in such Securitization, for purposes of this Agreement, the related Non-Lead Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as the Non-Controlling Note Holder with respect to such Non-Controlling Note for all purposes of this Agreement. As of the date hereof and until further notice from any related Non-Controlling Note Holder (or the related Non-Lead Master Servicer or another party acting on its behalf), the current Note Holder of each Non-Controlling Note is the “Non-Controlling Note Holder” with respect to such Note.

Prior to Securitization of any Non-Controlling Note (including any New Notes), all notices, reports, information or other deliverables required to be delivered to the related Non-Controlling Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Non-Controlling Note Holder Representative and, when so delivered to such Non-Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following Securitization of any Non-Controlling Note, all notices, reports, information or other deliverables required to be delivered to the related Non-Controlling Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the related Non-Lead Master Servicer and the related Non-Lead Special Servicer (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Non-Lead Securitization Servicing Agreement) and, when so delivered to the related Non-Lead Master Servicer and the related Non-Lead Special Servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed

 7

to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.

Notwithstanding any of the foregoing to the contrary, any such delivery requirements shall be deemed satisfied so long as the related Non-Controlling Note is a Lead Securitization Note.

“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(c).

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

“Non-Lead Asset Representations Reviewer” shall mean the party acting as “asset representations reviewer” (within the meaning of Item 1101(m) of Regulation AB) under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Depositor” shall mean the “depositor” under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Master Servicer” shall have the meaning assigned to such term in Section 2(b).

“Non-Lead Securitization” shall mean any Securitization of a Note in a Securitization Trust other than the Lead Securitization Trust.

“Non-Lead Securitization Controlling Class Representative” shall mean, with respect to any Non-Lead Securitization Note, the holders of the majority of the class of securities issued in a related Non-Lead Securitization designated as the “controlling class”, if any, pursuant to the related Non-Lead Securitization Servicing Agreement or their duly appointed representative; provided that if 50% or more of such “controlling class” is held by (or such duly appointed representative is) a Mortgage Loan Borrower Party, there shall be deemed to be no related Non-Lead Securitization Controlling Class Representative.

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

“Non-Lead Securitization Note” shall mean any Note other than any Lead Securitization Note.

“Non-Lead Securitization Note Holder” shall mean any holder of a Non-Lead Securitization Note.

 8

“Non-Lead Securitization Servicing Agreement” shall have the meaning assigned to such term in Section 2(b).

“Non-Lead Securitization Trust” shall mean the Securitization Trust into which any Non-Lead Securitization Note is deposited.

“Non-Lead Servicer” shall mean, with respect to any Non-Lead Securitization, the related Non-Lead Master Servicer or Non-Lead Special Servicer, as the context may require.

“Non-Lead Special Servicer” shall have the meaning assigned to such term in Section 2(b).

“Non-Lead Trustee” shall have the meaning assigned to such term in Section 2(b).

“Nonrecoverable Administrative Advance” shall mean any Administrative Advance that is a Nonrecoverable Advance.

“Nonrecoverable Advance” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.

“Nonrecoverable Property Protection Advance” shall mean any Property Protection Advance that is a Nonrecoverable Advance.

“Non-Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is not a Securitizing Note Holder with respect to such Securitization.

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

“Note A-1”, “Note A-2”, “Note A-3”, “Note A-4”, “Note A-5”, “Note A-6”, “Note A-7”, “Note A-8”, “Note B-1” shall mean the promissory notes with the same alphanumeric designations listed under “Promissory Notes” on the Mortgage Loan Schedule, as such promissory notes may be amended, modified or supplemented.

“Note Holder” shall mean with regards to any Note, the related Initial Note Holder and its successors and assigns, or any subsequent holder of such Note, as applicable.

“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).

“Note Principal Balance” shall mean, with respect to each Note, at any time of determination, the “Initial Note Principal Balance” for such Note, as set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the related Note Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or Section 4, as applicable.

“Note Register” shall have the meaning assigned to such term in Section 15.

“Original Entity” shall have the meaning assigned to such term in Section 31.

“Origination Date” shall mean October 8, 2021.

 9

“Owned Note” shall have the meaning assigned to such term in Section 31.

“P&I Advance” shall mean an advance made by (a) a party to the Lead Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on a Lead Securitization Note or (b) a party to a Non-Lead Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the related Non-Lead Securitization Note.

“Percentage Interest” shall mean, with respect to each Note Holder, a fraction, expressed as a percentage, the numerator of which is the Note Principal Balance of the Note held by such Note Holder and the denominator of which is the sum of the Note Principal Balances of all the Notes.

“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.

“Pledge” shall have the meaning assigned to such term in Section 14(c).

“Primary Servicing Fee” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Primary Servicing Fee Rate” shall have the meaning set forth in the Lead Securitization Servicing Agreement.

“Property Protection Advance” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.

“Pro Rata and Pari Passu Basis” shall mean with respect to the Senior Notes and the related Note Holders, the allocation of any particular payment, reimbursement, collection, cost, expense, liability or other amount among such Senior Notes or such Note Holders, as the case may be, without any priority of any such Senior Note or any such Note Holder over another such Senior Note or Note Holder, as the case may be, and in any event such that each Senior Note or Note Holder, as the case may be, is allocated its respective pro rata share based on their respective Note Principal Balances as of the Origination Date (or, in the case of the reimbursement of a cost, expense or loss, based on the respective reimbursable amounts) (as among Senior Notes) of such particular payment, reimbursement, collection, cost, expense, liability or other amount.

“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other U.S. Person that is:

(a)                an entity Controlled by, under common Control with or that Controls any of the Initial Note Holders, or

 10

(b)                 one or more of the following:

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

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

(iii)        a Qualified Trustee in connection with (a) a securitization of, (b) the creation of collateralized debt obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise subject to Rating Agency Confirmations from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iv) or (v) of this definition, or

(iv)        an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Initial Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii) or (v) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii) above), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders (without regard to

 11

the capital surplus/equity and total asset requirements set forth below in the definition), or

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

in the case of any entity referred to in clause (b)(i), (ii), (iii), (iv)(B) or (v) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (iv)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or

(c)             any entity Controlled by any of the entities described in clause (b) (other than clause (b)(iii)) above or that is the subject of a Rating Agency Confirmation as a Qualified Institutional Lender for purposes of this Agreement from each of the Rating Agencies engaged by the Depositor and any Non-Lead Depositor to rate the securities issued by the related Securitization Trust.

In no event shall a Qualified Institutional Lender be a Mortgage Loan Borrower or a Mortgage Loan Borrower Party.

“Qualified Trustee” means (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation, or (iii) an institution whose long-term senior unsecured debt has a rating in either of the then in effect top two rating categories of each of the applicable Rating Agencies (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P).

“Rating Agencies” shall mean DBRS Morningstar, Fitch, KBRA, Moody’s and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably engaged by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, that, at any time during which one or more of the Notes is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the related depositor (or its Affiliate) from time to time to rate the securities issued in connection with the Securitizations of the Notes.

“Rating Agency Communication” shall mean, with respect to any action and any Securitization, any written communication intended for a Rating Agency, which shall be delivered at least ten (10) Business Days prior to completing such action, in electronic document

 12

format suitable for website posting to the 17g-5 information provider under the applicable Securitization Servicing Agreement.

“Rating Agency Confirmation” shall mean, with respect to any Securitization, a confirmation in writing (which may be in electronic form) by each of the applicable Rating Agencies for such Securitization that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the applicable rating or ratings ascribed by such Rating Agency to any of the securities issued pursuant to such Securitization that are then outstanding. If no such securities are outstanding or no Notes are part of a Securitization, any action that would otherwise require a Rating Agency Confirmation shall instead require the consent of the Controlling Note Holder, which consent shall not be unreasonably withheld or delayed. For the purposes of this Agreement, if any Rating Agency shall waive, decline or refuse to review or otherwise engage any request for Rating Agency Confirmation hereunder, such waiver, declination, or refusal shall be deemed to eliminate, for such request only, the condition that a Rating Agency Confirmation by such Rating Agency (only) be obtained for purposes of this Agreement, and any requirement hereunder to obtain a Rating Agency Confirmation from any Rating Agency may be satisfied or deemed in the same manner that a Rating Agency Confirmation requirement may be satisfied or deemed satisfied under the Lead Securitization Servicing Agreement. For purposes of clarity, any such waiver, declination or refusal to review or otherwise engage in any request for a Rating Agency Confirmation hereunder shall not be deemed a waiver, declination or refusal to review or otherwise engage in any subsequent request for a Rating Agency Confirmation hereunder and the condition for Rating Agency Confirmation pursuant to this Agreement for any subsequent request shall apply regardless of any previous waiver, declination or refusal to review or otherwise engage in such prior request.

“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).

“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.

“REMIC” shall have the meaning assigned to such term in Section 5(e).

“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is currently acting as special servicer in a commercial mortgage-backed securities transaction rated by Moody’s on a transaction-level basis (as to which a commercial mortgage-backed securities transaction there are outstanding commercial mortgage-backed securities rated by Moody’s), and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage-backed securities or placed any class of commercial mortgage-backed securities on watch citing the continuation of such special servicer

 13

as special servicer of such commercial mortgage loans, (iv) in the case of DBRS Morningstar, such special servicer is currently acting as a servicer for one or more loans included in a commercial mortgage-backed securitization that was rated by DBRS Morningstar within the twelve (12) month period prior to the date of determination, and DBRS Morningstar has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch status citing the continuation of such special servicer as servicer of such commercial mortgage loans as the sole or a material factor in any downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination, and (v) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.

“Reverse Sequential Order” shall mean, with respect to any reduction of the Note Principal Balance of any Note(s) or with respect to the allocation of any expenses and losses relating to the Mortgage Loan and the Mortgaged Property, including, without limitation, losses of principal or interest, Property Protection Advances (and any Advance Interest thereon), Special Servicing Fees, Liquidation Fees and Workout Fees, and certain other trust expenses, as well as Appraisal Reduction Amounts and Collateral Deficiency Amounts, (a) first, to the reduction of the Note Principal Balance of the Junior Note, until the Note Principal Balance of such Note is reduced to zero; and (b) second, to the reduction of the Note Principal Balance of each of the Senior Notes, on a Pro Rata and Pari Passu Basis, until the Note Principal Balance of each such Note is reduced to zero.

“S&P” shall mean S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, and its successors in interest.

“Scheduled Interest Payment” shall mean the scheduled payment of interest due on the Mortgage Loan on a Monthly Payment Date.

“Scheduled Principal Payment” shall mean the scheduled payment of principal due on the Mortgage Loan on a Monthly Payment Date.

“Securitization” shall mean the sale by a Note Holder of all or a portion of its Note to a depositor, who will in turn include such Note (or portion thereof) as part of the securitization of one or more mortgage loans.

“Securitization Date” shall mean the closing date of the first Securitization of a Note or portion thereof.

“Securitization Trust” shall mean a trust formed pursuant to a Securitization pursuant to which one or more of the Notes are held.

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

 14

“Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is contributing its note to such Securitization.

“Senior Notes” shall mean Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7 and Note A-8.

“Senior Trust Notes” shall mean Note A-1 and Note A-3.

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

“Servicing File” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.

“Servicer Termination Event” means a “Servicer Termination Event” or a “Special Servicer Termination Event”, as applicable, and as defined in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.

“Special Servicer” shall mean the Special Servicer appointed as provided in the Lead Securitization Servicing Agreement and this Agreement.

“Special Servicing Loan Event” shall have the meaning given thereto (or other analogous term) in the Lead Securitization Servicing Agreement.

“Specially Serviced Mortgage Loan” shall have the meaning given thereto (or other analogous term) in the Lead Securitization Servicing Agreement.

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

“Transfer” shall have the meaning assigned to such term in Section 14.

“Triggering Event of Default” shall mean (i) any Event of Default with respect to an obligation of the Mortgage Loan Borrower to pay money due under the Mortgage Loan or (ii) any non-monetary Event of Default as a result of which the Mortgage Loan becomes a Specially Serviced Mortgage Loan (which, for clarification, shall not include any imminent Event of Default (i.e., subclause (vii) of the definition of Special Servicing Loan Event)).

“Trustee” shall mean the Trustee appointed as provided in the Lead Securitization Servicing Agreement.

“U.S. Person” shall have the meaning given thereto in the Lead Securitization Servicing Agreement.

 15

“Workout” shall have the meaning assigned to such term in Section 4(a).

Section 2.        Servicing of the Mortgage Loan.

(a)           Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced from and after the Securitization Date by the Master Servicer and the Special Servicer pursuant to the terms of this Agreement and the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance (i) monthly payments of principal or interest in respect of any Note other than the Lead Securitization Notes if such principal or interest is not paid by the Mortgage Loan Borrower or (ii) any Administrative Advances with respect to any Note other than the Lead Securitization Notes, but the Master Servicer shall be obligated to make Property Protection Advances in respect of the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement including any provisions governing the determination of non-recoverability. Each Note Holder acknowledges that any other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it shall, subject to Section 26, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer, the Special Servicer, as may be replaced pursuant to the terms of the Lead Securitization Servicing Agreement, the Certificate Administrator and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement, provided further, that when appointed, the Special Servicer has the Required Special Servicer Rating from each Rating Agency then rating a Securitization, if any. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holders set forth herein and in the Lead Securitization Servicing Agreement). The Lead Securitization Servicing Agreement shall not limit the Servicers in enforcing the rights of one Note Holder against any other Note Holder as may be required in order to service the Mortgage Loan as contemplated by this Agreement and the Lead Securitization Servicing Agreement; provided, that it is understood and agreed that nothing in this sentence shall be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement (i) to service the Mortgage Loan in accordance with Accepted Servicing Practices, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, (ii) to provide information to each Non-Lead Master Servicer and each Non-Lead Special Servicer under each Non-Lead Securitization Servicing Agreement necessary to enable each such Non-Lead Servicer to perform its servicing duties under the related Non-Lead Securitization Servicing Agreement, and (iii) to not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.

At any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders,

 16

pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement (including, without limitation, all applicable provisions relating to delivery of information and reports necessary for any Non-Lead Securitization to comply with any applicable reporting requirements under the Exchange Act) and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, that if a Non-Lead Securitization Note is in a Securitization and the servicers to be appointed under such replacement servicing agreement would not otherwise meet the conditions to be a servicer under the Lead Securitization Servicing Agreement that is being replaced or the special servicer does not have the Required Special Servicer Rating, then a Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to the securities issued in connection with such Securitization for such Non-Lead Securitization Note; provided, further, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full force and effect with respect to the Mortgage Loan, by the applicable Servicer in the Lead Securitization being replaced or by any Person appointed by the Lead Securitization Note Holder that is a qualified servicer meeting the requirements of the Lead Securitization Servicing Agreement and with respect to the Special Servicer, that has the Required Special Servicer Rating. The Note Holders acknowledge and agree that (i) at any time that the Lead Securitization Notes are no longer included in a Securitization Trust, the Servicer and the Trustee shall have no obligation to make any P&I Advance or any Administrative Advance on the Lead Securitization Notes and (ii) at any time that no portion of the Mortgage Loan is included in a Securitization Trust, the Servicer and the Trustee shall have no obligation to make any Advance with respect to the Mortgage Loan unless otherwise provided in any related replacement servicing agreement.

(b)           The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee or the Special Servicer, to the extent provided in the Lead Securitization Servicing Agreement) shall (i) make Property Protection Advances with respect to the Mortgage Loan, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, and (ii) make P&I Advances and Administrative Advances on the Lead Securitization Notes, if and to the extent provided in the Lead Securitization Servicing Agreement and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Property Protection Advance, first from funds on deposit in the Collection Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Property Protection Advances, if funds on deposit in the Collection Account are insufficient and after allocation of such amounts first to the Junior Note, from general collections of each Non-Lead Securitization, in respect of the related Non-Lead Securitization Note’s pro rata share (on a Pro Rata and Pari Passu Basis) of such non-recoverable amounts allocated to the Senior Notes. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for Advance Interest on a Property Protection Advance (or a Nonrecoverable Property Protection Advance), in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of each Non-Lead Securitization.

In addition, each Non-Lead Securitization Note Holder (including, but not limited to, any Non-Lead Securitization Trust into which such Non-Lead Securitization Note is

 17

deposited) shall be required to, promptly following notice from the Master Servicer, the Special Servicer or the Trustee, pay or reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share (on a Pro Rata and Pari Passu Basis) of the portion allocated to the Senior Notes of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Depositor or CREFC^®, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement and any costs, fees and expenses related to obtaining any Rating Agency Confirmation, to the extent amounts on deposit in the Collection Account are insufficient for reimbursement of such amounts and after allocation of such amounts first to the Junior Note. In addition to the reimbursement obligations with respect to Advances (and Advance Interest) otherwise provided for in this Agreement, each Non-Lead Securitization Note Holder agrees to indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Depositor (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with the servicing and administration of the Mortgage Loan and the Mortgaged Property under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share (on a Pro Rata and Pari Passu Basis) of the portion allocated to the Senior Notes of such Indemnified Items, and to the extent amounts on deposit in the Collection Account are insufficient for reimbursement of such amounts and after allocation of such amounts first to the Junior Note, the related Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, reimburse each of the applicable Indemnified Parties for such pro rata share (including, if a Non-Lead Securitization Note has been included in a Non-Lead Securitization, from general collections or any other amounts from the related Non-Lead Securitization Trust).

The master servicer under a Non-Lead Securitization (a “Non-Lead Master Servicer”) (or the related Non-Lead Trustee if not made by such Non-Lead Master Servicer) may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the related servicing agreement for such Securitization (each such agreement, a “Non-Lead Securitization Servicing Agreement”), the Lead Securitization Servicing Agreement and this Agreement. Each of the Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to make its own recoverability determination with respect to any P&I Advance or any Administrative Advance to be made on any Lead Securitization Note based on the information that they have on hand and in accordance with the Lead Securitization Servicing Agreement. Each Non-Lead Master Servicer and the special servicer (a “Non-Lead Special Servicer”) and the trustee (a “Non-Lead Trustee”) under each Non-Lead Securitization Servicing Agreement, as applicable, shall be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the related Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and any Non-Lead Master Servicer or Non-Lead Trustee, as applicable, shall be

 18

required to notify the other parties to the applicable other Securitization of the amount of its P&I Advance within two business days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note(s)) or a Non-Lead Master Servicer, a Non-Lead Special Servicer or a Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Property Protection Advance or Administrative Advance would, if made, be non-recoverable or an outstanding Property Protection Advance or Administrative Advance is or would be non-recoverable, then the party making such determination shall notify each Non-Lead Master Servicer and Non-Lead Trustee (in the case of a determination by the Master Servicer or the Trustee) or each of the Master Servicer and the Trustee (in the case of a determination by any Non-Lead Master Servicer or Non-Lead Trustee) within two business days of making such determination. Each of the Master Servicer, the Trustee, the related Non-Lead Master Servicer and the related Non-Lead Trustee, as applicable, shall be entitled to reimbursement for a P&I Advance (and Advance Interest thereon) or an Administrative Advance (and Advance Interest thereon) that becomes non-recoverable from the Collection Account from amounts allocable to the Mortgage Loan prior to any distributions to the Noteholders; provided, that any such Advances outstanding in respect of the Senior Notes shall be reimbursed (on a Pro Rata and Pari Passu Basis as between such Senior Notes, based on the respective outstanding principal balances of such Senior Notes) prior to any such advances outstanding in respect of the Junior Note.

(c)           Each Non-Lead Securitization Note Holder agrees that, if its Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:

(i)            such Non-Lead Securitization Note Holder shall be responsible for its pro rata share (on a Pro Rata and Pari Passu Basis) of any Property Protection Advances (and Advance Interest thereon) and any Trust Fund Expenses allocated to the Senior Notes (after being allocated to the Notes in Reverse Sequential Order), but only to the extent that they relate to servicing and administration of the Notes or the Mortgaged Property, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and if the funds received with respect to each respective Note are insufficient to cover such amounts, each Non-Lead Master Servicer (if the related Non-Lead Securitization Note is included in a Non-Lead Securitization Trust) shall promptly following notice from the Master Servicer or the Special Servicer, pay or reimburse the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, or the Lead Securitization Trust, as applicable, out of general collections in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement for such pro rata share;

(ii)           each of the Indemnified Parties shall be indemnified by each Non-Lead Securitization Trust (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties pursuant to the terms of the Lead Securitization Servicing Agreement), against any of the Indemnified Items to the extent of the related Non-Lead Securitization Note’s pro rata share (on a Pro Rata and Pari

 19

Passu Basis) of such Indemnified Items allocated to the Senior Notes (after being allocated to the Notes in Reverse Sequential Order), and to the extent amounts on deposit in the Collection Account are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for the related Non-Lead Securitization Note’s pro rata share (on a Pro Rata and Pari Passu Basis) of such insufficiency allocated to the Senior Notes (after being allocated to the Notes in Reverse Sequential Order) out of general collections in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement;

(iii)          the related Non-Lead Certificate Administrator (or other party designated under the related Non-Lead Securitization Servicing Agreement) will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer and the Master Servicer (i) promptly following Securitization of the related Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information and payment instructions for the related Non-Lead Trustee, the related certificate administrator, the related Non-Lead Master Servicer, the related Non-Lead Special Servicer and the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement), accompanied by a copy of the related executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of such Non-Lead Master Servicer or the party designated to exercise the rights of the related “Non-Controlling Note Holder” under this Agreement (together with the relevant contact information and payment instructions);

(iv)          the applicable Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee under the related Non-Lead Securitization Servicing Agreement shall notify the Master Servicer, the Special Servicer, the Trustee and the Certificate Administrator of any P&I Advance it has made with respect to the applicable Non-Lead Securitization Note(s) included in such Non-Lead Securitization within two Business Days of making such advance;

(v)           if the applicable Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee determines that a proposed P&I Advance with respect to the related Non-Lead Securitization Note, if made, or any outstanding P&I Advance previously made with respect to the related Non-Lead Securitization Note, would be, or is, as applicable, a “nonrecoverable advance,” the applicable Non-Lead Master Servicer shall provide the Master Servicer and each other Non-Lead Master Servicer written notice of such determination within two Business Days after such determination is made;

(vi)          the Non-Lead Securitization Servicing Agreement shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (a) required by the Code relating to the tax elections of the related Securitization Trust, (b) required by law or changes in any law, rule or regulation or (c) requested by the Rating Agencies rating the related Securitization; and

 20

(vii)            the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Depositor and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions;

provided, that none of the foregoing shall be construed to prohibit differences in control or consultation triggers or thresholds, terminology, allocation of ministerial duties between multiple servicers or other service providers or certificateholder or investor voting or consent thresholds, or to prohibit or restrict additional approval, consent, consultation, notice or rating agency confirmation requirements.

(d)              [Reserved].

(e)              [Reserved].

(f)               Following the closing of the Lead Securitization, upon receipt of written notice (which may be by email) of the closing or pending closing of any Non-Lead Securitization and upon request from the Non-Lead Depositor, MSBNA (or a designated party under the Lead Securitization Servicing Agreement on behalf of MSBNA) shall provide such Non-Lead Depositor with an executed copy of the Lead Securitization Servicing Agreement in an EDGAR-compatible format.

(g)              In the event that a Non-Lead Securitization closes prior to the Lead Securitization, the Lead Securitization Note Holder shall provide written notice of such Lead Securitization to the Non-Lead Depositor and Non-Lead Trustee of each Non-Lead Securitization and, promptly upon the execution of the Lead Securitization Servicing Agreement (but not later than one business day after the day on which such document is executed), shall provide an executed copy of the Lead Securitization Servicing Agreement in an EDGAR-compatible format.

(h)              If a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the Non-Lead Asset Representations Reviewer or any other party to such Non-Lead Securitization Servicing Agreement in connection with such Asset Review by providing the Non-Lead Asset Representations Reviewer or such other requesting party with any documents reasonably requested by the Non-Lead Asset Representations Reviewer or such other requesting party, but only to the extent such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be.

Section 3.          Priority of Payments.Payments Prior to an Event of Default. (a) Subject to the application of Section 4, if no Triggering Event of Default, as determined by the Master Servicer or Special Servicer, as applicable, in accordance with Accepted Servicing Practices shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof whether received in the form of Scheduled Interest Payments, Scheduled Principal Payments, any proceeds from the sale or distribution of any Foreclosed Property, the Balloon Payment,

 21

Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions) but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent and in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows, (y) all amounts received as reimbursements on account of recoveries in respect of property protection expenses or Property Protection Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement (it being understood that subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, the right to reimbursement of such Property Protection Advances is senior to that of any Note Holder to receive payments on its Note) and (z) all amounts that are then due, payable or reimbursable to any Servicer with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement (or, solely as regards P&I Advances and Administrative Advances made thereby and interest thereon, reimbursable to any Non-Lead Master Servicer or Non-Lead Trustee with respect to the applicable Notes pursuant to the applicable Non-Lead Securitization Servicing Agreement) and any other additional compensation payable to any Servicer thereunder (including without limitation, any additional trust expenses relating to the Mortgage Loan (but subject to the second paragraph of Section 5(e) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Work-out Fees, penalty charges (to the extent provided in Section 3(d)) (and including any P&I Advances (and interest thereon) or any Administrative Advances (and interest thereon) on the Notes, which shall be reimbursed in accordance with Section 2(b) hereof and the Lead Securitization Servicing Agreement), but excluding any Master Servicing Fees and Primary Servicing Fees, which such fees shall not be subject to the allocation provisions of this Section 3 but shall be payable in accordance with the Lead Securitization Servicing Agreement) shall be payable as follows:

(i)           first, to the holders of the Senior Trust Notes on a Pro Rata and Pari Passu Basis up to the amount of any unreimbursed costs and expenses paid by such holders of the Senior Trust Notes (or paid or advanced by a Servicer or the Trustee, as applicable) with respect to the Mortgage Loan pursuant to this Agreement or the Lead Securitization Servicing Agreement;

(ii)          second, to the holders of the Senior Notes on a Pro Rata and Pari Passu Basis, based on their respective interest entitlements, in each case in an amount equal to the accrued and unpaid interest on its respective Note Principal Balance at the Net Interest Rate applicable to such Senior Note;

(iii)         third, to the holder of the Junior Note, in an amount equal to the accrued and unpaid interest on its Note Principal Balance at the Net Interest Rate applicable to the Junior Note;

(iv)         fourth, pro rata based on the Note Principal Balances of their respective Notes, to each holder of a Senior Note in an amount equal to its respective principal entitlement allocated pursuant to the Mortgage Loan Documents with respect to the

 22

applicable Monthly Payment Date, which amount shall be applied in reduction of the Note Principal Balance of its respective Senior Note;

(v)           fifth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (i) through (iv) and, as a result of a Workout the Note Principal Balances of the Senior Notes have been reduced (to the extent such reductions were made in accordance with the Lead Securitization Servicing Agreement notwithstanding the provisions of Section 4 of this Agreement by reason of the insufficiency of the Junior Note to bear the full economic effect of the Workout), such excess amount shall be paid to the holders of the Senior Notes on a Pro Rata and Pari Passu Basis (x) first, in an amount up to the reduction, if any, of the aggregate Note Principal Balance of the Senior Notes as a result of such Workout, and (y) second, in an amount equal to interest on the amount described in clause (x) at the Mortgage Loan Interest Rate;

(vi)          sixth, to the holder of the Junior Note, up to the amount of any unreimbursed costs and expenses paid by such holder of the Junior Note (or paid or advanced by a Servicer or the Trustee, as applicable) with respect to the Mortgage Loan pursuant to this Agreement or the Lead Securitization Servicing Agreement;

(vii)         seventh, to the holder of the Junior Note in an amount equal to its principal entitlement allocated pursuant to the Mortgage Loan Documents with respect to the applicable Monthly Payment Date, which amount shall be applied in reduction of the Note Principal Balance of the Junior Note;

(viii)        eighth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (i) through (vii) and, as a result of a Workout the Note Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the holder of the Junior Note (x) first, in an amount up to the reduction, if any, of the Note Principal Balance of the Junior Note as a result of such Workout, and (y) second, in an amount equal to interest on the amount described in clause (x) at the Mortgage Loan Interest Rate;

(ix)           ninth, to the Note Holders, pro rata, based on their respective Percentage Interests, any prepayment or yield maintenance premium, to the extent paid by the Mortgage Loan Borrower;

(x)            tenth, to the extent assumption fees, transfer fees, late payment fees or charges (other than any prepayment or yield maintenance premium) actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Lead Securitization Servicing Agreement, including, without limitation, to provide reimbursement for Advance Interest, to pay any additional servicing expenses or to compensate a Servicer (in each case provided that such reimbursements or payments relate to the Mortgage Loan), any such fees or expenses, to the extent actually paid by

 23

the Mortgage Loan Borrower, shall be paid to the Note Holders, pro rata, based on their respective Percentage Interests; and

(xi)            eleventh, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (i) through (x), any remaining amount shall be paid pro rata to the Note Holders in accordance with their respective Percentage Interests;

provided, that to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of any portion of the Mortgaged Property (including pursuant to a condemnation) at a time when the loan-to-value ratio of the Mortgage Loan (as determined in accordance with the applicable REMIC requirements) exceeds 125% (based solely upon the value of the remaining real property and excluding any personal property or going concern value), shall be allocated to reduce the Note Principal Balances of the Notes in the manner permitted or required by the REMIC Provisions.

(b)            Payments Following an Event of Default. Payments of interest and principal shall be made to the Note Holders in accordance with Section 3(a) of this Agreement; provided, if a Triggering Event of Default, as determined by the Master Servicer or Special Servicer, as applicable, in accordance with Accepted Servicing Practices shall have occurred and be continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof whether received in the form of Scheduled Interest Payments, Scheduled Principal Payments, any proceeds from the sale or distribution of any Foreclosed Property, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan, Condemnation Proceeds or Insurance Proceeds (other than proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents, to the extent permitted by the REMIC Provisions) but excluding (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents (to the extent and in accordance with the terms of the Mortgage Loan Documents) to be held as reserves or escrows, (y) all amounts received as reimbursements on account of recoveries in respect of property protection expenses or Property Protection Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement (it being understood that subject to the terms of the Lead Securitization Servicing Agreement and this Agreement, the right to reimbursement of such Property Protection Advances is senior to that of any Note Holder to receive payments on its Note) and (z) all amounts that are then due, payable or reimbursable to any Servicer with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement (or, solely as regards P&I Advances and Administrative Advances made thereby and interest thereon, reimbursable to any Non-Lead Master Servicer or Non-Lead Trustee with respect to the applicable Notes pursuant to the applicable Non-Lead Securitization Servicing Agreement) and any other additional compensation payable to any Servicer thereunder (including without limitation, any additional trust expenses relating to the Mortgage Loan (but subject to the second paragraph of Section 5(e) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Work-out Fees, penalty charges (to the extent provided in Section 3(d)) (and including any P&I Advances (and interest thereon) or

 24

any Administrative Advances (and interest thereon) on the Notes, which shall be reimbursed in accordance with Section 2(b) hereof and the Lead Securitization Servicing Agreement), but excluding any Master Servicing Fees and Primary Servicing Fees, which such fees shall not be subject to the allocation provisions of this Section 3 but shall be payable in accordance with the Lead Securitization Servicing Agreement) shall be payable as follows:

(i)          first, to the holders of the Senior Trust Notes on a Pro Rata and Pari Passu Basis up to the amount of any unreimbursed costs and expenses paid by such holders of the Senior Trust Notes (or paid or advanced by a Servicer or the Trustee, as applicable) with respect to the Mortgage Loan pursuant to this Agreement or the Lead Securitization Servicing Agreement;

(ii)           second, to the holders of the Senior Notes on a Pro Rata and Pari Passu Basis, based on their respective interest entitlements, in each case in an amount equal to the accrued and unpaid interest on its respective Note Principal Balance at the Net Interest Rate applicable to such Senior Note;

(iii)          third, to the holder of the Junior Note, in an amount equal to the accrued and unpaid interest on its Note Principal Balance at the Net Interest Rate applicable to the Junior Note;

(iv)          fourth, to the holders of the Senior Notes on a Pro Rata and Pari Passu Basis, until the Note Principal Balances of the Senior Notes have been reduced to zero;

(v)           fifth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (i) through (iv) and, as a result of a Workout the Note Principal Balances of the Senior Notes have been reduced (to the extent such reductions were made in accordance with the Lead Securitization Servicing Agreement notwithstanding the provisions of Section 4 of this Agreement by reason of the insufficiency of the Junior Note to bear the full economic effect of the Workout), such excess amount shall be paid to the holders of the Senior Notes on a Pro Rata and Pari Passu Basis (x) first, in an amount up to the reduction, if any, of the aggregate Note Principal Balance of the Senior Notes as a result of such Workout, and (y) second, in an amount equal to interest on the amount described in clause (x) at the Mortgage Loan Interest Rate;

(vi)          sixth, to the holder of the Junior Note, up to the amount of any unreimbursed costs and expenses paid by the holder of the Junior Note (or paid or advanced by a Servicer or the Trustee, as applicable) with respect to the Mortgage Loan pursuant to this Agreement or the Lead Securitization Servicing Agreement;

(vii)         seventh, to the holder of the Junior Note, until the Note Principal Balance of the Junior Note has been reduced to zero;

(viii)        eighth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or Mortgaged Property exceed the amounts required to be applied in accordance with the foregoing clauses (i) through (vii) and, as a result of a Workout the

 25

Note Principal Balance of the Junior Note has been reduced, such excess amount shall be paid to the holder of the Junior Note (x) first, in an amount up to the reduction, if any, of the Note Principal Balance of the Junior Note as a result of such Workout, and (y) second, in an amount equal to interest on the amount described in clause (x) at the Mortgage Loan Interest Rate;

(ix)          ninth, to the Note Holders, pro rata, based on their respective Percentage Interests, any prepayment or yield maintenance premium, to the extent paid by the Mortgage Loan Borrower;

(x)           tenth, to the extent assumption fees, transfer fees, late payment fees or charges (other than any prepayment or yield maintenance premium) actually paid by the Mortgage Loan Borrower are not required to be otherwise applied under the Lead Securitization Servicing Agreement, including, without limitation, to provide reimbursement for Advance Interest, to pay any additional servicing expenses or to compensate a Servicer (in each case provided that such reimbursements or payments relate to the Mortgage Loan), any such fees or expenses, to the extent actually paid by the Mortgage Loan Borrower, shall be paid to the Note Holders, pro rata, based on their respective Percentage Interests; and

(xi)          eleventh, if any excess amount is available to be distributed in respect of the Mortgage Loan, and not otherwise applied in accordance with the foregoing clauses (i) through (x), any remaining amount shall be paid pro rata to the Note Holders in accordance with their respective Percentage Interests;

provided, that to the extent required under the REMIC Provisions, payments or proceeds received with respect to any partial release of any portion of the Mortgaged Property (including pursuant to a condemnation) at a time when the loan-to-value ratio of the Mortgage Loan (as determined in accordance with the applicable REMIC requirements) exceeds 125% (based solely upon the value of the remaining real property and excluding any personal property or going concern value), shall be allocated to reduce the Note Principal Balances of the Notes in the manner permitted or required by the REMIC Provisions.

(c)          Penalty charges paid on each Note shall be applied: first, to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Property Protection Advances and to reimburse the Master Servicer, the Trustee or the Special Servicer for any Property Protection Advances (to the extent any such Advance is a Trust Fund Expense) in accordance with the terms of the Lead Securitization Servicing Agreement; second, to pay the Master Servicer, Trustee, any Non-Lead Master Servicer or any Non-Lead Trustee, as applicable, for any interest accrued on any P&I Advance or any Administrative Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or applicable Non-Lead Securitization Servicing Agreement, as applicable); third, to pay Trust Fund Expenses (including Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement); and finally, to pay, pro rata, the Lead Securitization Note Holder (or following the Lead Securitization, the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement)

 26

and each Non-Lead Securitization Note Holder (or following the related Non-Lead Securitization, to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement).

(d)          Following any period during which the terms of Section 3(b) are in effect and a Triggering Event of Default shall cease to exist, then the terms of Section 3(a) hereof shall again be in effect, subject, however, to the terms of Section 4.

(e)          All expenses and losses relating to the Mortgage Loan and the Mortgaged Property, including without limitation losses of principal or interest, Property Protection Advances (and Advance Interest related thereto), Special Servicing Fees, Liquidation Fees and Workout Fees, and certain other trust expenses, as well as Appraisal Reduction Amounts and Collateral Deficiency Amounts, shall be allocated in Reverse Sequential Order.

Section 4.         Workout. Notwithstanding anything to the contrary contained herein, if the Special Servicer (on behalf of the Note Holders) in connection with a workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Interest Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on the Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan (each, a “Workout”), all payments to the Note Holders of the Senior Notes pursuant to Section 3(a) and Section 3(b), shall be made as though such Workout did not occur, with the payment terms of Senior Notes remaining the same as they are on the date hereof, and the Junior Note shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout (such economic effect to be borne by the Junior Note, in each case up to the amount otherwise due on the Junior Note including in connection with the final liquidation or repayment of the Mortgage Loan). Prior to any allocation of collections in connection with a final liquidation or repayment of the Mortgage Loan any loss or shortfall shall be allocated first to reduce the Note Principal Balance of the Junior Note and second to reduce the Note Principal Balances of the Senior Notes on a Pro Rata and Pari Passu Basis, with such reduced Note Principal Balances to be used in calculating Percentage Interests and Pro Rata and Pari Passu Basis, in each case, for remittances of principal on the Notes. Subject to the Lead Securitization Servicing Agreement and this Agreement, in the case of any modification or amendment described above, the Special Servicer (on behalf of the Note Holders) shall have the sole authority and ability to revise the payment provisions set forth in Section 3(a) and Section 3(b) in a manner that reflects the subordination of the Junior Note to the Senior Notes with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Percentage Interests of the Senior Notes and to reduce the Percentage Interest of the Junior Note in a manner that reflects a loss in principal as a result of such amendment or modification; and (ii) the ability to change the Mortgage Loan Interest Rate but shall not be permitted to change the order of the clauses set forth in Section 3(a) and Section 3(b). Notwithstanding the foregoing concerning the making of payments as though such a Workout did not occur, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment shall be deemed not to be due on the original maturity date of the Mortgage Loan but shall be deemed due on the extended maturity date of the Mortgage

 27

Loan. If the Mortgaged Property becomes a Foreclosed Property, (a) the Note Holders shall have beneficial ownership of such Foreclosed Property notwithstanding the manner in which title may be taken under the Lead Securitization Servicing Agreement, (b) the Mortgage Loan shall be deemed to remain outstanding, with the same terms and conditions as in effect immediately prior to foreclosure or the acceptance of a deed in lieu of foreclosure, for purposes of the relative rights of the Note Holders between each other under this Agreement and the Lead Securitization Servicing Agreement and (c) all revenues from and proceeds of such Foreclosed Property shall be allocated and distributed under Section 3(b) of this Agreement. The Junior Note and the right of the Holder of a Junior Note to receive payments with respect to the Junior Note shall, subject to the provisions of this Agreement, at all times be junior, subject and subordinate to each Senior Note and the rights of each Holder of a Senior Note to receive payments with respect to its respective Senior Note.

Section 5.         Administration of the Mortgage Loan.

(a)        Subject to this Agreement (including but not limited to Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call, or cause the Lead Securitization Note Holder to call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing, or causing the Lead Securitization Note Holder to file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow Accepted Servicing Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).

Upon the Mortgage Loan becoming a defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ) to sell the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization

 28

Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell the Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) shall not be permitted to sell the Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File requested by such Non-Lead Securitization Note Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale. Subject to the foregoing, each of the Controlling Note Holder, the Controlling Note Holder Representative, any Non-Controlling Note Holder and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan.

Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of its Note. Each Note Holder (to the extent it is not the same entity as the Lead Securitization Note Holder) further agrees that, upon the request of the Lead Securitization Note Holder, such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver its original Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.

The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in connection with a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization

 29

Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization.

(b)         The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the Note Holders as a collective whole and taking into account the subordinate nature of the Junior Note. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein.

(c)         [Reserved].

(d)         Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it

 30

had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).

In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.

(e)         If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (for that purpose the loan-to-value test in Section 860G(a)(3) shall be applied by treating the Senior Notes and the Junior Note as constituting a single debt instrument) (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be

 31

effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan.

Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit.

Section 6.       Appointment of Controlling Note Holder Representative and Non-Controlling Note Holder Representative.

(a)         The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative in accordance with the terms of the Lead Securitization Servicing Agreement. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person (other than a Mortgage Loan Borrower Party, any manager of the Mortgaged Property or any principal or any manager of the Mortgaged Property), including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party. No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. No Servicer, Trustee or Certificate Administrator acting on behalf of the Lead Securitization Note Holder shall be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified each Servicer, the Trustee and the Certificate Administrator of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides each Servicer, the Trustee and the Certificate Administrator with written confirmation of its acceptance of such appointment, an address and facsimile number for the delivery of notices and other correspondence and a list of officers or employees of such Person with whom the parties to this Agreement may deal (including their names, titles, work addresses and facsimile numbers). The Controlling Note Holder shall promptly deliver such information to each Servicer, the Trustee and the Certificate Administrator. The Controlling Note Holder agrees to inform each such Servicer, Certificate Administrator or Trustee of the then-current Controlling Note Holder Representative.

 32

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

Each Non-Controlling Note Holder shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon.

(c)         Each Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (each, a “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in Section 6(a) and Section 6(b) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.

Section 7.           Appointment of Special Servicer. Subject to the next succeeding paragraph, the Controlling Note Holder (or its Controlling Note Holder Representative) shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer with the Required Special Servicer Rating. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to each other Note Holder, the Master Servicer, the then existing Special Servicer and each other party to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set

 33

forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Communication or a Rating Agency Confirmation, but only if required by the terms of the Lead Securitization Servicing Agreement), if any. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right, if any, of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid.

If a Servicer Termination Event on the part of the Special Servicer has occurred that adversely affects any Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. Each Note Holder acknowledges and agrees that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Each Non-Controlling Note Holder shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Lead Securitization’s Collection Account.

Section 8.       Payment Procedure.

(a)          The Lead Securitization Note Holder, in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the Collection Account pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer acting on its behalf) shall deposit such amounts to the applicable account within two (2) Business Days after receipt of properly identified and available funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.

(b)          If the Lead Securitization Note Holder determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrower or paid to any Lead Securitization Note Holder or any Servicer or paid to any other Person, then, notwithstanding any other provision of this Agreement, a Lead Securitization Note Holder shall not be required to distribute any portion thereof to the Non-Lead Securitization Note Holders and each Non-Lead Securitization Note Holder shall promptly on demand by the Lead Securitization Note Holder

 34

repay to the Lead Securitization Note Holder any portion thereof that the Lead Securitization Note Holder shall have theretofore distributed to such Non-Lead Securitization Note Holder, together with interest thereon at such rate, if any, as the Lead Securitization Note Holder shall have been required to pay to any Mortgage Loan Borrower, Master Servicer, Special Servicer or such other Person with respect thereto.

(c)          If, for any reason, the Lead Securitization Note Holder makes any payment to any Non-Lead Securitization Note Holder before the Lead Securitization Note Holder has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s request, promptly return that payment to the Lead Securitization Note Holder.

(d)          Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from a Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. Such Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.

Section 9.        Limitation on Liability of the Note Holders. Each Note Holder shall have no liability to any other Note Holder with respect to its Note except with respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder; provided, that, notwithstanding any of the foregoing to the contrary, each Servicer will nevertheless be subject to the obligations and standards (including the Accepted Servicing Practices) set forth in the related pooling and servicing agreement governing the related Securitization Trust.

The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee) to comply with, and except as otherwise required by, Accepted Servicing Practices, the Lead Securitization Note Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of any Non-Lead Securitization Note Holder and that the Lead Securitization Note Holder (including any Servicer and the Trustee) shall have no liability whatsoever to any Non-Lead Securitization Note Holder in connection with the Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, that each Servicer must act in accordance with Accepted Servicing Practices.

Section 10.      Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder has the right to institute, file,

 35

commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not the Non-Lead Securitization Note Holders, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Non-Lead Securitization Note Holders in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. The Note Holders hereby agree that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by any Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with Accepted Servicing Practices.

Section 11.      Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing in the jurisdiction of its organization and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.

 36

Section 12.       No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. No Note Holder shall have any obligation whatsoever to offer to any other Note Holder the opportunity to purchase a participation interest in any future loans originated by such Note Holder or its Affiliates and if any Note Holder chooses to offer to any other Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by such Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as such Note Holder chooses, in its sole and absolute discretion. No Note Holder shall have any obligation whatsoever to purchase from any other Note Holder a participation interest in any future loans originated by such Note Holder or its Affiliates.

Section 13.        Other Business Activities of the Note Holders. Each Note Holder acknowledges that each other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, the Mortgage Loan Borrower or any Affiliate thereof, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower and receive payments on such other loans or extensions of credit to such parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

Section 14.        Sale of the Notes.

(a)           Each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, participate, hypothecate, contribute, encumber or otherwise dispose (either (i) directly or (ii) indirectly through entering into a derivatives contract or any other similar agreement, excluding a repo financing or a Pledge in accordance with Section 14(d)) of a Note (a “Transfer”) except to a Qualified Institutional Lender. Promptly after any such Transfer, any non-transferring Note Holders shall be provided with (x) a representation from each transferee or the transferring Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer to an entity that constitutes a Qualified Institutional Lender pursuant to clause (c)(iii) of the definition thereof (and the related pooling and servicing agreement or similar agreement requires the parties thereto to comply with this Agreement) or in accordance with the immediately following sentence) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first (a) obtain the consent of each non-transferring Note Holder and (b) if any such non-transferring Note Holder’s Note is held in a Securitization Trust, provide each of the applicable engaged Rating Agencies for such Securitization Trust with a Rating Agency Communication. Notwithstanding the foregoing, without each non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if any non-transferring Note Holder’s Note is held in a Securitization Trust, until a Rating Agency Communication is provided to each engaged Rating Agency for such Securitization Trust, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to a Mortgage Loan Borrower Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Note Holder agrees that it shall pay the expenses of any non-

 37

transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer, the Trustee and any Controlling Note Holder or Controlling Note Holder Representative) and all expenses relating to any Rating Agency Communication in connection with any such Transfer. Notwithstanding the foregoing, each Note Holder shall have the right, without the need to obtain the consent of any other Note Holder or of any other Person or having to provide any Rating Agency Communication, to Transfer 49% or less (in the aggregate) of its Note or any beneficial interest in its Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of all of the Notes in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a defaulted loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.

(b)          In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.

(c)          Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than a Mortgage Loan Borrower Party) which has extended a credit facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each applicable Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any Person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to each other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge and accept any cure thereof by such Note Pledgee which such pledging Note Holder has the right (but not the obligation) to effect hereunder, as if such cure were made by such pledging Note Holder; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to each other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be

 38

unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (v) that, upon written notice (a “Redirection Notice”) to each other Note Holder and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases each other Note Holder and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. A Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than a Mortgage Loan Borrower Party which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.

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

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

(ii)           The Conduit Credit Enhancer is a Qualified Institutional Lender;

(iii)          Such Note Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;

 39

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

(v)         Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.

Section 15.       Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Initial Agent shall serve as the initial note registrar and the Initial Agent hereby accepts such appointment. The names and addresses of the Note Holders and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of each other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such Person as its agent under this Section 15 solely for purposes of maintaining the Note Register.

In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No Transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and each other Note Holder against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.

Section 16.       Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF

 40

THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Section 17.     Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

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

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

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

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

Section 18.       Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first delivering a Rating Agency Communication to each Rating Agency; provided that no such Rating Agency Communication shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement or (ii) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement including without limitation in connection with the creation of New Notes pursuant to Section 31.

 41

Section 19.       Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer and Special Servicer and any Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder. For the avoidance of doubt, the representations in Section 11 shall not be binding upon any Securitization Trust.

Section 20.       Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

Section 21.       Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.

Section 22.       Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 23.       Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.

Section 24.       Withholding Taxes.    (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from

 42

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

(b)          Each Non-Lead Securitization Note Holder shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made to such Non-Lead Securitization Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Non-Lead Securitization Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Non-Lead Securitization Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Non-Lead Securitization Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.

(c)          Each Non-Lead Securitization Note Holder represents to the Lead Securitization Note Holder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the execution of this Agreement and from time to time as necessary during the term of this Agreement, each Non-Lead Securitization Note Holder shall deliver to the Lead Securitization Note Holder or Servicer, as applicable, evidence satisfactory to the Lead Securitization Note Holder substantiating that such Note Holder is not a Non-Exempt Person and that the Lead Securitization Note Holder is not obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise under this Agreement. Without limiting the effect of the foregoing, (i) if a Non-Lead Securitization Note Holder is created or organized under the laws of the United States, any state thereof or the District of Columbia, it shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder an Internal Revenue Service Form W-9 and (ii) if a Non-Lead Securitization Note Holder is not created or organized under the laws of the United States, any state thereof or the District of Columbia, and if the payment of interest or other amounts by the Mortgage Loan Borrower is treated for United States income tax purposes as derived in whole or part from

 43

sources within the United States, such Note Holder shall satisfy the requirements of the preceding sentence by furnishing to the Lead Securitization Note Holder Internal Revenue Service Form W-8ECI, Form W-8IMY (with appropriate attachments), Form W-8BEN or Form W-8BEN-E, or successor forms, as may be required from time to time, duly executed by such Note Holder, as evidence of such Note Holder’s exemption from the withholding of United States tax with respect thereto. The Lead Securitization Note Holder shall not be obligated to make any payment hereunder with respect to a Non-Lead Securitization Note or otherwise until the related Non-Lead Securitization Note Holder shall have furnished to the Lead Securitization Note Holder requested forms, certificates, statements or documents.

Section 25.       Custody of Mortgage Loan Documents. The originals of all of the Mortgage Loan Documents (other than each Non-Lead Securitization Note) (a) prior to the Lead Securitization will be held by the Initial Agent and (b) after the Lead Securitization, will be held by the Lead Securitization Note Holder (in the name of the Trustee and held by a duly appointed custodian therefor in accordance with the Lead Securitization Servicing Agreement), in each case, on behalf of the registered holders of the Notes. Following any Non-Lead Securitization Date, the applicable Non-Lead Securitization Note shall be held in the name of the related Non-Lead Trustee (and held by a duly appointed custodian therefor), on behalf of the applicable Non-Lead Securitization Note Holder.

Section 26.        Cooperation in Securitization.

(a)         Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, at the request of the related Securitizing Note Holder, each related Non-Securitizing Note Holder shall use reasonable efforts, at such Securitizing Note Holder’s expense, to satisfy, and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which such Securitizing Note Holder customarily adheres or that may be reasonably required in the marketplace or by the Rating Agencies in connection with such Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect such Securitization; provided, that no Non-Securitizing Note Holder shall be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Securitizing Note Holder or (ii) materially increase such Non-Securitizing Note Holder’s obligations or materially decrease such Non-Securitizing Note Holder’s rights, remedies or protections. In connection with any Securitization, each related Non-Securitizing Note Holder shall provide for inclusion in any disclosure document relating to such Securitization such information concerning such Non-Securitizing Note Holder and its Note as the related Securitizing Note Holder reasonably determines to be necessary or appropriate, and such Non-Securitizing Note Holder shall, at the Securitizing Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and such Securitizing Note Holder in connection with such Securitization (including, without limitation, reasonably cooperating with the

 44

Securitizing Note Holder (without any obligation to make additional representations and warranties) to enable the Securitizing Note Holder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and such Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Non-Securitizing Note Holder and its Note in any Securitization document. Each Note Holder acknowledges that in connection with any Securitization, the information provided by it in its capacity as a Non-Securitizing Note Holder to the related Securitizing Note Holder may be incorporated into the offering documents for such Securitization. Each Securitizing Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, each Non-Securitizing Note Holder. The Securitizing Note Holder shall reasonably cooperate with each Non-Securitizing Note Holder by providing all information reasonably requested that is in the Securitizing Note Holder’s possession in connection with such Non-Securitizing Note Holder’s preparation of disclosure materials in connection with a Securitization.

Upon request, each Securitizing Note Holder shall deliver to each related Non-Securitizing Note Holder drafts of the preliminary and final offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the pooling and servicing agreement for the Securitization of such Securitizing Note Holder’s Note and provide reasonable opportunity to review and comment on such documents.

Section 27.      Notices. All notices required hereunder shall be given by (i)  facsimile transmission (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (ii) reputable overnight delivery service (charges prepaid) or (iii) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.

Section 28.      Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.

Section 29.      Certain Matters Affecting the Agent.

(a)        The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;

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

(c)        The Agent shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Note

 45

Holder pursuant to the provisions of this Agreement, unless it has received indemnity reasonably satisfactory to it;

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

(e)         The Agent shall not be bound to make any investigation into the facts or matters stated in any officer’s certificate or assignment and assumption agreement delivered to the Agent pursuant to Section 15;

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

(g)         The Agent represents and warrants that it is a Qualified Institutional Lender.

Section 30.            Resignation of Agent.

(a)         The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. MSMCH, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of the Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place of MSMCH without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement, and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.

Section 31.            Resizing. Notwithstanding any other provision of this Agreement, for so long as an Initial Note Holder or an affiliate thereof (an “Original Entity”) is the owner of a Note (each, an “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of an Owned Note to such New Notes; or severing an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of such Owned Note prior to such amendments, (ii) all Notes, Senior Notes and Junior Note(s) continue to have

 46

the same weighted average interest rate as the Notes, Senior Notes and Junior Note(s), respectively, prior to such amendments, (iii) all Senior Notes pay on a Pro Rata and Pari Passu Basis (to the extent set forth in Section 3), all Junior Notes pay on a pro rata and pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, and (iv) the Original Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts. If the Lead Securitization Note Holder so requests, the Original Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holders of the other Notes. In connection with the foregoing (provided the conditions set forth in (i) through (v) above are satisfied and, with respect to the conditions set forth in (i) through (iv), as certified by the Original Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal and if a Note is severed into more than one New Note, each New Note shall have the same rights as the respective original Note and each New Note shall be a “Note” hereunder and for purposes of adding and modifying any definitions related thereto. If more than one New Note is created hereunder, for purposes of exercising the rights of a Controlling Note Holder or Non-Controlling Note Holder, as applicable, hereunder, the “Controlling Note Holder” or “Non-Controlling Note Holder”, as applicable, shall be as provided in the definitions of such terms in this Agreement; provided that the Controlling Note Holder shall be entitled to designate any New Note created from the existing Controlling Note to be a Non-Controlling Note hereunder.

Section 32. Not a Security. No Note shall be deemed to be a security within the meaning of the Act or the Exchange Act.

[SIGNATURE PAGE FOLLOWS]

 47

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

MORGAN STANLEY BANK, N.A., as Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder, Initial Note A-4 Holder, Initial Note A-5 Holder, Initial Note A-6 Holder, Initial Note A-7 Holder and Initial Note A-8 Holder
By:	/s/ Jane Lam
	Name: Jane Lam
	Title:   Executive Director

MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, as Initial Agent
By:	/s/  Brandon Atkins
	Name: Brandon Atkins
	Title:   Vice President

 MSC 2021-PLZA – Intercreditor Agreement

EXHIBIT A

MORTGAGE LOAN SCHEDULE

Description of Mortgage Loan

Mortgage Loan Borrower:	Park Avenue Plaza Owner LLC
Date of Mortgage Loan:	October 8, 2021
Date of Notes:	October 8, 2021
Original Principal Amount of Mortgage Loan:	$460,000,000
Principal Amount of Mortgage Loan as of the date hereof:	$460,000,000
Location of Mortgaged Property:	New York, New York
Initial Maturity Date:	November 5, 2031

A-1 

Promissory Notes

Note	Interest Rate	Initial Note Principal Balance	Initial Owner
Note A-1	2.8375%	$139,170,000	Initial Note A-1 Holder
Note A-2	2.8375%	$50,000,000	Initial Note A-2 Holder
Note A-3	2.8375%	$20,000,000	Initial Note A-3 Holder
Note A-4	2.8375%	$10,000,000	Initial Note A-4 Holder
Note A-5	2.8375%	$25,000,000	Initial Note A-5 Holder
Note A-6	2.8375%	$35,000,000	Initial Note A-6 Holder
Note A-7	2.8375%	$10,000,000	Initial Note A-7 Holder
Note A-8	2.8375%	$50,000,000	Initial Note A-8 Holder
Note B-1	2.8375%	$120,830,000	Initial Note B-1 Holder

A-2 

EXHIBIT B

1. Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder,
Initial Note A-4 Holder, Initial Note A-5 Holder, Initial Note A-6 Holder,
Initial Note A-7 Holder and Initial Note A-8 Holder:

Morgan Stanley Bank, N.A.

Notice Address:
Morgan Stanley Bank, N.A.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Bank, N.A.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and:

cmbs_notices@morganstanley.com

2. Initial Note B-1 Holder:
Morgan Stanley Bank, N.A.

Notice Address:
Morgan Stanley Bank, N.A.
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Bank, N.A.
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and:

cmbs_notices@morganstanley.com

B-1 

3. Initial Agent:
Morgan Stanley Mortgage Capital Holdings LLC

Notice Address:
Morgan Stanley Mortgage Capital Holdings LLC
1585 Broadway
New York, New York 10036
Attention: Jane Lam

with copies to:

Morgan Stanley Mortgage Capital Holdings LLC
1633 Broadway, 29th Floor
New York, New York 10019
Attention: Legal Compliance Division

and:

cmbs_notices@morganstanley.com

B-2 

EXHIBIT C

PERMITTED FUND MANAGERS

1. AllianceBernstein

2. Annaly Capital Management

3. Apollo Real Estate Advisors

4. Archon Capital, L.P.

5. AREA Property Partners

6. Artemis Real Estate Partners

7. BlackRock, Inc.

8. Clarion Partners

9. Colony Capital, LLC

10. DLJ Real Estate Capital Partners

11. Dune Real Estate Partners

12. Eightfold Real Estate Capital, L.P.

13. Five Mile Capital Partners

14. Fortress Investment Group, LLC

15. Garrison Investment Group

16. H/2 Capital Partners LLC

17. Hudson Advisors

18. Investcorp International

19. iStar Financial Inc.

20. J.P. Morgan Investment Management Inc.

21. JER Partners

22. Lend-Lease Real Estate Investments

23. Libermax Capital LLC

24. LoanCore Capital

25. Lone Star Funds

26. Lowe Enterprises

27. Normandy Real Estate Partners

28. Och-Ziff Capital Management Group

29. Praedium Group

30. Raith Capital Partners, LLC

31. Rialto Capital Management LLC

32. Rialto Capital Advisors LLC

33. Rockpoint Group

34. Rockwood

35. RREEF Funds

36. Square Mile Capital Management

37. The Blackstone Group

38. The Carlyle Group

39. Torchlight Investors

40. Walton Street Capital, L.L.C.

41. Westbrook Partners

42. Wheelock Street Capital

43. Whitehall Street Real Estate Fund, L.P.

C-1 

EX-99.7

Exhibit 99.7

EXECUTION VERSION

CO-LENDER AGREEMENT

Dated as of October 14, 2021

by and between

DBR INVESTMENTS CO. LIMITED
(an Initial Note A Holder),

BANK OF AMERICA, N.A.
(an Initial Note A Holder),

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(an Initial Note A Holder),

3650 CAL BRIDGE LENDING, LLC
(an Initial Note A Holder),

DBR INVESTMENTS CO. LIMITED
(Initial Note B-1 Holder),

BANK OF AMERICA, N.A.
(Initial Note B-2 Holder),

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Initial Note B-3 Holder),

and

3650 CAL BRIDGE LENDING, LLC
(Initial Note B-4 Holder),

______________________________________________________

Commercial Mortgage Loan in the Principal Amount of $1,225,000,000
Secured by life sciences office buildings located at
350 and 450 Water Street, Cambridge, Massachusetts

______________________________________________________

Co-Lender Agreement

(Cambridge Crossing – 350 and 450 Water Street)

This CO-LENDER AGREEMENT (together with the exhibits and schedules hereto and all amendments hereof and supplements hereto, this “Agreement”) is dated as of October 14, 2021, between DBR INVESTMENTS CO. LIMITED (“DBRI”), as an Initial Note A Holder, BANK OF AMERICA, N.A. (“BANA”), as an Initial Note A Holder, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (“JPMCB”), as an Initial Note A Holder, 3650 CAL BRIDGE LENDING, LLC (“3650 Cal Bridge”), as an Initial Note A Holder, DBRI, as Initial Note B-1 Holder, BANA, as Initial Note B-2 Holder, JPMCB, as Initial Note B-3 Holder, and 3650 Cal Bridge, as Initial Note B-4 Holder.

W I T N E S S E T H:

WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), DBRI, BANA, JPMCB and 3650 Cal Bridge co-originated a certain loan (the “Mortgage Loan”) described in Part A of the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to the mortgage loan borrowers described on the Mortgage Loan Schedule (together with its successors and permitted assigns, the “Mortgage Loan Borrowers”, and each, a “Mortgage Loan Borrower”), in the original aggregate principal amount of $1,225,000,000, which is evidenced, inter alia, by the twenty-four (24) promissory notes or amended and restated promissory notes, each dated on or before the date hereof, described in Part B of the Mortgage Loan Schedule (as each such promissory note may be extended, renewed, replaced, restated or modified from time to time, each a “Note” and, collectively, the “Notes”);

WHEREAS, payment of the Notes is secured by, among other things, a certain Mortgage (as defined in the Mortgage Loan Agreement), dated as of October 14, 2021 (as such may have been amended or restated to the date hereof and may hereafter be further amended, restated, supplemented or otherwise modified from time to time, the “Mortgage”), encumbering a first priority mortgage in the fee simple interest in two life sciences office buildings located at 350 and 450 Water Street, Cambridge, Massachusetts (the “Mortgaged Properties”);

WHEREAS, with respect to the Mortgage Loan:

(a)       DBRI intends to transfer the DBRI Standalone Notes (as defined herein) to German American Capital Corporation (“GACC”), who will then transfer them to Deutsche Mortgage & Asset Receiving Corporation (together with its permitted successors and assigns, the “Depositor”) pursuant to a trust loan purchase agreement between GACC and the Depositor, BANA intends to transfer the BANA Standalone Notes (as defined herein) to the Depositor pursuant to a trust loan purchase agreement between BANA and the Depositor, JPMCB intends to transfer the JPMCB Standalone Notes (as defined herein) to the Depositor pursuant to a trust loan purchase agreement between JPMCB and the Depositor, 3650 Cal Bridge intends to transfer the 3650 Cal Bridge Standalone Notes (as defined herein) to Depositor pursuant to a trust loan purchase agreement between 3650 Cal Bridge and the Depositor, and the Depositor intends to transfer the Standalone Notes (the “Trust Loan”) to Wilmington Trust, National Association, as trustee for a securitization (such securitization, the “Lead Securitization”) involving the issuance of the CAMB 2021-CX2 Mortgage Trust 

	2
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Commercial Mortgage Pass-Through Certificates pursuant to the Trust and Servicing Agreement, dated as of November 9, 2021 (the “Lead Securitization Servicing Agreement”), between the Depositor, KeyBank National Association, as master servicer (in such capacity, together with its permitted successors and assigns, the “Master Servicer”), Situs Holdings, LLC, as special servicer (in such capacity, together with its permitted successors and assigns, the “Special Servicer”), Wilmington Trust, National Association, as trustee (in such capacity, together with its permitted successors and assigns, the “Trustee”), Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”) and Wells Fargo Bank, National Association, as certificate administrator (in such capacity, together with its permitted successors and assigns, the “Certificate Administrator”), paying agent and custodian, and upon such transfer, the Trustee will be become the holder of the Standalone Notes, and

(b)       DBRI (directly or indirectly through its affiliate(s)) expects (but is not obligated) to contribute the DBRI Non-Standalone Notes (as defined herein), whether in each such Notes’ current form or as multiple replacement promissory notes, into one or more securitization transactions, BANA (directly or indirectly through its affiliate(s)) expects (but is not obligated) to contribute the BANA Non-Standalone Notes (as defined herein), whether in each such Notes’ current form or as multiple replacement promissory notes, into one or more securitization transactions, JPMCB (directly or indirectly through its affiliate(s)) expects (but is not obligated) to contribute the JPMCB Non-Standalone Notes (as defined herein), whether in each such Notes’ current form or as multiple replacement promissory notes, into one or more securitization transactions, and 3650 Cal Bridge (directly or indirectly through its affiliate(s)) expects (but is not obligated) to contribute the 3650 Cal Bridge Non-Standalone Notes (as defined herein), whether in each such Notes’ current form or as multiple replacement promissory notes, into one or more securitization transactions;

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

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:

1.Definitions; Conflicts. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Mortgage Loan Agreement or the Lead Securitization Servicing Agreement, as applicable. Except as set forth in Section 4 of this Agreement, to the extent of any inconsistency between terms defined in this Agreement and the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall control. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

	3
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“3650 Cal Bridge” shall have the meaning assigned to such term in the recitals of this Agreement.

“3650 Cal Bridge Non-Standalone Notes” shall mean the Note A-4-2 and Note A-4-3 having an aggregate Initial Note Principal Balance equal to $52,900,000.00.

“3650 Cal Bridge Standalone A Note” shall mean the Note A-4-1, having an Initial Note Principal Balance equal to $28,500,000.00.

“3650 Cal Bridge Standalone Notes” shall mean the 3650 Cal Bridge Standalone A Note and Note B-4, having an aggregate Initial Note Principal Balance equal to $69,600,000.00.

“A Notes” shall mean the Notes respectively bearing the designations “A-1”, “A-2”, “A-3” and “A-4” and having an aggregate Initial Note Principal Balance equal to $814,000,000.00.

“Acceptable Insurance Default”: Any default arising when the Mortgage Loan Documents require that the Mortgage Loan Borrowers shall maintain all risk casualty insurance or other insurance that covers damages or losses arising from acts of terrorism and the Special Servicer has determined, in its reasonable judgment in accordance with the Accepted Servicing Practices, that (i) such insurance is not available at commercially reasonable rates and the subject hazards are not commonly insured against by prudent owners of similar real properties located in or near the geographic region in which the Mortgaged Properties are located (but only by reference to such insurance that has been obtained by such owners at current market rates) or (ii) such insurance is not available at any rate. In making this determination, the Special Servicer, to the extent consistent with the Accepted Servicing Practices, may rely on the opinion of an insurance consultant. From and after the Lead Securitization Date, “Acceptable Insurance Default” shall have the meaning assigned to such term or any analogous term in the Lead Securitization Servicing Agreement.

“Accepted Servicing Practices” shall mean:

(i) prior to the Lead Securitization Date, the obligation of the Servicer to service and administer the Mortgage Loan in accordance with this Agreement, the Notes and the Mortgage Loan Documents solely in the best interests and for the benefit of the Holders (as a collective whole), exercising the higher of (x) the same manner in which, and with the same care, skill, prudence and diligence with which the Servicer services and administers similar mortgage loans for other third party portfolios, and manages and administers REO Property for other third party portfolios giving due consideration to customary and usual standards of practice of prudent institutional commercial lenders servicing their own loans and managing REO Properties for their own account and (y) the same care, skill, prudence and diligence which the Servicer utilizes for loans which the Servicer owns for its own account, in each case, acting in accordance with applicable law, the terms of this Agreement and the Mortgage Loan Documents and with a view to

	4
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

the maximization of timely recovery of principal and interest on a net present value basis on the Mortgage Loan, but without regard to:

(A)       any relationship that the Servicer or any Affiliate of the Servicer may have with the Mortgage Loan Borrowers or any Mortgage Loan Borrower Related Parties;

(B)       the ownership of any interest in the Mortgage Loan or any certificate issued or to be issued in connection with a Securitization by the Servicer or any Affiliate of the Servicer;

(C)       the ownership of any junior indebtedness with respect to the Mortgaged Properties by the Servicer or any Affiliate of the Servicer;

(D)       the Servicer’s obligation to make Advances as specified herein or otherwise incur servicing expenses with respect to the Mortgage Loan;

(E)       the Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction;

(F)       the ownership, or servicing or management for others, by the Servicer or any sub-servicer, of any other mortgage loans or properties; or

(G)       the right of the Servicer or any sub-servicer to receive reimbursement of costs; and

(ii) from and after the Lead Securitization Date, the meaning assigned to the term “Accepted Servicing Practices” or “Servicing Standard” or any analogous term in the Lead Securitization Servicing Agreement.

“Additional Servicing Compensation” shall mean any servicing compensation (other than Servicing Fees, Special Servicing Fees, Workout Fees or Liquidation Fees) that any Servicer is entitled to retain under the Servicing Agreement.

“Administrative Advance” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

“Advance” means a Property Advance, a P&I Advance or an Administrative Advance, as the context may require.

“Advance Interest Amount” shall mean the amount of interest accrued and unpaid on any Property Advance pursuant to the terms of the Servicing Agreement.

“Advance Rate” shall have the meaning ascribed to such term in the Lead Securitization Servicing Agreement.

“Affiliate” shall mean with respect to any specified Person, (a) any other Person controlling or controlled by or under common control with such specified Person (each a

	5
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Common Control Party”), (b) any other Person owning, directly or indirectly, ten percent (10%) or more of the beneficial interests in such Person or (c) any other Person in which such Person or a Common Control Party owns, directly or indirectly, ten percent (10%) or more of the beneficial interests. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract, relation to individuals or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

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

“Anticipated Repayment Date” shall have the meaning assigned to such term in the Mortgage Loan Agreement.

“ARD Interest” shall mean interest accrued at the Adjusted Blended Interest Rate, as defined in the Mortgage Loan Agreement.

“Appraisal” shall mean an appraisal with respect to the Mortgaged Properties conducted in accordance with the standards of the Appraisal Institute by an Appraiser and certified by such Appraiser as having been prepared in accordance with the requirements of the Standards of Professional Practice of the Appraisal Institute and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, as well as FIRREA. From and after the Lead Securitization Date, “Appraisal” shall have the meaning assigned to such term or any analogous term in the Lead Securitization Servicing Agreement.

“Appraisal Reduction Amounts” shall mean:

(i) prior to the Lead Securitization Date, for any Remittance Date as to which an Appraisal Reduction Event has occurred, an amount equal to the excess, if any, of (a) the sum of (1) the Mortgage Loan Principal Balance as of the immediately preceding Monthly Payment Date, (2) to the extent not previously advanced by the Servicer or any other Holder as an Advance under Section 9 or Section 11(b), all accrued and unpaid interest on the Mortgage Loan at a per annum rate equal to the Note Interest Rate on each of the Notes, (3) all unreimbursed Advances, with interest thereon at the Advance Rate in respect of the Mortgage Loan, and (4) all currently due and unpaid real estate taxes, ground rents and assessments and insurance premiums (less any amounts held in escrow for such items) and all other amounts (not including any default interest, Penalty Charges, Prepayment Charges, liquidated damage amounts or other similar fees or charges) currently due and unpaid with respect to the Mortgage Loan (which taxes, premiums and other amounts have not been the subject of an Advance by the Servicer), over (b) an amount equal to ninety percent (90%) of the appraised value of the Mortgaged Properties as determined by the most recent Updated Appraisal obtained by the Servicer (the cost of which shall be advanced by such Servicer as an Advance), minus the dollar amount of any liens on the Mortgaged Properties that are prior to the lien of the Mortgage (other than the liens for any items set forth in the immediately preceding clause (a)(4) which have been insured or bonded over by Qualified Insurers, plus (without duplication of any

	6
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

amounts held in escrow deducted in clause (a)(4) above) the aggregate of all reserves, letters of credit and escrows held in connection with the Mortgage Loan to the extent that such reserves, letters of credit and escrows are permitted to be used by the Servicer in reduction of the Mortgage Loan); and

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

“Appraisal Reduction Event” shall mean:

(i) prior to the Lead Securitization Date, the earliest to occur of any of the following: (a) 60 days after an uncured payment delinquency (other than a delinquency in respect of the Balloon Payment) occurs in respect of the Mortgage Loan, (b) 90 days after an uncured delinquency occurs in respect of the Balloon Payment for the Mortgage Loan unless a refinancing is anticipated within 120 days after the Maturity Date of the Mortgage Loan (as evidenced by a written and binding refinancing commitment from an acceptable lender and reasonably satisfactory in form and substance to the Servicer, and the Controlling Holder, which provides that such refinancing shall occur within 120 days after the Maturity Date, in which case 120 days after such uncured delinquency), (c) 60 days after a reduction in monthly debt service payments or a material adverse economic change with respect to the terms of the Mortgage Loan has become effective, (d) 60 days after an extension of the Maturity Date of the Mortgage Loan (except for an extension within the time periods described in clause (b) above), (e) 60 days after a receiver has been appointed in respect of the Mortgaged Properties securing the Mortgage Loan on behalf of the Lenders or any other creditor, (f) immediately after any Mortgage Loan Borrower declares, or becomes the subject of, bankruptcy, insolvency or similar proceeding, admits in writing the inability to pay its debts as they come due or makes an assignment for the benefit of creditors unless such action is dismissed within 45 days, or (g) immediately after the Mortgaged Properties securing the Mortgage Loan becomes an REO Property; and

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

In addition to the foregoing, prior to the Lead Securitization Date, each Note B Holder shall have the right, at its sole expense, to require the Special Servicer to order an additional Appraisal of the Mortgage Loan if an event has occurred at or with regard to the Mortgaged Properties that would have a material effect on its appraised value, and the Special Servicer will be required to use its reasonable best efforts to ensure that such Appraisal is delivered within 30 days from receipt of such Note B Holder’s written request and to ensure that such Appraisal is prepared on an “as is” basis by an Appraiser in accordance with MAI standards; provided, that the Special Servicer will not be required to obtain such Appraisal if (i) the Special Servicer determines in accordance with Accepted Servicing Practices that no events at or with regard to the Mortgaged Properties have occurred that would have a material effect on such appraised value of the Mortgaged Properties or (ii) a Note B Holder had ordered an

	7
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Appraisal in the past 9 months. Upon receipt of an Appraisal requested by a Note B Holder pursuant to this definition of “Appraisal Reduction Event” and any other information reasonably requested by the Special Servicer from the Servicer reasonably required to calculate or recalculate the Appraisal Reduction Amount, the Special Servicer will be required to determine, in accordance with Accepted Servicing Practices, whether, based on its assessment of such additional Appraisal, any recalculation of the Appraisal Reduction Amount is warranted and, if so warranted, will be required to recalculate such Appraisal Reduction Amount based upon such additional Appraisal. From and after the Lead Securitization Date, the analogous provisions to this paragraph of the Lead Securitization Servicing Agreement shall control.

“Appraiser” shall mean an independent appraiser, selected by the Servicer, as applicable, that is a member in good standing of the Appraisal Institute and that is certified or licensed in the state in which the Mortgaged Properties are located, and who has a minimum of five (5) years’ experience in the appraisal of comparable properties in the geographic area in which such Mortgaged Properties are located.

“Approved Bank” shall mean a domestic financial institution which (A) prior to a Securitization, has long term unsecured debt obligations of which are rated not less than “AA” by S&P, “A” by Fitch and “Aa2” by Moody’s or the short-term obligations of which are rated at least “A-1+” by S&P, “F-1” by Fitch and “P-1” by Moody’s and (B) after a Securitization, has long term long unsecured debt obligations and/or short term obligations which meet the applicable rating requirements of the Rating Agencies.

“B Notes” shall mean Note B-1, Note B-2, Note B-3 and Note B-4.

“Balloon Payment” shall mean, with respect to the Mortgage Loan, the payment of principal due on its scheduled Maturity Date.

“Bankruptcy Code” shall mean the United States Bankruptcy Code (11 U.S.C. Sec.101 et seq.), or any similar statute, law, rules, regulations or similar legal requirements of any other applicable jurisdiction, in each case, as amended from time to time or any successor statute or rule promulgated thereto.

“BANA” shall have the meaning assigned to such term in the recitals of this Agreement.

“BANA Non-Standalone Notes” shall mean the Note A-2-2, Note A-2-3, Note A-2-4 and Note A-2-5, having an aggregate Initial Note Principal Balance equal to $107,959,183.71.

“BANA Standalone A Note” shall mean the Note A-2-1, having an Initial Note Principal Balance equal to $58,163,265.27.

“BANA Standalone Notes” shall mean the BANA Standalone A Note and Note B-2, having an aggregate Initial Note Principal Balance equal to $142,040,816.29.

	8
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

“Certificate Administrator” shall have the meaning assigned to such term in the recitals of this Agreement.

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

“Closing Date” shall mean November 9, 2021.

“Code” shall have the meaning assigned to such term in Section 4(h).

“Collateral Deficiency Amounts” shall have the meaning, if any, given such term in the Lead Securitization Servicing Agreement.

“Collection Account” shall mean with respect to the Mortgage Loan, an account (including any subaccount) established pursuant to the terms of this Agreement or, from and after the Lead Securitization Date, the Lead Securitization Servicing Agreement, in which amounts received in respect of the Mortgage Loan are segregated (by ledger entries or otherwise) and held for the benefit of the Holders.

“Commission” means the United States Securities and Exchange Commission.

“Common Control Party” shall have the meaning given to such term in the definition of “Affiliate.”

“Control Appraisal Event” shall be deemed to have occurred if and so long as (a) (1) the Initial Note B Principal Balance, minus (2) the sum of (x) any payments of principal (whether as Prepayments or otherwise) allocated to, and received on, any B Note, (y) any Appraisal Reduction Amounts allocated to any B Note in accordance with the terms of this Agreement, and (z) any Realized Losses with respect to the Mortgage Loan to the extent allocated to the B Notes, is less than (b) twenty-five percent (25%) of the Initial Note B Principal Balance.

“Controlling Class Representative” shall have the meaning, if any, given such term in the Lead Securitization Servicing Agreement.

“Controlling Holder” shall mean, as of any date of determination:

(i)       prior to the Lead Securitization Date,

(x)       jointly, the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder and the Note B-4 Holder, unless (x) a Control Appraisal Event has

	9
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

occurred and is continuing, or (y) any of Note B-1, Note B-2, Note B-3 or Note B-4 is held by the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party (in which case the Holder of the related B Note shall not be a Controlling Holder), or

(y)       if no Control Appraisal Event has occurred and is continuing, but any of Note B-1, Note B-2, Note B-3 or Note B-4 is held by the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party, then, jointly, the Holders of one or more B Notes that are not held by the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party, or

(z)       if a Control Appraisal Event has occurred and is continuing, or if each of Note B-1, Note B-2, Note B-3 or Note B-4 is held by the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party, then, jointly, the Note A Holders; provided that:

(1)       if a Control Appraisal Event occurs, then for the purposes of determining whether the Control Appraisal Event is continuing, the outstanding Note Principal Balance of each B Note shall be adjusted (up or down, as applicable) to reflect the then current Appraisal Reduction Amount, if any, indicated by any subsequently obtained Appraisal(s);

(2)       in the event that a Note held by the Controlling Holder pursuant to this definition is held by more than one Person, (1) the Holder(s) of at least a 51% interest therein may act as the Controlling Holder hereunder and (2) any ownership interest held by the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party shall be deemed to equal zero for the purposes of determining which owners can exercise the rights of the Controlling Holder hereunder; and

(3)       the Controlling Holder shall be entitled to appoint any Person to act on its behalf in exercising the rights of the Controlling Holder hereunder and under the Servicing Agreement provided that such appointment is communicated in writing to the Lead Securitization Note Holder and any Servicer acting on its behalf. Such designation shall remain in effect until it is revoked by the Controlling Holder by a writing delivered to the parties hereto; and

(ii) from and after the Lead Securitization Date, the Lead Securitization Trust.

“Controlling Holder Repurchase Notice” shall have the meaning set forth in Section 11.

	10
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Corrected Mortgage Loan” shall mean:

(i) prior to the Lead Securitization Date, the meaning assigned in the definition herein of “Specially Serviced Mortgage Loan”; and

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

“Costs” shall mean all out-of-pocket costs, fees, expenses, Property Advances, interest, payments, losses, liabilities, judgments and/or causes of action reasonably suffered or incurred or reasonably paid by a Holder (or any Servicer or other party (including a securitization trustee, custodian and/or certificate administrator) acting on behalf of such Holder) pursuant to or in connection with the enforcement and administration of the Mortgage Loan, the Mortgage Loan Documents (not including any Servicing Fees, Special Servicing Fees, Workout Fees, Liquidation Fees or Additional Servicing Compensation), the Mortgaged Properties, this Agreement, including, without limitation, attorneys’ fees and disbursements, taxes, assessments, insurance premiums and other protective advances, except for those resulting from the negligence or willful misconduct of such Holder (or any Servicer or other party (including a securitization trustee) acting on behalf of such Holder); provided, however, that none of the following shall be included or deemed to be “Costs”: (i) the costs and expenses relating to the origination or securitization of any Note, including the payment of any securitization trustee fee, (ii) the day-to-day customary and usual, ordinary costs of servicing and administering the Mortgage Loan, (iii) insofar as any Note is an asset of a Securitization Trust and as such to the extent the following amounts are allocable to such Note under the terms of the related Securitization documents: (a) any fees, costs or expenses related to the reporting and compliance with the REMIC Provisions or any provisions of the Code relating to the creation or administration of a grantor trust relating to a Securitization Trust, including the determination related to the amount, payment or avoidance of any REMIC or grantor trust tax on a Securitization Trust or its assets or transactions, (b) any fees, costs or expenses incurred in connection with any audit or any review of the related Securitization Trust or its assets or transactions by the Internal Revenue Service or other governmental authority, (c) any REMIC or grantor trust taxes imposed on the related Securitization Trust or its assets or transactions, (d) any advance made by a party to the related Securitization in respect of a delinquent monthly debt service payment on such Note or any interest accrued on such advance, or (e) any fees, costs or expenses relating to any other mortgage loan included in a Securitization Trust with the related Non-Standalone Note(s).

“Cure Payment” shall have the meaning set forth in Section 11(b).

“DBRI” shall have the meaning assigned to such term in the recitals of this Agreement.

“DBRI Non-Standalone Notes” shall mean the Note A-1-2, Note A-1-3, Note A-1-4, Note A-1-5, Note A-1-6, Note A-1-7, Note A-1-8 and Note A-1-9, having an aggregate Initial Note Principal Balance equal to $314,161,224.43.

	11
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“DBRI Standalone A Note” shall mean the Note A-1-1, having an Initial Note Principal Balance equal to $169,255,102.10.

“DBRI Standalone Notes” shall mean the DBRI Standalone A Note and Note B-1, having an aggregate Initial Note Principal Balance equal to $413,338,775.57.

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

“Defaulted Mortgage Loan Purchase Price” shall mean the sum of the following, without duplication, the sum of (i) the Note Principal Balance of each A Note (as of the date of purchase), (ii) accrued and unpaid interest on the Note Principal Balance of each A Note at its Note Interest Rate and any accrued and unpaid ARD Interest on the Note Principal Balance of each A Note, up to (but excluding) the date of purchase and if such date of purchase is not a Monthly Payment Date, up to (but excluding) the Monthly Payment Date next succeeding the date of purchase, provided payment is made in good funds by 3:00 p.m. New York local time, (iii) any Property Advances that have not been reimbursed from collections on the Mortgage Loan and the related Advance Interest Amount (but excluding any portion of such Property Advance that was made by a Note B Holder and any interest thereon), (iv) any interest accrued on any P&I Advance made on any A Note by a party to the Lead Securitization Servicing Agreement or a Non-Lead Securitization Servicing Agreement, as applicable, at the rate specified in the related servicing agreement; (v) any accrued and unpaid Servicing Fees, trustee fees, certificate administrator fees, Special Servicing Fees, Workout Fees, Liquidation Fees and Additional Servicing Compensation, and (vi) any unreimbursed Costs incurred by any Note A Holder or any party acting on its behalf (which are not included in the preceding clauses of this paragraph).

Subject to the terms of Section 20(h) of this Agreement, the Defaulted Mortgage Loan Purchase Price, in the context of the initial offer for sale of REO Property or a Specially Serviced Mortgage Loan (to a party other than a Note B Holder) pursuant to the terms of Section 20(g) of this Agreement, shall, in addition to the amounts specified in the preceding paragraph, include the sum of (i) the Note B Principal Balance (as of the date of purchase), (ii) the accrued and unpaid interest on the Note Principal Balance of each B Note at its Note Interest Rate and any accrued and unpaid ARD Interest on the Note Principal Balance of each A Note, up to (but excluding) the date of purchase and if such date of purchase is not a Monthly Payment Date, up to (but excluding) the Monthly Payment Date next succeeding the date of purchase, provided payment is made in good funds by 3:00 PM New York local time, (iii) any unreimbursed Property Advances made by a Note B Holder and the related Advance Interest Amount, (iv) any interest accrued on any P&I Advance made by a party to the Lead Securitization Servicing Agreement in respect of a B Note at the rate specified in the Lead Securitization Servicing Agreement; and (v) any unreimbursed Costs incurred by a Note B Holder or any party acting on its behalf (which are not included in the preceding paragraph or the preceding clauses in this paragraph).

In determining the Defaulted Mortgage Loan Purchase Price, amounts payable by the Mortgage Loan Borrowers as a Prepayment Charge, default interest, Penalty Charges and

	12
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

other similar fees and the value of such amounts shall not be included, unless a Note B Holder is a Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party upon the occurrence of any event which requires a Repurchase Option Notice pursuant to Section 11 of this Agreement.

“Depositor” shall have the meaning assigned to such term in the recitals of this Agreement.

“Directing Holder” shall have the meaning set forth in Section 21(a).

“Eligibility Requirements” shall mean, with respect to any Person, that such Person has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and is regularly engaged in the business of making or owning commercial real estate loans (or interests therein), mezzanine loans (or interests therein) or commercial loans (or interests therein) similar to the Mortgage Loan.

“Environmental Law” shall mean any present or future federal, state or local law, statute, regulation or ordinance, any judicial or administrative order or judgment thereunder, pertaining to health, industrial hygiene, hazardous substances or the environment, including, but not limited to, each of the following, as enacted as of the date hereof or as hereafter amended: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq.; the Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seq.; the Water Pollution Control Act (also known as the Clean Water Act, 22 U.S.C. §§ 1251 et seq.), the Clean Air Act, 42 U.S.C. §§ 7401 et seq. and the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.

“Event of Default” shall mean an “Event of Default” as defined in the Mortgage Loan Agreement.

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

“Holder” shall mean, with respect to each Note, the Initial Holder of such Note or any subsequent holder of such Note.

“Initial Holders” shall mean, individually or collectively as the context may require, the Initial Note A Holders, the Initial Note B-1 Holder, the Initial Note B-2 Holder, the Initial Note B-3 Holder and the Initial Note B-4 Holder.

“Initial Note A Holder” shall mean, individually or collectively as the context may require, the Initial Note A Holder/DBRI, the Initial Note A Holder/BANA, the Initial Note A Holder/JPMCB and the Initial Note A Holder/3650 Cal Bridge.

“Initial Note A Holder/3650 Cal Bridge” shall mean 3650 Cal Bridge as the initial owner of the 3650 Cal Bridge Non-Standalone Notes and the 3650 Cal Bridge Standalone A Note.

	13
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Initial Note A Holder/BANA” shall mean BANA as the initial owner of the BANA Non-Standalone Notes and the BANA Standalone A Note.

“Initial Note A Holder/DBRI” shall mean DBRI as the initial owner of the DBRI Non-Standalone Notes and the DBRI Standalone A Note.

“Initial Note A Holder/JPMCB” shall mean JPMCB as the initial owner of the JPMCB Non-Standalone Notes and the JPMCB Standalone A Note.

“Initial Note B Holders” shall mean, individually or collectively as the context may require, the Initial Note B-1 Holder, the Initial Note B-2 Holder, the Initial Note B-3 Holder and the Initial Note B-4 Holder.

“Initial Note B Principal Balance” shall mean the aggregate Initial Note Principal Balance of Note B-1, Note B-2, Note B-3 and Note B-4.

“Initial Note B-1 Holder” shall mean DBRI as the initial owner of Note B-1.

“Initial Note B-2 Holder” shall mean BANA as the initial owner of Note B-2.

“Initial Note B-3 Holder” shall mean JPMCB as the initial owner of Note B-3.

“Initial Note B-4 Holder” shall mean 3650 Cal Bridge as the initial owner of Note B-4.

“Initial Note Principal Balance” shall mean, with respect to each Note as of any date of determination, the “Initial Note Principal Balance” for such Note set forth in Part B of the Mortgage Loan Schedule.

“Interim Servicer” shall mean the master servicer (or single servicer) appointed jointly by the Initial Holders under this Agreement and any successor master servicer (or single servicer) appointed as provided hereunder, which Interim Servicer shall be a Qualified Servicer. The initial Interim Servicer shall be KeyBank National Association pursuant to the Interim Servicing Agreement.

“Interim Servicing Agreement” shall mean, collectively, certain servicing agreements (or other servicing arrangements), entered into between the Initial Holders (or their affiliates), as owners, and the Interim Servicer, as servicer, and any replacement servicing agreement entered into with any successor Interim Servicer appointed jointly by the Holders.

“JPMCB” shall have the meaning assigned to such term in the recitals of this Agreement.

“JPMCB Non-Standalone Notes” shall mean the Note A-3-2 and Note A-3-3, having an aggregate Initial Note Principal Balance equal to $53,979,591.86.

	14
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“JPMCB Standalone A Note” shall mean the Note A-3-1, having an Initial Note Principal Balance equal to $29,081,632.63.

“JPMCB Standalone Notes” shall mean the JPMCB Standalone A Note and Note B-3, having an aggregate Initial Note Principal Balance equal to $71,020,408.14.

“KBRA” shall mean Kroll Bond Rating Agency, Inc. and its successors in interest.

“Lead Securitization” shall have the meaning assigned to such term in the recitals of this Agreement.

“Lead Securitization Date” shall mean the closing date for the Lead Securitization.

“Lead Securitization Note Holder” shall mean, (i) prior to the Lead Securitization Date or if each Standalone Note is no longer included in the Lead Securitization Trust, the Note A-1 Holder, and (ii) from and after the Lead Securitization Date, the Lead Securitization Trust.

“Lead Securitization Servicing Agreement” shall have the meaning assigned to such term in the recitals of this Agreement.

“Lead Securitization Trust” shall mean the trust established pursuant to the Lead Securitization Servicing Agreement in connection with the Lead Securitization.

“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit, as the same may be replaced, split, substituted, modified, amended, supplemented, assigned or otherwise restated from time to time (either an evergreen letter of credit or a letter of credit which does not expire until at least two (2) Business Days after the Maturity Date of the Mortgage Loan) in favor of the Note A Holder and entitling the Note A Holder to draw thereon, at a domestic location reasonably acceptable to the Note A Holder, based solely on a statement purportedly executed by an officer of the Note A Holder stating that it has the right to draw thereon, and issued by a domestic Approved Bank or the U.S. agency or branch of a foreign Approved Bank.

“Liquidation Fee” shall mean:

(i) prior to the Lead Securitization Date, if the Mortgage Loan or the Mortgaged Properties are sold or transferred or otherwise liquidated (or a Specially Serviced Mortgage Loan is sold or liquidated or a final discounted payoff is made), a fee payable to the Servicer from Liquidation Proceeds with respect to the Mortgaged Properties if the Servicer receives any Liquidation Proceeds with respect thereto, equal to 50 basis points (0.50%) multiplied by Liquidation Proceeds (net of any Servicing Fees, Special Servicing Fees and reimbursement of any Advances or interest thereon payable therefrom and legal fees and expenses, Appraisal fees, brokerage fees, and similar fees and expenses in connection with the maintenance and

	15
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

preservation of the Mortgaged Properties) related to the Mortgage Loan or Mortgaged Properties; and

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

The Liquidation Fee shall be payable to the Special Servicer upon receipt of Liquidation Proceeds; provided, however, that the parties agree that no Liquidation Fee will be payable in connection with, or out of, Liquidation Proceeds resulting from the purchase of the Mortgaged Properties or all the A Notes by a Note B Holder pursuant to the provisions of this Agreement or the Lead Securitization Servicing Agreement within ninety (90) days after a Triggering Event of Default.

“Liquidation Proceeds” shall mean:

(i) prior to the Lead Securitization Date, the amount (other than insurance proceeds or amounts required to be paid to the Mortgage Loan Borrowers or other Persons pursuant to the Mortgage Loan Documents or applicable law) received in connection with the liquidation of the Mortgaged Properties or REO Property through a trustee’s sale, foreclosure sale or otherwise or the sale or other liquidation of the Mortgage Loan, including a final discounted payoff of the Mortgage Loan, and

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

“Major Decision” means:

(i) prior to the Lead Securitization Date:

(a)any proposed or actual foreclosure upon or comparable conversion of the ownership of properties securing the Mortgage Loan;

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

(c)any sale of the Mortgage Loan, an REO Property for less than the Defaulted Mortgage Loan Purchase Price;

(d)any determination to bring an REO Property into compliance with applicable environmental laws or to otherwise address Hazardous Materials located at an REO Property;

	16
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

(f)any waiver of a “due-on-sale” or “due-on-encumbrance” clause or any consent to such waiver or consent to a transfer of the Mortgaged Properties or interests in the Mortgage Loan Borrowers or consent to the incurrence of additional debt, other than any such transfer or incurrence of debt as may be effected without the consent of the lender under the loan agreement;

(g)any property management company changes for which the lender is required to consent or approve under the Mortgage Loan Documents or franchise changes for which the lender is required to consent or approve under the Mortgage Loan Documents;

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

(i)any acceptance of an assumption agreement releasing the Mortgage Loan Borrowers from liability under the Mortgage Loan and for which there is no lender discretion;

(j)any determination of an Acceptable Insurance Default;

(k)the determination of the Special Servicer pursuant to clause (b) of the definition of “Specially Serviced Loan”; and

(l)any acceleration of the Mortgage Loan following a default or an event of default or any initiation of judicial, bankruptcy or similar proceedings under the Mortgage Loan Documents; and

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

“Master Servicer” shall have the meaning set forth in the recitals of this Agreement.

“Maturity Date” shall have the meaning assigned to such term as set forth in the Mortgage Loan Schedule.

“Monthly Payment Date” shall mean the “Monthly Payment Date” set forth in the Mortgage Loan Agreement.

	17
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

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

“Mortgage Default Rate” shall have the meaning assigned to such term in the Mortgage Loan Schedule.

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

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

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

“Mortgage Loan Borrower(s)” shall have the meaning assigned such term in the recitals.

“Mortgage Loan Borrower Related Parties” shall have the meaning assigned such term in Section 19.

“Mortgage Loan Documents” shall mean the Mortgage, the Mortgage Loan Agreement, the Notes and all other documents evidencing or securing the Mortgage Loan including, without limitation, all guaranties and indemnities, as same may be amended, modified or restated in accordance with this Agreement.

“Mortgage Loan Principal Balance” shall mean, at any date of determination, the outstanding principal balance of the Mortgage Loan.

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

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

“Net Note Interest Rate” shall mean, with respect to each Note, the Note Interest Rate for such Note minus the Servicing Fee Rate.

“Non-Controlling Holder” shall mean any Holder that is not the Controlling Holder. In the event that any Note is an asset of a Non-Lead Securitization, the rights of the Holder of any such Note in its capacity as a Non-Controlling Holder may be exercised by the “directing holder,” “controlling class representative” or other party designated to exercise such rights pursuant to the terms of the related Non-Lead Securitization Servicing Agreement.

“Non-Lead Securitization” shall mean the sale of all or a portion of any Non-Standalone Note to a depositor, who will in turn include such Note as part of the related Non-Lead Securitization of one or more other mortgage loans.

	18
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Non-Lead Securitization Servicing Agreement” shall mean any pooling and servicing agreement (or analogous agreement) relating to a Note, other than the Lead Securitization Servicing Agreement.

“Nonrecoverable Administrative Advance” means an Administrative Advance that has been determined to be “nonrecoverable” in accordance with the terms of the applicable Servicing Agreement.

“Nonrecoverable P&I Advance” means a P&I Advance that has been determined to be “nonrecoverable” in accordance with the terms of the Lead Securitization Servicing Agreement or Non-Lead Securitization Servicing Agreement, as applicable.

“Nonrecoverable Property Advance” means a Property Advance that has been determined to be “nonrecoverable” in accordance with the terms of the applicable Servicing Agreement.

“Non-Standalone Notes” shall means the DBRI Non-Standalone Notes, BANA Non-Standalone Notes, JPMCB Non-Standalone Notes, 3650 Cal Bridge Non-Standalone Notes and any related New Note created in accordance with Section 40(b).

“Note A Holder” shall mean, individually or collectively as the context may require, the Note A-1 Holders, the Note A-2 Holders, Note A-3 Holders and Note A-4 Holders.

“Note A Principal Balance” shall mean, as of any date of determination, the aggregate Note Principal Balance of the A Notes.

“Note A-1 Holder” shall mean, individually or collectively as the context may require, the Initial Note A Holders, or any subsequent holders, of the Notes respectively bearing the designations “A-1-1”, “A-1-2”, “A-1-3”, “A-1-4”, “A-1-5,” “A-1-6,” “A-1-7,” “A-1-8” and “A-1-9”.

“Note A-2 Holder” shall mean, individually or collectively as the context may require, the Initial Note A Holders, or any subsequent holders, of the Notes respectively bearing the designations “A-2-1”, “A-2-2”, “A-2-3”, “A-2-4” and “A-2-5”.

“Note A-3 Holder” shall mean, individually or collectively as the context may require, the Initial Note A Holders, or any subsequent holders, of the Notes respectively bearing the designations “A-3-1”, “A-3-2” and “A-3-3”.

“Note A-4 Holder” shall mean, individually or collectively as the context may require, the Initial Note A Holders, or any subsequent holders, of the Notes respectively bearing the designations “A-4-1”, “A-4-2” and “A-4-3”.

“Note B Holder” shall mean, individually or collectively as the context may require, the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder and the Note B-4 Holder.

	19
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Note B Principal Balance” shall mean, as of any date of determination, the aggregate Note Principal Balance of the B Notes.

“Note B-1” shall mean the Note bearing the designation “B-1”.

“Note B-1 Holder” shall mean the Initial Note B-1 Holder or any subsequent holder of Note B-1.

“Note B-2” shall mean the Note bearing the designation “B-2”.

“Note B-2 Holder” shall mean the Initial Note B-2 Holder or any subsequent holder of Note B-2.

“Note B-3” shall mean the Note bearing the designation “B-3”.

“Note B-3 Holder” shall mean the Initial Note B-3 Holder or any subsequent holder of Note B-3.

“Note B-4” shall mean the Note bearing the designation “B-4”.

“Note B-4 Holder” shall mean the Initial Note B-4 Holder or any subsequent holder of Note B-4.

“Note Default Interest Rate” shall mean, with respect to each Note, the “Note Default Interest Rate” for such Note as set forth in the Mortgage Loan Schedule.

“Note Interest Rate” shall mean, with respect to each Note, the “Note Interest Rate” for such Note as set forth in the Mortgage Loan Schedule.

“Note Principal Balance” shall mean, with respect to each Note at any time of determination, the “Initial Note Principal Balance” for such Note as set forth in the Mortgage Loan Schedule, as previously reduced by payments of principal thereon received by the related Holder and any reductions in such amount pursuant to Section 4(c) and Section 7.

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

“Open Prepayment Date” shall have the meaning set forth in the Mortgage Loan Agreement.

“P&I Advance” shall mean an advance made in respect of a delinquent monthly debt service payment on a Note included in a Securitization by a party to such Securitization (and in accordance with the terms of the Lead Securitization Servicing Agreement or the related Non-Lead Securitization Servicing Agreement, as the case may be).

“Penalty Charges” shall mean any amounts actually collected on the Mortgage Loan from the Mortgage Loan Borrowers that represent late payment charges, other than a Prepayment Charge or default interest.

	20
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Percentage Interest” shall mean, with respect to each Note, as of any date of determination, the ratio of the Note Principal Balance of such Note to the Mortgage Loan Principal Balance.

“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities listed on Schedule 1 annexed hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000, and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.

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

“Prepayment” shall mean any payment of principal made by the Mortgage Loan Borrowers with respect to the Mortgage Loan which is received in advance of its scheduled Maturity Date, whether made by reason of a casualty or condemnation, due to the acceleration of the maturity of the Notes or otherwise.

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

“Prepayment Charge Entitlement” shall mean, with respect to any Prepayment made with a Prepayment Charge and respect to any Note, the product of: (A) a fraction whose numerator is the amount of such Prepayment and whose denominator is the outstanding principal balance of such Note before giving effect to such Prepayment, times (B) the amount by which (1) the sum of the respective present values, computed as of the date of such Prepayment, of the remaining scheduled payments of principal and interest with respect to such Note, including the balloon payment on the commencement of the Open Prepayment Date (assuming no other prepayments or acceleration of the Mortgage Loan), determined by discounting such payments at the Discount Rate (as defined in the Mortgage Loan Agreement), exceeds (2) the outstanding principal balance of such Note on such date immediately prior to such Prepayment.

“Prime Rate” shall mean the “Prime Rate” in effect from time to time (as published in the “Money Rates” section of The Wall Street Journal or, if such section or publication no longer is available, such other publication as determined by the Note A-1 Holder in its reasonable discretion).

“Property Advance” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement or at any time that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, any analogous concept under the servicing agreement pursuant to which the Mortgage Loan is being serviced in accordance with the terms of this Agreement.

	21
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“Qualified Institutional Lender” shall mean each Initial Note A Holder, the Initial Note B-1 Holder, the Initial Note B-2 Holder, the Initial Note B-3 Holder and the Initial Note B-4 Holder and the following:

(a)an entity Controlled (as defined below) by, or under common Control (as defined below) with, any one or more of the Initial Note A Holders, the Initial Note B-1 Holder, the Initial Note B-2 Holder, the Initial Note B-3 Holder and the Initial Note B-4 Holder, or

(b)one or more of the following:

(i)an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan, pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, in any case, which satisfies the Eligibility Requirements, or,

(ii)an investment company, money management firm or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an investment advisor registered under the Investment Advisers Act of 1940 or an institutional accredited investor under Regulation D, which regularly engages in the business of making or owning investments of types similar to the Mortgage Loan or the related Note, which satisfies the Eligibility Requirements, or

(iii)a Qualified Trustee in connection with (A) a securitization of, (B) the creation of collateralized loan obligations (“CLO”) secured by or (C) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by at least two of the Rating Agencies which assigned a rating to one or more classes of securities issued in connection with a Securitization (it being understood that with respect to any Rating Agency that assigned such a rating to the securities issued by such Securitization Vehicle, a Rating Agency Confirmation will not be required in connection with a transfer of such Note or any interest therein to such Securitization Vehicle); (2) the special servicer of such Securitization Vehicle has a Required Special Servicer Rating (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CLO, the CLO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CLO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (a), (b)(i), (b)(ii), (b)(v), (b)(vi) or (c) of this definition, or

(iv)an investment fund, limited liability company, limited partnership or general partnership in which a Permitted Fund Manager acts as the general partner,

	22
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

managing member, or the fund manager responsible for the day to day management and operation of such investment vehicle and provided that at least fifty percent (50%) of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Qualified Institutional Lenders, or

(v)an institution substantially similar to any of the foregoing in clauses (b)(i), (ii) or (iv), which satisfies the Eligibility Requirements;

(vi)a Person which is otherwise a Qualified Institutional Lender but which is acting in an agency capacity for a syndicate of lenders where at least 51% of the lenders in such syndicate are otherwise Qualified Institutional Lenders under clauses (b)(i), (ii), (iv) and (v) above; or

(c)any entity Controlled (as defined below) by, or under common Control (as defined below) with, any of the entities described in clause (b)(i), (ii) or (v) above.

(d)any Person for which a Rating Agency Confirmation has been obtained.

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

“Qualified Servicer” shall mean:

(i) prior to the Lead Securitization Date, either (x) a mortgage finance institution, insurance company, bank or mortgage servicing institution (A) organized and doing business under the laws of the United States or any state of the United States or the District of Columbia, (B) authorized to transact business in the jurisdiction where each Mortgaged Properties are located, if and to the extent required by applicable law to enable such institution to perform its obligations under the Interim Servicing Agreement or, in the event that such institution is acting as a sub-servicer, under the applicable sub-servicing agreement, and otherwise as contemplated hereby, and (C) (1) has a rating of at least “CMS2” (in the case of a master servicer) and “CSS2” (in the case of a special servicer) in the case of Fitch, (2) is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Master Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable, in the case of S&P, (3) in the case of DBRS Morningstar, (i) the applicable master servicer or special servicer has a rating by DBRS Morningstar higher than or equal to “MOR CS3” as a master servicer or special servicer, as applicable, or (ii) the applicable master servicer or special servicer, as applicable, is currently acting as a master servicer or special servicer, as applicable, on a transaction-level basis on a CMBS transaction currently rated by DBRS Morningstar that currently has securities outstanding and for which DBRS Morningstar has not cited servicing concerns of the master servicer or special servicer, as applicable, as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of

	23
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

securities rated by DBRS Morningstar in a commercial mortgage-backed securitization transaction rated by DBRS Morningstar and serviced by the applicable master servicer or special servicer, as applicable, prior to the time of determination, (4) in the case of Moody’s, such servicer is acting as servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such servicer as servicer of such commercial mortgage loans, or (5) in the case of KBRA, KBRA has not cited servicing concerns of such servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a CMBS transaction serviced by such servicer prior to the time of determination, or (y) as to which each of the Rating Agencies shall have delivered to the Trustee written confirmation to the effect that the service by such entity as Servicer or Special Servicer, as the case may be, would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the securities issued under the Servicing Agreement, and

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

“Qualified Trustee” shall mean (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority, (ii) an institution insured by the Federal Deposit Insurance Corporation or (iii) an institution whose long-term senior unsecured debt is rated any of the then in effect top two rating categories of each of the applicable Rating Agencies.

“Rating Agencies” shall mean DBRS Morningstar, Fitch, KBRA, Moody’s and S&P and their respective successors-in-interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency designated by the Lead Securitization Note Holder; provided, however, that at any time during which any A Note or B Note is an asset of a Securitization, “Rating Agencies” or “Rating Agency” shall mean the rating agencies that from time to time rate (and were engaged by the applicable depositor to so rate) the securities issued in connection with such Securitization (and at the time of determination continue to do so).

“Rating Agency Confirmation” shall have, at any time that any A Note or B Note is an asset of a Securitization, the meaning assigned to such term or analogous term in the Servicing Agreement.

“Realized Losses” mean any reduction in the Mortgage Loan Principal Balance that does not result in an accompanying payment of principal to any of the Holders, which may

	24
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

result from, but is not limited to, one of the following circumstances: (i) the cancellation or forgiveness of any portion of the Mortgage Loan Principal Balance in connection with a bankruptcy or similar proceeding or a modification or amendment of the Mortgage Loan granted by the Servicer pursuant to the terms of the Servicing Agreement, or (ii) a reduction in the Mortgage Interest Rate or the Note Interest Rate for any Note in connection with a bankruptcy or similar proceeding involving the Mortgage Loan Borrowers or a modification or amendment of the Mortgage Loan agreed to by the Servicer in accordance with the terms of the Servicing Agreement that, as a result of the application of Section 7, results in the application of principal to pay interest to one or more Holders (each such Realized Loss described in this clause (ii) shall be deemed to have been incurred on the Monthly Payment Date for each affected monthly payment).

“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time, in each case as effective from time to time as of the compliance dates specified therein.

“REMIC” shall have the meaning assigned to such term in Section 4(h).

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

“Remittance Date” shall mean:

(i)with respect to each Standalone Note, and each Non-Standalone Note prior to the related Non-Lead Securitization, the “Servicer Remittance Date” (or analogous term) as defined in the Lead Securitization Servicing Agreement; and

(ii)       with respect to each Non-Standalone Note from and after its Non-Lead Securitization, if any, the earlier of (a) the “Servicer Remittance Date” (or analogous term) as defined in the Lead Securitization Servicing Agreement or (b) the first Business Day after the “determination date,” as such term or a similar term is defined in the related Non-Lead Securitization Servicing Agreement (as long as such date is at least two Business Days after receipt of properly identified funds).

“REO Proceeds” shall mean, with respect to any REO Property, all revenues received by the applicable Servicer with respect to such REO Property or the Mortgage Loan, which do not constitute Liquidation Proceeds. From and after the Lead Securitization Date, “REO Proceeds” shall have the meaning assigned to such term or any analogous term in the Lead Securitization Servicing Agreement.

	25
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

“REO Property” shall mean any Mortgaged Properties title to which has been acquired by the Servicer on behalf of the Holders through foreclosure, deed-in-lieu of foreclosure or otherwise. From and after the Lead Securitization Date, “REO Property” shall have the meaning assigned to such term or any analogous term in the Lead Securitization Servicing Agreement.

“Repurchase Date” shall have the meaning assigned such term in Section 11.

“Repurchase Option Notice” shall have the meaning assigned such term in Section 11.

“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of at least “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans, (iv) in the case of KBRA, KBRA has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination, and (v) in the case of DBRS Morningstar, (a) such special servicer has a rating by DBRS Morningstar higher than or equal to “MOR CS3” as special servicer, and (b) DBRS Morningstar has not qualified, downgraded or withdrawn the then-current rating or ratings of one or more classes of CMBS certificates citing servicing concerns with the special servicer as the sole or material factor in such rating action. The requirement of any rating agency that is not a Rating Agency shall be disregarded.

“Reserve Collateral” shall have the meaning assigned such term in Section 21(j).

“S&P” shall mean S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, and its successors in interest.

“Securitization” shall mean the Lead Securitization and any Non-Lead Securitization, as the context may require.

“Securitization Trust” shall mean the Lead Securitization Trust or any trust formed in connection with the Securitization of any Non-Standalone Note, as the context may require.

“Servicer” shall mean (i) prior to the Lead Securitization Date, the Interim Servicer, and (ii) from and after the Lead Securitization Date, the Master Servicer or the Special Servicer, as the context may require.

	26
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

“Servicing Fee” shall have the meaning assigned to such term in Section 4.

“Servicing Fee Rate” shall mean the sum of: (i) 0.6 basis points (0.006%) per annum (which consists solely of the primary servicing fee rate with respect to the Standalone Notes and the Non-Standalone Notes) and (ii)(A) with respect to the Standalone Notes, 0.75 basis points (0.0075%) per annum (which consists of the master servicing fee rate with respect to the Standalone Notes) and (B) with respect to the Non-Standalone Notes, a rate per annum payable to the applicable master servicer of the related Non-Lead Securitization.

“Special Servicer” shall have the meaning set forth in the recitals of this Agreement.

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

“Special Servicing Fee” shall have the meaning assigned to such term in Section 4.

“Special Servicing Fee Rate” shall mean an amount:

(i) prior to the Lead Securitization Date, so long as the Mortgage Loan is a Specially Serviced Mortgage Loan, an amount equal to the product of (A) 25 basis points (0.25%) per annum and (B) the Mortgage Loan Principal Balance; and

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

“Specially Serviced Mortgage Loan” shall mean the Mortgage Loan if:

(i) prior to the Lead Securitization Date, any of the following occurs: (a) the Mortgage Loan Borrowers fail to make a monthly debt service payment for a period of 60 days after its Monthly Payment Date; (b) in the reasonable business judgment of the Servicer (with the consent of the applicable Controlling Holder), exercised in accordance with Accepted Servicing Practices, there is an imminent risk of an Event of Default consisting of a failure to make a monthly debt service payment which Event of Default is likely to remain unremedied for a period of 60 days or more; (c) the Servicer has received notice or has actual knowledge that the Mortgage Loan Borrowers have become the subject of any bankruptcy, insolvency or similar proceeding, admitted in writing its inability to pay its debts as they come due or made an assignment for the benefit of creditors; (d) the Servicer has received notice of a foreclosure or threatened foreclosure of any lien upon the Mortgaged Properties; (e) except with respect to matters already addressed in clause (a) of this definition, the Servicer has received notice or has actual

	27
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

knowledge that the Mortgage Loan Borrowers are in default beyond any applicable notice and/or grace periods in the performance or observance of any of its obligations under the related Mortgage Loan Documents the failure of which to cure, in the reasonable business judgment of the Servicer, exercised in accordance with Accepted Servicing Practices, materially and adversely affects the interests of the Holders; or (f) a failure on the part of the Mortgage Loan Borrowers to make the Balloon Payment as and when the same becomes due and payable.

The period during which the Mortgage Loan is specially serviced shall end and the Mortgage Loan shall be a “Corrected Mortgage Loan”: (1) with respect to the circumstances described in clause (a) above, when the Mortgage Loan Borrowers have paid in full all payments due under the Mortgage Loan and has made three consecutive full and timely monthly debt service payments under the terms of the Mortgage Loan or, if the Mortgage Loan is “worked out”, when the Mortgage Loan Borrowers have made three consecutive full and timely monthly debt service payments under the terms of the Mortgage Loan as modified in connection with such workout; (2) with respect to the circumstances described in clauses (b), (c) and (d) above, when such circumstances cease to exist in the good faith judgment of the Servicer, or in the case of clause (b) above the related Event of Default does not occur within sixty (60) days from the date of such determination; (3) with respect to the circumstances described in clause (e) above, when the Mortgage Loan Borrowers have cured such default; or (4) with respect to the circumstances described in clause (f) above, when the Mortgage Loan Borrowers have paid in full all payments due under the Mortgage Loan or, if the Mortgage Loan is “worked out,” when the Mortgage Loan Borrowers have made three consecutive full and timely monthly debt service payments under the terms of the Mortgage Loan as modified in connection with such workout; provided, in any case, that at that time no other circumstance identified in clauses (a) through (f) above exists that would cause the Mortgage Loan to continue to be characterized as a Specially Serviced Mortgage Loan; and

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

“Standalone A Notes” shall mean the DBRI Standalone A Note, the BANA Standalone A Note, the JPMCB Standalone A Note and the 3650 Cal Bridge Standalone A Note.

“Standalone Notes” shall mean the DBRI Standalone Notes, the BANA Standalone Notes, the JPMCB Standalone Notes and the 3650 Cal Bridge Standalone Notes.

“Transfer” shall have the meaning assigned such term in Section 18.

“Triggering Event of Default” shall mean (i) any Event of Default with respect to an obligation of the Mortgage Loan Borrowers to pay money due under the Mortgage Loan or (ii) any non-monetary Event of Default as to which the Mortgage Loan becomes a Specially Serviced Mortgage Loan (which, for clarification, shall not include any imminent Event of Default (i.e., subclause (i)(b) of the definition of Specially Serviced Mortgage Loan)). A

	28
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Triggering Event of Default shall not exist to the extent a Note B Holder is exercising its cure rights in accordance with Section 11(b) or prior to the expiration of any cure period granted pursuant to Section 11(b).

“Trust Fund Expenses” shall mean with respect to the Mortgage Loan, any unanticipated expenses and certain other default related expenses incurred by any Securitization Trust (including, without limitation, all Property Advances (together with interest thereon at the Advance Rate), all Administrative Advances (together with interest thereon at the Advance Rate) and all P&I Advances (together with interest thereon at the rates specified in the Lead Securitization Servicing Agreement and the Non-Lead Securitization Servicing Agreement applicable to each Note) and all additional trust fund expenses, to the extent not reimbursed by the Mortgage Loan Borrowers or deemed to be a Nonrecoverable Property Advance) and all other amounts (such as indemnification payments) permitted to be retained, reimbursed or withdrawn by (or remitted to) the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator or any operating advisor, as applicable, from the Collection Account or the Distribution Account pursuant to the Lead Securitization Servicing Agreement or permitted to be reimbursed to any of the parties to a Non-Lead Securitization Servicing Agreement pursuant to the terms thereof. Any fees, costs or expenses relating to any other mortgage loan included in a Securitization Trust with the related Non-Standalone Note(s) shall not be considered Trust Fund Expenses.

“Trustee” shall have the meaning assigned to such term in the recitals of this Agreement.

“Updated Appraisal” shall mean an Appraisal of the Mortgaged Properties or related REO Property, as the case may be, conducted subsequent to any Appraisal performed on or prior to the date of this Agreement by an Appraiser, selected by the applicable Servicer, in accordance with MAI standards, the costs of which shall be paid as a Property Advance by the Lead Securitization Note Holder or applicable Servicer.

“Workout Fee” shall mean (i) prior to the Lead Securitization Date, a fee equal to 50 basis points (0.50%) of each collection of interest and principal (including scheduled payments, prepayments, Balloon Payments and payments at maturity) received on a Corrected Mortgage Loan, and (ii) from and after the Lead Securitization Date, the meaning assigned to such term in the Lead Securitization Servicing Agreement.

The Workout Fee shall be payable out of each collection of interest and principal (including scheduled payments, prepayments, Balloon Payments and payments at maturity) received on the Mortgage Loan for so long as the Mortgage Loan does not subsequently become a Specially Serviced Mortgage Loan. The Workout Fee with respect to the Mortgage Loan shall cease to be payable if the Mortgage Loan subsequently becomes a Specially Serviced Mortgage Loan or if the Mortgaged Properties become an REO Property; provided that, if the Mortgage Loan thereafter ceases to be a Specially Serviced Mortgage Loan, a new Workout Fee shall become payable to the applicable Servicer that had responsibility for servicing the Mortgage Loan at such time.

	29
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

2. Subordination of B Notes. Each B Note and the right of each Note B Holder to receive payments with respect to its respective B Note shall, subject to the provisions of this Agreement, at all times be junior, subject and subordinate to each A Note and the rights of each Note A Holder to receive payments with respect to its respective A Note.

3.Intentionally Omitted.

4.Administration of the Mortgage Loan. (a) From and after the date hereof and prior to the Lead Securitization Date, the Interim Servicer shall administer and service the Mortgage Loan consistent with the terms of this Agreement, the Interim Servicing Agreement, the Mortgage Loan Documents, Accepted Servicing Practices and applicable law.

(b)From and after the Lead Securitization Date, the administration and servicing of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement, provided that:

(i)except as expressly provided for in this Agreement, the rights and remedies of any Note B Holder under the Lead Securitization Servicing Agreement shall not be materially impaired compared to the rights and remedies of such Note B Holder set forth herein (and the obligations of any Note B Holder under the Lead Securitization Servicing Agreement shall not be materially increased compared to the obligations of such Note B Holder set forth herein),

(ii)the provisions of the Lead Securitization Servicing Agreement may differ from this Agreement to the extent requested by the Rating Agencies, the subordinate bond buyers or any of the other parties thereto and necessary in order that each Initial Holder and its Affiliates obtain accounting “sale” treatment for its respective Note under FAS 140, provided that, in all cases, any such differences between this Agreement and the Lead Securitization Servicing Agreement shall not have a material adverse effect on any of the rights, remedies or protections granted to the Holders under this Agreement (without giving effect to any provision of this Agreement which states that a term shall have “the meaning assigned to such term in the Servicing Agreement,” or be “subject to the Servicing Agreement” or similar phrases),

(iii)from and after the Lead Securitization Date, such Lead Securitization Servicing Agreement shall not be modified in any manner materially adverse to a Holder without the prior written consent of such Holder, and

(iv)the Lead Securitization Servicing Agreement shall contain terms and conditions as are set forth in Section 40(c) of this Agreement and such additional provisions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of any Securitization Trust, (ii) required by law or changes in any law, rule or regulation or (iii) generally required by the Rating Agencies in connection with the issuance of ratings in securitizations similar to the Lead Securitization.

	30
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(c) The Servicer shall distribute (or cause to be distributed) to the Holders all payments due to the Holders in accordance with Section 5 and Section 6 hereof; provided, however, prior to calculating any amount of interest or principal due on such date to the Holders, the Servicer shall reduce the Note Principal Balances of the B Notes pro rata (based on their respective outstanding Note Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note Principal Balance of each B Note has been reduced to zero, the Servicer shall reduce the Note Principal Balances of the A Notes pro rata (based on their respective outstanding Note Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

(d)In consideration for servicing the Mortgage Loan (inclusive of each Note) a servicing fee shall accrue at a rate not to exceed the applicable Servicing Fee Rate on the sum of the outstanding Note A Principal Balance of the Standalone A Notes and the Non-Standalone Notes, and the outstanding Note B Principal Balance, as applicable (the “Servicing Fee”). The Servicing Fee shall be paid on the same interest accrual basis and for the same period of time for which interest is paid on the Mortgage Loan, and shall be paid in accordance with the priorities set forth in Section 5 and Section 6.

(e)In consideration for special servicing the Mortgage Loan (inclusive of each Note) a special servicing fee shall accrue at a rate not to exceed the Special Servicing Fee Rate on the sum of the outstanding Note A Principal Balance and the outstanding Note B Principal Balance (the “Special Servicing Fee”). The Special Servicing Fee shall be payable to the Special Servicer if the Mortgage Loan shall become a Specially Serviced Mortgage Loan, for so long as the Mortgage Loan remains a Specially Serviced Mortgage Loan. Subject to any liquidation set forth in the Lead Securitization Servicing Agreement, the Liquidation Fee shall be payable to the Special Servicer upon receipt of Liquidation Proceeds. For any period during which the provisions of Section 6 apply, any Workout Fees or Liquidation Fees shall be paid from funds available for distribution prior to the distribution of funds to the Holders in accordance with Section 6 (it being agreed that a Workout Fee and a Liquidation Fee shall not be payable with respect to the same payment or with respect to the same period of time, or otherwise simultaneously or duplicatively). The Holders acknowledge that pursuant to the Servicing Agreement, the Servicers may be entitled to receive Additional Servicing Compensation. To the extent any such Additional Servicing Compensation is actually received by a Servicer in accordance with the Servicing Agreement, such Servicer shall be entitled to retain the same. In no event, however, shall any amounts relating to Additional Servicing Compensation that are not otherwise actually received by a Servicer (or its subservicer) be deducted from any distributions to any Holder pursuant to Section 5 or Section 6, as applicable.

(f)Notwithstanding anything to the contrary contained herein, if each of the Standalone Notes ceases to be an asset of the Lead Securitization Trust, the provisions of this Agreement shall apply in their entirety, and each Holder hereby agrees that the Mortgage Loan shall be serviced pursuant to this Agreement. In such event, all references herein to the “Servicing Agreement” and to “from and after the Lead Securitization Date” and any ancillary provisions relating thereto shall be deemed to be inoperative and of no further force and effect; provided, the actual servicing of the Mortgage Loan under this Agreement shall be performed by

	31
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

a successor Master Servicer appointed by the Lead Securitization Note Holder and a successor Special Servicer shall be appointed by the Controlling Holder, both of which replacement Servicers shall be Qualified Servicers and shall be reasonably acceptable to each of the Holders; provided, further, that until a replacement servicing agreement, if necessary, has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full force and effect with respect to the Mortgage Loan, by the Servicer in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a “qualified servicer” meeting the requirements of the Lead Securitization Servicing Agreement; provided, however, that such servicer shall have no obligation to make P&I Advances or Administrative Advances. Any such entity acting as a successor Master Servicer or successor Special Servicer of the Mortgage Loan pursuant to the proviso of the preceding sentence will be required to perform such servicing in accordance with Accepted Servicing Practices and the provisions of this Agreement.

(g)Notwithstanding anything to the contrary contained herein, in accordance with this Agreement and the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall provide that the Servicers are required to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices.

(h)If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Internal Revenue Code of 1986, as amended (the “Code”) (notice of which shall be given by the related Holder to the other Holders within three (3) Business Days of the “startup day”, within the meaning of Section 860(G)(a)(9) of the Code, of the related REMIC), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that each Note qualifies at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed-in-lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interests of the Holders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) the related Holder may not modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrowers, or exercise or refrain from exercising any powers or rights which the related Holder may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the earliest startup day of any REMIC which includes the related Note (or any portion of such Note). The Holders agree that the provisions of this Section 4(h) shall be effected by compliance by the related Holder or its assignee with this Agreement or the Servicing Agreement or any other agreement which governs the administration of the Mortgage Loan or such Holder’s interest therein. All costs and expenses of compliance with this Section 4(h), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount,

	32
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by the Holders.

5.Payments Prior to a Triggering Event of Default. If no Triggering Event of Default shall have occurred, or if a Triggering Event of Default has occurred but is no longer then continuing, then all amounts tendered by the Mortgage Loan Borrowers or otherwise available for payment on the Mortgage Loan (including, without limitation, payments received in connection with any guaranty or indemnity agreement), whether received in the form of monthly debt service payments, Prepayments, Balloon Payments, Liquidation Proceeds (other than any Repurchase Price), Penalty Charges, Cure Payments, proceeds under title, hazard or other insurance policies or awards or settlements in respect of condemnation proceedings or similar exercise of the power of eminent domain (other than any amounts for required reserves or escrows required by the Mortgage Loan Documents and proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Properties or released to the Mortgage Loan Borrowers in accordance with Accepted Servicing Practices or the Mortgage Loan Documents) shall be distributed by the Servicer and applied in the following order of priority (net of amounts payable or reimbursable to the Master Servicer or Special Servicer in accordance with the Lead Securitization Servicing Agreement) (and payments shall be made at such times as are set forth herein):

(i)first, (A) initially, to the Holders of the Standalone Notes (or the Master Servicer or the Trustee of the Lead Securitization) and, if applicable, to the Non-Standalone Note(s) (or the master servicers of the related Non-Lead Securitizations) on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable Property Advances (or in the case of a master servicer of any Non-Lead Securitization, if applicable, its pro rata share of any Nonrecoverable Property Advances previously reimbursed to the Master Servicer or the Trustee from general collections of the related Non-Lead Securitization Trust) that remain unreimbursed (together with interest thereon at the applicable Advance Rate), (B) then, to the Note A Holders (or the Master Servicer or the Trustee and, if applicable, the master servicers of the related Non-Lead Securitizations), on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable P&I Advances, as applicable, that remain unreimbursed (together with interest thereon at the applicable Advance Rate or analogous advance rate under such Non-Lead Securitization), (C) then, to the Note B Holders (or the Master Servicer or the Trustee) on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable P&I Advances that remain unreimbursed (together with interest thereon at the applicable Advance Rate) and (D) finally, to the Standalone Note Holders (or the Master Servicer or the Trustee of the Lead Securitization), on a pro rata and pari passu basis (based on the outstanding Note Principal Balances of the Standalone Notes), up to the amount of any Nonrecoverable Administrative Advances that remain unreimbursed (together with interest thereon at the applicable Advance Rate);

	33
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(ii) second, to the Holders of the Standalone Notes (or any Servicer or Trustee (if any), as applicable), on a pro rata and pari passu basis (based on the unreimbursed amount of costs paid or payable), up to the amount of any unreimbursed Costs paid or any Costs currently payable or paid or advanced by such Holders (or any Servicer or the Trustee (if any), as applicable), with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement, including, without limitation, unreimbursed Property Advances and Administrative Advances and interest thereon at the applicable Advance Rate, to the extent such Costs, Property Advances and Administrative Advances and interest thereon are then payable or reimbursable hereunder, or, after the Lead Securitization Date, under the Lead Securitization Servicing Agreement;

(iii)third, (A) initially, to each Note A Holder and each Note B Holder (or the Master Servicer), the applicable accrued and unpaid Servicing Fee on the related A Note or related B Note (without duplication of any portion of the Servicing Fee paid by Mortgage Loan Borrowers), as the case may be, and (B) then, to each Note A Holder and each Note B Holder (or the Special Servicer), any Special Servicing Fees, Workout Fees and Liquidation Fees earned by it with respect to the Mortgage Loan under this Agreement or the Servicing Agreement;

(iv)fourth, pari passu to each Note A Holder, up to an amount equal to the accrued and unpaid interest on the Note Principal Balance of its A Note at its Net Note Interest Rate, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of accrued and unpaid interest due to each such Note A Holder;

(v)fifth, pari passu, in respect of principal, to the Note A Holders all payments and prepayments of amounts allocable to the reduction of the principal balance of the Mortgage Loan (including amounts allocable as principal on the Mortgage Loan after the Anticipated Repayment Date and any portion of casualty or condemnation proceeds received and allocable as principal on the Mortgage Loan) in accordance with the Mortgage Loan Agreement until the Note Principal Balances of the A Notes have been reduced to zero, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis (based on their respective outstanding Note Principal Balances);

(vi)sixth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or the Mortgaged Properties exceed the amounts required to be applied in accordance with the foregoing clauses (i)-(v), pari passu to each Note A Holder, an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Note A Holder in accordance with the terms of Section 4(c) or Section 7(a), plus interest thereon at the related Net Note Interest Rate compounded monthly from the date the related Realized Loss was so allocated to such Note A Holder, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of Realized Losses previously allocated to each such Note A Holder;

	34
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(vii) seventh, to the Note B Holders, if any, whose B Notes are not included in the Lead Securitization (or any Servicer or Trustee (if any), as applicable), on a pro rata and pari passu basis (based on the unreimbursed amount of costs paid or payable), up to the amount of any unreimbursed Costs paid or any Costs currently payable or paid or advanced by such Note B Holders (or any Servicer or the Trustee (if any), as applicable), with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement, including, without limitation, unreimbursed Property Advances and Administrative Advances and interest thereon at the applicable Advance Rate, to the extent such Costs, Property Advances and Administrative Advances and interest thereon are then payable or reimbursable hereunder, or, after the Lead Securitization Date, under the Lead Securitization Servicing Agreement, and any Cure Payment made by such Note B Holders pursuant to Section 11(b) hereof;

(viii)eighth, pari passu, to each Note B Holder, up to an amount equal to the accrued and unpaid interest on the Note Principal Balance of its B Note at its Net Note Interest Rate, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of accrued and unpaid interest due to each such Note B Holder;

(ix)ninth, pari passu, in respect of principal, to the Note B Holders all payments and prepayments of amounts allocable to the reduction of the principal balance of the Mortgage Loan (including amounts allocable as principal on the Mortgage Loan after the Anticipated Repayment Date and any portion of casualty or condemnation proceeds received and allocable as principal on the Mortgage Loan) in accordance with the Mortgage Loan Agreement until the Note Principal Balances of the B Notes have been reduced to zero, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis (based on their respective outstanding Note Principal Balances);

(x)tenth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or the Mortgaged Properties exceed the amounts required to be applied in accordance with the foregoing clauses (i)-(ix), pari passu, to each Note B Holder, an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Note B Holder in accordance with the terms of Section 4(c) or Section 7(a), plus interest thereon at the related Net Note Interest Rate compounded monthly from the date the related Realized Loss was so allocated to such Note B Holder, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of Realized Losses previously allocated to each such Note B Holder;

(xi)eleventh, any interest accrued at the Mortgage Default Rate on the Mortgage Loan Principal Balance to the extent such default interest amount is (i) actually paid by the Mortgage Loan Borrowers, (ii) in excess of interest accrued on the Mortgage Loan Principal Balance at the Mortgage Interest Rate and (iii) not required to be paid to the Master Servicer, the Trustee or the Special Servicer, or the master servicer or trustee

	35
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

under a Non-Lead Securitization Servicing Agreement, as provided in Section 9(d), pari passu, to each Note A Holder and each Note B Holder in an amount calculated on the Note Principal Balance of the related Note at the excess of (x) the Note Default Interest Rate for such Note over (y) the Note Interest Rate for such Note, with the aggregate amount so payable to be allocated between the Holders on a pro rata basis according to the respective amounts due to them under this clause;

(xii)twelfth, pro rata and pari passu, to each Note A Holder any Prepayment Charge, to the extent actually paid by the Mortgage Loan Borrowers and allocable to any prepayment of the related A Note under the Mortgage Loan Documents pro rata based on the Prepayment Charge Entitlement of such A Note, with the aggregate amount so payable to be allocated between the Note A Holders according to the respective amounts due to them under this clause;

(xiii)thirteenth, pro rata and pari passu, to each Note B Holder any Prepayment Charge, to the extent actually paid by the Mortgage Loan Borrowers and allocable to any prepayment of the related B Note under the Mortgage Loan Documents pro rata based on the Prepayment Charge Entitlement of such B Note, with the aggregate amount so payable to be allocated between the Note B Holders according to the respective amounts due to them under this clause;

(xiv)fourteenth, pari passu, to each Note A Holder, up to an amount equal to the unpaid ARD Interest accrued on the Note Principal Balance of its A Note, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of accrued and unpaid ARD Interest due to each such Note A Holder;

(xv)fifteenth, to each Note B Holder, up to an amount equal to the unpaid ARD Interest accrued on the Note Principal Balance of its B Note with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of accrued and unpaid ARD Interest due to each such Note B Holder;

(xvi)sixteenth, pro rata and pari passu (in the case of Penalty Charges, only to the extent not required to be paid to the Master Servicer, the Trustee or the Special Servicer as provided in Section 9(d) or in the Lead Securitization Servicing as contemplated by Section 9(e) or the master servicer or trustee under a Non-Lead Securitization Servicing Agreement as provided in Section 9(d) and/or in the Non-Lead Securitization Servicing as contemplated by Section 9(e)), to each Note A Holder and each Note B Holder (or any Servicer or Trustee (if any), as applicable, on its behalf) its Percentage Interest of any assumption fees and Penalty Charges, in each case to the extent actually paid by the Mortgage Loan Borrowers;

(xvii)seventeenth, any excess amount not otherwise applied pursuant to the foregoing clauses (i) through (xvi) of this Section 5, to the Holders pro rata and pari passu in accordance with their respective initial Percentage Interests set forth in the Mortgage Loan Schedule.

	36
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

If any Note (or portion thereof) has been defeased, the foregoing provisions of this Section 5 will apply only to the non-defeased Notes (or portions thereof). Any Note (or portion thereof) that has been defeased will be repaid solely from the proceeds of the related defeasance collateral.

To the extent that the Mortgage Loan Borrowers pay any Servicing Fees pursuant to the Mortgage Loan Agreement or any modification or amendment thereof, such fees shall be applied to the payment of the Servicing Fee or the Special Servicing Fee, Workout Fee and Liquidation Fee, as applicable, pursuant to clause (iii) above, and the amounts paid on account of interest to the Holders under clauses (iv) and (viii) above for the applicable Remittance Date shall be adjusted accordingly. Notwithstanding clause (xvi) above, to the extent that the Mortgage Loan Borrowers actually pay any assumption fees, such assumption fees otherwise allocable to the Holders instead shall be payable as Additional Servicing Compensation as provided in the Lead Securitization Servicing Agreement.

6.Payments Following a Triggering Event of Default.

(a)After the occurrence of a Triggering Event of Default and for so long as such Triggering Event of Default is continuing, all amounts tendered by the Mortgage Loan Borrowers or otherwise available for payment of the Mortgage Loan (including, without limitation, payments received in connection with any guaranty or indemnity agreement), whether received in the form of monthly debt service payments, Prepayments, Balloon Payments, Liquidation Proceeds (other than any Repurchase Price), Penalty Charges, Cure Payments, proceeds under title, hazard or other insurance policies or awards or settlements in respect of condemnation proceedings or similar exercise of the power of eminent domain (other than any amounts for required reserves or escrows required by the Mortgage Loan Documents and proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Properties or released to the Mortgage Loan Borrowers in accordance with Accepted Servicing Practices or the Mortgage Loan Documents) shall be applied in the following order of priority (net of amounts payable or reimbursable to the Master Servicer or Special Servicer in accordance with the Lead Securitization Servicing Agreement) (and payments shall be made at such times as are set forth herein):

(i)first, (A) initially, to the Holders of the Standalone Notes (or the Master Servicer or the Trustee of the Lead Securitization) and, if applicable, to the Non-Standalone Note(s) (or the master servicers of the related Non-Lead Securitizations) on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable Property Advances (or in the case of a master servicer of any Non-Lead Securitization, if applicable, its pro rata share of any Nonrecoverable Property Advances previously reimbursed to the Master Servicer or the Trustee from general collections of the related Non-Lead Securitization Trust) that remain unreimbursed (together with interest thereon at the applicable Advance Rate), (B) then, to the Note A Holders (or the Master Servicer or the Trustee and, if applicable, the master servicers of the related Non-Lead Securitizations), on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable P&I Advances, as applicable, that remain unreimbursed (together

	37
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

with interest thereon at the applicable Advance Rate or analogous advance rate under such Non-Lead Securitization), (C) then, to the Note B Holders (or the Master Servicer or the Trustee) on a pro rata and pari passu basis (based on their respective outstanding Note Principal Balances), up to the amount of any Nonrecoverable P&I Advances that remain unreimbursed (together with interest thereon at the applicable Advance Rate) and (D) finally, to the Standalone Note Holders (or the Master Servicer or the Trustee of the Lead Securitization), on a pro rata and pari passu basis (based on the outstanding Note Principal Balances of the Standalone Notes), up to the amount of any Nonrecoverable Administrative Advances that remain unreimbursed (together with interest thereon at the applicable Advance Rate);

(ii)second, to the Holders of the Standalone Notes (or any Servicer or Trustee (if any), as applicable), on a pro rata and pari passu basis (based on the unreimbursed amount of costs paid or payable), up to the amount of any unreimbursed Costs paid or any Costs currently payable or paid or advanced by such Holders (or any Servicer or the Trustee (if any), as applicable), with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement, including, without limitation, unreimbursed Property Advances and Administrative Advances and interest thereon at the applicable Advance Rate, to the extent such Costs, Property Advances and Administrative Advances and interest thereon are then payable or reimbursable hereunder, or, after the Lead Securitization Date, under the Lead Securitization Servicing Agreement;

(iii)third, (A) initially, to each Note A Holder and each Note B Holder (or the Master Servicer), the applicable accrued and unpaid Servicing Fee on the related A Note or related B Note (without duplication of any portion of the Servicing Fee paid by Mortgage Loan Borrowers), as the case may be, and (B) then, to each Note A Holder and each Note B Holder (or the Special Servicer), any Special Servicing Fees, Workout Fees and Liquidation Fees earned by it with respect to the Mortgage Loan under this Agreement or the Servicing Agreement;

(iv)fourth, pari passu to each Note A Holder, up to an amount equal to the accrued and unpaid interest on the Note Principal Balance of its A Note at its Net Note Interest Rate, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of accrued and unpaid interest due to each such Note A Holder;

(v)fifth, pari passu to each Note B Holder, up to an amount equal to the accrued and unpaid interest on the Note Principal Balance of its B Note at its Net Note Interest Rate, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of accrued and unpaid interest due to each such Note B Holder;

(vi)sixth, pari passu, in respect of principal, to the Note A Holders, all remaining funds until the Note Principal Balances of the A Notes have been reduced to

	38
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

zero, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis (based on their respective outstanding Note Principal Balances);

(vii)seventh, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or the Mortgaged Properties exceed the amounts required to be applied in accordance with the foregoing clauses (i)-(vi), pari passu to each Note A Holder, an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Note A Holder in accordance with the terms of Section 4(c) or Section 7(a), plus interest thereon at the related Net Note Interest Rate compounded monthly from the date the related Realized Loss was so allocated to such Note A Holder, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of Realized Losses previously allocated to each such Note A Holder;

(viii)eighth, to the Note B Holders, if any, whose B Notes are not included in the Lead Securitization (or any Servicer or Trustee (if any), as applicable), on a pro rata and pari passu basis (based on the unreimbursed amount of costs paid or payable), up to the amount of any unreimbursed Costs paid or any Costs currently payable or paid or advanced by such Note B Holders (or any Servicer or the Trustee (if any), as applicable), with respect to the Mortgage Loan pursuant to this Agreement or the Servicing Agreement, including, without limitation, unreimbursed Property Advances and Administrative Advances and interest thereon at the applicable Advance Rate, to the extent such Costs, Property Advances and Administrative Advances and interest thereon are then payable or reimbursable hereunder, or, after the Lead Securitization Date, under the Lead Securitization Servicing Agreement, and any Cure Payment made by such Note B Holders pursuant to Section 11(b) hereof;

(ix)ninth, pari passu, in respect of principal, to the Note B Holders, all remaining funds until the Note Principal Balances of the B Notes have been reduced to zero, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis (based on their respective outstanding Note Principal Balances);

(x)tenth, if the proceeds of any foreclosure sale or any liquidation of the Mortgage Loan or the Mortgaged Properties exceed the amounts required to be applied in accordance with the foregoing clauses (i)-(ix), pari passu, to each Note B Holder, an amount equal to the aggregate of unreimbursed Realized Losses previously allocated to such Note B Holder in accordance with the terms of Section 4(c) or Section 7(a), plus interest thereon at the related Net Note Interest Rate compounded monthly from the date the related Realized Loss was so allocated to such Note B Holder, with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of Realized Losses previously allocated to each such Note B Holder;

(xi)eleventh, pro rata and pari passu, to each Note A Holder any Prepayment Charge, to the extent actually paid by the Mortgage Loan Borrowers and allocable to any

	39
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

prepayment of the related A Note under the Mortgage Loan Documents pro rata based on the Prepayment Charge Entitlement of such A Note, with the aggregate amount so payable to be allocated between the Note A Holders according to the respective amounts due to them under this clause;

(xii)twelfth, pro rata and pari passu, to each Note B Holder any Prepayment Charge, to the extent actually paid by the Mortgage Loan Borrowers and allocable to any prepayment of the related B Note under the Mortgage Loan Documents pro rata based on the Prepayment Charge Entitlement of such B Note, with the aggregate amount so payable to be allocated between the Note B Holders according to the respective amounts due to them under this clause;

(xiii)thirteenth, pari passu, to each Note A Holder, up to an amount equal to the unpaid ARD Interest accrued on the Note Principal Balance of its A Note, with the aggregate amount so payable to be allocated between the Note A Holders on a pro rata basis according to the amount of accrued and unpaid ARD Interest due to each such Note A Holder;

(xiv)fourteenth, to each Note B Holder, up to an amount equal to the unpaid ARD Interest accrued on the Note Principal Balance of its B Note with the aggregate amount so payable to be allocated between the Note B Holders on a pro rata basis according to the amount of accrued and unpaid ARD Interest due to each such Note B Holder;

(xv)fifteenth, any interest accrued at the Mortgage Default Rate on the Mortgage Loan Principal Balance to the extent such default interest amount is (i) actually paid by the Mortgage Loan Borrowers, (ii) in excess of interest accrued on the Mortgage Loan Principal Balance at the Mortgage Interest Rate and (iii) not required to be paid to the Master Servicer, the Trustee or the Special Servicer, or the master servicer or trustee under a Non-Lead Securitization Servicing Agreement, as provided in Section 9(d), pari passu, to each Note A Holder and each Note B Holder in an amount calculated on the Note Principal Balance of the related Note at the excess of (x) the Note Default Interest Rate for such Note over (y) the Note Interest Rate for such Note, with the aggregate amount so payable to be allocated between the Holders on a pro rata basis according to the respective amounts due to them under this clause;

(xvi)sixteenth, pro rata and pari passu (in the case of Penalty Charges, only to the extent not required to be paid to the Master Servicer, the Trustee or the Special Servicer as provided in Section 9(d) or in the Lead Securitization Servicing as contemplated by Section 9(e) or the master servicer or trustee under a Non-Lead Securitization Servicing Agreement as provided in Section 9(d) and/or in the Non-Lead Securitization Servicing as contemplated by Section 9(e)), to each Note A Holder and each Note B Holder (or any Servicer or Trustee (if any), as applicable, on its behalf) its Percentage Interest of any assumption fees and Penalty Charges, in each case to the extent actually paid by the Mortgage Loan Borrowers; and

	40
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(xvii) seventeenth, any excess amount not otherwise applied pursuant to the foregoing clauses (i) through (xvi) of this Section 6 will be distributed pro rata to the Holders in accordance with their respective initial Percentage Interests set forth in the Mortgage Loan Schedule.

If any Note (or portion thereof) has been defeased, the foregoing provisions of this Section 6 will apply only to the non-defeased Notes (or portions thereof). Any Note (or portion thereof) that has been defeased will be repaid solely from the proceeds of the related defeasance collateral.

To the extent that the Mortgage Loan Borrowers pay any Servicing Fees pursuant to the Mortgage Loan Agreement or any modification or amendment thereof, such fees shall be applied to the payment of the Servicing Fee or the Special Servicing Fee, Workout Fee and Liquidation Fee, as applicable, pursuant to clause (iii) above, and the amounts paid on account of interest to the Holders under clauses (iv) and (v) above for the applicable Remittance Date shall be adjusted accordingly. Notwithstanding clause (xvi) above, to the extent that the Mortgage Loan Borrowers actually pay any assumption fees, such assumption fees otherwise allocable to the Holders instead shall be payable as Additional Servicing Compensation as provided in the Lead Securitization Servicing Agreement.

(b)Following any period during which the terms of this Section 6 are in effect, in the event that the Mortgage Loan becomes a Corrected Mortgage Loan, or if the applicable Triggering Event of Default is no longer existing, or if the Mortgage Loan is restructured in connection with a workout such that the Mortgage Loan is no longer a Specially Serviced Mortgaged Loan and, as restructured, is transferred back to the Servicer and the applicable Triggering Event of Default is no longer continuing, then the terms of Section 5 hereof shall again be in effect, subject, however, to the terms of Section 7 hereof.

7.Workout. (a) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and Section 20 and Section 21 of this Agreement, and the obligation to act in accordance with Accepted Servicing Practices, if any applicable Servicer in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the Mortgage Loan Principal Balance is decreased, (ii) the Mortgage Interest Rate (or the Note Interest Rate for any Note) is reduced, (iii) payments of interest or principal on the Mortgage Loan are waived, reduced or deferred (other than due solely to an extension of the Maturity Date (that is not a forbearance) pursuant to an executed extension agreement between Lenders and the Mortgage Loan Borrowers, so long as no other modification under this Section 7 has occurred), or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, all payments to each Note A Holder pursuant to Section 5 and Section 6, as applicable, shall be made as though such workout did not occur, with the payment terms of Note A remaining the same as they are on the Closing Date, and the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such workout shall be borne, first, pro rata by the Note B Holders (in each case up to the Note Principal Balance of the related B Note, together with accrued interest thereon at the related Note Interest Rate and any other amounts due to such Note B Holder), and second, pro rata by the Note A Holders (in each case up to the Note Principal Balance of the related A Note,

	41
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

together with accrued interest thereon at the related Note Interest Rate, and any other amounts due to such Note A Holder). If the Mortgaged Properties shall become an REO Property, the same shall be acquired, managed and operated in substantially the manner provided in the Servicing Agreement, and the priority of distributions among the Note A Holder and the Note B Holder shall continue to be made in accordance with the terms of Section 6 that would be applicable following the occurrence and during the continuation of a Triggering Event of Default (whether or not the applicable Mortgage Loan Documents then remain in effect), with distributions on account of scheduled interest payments being deemed to be Assumed Scheduled Payments (as such term shall be defined in the Servicing Agreement) for such purpose.

(b)For purposes of determining the identity of the Controlling Holder (and not for any other purpose, including purposes of calculations set forth in Section 5 and Section 6 hereof), Appraisal Reduction Amounts and Collateral Deficiency Amounts shall be allocated first, to reduce the Note Principal Balances of the B Notes, pro rata, and then, to reduce the Note Principal Balances of the A Notes, pro rata. The Lead Securitization Note Holder (or the Special Servicer on its behalf) shall notify the Holders in writing of any Appraisal Reduction Amounts and Collateral Deficiency Amounts calculated with respect to the Mortgage Loan and any allocation thereof to notionally reduce the Note Principal Balances of any Note.

8.Collection Accounts; Payment Procedure. (a) Pursuant to the terms of this Agreement or the Servicing Agreement, the Lead Securitization Note Holder shall cause the Servicer to establish and maintain the Collection Account. Each of the Holders hereby directs the Servicer, in accordance with the priorities set forth in Section 5 and Section 6, as applicable, and subject to the terms of this Agreement or the Servicing Agreement, as applicable, (i) to deposit into the applicable Collection Account within two (2) Business Days after receipt of properly identified funds with respect to the Mortgage Loan and (ii) to remit from the applicable Collection Account (x) for deposit or credit on the Remittance Date all payments received with respect to and allocable to each A Note and B Note, by wire transfer to accounts maintained by each Holder and designated to the Servicer in writing; provided that delinquent payments received by the Servicer after the related Remittance Date shall be remitted by the Servicer to such accounts no later than the Business Day after the Determination Date; and (y) for such other purposes and at such times as specified in this Agreement and the Servicing Agreement.

(b)If any Servicer holding or having distributed any amount received or collected in respect of any Note determines, or a court of competent jurisdiction orders, at any time that any amount received or collected in respect of any Note must, pursuant to any insolvency, bankruptcy, fraudulent conveyance, preference or similar law, be returned to the Mortgage Loan Borrowers or paid to any Holder, any Servicer or any other Person, then, notwithstanding any other provision of this Agreement, such Servicer shall not be required to distribute any portion thereof to the Holder of such Note, and such Holder, shall promptly on demand repay to such Servicer the portion thereof which shall have been theretofore distributed to the related Holder, together with interest thereon at such rate, if any, as such Servicer shall have been required to pay to the Mortgage Loan Borrowers, the Holders, any other Servicer or such other Person with respect thereto, or, if the amount in question had been advanced by the Servicer, then with interest thereon at the Advance Rate. Each Holder agrees that if at any time

	42
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it will promptly remit such excess to the Servicer. The Servicer shall have the right to offset any amounts due hereunder from any Holder, with respect to the Mortgage Loan against any future payments due to such Holder, as applicable, under the Mortgage Loan, provided, that the obligations of each Holder under this Section 8 are separate and distinct obligations from one another, and in no event shall any Servicer be permitted or required under the Servicing Agreement to enforce the obligations of any Holder against the other Holders. The obligations of each Holder under this Section 8 constitute absolute, unconditional and continuing obligations and each Servicer shall be deemed a third party beneficiary of these provisions.

9.Advances; Default Interest; Penalty Charges.

(a)Prior to the Lead Securitization Date, if the Lead Securitization Note Holder elects, in its reasonable good faith discretion and in accordance with Accepted Servicing Practices, to make a Property Advance, the Lead Securitization Note Holder shall notify the other Holders promptly, which notice shall set forth the amount of the additional funds required, the date such funds are required and a summary of the need for such advance. The other Holders shall be required to advance on or before the date specified in the related notice their respective Percentage Interest of such Property Advance. If any Holder fails or refuses to advance the foregoing share of such Property Advance, the Lead Securitization Note Holder shall have the right to advance the portion of such Property Advance not advanced by such other Holders. Repayment of any and all such Property Advances made by any Holder together with interest thereon at the Advance Rate, if applicable, shall be paid to the Holders as provided in Section 5 and Section 6 hereof.

(b)From and after the Lead Securitization Date, the Servicer and/or the Trustee shall be obligated to make Property Advances with respect to the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement and the right of such party to reimbursement for any such Property Advances and interest thereon will be prior to the rights of the Holders to receive any distributions or amounts recovered with respect to the Mortgage Loan or the Mortgaged Properties to the extent provided in this Agreement.

(c)If any party to the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement makes a P&I Advance in respect of any Note, such P&I Advance and any interest accrued thereon shall be reimbursable to such advancing party solely as provided under the terms of this Agreement and the Lead Securitization Servicing Agreement or Non-Lead Securitization Servicing Agreement, as applicable.

(d)The Lead Securitization Servicing Agreement shall provide that Penalty Charges and any interest accrued at the Mortgage Default Rate on the Mortgage Loan Principal Balance that is in excess of interest accrued on the Mortgage Loan Principal Balance at the Mortgage Interest Rate, in either case to the extent actually paid by the Mortgage Loan Borrowers, shall be applied by the Master Servicer (prior to allocation to the Holders under Section 5 or Section 6) for following purposes:

	43
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(1) first, (i) to pay the Master Servicer, the Trustee or the Special Servicer for each Holder’s pro rata share of any interest accrued on any Property Advances and reimbursement of any Property Advances in accordance with the terms of the Lead Securitization Servicing Agreement; (ii) to pay the Master Servicer or the Trustee or the master servicers or trustees under the related Non-Lead Securitization Servicing Agreement the amount, if any, of interest accrued on any P&I Advance made with respect to any Note by such party; and (iii) to pay the Master Servicer or the Trustee for each Standalone Note Holder’s pro rata share of interest accrued on any Administrative Advances and reimbursement of any Administrative Advances in accordance with the terms of the Lead Securitization Servicing Agreement, and

(2)second, be used to reduce, on a pro rata basis, each Holder’s share of Trust Fund Expenses (including Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement).

(e)The Lead Securitization Servicing Agreement may also provide that (i) any Penalty Charges and any interest accrued at the Mortgage Default Rate that has been allocated pursuant to Section 5 or Section 6 to the Notes included in such Lead Securitization be paid to the Master Servicer and/or the Special Servicer as Additional Servicing Compensation as provided in the Lead Securitization Servicing Agreement and (ii) following a Non-Lead Securitization, any Penalty Charges and any interest accrued at the Mortgage Default Rate that has been allocated pursuant to Section 5 or Section 6 to the Holder of the Note included in such Non-Lead Securitization, be paid to the Master Servicer and/or the Special Servicer as Additional Servicing Compensation as provided in the Lead Securitization Servicing Agreement.

10.Limitation on Liability. Neither the Note A Holders nor any Servicer acting on its behalf shall have any liability to the Note B Holder with respect to a B Note, except with respect to losses actually suffered due to the negligence, willful misconduct or breach of this Agreement on the part of such Note A Holder or the Servicer. The Note B Holder shall have no liability to any Note A Holder with respect to its respective A Note except with respect to losses actually suffered due to the negligence, willful misconduct or breach of this Agreement on the part of the Note B Holder.

11.Purchase of A Notes by the Note B Holder; Note B Holder Cure Rights.

Prior to the Lead Securitization Date or if each B Note is no longer included in the Lead Securitization Trust, the provisions of this Section 11 shall apply. In addition, if any B Note is included in the Lead Securitization Trust, the provisions of this Section 11 shall not apply.

(a)Par Purchase Option. If a Triggering Event of Default has occurred and is continuing, then, upon written notice from the Lead Securitization Note Holder (or the Servicer on its behalf) (a “Repurchase Option Notice”) of such occurrence, any Note B Holder (and if each of the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder, or any combination thereof, provide such written notice, then such Note B Holders, collectively,

	44
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

on a pro rata basis) shall have the right, prior to any other party, by written notice to the Lead Securitization Note Holder (or the Servicer on its behalf) (a “Note B Holder Repurchase Notice”), after the occurrence of the Triggering Event of Default and prior to the earliest date (the “Purchase Right Cut-Off Date”) to occur of (a) the cure of the Triggering Event of Default, (b) the consummation of a foreclosure sale, sale by power of sale or delivery of a deed-in-lieu of foreclosure with respect to the Mortgaged Properties (and the Lead Securitization Note Holder (or the Servicer on its behalf) shall be required to give the Note B Holder five (5) Business Days prior written notice of its intent (a “Notice of Foreclosure/DIL”) with respect to any such action in this clause (b)), except that if the Servicer intends to accept a deed-in-lieu of foreclosure, it shall deliver a Notice of Foreclosure/DIL (stating that it intends to accept a deed-in-lieu of foreclosure) to the Note B Holder and the Note B Holder shall have the option, within ten (10) Business Days from the date it receives such Notice of Foreclosure/DIL, to deliver a Note B Holder Repurchase Notice to the Lead Securitization Note Holder (or the Servicer on its behalf), and provided that it has delivered notice within such time period, to consummate the purchase option on a Repurchase Date (as defined below) to occur no later than thirty (30) days from the day it received the Notice of Foreclosure/DIL from the Servicer; provided, that such thirty (30) days may be extended at the option of the Note B Holder for an additional thirty (30) days upon payment to the Lead Securitization Note Holder (or the Servicer on its behalf) of a $5 million non-refundable cash deposit if the Note B Holder provides evidence reasonably satisfactory to the Lead Securitization Note Holder (or the Servicer on its behalf) that it is diligently and expeditiously proceeding to consummate its purchase of each A Note, (c) the modification of the Mortgage Loan Documents effected in accordance herewith and with the terms of the Servicing Agreement (and subject to the approval rights of the Directing Holder and the consultation rights of the Non-Controlling Holder set forth herein and therein) and (d) the date that is ninety (90) days after the Directing Holder’s receipt of the Repurchase Option Notice, to purchase each A Note for the applicable Defaulted Mortgage Loan Purchase Price, and upon the delivery of the Note B Holder Repurchase Notice to each Note A Holder (or the Servicer on its behalf), each Note A Holder (or the Servicer on its behalf) shall sell and the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder, as applicable, shall purchase all of each Note A Holder’s right, title and interest in and to each A Note (without recourse or warranty, except that each Note A Holder shall represent and warrant that it owns its respective A Note, its respective A Note is free and clear of liens, encumbrances and any participations therein, and that such Note A Holder as applicable, has the power and authority to sell and deliver its respective A Note) for the applicable Defaulted Mortgage Loan Purchase Price, on a date (the “Repurchase Date”) not less than five (5) Business Days nor more than fifteen (15) Business Days after the date of the Note B Holder Repurchase Notice (other than as provided in the immediately preceding clause (b) with respect to a Note B Holder Repurchase Notice based on a Notice of Foreclosure/DIL), as shall be designated by the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder, as applicable, and reasonably acceptable to each Note A Holder. The Defaulted Mortgage Loan Purchase Price shall be calculated by the Servicer three (3) Business Days prior to the Repurchase Date (and such calculation shall be accompanied by reasonably detailed back-up documentation explaining how such price was determined). The right of a Note B Holder to exercise its purchase option hereunder shall automatically terminate upon the Purchase Right Cut-Off Date, subject to the possibility that such right will be reinstated if a Triggering Event of Default subsequently occurs. Upon the consummation of the purchase

	45
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

option contemplated by this Section 11(a), the Lead Securitization Note Holder (or the Servicer or Trustee on its behalf) shall deliver all original Mortgage Loan Documents and other applicable materials in its possession to the applicable Note B Holder or its designee. The foregoing rights of the Note B Holders shall be in addition to any rights such Person may have to purchase each A Note pursuant to the Servicing Agreement. Notwithstanding the foregoing, if either of the Mortgage Loan Borrowers or any Mortgage Loan Borrower Related Party is a Note B Holder (or holds a majority interest in a B Note), such Note B Holder shall not have the right to exercise the purchase option set forth in this Section 11(a).

Notwithstanding anything to the contrary contained in this Section, during the period in which any portion of the Mortgage Loan is subject to purchase by Note B Holder pursuant to this Section, the Mortgage Loan shall continue to be serviced by the applicable Servicer in accordance with Accepted Servicing Practices.

(b)Cure Rights. In the event any monetary default beyond applicable notice and grace periods or non-monetary default beyond applicable notice and grace periods shall exist with respect to the Mortgage Loan, then, upon notice from the Lead Securitization Note Holder (or the Servicer on its behalf) (a “Cure Option Notice”) of the occurrence of such default beyond applicable notice and grace periods (which notice the Lead Securitization Note Holder (or the Servicer on its behalf) shall promptly give to the Note B Holder upon receipt of knowledge thereof), each Note B Holder shall have the right, exercisable by each Note B Holder giving written notice of its intent to cure a default within five (5) Business Days after receipt of the Cure Option Notice, to cure such default (and if each of the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder, or any combination thereof, provide such notice, then such Note B Holders collectively, on a pro rata basis shall have the right to cure such default); provided, in the event a Note B Holder has elected to cure any default, the default must be cured by such Note B Holder within, in the case of a monetary default, ten (10) Business Days after receipt of such Cure Option Notice and, in the case of a non-monetary default, thirty (30) days after receipt of such Cure Option Notice. If a Note B Holder is attempting to cure a non-monetary default, the foregoing cure period of thirty (30) days may be extended for an additional sixty (60) days (for a total of up to ninety (90) days), but only for so long as (i) such Note B Holder is diligently and expeditiously proceeding to cure such non-monetary default, (ii) such Note B Holder makes all Cure Payments that it is permitted to make in accordance with this Section, (iii) such non-monetary default is not the result of a bankruptcy of the Mortgage Loan Borrowers or other insolvency related event, and no bankruptcy commences or other insolvency related event occurs during the period that such Note B Holder is otherwise permitted to cure a non-monetary default in accordance with this Section and (iv) there is no material adverse effect on the Mortgage Loan Borrowers, the Mortgaged Properties or the value of the Mortgage Loan as a result of such non-monetary default or the attempted cure thereof.

If a Note B Holder elects to cure a default that can be cured by the payment of money (each such payment, a “Cure Payment”), such Note B Holder shall make such Cure Payment as directed by the Lead Securitization Note Holder (or the Servicer on its behalf) and each such Cure Payment shall include all costs, expenses, losses, liabilities, obligations, damages, penalties, and disbursements imposed on, incurred by or asserted against each Note A Holder (including,

	46
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

without limitation, all unreimbursed Advances (without regard to whether such Advance would be a Nonrecoverable Advance) and any interest charged thereon at the Advance Rate, and any unpaid Special Servicing Fees with respect to the Mortgage Loan, but excluding any default interest and Penalty Charges) related to the default and incurred during the period of time from the expiration of the grace period for such default under the Mortgage Loan until such Cure Payment is made or such other cure is otherwise effected.

The right of a Note B Holder to reimbursement of any Cure Payment shall be as set forth in Section 5 and Section 6, as applicable. So long as a default exists that is being cured by a Note B Holder pursuant to this Section 11(b) and the cure period has not expired and such Note B Holder is permitted to cure under the terms of this Section 11(b), the Lead Securitization Note Holder (or the Servicer on its behalf) and the Trustee shall not treat such default as a default or a Triggering Event of Default (i) for purposes of Section 5 or Section 6; (ii) for purposes of accelerating the Mortgage Loan, modifying, amending or waiving any provisions of the Mortgage Loan Documents or commencing proceedings for foreclosure or the taking of title by deed-in-lieu of foreclosure or other similar legal proceedings with respect to the Mortgaged Properties; or (iii) for purposes of treating the Mortgage Loan as a Specially Serviced Mortgage Loan; provided that such limitations shall not prevent the Lead Securitization Note Holder (or the Servicer on its behalf) or the Trustee from sending notices of the default to the Mortgage Loan Borrowers or any related guarantor or making demands on the Mortgage Loan Borrowers or any related guarantor or from collecting default interest or late payment charges from the Mortgage Loan Borrowers. Notwithstanding anything to the contrary contained in this Section 11(b), (A) a Note B Holder’s right to cure a monetary default or non-monetary default shall be limited to six (6) Cure Events over the life of the Mortgage Loan and (B) no single Cure Event may exceed four (4) consecutive months. For the avoidance of doubt, it is intended that if a single Event of Default is cured for four consecutive months, that same Event of Default may not be cured in the succeeding (fifth) month, a Note B Holder would be permitted to cure a different Event of Default in such succeeding (fifth) month. As used herein, “Cure Event” means a Note B Holder’s exercise of cure rights, whether for one (1) month or for consecutive months in the aggregate (and, in such case, such cure for such consecutive months shall constitute one (1) Cure Event). Cure Events in addition to the number of Cure Events permitted under this Section 11(b) shall only be permitted with the consent of the Lead Securitization Note Holder (or the Servicer on its behalf) or, at any time that the Mortgage Loan is included in the Lead Securitization, the Special Servicer.

12.Certain Servicing Matters.

(a)Books and Records. Prior to the Lead Securitization Date, in connection with any inspection of the Mortgaged Properties or the books and other financial records of the Mortgage Loan Borrowers by the Lead Securitization Note Holder (or the Servicer on its behalf) pursuant to the terms of the Mortgage Loan Documents, the Lead Securitization Note Holder (or the Servicer on its behalf) shall, upon written request of the Directing Holder (if any) request that the Mortgage Loan Borrowers to reasonably cooperate to provide the Directing Holder (if any) access for its own inspection of such Mortgaged Properties or the books and other financial records. In addition, in response to the written request of the Directing Holder (if any), the Lead

	47
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Securitization Note Holder (or the Servicer on its behalf) shall request that the officers of the Mortgage Loan Borrowers and the accountants and other representatives of the Mortgage Loan Borrowers arrange a meeting (either telephonic or in person) to discuss the business, financial and other condition of the Mortgage Loan Borrowers, and all reasonable out-of-pocket costs incurred by the Lead Securitization Note Holder (or the Servicer on its behalf) shall be paid by the Controlling Holder. From and after the Lead Securitization Date, this Section 12(a) shall no longer apply.

(b)Monthly Servicing Report. Prior to the Lead Securitization Date, each month, the Servicer shall prepare and shall promptly deliver copies to each of the Holders a report containing the following information:

(i)For each of the Holders, (x) the amount of the distribution from the Collection Account allocable to principal (y) separately identifying the amount of scheduled principal payments, Balloon Payments, Prepayments made at the option of the Mortgage Loan Borrowers or other Prepayments (specifying the reason therefor) and Liquidation Proceeds included therein and information on distributions made with respect to each of the Notes and (z) the amounts deposited and on reserve in each of the escrow and reserve funds accounts held by Servicer;

(ii)For each of the Holders, the amount of the distribution from the Collection Account allocable to interest and the amount of Prepayment Charges and default interest paid under the Mortgage Loan Documents;

(iii)If the distribution to the Holders is less than the full amount that would be distributable to such Holders if there had been sufficient amounts available therefor, the amount of the shortfall and the allocation thereof between interest and principal and the amount of the shortfall, if any, under the Mortgage Loan;

(iv)The principal balance and the Realized Losses relating to each of the Notes, after giving effect to the distribution of principal on such Remittance Date;

(v)The amount of the servicing fees paid to the Servicer and the Special Servicer with respect to such Remittance Date, showing separately the Servicing Fee, the Special Servicing Fee, any Workout Fee and any Liquidation Fee, and the amount of any fees payable to the paying agent; and

(vi)Information regarding disputes affecting the Mortgage Loan Borrowers and the Mortgaged Properties and such other information as any Holder may reasonably request, to the extent reasonably available to the Trustee, the Servicer or the related Special Servicer, such costs, to the extent not included in the regular fees and charges of the Servicer, shall be reimbursed by the requesting party.

From and after the Lead Securitization Date, the Servicer shall only deliver such reports to the Holders as provided in the Lead Securitization Servicing Agreement; provided, however, so long as the Mortgage Loan is being serviced pursuant to the Interim Servicing agreement, this Section

	48
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

shall not be applicable and the Servicer shall provide the reports as set forth in the Interim Servicing Agreement.

(c)Financial Statements Etc. The Lead Securitization Note Holder (or the Servicer on its behalf) shall promptly provide the other Holders with copies of each financial statement and other statements and reports delivered to the Lead Securitization Note Holder (or the Servicer on its behalf) pursuant to the terms of the Mortgage Loan Documents. Subject to the terms of the applicable Mortgage Loan Documents, upon the reasonable request of such other Holder, the Lead Securitization Note Holder (or the Servicer on its behalf) shall also promptly deliver to such other Holder, copies of any other documents relating to the Mortgage Loan, including, without limitation, property inspection reports and loan servicing statements.

(d)Copies. Any copies to be furnished by the Servicer under this Agreement may be furnished by hard copy or electronic means.

13.Representations and Warranties of Each Initial Holder. Each of the Initial Holders, as of the date hereof, hereby represents and warrants and covenants that:

(i)It is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.

(ii)The execution and delivery of this Agreement by it, and the performance of, and compliance with, the terms of this Agreement by it, will not violate its organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or that is applicable to it or any of its assets, in each case which materially and adversely affect its ability to carry out the transactions contemplated by this Agreement.

(iii)It has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.

(iv)This Agreement is its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(v)Immediately prior to the execution and delivery of this Agreement, it was the sole legal owner and Holder of its related Note, free and clear of any lien, pledge, hypothecation, encumbrance or other adverse interest in the Mortgage Loan, and it has the right to enter into this Agreement without the consent of any third party.

	49
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(vi) It is not in violation of, and its execution and delivery of this Agreement and its performance of, and compliance with, the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local government or regulatory authority, which violation, in its good faith and reasonable judgment, is likely to affect materially and adversely either its ability to perform its obligations under this Agreement or its financial condition.

(vii)No litigation is pending with regard to which it has received service of process or, to the best of its knowledge, has been threatened against it, the outcome of which, in its good faith and reasonable judgment is likely to materially and adversely affect the ability to perform its obligations under this Agreement.

(viii)It has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in connection with the transactions contemplated hereby.

(ix)No consent, approval, authorization or order of, registration or filing with, or notice to, any governmental authority or court is required, under federal or state law (including, with respect to any bulk sale laws), for its execution, delivery and performance of or compliance with this Agreement or its consummation of any transaction contemplated hereby, other than (i) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (ii) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on its performance under this Agreement.

14.Intentionally Omitted.

15.Independent Analyses of the Initial Note B Holder. Subject to the provisions of Section 13, each Initial Note B Holder acknowledges that it has, independently and without reliance upon any Initial Note A Holder and based on such documents and information as such Holder has deemed appropriate, made such Holder’s own credit analysis and decision to originate its related B Note. Except as expressly provided in this Agreement, each Initial Note B Holder hereby acknowledges that the other Holders have not made any representations or warranties with respect to the Mortgage Loan, and that the other Holders shall have no responsibility for (i) the collectibility of the Mortgage Loan, (ii) the validity, enforceability or legal effect of any of the Mortgage Loan Documents or the title insurance policy or policies or any survey furnished or to be furnished to each Initial Note A Holder in connection with the origination of the Mortgage Loan, (iii) the validity, sufficiency or effectiveness of the lien created or to be created by the Mortgage Loan Documents or (iv) the financial condition of the Mortgage Loan Borrowers. Each Initial Note B Holder assumes all risk of loss in connection its related B Note, for reasons other than the gross negligence, willful misconduct or breach of this Agreement by the Initial Note A Holders or the gross negligence, willful misconduct or bad faith by any Servicer.

	50
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

16. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the arrangement between any one or more Holders, on the one hand, and any one or more other Holders, on the other hand, a partnership, association, joint venture or other entity. No Holder shall have any obligation whatsoever to offer to any other Holder the opportunity to purchase notes or participation interests relating to any future loans originated by such Holder or its Affiliates, and if such Holder chooses in its sole discretion to offer to one or more other Holders the opportunity to purchase notes or any participation interests in any future mortgage loans originated by such Holder or its Affiliates, such offer shall be at such purchase price and interest rate as such Holder chooses, in its sole and absolute discretion. No Holder shall have any obligation whatsoever to purchase from one or more other Holders any notes or participation interests in any future loans originated by the other Holder or its respective Affiliates.

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

18.Transfer of Notes. (a) Each Holder agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its respective Note (a “Transfer”) except to a Qualified Institutional Lender. Promptly after any Transfer (other than any Transfer between Initial Holders or any Transfer by an Initial Holder to a Securitization Trust), non-transferring Holders shall be provided with (x) a representation from the related transferee or the applicable Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer in accordance with the immediately following sentence) and (y) a copy of an assignment and assumption agreement whereby such transferee assumes all of the obligations of the applicable Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement. If a Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first (a) obtain the consent of each non-transferring Holder and (b) if any such non-transferring Holder’s Note is held in a Securitization Trust, provide each of the applicable engaged Rating Agencies for such Securitization Trust with a Rating Agency Confirmation. Notwithstanding the foregoing, without each non-transferring Holder’s prior consent (which will not be unreasonably withheld), and, if any non-transferring Holder’s Note is held in a Securitization Trust, until a Rating Agency Confirmation is provided to each engaged Rating Agency for such Securitization Trust, no Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party and any such Transfer shall be absolutely null and void and shall vest no rights in the purported transferee. The transferring Holder agrees that it shall pay the expenses of any non-transferring Holder (including all expenses of the Master Servicer, the Special Servicer and the Trustee) and all expenses relating to any Rating Agency Confirmation in connection with any such Transfer. Notwithstanding the foregoing, each Holder shall have the right, without the need to obtain the consent of any other Holder or of any other Person or having to provide any Rating Agency Confirmation, to Transfer 49% or less (in the aggregate) of its beneficial interest in a Note to an entity that is not the Mortgage Loan Borrowers or a Mortgage Loan Borrower Related Party. None of the provisions of this Section 18(a) shall apply in the case of (1) a sale of the Lead Securitization Notes together with all of the

	51
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Non-Lead Securitization Notes, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Properties, upon the Mortgage Loan becoming a Defaulted Loan, to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust, or (3) the Transfer of any securities issued by a Securitization Trust.

(b)In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Holders’ obligations under this Agreement shall remain unchanged, (ii) such Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue to deal solely and directly with such Holder in connection with such Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Holder had not sold such participation interest.

(c)Notwithstanding any other provision hereof, any Holder may pledge (a “Pledge”) its Note to any entity (other than the Mortgage Loan Borrowers or any Affiliate thereof) which has extended a credit facility to such Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each applicable Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 18(c), it being further agreed that a financing provided by a Note Pledgee to a Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee which is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Holder to each other Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), each other Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Holder in respect of its obligations under this Agreement of which default such Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Holder in respect of its obligations to each other Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Holder; (v) that such other Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Holder; and (vi) that, upon written notice (a “Redirection Notice”) to each other Holder and any Servicer by such Note Pledgee that the pledging Holder is in default, beyond any applicable cure periods, under the pledging Holder’s obligations to such Note Pledgee pursuant to the applicable

	52
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

credit agreement between the pledging Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Holder or Servicer would otherwise be obligated to pay to the pledging Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Holder hereby unconditionally and absolutely releases each other Holder and any Servicer from any liability to the pledging Holder on account of such other Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Holder to have been delivered by a Note Pledgee. Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Holders and any Servicer shall recognize such Note Pledgee (and any transferee other than the Mortgage Loan Borrowers or any Affiliate thereof which is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 18(c) shall remain effective as to any Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.

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

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

(ii)The Conduit Credit Enhancer is a Qualified Institutional Lender;

(iii)Such Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;

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

	53
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(v) Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.

19.Other Business Activities of the Holders. Each of the Holders acknowledges that the other Holders may make loans or otherwise extend credit to, and generally engage in any kind of business with, any Affiliate of the Mortgage Loan Borrowers (“Mortgage Loan Borrower Related Parties”), and receive payments on such other loans or extensions of credit to the Mortgage Loan Borrower Related Parties and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

20.Exercise of Remedies by the Servicer.

(a)Each of the Holders acknowledges that, subject to the terms of this Agreement (including without limitation, the Controlling Holder’s rights under Section 21 hereof) and the Servicing Agreement, (i) the Lead Securitization Note Holder (or any Servicer or Trustee (if any) on its behalf) may exercise or refrain from exercising any rights that such Lead Securitization Note Holder (or such Servicer or Trustee (if any)) may have hereunder or under the Servicing Agreement in a manner that may be adverse to the interests of the other Holders, so long as such actions are in accordance with Accepted Servicing Practices and the other terms of this Agreement, (ii) the Lead Securitization Note Holder shall have no liability whatsoever to the other Holders as a result of such Lead Securitization Note Holder’s (or any Servicer’s or Trustee’s) exercise of such rights or any omission by such Lead Securitization Note Holder (or any Servicer or Trustee) to exercise such rights, except as expressly provided herein or for acts or omissions that are taken or omitted to be taken by such Lead Securitization Note Holder that constitute the gross negligence or willful misconduct of such Lead Securitization Note Holder or a breach of this Agreement, and (iii) the Servicer and the Special Servicer shall (and shall be required under the Servicing Agreement to) service and administer the Mortgage Loan on behalf of each Note A Holder and each Note B Holder (as a collective whole) in accordance with Accepted Servicing Practices, taking into account the interests of each Note A Holder and each Note B Holder; but in all cases giving due consideration to the fact that each B Note is subject and subordinate to each A Note in accordance with the terms of this Agreement. Each Note A Holder and each Note B Holder agree that the Servicer, to the extent consistent with the terms of this Agreement (including, without limitation, Section 21) and from and after the Lead Securitization Date subject to and in accordance with the Servicing Agreement, shall have the sole and exclusive authority (in each case, subject to the Accepted Servicing Practices and the terms and conditions set forth in this Agreement, and the rights of any Controlling Holder) with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole and exclusive authority (i) to modify or waive any of the terms of the Mortgage Loan Documents, (ii) to consent to any action or failure to act by the Mortgage Loan Borrowers or any party to the Mortgage Loan Documents, (iii) to vote all claims with respect to the Mortgage Loan in any bankruptcy, insolvency or other similar

	54
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

proceedings and (iv) to take legal action to enforce or protect the Holders’ interests with respect to the Mortgage Loan or to refrain from exercising any powers or rights under the Mortgage Loan Documents, including the right at any time to call or waive any Events of Default, or accelerate or refrain from accelerating the Mortgage Loan or institute any foreclosure action and in all cases acting in accordance with Accepted Servicing Practices and the terms of this Agreement and the Servicing Agreement, and except as otherwise expressly provided in this Agreement and the Servicing Agreement, the other Holders shall have no voting, consent or other rights whatsoever with respect to the Lead Securitization Note Holder’s or Servicer’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Each Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder and the Servicer and the Special Servicer the rights, if any, that such Holder has (i) to declare or cause the Lead Securitization Note Holder or the Servicer to declare an Event of Default under the Mortgage Loan (ii) to exercise any remedies with respect to the Mortgage Loan, including, without limitation, filing or causing the Lead Securitization Note Holder or the Servicer to file any bankruptcy petition against the Mortgage Loan Borrowers or (iii) to vote any claims with respect to the Mortgage Loan (including claims arising from any one or more Notes) in any bankruptcy, insolvency or similar type of proceeding of the Mortgage Loan Borrowers. Each Holder shall, from time to time, execute such documents as the Lead Securitization Note Holder, the Servicer or the Special Servicer shall reasonably request to evidence such assignment with respect to the rights described in clause (iii) of the preceding sentence. Except when acting in the capacity of trustee or paying agent, the Lead Securitization Note Holder (or the Servicer or the Special Servicer acting on behalf of such Lead Securitization Note Holder) shall not have any fiduciary duty to the other Holders in connection with the administration of the Mortgage Loan but shall in all events be obligated to act in accordance with Accepted Servicing Practices. Each Holder expressly and irrevocably waives for itself and any Person claiming through or under such Holder any and all rights that it may have under Section 1315 of the New York Real Property Actions and Proceedings Law or the provisions of any similar law that purports to give a junior noteholder, mortgagee or loan participant the right to initiate any loan enforcement or foreclosure proceedings.

(b)Notwithstanding anything to the contrary contained herein, the exercise by the Lead Securitization Note Holder (or any Servicer or the Trustee (if any) acting on its behalf) of its rights under this Section 20 shall be subject in all respects to any sections of the Servicing Agreement governing REMIC administration, and in no event shall the Lead Securitization Note Holder (or any Servicer or the Trustee (if any) acting on its behalf) be permitted to take any action or refrain from taking any action which would violate the laws of any applicable jurisdiction, breach the Mortgage Loan Documents, violate Accepted Servicing Practices or violate any other provisions of the Servicing Agreement or cause the arrangement evidenced hereby not to be treated as a “grantor trust” for Federal income tax purposes. The Lead Securitization Note Holder (or any Servicer or the Trustee (if any) acting on its behalf) shall exercise such rights and powers described in this Section 20 on the understanding that the Lead Securitization Note Holder (or any Servicer or the Trustee (if any) acting on its behalf) shall administer the Mortgage Loan in a manner consistent with the Servicing Agreement and this Agreement, provided that neither the Lead Securitization Note Holder nor any Servicer or the

	55
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Trustee (if any) acting on its behalf shall be liable to the other Holders with respect to anything the Lead Securitization Note Holder or such Servicer or the Trustee (if any) may do or omit to do in relation to the Mortgage Loan, other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, the Lead Securitization Note Holder and any Servicer or the Trustee (if any) acting on its behalf may rely on the advice of legal counsel, accountants and other experts (including those retained by the Mortgage Loan Borrowers) and upon any written communication or telephone conversation which the Lead Securitization Note Holder or such Servicer or the Trustee (if any) believes to be genuine and correct or to have been signed, sent or made by the proper Person.

(c)If title to the Mortgaged Properties are acquired for the benefit of the Holders in foreclosure, by deed-in-lieu of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or certificate of sale shall be taken in the name of the Lead Securitization Note Holder or its nominee (which shall not include any Servicer) on behalf of the Holders. The Servicer, on behalf of the Holders, shall dispose of any REO Property utilizing reasonable best efforts, consistent with Accepted Servicing Practices, to maximize the proceeds of such disposal to the Holders (as a collective whole) if and when such Servicer determines, consistent with Accepted Servicing Practices, that such disposal would be in the best economic interest of the Holders (as a collective whole). The Servicer shall (and shall be required under the Servicing Agreement to) manage, conserve, protect and operate each REO Property for the Holders solely for the purpose of its prompt disposition and sale in accordance with Accepted Servicing Practices.

(d)The Servicer shall have full power and authority, subject only to the specific requirements and prohibitions of this Agreement (including the rights of the Controlling Holder), to do any and all things in connection with any REO Property as are consistent with Accepted Servicing Practices and the terms of this Agreement, all on such terms and for such period as such Servicer deems to be in the best interests of Holders (as a collective whole) and, in connection therewith, such Servicer shall only agree to the payment of management fees that are consistent with general market standards or to terms that are more favorable to the Holders. The Servicer shall (and shall be required under the Servicing Agreement to) segregate and hold all revenues received by it with respect to any REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to any REO Property a segregated custodial account (each, an “REO Account”). The Servicer shall (and shall be required under the Servicing Agreement to) deposit or cause to be deposited in the REO Account within two Business Days after receipt all revenues received by it with respect to any REO Property (other than Liquidation Proceeds, which shall be remitted to the Collection Account), and shall withdraw therefrom funds necessary for the proper operation, management and maintenance of such REO Property and for other Costs with respect to such REO Property, including:

(i)all insurance premiums due and payable in respect of any REO Property;

(ii)all real estate taxes and assessments in respect of any REO Property that may result in the imposition of a lien thereon;

	56
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(iii) all ground rents in respect of any REO Property;

(iv)all costs and expenses reasonable and necessary to protect, maintain, manage, operate, repair and restore any REO Property; and

(v)to the extent that such REO Proceeds are insufficient for the purposes set forth in clauses (i) through (iv) above and the Servicer has provided written notice of such shortfall to the Holders of the necessity to take actions pursuant to this subsection (d), any expenditure associated with such actions taken by the Servicer shall be payable by the Holders at their option pursuant to Section 9.

(e)The Servicer shall contract with an independent contractor, the fees and expenses of which shall be an expense of the Holders and payable out of REO Proceeds, for the operation and management of any REO Property, within forty-five (45) days after the Holders’ acquisition thereof (unless the Holders approve otherwise), provided that:

(i)the terms and conditions of any such contract shall be reasonable and consistent with the terms of this Agreement and customary for the area and type of property and shall not be inconsistent herewith;

(ii)any such contract shall require, or shall be administered to require, that the independent contractor pay all costs and expenses incurred in connection with the operation and management of such REO Property, including those listed above, and remit all related revenues (net of such costs and expenses) to the Servicer as soon as practicable, but in no event later than thirty (30) days following the receipt thereof by such independent contractor;

(iii)none of the provisions of this subsection (e) relating to any such contract or to actions taken through any such independent contractor shall be deemed to relieve the Servicer of any of its duties and obligations to the Holders or the Lead Securitization Note Holder on behalf of the Holders with respect to the operation and management of any such REO Property; and

(iv)the Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property.

(f)The Servicer shall be entitled to enter into any agreement with any independent contractor performing services for it related to its duties and obligations hereunder for indemnification of such Servicer by such independent contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification. When and as necessary, the Servicer shall send to the Holders a statement prepared by the Servicer setting forth the amount of net income or net loss, as determined for federal income tax purposes, resulting from the operation and management of a trade or business on, the furnishing or rendering of a non-customary service to the tenants of, or the receipt of any other amount not constituting rents in respect of, any REO Property.

	57
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(g) With respect to the Specially Serviced Mortgage Loan or REO Property, which the Servicer has determined to sell in accordance with Accepted Servicing Practices, the Servicer shall deliver to the Holders an officers’ certificate to the effect that, the Servicer has determined to sell the Specially Serviced Mortgage Loan or REO Property in accordance with this subsection (g). The Servicer may then offer to sell to any Person the Specially Serviced Mortgage Loan which is in default or the REO Property (and shall on a monthly basis advise the Holders in writing of the status of the Specially Serviced Mortgage Loan or REO Property) or, subject to the following sentence, purchase the Specially Serviced Mortgage Loan or REO Property (in each case at the Defaulted Mortgage Loan Purchase Price), but shall, in any event, so offer to sell the REO Property no later than the time determined by the Servicer to be sufficient to result in the sale of the REO Property within the period specified in the REMIC Provisions. The Servicer shall deliver such officers’ certificate and give the Holders not less than ten (10) Business Days’ prior written notice of its intention to sell the Specially Serviced Mortgage Loan or REO Property, in which case the Servicer shall accept the highest offer received from any Person for the Specially Serviced Mortgage Loan or the REO Property in an amount at least equal to the Defaulted Mortgage Loan Purchase Price or, at its option, if it has received no offer at least equal to the Defaulted Mortgage Loan Purchase Price therefor, purchase the Specially Serviced Mortgage Loan or REO Property at the Defaulted Mortgage Loan Purchase Price.

(h)In the absence of any such offer at the Defaulted Mortgage Loan Purchase Price, or purchase by the Servicer at the Defaulted Mortgage Loan Purchase Price, such Servicer shall accept the highest offer received from any Person that is determined by such Servicer to be a fair price for the Specially Serviced Mortgage Loan or REO Property; provided, that the Lead Securitization Note Holder (or the Servicer, if the Servicer or any Affiliate of the Servicer is not an offeror) shall be entitled to engage, at the expense of the Holders, an Appraiser to determine whether the highest offer is a fair price. Notwithstanding anything to the contrary herein, neither the Mortgage Loan Borrowers nor any Mortgage Loan Borrower Related Party may make an offer or purchase the Specially Serviced Mortgage Loan or the REO Property pursuant hereto.

(i)The Servicer shall not be obligated by either of the foregoing paragraphs or otherwise to accept the highest offer if the Servicer determines, in accordance with Accepted Servicing Practices, that rejection of such offer would be in the best interests of the Holders as a collective whole. In addition, the Servicer may accept a lower offer if it determines, in accordance with Accepted Servicing Practices, that acceptance of such offer would be in the best interests of the Holders as a collective whole (for example, if the prospective buyer making the lower offer is more likely to perform its obligations, or the terms offered by the prospective buyer making the lower offer are more favorable), provided that the offeror is not the Servicer or an Affiliate of the Servicer. The Servicer shall in no event sell the Specially Serviced Mortgage Loan or the REO Property other than for cash.

(j)Subject to the other provisions of this Section 20, the Servicer shall act on behalf of the Holders in negotiating and taking other action necessary or appropriate in connection with the sale of the Specially Serviced Mortgage Loan or REO Property, including the collection of all amounts payable in connection therewith. Any sale of the Specially Serviced

	58
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Mortgage Loan or REO Property shall be without recourse to, or representation or warranty by, any Servicer or any Holder, and, if such sale is consummated in accordance with the duties of the Servicer pursuant to the terms of this Agreement, no such Person who so performed shall have any liability to any Holders with respect to the purchase price therefor accepted by the Servicer.

(k)The proceeds of any sale of the Specially Serviced Mortgage Loan or REO Property after deduction of the direct out-of-pocket expenses of such sale incurred in connection therewith shall be promptly, and in any event within one (1) Business Day (or, if received after 3:00 p.m. Eastern time, two (2) Business Days) following receipt of properly identified funds, deposited in the Collection Account. Within thirty (30) days after the sale of the REO Property, the Servicer shall provide to the Holders a statement of accounting for the REO Property, including without limitation, (i) the date of disposition of the REO Property, (ii) the gross sales price, the selling and other expenses and the net sales price, (iii) accrued interest on the Note A Principal Balance at the applicable Note Interest Rate for each A Note, and on the Note B Principal Balance at the applicable Note Interest Rate for each Note B, in each case calculated from the date of acquisition to the disposition date, and (iv) such other information as the Holders may reasonably request. The Servicer shall file information returns regarding the abandonment or foreclosure of Mortgaged Properties with the Internal Revenue Service at the time and in the manner required by the Code.

(l)The provisions of subsections (c) through (k) of this Section 20 shall be of no further force and effect from and after the Lead Securitization Date, and the analogous provisions of the Lead Securitization Servicing Agreement shall control.

21.Certain Powers of the Controlling Holder.

This Section 21 shall apply during the term of this Agreement; provided that from and after the Lead Securitization Date, (y) Section 21(c) and (d) shall be of no further force and effect and the analogous provisions of the Lead Securitization Servicing Agreement shall control, and (z) Section 21(j), (k) and (l) shall be of no further force and effect.

The following provisions shall apply during the term of this Agreement:

(a)The Controlling Holder shall be entitled to appoint (or act as) a “directing lender” (the “Directing Holder”) with respect to the Mortgage Loan and to exercise the rights and powers granted to the Directing Holder and the Controlling Holder hereunder and under the Servicing Agreement (such designation to be made by written notice to the Lead Securitization Note Holder (or the Servicer on its behalf)); provided, that if the Mortgage Loan Borrowers or any Mortgage Loan Borrower Related Party owns any portion of a B Note, the ownership interests of such Person shall be deemed to equal zero for the purposes of determining which owners can vote to elect the Directing Holder, and provided, further, that in no event may the Mortgage Loan Borrowers or any Mortgage Loan Borrower Related Party serve as the Directing Holder. Subject to the Lead Securitization Servicing Agreement, such designation shall remain in effect until it is revoked by the Controlling Holder by a writing delivered to each of the other parties hereto.

	59
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(b) Notwithstanding anything to the contrary contained herein (but subject to Section 21(d)), the Lead Securitization Note Holder (or the Servicer on its behalf) shall, prior to taking any Major Decision, be required to notify in writing the Directing Holder of any proposal to take any of such actions (and to provide the Directing Holder with such information requested by such Directing Holder as may be necessary in the reasonable judgment of such Directing Holder in order to make a judgment) and to receive the written approval of the Directing Holder (which approval may be withheld in its sole discretion);

(c)If the Directing Holder fails to notify the Lead Securitization Note Holder (or the Servicer on its behalf) of its approval or disapproval of any such Major Decision within ten (10) Business Days after delivery to the Directing Holder by the Lead Securitization Note Holder (or the Servicer on its behalf) of written notice (“Action Notice”) of such a Major Decision (which notice shall contain a legend, in capitalized, bold-faced type containing the following statement as the top of the first page: “THIS IS A REQUEST FOR MAJOR DECISION APPROVAL. IF THE DIRECTING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED MAJOR ACTION WITHIN TEN (10) BUSINESS DAYS, SUCH MAJOR DECISION WILL BE DEEMED APPROVED BY THE DIRECTING HOLDER”) together with any information requested by the Directing Holder pursuant to Section 21(b) or this Section 21(c), then if the Directing Holder fails to approve or reject the Major Decision within such ten (10) Business Day period, the Directing Holder’s approval will be deemed to have been given for such Major Decision (provided, that if the Directing Holder has failed to notify the Lead Securitization Note Holder (or the Servicer on its behalf) of its approval or disapproval of any such Major Decision within five (5) Business Days following the delivery of the related Action Notice together with any information requested by the Directing Holder pursuant to Section 21(b) or this Section 21(c), the Lead Securitization Note Holder (or the Servicer on its behalf) will be required to promptly provide to the Directing Holder a second Action Notice bearing the same legend as the first Action Notice). Notwithstanding the foregoing, any amounts funded by any Holder under the Mortgage Loan Documents as a result of (1) the making of any protective Advances or (2) interest accruals or accretions and any compounding thereof (including default interest) with respect to the Notes shall not at any time be deemed to require prior notice to the Directing Holder (except as otherwise expressly required by this Agreement) or otherwise contravene this subsection. To the extent the Mortgage Loan Borrowers request or the Servicer or Special Servicer structures, as part of a workout or otherwise, an extension of the Mortgage Loan for two or more years beyond the Maturity Date, the Servicer or Special Servicer, as applicable, shall obtain the prior written consent of the Lead Securitization Note Holder (in the same manner as the Directing Holder) in addition to the consent of the Directing Holder. The provisions of this Section 21(c) shall be of no further force and effect from and after the Lead Securitization Date, and the analogous provisions of the Servicing Agreement shall control.

(d)With respect to any proposed action requiring consultation with or approval of the Directing Holder pursuant to Section 21(b), the Lead Securitization Note Holder (or the Servicer on its behalf) shall prepare a summary of such proposed action and an analysis of whether or not such action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth the basis on which the Lead Securitization

	60
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Note Holder (or the Servicer on its behalf) made such determination, and shall promptly provide to each Holder copies of such summary and any other material documents and items reasonably necessary to make such determination by hard copy or electronic means on a timely basis. If any such proposed action is disapproved by the Directing Holder, the Servicer shall propose an alternate action (based on any counter-proposals received from the Directing Holder, to the extent such counter-proposal is consistent with Section 21(d) or, if no such counter-proposal is received by the Servicer when the disapproval of the Directing Holder is delivered to the Servicer, then based on any alternate course of action that the Lead Securitization Note Holder (or the Servicer on its behalf) may deem appropriate) until the approval of the Directing Holder is obtained; provided that if the Servicer and Directing Holder do not agree on a proposed course of action within sixty (60) days after the date on which the Servicer first proposed a course of action and the counter-proposals received from the Directing Holder would, in the judgment of the Special Servicer, be permitted to be ignored by the Special Servicer in accordance with clause (d) below, then after giving due consideration (subject to Section 21(d) hereof) to the alternatives and counterproposals, if any, provided by the Directing Holder the Lead Securitization Note Holder (or the Servicer on its behalf) shall take such action as it deems appropriate in accordance with Accepted Servicing Practices. Notwithstanding the foregoing, if in accordance with Accepted Servicing Practices, (i) the Lead Securitization Note Holder (or the Servicer on its behalf) determines that emergency action is necessary to protect the Mortgaged Properties or the interests of the Holders (as a collective whole) at a time earlier than the time that such Servicer would otherwise be entitled to take such action pursuant to this Section 21(d) or otherwise under this Agreement and (ii) such action requires consultation with and/or consent of the Directing Holder, then it shall contact the Directing Holder (by telephone, email or fax) promptly and shall discuss (unless the Directing Holder and the Lead Securitization Note Holder, as applicable, shall fail to respond in a reasonable time frame under the circumstances) the proposed action with such Directing Holder and the Lead Securitization Note Holder, as applicable, and, if the consent of the Directing Holder would ordinarily be required, attempt to reach agreement within the revised time frame prior to taking the proposed action, but shall be entitled to take the necessary emergency action within the necessary time frame regardless of whether it has been able to contact or obtained the agreement of the Directing Holder and the Lead Securitization Note Holder. If such emergency action is taken, the Lead Securitization Note Holder (or the Servicer on its behalf) will promptly notify the Directing Holder of the action so taken, the Servicer’s reasons for determining that immediate action was necessary and how the action differs from the proposed actions, if any, that had theretofore been approved by the Directing Holder. The provisions of this Section 21(d) shall be of no further force and effect from and after the Lead Securitization Date, and the analogous provisions of the Servicing Agreement shall control.

(e)The Lead Securitization Note Holder (or the Servicer on its behalf) shall be required to provide copies to each Non-Controlling Holder of any notice, information and report that is required to be provided to the Directing Holder pursuant to the Servicing Agreement with respect to any Major Decisions within the same time frame such notice, information and report is required to be provided to the Directing Holder, and the Special Servicer shall be required to consult with each Non-Controlling Holder on a strictly non-binding basis, to the extent having received such notices, information and reports, any Non-Controlling

	61
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Holder requests consultation with respect to any such Major Decisions, and consider alternative actions recommended by such Non-Controlling Holder; provided that after the expiration of a period of ten (10) Business Days from the delivery to any Non-Controlling Holder by the Lead Securitization Note Holder (or the Servicer on its behalf) of written notice of a proposed action, together with copies of the notice, information and reports, the Lead Securitization Note Holder (or the Servicer on its behalf) shall no longer be obligated to consult with such Non-Controlling Holder, whether or not such Non-Controlling Holder has responded within such ten (10) Business Day period (unless, the Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Holder set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or the Servicer on its behalf) may take any Major Decision before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or the Servicer on its behalf) determines that immediate action with respect thereto is necessary to protect the Mortgaged Properties or the interests of the Holders (as a collective whole).

In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Holder shall have the right to attend annual meetings (which may be held telephonically or in person, at the discretion of the Servicer) with the Lead Securitization Noteholder (or the Servicer on its behalf), upon reasonable notice and at times reasonably acceptable to the (or the Servicer on its behalf) in which servicing issues related to the Mortgage Loan are discussed.

(f)Notwithstanding anything herein to the contrary, no advice, direction or objection from or by the Directing Holder, as contemplated by this Section 21, or no advice, direction or objection, if any, from or by any Non-Controlling Holder, may (and the related Holder (or the Servicer on its behalf) shall ignore and act without regard to any such advice, direction or objection that such Holder (or Servicer on its behalf) has determined, in its reasonable, good faith judgment, would): (A) require or cause such Holder (or the Servicer on its behalf) to violate applicable law, the terms of the Mortgage Loan Documents or any section of this Agreement or any Servicing Agreement, including such Servicer’s obligation to act in accordance with Accepted Servicing Practices, (B) result in the imposition of federal income tax on any Securitization Trust, cause any REMIC to fail to qualify as a REMIC, (C) expose any Securitization Trust, any certificateholder of any related Securitization, the Depositor or the depositor of any Non-Lead Securitization, the Holders, the Servicer, the Trustee or the trustee of any Non-Lead Securitization, the Certificate Administrator or any certificate administrator of any Non-Lead Securitization, the operating advisor of any Non-Lead Securitization or their respective Affiliates, members, managers, officers, directors, employees or agents, to any material claim, suit or liability or (D) materially expand the scope of the Servicer’s responsibilities under this Agreement or the related Servicing Agreement.

(g)No Controlling Holder or Directing Holder shall owe any fiduciary duty to the trustee, any servicer, any special servicer, any certificateholder in any Securitization or the other Holders. No Controlling Holder or Directing Holder shall have any liability to any of the trustee, any servicer, any special servicer, any certificateholder in any Securitization or the other

	62
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Holders for any action taken, or for refraining from the taking of any action or the giving of any consent. Each Holder (by acceptance of its Note) acknowledges and agrees that (i) the Controlling Holder and the Directing Holder may each have relationships and interests that conflict with those of certificateholders in any Securitization and/or the other Holders; (ii) the Controlling Holder and the Directing Holder may act solely in their respective interests; (iii) the Controlling Holder and the Directing Holder do not have any duties to any Securitization Trust, the certificateholders in any Securitization or the other Holders; (iv) each of the Controlling Holder and the Directing Holder may take actions that favor interests of itself over the interests of the certificateholders in any Securitization and/or the other Holders; (v) neither the Controlling Holder nor the Directing Holder will have any liability whatsoever to any Securitization Trust, any party to the Lead Securitization Servicing Agreement, any party to any Non-Lead Securitization Servicing Agreement, the certificateholders in any Securitization or the other Holders or any other person (including the Borrowers) for having acted in accordance with or as permitted under the terms of the Lead Securitization Servicing Agreement and this paragraph; and (vi) the certificateholders in any Securitization or the other Holders may not take any action whatsoever against the Controlling Holder or the Directing Holder or any of the respective affiliates, directors, officers, shareholders, members, partners, agents or principals thereof as a result of the Controlling Holder or the Directing Holder having acted in accordance with the terms of and as permitted under the Lead Securitization Servicing Agreement and this paragraph.

(h)The Controlling Holder shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any such replacement Special Servicer shall be a Qualified Servicer in accordance with this Section 21(h). The Controlling Holder shall designate a Person to serve as Special Servicer by delivering to the Non-Controlling Holders, the Servicer and the then existing Special Servicer a written notice stating such designation and by satisfying the other conditions required under the Servicing Agreement (including a Rating Agency Confirmation, if required by the terms of the Servicing Agreement), and by delivering to Holder that is a Non-Lead Securitization a Rating Agency Confirmation with respect to any rated securities issued in such Non-Lead Securitization. The Controlling Holder shall promptly pay any expenses incurred by the Lead Securitization Note Holder (or the Servicer on its behalf) in connection with such replacement. The Controlling Holder shall notify the other parties hereto of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 21(h). The fees payable to any replacement Special Servicer contemplated in this Section 21(h) at any time, from and after the Lead Securitization, when the Lead Securitization Servicing Agreement is no longer in effect, shall be at then market rates for such services. Upon the occurrence of the Lead Securitization governing the servicing of the Mortgage Loan, the initial Special Servicer designated in the applicable Lead Securitization Servicing Agreement shall serve as the initial Special Servicer. If a Special Servicer Termination Event on the part of the Special Servicer has occurred that affects the Non-Controlling Holder, the Non-Controlling Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization, the Controlling Holder) to terminate the Special Servicer under the applicable Servicing Agreement solely with respect to the Mortgage Loan pursuant to

	63
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

and in accordance with the terms of the Servicing Agreement. The Controlling Holder and the Non-Controlling Holder acknowledge and agree that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at the Non-Controlling Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of the Non-Controlling Holder. From and after the Lead Securitization Date, the termination and replacement of the Special Servicer shall be governed by the Lead Securitization Servicing Agreement.

(i)[Reserved.]

(j)Notwithstanding the foregoing, within ten (10) Business Days after receipt by the Note B-1 Holder, the Note B-2 Holder, the Note B-3 Holder or the Note B-4 Holder of notice indicating that such Note B Holder is no longer the Controlling Holder, such Note B Holder may, at its option, post with the Lead Securitization Note Holder (or, if a Securitization has occurred, with the applicable Master Servicer, Special Servicer, or Trustee) (a) cash collateral for the benefit of, and reasonably acceptable to the Lead Securitization Note Holder, the Servicer or the Special Servicer, as the case may be, or (b) a Letter of Credit (in each case, if there has been a Securitization, together with documentation reasonably acceptable to the Lead Securitization Note Holder, the Servicer or the Special Servicer to create and perfect a first priority security interest in favor of the Securitization in such collateral) (to be held by Lead Securitization Note Holder in a segregated securities account solely and exclusively in the name of each Note A Holder, meeting the Rating Agency criteria for an “eligible account” on behalf of each Note A Holder) in an amount which, when added to and for this purpose considered a part of the appraised value of the Mortgaged Properties, will cause the related Note B Holder to remain the Controlling Holder (such cash or Letter of Credit, “Reserve Collateral”). The applicable Note B Holder may make such election upon written notice to the Lead Securitization Note Holder of its intention to post Reserve Collateral, and upon notifying Lead Securitization Note Holder of such intention, such Note B Holder shall post such Reserve Collateral as quickly as practicable (but in no event more than three (3) Business Days following the receipt of the above notice) by delivering such Reserve Collateral to Lead Securitization Note Holder. The applicable Note B Holder shall grant to and create in favor of each Note A Holder a first priority perfected pledge and security interest in the Reserve Collateral in a manner reasonably satisfactory to Lead Securitization Note Holder. Lead Securitization Note Holder will require an opinion, in form and substance and from counsel reasonably acceptable to Lead Securitization Note Holder, regarding the validity, perfection and priority of each Note A Holder’s interest in any Reserve Collateral. In addition, the applicable Note B Holder shall pay or cause to be paid any and all reasonable out of pocket costs and expenses incurred by each Note A Holder (and any servicing party on its behalf) associated with the delivery and/or pledge of such Reserve Collateral, including the costs and expenses of any opinion of counsel. Upon the posting of such Reserve Collateral and satisfaction of the other conditions set forth above, the applicable Note B Holder shall be entitled to exercise all of the rights of the Controlling Holder hereunder; provided, however, that such posting of such collateral and such satisfaction of conditions shall not prevent such Note B Holder from losing its status as the Controlling Holder again (provided that such collateral shall be taken into account in determining the Mortgaged Properties’ value when calculating whether such Note B Holder is no longer the Controlling Holder), in which

	64
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

event the foregoing provisions of this paragraph shall not again apply and such Note B Holder shall not again be entitled to post Reserve Collateral. Any Reserve Collateral shall be treated as an “outside reserve fund” for purposes of the REMIC provisions of the Internal Revenue Code of 1986, as amended, and such property (and the right to reimbursement of any amounts with respect thereto from a REMIC) shall be beneficially owned by such Note B Holder, who shall be taxed on all income with respect thereto. The provisions of this Section 21(j) shall be of no further force and effect from and after the Lead Securitization Date.

(k)Following a Final Recovery Determination with respect to the Mortgage Loan and application of all proceeds of the liquidation of the Mortgage Loan, the Mortgaged Properties or any REO Property, the Lead Securitization Note Holder (or the Servicer on its behalf) shall be entitled to draw on or liquidate the Reserve Collateral and apply the proceeds thereof to reimburse each Note A Holder for any Trust Fund Expense or Realized Loss borne or experienced by each Note A Holder, plus interest thereon from the date such Trust Fund Expenses or Realized Loss was borne or experienced to the date of reimbursement. Within ten (10) Business Days following such Final Recovery Determination and application, the Lead Securitization Note Holder (or the Servicer on its behalf) shall pay any remaining portion of such proceeds of the Reserve Collateral to the Note B Holder. The provisions of this Section 21(k) shall be of no further force and effect from and after the Lead Securitization Date.

(l)Notwithstanding the foregoing, if a Letter of Credit is posted as Reserve Collateral, then the related Note B Holder shall provide a replacement Letter of Credit from an Approved Bank in form and substance satisfactory to Lead Securitization Note Holder and each of such Rating Agencies (i) at least fifteen (15) Business Days before the expiration of the delivered Letter of Credit, and (ii) if the issuer of such Letter of Credit is at any time not an Approved Bank, within five (5) Business Days following written notice from Lead Securitization Note Holder to such effect. If the related Note B Holder does not effect such a replacement within the periods set forth in the preceding sentence, the Lead Securitization Note Holder shall be entitled immediately thereupon to draw on such Letter of Credit to the full extent of the amount then remaining available thereunder, in which case Lead Securitization Note Holder shall hold the proceeds of such draw as Reserve Collateral and shall be entitled to hold and apply such Reserve Collateral in the manner and for the purposes otherwise set forth above and below. The provisions of this Section 21(l) shall be of no further force and effect from and after the Lead Securitization Date.

22.Further Assurances. Each Holder acknowledges and agrees that each Holder may sell all or any portion of its respective Note, subject to the rights of the other Holders and the terms of this Agreement, and the related Mortgage Loan Documents in connection with the related Securitization. At the request and at the sole cost and expense of a requesting Holder, and to the extent not already required to be provided by the other Holders under this Agreement, each Holder shall reasonably cooperate with such requesting Holder and take such steps as may be reasonably required by such requesting Holder or any Rating Agency in order to satisfy the market standards to which the requesting Holder customarily adheres or which may be reasonably required by the Rating Agencies in connection with the related Securitization. Such cooperation shall include, without limitation, each Holder’s agreement to:

	65
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(a) execute such amendments to this Agreement as may be requested by the requesting Holder or the Rating Agencies to effect the related Securitization, provided that no such amendments shall materially and adversely affect any of the rights or remedies granted to any Note A Holder or Note B Holder hereunder (including, without limitation, the timing and amount of payment and the rights granted to a “Controlling Holder” or “Directing Holder”) or increase the obligations of such Holder hereunder;

(b)cooperate with the reasonable requests from third-party service providers engaged by the requesting Holder to obtain, collect, and deliver information requested or required by such Note A Holder or the Rating Agencies in connection with the Holders, the Notes or the Mortgage Loan; and

(c)execute amendments to the Mortgage Loan Documents to further sever the Notes.

Notwithstanding the foregoing, in no event shall any Holder take any action or refrain from taking any action that would violate any law of any applicable jurisdiction, would be inconsistent with Accepted Servicing Practices or would violate the REMIC Provisions of the Servicing Agreement or any other provision of this Agreement or the Servicing Agreement.

23.Reserved.

24.No Pledge or Loan. This Agreement shall not be deemed to represent a pledge of any interest in the Mortgage Loan by any one or more Holders to any one or more other Holders, or a loan from any one or more Holders to any one or more other Holders. The Note B Holder shall have not any interest in any property taken as security for the Mortgage Loan; provided, however, that if any such property or the proceeds thereof shall be applied in respect of payments due under the Mortgage Loan, then the Note B Holder shall be entitled to receive its share of such application in accordance with the terms of this Agreement and/or the Servicing Agreement.

25.Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

26.Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto. The party seeking modification of this Agreement shall be solely responsible for any and all reasonable expenses that may arise in order to modify this Agreement. Additionally, from and after a Securitization, the Holders shall not amend or modify this Agreement without first receiving (i) an opinion of counsel experienced in REMIC matters that such amendment or modification, in and of itself,

	66
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

would not adversely affect the REMIC status of the Mortgage Loan or this Agreement, and (ii) a Rating Agency Confirmation, except that no Rating Agency Confirmation shall be required in connection with a modification (x) prior to the Lead Securitization Date, (y) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provisions herein or with the Servicing Agreement, or (z) to make other provisions with respect to matters or questions arising under this Agreement, which shall not be inconsistent with the provisions of this Agreement, and (iii) if such modification, cancellation or termination would adversely affect the rights or materially affect the duties of any Servicer or Trustee, the written consent of such affected party.

27.Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided, that no successors or assigns of any Initial Note A Holder or Initial Note B Holder shall have any liability for a breach of representation or warranty set forth in this Agreement. Each Servicer and Trustee (if any) and each servicer and trustee of any Non-Lead Securitization is an intended third-party beneficiary of this Agreement. Except as provided in Section 8 and the preceding sentence, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto or a successor or assign of a party hereto.

28.Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature,” and words of like import as used above and elsewhere in this Agreement or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

	67
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

30.Notices. All notices required hereunder shall be given by (i) telephone (confirmed in writing) or shall be in writing and personally delivered, (ii) sent by facsimile transmission if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (iii) reputable overnight delivery service (charges prepaid) or (iv) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt or, if mailed, upon the earlier to occur of receipt or the expiration of the fourth (4^th) day following the date of mailing.

31.Holder’s Access to Information. The Lead Securitization Note Holder (or the Interim Servicer) shall provide to the other Holders and, from and after the Lead Securitization Date, the Lead Securitization Servicing Agreement shall provide that such other Holders shall have access to, upon written request to the Servicer or the Trustee, as applicable, subject to any restrictions on the distribution of such information contained in the Lead Securitization Servicing Agreement, (a) a summary of the current status of principal and interest payments on the Mortgage Loan, (b) copies of the Mortgage Loan Borrowers’ current financial statements, to the extent in the Servicer’s possession, (c) the most recent appraisal, if any, as to the value of the Mortgaged Properties, to the extent in the Servicer’s possession, (d) a copy of the Lead Securitization Servicing Agreement, (e) copies of any default or acceleration notices sent to the Mortgage Loan Borrowers with respect to the Mortgage Loan and all material correspondence related thereto, (f) material notices delivered to any Servicer by the Mortgage Loan Borrowers, (g) copies of each other report provided to the Certificateholders in accordance with the express terms of the Lead Securitization Servicing Agreement (but only to the extent such other reports relate to the Mortgage Loan or the Mortgage Loan Borrowers), and (h) other information with respect to the Mortgage Loan Borrowers or the Mortgage Loan, reasonably requested by such other Holder, to the extent required to be provided by the Servicer under the Lead Securitization Servicing Agreement and in the Servicer’s possession or reasonably obtainable by the Servicer, in each case at the sole cost and expense of such other Holder, to the extent not included in the regular fees and charges of the Servicer (with respect to all out-of-pocket and the reasonable administrative and photocopying costs of the Servicer).

32.Custody of Mortgage Loan Documents. Prior to the Lead Securitization Date, the originals of all of the Mortgage Loan Documents (other than the Notes, which will be held by the Holders thereof) will be held by a third-party custodian jointly selected by the Holders. From and after the Lead Securitization Date, originals of all of the Mortgage Loan Documents (other than the Non-Standalone Notes not included in the Lead Securitization, which will be held by the Holders thereof) shall be held by the Servicer, Trustee or custodian on its behalf, or other applicable Person under the Lead Securitization Servicing Agreement.

	68
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

33. Statement of Intent. It is the intention of the parties hereto that, for purposes of federal income taxes, state and local income and franchise taxes and any other taxes imposed upon, measured by or based upon gross or net income, this Agreement shall be treated as creating a “grantor trust” (within the meaning of Code Section 671). The terms of this Agreement shall be interpreted to further this intention of the parties. The parties hereto agree that, unless otherwise required by appropriate tax authorities, the Lead Securitization Note Holder (or the Trustee (if any) or any other party so designated under the Lead Securitization Agreement on its behalf) shall file or cause to be filed annual or other necessary returns, reports and other forms consistent with such intended characterization. Each other Holders by its acceptance of its interest herein, agrees, unless otherwise required by appropriate tax authorities, to file its own tax returns and reports in a manner consistent with such characterization. If the Internal Revenue Service were to characterize this Agreement as a partnership for federal income tax purposes, then each such other Holders authorizes and directs the Lead Securitization Note Holder to elect out of partnership accounting pursuant to Treasury Regulation Section 1.761-2, and agrees to file its own tax returns and reports in a manner consistent therewith.

34.Powers. Except as expressly provided herein, the grantor trust created pursuant to this Agreement will not engage in any activity that is inconsistent with the classification of this arrangement as a grantor trust for federal income tax purposes. Further, this grantor trust shall not (a) acquire any additional assets or (b) modify (or agree to the modification of) or dispose of its assets other than pursuant to the terms hereof. The grantor trust shall take no action (or fail to take any action) that will cause it (by the taking or by the failure to take, as the case may be) to be classified as other than a grantor trust for federal income tax purposes.

35.Servicers of the Mortgage Loan. KeyBank National Association is hereby appointed by the Holders as the interim servicer of the Mortgage Loan. From and after the Lead Securitization Date, pursuant to this Agreement and the Lead Securitization Servicing Agreement, KeyBank National Association will be appointed as the initial master servicer of the Trust Loan and the primary servicer of the Mortgage Loan and Situs Holdings, LLC will be appointed as the initial special servicer of the Mortgage Loan. Prior to the Lead Securitization Date, the Lead Securitization Note Holder shall have the right to appoint and remove the Interim Servicer with or without cause under this Agreement and from and after the Lead Securitization Date, the Lead Securitization Note Holder shall have the right to appoint and remove the Master Servicer and the Special Servicer in accordance with the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Servicer and/or the Special Servicer (except as set forth in the preceding sentence) and, to the extent applicable, the Certificate Administrator, the Trustee or the paying agent on behalf of the Lead Securitization Note Holder and the other Holders agree to cooperate with any such Persons with respect to its exercise of such rights and obligations.

36.Registration of Transfers. The Lead Securitization Note Holder (or the applicable Servicer or the Trustee on its behalf) shall maintain a register on which it shall record the names and addresses of, and wire transfer instructions for, the Holders from time to time, to the extent such information is provided in writing to it by any other Holders. Any transfer of a

	69
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Note hereunder shall be recorded on such register. The transferring Holder (or the transferee) shall reimburse the Lead Securitization Note Holder for the Lead Securitization Note Holder’s reasonable third party out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with the terms of this Section 36.

37.Non-Recourse Obligations of the Holders. Notwithstanding anything to the contrary contained herein or the Servicing Agreement (but subject to Section 10 and Section 40 hereof), no Holder shall be personally liable hereunder or under the Servicing Agreement other than to the extent of cash, property or other value realized or derived from its Note either (i) prior to its disbursement and receipt by the Holder or (ii) after its receipt by the Holder under the circumstances and to the extent provided under Section 8(b) hereof.

38.[Reserved.]

39.Withholding Taxes.

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

(b)Each Holder shall and hereby agrees to indemnify the Lead Securitization Note Holder (or any Servicer on its behalf) against and hold the Lead Securitization Note Holder (or any Servicer on its behalf) harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder (or any Servicer on its behalf) to withhold Taxes from payment made to such Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder (or any Servicer on its behalf) to withhold Taxes from payments made to such Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Holder shall, upon request of the Lead Securitization Note Holder and at its sole cost and expense, defend any claim or action relating to the foregoing indemnification using counsel reasonably satisfactory to the Lead Securitization Note Holder.

(c)Each Holder represents to the Lead Securitization Note Holder (for the benefit of the Mortgage Loan Borrowers) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrowers are obligated under

	70
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

40.Cooperation in Securitization; Re-Sizing of A Note; Provisions Relating to Securitization.

(a)In connection with the Lead Securitization or any Non-Lead Securitization, Note B Holders hereby consent to the inclusion in any disclosure document relating to the Lead Securitization or such Non-Lead Securitization of the identity of the Note B Holders and the identification of other Persons that control the related B Note (other than the identification of its limited partners or other non-controlling investors). Note B Holders covenant and agree that in the event any A Note is to be included as an asset of the Lead Securitization or any Non-Lead Securitization, Note B Holders shall, at the related Initial Note A Holder’s sole cost and expense (including, without limitation, attorneys’ fees and disbursements reasonably incurred by Note B Holders) and request, (i) meet with representatives of the Rating Agencies to discuss the business and operations of Note B Holders, (ii) cooperate with the reasonable requests of each Rating Agency and such Initial Note A Holder in connection with the Lead Securitization or such Non-Lead Securitization, as well as in connection with all other matters and the preparation of any offering documents thereof and (iii) review and respond promptly with respect to any information (except as permitted above) relating to Note B Holders in the Lead Securitization or such Non-Lead Securitization document.

(b)Notwithstanding any other provision of this Agreement, for so long as any Initial Holder or any affiliate thereof (an “Initial Holder Entity”) is the owner of an A Note (each, an “Owned Note”), such Initial Holder Entity shall have the right, subject to the terms of the

	71
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Mortgage Loan Documents, to cause the Mortgage Loan Borrowers to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of an Owned Note to such New Notes; or severing an Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of such Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of such Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all New Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, (iv) the Initial Holder Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts, and (v) the execution of such amendments and New Notes does not violate Accepted Servicing Practices. If the Lead Securitization Note Holder so requests, the Initial Holder Entity holding the New Notes (and any subsequent holder of such Notes) shall execute a confirmation of the continuing applicability of this Agreement to the New Notes, as so modified. In connection with the foregoing (provided the conditions set forth in (i) through (v) above are satisfied, with respect to (i) through (iv), as certified by the applicable Initial Holder Entity, on which certification the Master Servicer can rely), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Holders, as applicable, solely for the purpose of reflecting such reallocation of principal.

(c)The Lead Securitization Note Holder acknowledges and agrees that it shall cause the Lead Securitization Servicing Agreement to provide that (and, to the extent such provisions are not included in the Lead Securitization Servicing Agreement they shall be deemed incorporated therein and made a part thereof):

(i)the Master Servicer, Special Servicer and Trustee for such Lead Securitization shall be required to notify the master servicer, the special servicer and the trustee under each Non-Lead Securitization Servicing Agreement of the amount of any P&I Advance it has made with respect to the Standalone Notes included in the Lead Securitization Trust or Property Advances it has made with respect to the Mortgaged Properties within two (2) Business Days of making any such advance;

(ii)if the Master Servicer determines that a proposed P&I Advance or Property Advance, if made, or any outstanding P&I Advance or Property Advance previously made, would be, or is, as applicable, a “nonrecoverable advance,” the Master Servicer shall provide the servicers under any Non-Lead Securitization Servicing Agreement written notice of such determination within two (2) Business Days after such determination was made and such determination with regard to any Property Advance shall be binding on the servicers under the Non-Lead Securitization Servicing Agreement;

(iii)the Master Servicer shall remit all payments received (or advanced) with respect to each Non-Standalone Note, net of the Servicing Fee payable with respect to

	72
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

each such Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Holders of such Notes on or prior to the Remittance Date;

(iv)with respect to each other Note that is held by a Non-Lead Securitization, the Master Servicer shall make available all reports constituting the “CREFC^® Investor Reporting Package (CREFC^® IRP)” (excluding any templates) pursuant to the terms of the Lead Securitization Servicing Agreement;

(v)the Master Servicer and Special Servicer shall provide to each Non-Standalone Note Holder all documents and other information regarding the Mortgage Loan provided to the “Controlling Class Representative” (or analogous term), as such term is defined in the Lead Securitization Servicing Agreement, pursuant to the terms and conditions of the Lead Securitization Servicing Agreement at the time provided to such Controlling Class Representative;

(vi)the servicing duties of each of the Master Servicer and Special Servicer under the Lead Securitization Servicing Agreement shall include the duty to service the Mortgage Loan and all of the Notes on behalf of the Holders (including the respective trustees and certificateholders) in accordance with the terms and provisions of this Agreement, the Lead Securitization Servicing Agreement and Accepted Servicing Practices;

(vii)the Holders of the Non-Standalone Notes shall be entitled to the same indemnity by the applicable parties to the Lead Securitization Servicing Agreement with respect to the Mortgage Loan as the applicable parties to the Lead Securitization Servicing Agreement are provided with respect to the Mortgage Loan under the Lead Securitization Servicing Agreement; the Master Servicer, any primary servicer, the Special Servicer, the trustee and the certificate administrator shall be required to indemnify each “certification party” and the depositors under each Non-Lead Securitization Servicing Agreement related to any public Non-Lead Securitization to the same extent that they indemnify the Lead Securitization “certification party” and depositor for their failure to deliver the items in clause (viii) below in a timely manner and for any Deficient Exchange Act Deliverable (as defined in the Lead Securitization Servicing Agreement or any similar term thereto) regarding, and delivered by or on behalf of, such party;

(viii)with respect to any Non-Lead Securitization that is subject to following reporting requirements under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer and the Trustee, certificate administrator or other party acting as custodian under the Lead Securitization Servicing Agreement shall be required to (1) deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver), in a timely manner,

	73
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

(i) the reports, certifications, compliance statements, accountants’ assessments and attestations, information to be included in reports (including, without limitation, Form 15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in each of the Non-Lead Securitization Servicing Agreements as the parties to the applicable Non-Lead Securitization may require in order to comply with their obligations under the Securities Act of 1933, as amended, Securities Exchange Act of 1934 (including Rule 15Ga-1), as amended, and Regulation AB, and any other applicable law, and (2) to the extent applicable, to cooperate with any depositor in a Non-Lead Securitization in responding to comments from the Commission regarding any materials provided by such party in the immediately preceding clause (1), and (b) without limiting the generality of the foregoing, the Depositor for the Lead Securitization shall provide in a timely manner to the depositor and the trustee for any Non-Lead Securitization a copy of the Lead Securitization Servicing Agreement and each of the Master Servicer, the Special Servicer, Trustee, certificate administrator or other party acting as custodian for the Lead Securitization will be required to provide to the depositor, at the expense of the requesting party, and the trustee for any Non-Lead Securitization, any other disclosure information required pursuant to Regulation AB or the Securities Exchange Act of 1934, as amended, in a timely manner for inclusion in any disclosure document or Form 8-K filing and market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization. The Master Servicer, any primary servicer and the Special Servicer shall each be required to provide certification and indemnification to any Certifying Person with respect to any applicable Sarbanes-Oxley Certification (or analogous terms) as such terms are defined in the related Non-Lead Securitization Servicing Agreement;

(ix)each of the Master Servicer, the Special Servicer, the custodian, the Trustee and the certificate administrator and each Affected Reporting Party (as defined in the Lead Securitization Servicing Agreement) shall cooperate (and require each Servicing Function Participant (as defined in the Lead Securitization Servicing Agreement) and Additional Servicer (as defined in the Lead Securitization Servicing Agreement) retained by it to cooperate under any applicable sub-servicing agreement), with each depositor for a Non-Lead Securitization (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination, and paying all costs and expenses incurred in connection therewith) to the same extent as such party is required to cooperate with (and pay the expenses of) the Depositor under the Lead Securitization Servicing Agreement in connection with Deficient Exchange Act Deliverables (as defined in the Lead Securitization Servicing Agreement);

(x)amounts received by the Master Servicer that represent late collections or principal prepayments on the Non-Standalone Notes, net of any portion thereof payable or reimbursable to any third party in accordance with this Agreement, shall be remitted by the Master Servicer to the Holders of such Non-Standalone Notes within one (1) Business Day of receipt of properly identified funds; provided, however, to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collection or

	74
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

principal prepayments to the master servicer of any applicable Non-Lead Securitization within one (1) Business Day of receipt of properly identified funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified funds;

(xi)each Holder of a Non-Standalone Note is an intended third-party beneficiary in respect of the rights afforded them under the Lead Securitization Servicing Agreement and the related non-lead master servicers will be entitled to enforce the rights of the Holders of the Non-Standalone Notes under this Agreement and the Lead Securitization Servicing Agreement;

(xii)each master servicer, special servicer and trustee under any Non-Lead Securitization Servicing Agreement shall be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such master servicer, special servicer or trustee, as the case may be, and the provisions regarding coordination of advances made in respect of any Note under the Lead Securitization Servicing Agreement and any Non-Lead Securitization Servicing Agreement, as applicable;

(xiii)if the Mortgage Loan becomes a Specially Serviced Mortgage Loan and the Special Servicer determines to sell any of the Standalone Notes in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell all of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notice to each Non-Controlling Holder of the planned sale and of such Non-Controlling Holder’s opportunity to bid on the Mortgage Loan;

(xiv)the Lead Securitization Servicing Agreement shall not be amended in any manner that adversely affects in any material respects the Non-Standalone Note Holders without the consent of such Holders;

(xv)to the extent related to the Mortgage Loan, the Master Servicer or the Special Servicer, Rating Agency Confirmation shall be provided with respect to the Non-Lead Securitization certificates to the same extent provided with respect to the certificates issued in connection with the Lead Securitization;

(xvi)Servicer Termination Events (as defined in the Lead Securitization Servicing Agreement or analogous term) with respect to the Master Servicer and the Special Servicer shall include (i) the failure to remit payments to the Holder of any Non-Standalone Note as and when required by this Agreement and the Lead Securitization Servicing Agreement; (ii) the qualification, downgrade or withdrawal of ratings of any class of certificates in any Non-Lead Securitization, publicly citing servicing concerns with the Master Servicer or the Special Servicer, as applicable, as the sole or material factor in such rating action (and such qualification, downgrade or withdrawal has not been withdrawn within 60 days of such event); and (iii) the failure to provide to the Holder of any Non-Standalone Note (if and to the extent required under the Lead

	75
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Securitization Servicing Agreement) reports required under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, within the time necessary for compliance in the Lead Securitization Servicing Agreement (which shall be sufficient for the Holders of the Non-Standalone Notes to comply with the applicable filing requirements). Upon the occurrence of a Servicer Termination Event with respect to a Holder of any Non-Standalone Note, the related Trustee under the Lead Securitization shall, upon the direction of the Holder of such Non-Standalone Note, require (i) in the case of a Servicer Termination Event relating to the Master Servicer, the appointment of a subservicer with respect to the related Note or (ii) in the case of a Servicer Termination Event relating to the Special Servicer, the termination of the Special Servicer;

(xvii)the Special Servicing Fee for the Mortgage Loan and any related REO Property shall be calculated at a rate not in excess of 25 basis points (0.25%) per annum and shall accrue only while the Mortgage Loan is specially serviced or after the Mortgaged Properties have become REO Property;

(xviii)subject to various adjustments and caps provided for in the Lead Securitization Servicing Agreement, the Liquidation Fee for the Mortgage Loan if it is a Specially Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable shall not exceed 0.50% of the proceeds of a full, partial or discounted payoff or the Net Liquidation Proceeds (as defined in the Lead Securitization Servicing Agreement) related to a liquidation or repurchase of the Mortgage Loan, in each case exclusive of any portion of such payoff or Net Liquidation Proceeds (as defined in the Lead Securitization Servicing Agreement) that represents Penalty Charges;

(xix)subject to various adjustments and caps provided for in the Lead Securitization Servicing Agreement, the Workout Fee (as defined in the Lead Securitization Servicing Agreement) for the Mortgage Loan shall not exceed 0.50% of each collection of interest and principal on the Mortgage Loan;

(xx)the Trustee under the Lead Securitization Servicing Agreement shall promptly notify the trustee and the master servicer under any Non-Lead Securitization Servicing Agreement of any resignation, termination or replacement of the Master Servicer, the Special Servicer or an applicable primary servicer or the effectiveness of any designation of a new Master Servicer, Special Servicer or applicable primary servicer (together with the relevant contact information); and

(xxi)any conflict between terms of this Agreement and the Lead Securitization Servicing Agreement shall be resolved in favor of this Agreement.

(d)Each Non-Standalone Note Holder acknowledges and agrees that it shall cause the Non-Lead Securitization Servicing Agreement related to the Non-Lead Securitization that includes its Non-Standalone Note to provide that:

(i)the applicable master servicer, special servicer and trustee for such Non-Lead Securitization shall be required to notify the master servicer, special servicer and

	76
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

trustee of the Lead Securitization and each other Non-Lead Securitization of any monthly principal and interest advance it has made with respect to the applicable Note included in such Non-Lead Securitization within two Business Days of making such advance;

(ii)if the applicable master servicer, special servicer or trustee determines that a proposed monthly principal and interest advance with respect to the related Note, if made, or any outstanding monthly principal and interest advance previously made, would be, or is, as applicable, a “nonrecoverable advance,” the master servicer shall provide the Master Servicer and each master servicer in any other Non-Lead Securitization written notice of such determination within 2 Business Days after such determination was made;

(iii)if the related Holder of such Note is responsible for its proportionate share of any Nonrecoverable Property Advances (or any other portion of a Nonrecoverable Property Advance) (and Advance Interest Amount thereon) or other fee or expense pursuant to Section 9, and that if funds received with respect to such Note are insufficient to cover such amounts, the related master servicer under the related Non-Lead Securitization Servicing Agreement will be required to pay the Master Servicer, Special Servicer or Trustee under the Lead Securitization Servicing Agreement, as applicable, out of general funds in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement (provided that this subclause (iii) shall not apply to Nonrecoverable P&I Advances relating to any Standalone Notes);

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

(v)(a) each of the Master Servicer and the Trustee under the Lead Securitization Servicing Agreement will be a third party beneficiary under the applicable Non-Lead Securitization Servicing Agreement with respect to any provisions therein relating to (1) the reimbursement of any Nonrecoverable Property Advances made with respect to applicable Note included in such Non-Lead Securitization by the Master Servicer or the Trustee under the Lead Securitization Servicing Agreement and (2) as to the Master Servicer only, the indemnification of the Master Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any Non-Lead Securitization Servicing Agreement and relating to the applicable Note included in such Non-Lead Securitization and (b) the Special Servicer will be a third party beneficiary under the related Non-Lead Securitization Servicing Agreement with respect to any

	77
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

provisions therein relating to (1) the reimbursement of any Nonrecoverable Property Advances made with respect to such Note included in such Non-Lead Securitization by the Special Servicer (it being understood that the Special Servicer is not required to make any Property Advances) and (2) the indemnification of the Special Servicer against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses, incurred in connection with any Non-Lead Securitization Servicing Agreement and relating to the applicable Note included in such Non-Lead Securitization; and

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

(e)Each Non-Standalone Note Holder shall give each of the parties to the Lead Securitization Servicing Agreement and any related Non-Lead Securitization Servicing Agreement (in each case, that will not also be a party to such Non-Lead Securitization Servicing Agreement related to the Non-Lead Securitization that will include such Holder’s Non-Standalone Note) notice of the related Non-Lead Securitization in writing (which may be by e-mail) not less than 5 Business Days’ prior to the closing of such Non-Lead Securitization. Such notice shall contain contact information for each of the parties to the applicable Non-Lead Securitization Servicing Agreement. In addition, after the closing of the applicable Non-Lead Securitization, such Non-Standalone Note Holder shall send (i) a copy of the related Non-Lead Securitization Servicing Agreement to each of the parties to the Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the master servicer under the Non-Lead Securitization Servicing Agreement or the party designated to exercise the rights of the Non-Controlling Holder under this Agreement (together with the relevant contact information).

(f)Following the closing of the Lead Securitization, upon receipt of written notice (which may be by email) of the closing of any Non-Lead Securitization, the Depositor shall provide the depositor under the related Non-Lead Securitization Servicing Agreement with a copy of the Lead Securitization Servicing Agreement in an EDGAR-compatible format.

(g)In the event that a Non-Lead Securitization closes prior to the Lead Securitization, the Holder selling its Note into a Securitization that will be the Lead Securitization shall provide written notice of such Lead Securitization to the depositor and trustee of each Non-Lead Securitization and, promptly upon the execution of the Lead Securitization Servicing Agreement (but not later than one Business Day after the day on which such document is executed), shall provide a copy of the Lead Securitization Servicing Agreement in an EDGAR-compatible format.

[NO FURTHER TEXT ON THIS PAGE]

	78
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

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

DBR INVESTMENTS CO. LIMITED, as an Initial Note A Holder
By:	/s/ Murray Mackinnon
	Name:	Murray Mackinnon
	Title:	Director

By:	/s/ Andrew Mullin
	Name:	Andrew Mullin
	Title:	Managing Director

BANK OF AMERICA, N.A., as an Initial Note A Holder
By:	/s/ Theresa Dooley-Bollmann
	Name:	Theresa Dooley-Bollmann
	Title:	Director

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as an Initial Note A Holder
By:	/s/ Bradley Horn
	Name:	Bradley Horn
	Title:	Executive Director

3650 CAL BRIDGE LENDING, LLC, as an Initial Note A Holder
By:	3650 Bridge Cal-SMA Manager LLC, its Manager
By:	/s/ Tobin Cobb
	Name:	Tobin Cobb
	Title:	Managing Partner

Co-Lender Agreement

(Cambridge Crossing – 350 and 450 Water Street)

DBR INVESTMENTS CO. LIMITED, as Initial Note B-1 Holder
By:	/s/ Murray Mackinnon
	Name:	Murray Mackinnon
	Title:	Director

By:	/s/ Andrew Mullin
	Name:	Andrew Mullin
	Title:	Managing Director

BANK OF AMERICA, N.A., as Initial Note B-2 Holder
By:	/s/ Theresa Dooley-Bollmann
	Name:	Theresa Dooley-Bollmann
	Title:	Director

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Initial Note B-3 Holder
By:	/s/ Bradley Horn
	Name:	Bradley Horn
	Title:	Executive Director

3650 CAL BRIDGE LENDING, LLC, as Initial Note B-4 Holder
By:	3650 Bridge Cal-SMA Manager LLC, its Manager
By:	/s/ Tobin Cobb
	Name:	Tobin Cobb
	Title:	Managing Partner

Co-Lender Agreement

(Cambridge Crossing – 350 and 450 Water Street)

SCHEDULE 1

Permitted Fund Managers

1.	AllianceBernstein
2.	Annaly Capital Management
3.	Apollo Real Estate Advisors
4.	Archon Capital, L.P.
5.	AREA Property Partners
6.	Artemis Real Estate Partners
7.	BlackRock, Inc.
8.	Clarion Partners
9.	Colony Northstar, Inc.
10.	DLJ Real Estate Capital Partners
11.	Dune Real Estate Partners
12.	Eightfold Real Estate Capital, L.P.
13.	Five Mile Capital Partners
14.	Fortress Investment Group, LLC
15.	Garrison Investment Group
16.	H/2 Capital Partners LLC
17.	Hudson Advisors
18.	Investcorp International
19.	iStar Financial Inc.
20.	J.P. Morgan Investment Management Inc.
21.	JER Partners
22.	Lend-Lease Real Estate Investments
23.	Libermax Capital LLC
24.	LoanCore Capital
25.	Lone Star Funds
26.	Lowe Enterprises
27.	Normandy Real Estate Partners
28.	Och-Ziff Capital Management Group
29.	Praedium Group
30.	Raith Capital Partners, LLC
31.	Rialto Capital Management LLC
32.	Rialto Capital Advisors LLC
33.	Rockpoint Group
34.	Rockwood
35.	RREEF Funds
36.	Square Mile Capital Management
37.	The Blackstone Group
38.	The Carlyle Group
39.	Torchlight Investors
40.	Walton Street Capital, L.L.C.
41.	Westbrook Partners
42.	Wheelock Street Capital
43.	Whitehall Street Real Estate Fund, L.P.

	S-1
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

42.	Wheelock Street Capital
43.	Whitehall Street Real Estate Fund, L.P.

	S-2
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

EXHIBIT A

MORTGAGE LOAN SCHEDULE

Part A. Description of Mortgage Loan

Mortgage Loan Borrowers:	DW Propco G, LLC; DW Propco H, LLC
Date of Mortgage Loan:	October 14, 2021
Initial Principal Amount of Mortgage Loan:	$1,225,000,000
Closing Date Mortgage Loan Principal Balance:	$1,225,000,000
Location of Mortgaged Properties:	Cambridge, Massachusetts
Current Use of Mortgaged Properties:	Office
Mortgage Interest Rate:	2.792% per annum (the weighted average of the Note Interest Rates for all of the Notes, weighted according to the principal balances of the Notes), as of the date hereof
Mortgage Default Rate:	A rate per annum equal to (x) with respect to Note A, the lesser of (i) the Maximum Legal Rate (as defined in the Mortgage Loan Agreement) or (ii) 5.0% above the interest rate specified in clause (a) of the definitions (as defined in the Mortgage Loan Agreement) of “Initial Note A Interest Rate” or “Adjusted Note A Interest Rate”, as applicable, and (y) with respect to Note B, the lesser of (i) the Maximum Legal Rate (as defined in the Mortgage Loan Agreement) or (ii) 5.0% above the interest rate specified in clause (a) of the definitions (as defined in the Mortgage Loan Agreement) of “Initial Note B Interest Rate” or “Adjusted Note B Interest Rate”, as applicable.
Anticipated Repayment Date:	November 6, 2031
Maturity Date:	November 6, 2036

	A-1
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Prepayment Premium: An amount equal to the greater of (i) the Yield Maintenance Amount, or (ii) 1% of the unpaid principal balance of the Notes as of the repayment date. “Yield Maintenance Amount” means the present value, as of the Repayment Date, of the remaining scheduled payments of principal and interest from the Repayment Date through the Open Prepayment Date (and including the balloon payment due on the Maturity Date as if such balloon payment was due on the Open Prepayment Date) determined by discounting such payments at the Discount Rate, less the amount of principal being prepaid on the Repayment Date.

	A-2
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Part B. Description of Notes

Note	Initial Note Principal Balance	Initial Percentage Interest (approx.)	Note Interest Rate (per annum)	Note Default Interest Rate	Initial Holder	Standalone Note (Yes/No)
A-1-1	$169,255,102.10	13.82%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	Yes
A-1-2	$71,000,000.00	5.80%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-3	$64,000,000.00	5.22%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-4	$50,000,000.00	4.08%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-5	$45,000,000.00	3.67%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-6	$35,000,000.00	2.86%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-7	$25,000,000.00	2.04%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-8	$20,000,000.00	1.63%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-1-9	$4,161,224.43	0.34%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	DBRI	No
A-2-1	$58,163,265.27	4.75%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	BANA	Yes
A-2-2	$50,000,000.00	4.08%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	BANA	No
A-2-3	$30,000,000.00	2.45%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	BANA	No
A-2-4	$25,000,000.00	2.04%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	BANA	No
A-2-5	$2,959,183.71	0.24%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	BANA	No
A-3-1	$29,081,632.63	2.37%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	JPMCB	Yes
A-3-2	$30,000,000.00	2.45%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	JPMCB	No
A-3-3	$23,979,591.86	1.96%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	JPMCB	No
A-4-1	$28,500,000.00	2.33%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	3650 Cal Bridge	Yes
A-4-2	$30,000,000.00	2.45%	2.792%	the lesser of (i) the maximum allowable legal rate  and (ii) 5.0% above the Note Interest Rate	3650 Cal Bridge	No

	A-3
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

A-4-3	$22,900,000.00	1.87%	2.792%	the lesser of (i) the maximum allowable legal rate and (ii) 5.0% above the Note Interest Rate	3650 Cal Bridge	No
B-1	$244,083,673.47	19.93%	2.792%	the lesser of (i) the maximum allowable legal rate and (ii) 5.0% above the Note Interest Rate	DBRI	Yes
B-2	$83,877,551.02	6.85%	2.792%	the lesser of (i) the maximum allowable legal rate and (ii) 5.0% above the Note Interest Rate	BANA	Yes
B-3	$41,938,775.51	3.42%	2.792%	the lesser of (i) the maximum allowable legal rate and (ii) 5.0% above the Note Interest Rate	JPMCB	Yes
B-4	$41,100,000.00	3.36%	2.792%	the lesser of (i) the maximum allowable legal rate and (ii) 5.0% above the Note Interest Rate	3650 Cal Bridge	Yes

	A-4
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

EXHIBIT B

NOTICES

DBRI as a Note A Holder:

DBR Investments Co. Limited

1 Columbus Circle

New York, New York 10019

Attention: Robert W. Pettinato, Jr.

Facsimile No.: (212) 797-4489

with a copy to:

DBR Investments Co. Limited
1 Columbus Circle
New York, New York 10019
Attention: General Counsel
Facsimile No.: (646) 736-5721

BANA as a Note A Holder:

Bank of America, N.A.

NC1-027-15-01

214 North Tryon Street

Charlotte, North Carolina 28255

Attention: Steven L. Wasser

Email: steve.l.wasser@bofa.com

with a copy to:

W. Todd Stillerman, Esq.

Bank of America Legal Department

NC1-028-24-02

150 North College Street

Charlotte, North Carolina 28255

Email: todd.stillerman@bofa.com

and:

cmbsnotices@bofa.com

JPMCB as a Note A Holder:

JPMorgan Chase Bank, National Association
383 Madison Avenue, 31st Floor
New York, New York 10017
Attention: Thomas Nicholas Cassino

	B-1
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

3650 Cal Bridge as a Note A Holder:

3650 Cal Bridge Lending, LLC

2977 McFarlane Road, Suite 300

Miami, Florida 33133

Attention: Jonathan Roth and Mark A. Jefferis

Note B-1 Holder:

DBR Investments Co. Limited

1 Columbus Circle

New York, New York 10019

Attention: Robert W. Pettinato, Jr.

Facsimile No.: (212) 797-4489

with a copy to:

DBR Investments Co. Limited

1 Columbus Circle

New York, New York 10019

Attention: General Counsel
Facsimile No.: (646) 736-5721

Note B-2 Holder:

Bank of America, N.A.

NC1-027-15-01

214 North Tryon Street

Charlotte, North Carolina 28255

Attention: Steven L. Wasser

Email: steve.l.wasser@bofa.com

with a copy to:

W. Todd Stillerman, Esq.

Bank of America Legal Department

NC1-028-24-02

150 North College Street

Charlotte, North Carolina 28255

Email: todd.stillerman@bofa.com

and:

cmbsnotices@bofa.com

	B-2
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

Note B-3 Holder:

JPMorgan Chase Bank, National Association
383 Madison Avenue, 31st Floor
New York, New York 10017
Attention: Thomas Nicholas Cassino

Note B-4 Holder:

3650 Cal Bridge Lending, LLC

2977 McFarlane Road, Suite 300

Miami, Florida 33133

Attention: Jonathan Roth and Mark A. Jefferis

	B-3
Co-Lender Agreement (Cambridge Crossing – 350 and 450 Water Street)

EX-99.8

Exhibit 99.8

EXECUTION VERSION

AGREEMENT BETWEEN NOTE HOLDERS

Dated as of November 22, 2021

by and between

WELLS FARGO BANK, NATIONAL ASSOCIATION
(Initial Note A-1 Holder)

WELLS FARGO BANK, NATIONAL ASSOCIATION
(Initial Note A-2 Holder)

WELLS FARGO BANK, NATIONAL ASSOCIATION
(Initial Note A-3 Holder)

and

WELLS FARGO BANK, NATIONAL ASSOCIATION
(Initial Note A-4 Holder)

1201 Lake Robbins

This AGREEMENT BETWEEN NOTE HOLDERS (“Agreement”), dated as of November 22, 2021, by and between WELLS FARGO BANK, NATIONAL ASSOCIATION (“WFB” and, together with its successors and assigns in interest, in its capacity as initial owner of Note A-1 (as defined below), the “Initial Note A-1 Holder”, and in its capacity as the initial agent, the “Initial Agent”), WELLS FARGO BANK, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-2 (as defined below), the “Initial Note A-2 Holder”), WELLS FARGO BANK, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-3 (as defined below), the “Initial Note A-3 Holder”)and WELLS FARGO BANK, NATIONAL ASSOCIATION (together with its successors and assigns in interest, in its capacity as initial owner of Note A-3 (as defined below), the “Initial Note A-4 Holder” and together with the Initial Note A-1 Holder, Initial Note A-2 Holder and Initial Note A-3 Holder, the “Initial Note Holders”).

W I T N E S S E T H:

WHEREAS, pursuant to the Mortgage Loan Agreement (as defined herein), WFB originated a certain loan (the “Mortgage Loan”) described on the schedule attached hereto as Exhibit A (the “Mortgage Loan Schedule”) to HH WOODLANDS TOWER HOLDINGS LLC (together, the “Mortgage Loan Borrower”), which is evidenced, inter alia, by (i) that Promissory Note A-1 dated October 8, 2021, in the original principal amount of $100,000,000 (as amended, modified, consolidated, or supplemented, “Note A-1”), made by the Mortgage Loan Borrower in favor of Initial Note A-1 Holder, (ii) that Promissory Note A-2 dated October 8, 2021, in the original principal amount of $70,000,000 (as amended, modified, consolidated, or supplemented, “Note A-2”), made by the Mortgage Loan Borrower in favor of Initial Note A-2 Holder, (iii) that Promissory Note A-3 dated October 8, 2021, in the original principal amount of $40,000,000 (as amended, modified, consolidated, or supplemented, “Note A-3”), made by the Mortgage Loan Borrower in favor of Initial Note A-3 Holder and (iv) that Promissory Note A-3 dated October 8, 2021, in the original principal amount of $40,000,000 (as amended, modified, consolidated, or supplemented, “Note A-4” and, together with Note A-1, Note A-2 and Note A-3, the “Notes”), made by the Mortgage Loan Borrower in favor of Initial Note A-3 Holder, each of which is secured by a first mortgage (as amended, modified or supplemented, the “Mortgage”) on certain real property located as described on the Mortgage Loan Schedule (the “Mortgaged Property”); and

WHEREAS, each Initial Note Holder desires to enter into this Agreement to memorialize the terms under which they, and their successors and assigns, shall hold the Notes.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:

Section 1. Definitions; Conflicts. References to a “Section”, “preamble” or the “recitals” are, unless otherwise specified, to a Section, the preamble or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms, or terms of substantially similar import, in the Lead

Securitization Servicing Agreement. To the extent of any conflict between this Agreement and the Lead Securitization Servicing Agreement, the terms of this Agreement shall control. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise.

“Accelerated Mezzanine Loan Lender” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Advance Interest” shall mean the interest accrued on any Servicing Advance which is payable to the party that made that Servicing Advance, in accordance with the Lead Securitization Servicing Agreement.

“Affiliate” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Agent” shall mean the Initial Agent or such Person to whom the Initial Agent shall delegate its duties hereunder, and after the Securitization Date shall mean the Master Servicer.

“Agent Office” shall mean the designated office of the Agent, which office initially shall be the office of the Initial Note A-1 Holder listed on Exhibit B hereto and, after the Securitization Date, shall be the office of the Master Servicer. The Agent Office is the address to which notices to and correspondence with the Agent should be directed. The Agent may change the address of its designated office by notice to the Note Holders.

“Agreement” shall mean this Agreement between Note Holders, the exhibits hereto and all amendments hereof and thereof and supplements hereto and thereto.

“Appraisal” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

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

“Asset Representations Reviewer” shall mean the “Asset Representations Reviewer” (or similarly named Person that is the “asset representations reviewer” as defined in Item 1101(m) of Regulation AB) under the Lead Securitization Servicing Agreement.

“Asset Review” shall mean any review of representations and warranties conducted by a Non-Lead Asset Representations Reviewer, as contemplated by Item 1101(m) of Regulation AB.

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

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

-2- 

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

“Borrower Party” shall mean the Mortgage Loan Borrower, a manager of the Mortgaged Property, an Accelerated Mezzanine Loan Lender or any Borrower Party Affiliate.

“Borrower Party Affiliate” shall mean, with respect to the Mortgage Loan Borrower, a manager of the Mortgaged Property or an Accelerated Mezzanine Loan Lender, (a) any other Person controlling or controlled by or under common control with such Mortgage Loan Borrower, manager or Accelerated Mezzanine Loan Lender, as applicable, or (b) any other Person owning, directly or indirectly, 25% or more of the beneficial interests in such Mortgage Loan Borrower, manager or Accelerated Mezzanine Loan Lender, as applicable. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“CDO” shall have the meaning assigned to such term in the definition of “Qualified Institutional Lender.”

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

“Certificate Administrator” shall mean the certificate administrator appointed as provided in the Lead Securitization Servicing Agreement.

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

“Commission” shall have the meaning assigned to such term in Section 2(c)(vi).

“Conduit” shall have the meaning assigned to such term in Section 14(d).

“Conduit Credit Enhancer” shall have the meaning assigned to such term in Section 14(d).

“Conduit Inventory Loan” shall have the meaning assigned to such term in Section 14(d).

“Control” shall mean the ownership, directly or indirectly, in the aggregate of more than fifty percent (50%) of the beneficial ownership interests of an entity and the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlled”, “Controlling” and “Controls” shall have the correlative meanings thereto.

-3- 

“Controlling Note” shall mean Note A-1.

“Controlling Note Holder” shall mean the holder of the Controlling Note; provided that at any time the Controlling Note is included in a Securitization, references to the “Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” or such other party otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” under this Agreement or under the Lead Securitization Servicing Agreement, as and to the extent provided in the Lead Securitization Servicing Agreement; provided that for so long as 50% or more of the Controlling Note is held by (or the party assigned the rights to exercise the rights of the “Controlling Note Holder” (as described above) is) the Mortgage Loan Borrower or a Borrower Party, the holder of the Controlling Note (and such party assigned the rights to exercise the rights of the “Controlling Note Holder” as described above) shall not be entitled to exercise any rights of the Controlling Note Holder, and there shall be deemed to be no Controlling Note Holder hereunder. If the Controlling Note is included in a Securitization, the Lead Securitization Servicing Agreement may contain additional limitations on the rights of the designated party entitled to exercise the rights of the “Controlling Note Holder” hereunder if such designated party is the Mortgage Loan Borrower or if it has certain relationships with the Mortgage Loan Borrower.

“Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(a).

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

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

“Depositor” shall mean the “depositor” under the Lead Securitization Servicing Agreement.

“Event of Default” shall mean, with respect to the Mortgage Loan, an “Event of Default” as defined in the Mortgage Loan Agreement.

“Exchange Act” shall mean the Securities Exchange Act of 1934.

“First Securitization” shall mean the earliest to occur of the Note A-1 Securitization, the Note A-2 Securitization, the Note A-3 Securitization and the Note A-4 Securitization.

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

“Indemnified Items” shall have the meaning assigned to such terms in Section 2(b).

“Indemnified Parties” shall have the meaning assigned to such terms in Section 2(b).

-4- 

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

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

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

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

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

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

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

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

“Interested Person” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

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

-5- 

“KBRA” shall mean Kroll Bond Rating Agency LLC, and its successors in interest.

“Lead Securitization” shall mean, if the First Securitization is the Note A-1 Securitization, such Securitization; provided that, if any other Securitization occurs prior to the Note A-1 Securitization, then the First Securitization shall be the Lead Securitization until such time as the Note A-1 Securitization occurs.

“Lead Securitization Note” shall mean the Note included in the Lead Securitization.

“Lead Securitization Note Holder” shall mean the holder of the Lead Securitization Note.

“Lead Securitization Note Holder Representative” shall mean the “Directing Certificateholder” or equivalent Person under the Lead Securitization Servicing Agreement.

“Lead Securitization Servicing Agreement” shall mean, as of any date of determination, (i) the pooling and servicing agreement or other comparable agreement that governs the Securitization that is then the Lead Securitization, and (ii) on and after the date on which the Mortgage Loan is no longer subject to the provisions of agreement described in clause (i), the Lead Securitization Servicing Agreement shall be determined in accordance with the second paragraph of Section 2(a).

“Lead Securitization Trust” shall mean the Securitization Trust created in connection with the Lead Securitization.

“Major Decision” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement.

“Master Servicer” shall mean the master servicer appointed to act in such capacity with respect to the Mortgage Loan as provided in the Lead Securitization Servicing Agreement.

“Monthly Payment Date” shall have the meaning assigned to such term (or analogous term) in the Mortgage Loan Documents.

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

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

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

“Mortgage Loan Agreement” shall mean the Loan Agreement, dated as of October 8, 2021, between the Mortgage Loan Borrower, as borrower, and Wells Fargo Bank, National Association, as lender, as the same may be further amended, restated, supplemented or otherwise modified from time to time, subject to the terms hereof.

-6- 

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

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

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

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

“New Notes” shall have the meaning assigned to such term in Section 32.

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

“Non-Controlling Note” means each Note other than Note A-1.

“Non-Controlling Note Holder” means each holder of a Non-Controlling Note; provided that with respect to each Non-Controlling Note, at any time such Non-Controlling Note is included in a Securitization, references to a “Non-Controlling Note Holder” herein shall mean the holders of the majority of the class of securities issued in such Securitization designated as the “controlling class” (or analogous term) or such other party otherwise assigned the rights to exercise the rights of a “Non-Controlling Note Holder” under this Agreement or under the related Securitization Servicing Agreement, as and to the extent provided in the related Securitization Servicing Agreement, and as to the identity of which the Controlling Note Holder (and, if applicable, the Master Servicer and the Special Servicer) has been given written notice; provided, further that if at any time 50% or more of any Non-Controlling Note (or class of securities issued in a Securitization into which such Non-Controlling Note has been deposited is designated as the “controlling class”) is held by (or such other party otherwise assigned the rights to exercise the rights of the “controlling class” under the related Securitization Servicing Agreement is) the Mortgage Loan Borrower or a Borrower Party, no such Note Holder or other Person shall be entitled to exercise any rights of such Non-Controlling Note Holder under this Agreement or the related Securitization Servicing Agreement, and there shall be deemed to be no Non-Controlling Note Holder with respect to such Non-Controlling Note. The Controlling Note Holder and the Lead Securitization Note Holder (or, if applicable, the Master Servicer or the Special Servicer acting on its behalf) shall not be required at any time to deal with more than one party exercising the rights of a “Non-Controlling Note Holder” herein or under the Lead Securitization Servicing Agreement (it being understood for the avoidance of doubt that the Lead Securitization Note Holder (or the Master Servicer or Special Servicer on its behalf) may additionally need to deal with the master servicer, special servicer or other person party to the related Securitization Servicing Agreement) and, (x) to the extent that the related Securitization Servicing Agreement assigns such rights to more than one party or (y) to the extent the related Non-Controlling Note is split into two or more New Notes pursuant to Section 32 and notice thereof is not provided to the Controlling Note Holder and the Lead Securitization Note Holder

-7- 

(or, if applicable, the Master Servicer or the Special Servicer acting on its behalf), for purposes of this Agreement, such Securitization Servicing Agreement or the holders of such New Notes shall designate one party to deal with the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer or the Special Servicer acting on its behalf) and provide written notice of such designation to the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer and the Special Servicer acting on its behalf); provided that, in the absence of such designation and notice, the Controlling Note Holder and the Lead Securitization Note Holder (or, the Master Servicer or the Special Servicer acting on its behalf) shall be entitled to treat the last party as to which it has received written notice as having been designated as the Non-Controlling Note Holder with respect to such Non-Controlling Note for all purposes of this Agreement. As of the date hereof and until further notice from the Non-Controlling Note Holder (or, if applicable, the related Non-Lead Master Servicer or another party acting on its behalf), the Initial Note A-2 Holder is the Non-Controlling Note Holder with respect to Note A-2, the Initial Note A-3 Holder is the Non-Controlling Note Holder with respect to Note A-3 and the Initial Note A-4 Holder is the Non-Controlling Note Holder with respect to Note A-4. If a Non-Controlling Note is included in a Securitization, the related Securitization Servicing Agreement may contain additional limitations on the rights of the designated party entitled to exercise the rights of a “Non-Controlling Note Holder” hereunder if such designated party is the Mortgage Loan Borrower or if it has certain relationships with the Mortgage Loan Borrower.

“Non-Controlling Note Holder Representative” shall have the meaning assigned to such term in Section 6(b).

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

“Non-Lead Asset Representations Reviewer” shall mean the “Asset Representations Reviewer” (or similarly named Person that is the “asset representations reviewer” as defined in Item 1101(m) of Regulation AB.) under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Depositor” shall mean the “depositor” under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Master Servicer” shall mean the applicable “master servicer” under any Non-Lead Securitization Servicing Agreement.

“Non-Lead Operating Advisor” shall mean the “trust advisor,” “senior trust advisor,” “operating advisor” (or other analogous Person) under any Non-Lead Securitization Servicing Agreement.

-8- 

“Non-Lead Securitization” shall mean any Securitization of a Note in a Securitization Trust other than the Securitization that is then the Lead Securitization.

“Non-Lead Securitization Note” shall mean any Note other than the Lead Securitization Note.

“Non-Lead Securitization Note Holder” shall mean each holder of a Non-Lead Securitization Note.

“Non-Lead Securitization Note Holder Representative” shall mean the “Directing Certificateholder” or equivalent Person under the Non-Lead Securitization Servicing Agreement.

“Non-Lead Securitization Servicing Agreement” shall have the meaning assigned to such term in Section 2(b).

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

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

“Non-Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder other than a Securitizing Note Holder with respect to such Securitization.

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

“Note A-1 Holder” shall mean the Initial Note A-1 Holder or any subsequent holder of Note A-1, as applicable.

“Note A-1 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-1 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-1 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-1 PSA” shall mean the pooling and servicing agreement or other comparable agreement entered into in connection with the Note A-1 Securitization.

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

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

“Note A-2 Holder” shall mean the Initial Note A-2 Holder or any subsequent holder of Note A-2, as applicable.

-9- 

“Note A-2 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-2 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-2 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-2 Securitization” shall mean the first sale by the Note A-2 Holder of all or a portion of Note A-2 to a depositor who will in turn include such portion of Note A-2 as part of the securitization of one or more mortgage loans.

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

“Note A-3 Holder” shall mean the Initial Note A-3 Holder or any subsequent holder of Note A-3, as applicable.

“Note A-3 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-3 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-3 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-3 Securitization” shall mean the first sale by the Note A-3 Holder of all or a portion of Note A-3 to a depositor who will in turn include such portion of Note A-3 as part of the securitization of one or more mortgage loans.

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

“Note A-4 Holder” shall mean the Initial Note A-4 Holder or any subsequent holder of Note A-4, as applicable.

“Note A-4 Principal Balance” shall mean, with respect to the Mortgage Loan, at any time of determination, the Initial Note A-4 Principal Balance set forth on the Mortgage Loan Schedule, less any payments of principal thereon (or any New Notes issued in substitution thereof) received by the Note A-4 Holder (or any holders of New Notes in substitution thereof) or reductions in such amount pursuant to Section 3 or 4, as applicable.

“Note A-4 Securitization” shall mean the first sale by the Note A-4 Holder of all or a portion of Note A-4 to a depositor who will in turn include such portion of Note A-4 as part of the securitization of one or more mortgage loans.

“Note Holder Representative” shall mean a Controlling Note Holder Representative or a Non-Controlling Note Holder Representative, as applicable.

“Note Holders” shall mean collectively, the Note A-1 Holder, the Note A-2 Holder, the Note A-3 Holder and the Note A-4 Holder.

“Note Pledgee” shall have the meaning assigned to such term in Section 14(c).

-10- 

“Note Principal Balance” shall mean, (i) with respect to Note A-1, the Note A-1 Principal Balance, (ii) with respect to Note A-2, the Note A-2 Principal Balance, (iii) with respect to Note A-3, the Note A-3 Principal Balance and (iv) with respect to Note A-4, the Note A-4 Principal Balance.

“Note Register” shall have the meaning assigned to such term in Section 15.

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

“Operating Advisor” shall mean the trust advisor, senior trust advisor, operating advisor or other analogous term as defined under the Lead Securitization Servicing Agreement.

“P&I Advance” shall mean an advance made by a party to any Securitization Servicing Agreement in respect of a delinquent monthly debt service payment on the Note(s) securitized pursuant to such Securitization Servicing Agreement.

“Percentage Interest” shall mean, with respect to each Note Holder, a fraction, expressed as a percentage, the numerator of which is the Note Principal Balance of the Note held by such Note Holder and the denominator of which is the sum of the Note Principal Balances of all of the Notes.

“Permitted Fund Manager” shall mean any Person that on the date of determination is (i) one of the entities on Exhibit C attached hereto and made a part hereof or any other nationally-recognized manager of investment funds investing in debt or equity interests relating to commercial real estate, (ii) investing through a fund with committed capital of at least $250,000,000 and (iii) not subject to a proceeding relating to the bankruptcy, insolvency, reorganization or relief of debtors.

“Pledge” shall have the meaning assigned to such term in Section 14(c).

“Pro Rata and Pari Passu Basis” shall mean with respect to the Notes and the Note Holders, the allocation of any particular payment, collection, cost, expense, liability or other amount between such Notes or such Note Holders, as the case may be, without any priority of any such Note or any such Note Holder over another such Note or Note Holder, as the case may be, and in any event such that each Note or Note Holder, as the case may be, is allocated its respective Percentage Interest of such particular payment, collection, cost, expense, liability or other amount.

“Qualified Institutional Lender” shall mean each of the Initial Note Holders and any other Person that is:

(a)       an entity Controlled by, under common Control with or that Controls any of the Initial Note Holders, or

(b)       one or more of the following:

(i)       an insurance company, bank, savings and loan association, investment bank, trust company, commercial credit corporation, pension plan,

-11- 

pension fund, pension fund advisory firm, mutual fund, real estate investment trust, governmental entity or plan, or

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

(iii)       an institution substantially similar to any of the foregoing entities described in clauses (i) or (ii), or

(iv)       any entity Controlled by or under common Control or Controlling any of the entities described in clauses (i), (ii) or (iii), or

(v)       a Qualified Trustee (or, in the case of a CDO, a single-purpose, bankruptcy remote entity that contemporaneously pledges its interest in a Note to a Qualified Trustee) in connection with (a) a securitization of, (b) the creation of collateralized debt (or loan) obligations (“CDO”) secured by, or (c) a financing through an “owner trust” of, a Note or any interest therein (any of the foregoing, a “Securitization Vehicle”), provided that (1) one or more classes of securities issued by such Securitization Vehicle is initially rated at least investment grade by each of the Rating Agencies that assigned a rating to one or more classes of securities issued in connection with that Securitization; (2) in the case of a Securitization Vehicle that is not a CDO, the special servicer of such Securitization Vehicle has a Required Special Servicer Rating or is otherwise subject to Rating Agency Confirmations from the Rating Agencies rating each Securitization (such entity, an “Approved Servicer”) and such Approved Servicer is required to service and administer such Note or any interest therein in accordance with servicing arrangements for the assets held by the Securitization Vehicle which require that such Approved Servicer act in accordance with a servicing standard notwithstanding any contrary direction or instruction from any other Person; or (3) in the case of a Securitization Vehicle that is a CDO, the CDO Asset Manager and, if applicable, each Intervening Trust Vehicle that is not administered and managed by a CDO Asset Manager which is a Qualified Institutional Lender, are each a Qualified Institutional Lender under clauses (i), (ii), (iii), (iv) or (vi) of this definition, or

(vi)       an investment fund, limited liability company, limited partnership or general partnership having capital and/or capital commitments of at least $250,000,000, in which (A) any Note Holder, (B) a person that is otherwise a Qualified Institutional Lender under clause (i), (ii), (iii) or (iv) (with respect to an institution substantially similar to the entities referred to in clause (i) or (ii)), or (C) a Permitted Fund Manager, acts as a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such investment vehicle and provided that at least 50% of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities

-12- 

that are otherwise Qualified Institutional Lenders (without regard to the capital surplus/equity and total asset requirements set forth below in the definition), and

in the case of any entity referred to in clause (b)(i), (ii), (iii), (iv) or (vi)(B) of this definition, (x) such entity has at least $200,000,000 in capital/statutory surplus or shareholders’ equity (except with respect to a pension advisory firm or similar fiduciary) and at least $600,000,000 in total assets (in name or under management), and (y) is regularly engaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Mortgage Loan (or mezzanine loans with respect thereto) or owning or operating commercial real estate properties; provided that, in the case of the entity described in clause (vi)(B) above, the requirements of this clause (y) may be satisfied by a general partner, managing member, or the fund manager responsible for the day-to-day management and operation of such entity; or

(c)       any entity Controlled by any of the entities described in clause (b)(i), (ii), (iv)(B) or (v) above or subject to a Rating Agency Confirmation as a Qualified Institutional Lender for purposes of this Agreement from each of the Rating Agencies engaged to rate the securities for any Securitization.

“Qualified Trustee” shall mean (i) a corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority or (ii) an institution whose long-term senior unsecured debt is rated in either of the then in effect top three rating categories of each of the applicable Rating Agencies (or, if not rated by an applicable Rating Agency, an equivalent (or higher) rating from any two of Fitch, Moody’s and S&P).

“Rating Agencies” shall mean DBRS Morningstar, Fitch, KBRA, Moody’s and S&P and their respective successors in interest or, if any of such entities shall for any reason no longer perform the functions of a securities rating agency, any other nationally recognized statistical rating agency reasonably engaged by any Note Holder to rate the securities issued in connection with the Securitization of the related Note; provided, however, that, at any time during which one or more of the Notes is an asset of one or more Securitizations, “Rating Agencies” or “Rating Agency” shall mean only those rating agencies that are engaged by the related depositor (or its Affiliate) from time to time to rate the securities issued in connection with the Securitizations of the related Notes.

“Rating Agency Confirmation” shall mean, with respect to any Securitization, a confirmation in writing (which may be in electronic form) by each of the applicable Rating Agencies for such Securitization that a proposed action, failure to act or other event so specified will not, in and of itself, result in the downgrade, withdrawal or qualification of the then current rating assigned to any class of securities of such Securitization (if then rated by such Rating Agency); provided that a written waiver or other acknowledgment from any such Rating Agency indicating its decision not to review the matter for which the Rating Agency Confirmation is sought shall be deemed to satisfy the requirement for the Rating Agency Confirmation from such Rating Agency with respect to such matter. If no such securities are outstanding with respect to any Securitization, any action that would otherwise require a Rating Agency Confirmation shall

-13- 

instead require the consent of the Controlling Note Holder, which consent shall not be unreasonably withheld, conditioned or delayed.

“Redirection Notice” shall have the meaning assigned to such term in Section 14(c).

“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100 229.1125, as such rules may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission or by its staff, or as may be provided by the Commission or its staff from time to time.

“REMIC” shall have the meaning assigned to such term in Section 5(d).

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

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

“Required Special Servicer Rating” shall mean with respect to a special servicer (i) in the case of Fitch, a rating of “CSS3”, (ii) in the case of S&P, such special servicer is on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer, (iii) in the case of Moody’s, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by Moody’s within the twelve (12) month period prior to the date of determination, and Moody’s has not downgraded or withdrawn the then-current rating on any class of commercial mortgage securities or placed any class of commercial mortgage securities on watch citing the continuation of such special servicer as special servicer of such commercial mortgage loans and (iv) in the case of DBRS Morningstar or KBRA, such special servicer is acting as special servicer for one or more loans included in a commercial mortgage loan securitization that was rated by DBRS Morningstar or KBRA, as applicable, within the twelve (12) month period prior to the date of determination, and DBRS Morningstar or KBRA, as applicable, has not cited servicing concerns of such special servicer as the sole or material factor in any qualification, downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in a transaction serviced by such special servicer prior to the time of determination.

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

“Securitization” shall mean the Note A-1 Securitization, the Note A-2 Securitization, the Note A-3 Securitization or the Note A-4 Securitization.

“Securitization Date” shall mean the effective date of the First Securitization.

-14- 

“Securitization Servicing Agreement” shall mean the Lead Securitization Servicing Agreement or any Non-Lead Securitization Servicing Agreement.

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

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

“Securitizing Note Holder” shall mean, with respect to a Securitization, each Note Holder that is contributing its Note to such Securitization.

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

“Servicer Termination Event” shall have the meaning assigned to such term in the Lead Securitization Servicing Agreement.

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

“Servicing Standard” shall have the meaning assigned to such term or an analogous term in the Lead Securitization Servicing Agreement. The Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder.

“Special Servicer” shall mean the special servicer appointed to act in such capacity with respect to the Mortgage Loan as provided in the Lead Securitization Servicing Agreement.

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

“Transfer” shall have the meaning assigned to such term in Section 14.

“Trust Fund” shall mean the trust formed pursuant to the Lead Securitization Servicing Agreement.

“Trustee” shall mean the trustee appointed as provided in the Lead Securitization Servicing Agreement.

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

-15- 

substantial decisions of such trust (or, to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996 which is eligible to elect to be treated as a U.S. Person).

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

Section 2. Servicing of the Mortgage Loan.

(a)       Each Note Holder acknowledges and agrees that, subject in each case to this Agreement, the Mortgage Loan shall be serviced from and after the Securitization Date by the Master Servicer and the Special Servicer pursuant to the terms of this Agreement and the Lead Securitization Servicing Agreement; provided that the Master Servicer shall not be obligated to advance monthly payments of principal or interest in respect of any Note other than the Lead Securitization Note (unless such other Note is also included in the Lead Securitization) if such principal or interest is not paid by the Mortgage Loan Borrower but shall be obligated to make Servicing Advances, subject to the terms of the Lead Securitization Servicing Agreement; provided further that the Special Servicer, when appointed, has the Required Special Servicer Rating from each Rating Agency then rating a Securitization. The Lead Securitization Servicing Agreement shall contain terms and conditions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the tax elections of any Securitization Trust, (ii) required by law or changes in any law, rule or regulation or (iii) generally required by the Rating Agencies in connection with the issuance of ratings in securitizations similar to the Securitizations. Each Note Holder acknowledges that each other Note Holder may elect, in its sole discretion, to include its Note in a Securitization and agrees that it will, subject to Section 26 hereof, reasonably cooperate with such other Note Holder, at such other Note Holder’s expense, to effect such Securitization. Subject to the terms and conditions of this Agreement, each Note Holder hereby irrevocably and unconditionally consents to the appointment of the Master Servicer and the Trustee under the Lead Securitization Servicing Agreement by the Depositor and the appointment of the Special Servicer by the Controlling Note Holder and agrees to reasonably cooperate with the Master Servicer and the Special Servicer with respect to the servicing of the Mortgage Loan in accordance with the Lead Securitization Servicing Agreement. Each Note Holder hereby appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of such Note Holder set forth herein and in the Lead Securitization Servicing Agreement). In no event shall the Lead Securitization Servicing Agreement require any Servicer to enforce the rights of any Note Holder against any other Note Holder or limit a Servicer in enforcing the rights of one Note Holder against any other Note Holder; however, this statement shall not be construed to otherwise limit the rights of one Note Holder with respect to any other Note Holder. Each Servicer shall be required pursuant to the Lead Securitization Servicing Agreement to service the Mortgage Loan in accordance with the Servicing Standard, the terms of the Mortgage Loan Documents, the Lead Securitization Servicing Agreement and applicable law, shall provide information to each servicer under the Non-Lead Securitization Servicing Agreement to enable

-16- 

each such servicer to perform its servicing duties, and shall not take any action or refrain from taking any action or follow any direction inconsistent with the foregoing.

At any time after the First Securitization that the Mortgage Loan is no longer subject to the provisions of the Lead Securitization Servicing Agreement, the Note Holders agree to cause the Mortgage Loan to be serviced by one or more servicers, each of which has been agreed upon by the Note Holders, pursuant to a servicing agreement that has servicing terms substantially similar to the Lead Securitization Servicing Agreement and all references herein to the “Lead Securitization Servicing Agreement” shall mean such subsequent servicing agreement; provided, that if a Non-Lead Securitization Note is in a Securitization, then a Rating Agency Confirmation shall have been obtained from each other Rating Agency with respect to any such Non-Lead Securitization Note regarding any Special Servicer to be appointed under such replacement servicing agreement that does not have the Required Special Servicer Rating for such Rating Agency or, with respect to the Master Servicer, would not otherwise meet the conditions to be a servicer under the Lead Securitization Servicing Agreement that is being replaced; provided, further, that until a replacement servicing agreement has been entered into, the Lead Securitization Note Holder shall cause the Mortgage Loan to be serviced pursuant to the provisions of the Lead Securitization Servicing Agreement, as if such agreement were still in full force and effect with respect to the Mortgage Loan, by the Servicers in the Lead Securitization or by any Person appointed by the Lead Securitization Note Holder that is a Person meeting the requirements of a master servicer under the Lead Securitization Servicing Agreement and, in the case of the Special Servicer, that meets the Required Special Servicer Rating for each Rating Agency then rating securities of a Non-Lead Securitization.

(b)       The Master Servicer shall be the lead master servicer on the Mortgage Loan, and from time to time it (or the Trustee or the Special Servicer, to the extent provided in the Lead Securitization Servicing Agreement) shall make the following advances, subject to the terms of the Lead Securitization Servicing Agreement and this Agreement: (i) Servicing Advances on the Mortgage Loan and (ii) P&I Advances on the Lead Securitization Note. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for a Servicing Advance, first from funds on deposit in the Collection Account and/or the Companion Distribution Account for the Mortgage Loan that (in any case) represent amounts received on or in respect of the Mortgage Loan, and then, in the case of Nonrecoverable Advances, if such funds on deposit in the Collection Account or Companion Distribution Account are insufficient, from general collections of the Lead Securitization as provided in the Lead Securitization Servicing Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement for Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), in the manner and from the sources provided in the Lead Securitization Servicing Agreement, including from general collections of the Lead Securitization. Notwithstanding the foregoing, to the extent the Master Servicer, the Special Servicer or the Trustee, as applicable, obtains funds from general collections of the Lead Securitization as a reimbursement of a Servicing Advance that is a Nonrecoverable Advance or any Advance Interest on a Servicing Advance (including any Nonrecoverable Advance), each Non-Lead Securitization Note Holder (including any Securitization Trust into which a Non-Lead Securitization Note is deposited) shall be required

-17- 

to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for its pro rata share of such Nonrecoverable Advance or Advance Interest.

In addition, each Non-Lead Securitization Note Holder (including, but not limited to, any Securitization Trust into which a Non-Lead Securitization Note is deposited) shall be required to, promptly following notice from the Master Servicer, reimburse the Lead Securitization for such Non-Lead Securitization Note Holder’s pro rata share of any fees, costs or expenses incurred in connection with the servicing and administration of the Mortgage Loan as to which the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer or the Depositor, as applicable, is entitled to be reimbursed pursuant to the Lead Securitization Servicing Agreement, to the extent amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan are insufficient for reimbursement of such amounts. Each Non-Lead Securitization Note Holder shall indemnify (as and to the same extent the Lead Securitization Trust is required to indemnify each of the following parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of the Lead Securitization Servicing Agreement) each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, Asset Representations Reviewer and the Depositor (and any director, officer, employee or agent of any of the foregoing, to the extent such parties are identified as indemnified parties in the Lead Securitization Servicing Agreement in respect of other mortgage loans) (the “Indemnified Parties”) against any claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with servicing and administration of the Mortgage Loan (or, with respect to the Operating Advisor and the Asset Representations Reviewer, incurred in connection with the provision of services for the Mortgage Loan) under the Lead Securitization Servicing Agreement (collectively, the “Indemnified Items”) to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan, as applicable, are insufficient for reimbursement of such amounts, each Non-Lead Securitization Note Holder shall be required to, promptly following notice from the Master Servicer, reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency; provided, however, that each Non-Lead Securitization Note Holder’s obligation to pay Indemnified Items to the Operating Advisor shall be subject to any limitations and conditions (including limitations and conditions with respect to the timing of such payments and the sources of funds for such payments) as may be set forth from time to time in a related Non-Lead Securitization Servicing Agreement.

Any Non-Lead Master Servicer (or if not made by such Non-Lead Master Servicer, the Non-Lead Trustee) may be required to make P&I Advances on the related Non-Lead Securitization Note, from time to time, subject to the terms of the related servicing agreement for the related Securitization (each such agreement, a “Non-Lead Securitization Servicing Agreement”) and this Agreement. The Master Servicer, the Special Servicer and the Trustee, as applicable, shall each be entitled to make its own recoverability determination with respect to a P&I Advance to be made on the Lead Securitization Note based on the information that it has on hand and in accordance with the Lead Securitization Servicing Agreement. Each Non-Lead Master Servicer, Non-Lead Special Servicer and Non-Lead Trustee under the related

-18- 

Non-Lead Securitization Servicing Agreement, as applicable, shall be entitled to make their own recoverability determination with respect to a P&I Advance to be made on the related Non-Lead Securitization Note based on the information that they have on hand and in accordance with the Non-Lead Securitization Servicing Agreement. The Master Servicer and the Trustee, as applicable, and the related Non-Lead Master Servicer or the related Non-Lead Trustee shall be required to notify the other of the amount of its P&I Advance within two Business Days of making such advance. If the Master Servicer, the Special Servicer or the Trustee, as applicable (with respect to the Lead Securitization Note) or a Non-Lead Master Servicer, Non-Lead Special Servicer or a Non-Lead Trustee, as applicable (with respect to a Non-Lead Securitization Note), determines that a proposed P&I Advance, if made, would be non-recoverable or an outstanding P&I Advance is or would be non-recoverable, or if the Master Servicer, the Special Servicer or the Trustee, as applicable, subsequently determines that a proposed Servicing Advance would be non-recoverable or an outstanding Servicing Advance is or would be non-recoverable, then the Master Servicer or the Trustee (as provided in the Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the Master Servicer, the Special Servicer or the Trustee) or the related Non-Lead Master Servicer or the related Non-Lead Trustee (as provided in the related Non-Lead Securitization Servicing Agreement, in the case of a determination of non-recoverability by the related Non-Lead Master Servicer, the related Non-Lead Special Servicer or the related Non-Lead Trustee) shall notify the Master Servicer and the Trustee, or the Non-Lead Master Servicer and the Non-Lead Trustee, as the case may be, of the other Securitization within two Business Days of making such determination. Each of the Master Servicer, the Trustee, a Non-Lead Master Servicer and a Non-Lead Trustee, as applicable, will only be entitled to reimbursement for a P&I Advance that becomes non-recoverable first from the Companion Distribution Account from amounts allocable to the Note for which such P&I Advance was made, and then, if funds are insufficient, (i) in the case of the Lead Securitization Note, from general collections of the Lead Securitization Trust, pursuant to the terms of the Lead Securitization Servicing Agreement and (ii) in the case of a Non-Lead Securitization Note, from general collections of the Securitization Trust that owns such Non-Lead Securitization Note, as and to the extent provided in the related Non-Lead Securitization Servicing Agreement.

(c)       The Lead Securitization Note Holder agrees that it shall cause the Lead Securitization Servicing Agreement to provide as follows (and to the extent such following provisions are not included in the Lead Securitization Servicing Agreement, they shall be deemed incorporated therein and made a part thereof):

(i)       the Master Servicer shall remit all payments received with respect to each Non-Lead Securitization Note, net of the primary servicing fee payable to the Master Servicer and servicing fees payable to the Special Servicer with respect to such Non-Lead Securitization Note, and any other applicable fees and reimbursements payable to the Master Servicer, the Special Servicer and the Trustee, to the Non-Lead Securitization Note Holder by the earlier of (x) the Remittance Date and (y) the Business Day following the “determination date” (or any term substantially similar thereto) as defined in the Non-Lead Securitization Servicing Agreement (such determination date, the “Non-Lead Securitization Determination Date”), in each case as long as the date on which remittance is required under this clause (i) is at least one business day after the scheduled monthly

-19- 

payment date under the Loan Agreement, provided, that any late collections received by the Master Servicer after the related due date under the Mortgage Loan shall be remitted by the Master Servicer in accordance with clause (c)(xiii) below;

(ii)       with respect to the Non-Lead Securitization Note that is held by a Securitization, the Master Servicer agrees to deliver or cause to be delivered or to make available to the Non-Lead Master Servicer all reports required to be delivered by the Master Servicer to the Certificate Administrator under the Lead Securitization Servicing Agreement (which shall include all loan-level reports constituting the CREFC® Investor Reporting Package (IRP)) pursuant to the terms of the Lead Securitization Servicing Agreement, to the extent related to the Mortgage Loan, the Mortgaged Property, the Non-Lead Securitization Note, the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee, by the earlier of (x) the Remittance Date and (y) the Business Day following the Non-Lead Securitization Determination Date, in each case so long as the date on which delivery is required under this clause (ii) is at least one business day after the scheduled monthly payment date under the Loan Agreement;

(iii)       the Master Servicer and Special Servicer, as applicable, shall provide (in electronic media) to each Non-Controlling Note Holder all documents, certificates, instruments, notices, reports, operating statements, rent rolls and other information regarding the Mortgage Loan that it has provided, or that it is required to provide, to the Controlling Note Holder or the Operating Advisor in connection with any request for consent made to, or consultation with, the Non-Controlling Note Holder;

(iv)       the Non-Lead Securitization Note Holder shall be entitled to the same indemnity as the Lead Securitization Note Holder under the Lead Securitization Servicing Agreement; each of the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Operating Advisor, the Custodian shall be required to (and shall require any Servicing Function Participant or Additional Servicer engaged by it to) indemnify each Certifying Person and the depositor of any public Securitization related to a Non-Lead Securitization Note, and their respective directors and officers and controlling persons, to the same extent that they indemnify the Depositor (as depositor in respect of the Lead Securitization) and each Certifying Person for (i) its failure to deliver the items in clause (v) below in a timely manner, (ii) its failure to perform its obligations to such depositor or Non-Lead Trustee under Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement by the time required after giving effect to any applicable grace period or cure period, (iii) the failure of any Servicing Function Participant or Additional Servicer retained by it (other than a Mortgage Loan Seller Sub-Servicer) to perform its obligations to such depositor or trustee under such Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement by the time required and/or (iv) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, such party;

(v)       with respect to any Non-Lead Securitization that is subject to reporting requirements under the Securities Act, the Exchange Act (including Rule 15Ga-1), and

-20- 

Regulation AB, (a) the Master Servicer, any primary servicer, the Special Servicer, the Trustee, the Certificate Administrator or other party acting as custodian for the Lead Securitization shall be required to deliver (and shall be required to cause each other servicer and servicing function participant (within the meaning of Items 1123 and 1122, respectively, of Regulation AB) retained or engaged by it to deliver; provided that such party shall only be required to use commercially reasonable efforts to cause a Mortgage Loan Seller Sub-Servicer to deliver), to the Non-Lead Depositor and the Non-Lead Trustee, in a timely manner, (i) the reports, certifications, compliance statements, accountants’ assessments and attestations, and all information to be included in reports (including, without limitation, Form ABS 15G, Form 10-K, Form 10-D and Form 8-K), and (ii) upon request, any other materials specified in the Non-Lead Securitization Servicing Agreement, in the case of clauses (i) and (ii), as the parties to each Non-Lead Securitization may reasonably require in order to comply with their obligations under the Securities Act, the Exchange Act (including Rule 15Ga-1), Regulation AB and Form SF-3 and (b) without limiting the generality of the foregoing, the Initial Note Holder of the Lead Securitization Note shall provide in a timely manner to the Non-Lead Depositor and the Non-Lead Trustee, if any, a copy of the Lead Securitization Servicing Agreement in EDGAR-compatible format (but not later than one business day following the closing date of the Lead Securitization) and each Servicer under the Lead Securitization Servicing Agreement will be required, upon prior written request, to provide to the Non-Lead Depositor and the Non-Lead Trustee, if any, any other information required to comply in a timely manner with applicable filing requirements under Items 1.01 and 6.02 of Form 8-K, any other disclosure information required pursuant to Regulation AB, in each case in a timely manner for inclusion in any disclosure document (or for filing under Form 8-K, as applicable), and with respect to such Servicers, upon prior written request, market indemnification agreements, opinions and Regulation AB compliance letters as were or are being delivered with respect to the Lead Securitization (in each case at the expense of the Non-Lead Securitization Note Holder). The Master Servicer, any primary servicer and the Special Servicer shall each be required to provide certification and indemnification to each Certifying Person with respect to the Sarbanes-Oxley Certification (or analogous terms) as such terms are defined in the Non-Lead Securitization Servicing Agreement;

(vi)       each of the Master Servicer, the Special Servicer, the Custodian and the Trustee and each Affected Reporting Party (or analogous term) shall cooperate (and require each Servicing Function Participant and Additional Servicer retained by it to cooperate under the applicable Sub-Servicing Agreement), with the Non-Lead Depositor (including, without limitation, providing all due diligence information, reports, written responses, negotiations and coordination) to the same extent as such party is required to cooperate with the Depositor under Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement and in connection with Deficient Exchange Act Deliverables. All respective reasonable out-of-pocket costs and expenses incurred by the Non-Lead Depositor (including reasonable legal fees and expenses of outside counsel to such depositor) in connection with the foregoing (other than those costs and expenses related to participation by the Non-Lead Depositor in any telephone conferences and

-21- 

meetings with the United States Securities and Exchange Commission (the “Commission”) and other costs the Non-Lead Depositor must bear pursuant to Article XI (or any article substantially similar thereto that addresses Exchange Act reporting and Regulation AB compliance) of the Lead Securitization Servicing Agreement) and any amendments to any reports filed with the Commission therewith shall be promptly paid by the applicable Affected Reporting Party upon receipt of an itemized invoice from such Non-Lead Depositor;

(vii)       each Non-Lead Securitization Note Holder (unless it is a Borrower Party) is an intended third-party beneficiary in respect of the rights afforded it under the Lead Securitization Servicing Agreement;

(viii)       each Non-Lead Master Servicer and each Non-Lead Special Servicer shall be a third-party beneficiary of the Lead Securitization Servicing Agreement with respect to all provisions therein expressly relating to compensation, reimbursement or indemnification of such Non-Lead Master Servicer or Non-Lead Special Servicer, as the case may be, and the provisions regarding coordination of advances;

(ix)       if the Mortgage Loan becomes a Defaulted Mortgage Loan and the Special Servicer determines to sell the Lead Securitization Note in accordance with the Lead Securitization Servicing Agreement, it shall have the right and the obligation to sell each of the Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall provide notice to each Non-Lead Master Servicer who shall provide notice to the related Non-Controlling Note Holder of the planned sale and of such Non-Controlling Note Holder’s opportunity to submit an offer on the Mortgage Loan;

(x)       the Lead Securitization Servicing Agreement shall not be amended in any manner that materially and adversely affects any Non-Lead Securitization Note Holder without the consent of such Non-Lead Securitization Note Holder;

(xi)       Servicer Termination Events with respect to the Master Servicer and the Special Servicer shall include: (i) solely with respect to the Master Servicer, the failure to timely remit payments to a Non-Lead Securitization Note Holder, which failure continues unremedied for one (1) Business Day following the date on which such payment was to be made; (ii) solely with respect to the Special Servicer, the failure to deposit into any REO Account any amount required to be so deposited within two (2) Business Days after the date such deposit was to be made, or the failure to remit to the Master Servicer for deposit into the Collection Account or the Companion Distribution Account, as applicable, any amount required to be so remitted by the Special Servicer within one (1) Business Day after the date such remittance was to be made; (iii) the qualification, downgrade or withdrawal, or placing on “watch status” in contemplation of a rating downgrade or withdrawal of the ratings of any class of certificates issued in connection with a Non-Lead Securitization by the rating agencies rating such securities (and such qualification, downgrade, withdrawal or “watch status” placement shall not have been withdrawn by such rating agencies within sixty (60) days of actual knowledge of such

-22- 

event by the Master Servicer or the Special Servicer, as the case may be), and publicly citing servicing concerns with the Master Servicer or Special Servicer, as applicable, as the sole or a material factor in such rating action; and (iv) the failure to provide to a Non-Lead Securitization Note Holder (if and to the extent required under the related Non-Lead Securitization) reports required under the Exchange Act, and the rules and regulations thereunder, in a timely fashion;

(xii)       in connection with (A) any amendment of the Lead Securitization Servicing Agreement, a party to such Lead Securitization Servicing Agreement is required to provide a copy of the executed amendment to each Non-Lead Depositor and one or more parties to the related Non-Lead Securitization Servicing Agreement (which may be by e-mail), together with a copy of such amendment in electronic format, no later than the effective date of such amendment, and (B) the termination, resignation and/or replacement of the Master Servicer or Special Servicer under the Lead Securitization Servicing Agreement, the replacement “master servicer” or replacement “special servicer”, as applicable, is required to provide to each Non-Lead Depositor and one or more parties to the related Non-Lead Securitization Servicing Agreement all disclosure about itself that is required to be included in Form 8-K no later than the date of effectiveness thereof;

(xiii)       any late collections received by the Master Servicer from the Mortgage Loan Borrower that are allocable to a Non-Lead Securitization Note or reimbursable to a Non-Lead Master Servicer or a Non-Lead Trustee shall be remitted by the Master Servicer to the related Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds constituting such late collections; provided, however, that to the extent any such amounts are received after 3:00 p.m. Eastern time on any given Business Day, the Master Servicer shall use commercially reasonable efforts to remit such late collections to such Non-Lead Master Servicer within one (1) Business Day of receipt of properly identified and available funds but, in any event, the Master Servicer shall remit such amounts within two (2) Business Days of receipt of properly identified and available funds;

(xiv)        if a Non-Lead Securitization Note becomes the subject of an Asset Review pursuant to the related Non-Lead Securitization Servicing Agreement, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall reasonably cooperate with the related Non-Lead Asset Representations Reviewer in connection with such Asset Review by providing such Non-Lead Asset Representations Reviewer with any documents reasonably requested by such Non-Lead Asset Representations Reviewer, but only to the extent (x) such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, and (y) such Non-Lead Asset Representations Reviewer has not been able to obtain such documents from the related mortgage loan seller;

(xv)       any conflict between the Lead Securitization Servicing Agreement and this Agreement shall be resolved in favor of this Agreement provided that in no event shall the Master Servicer or the Special Servicer, as the case may be, take any action or omit to take any action in accordance with the terms of this Agreement that would cause

-23- 

the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard or the REMIC Provisions;

(xvi)       primary servicing, special servicing, workout and liquidation fee rates shall not exceed 0.0025%, 0.25%, 1.00% and 1.00%, respectively, subject to any market minimum amounts and fee offsets set forth in the Lead Securitization Servicing Agreement;

(xvii)       each Lead Securitization Servicing Agreement shall also satisfy Moody’s rating methodology as of the closing date of the Lead Securitization Servicing Agreement for eligible accounts and permitted investments for a securitization rated “Aaa” by Moody’s;

(xviii)       the Servicing Standard in the Lead Securitization Servicing Agreement shall require, among other things, that each Servicer, in servicing the Mortgage Loan, must take into account the interests of each Note Holder; and

(xix)       the holder of the Lead Securitization Note shall:

(i)       on, or within a timely manner following, the closing date of the Lead Securitization, provide notice of the closing of the Lead Securitization and send (or provide for access through a financial printer together with notice (which may be by email) and contact information therefor) a copy (in EDGAR-compatible format) of the Lead Securitization Servicing Agreement to each other Note Holder; and

(ii)       give each other Note Holder written notice in a timely manner (but no later than one (1) business day prior to the applicable filing date) of any re-filing (other than a filing made in connection with a formal amendment of the Lead Securitization Servicing Agreement) by the Depositor of the Lead Securitization Servicing Agreement subsequent to the Securitization Date if such filing contains revisions or changes that are material to the other Note Holders.

(d)       Each Non-Lead Securitization Note Holder agrees that, if the related Non-Lead Securitization Note is included in a Securitization, it shall cause the applicable Non-Lead Securitization Servicing Agreement to contain provisions to the effect that:

(i)       such Non-Lead Securitization Note Holder shall be responsible for its pro rata share of any Nonrecoverable Advances relating to Servicing Advances (and Advance Interest thereon) and any additional expenses of the Trust Fund, but only to the extent that such expenses relate to servicing and administration of the Notes, including without limitation, any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees relating to the Notes, and that in the event that amounts on deposit in the Companion Distribution Account or Collection Account in respect of the Mortgage Loan, as applicable, are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to, promptly following notice from the Master Servicer, reimburse the Master Servicer, the Special Servicer, the Certificate Administrator or the

-24- 

Trustee, as applicable, out of general collections in the collection account (or equivalent account) established under the Non-Lead Securitization Servicing Agreement for such Non-Lead Securitization Note Holder’s pro rata share of any such Nonrecoverable Advances and/or additional expenses of the Trust Fund;

(ii)       each of the Indemnified Parties shall be indemnified (as and to the same extent the Lead Securitization Trust is required to indemnify each of such Indemnified Parties in respect of other mortgage loans in the Lead Securitization Trust pursuant to the terms of Lead Securitization Servicing Agreement) by each Securitization Trust holding a Non-Lead Securitization Note, against any of the Indemnified Items to the extent of its pro rata share of such Indemnified Items, and to the extent amounts on deposit in the Companion Distribution Account are insufficient for reimbursement of such amounts, the related Non-Lead Master Servicer will be required to reimburse each of the applicable Indemnified Parties for its pro rata share of the insufficiency out of general collections in the collection account (or equivalent account) established under the related Non-Lead Securitization Servicing Agreement; provided, however, that such Non-Lead Securitization Servicing Agreement may include limitations and conditions on the payment or reimbursement of Indemnified Items to the Operating Advisor (including limitations and conditions with respect to the timing of such payments or reimbursements and the sources of funds for such payments or reimbursements);

(iii)       the related Non-Lead Master Servicer, related Non-Lead Trustee or certificate administrator under the related Non-Lead Securitization Servicing Agreement will be required to deliver to the Trustee, the Certificate Administrator, the Special Servicer, the Master Servicer and the Operating Advisor (i) promptly following Securitization of such Non-Lead Securitization Note, notice of the deposit of such Non-Lead Securitization Note into a Securitization Trust (which notice shall also provide contact information for the related Non-Lead Trustee, the related certificate administrator, the related Non-Lead Master Servicer, the related Non-Lead Special Servicer and the party designated to exercise the rights of the related “Non-Controlling Note Holder” and “Non-Lead Securitization Note Holder” under this Agreement), accompanied by a certified copy of the related executed Non-Lead Securitization Servicing Agreement and (ii) notice of any subsequent change in the identity of the related Non-Lead Master Servicer or the party designated to exercise the rights of the related “Non-Controlling Note Holder” or “Non-Lead Securitization Note Holder” under this Agreement (together with the relevant contact information); and

(iv)       the Master Servicer and the Special Servicer and the Lead Securitization Trust shall be third party beneficiaries of the foregoing provisions.

(e)       Prior to the Securitization of a Non-Lead Securitization Note (including any New Note), all notices, reports, information or other deliverables required to be delivered to the related Non-Lead Securitization Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Non-Lead Securitization Note Holder (or its Note Holder Representative) and, when so delivered to such Non-Lead Securitization Note Holder (or its Note Holder Representative, as

-25- 

applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement. Following the Securitization of a Non-Lead Securitization Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to the related Non-Lead Securitization Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the related Non-Lead Master Servicer and Non-Lead Special Servicer (who then may forward such items to the party entitled to receive such items as and to the extent provided in the related Non-Lead Securitization Servicing Agreement) and, when so delivered to such Non-Lead Master Servicer and such Non-Lead Special Servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement (except where required by this Agreement or the Lead Securitization Servicing Agreement to deliver items directly to a Non-Lead Depositor or other party to a Non-Lead Securitization Servicing Agreement for purposes of compliance with securities laws).

(f)       The Lead Securitization Note Holder agrees that, if a Non-Lead Securitization Note is included in a Securitization, and such Non-Lead Securitization is subject to reporting requirements under Regulation AB, the Master Servicer, the Special Servicer, the Trustee and the Custodian shall be required to reasonably cooperate with the Non-Lead Asset Representations Reviewer in connection with such Non-Lead Asset Representations Reviewer’s obligations under any Non-Lead Securitization Servicing Agreement with respect to the Mortgage Loan by providing any documents reasonably requested by the Non-Lead Asset Representations Reviewer or other requesting party in connection with the Non-Lead Asset Representations Reviewer’s obligations, but only to the extent such documents are in the possession of the Master Servicer, the Special Servicer, the Trustee or the Custodian, as the case may be, but in any event excluding any documents known to such the Master Servicer, the Special Servicer, the Trustee or the Custodian to contain information that is proprietary to the related originator or Initial Note Holders or any draft documents or privileged or internal communications. The reasonable out-of-pocket expenses of the Master Servicer, Special Servicer, the Trustee and the Custodian actually incurred in connection with their compliance with such requests shall be reimbursable by the Non-Lead Asset Representations Reviewer or, if not paid by the Non-Lead Asset Representations Reviewer, the Non-Lead Securitization Note Holder.

Section 3. Priority of Payments.

(a)       Each Note shall be of equal priority, and no portion of any Note shall have priority or preference over any portion of any other Note or security therefor. All amounts tendered by the Mortgage Loan Borrower or otherwise available for payment on or with respect to or in connection with the Mortgage Loan or the Mortgaged Property or amounts realized as proceeds thereof, whether received in the form of Periodic Payments, the Balloon Payment, Liquidation Proceeds, proceeds under any guaranty, letter of credit or other collateral or instrument securing the Mortgage Loan or Insurance and Condemnation Proceeds (other than

-26- 

proceeds, awards or settlements to be applied to the restoration or repair of the Mortgaged Property or released to the Mortgage Loan Borrower in accordance with the terms of the Mortgage Loan Documents) shall be applied by the Lead Securitization Note Holder (or its designee) to the Notes on a Pro Rata and Pari Passu Basis; provided, that (x) all amounts for required reserves or escrows required by the Mortgage Loan Documents to be held as reserves or escrows or received as reimbursements on account of recoveries in respect of property protection expenses or Servicing Advances then due and payable or reimbursable to the Trustee or any Servicer under the Lead Securitization Servicing Agreement shall be applied to the extent set forth in, and in accordance with the terms of, the Mortgage Loan Documents; and (y) all amounts that are then due, payable or reimbursable to any Servicer, with respect to the Mortgage Loan pursuant to the Lead Securitization Servicing Agreement and any other compensation payable to it thereunder (including without limitation, any additional expenses of the Trust Fund relating to the Mortgage Loan (but subject to the second paragraph of Section 5(d) hereof) reimbursable to, or payable by, such parties and any Special Servicing Fees, Liquidation Fees, Workout Fees and Penalty Charges (to the extent provided in the immediately following paragraph) but excluding (i) any P&I Advances (and interest thereon) on the Lead Securitization Note, which shall be reimbursed in accordance with Section 2(b) hereof, and (ii) any Master Servicing Fees due to the Master Servicer in excess of the Non-Lead Securitization Note’s pro rata share of that portion of such servicing fees calculated at the “primary servicing fee rate” applicable to the Mortgage Loan as set forth in the Lead Securitization Servicing Agreement, which such excess shall not be subject to the allocation provisions of this Section 3) shall be payable in accordance with the Lead Securitization Servicing Agreement.

For clarification purposes, Penalty Charges paid on each Note shall first, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay the Master Servicer, the Trustee or the Special Servicer for any interest accrued on any Servicing Advances and reimbursement of any Servicing Advances in accordance with the terms of the Lead Securitization Servicing Agreement, second, be used to reduce the respective amounts payable on each Note by the amount necessary to pay the Master Servicer, Trustee, the Non-Lead Master Servicer or the Non-Lead Trustee for any interest accrued on any P&I Advance made with respect to such Note by such party (if and as specified in the Lead Securitization Servicing Agreement or the Non-Lead Securitization Servicing Agreement, as applicable), third, be used to reduce, on a pro rata basis, the amounts payable on each Note by the amount necessary to pay additional expenses of the Trust Fund (including, if not paid by the Mortgage Loan Borrower, Special Servicing Fees, unpaid Workout Fees and Liquidation Fees) incurred with respect to the Mortgage Loan (as specified in the Lead Securitization Servicing Agreement) and finally, shall be paid to the Master Servicer and/or the Special Servicer as additional servicing compensation as provided in the Lead Securitization Servicing Agreement.

Any proceeds received from the sale of the primary servicing rights with respect to the Mortgage Loan shall be remitted, promptly upon receipt thereof, to the Note Holders on a Pro Rata and Pari Passu Basis. Any proceeds received by any Note Holder from the sale of master servicing rights with respect to its Note shall be for its own account.

Section 4. Workout. Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Lead Securitization Servicing Agreement,

-27- 

and the obligation to act in accordance with the Servicing Standard, if the Lead Securitization Note Holder, or any Servicer, in connection with a workout or proposed workout of the Mortgage Loan, modifies the terms thereof such that (i) the principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate is reduced, (iii) payments of interest or principal on any Note are waived, reduced or deferred or (iv) any other adjustment is made to any of the payment terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the equal priorities of each Note as described in Section 3.

Section 5. Administration of the Mortgage Loan.

(a)       Subject to this Agreement (including but not limited to Section 5(c)) and the Lead Securitization Servicing Agreement and subject to the rights and consents, where required, of the Controlling Note Holder, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so).

Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder), upon the Mortgage Loan becoming a Defaulted Loan to sell the Notes together as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement and shall require that all offers be submitted to the Special Servicer in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be

-28- 

determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In determining whether any offer from an Interested Person received represents a fair price for the Mortgage Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such Appraisal, on a new Appraisal. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal or updated Appraisal or narrative appraisal that it may have obtained within the prior nine (9) months pursuant to the Lead Securitization Servicing Agreement) among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the Master Servicer. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required if the related Non-Lead Securitization Note is held by a Borrower Party) unless the Special Servicer has delivered to such Non-Lead Securitization Note Holder: (a) at least 15 Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors and the Lead Securitization Note Holder Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided, however, that such Non-Lead Securitization Note Holder may waive any delivery or timing requirements set forth in this sentence only for itself. Subject to the foregoing, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the Non-Controlling Note Holder Representatives shall be permitted to submit an offer at any sale of the Mortgage Loan (unless such Person is a Borrower Party).

Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third

-29- 

party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person.

Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the original related Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale.

The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is repurchased by the Initial Note Holder from the trust fund established under the Lead Securitization Servicing Agreement in connection with a material breach of representation or warranty made by such Initial Note Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by the related Initial Note Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to a Non-Lead Securitization Note Holder the benefit of any representation or warranty made by such Initial Note Holder or any document delivery obligation imposed on such Initial Note Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Initial Note Holder in connection with the Lead Securitization.

(b)       The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder. The

-30- 

Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect any Non-Lead Securitization Note Holder in its capacity as a Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein.

(c)       Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Note Holder Representative pursuant to the Lead Securitization Servicing Agreement (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period) with respect to any Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to a Non-Lead Securitization Note Holder (or its Non-Lead Securitization Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Note Holder Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period, but subject to any limitations in the Lead Securitization Servicing Agreement regarding providing such information to the Mortgage Loan Borrower or those who have certain relationships with the Mortgage Loan Borrower) and (ii) to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may make any Major

-31- 

Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative).

In addition to the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to attend (in person or telephonically, in the discretion of the Master Servicer or Special Servicer, as applicable) annual meetings with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed.

(d)       If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan.

Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement

-32- 

or payment otherwise distributable to the other Note Holder be reduced to offset or make-up any such payment or deficit.

Section 6. Rights of the Controlling Note Holder and Non-Controlling Note Holders.

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

Neither the Controlling Note Holder Representative nor the Controlling Note Holder, in such capacity, will have any liability to the other Note Holders or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith, gross negligence or breach of this Agreement. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over the other Note Holder, and that the Controlling Note Holder

-33- 

Representative or Controlling Note Holder may have special relationships and interests that conflict with the interests of other Note Holders and, absent willful misfeasance, bad faith, gross negligence or breach of this Agreement on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, acting in such capacity, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder.

(b)       Each Non-Controlling Note Holder shall have the right at any time to appoint a representative (other than a Borrower Party) in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis.

Each Non-Controlling Note Holder (if it is not the Lead Securitization Note Holder) shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization Servicing Agreement shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon. The Non-Controlling Note Holder Representatives with respect to the Non-Controlling Notes, as of the date of this Agreement and until the Lead Securitization Note Holder (and the Master Servicer and the Special Servicer) is notified otherwise, shall be the Initial Note A-2 Holder with respect to Note A-2, the Initial Note A-3 Holder with respect to Note A-3 and the Initial Note A-4 Holder with respect to Note A-4.

(c)       The Controlling Note Holder shall be entitled to exercise the rights and powers granted to the Controlling Note Holder hereunder and the rights and powers granted to the “Directing Holder,” “Controlling Class Certificateholder,” “Controlling Class Representative” or similar party under, and as defined in, the Lead Securitization Servicing Agreement with respect to the Mortgage Loan. In addition, the Controlling Note Holder shall be entitled to advise (1) the Special Servicer with respect to all matters related to the Mortgage Loan if it is a “Specially Serviced Loan” (as defined in the Lead Securitization Servicing Agreement) and (2) the Special Servicer with respect to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and, except as set forth below, (i) the Master Servicer shall not be permitted to implement any Major Decision unless it has obtained the prior written consent of the Special Servicer and (ii)

-34- 

the Special Servicer shall not be permitted to consent to the Master Servicer’s implementing any Major Decision nor will the Special Servicer itself be permitted to implement any Major Decision as to which the Controlling Note Holder has objected in writing within ten (10) Business Days after receipt of the written recommendation and analysis and such additional information requested by the Controlling Note Holder, and reasonably available to the Special Servicer, as may be necessary in order to make a judgment with respect to such Major Decision. The Controlling Note Holder may also direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Note Holder may deem advisable.

If the Controlling Note Holder fails to notify the Special Servicer of its approval or disapproval of any proposed Major Decision within ten (10) Business Days after delivery to the Controlling Note Holder by the applicable Servicer of written notice of a proposed Major Decision together with any information requested by the Controlling Note Holder as may be necessary in the reasonable judgment of the Controlling Note Holder in order to make a judgment, then upon the expiration of such ten (10) Business Day period, such Major Decision shall be deemed to have been approved by the Controlling Note Holder.

In the event that the Special Servicer or Master Servicer (in the event the Master Servicer is otherwise authorized by the Lead Securitization Servicing Agreement to take such action), as applicable, determines that immediate action, with respect to the foregoing matters, or any other matter requiring consent of the Controlling Note Holder is necessary to protect the interests of the Note Holders (as a collective whole) and the Special Servicer has made a reasonable effort to contact the Controlling Note Holder, the Master Servicer or the Special Servicer, as the case may be, may take any such action without waiting for the Controlling Note Holder’s response.

No objection, consent, direction or advice contemplated by the preceding paragraphs may, and neither the Master Servicer nor Special Servicer shall take any action that would (i) require or cause the Master Servicer or the Special Servicer, as applicable, to violate any provision of the Mortgage Loan Documents, applicable law, the Lead Securitization Servicing Agreement, this Agreement, the REMIC Provisions or the Master Servicer or Special Servicer’s obligation to act in accordance with the Servicing Standard or (ii) result in the imposition of a tax on any Trust REMIC under the REMIC Provisions or cause any REMIC Pool to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust under subpart E, part I of subchapter J of the Code for federal income tax purposes, (iii) expose the Master Servicer, the Special Servicer, the Certificate Administrator, the Operating Advisor, the Depositor, the Asset Representations Reviewer, the Trust or the Trustee or any of their respective Affiliates, officers, directors, shareholders, partners, members, managers, employees or agents to any claim, suit, or liability for which this Agreement or the Lead Securitization Servicing Agreement does not provide indemnification to such party or expose any such party to prosecution for a criminal offense, (iv) materially expand the scope of responsibilities of any of the Master Servicer, Special Servicer, the Certificate Administrator, the Asset Representations Reviewer, the Trustee or the Operating Advisor, as applicable, under this Agreement or the Lead Securitization Servicing Agreement.

-35- 

Section 7. Appointment of Special Servicer. Subject to the conditions and requirements set forth in the Lead Securitization Servicing Agreement, the Controlling Note Holder shall have the right at any time and from time to time, with or without cause, to replace the Special Servicer then acting with respect to the Mortgage Loan and appoint a replacement Special Servicer in lieu thereof. Any designation by the Controlling Note Holder (or its Controlling Note Holder Representative) of a Person to serve as Special Servicer shall be made by delivering to the other Note Holder, the Master Servicer, the then existing Special Servicer and other parties to the Lead Securitization Servicing Agreement a written notice stating such designation and satisfying the other conditions to such replacement as set forth in the Lead Securitization Servicing Agreement (including, without limitation, a Rating Agency Confirmation, but only if required by the terms of the Lead Securitization Servicing Agreement), and delivering to each Non-Controlling Note Holder a Rating Agency Confirmation with respect to any rated securities issued and outstanding under the related Securitization if such replacement Special Servicer does not meet the Required Special Servicer Rating with respect to those Rating Agencies rating the securities of any Securitization related to a Non-Controlling Note Holder. The Controlling Note Holder shall be solely responsible for any expenses incurred in connection with any such replacement without cause. The Controlling Note Holder shall notify the Non-Controlling Note Holders of its termination of the then currently serving Special Servicer and its appointment of a replacement Special Servicer in accordance with this Section 7. If the Controlling Note Holder has not appointed a Special Servicer with respect to the Mortgage Loan as of the consummation of the securitization under the Lead Securitization Servicing Agreement, then the initial Special Servicer designated in the Lead Securitization Servicing Agreement shall serve as the initial Special Servicer but this shall not limit the right of the Controlling Note Holder (or its Controlling Note Holder Representative) to designate a replacement Special Servicer for the Mortgage Loan as aforesaid. If a Servicer Termination Event on the part of the Special Servicer has occurred that affects a Non-Controlling Note Holder, such Non-Controlling Note Holder shall have the right to direct the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer under the Lead Securitization Servicing Agreement solely with respect to the Mortgage Loan pursuant to and in accordance with the terms of the Lead Securitization Servicing Agreement. The Note Holders acknowledge and agree that any successor special servicer appointed to replace the Special Servicer with respect to the Mortgage Loan that was terminated for cause at a Non-Controlling Note Holder’s direction cannot at any time be the person (or an Affiliate thereof) that was so terminated without the prior written consent of such Non-Controlling Note Holder. Upon the occurrence of such a Servicer Termination Event with respect to the Master Servicer that affects a Non-Lead Securitization Note Holder, and the Master Servicer is not otherwise terminated pursuant to the Lead Securitization Servicing Agreement, the Trustee or the Master Servicer shall, upon the direction of the affected Non-Lead Securitization Note Holder, require the appointment of a subservicer with respect to the Mortgage Loan. The Non-Controlling Note Holder that directs the Trustee (or at any time that the Mortgage Loan is no longer included in a Securitization Trust, the Controlling Note Holder) to terminate the Special Servicer shall be solely responsible for reimbursing the Trustee’s or the Controlling Note Holder’s, as applicable, costs and expenses, if not paid within a reasonable time by the terminated special servicer and, in the case of the Trustee, that would otherwise be reimbursed to the Trustee from amounts on deposit in the Collection Account under the Lead Securitization Servicing Agreement.

-36- 

Section 8. Payment Procedure.

(a)       The Lead Securitization Note Holder (or the Master Servicer acting on its behalf), in accordance with the priorities set forth in Section 3 and subject to the terms of the Lead Securitization Servicing Agreement, shall deposit or cause to be deposited all payments allocable to the Notes to the Collection Account and/or Companion Distribution Account pursuant to and in accordance with the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder (or the Master Servicer acting on its behalf) shall deposit such amounts to the applicable account within two (2) Business Days after receipt by it of properly identified funds by the Lead Securitization Note Holder (or the Master Servicer acting on its behalf) from or on behalf of the Mortgage Loan Borrower.

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

(c)       If, for any reason, the Lead Securitization Note Holder makes any payment to a Non-Lead Securitization Note Holder before the Lead Securitization Note Holder has received the corresponding payment (it being understood that the Lead Securitization Note Holder is under no obligation to do so), and the Lead Securitization Note Holder does not receive the corresponding payment within five (5) Business Days of its payment to such Non-Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall, at the Lead Securitization Note Holder’s request, promptly return that payment to the Lead Securitization Note Holder.

(d)       Each Note Holder agrees that if at any time it shall receive from any sources whatsoever any payment on account of the Mortgage Loan in excess of its distributable share thereof, it shall promptly remit such excess to the applicable Note Holder, subject to this Agreement and the Lead Securitization Servicing Agreement. The Lead Securitization Note Holder shall have the right to offset any amounts due hereunder from a Non-Lead Securitization Note Holder with respect to the Mortgage Loan against any future payments due to such Non-Lead Securitization Note Holder under the Mortgage Loan. A Non-Lead Securitization Note Holder’s obligations under this Section 8 constitute absolute, unconditional and continuing obligations.

Section 9. Limitation on Liability of the Note Holders. Each Note Holder shall have no liability to any other Note Holder with respect to its Note except with

-37- 

respect to losses actually suffered due to the gross negligence, willful misconduct or breach of this Agreement on the part of such Note Holder; provided, that, notwithstanding any of the foregoing to the contrary, each Servicer will nevertheless be subject to the obligations and standards (including the Servicing Standard) set forth in the related Securitization Servicing Agreement.

The Note Holders acknowledge that, subject to the obligation of the Lead Securitization Note Holder (including any Servicer and the Trustee) to comply with, and except as otherwise required by, the Servicing Standard, the Lead Securitization Note Holder (including any Servicer and the Trustee) may exercise, or omit to exercise, any rights that the Lead Securitization Note Holder may have under the Lead Securitization Servicing Agreement in a manner that may be adverse to the interests of any Non-Lead Securitization Note Holder and that the Lead Securitization Note Holder (including any Servicer and the Trustee) shall have no liability whatsoever to any Non-Lead Securitization Note Holder in connection with such Lead Securitization Note Holder’s exercise of rights or any omission by the Lead Securitization Note Holder to exercise such rights other than as described above; provided, however, that the Servicer must act in accordance with the Servicing Standard.

Section 10. Bankruptcy. Subject to Section 5(c), each Note Holder hereby covenants and agrees that only the Lead Securitization Note Holder has the right to institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303 or otherwise or join any Person in any such petition or otherwise invoke or cause any other Person to invoke an Insolvency Proceeding with respect to or against the Mortgage Loan Borrower or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official with respect to the Mortgage Loan Borrower or all or any part of its property or assets or ordering the winding-up or liquidation of the affairs of the Mortgage Loan Borrower. Each Note Holder further agrees that only the Lead Securitization Note Holder, and not any Non-Lead Securitization Note Holder, can make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding. The Note Holders hereby appoint the Lead Securitization Note Holder as their agent, and grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and their proxy, for the purpose of exercising any and all rights and taking any and all actions available to a Non-Lead Securitization Note Holder in connection with any case by or against the Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency Proceeding, including, without limitation, the right to file and/or prosecute any claim, vote to accept or reject a plan, to make any election under Section 1111(b) of the Bankruptcy Code with respect to the Mortgage Loan, and to file a motion to modify, lift or terminate the automatic stay with respect to the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby agrees that, upon the request of the Lead Securitization Note Holder, such Non-Lead Securitization Note Holder shall execute, acknowledge and deliver to the Lead Securitization Note Holder all and every such further deeds, conveyances and instruments as the Lead Securitization Note Holder may reasonably request for the better assuring and evidencing of the foregoing appointment and grant. All actions taken by the Servicer in connection with any Insolvency Proceeding are subject to and must be in accordance with the Servicing Standard.

-38- 

Section 11. Representations of the Note Holders. Each Note Holder represents and warrants that the execution, delivery and performance of this Agreement is within its corporate powers, has been duly authorized by all necessary corporate action, and does not contravene such Note Holder’s charter or any law or contractual restriction binding upon such Note Holder, and that this Agreement is the legal, valid and binding obligation of such Note Holder enforceable against such Note Holder in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law. Each Note Holder represents and warrants that it is duly organized, validly existing, in good standing and in possession of all licenses and authorizations necessary to carry on its business. Each Note Holder represents and warrants that (a) this Agreement has been duly executed and delivered by such Note Holder, (b) to such Note Holder’s actual knowledge, all consents, approvals, authorizations, orders or filings of or with any court or governmental agency or body, if any, required for the execution, delivery and performance of this Agreement by such Note Holder have been obtained or made and (c) to such Note Holder’s actual knowledge, there is no pending action, suit or proceeding, arbitration or governmental investigation against such Note Holder, an adverse outcome of which would materially and adversely affect its performance under this Agreement.

Section 12. No Creation of a Partnership or Exclusive Purchase Right. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the relationship created hereby between the Note Holders as a partnership, association, joint venture or other entity. The Lead Securitization Note Holder shall have no obligation whatsoever to offer to any Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates and if the Lead Securitization Note Holder chooses to offer to a Non-Lead Securitization Note Holder the opportunity to purchase a participation interest in any future mortgage loans originated by the Lead Securitization Note Holder or its Affiliates, such offer shall be at such purchase price and interest rate as the Lead Securitization Note Holder chooses, in its sole and absolute discretion. No Non-Lead Securitization Note Holder shall have any obligation whatsoever to purchase from the Lead Securitization Note Holder a participation interest in any future loans originated by the Lead Securitization Note Holder or its Affiliates.

Section 13. Other Business Activities of the Note Holders. Each Note Holder acknowledges that the other Note Holder or its Affiliates may make loans or otherwise extend credit to, and generally engage in any kind of business with, a Borrower Party, any entity that is a holder of debt secured by direct or indirect ownership interests in the Mortgage Loan Borrower or any entity that is a holder of a preferred equity interest in the Mortgage Loan Borrower, and receive payments on such other loans or extensions of credit to any such party and otherwise act with respect thereto freely and without accountability in the same manner as if this Agreement and the transactions contemplated hereby were not in effect.

-39- 

Section 14. Sale of the Notes.

(a)       Except as contemplated by the second following sentence, each Note Holder agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its respective Note (a “Transfer”) except to a Qualified Institutional Lender in accordance with the terms of this Agreement. Promptly after the Transfer (other than a Transfer to a Securitization Trust), the non-transferring Note Holder(s) shall be provided with (x) a representation from a transferee or the applicable Note Holder certifying that such transferee is a Qualified Institutional Lender (except in the case of a Transfer in accordance with the immediately following sentence) and (y) a copy of the assignment and assumption agreement referred to in Section 15. If a Note Holder intends to Transfer its respective Note, or any portion thereof, to an entity that is not a Qualified Institutional Lender, it must first (a) obtain the consent of each non-transferring Note Holder and (b) if such non-transferring Note Holder’s Note is held in a Securitization Trust, obtain a Rating Agency Confirmation from each Rating Agency then rating the securities of such Securitization Trust. Notwithstanding the foregoing, without the non-transferring Note Holder’s prior consent (which will not be unreasonably withheld), and, if such non-transferring Note Holder’s Note is held in a Securitization Trust, until a Rating Agency Confirmation is obtained, no Note Holder shall Transfer all or any portion of its Note (or a participation interest in such Note) to a Borrower Party and any such Transfer made without the prior consent of the non-transferring Note Holder and Rating Agency Confirmation (if such non-transferring Note Holder’s Note is held in a Securitization Trust), shall be absolutely null and void and shall vest no rights in the purported transferee; provided that for the avoidance of doubt, transfers of any securities backed by a Note held in a Securitization Trust will not be subject to the foregoing requirement and such transfers shall be governed by the terms of the Lead Securitization Servicing Agreement or any related Non-Lead Securitization Servicing Agreement, as applicable. The transferring Note Holder agrees that it shall pay the expenses of the non-transferring Note Holder (including all expenses of the Master Servicer, the Special Servicer, the Trustee and any Controlling Note Holder or Controlling Note Holder Representative) and all expenses relating to any Rating Agency Confirmation in connection with any such Transfer. Notwithstanding the foregoing, each Note Holder shall have the right, without the need to obtain the consent of the other Note Holder or of any other Person or having to provide any Rating Agency Confirmation, to Transfer 49% or less (in the aggregate) of its beneficial interest in a Note. None of the provisions of this Section 14(a) shall apply in the case of (1) a sale of all of the Notes together, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement or (2) a transfer by the Special Servicer, in accordance with the terms and conditions of the Lead Securitization Servicing Agreement, of the Mortgage Loan or the Mortgaged Property, upon the Mortgage Loan becoming a Defaulted Loan to a single member limited liability or limited partnership, 100% of the equity interest in which is owned directly or indirectly, through one or more single member limited liability companies or limited partnerships, by the Lead Securitization Trust.

(b)       In the case of any Transfer of a participation interest in any of the Notes, (i) the respective Note Holders’ obligations under this Agreement shall remain unchanged, (ii) such Note Holders shall remain solely responsible for the performance of such obligations, and (iii) the Lead Securitization Note Holder and any Persons acting on its behalf shall continue

-40- 

to deal solely and directly with such Note Holder in connection with such Note Holder’s rights and obligations under this Agreement and the Lead Securitization Servicing Agreement, and all amounts payable hereunder shall be determined as if such Note Holder had not sold such participation interest.

(c)       Notwithstanding any other provision hereof, any Note Holder may pledge (a “Pledge”) its Note to any entity (other than a Borrower Party) which has extended a credit facility to such Note Holder and that is either a Qualified Institutional Lender or a financial institution whose long-term unsecured debt is rated at least “A” (or the equivalent) or better by each Rating Agency (or, if not rated by an applicable Rating Agency, an equivalent or higher rating from any two of Fitch, Moody’s and S&P) (a “Note Pledgee”), on terms and conditions set forth in this Section 14(c), it being further agreed that a financing provided by a Note Pledgee to a Note Holder or any person which Controls such Note that is secured by its Note and is structured as a repurchase arrangement, shall qualify as a “Pledge” hereunder, provided that a Note Pledgee that is not a Qualified Institutional Lender may not take title to the pledged Note without a Rating Agency Confirmation. Upon written notice by the applicable Note Holder to any other Note Holder and any Servicer that a Pledge has been effected (including the name and address of the applicable Note Pledgee), such other Note Holder agrees to acknowledge receipt of such notice and thereafter agrees: (i) to give Note Pledgee written notice of any default by the pledging Note Holder in respect of its obligations under this Agreement of which default such Note Holder has actual knowledge; (ii) to allow such Note Pledgee a period of ten (10) days to cure a default by the pledging Note Holder in respect of its obligations to any other Note Holder hereunder, but such Note Pledgee shall not be obligated to cure any such default; (iii) that no amendment, modification, waiver or termination of this Agreement shall be effective against such Note Pledgee without the written consent of such Note Pledgee, which consent shall not be unreasonably withheld, conditioned or delayed; (iv) that such other Note Holder shall give to such Note Pledgee copies of any notice of default under this Agreement simultaneously with the giving of same to the pledging Note Holder; (v) that such other Note Holder shall deliver to Note Pledgee such estoppel certificate(s) as Note Pledgee shall reasonably request, provided that any such certificate(s) shall be in a form reasonably satisfactory to such other Note Holder; and (vi) that, upon written notice (a “Redirection Notice”) to the other Note Holders and any Servicer by such Note Pledgee that the pledging Note Holder is in default, beyond any applicable cure periods, under the pledging Note Holder’s obligations to such Note Pledgee pursuant to the applicable credit agreement between the pledging Note Holder and such Note Pledgee (which notice need not be joined in or confirmed by the pledging Note Holder), and until such Redirection Notice is withdrawn or rescinded by such Note Pledgee, Note Pledgee shall be entitled to receive any payments that any Note Holder or Servicer would otherwise be obligated to pay to the pledging Note Holder from time to time pursuant to this Agreement or the Lead Securitization Servicing Agreement. Any pledging Note Holder hereby unconditionally and absolutely releases the other Note Holders and any Servicer from any liability to the pledging Note Holder on account of such other Note Holder’s or Servicer’s compliance with any Redirection Notice believed by any Servicer or such other Note Holder to have been delivered by a Note Pledgee. A Note Pledgee shall be permitted to exercise fully its rights and remedies against the pledging Note Holder to such Note Pledgee (and accept an assignment in lieu of foreclosure as to such collateral), in accordance with applicable law and this Agreement. In such event, the Note Holders and any

-41- 

Servicer shall recognize such Note Pledgee (and any transferee other than a Borrower Party that is also a Qualified Institutional Lender at any foreclosure or similar sale held by such Note Pledgee or any transfer in lieu of foreclosure), and its successor and assigns, as the successor to the pledging Note Holder’s rights, remedies and obligations under this Agreement, and any such Note Pledgee or Qualified Institutional Lender shall assume in writing the obligations of the pledging Note Holder hereunder accruing from and after such Transfer (i.e., realization upon the collateral by such Note Pledgee) and agrees to be bound by the terms and provisions of this Agreement. The rights of a Note Pledgee under this Section 14(c) shall remain effective as to any Note Holder (and any Servicer) unless and until such Note Pledgee shall have notified any such Note Holder (and any Servicer, as applicable) in writing that its interest in the pledged Note has terminated.

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

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

(ii)       The Conduit Credit Enhancer is a Qualified Institutional Lender;

(iii)       Such Note Holder pledges its interest in its Note to the Conduit as collateral for the Conduit Inventory Loan;

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

(v)       Unless the Conduit is in fact then a Qualified Institutional Lender, the Conduit will not without obtaining a Rating Agency Confirmation from each Rating Agency have any greater right to acquire the interests in the Note pledged by such Note Holder, by foreclosure or otherwise, than would any other purchaser that is not a Qualified Institutional Lender at a foreclosure sale conducted by a Note Pledgee.

Section 15. Registration of the Notes and Each Note Holder. The Agent shall keep or cause to be kept at the Agent Office books (the “Note Register”) for the registration and transfer of the Notes. The Agent shall serve as the initial note registrar and the Agent hereby accepts such appointment. The names and addresses of the holders of the Notes and the names and addresses of any transferee of any Note of which the Agent has received notice, in the form of a copy of the assignment and assumption agreement referred to in this Section 15, shall be registered in the Note Register. The Person in whose name a Note is so registered shall be

-42- 

deemed and treated as the sole owner and holder thereof for all purposes of this Agreement. Upon request of a Note Holder, the Agent shall provide such party with the names and addresses of the other Note Holder. To the extent the Trustee or another party is appointed as Agent hereunder, each Note Holder hereby designates such person as its agent under this Section 15 solely for purposes of maintaining the Note Register.

In connection with any Transfer of a Note (but excluding any Pledgee unless and until it realizes on its Pledge), a transferee shall execute an assignment and assumption agreement (unless the transferee is a Securitization Trust and the related pooling and servicing agreement requires the parties thereto to comply with this Agreement), whereby such transferee assumes all of the obligations of the applicable Note Holder hereunder with respect to such Note thereafter accruing and agrees to be bound by the terms of this Agreement, including the applicable restriction on Transfers set forth in Section 14, from and after the date of such assignment. No transfer of a Note may be made unless it is registered on the Note Register, and the Agent shall not recognize any attempted or purported transfer of any Note in violation of the provisions of Section 14 and this Section 15. Any such purported transfer shall be absolutely null and void and shall vest no rights in the purported transferee. Each Note Holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Agent and the other Note Holders against any liability that may result if the transfer is not made in accordance with the provisions of this Agreement.

Section 16. Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Section 17. Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

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

(b)       CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE

-43- 

VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;

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

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

Section 18. Modifications. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by each Note Holder. Additionally, for as long as any Note is contained in a Securitization Trust, the Note Holders shall not amend or modify this Agreement without first obtaining a Rating Agency Confirmation from each Rating Agency then rating any securities of any Securitization; provided that no such Rating Agency Confirmation shall be required in connection with a modification (i) to cure any ambiguity, to correct or supplement any provisions herein that may be defective or inconsistent with any other provisions herein or with the Lead Securitization Servicing Agreement, or (ii) with respect to matters or questions arising under this Agreement, to make provisions in this Agreement consistent with other provisions of this Agreement (including, without limitation, in connection with the creation of New Notes pursuant to Section 32).

Section 19. Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except as provided herein, including without limitation, with respect to the Trustee, Certificate Administrator, Master Servicer and Special Servicer and the Non-Lead Master Servicer, Non-Lead Special Servicer or Non-Lead Trustee, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto. Subject to Section 14 and Section 15, each Note Holder may assign or delegate its rights or obligations under this Agreement. Upon any such assignment, the assignee shall be entitled to all rights and benefits of the applicable Note Holder hereunder.

Section 20. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.

Section 21. Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.

-44- 

Section 22. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 23. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the parties.

Section 24. Withholding Taxes. (a) (a) If the Lead Securitization Note Holder or the Mortgage Loan Borrower shall be required by law to deduct and withhold Taxes from interest, fees or other amounts payable to a Non-Lead Securitization Note Holder with respect to the Mortgage Loan as a result of such Non-Lead Securitization Note Holder constituting a Non-Exempt Person, the Lead Securitization Note Holder, in its capacity as servicer, shall be entitled to do so with respect to such Non-Lead Securitization Note Holder’s interest in such payment (all withheld amounts being deemed paid to such Note Holder), provided that the Lead Securitization Note Holder shall furnish such Non-Lead Securitization Note Holder with a statement setting forth the amount of Taxes withheld, the applicable rate and other information which may reasonably be requested for purposes of assisting such Note Holder to seek any allowable credits or deductions for the Taxes so withheld in each jurisdiction in which such Note Holder is subject to tax.

(b)       Each Non-Lead Securitization Note Holder shall and hereby agrees to indemnify the Lead Securitization Note Holder against and hold the Lead Securitization Note Holder harmless from and against any Taxes, interest, penalties and attorneys’ fees and disbursements arising or resulting from any failure of the Lead Securitization Note Holder to withhold Taxes from payment made such Non-Lead Securitization Note Holder in reliance upon any representation, certificate, statement, document or instrument made or provided by such Non-Lead Securitization Note Holder to the Lead Securitization Note Holder in connection with the obligation of the Lead Securitization Note Holder to withhold Taxes from payments made to such Non-Lead Securitization Note Holder, it being expressly understood and agreed that (i) the Lead Securitization Note Holder shall be absolutely and unconditionally entitled to accept any such representation, certificate, statement, document or instrument as being true and correct in all respects and to fully rely thereon without any obligation or responsibility to investigate or to make any inquiries with respect to the accuracy, veracity, correctness or validity of the same and (ii) such Non-Lead Securitization Note Holder, upon request of the Lead Securitization Note Holder and at its sole cost and expense, shall defend any claim or action relating to the foregoing indemnification using counsel selected by the Lead Securitization Note Holder.

(c)       Each Non-Lead Securitization Note Holder represents to the Lead Securitization Note Holder (for the benefit of the Mortgage Loan Borrower) that it is not a Non-Exempt Person and that neither the Lead Securitization Note Holder nor the Mortgage Loan Borrower is obligated under applicable law to withhold Taxes on sums paid to it with respect to the Mortgage Loan or otherwise pursuant to this Agreement. Contemporaneously with the

-45- 

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

Section 25. Custody of Mortgage Loan Documents. On and after the closing of the Lead Securitization, the originals of all of the Mortgage Loan Documents (other than the originals of the Non-Lead Securitization Notes) shall be held by the Trustee through a duly appointed custodian therefor, in accordance with the terms of the Lead Securitization Servicing Agreement, on behalf of the registered holders of the Notes; provided that if the First Securitization is not the Note A-1 Securitization, (i) the originals of all of the Mortgage Loan Documents (other than the Notes not being deposited into the First Securitization) shall be transferred to and held by the Trustee (of the First Securitization) through a duly appointed custodian therefor under the First Securitization, on behalf of the registered holders of the Notes, until the closing of the Note A-1 Securitization, on which date, the originals of all of the Mortgage Loan Documents (other than the Notes not being deposited into the Note A-1 Securitization) shall be transferred to and held in the name of the Trustee (by a duly appointed custodian therefor) under the Note A-1 PSA on behalf of the registered holders of the Notes; and (ii) all Mortgage Loan Documents (other than the Notes not being deposited into the Note A-1 Securitization) shall not be recorded or filed to reflect the name of the trustee under the Securitization Servicing Agreement for the First Securitization (except to the extent specifically provided for in the Securitization Servicing Agreement for the First Securitization).

Section 26. Cooperation in Securitization. Each Note Holder acknowledges that any Note Holder may elect, in its sole discretion, to include its Note in a Securitization. In connection with a Securitization and subject to the terms of the preceding sentence, at the request of the related Securitizing Note Holder, the related Non-Securitizing Note Holder shall use reasonable efforts, at such Securitizing Note Holder’s expense, to satisfy,

-46- 

and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to satisfy, the market standards to which such Securitizing Note Holder customarily adheres or that may be reasonably required in the marketplace or by the Rating Agencies in connection with such Securitization, including, entering into (or consenting to, as applicable) any modifications to this Agreement or the Mortgage Loan Documents and to cooperate with such Securitizing Note Holder in attempting to cause the Mortgage Loan Borrower to execute such modifications to the Mortgage Loan Documents, in any such case, as may be reasonably requested by the Rating Agencies to effect such Securitization; provided, that no Non-Securitizing Note Holder shall be required to modify or amend this Agreement or any Mortgage Loan Documents (or consent to such modification, as applicable) in connection therewith, if such modification or amendment would (i) change the interest allocable to, or the amount of any payments due to or priority of such payments to, such Non-Securitizing Note Holder or (ii) materially increase such Non-Securitizing Note Holder’s obligations or materially decrease such Non-Securitizing Note Holder’s rights, remedies or protections. In connection with any Securitization, each related Non-Securitizing Note Holder shall provide for inclusion in any disclosure document relating to such Securitization such information concerning such Non-Securitizing Note Holder and its Note as the related Securitizing Note Holder reasonably determines to be necessary or appropriate, and such Non-Securitizing Note Holder shall, at such Securitizing Note Holder’s expense, cooperate with the reasonable requests of each Rating Agency and such Securitizing Note Holder in connection with such Securitization (including, without limitation, reasonably cooperating with such Securitizing Note Holder (without any obligation to make additional representations and warranties) to enable such Securitizing Note Holder to make all necessary certifications and deliver all necessary opinions (including customary securities law opinions) in connection with the Mortgage Loan and such Securitization), as well as in connection with all other matters and the preparation of any offering documents thereof and to review and respond reasonably promptly with respect to any information relating to such Note Holder and its Note in any Securitization document. Each Note Holder acknowledges that in connection with any Securitization, the information provided by it in its capacity as a Non-Securitizing Note Holder to the related Securitizing Note Holder may be incorporated into the offering documents for such Securitization. Each Securitizing Note Holder and each Rating Agency shall be entitled to rely on the information supplied by, or on behalf of, each Non-Securitizing Note Holder.

Upon request, each Securitizing Note Holder shall deliver to the Non-Securitizing Note Holder drafts of the preliminary and final offering memoranda, prospectus supplement, free writing prospectus and any other disclosure documents and the pooling and servicing agreement for the Securitization of such Securitizing Note Holder’s Note and provide reasonable opportunity to review and comment on such documents.

Section 27. Notices. All notices required hereunder shall be given by (i)  facsimile transmission or e-mail (during business hours) if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service (charges prepaid), (ii) reputable overnight delivery service (charges prepaid) or (iii) certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth on Exhibit B hereto, or at such other address as any party shall hereafter inform the

-47- 

other party by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt.

Section 28. Broker. Each Note Holder represents to each other that no broker was responsible for bringing about this transaction.

Section 29. Certain Matters Affecting the Agent.

(a)       The Agent may request and/or rely upon and shall be protected in acting or refraining from acting upon any representation made or assignment and assumption agreement delivered to the Agent pursuant to Section 14 and Section 15;

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

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

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

(e)       The Agent shall not be bound to make any investigation into the facts or matters stated in any representation made or assignment and assumption agreement delivered to the Agent pursuant to Section 15;

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

(g)       The Agent represents and warrants that it is a Qualified Institutional Lender.

Section 30. Reserved.

Section 31. Resignation of Agent. The Agent may resign at any time on ten (10) days’ prior notice, so long as a successor Agent, reasonably satisfactory to the Note Holders (it being agreed that a Servicer, the Trustee or a Certificate Administrator in a Securitization is satisfactory to the Note Holders), has agreed to be bound by this Agreement and perform the duties of the Agent hereunder. WFB, as Initial Agent, may transfer its rights and obligations to a Servicer, the Trustee or the Certificate Administrator, as successor Agent, at any time without the consent of any Note Holder. Notwithstanding the foregoing, Note Holders hereby agree that, simultaneously with the closing of a Lead Securitization, the Master Servicer shall be deemed to have been automatically appointed as the successor Agent under this

-48- 

Agreement in place of WFB or the master servicer of the First Securitization, as applicable, without any further notice or other action. The termination or resignation of such Master Servicer, as Master Servicer under the Lead Securitization Servicing Agreement, shall be deemed a termination or resignation of such Master Servicer as Agent under this Agreement, and any successor master servicer shall be deemed to have been automatically appointed as the successor Agent under this Agreement in place thereof without any further notice or other action.

Section 32. Resizing. Notwithstanding any other provision of this Agreement, for so long as any Note Holder or an affiliate thereof (each, an “Original Entity”) is the owner of a Note that is not included in a Securitization (each, an “Owned Note”), such Original Entity shall have the right, subject to the terms of the Mortgage Loan Documents, to cause the Mortgage Loan Borrower to execute amended and restated notes or additional notes (in either case, “New Notes”) reallocating the principal of the Owned Note to such New Notes; or severing the Owned Note into one or more further “component” notes in the aggregate principal amount equal to the then outstanding principal balance of the Owned Note provided that (i) the aggregate principal balance of all outstanding New Notes following such amendments is no greater than the aggregate principal of the Owned Note prior to such amendments, (ii) all Notes continue to have the same weighted average interest rate as the Notes prior to such amendments, (iii) all Notes pay pro rata and on a pari passu basis and such reallocated or component notes shall be automatically subject to the terms of this Agreement, and (iv) the Original Entity holding the New Notes shall notify the Lead Securitization Note Holder, the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee in writing of such modified allocations and principal amounts. Except for the foregoing reallocation and for modifications pursuant to the Lead Securitization Servicing Agreement (as discussed in Section 5), no Note may be modified or amended without the consent of its holder and the consent of the holder of the other Notes. In connection with the foregoing (provided the conditions set forth in (i) through (iv) above are satisfied), the Master Servicer is hereby authorized and directed to execute amendments to the Mortgage Loan Documents and this Agreement on behalf of any or all of the Note Holders, as applicable, solely for the purpose of reflecting such reallocation of principal If the Lead Securitization Note Holder so requests, the Original Entity holding the New Notes shall (a) represent that the conditions set forth in (i) through (iv) have been satisfied and/or (b) deliver a confirmation of the continued applicability of this Agreement to the New Notes. If the Controlling Note is involved in any resizing contemplated by this Section 32, the applicable Note Holder shall be entitled to designate any one of the related New Notes as the Controlling Note, and the definitions of “Controlling Note” and “Controlling Note Holder” shall be deemed to have been revised accordingly. Any New Note that is created in a resizing contemplated by this Section 32 and that is not the Controlling Note shall be deemed to be a Non-Controlling Note under this Agreement, the definitions of “Non-Controlling Note” and “Non-Controlling Note Holder” shall be deemed to have been revised accordingly to include such New Notes, and the applicable Note Holders of such Non-Controlling Notes shall have the same rights and responsibilities as all other Non-Controlling Note Holders.

[Signature Page Follows]

-49- 

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

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Initial Agent and Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder and Initial Note A-4 Holder
By:	/s/ Jeffrey L. Cirillo
	Name:	Jeffrey L. Cirillo
	Title:	Managing Director

(Agreement Between Note Holders – 1201 Lake Robbins Mortgage Loan)

S-1 

EXHIBIT A

MORTGAGE LOAN SCHEDULE

Description of Mortgage Loan

Mortgage Loan Borrower:	HH Woodlands Tower Holdings, LLC
Date of Mortgage Loan:	October 8, 2021
Date of Notes:	October 8, 2021
Original Principal Amount of Mortgage Loan:	$250,000,000.00
Principal Amount of Mortgage Loan as of the date hereof:	$250,000,000.00
Initial Note A-1 Principal Balance:	$100,000,000.00
Initial Note A-2 Principal Balance:	$70,000,000.00
Initial Note A-3 Principal Balance:	$40,000,000.00
Initial Note A-4 Principal Balance:	$40,000,000.00
Location of Mortgaged Property:	The Woodlands, TX
Initial Maturity Date:	October 11, 2031

A-1

EXHIBIT B

Initial Note A-1 Holder, Initial Note A-2 Holder, Initial Note A-3 Holder and Initial Note A-4 Holder:

Wells Fargo Bank, National Association
30 Hudson Yards, 15^th Floor
New York, New York 10001
Attention: A.J. Sfarra

Email: Anthony.sfarra@wellsfargo.com

with a copy to:

Troy Stoddard, Esq.
Senior Counsel
Wells Fargo Legal Department
D1086-341
550 South Tryon St., 34^th Floor
Charlotte, North Carolina 28202

Email: troy.stoddard@wellsfargo.com

with a copy to (if by email):

mike.jewesson@alston.com and peter.mckee@alston.com

B-1

EXHIBIT C
PERMITTED FUND MANAGERS

1. AllianceBernstein

2. Annaly Capital Management

3. Apollo Real Estate Advisors

4. Archon Capital, L.P.

5. AREA Property Partners

6. Artemis Real Estate Partners

7. BlackRock, Inc.

8. Clarion Partners

9. Colony Northstar, Inc.

10. DLJ Real Estate Capital Partners

11. Dune Real Estate Partners

12. Eightfold Real Estate Capital, L.P.

13. Five Mile Capital Partners

14. Fortress Investment Group, LLC

15. Garrison Investment Group

16. H/2 Capital Partners LLC

17. Hudson Advisors

18. Investcorp International

19. iStar Financial Inc.

20. J.P. Morgan Investment Management Inc.

21. JER Partners

22. Lend-Lease Real Estate Investments

23. Libermax Capital LLC

24. LoanCore Capital

25. Lone Star Funds

26. Lowe Enterprises

27. Normandy Real Estate Partners

28. Och-Ziff Capital Management Group

29. Praedium Group

30. Raith Capital Partners, LLC

31. Rialto Capital Management LLC

32. Rialto Capital Advisors LLC

33. Rockpoint Group

34. Rockwood

35. RREEF Funds

36. Square Mile Capital Management

37. The Blackstone Group

38. The Carlyle Group

39. Torchlight Investors

40. Walton Street Capital, L.L.C.

C-1

41. Westbrook Partners

42. Wheelock Street Capital

43. Whitehall Street Real Estate Fund, L.P.

C-2